Friday, July 25, 2014
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Duty to Consult: more BC legal folly

Bill Gallagher: Strategist / Lawyer / Author

Resource Rulers: Fortune and Folly on Canada’s Road to Resources

 

A decade has passed since the Supreme Court of Canada first applied the Duty to Consult doctrine in a case that involved a Tree Farm License on Haida Gwaii. The failure to consult in that instance started the ball rolling on improving dialogue in the resources sector (or so one would assume) but recent rulings show otherwise.

 

Here’s a snapshot of a cluster of BC rulings a decade later, in the span of less than one month, notable for more legal folly on BC’s road to resources:

June 5 2014: The inadequacy of the Province’s consultation with Fort Nelson First Nation (FNFN) created the potential for conflict between FNFN and the Province’s licensees. When the Province failed to warn the plaintiff of Mr. Behn’s expressed intention to stop logging, it put the plaintiff on a collision course with Mr. Behn and FNFN. (Moulton Contracting v B.C)

June 4 2014: While appearing to listen the Crown was, in my view, in fact locked into its position from the beginning and ultimately closed the door to further discussions, advising the Nations the OCP had to be approved before the election writ dropped, thus foreclosing any further consultation. (Squamish Nation v. BC)

May 14 2014: I am satisfied that the Crown had a duty to consult Ehattesaht prior to making the Decision to return 75% of the TFL 19 Undercut to the inventory of TFL 19. As the Minister did not consult Ehattesaht, the Decision is quashed. (Ehattesaht First Nation v. BC) (author’s underlining)

 

Each ruling tells its own story of just how poorly the Provincial Crown is faring in the consultation department: from injunctions (Moulton) to land use plans (Squamish) to yet again, Tree Farm Licenses (Ehattesaht). Clearly there remain some serious chokepoints in the BC government’s execution of its duty to consult.

 

Thus the stage is set for the Prime Minister to issue his career-defining decision on the Northern Gateway Pipeline Project, that has to happen by June 17 (rounding out the month) but these ill-timed legal lapses by the BC government certainly don’t make his decision any easier. Indeed as a direct result, BC’s legal incompetence should become part of that embattled project’s decision-making matrix.

 

How could it have come to pass, that with all the priorities in play around this key federal infrastructure priority, that the BC government would be so caught-out in failing its duty to consult obligations to natives (and by direct implication to both industry and to the public)? Moreover how could a Tree Farm Licence be part of this testament to bureaucratic ineptitude a full decade after the Supreme Court of Canada’s Haida clarifications?

 

Perversely the only good news in this cluster of legal folly is the duty-to-warn of blockades, because if BC keeps this up, there’s going to be a lot more of them.

 

Whatever Trevor

Dis is Trevor.

Blast from the past: FP archive

When is Consultation, Consultation?

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I know the treaty issues are huge here but what can be done today to engage a community after so much conflict has occurred? What would a good engagement strategy look like? Surely a lot of people are uneducated and fearful of what they don't know, with exploration and development come economic activity and jobs...we do need that
VOTES:0
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Enter your name 3 weeks ago
Excellent article. Thank You for having the courage to tell it like it is
VOTES:-1
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You tell them the truth.
VOTES:-1
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So sad. So important that you write it
VOTES:-1
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fraud is fraud.... the right to foster a return in common good of its citizens....

the queen cant take without fostering and paying the returns off the land to our unborn.....

like you cant go to china or any other country and demand everything without a return...

VOTES:-1
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its just a con-in-a-sultan-suit double dealing the deck.... English words you got to love hidden meanings like reconciliation sounds like to-re-hide-what-was-hidden... or re-concil-a-nation
zig
VOTES:0
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Thank you for this warning message to all First Nations people and Canadians. We are in perilous times as was foretold by our ancestors. The people now must come together around the The Tree of Life and the Great Law of Peace and to live in a good way as we were intended to live 'For as long as the sun shines and rivers flow'.That is the truth in the treaties and it is our responsibility to be aware, to educate ourselves and to take act on behalf of the earth and the coming generations.
VOTES:-1
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Ovide knows what he is speaking about. In 1996 at the end of his term as National Chief of the AFN, he and the Assembly were denied the right to review the RCAP which contained the plans for the $2.5 billion dollar Indian Residential School Resolution Canada Settlement, the Gathering Strength Action Plan which promised First Nations economic prosperity, and the policies which are being implemented now. Phil Fontaine, former National Chief was a chief negotiator under the RCAP and was promoted to National Chief of the AFN after Ovides term. Decisions made under his leadership have affected all First Nations people today, First Nations leaders must start with their own people and not make more harmful decisions that is going to hurt the next generation. We need to put our good minds and hearts together if we are to go on as First Nations people in the way we were intended.
VOTES:-1
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Shawn Atleo's "sudden" departure; Another politician goes, & here comes "our new" political leaders? Why the Non Shareholding NATIVE & non Native Canadians, et al, (95% - 99%) are living in Fear of The c - Ci Treaty, The CET Agreement & The TP Partnership and the enterprises that are derived from them?

