Fact Sheet - CANADIAN PACIFIC RIGHT OF WAY SPECIFIC CLAIM OF THE MADAWASKA MALISEET FIRST NATION

The 7.88 acre Right of Way

The Reserve was already established when a railway was constructed through it in 1878 by the New Brunswick Railway Company. This company occupied 7.88 acres of reserve land (hereinafter the “Right of Way”) as part of a larger railway running from Woodstock to Edmundston. In 1890, the New Brunswick Railway Company leased its railway lines to Canadian Pacific Railway (CPR) for a period of 990 years.

On October 13, 1907 an Order in Council was adopted authorizing the sale of land for the Right of Way to CPR. Letters Patent for the Right of Way were issued to CPR on November 12, 1907.

In the 1930s CPR entered into several abandonment and track-sharing agreements with Canadian National Railway to eliminate superfluous lines. In 1936, CPR removed the railroad tracks from the eastern half of the Reserve.

The 3.8 acre Railway Wye

On July 10, 1944, by Order in Council, 3.8 acres of reserve land (the “Railway Wye”) adjoining the 7.88 acre Right of Way, was granted by the Crown to CPR to allow the construction of a “Wye” on its line. This Railway Wye was used to turn and park engines, as well as for the maintenance of the engines.

Fraser’s Pipeline

In the late 1960s and early 1970s, the Department and the First Nation made several requests to CPR to have the Right of Way reverted to the First Nation. CPR refused, stating that it would not consider disposing of the abandoned portion of the Right of Way until its future requirements were known.

Around 1971, Fraser Co. Ltd. (Fraser) obtained permission from CPR through an oral agreement, to build a pipeline on the Right of Way. Construction of the pipeline started the same year. Around the same time, the remaining railroad tracks were removed from the western portion of the Right of Way and from the Railway Wye. In an agreement registered on April 14, 1975, with an effective date of October 1, 1973, CPR granted an easement to Fraser for the sum of $1.00 and other valuable consideration not specified in the easement.

In the early 1970s, the pipeline was built on the Right of Way to carry liquid effluent from its pulp mill to a nearby treatment site. On the reserve, the pipeline -- a four-foot diameter wooden stave pipe -- was located above ground and divided the reserve in two; however, outside the reserve (e.g. City of Edmundston) the pipeline was located underground.

On August 24, 1971 the First Nation launched a court action in the New Brunswick Supreme Court, against Fraser, Dubé Construction, Pacific Coast Pipe and CPR. Following unsuccessful out-of-court discussions, the trial occurred in late November to early December 1972. On April 24, 1973, all of the First Nation’s claims were dismissed mainly because Canada was not a party to this litigation.

Negotiations from 1973 to 1994

In 1973, a process to find a solution to the First Nation’s grievance related to the pipeline was initiated. In 1988, the First Nation submitted a specific claim with respect to the Right-of-Way, but it was subsequently removed and referred for administrative remedy. Although negotiations held from 1973 to 1994 were unsuccessful, in 1995 Fraser did replace the above-ground pipeline with a buried one.

Back to the Specific Claims Process

In 1998, the First Nation resubmitted its specific claim concerning the taking of the 7.88 acre Right of Way and was accepted for negotiations, under the Specific Claims Policy, in May 2004. Two year later, the Railway “Wye” was officially added to the claim. After approximately 3 years of negotiations, an agreement-in-principle was reached on August 15, 2007 between the First Nation and Canada.

The settlement agreement includes the following provisions:

• Canada to provide $5.7 million in compensation to the Madawaska Maliseet
• First Nation, including negotiation and ratification costs;
• a mechanism to confirm as reserve three parcels of lands: the 7.88 acre
• right-of-way, the 3.8 acre Railway “Wye” and the 1.07 acre parcel; and the issuance of an easement under section 28(2) of the Indian Act to Fraser Papers Inc. by Canada which will regularize Fraser’s use of a portion of the reserve lands for its pipeline

The compensation offered to the Madawaska Maliseet First Nation is based on a loss of use study conducted by an independent consultant to assess the First Nation losses for the period from 1971 to today.

With the settlement of this claim, the Government of Canada and the Madawaska Maliseet First Nation permanently settle this historical grievance.  This process, based on cooperation, promotes stronger relationships between First Nations, the Government of Canada and third parties.  Finally, the compensation in this type of claim is expected to generate long-term socio-economic benefits for both First Nations and neighbouring communities.

First Nation Ratification Vote

During a January 29, 2008 ratification vote, 94 per cent of the eligible members of the Madawaska Maliseet First Nation who cast their vote, voted in favour of the agreement.

The First Nation has a population of 228 members, of which approximately 50 per cent live on reserve.  Its population lives on St. Basile No. 10 reserve which is located within the boundaries of the city of Edmundston in the north-western region of New Brunswick.