Jun 6/98: Supreme Court of Canada to hear NB case


Canadian Press
June 6, 1998
Chris Morris

[S.I.S.I.S. note: The following mainstream news article may contain biased or distorted information and may be missing pertinent facts and/or context. It is provided for reference only.]

FREDERICTON (CP) - A lawyer is preparing to pose to the Supreme Court of Canada a question he believes governments are afraid to ask: just who owns this land of ours anyway? Cleveland Allaby has won a couple of lower court decisions that gave natives in New Brunswick the right to cut timber on Crown land.

Those decisions have since been overturned by the provincial Court of Appeal and now Allaby and the natives he represents will turn to Canadas highest court in an attempt to have the case considered there.

Despite a shortage of money, the Fredericton lawyer expects to be ready by Friday to file an application with the Supreme Court of Canada seeking leave to appeal the decision that effectively ended the hopes and dreams of the aboriginal people of New Brunswick.

Natives here jokingly refer to themselves as Cleveland's Indians and Allaby is keenly aware of the weight of expectation riding on his presentation of this critical case, both in the native and his own non-native community.

"There's a lot of pressure when you consider that within your own community, people look at you suspiciously," Allaby said.

"I'm hearing a lot of comments about being a traitor and questions like What do you think youre doing? Why are you representing them? That part really surprised me. I hadnt expected that. I expected people would understand what that was all about."

Perhaps its because many non-native people do understand what this case is about - and its ramifications - that Allaby has had a hostile reception.

One of the lower court decisions that Allaby won - the Court of Queens Bench decision - found that New Brunswick natives own the Crown lands and forests of New Brunswick and have first right to the timber.

That decision was based on 18th-century treaties which the court interpreted as upholding aboriginal title to the Crown lands in New Brunswick - roughly eight million hectares of thickly forested land.

The ruling sent shock waves through the forestry industry, the largest industry in New Brunswick, which relies heavily on Crown timber.

"It's about who owns the Crown land and what that ownership means," Allaby said, describing the nub of the case.

"The province and the federal government don't want that. They don't want these questions answered. They want it to continue and continue. They want to piecemeal it. They know the aboriginals do have title. Why are they negotiating with the aboriginal peoples if they don't have title to the land?"

The provincial government has offered reserves five per cent of the annual harvest in an attempt to ease tensions in the woods.

So far, one reserve, the Tobique First Nation, has accepted the offer and at least one other reserve, the Woodstock First Nation, is negotiating an interim logging deal.

There are 15 reserves in the province and roughly 10,000 aboriginals.

Allaby said that if the provincial government truly wanted to clarify the ownership issue, it would voluntarily finance a reference case to the Supreme Court of Canada.

He said that would be ideal, since the native community does not have a lot of money and people are finding it difficult to put together the funds needed for a Supreme Court appeal, which could cost as much as $500,000.

"If the government really wanted to solve this problem, why don't they offer to fund a reference case?" Allaby said.

"Not a test case, but a reference where the question is asked who owns the land? And both sides get a chance to make their arguments. If they're really interested in solving this, thats what they would do. It's a fast-track approach."

Allaby said regardless of the governments attitude and despite the shortage of money, hes planning to go ahead with the application on Friday, just under the deadline for filing.

"Quite frankly, this is something that just has to be heard," Allaby said.

Letters to the Premier of New Brunswick:

Back to SIS