Analysis with Bill Gallagher, Lawyer / Strategist
Author of Resource Rulers: Fortune and Folly on Canada’s Road to Resources
There’s little wonder that Canada’s resource economy is struggling. Indeed the key players seem intent on doing as little as they can to promote constructive dialogue within project windows-of-opportunity. Thus my ranking of the Top 5 dynamics hampering progress on Canada’s road to resources:
The AFN remains missing in action: “To be abundantly clear, resolution of these big issues is not going to be something that the Prime Minister and I will work out” (National Chief Atleo on CBC’s The House March 24 2013)
B.C. Business Coalition’s quasi-legal argument against a territorial (versus site-specific) approach to defining ‘aboriginal title’: “… the territorial approach to Aboriginal title creates uncertainty and in the Business Coalition’s submission would threaten the economy.” (SCC filing argued Nov 07 2013)
Five injunction applications in-a-row over anti-fracking protests in New Brunswick feed ever more litigation: “It is possible that the Applicant (SWN Resources Canada) will seek damages at trial in an amount greater than $26 million which almost certainly could not be recovered from the Respondents” (SWN pre-hearing submission Nov 21 2013)
Premier Wynne’s strategic understatement on life-after-Cliffs and the Ring of Fire’s flameout: “On the issue of consultation, there’s plenty of opportunity right now to talk about the shape of the [corporation] to be able to be part of the formation of that”. (G&M Dec 06 2013)
Native leaders spur-of-the-moment attempt to crash Parliament while in session - but are denied entry - their departing refrain: “Wait till you try coming on to our lands!” (Dec 04 2012)
Such are the dynamics driving the downturn on the road to resources in 2013. Almost every province is involved in a protracted low-level conflict of some sort.
Strategic responses go begging as litigators jump-in to fill the leadership vacuum.
2014 will usher in another wave of legal rulings and there’s little doubt that the native legal winning streak will likely hit the 200 mark. Notably, the legal outcome-of-all-legal outcomes will be the Roger Williams ‘aboriginal title’ ruling now in deliberations before the Supreme Court of Canada. That ruling, either way, will reshape the native empowerment equation for years to come. Natives will either be positively empowered if they win a territorial-based result; or they will be negatively empowered if they lose with a site-specific result. This ruling will resonate from BC to NB where courts have already declared for ‘aboriginal title’.
Together these dynamics guarantee more speed-bumps on the road to resources.