While education is critical for Aboriginal Canadian children to, not only survive, but flourish, in both; Native communities & urban communities, the "sudden" resignation of The Assembly of First Nations National Chief, Shawn Atleo, leaves the aforementioned most vulnerable community members (MVCMs) continuing to be deprived of the information that is in The W.A.D. Accord* & thus, continues to prevent the most "vulnerables" from utilizing The Accord in order start getting the benefits that Aboriginal Canadians, et al, are entitled to by way of:
1) a) re-opening the existing treaty & land claims settlements with the government of Canada to accommodate the aforementioned information that Aboriginal Canadians, et al have been deprived of, including The Compensation embodied in The WAD Accord
b) re-formulating the ongoing treaty & land claims settlements that are presently being negotiated with the government of Canada to accommodate the aforementioned information that the most vulnerable Aboriginal Canadians (ie. 95% - 99% of the members of Native communities), et al, have been deprived of, including The Compensation embodied in The W.A.D. Accord
&
2) the international arrangements that are continuing to be utilized by corporate Canada in order to supersede, minimize, &/or, eliminate Aboriginal Canadians economic, educational interests, etc. with the foreign signatories of the FT Agreement (FTA), NAFT Agreement (NAFTA), C-CI Treaty (C-CIT), CET Agreement (CETA), TP Partnership (TPP), et al, as was the case with Jay's Treaty vs. Aboriginal Canadians.

Perhaps, the reader might also consider learning more about what the other potential signatories to the aforementioned arrangements are willing to share about the provisions for the retroactive Compensation, as well, before continuing their support of PM Harper's (corporate Canada's) secret arrangements, tribunals, punitive penalties to be paid by the domestic & foreign non shareholders by way of further major cuts to program funding, transfer payments, services, etc.

The departure of Mr. Atleo seems to have been particularly well timed as it avoided the attention that the potential signatories to the aforementioned arrangements (Agreements, Treaties, etc.) are expressing on behalf of their countries' non shareholders who will not be the beneficiaries of the enterprises that can be generated by the "arrangements", ie. the uncertainty for the 95% - 99% of the citizens of the signatory countries that is caused by, amongst other things:
1) The NOTIFICATION of PREEXISTING CHALLENGES to the China - Canada Investment Treaty (C-CIT; FIPPA)**,
2) The NOTIFICATION of PREEXISTING CHALLENGES to the EU - Canada Comprehensive Economic &Trade Agreement (CETA)***,
3) The NOTIFICATION of PREEXISTING CHALLENGES to the Trans Pacific Partnership (TPP)****,
4) et al,
&
5) the reopening & renegotiating existing "superseding" arrangements (Agreements, Treaties, etc.).
In conclusion, with the departure of Mr. Atleo, do the non shareholding readers think that they will start to obtain the information that they have been deprived of, or, will corporate Canada continue to secretly & successfully play off the most vulnerable community members against the potential foreign investors by way of "our new" political leaders?

*The WAD Accord; Google; "The W.A.D. Accord""...
** "...PREEXISTING CHALLENGES to C-CITreaty; Google; "Prime Minister Harper; You've Been Served with The NOTIFICATION..."
*** "...PREEXISTING CHALLENGES to CETA; Google; "Presidents of the EU; You've Been Served with The NOTIFICATION..."
****"...PREEXISTING CHALLENGES to TPP; Google; Relevant PRESIDENTS/PRIME MINISTERS of the potential signatories to the TPP; "...You've Been Served with The NOTIFICATION...".

Sincerely,
David E.H. Smith
- Researcher
- "Qui tam..."

