Fact Sheet: Canadian Pacific Right of Way Specific Claim of the Madawaska Maliseet First Nation

The First Nation has a population of 228 members, of which approximately 50 percent live on reserve.  Its population lives on St. Basile No. 10 reserve which is located approximately 1.6 km east of Edmundston in the northwestern region of New Brunswick.

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 (hereinafter 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 1960's and early 1970's, the Department of Indian Affairs 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.

Originally built 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 (for 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 refused to participate in 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 by INAC's Atlantic regional office which led to negotiations between the First Nation, CPR, the regional office and later, Fraser. In 1988, the First Nation submitted a specific claim with respect to the Right-of-Way. It was subsequently removed from the specific claims process and referred to the INAC's Atlantic Regional Office for administrative remedy. These negotiations, held sporadically from 1973 to 1994, were unsuccessful and the parties were not able to come to an agreement on how to resolve the issue. However, even though the negotiations were not successful, in 1995, Fraser did replace the above-ground pipeline located on the reserve with a four foot diameter PVC pipeline in 1995 and buried it.

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 it was accepted for negotiations, under the Specific Claims Policy, on May 4, 2004.  On May 13, 2006, the Railway “Wye” was officially added to the claim.

A settlement agreement would provide Madawaska with financial compensation of $5M and would also include a mechanism to confirm as reserve two parcels of lands: the 7.88 acre right-of-way and the 3.8 acre Railway “Wye”.