Saturday, April 19, 2014
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Connecting the dots …

Review of current events from the perspective of Resource Rulers: Fortune and Folly on Canada’s road to Resources

Bill Gallagher, author / strategist / lawyer


A number of intersections are interrupting the flow of traffic on Canada’s Road to Resources. Some of these involve sharp left-turns that I alerted readers to be ‘on the lookout for’ in previous posts. One has to connect the dots as Resource Rulers does:


First connection: In August 2013 I had this to say about the two native legal challenges still ‘dogging’ Muskrat Falls:

“Two native lawsuits recently launched challenging Nalcor’s Muskrat Falls hydropower project. Of special interest is Nunatsiavut’s assertion of the (less litigated) duty to accommodate. The other suit is NunatuKavut (Labrador Metis) asserting shortcomings in the duty to consult. These two lawsuits arrive at a critical juncture for this hotly-debated project given: 1) Hydro-Quebec’s simultaneous legal win over its control of transmission line access; 2) plus Hydro-Quebec’s recent litigation asserting control over the entire expanse of Churchill Falls watershed rights. Bottom line: if ever a project needed native support - it’s Muskrat Falls.”

That was then. Now the native empowerment dots have connected with Premier Dunderdale’s recent resignation (see Quebec v. Labrador post on First Perspective).


Second connection: In June 2013 I quoted this ruling about the B.C. government’s unduly narrow interpretation of the Douglas Treaty:

d) Did the Provincial Crown have a Duty to Consult in respect of the Kwakiutl First Nation Traditional Territory beyond the KFN Treaty Lands?

[123]     The Provincial Crown concedes that it had a duty to consult with respect to the treaty rights but denies this duty extended to the whole KFN Traditional Territory. (excerpt Chartrand v The District Manager 2013 BCSC 1068) (author’s underlining)

That was then. Now the native empowerment dots have connected as a blockade has been thrown up (into its 12th day) over the clear-cutting of trees (see Kwakiutl First Nation Launches Protest post on First Perspective).


Third connection: In July 2013 I had this to say about the National Chief winning native legal win #183 - ‘modern right to fish and sell fish’:

“For the second time in two years, the BC Court of Appeal has ruled that the Nuu-chah-nulth (NCN) have “a modern right … to fish and sell fish”. Again this ruling is from the National Chief’s home town, making Shawn Atleo unique for being a two-time winner in the annals of the native legal winning streak. And in this second ruling, the highest court in the province actually made a point of highlighting the Crown’s dubious legal strategy:

[32] It should be recalled that prior to this action, the appellant (Canada) never recognized that the respondents (NCN) had an Aboriginal right to fish.”

That was then. Now the native empowerment dots have connected with this ruling upheld by the Supreme Court of Canada (as I predicted). Thus it’s high time to ask why the principles in the Marshall rulings from 1999 took 15 years to cross over to the other coast!


In summary, the rise of native empowerment has just served up some unexpected left-turns on the road to resources: involving a premier stepping back from her pet project; an ongoing blockade in BC’s forestry industry, and the highest-level native legal win in the BC fishery. Readers of First Perspective might well have seen these intersections coming!


This is where Resource Rulers excels - connecting the dots - telling Canadians that there’s an easier way to access resources than reliance on the litigator’s toolbox!


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