For more Info. & Questions re; The Relationship between Human (Nature) Rights & Economics in the C-CI Treaty, the CET Agreement, TPP, et al, via The WAD Accord,
see; Facebook; David Smith, Sidney, BC,
or,
Google; "David E.H. Smith" to access "RECENT ARTICLES, LETTERS & NOTIFICATIONS" by DEHS,
*******
"HELP IS ON THE WAY?; The INHUMANELY HIGH RATES of SUICIDES, etc. in Canada"
Written by David E.H. Smith

Re; the NESKANTAGA First Nation's (Canada) high rate of SUICIDES.
After discussing with a
psychologist (Native), et al, the relationship BETWEEN:
the DEPRIVATION of the most vulnerable Native community members, et al, of the simplest & most basic information, such as the information in The W.A.D. Accord* (aka; The Australian Question).
and
the high rates of:
1) SUICIDES,
2) despair,
3) disenchantment,
4) unemployment,
5) poverty,
&
6) etc.,
that are found in many Native communities, et al, across Canada,
the PSYCHOLOGIST CONCURRED.

I have subsequently shared some of the aforementioned information, et al, with, &/or, have had the information & questions improved by, amongst others:
1) senior politicians & bureaucrats; both, federal & provincial, Canadian, et al,
2) the relevant lobbyists' clients & the executives of the political parties operating in Canada,
3) the "coveted" foreign investor, et al,
4) the United Nations High Commissioner for Human Rights.
&
5) et al.

If you are interested in utilizing the aforementioned information to minimize, &/or, ELIMINATE the aforementioned major contributing factor to the SUICIDES, etc,
&/or,
have questions regarding the basis for The Compensation (similar to the compensation re; theResidential Schools, except larger, et al) to the most vulnerable community members, et al, for being deprived of the aforementioned simplest & most basic information,
then,
you might consider contacting the above groups & individuals in order to obtain some of the information that is in The W.A.D. Accord, etc.,
then,
contacting me by mail at:
2173 Bradford Ave., Sidney, B.C. CANADA. V8L 2C8.

By way of closing, does this information & the information in The WAD Accord belong to you, or, to the community members?
And, what do the psychologists that the Neskanataga are utilizing know about the aforementioned relationship & do they concur, or, not?

Sincerely,

David E.H. Smith
- Researcher
- "Qui tam..."

* For those who may not be familiar with The WAD Accord, &/or, its recent developments, see below the less comprehensive version of The W.A.D. ACCORD (aka; The Australian Question), &/or, The Accord can be accessed on line by way of the submission entitled:

"Towards a More Informed Opinion regarding the Environmental Impact & Context of the NGP (Pipeline), et al", Researched & Submitted by D.E.H.S., July 24, 2012 to the Enbridge Co.'s NGP Joint Review Panel..

Contact:

Ms. Colette Spagnuolo,
GatewayProcessAdvisor@ceaa-acee.gc.ca
Process Advisor, Northern Gateway Project.
(22nd Floor, 160 Elgin St. Ottawa ON K1A 0H3).
regarding:
gatewaypanel.review-examen.gc/cl... r-eng.html
Public Registry; File #A43076.
All letters of comment are under "F". This comment is available.
under the subfolder "S".
Further questions?;
GatewayProcessAdvisor@ceaa-acee.gc.ca
VOTES:-1
avatar
David E.H. Smith -
Shawn Atleo's "sudden" departure; Another politician goes, & here comes "our new" political leaders? Why the Non Shareholding NATIVE & non Native Canadians, et al, (95% - 99%) are living in Fear of The c - Ci Treaty, The CET Agreement & The TP Partnership and the enterprises that are derived from them?

While education is critical for Aboriginal Canadian children to, not only survive, but flourish, in both; Native communities & urban communities, the "sudden" resignation of The Assembly of First Nations National Chief, Shawn Atleo, leaves the aforementioned most vulnerable community members (MVCMs) continuing to be deprived of the information that is in The W.A.D. Accord* & thus, continues to prevent the most "vulnerables" from utilizing The Accord in order start getting the benefits that Aboriginal Canadians, et al, are entitled to by way of:
1) a) re-opening the existing treaty & land claims settlements with the government of Canada to accommodate the aforementioned information that Aboriginal Canadians, et al have been deprived of, including The Compensation embodied in The WAD Accord
b) re-formulating the ongoing treaty & land claims settlements that are presently being negotiated with the government of Canada to accommodate the aforementioned information that the most vulnerable Aboriginal Canadians (ie. 95% - 99% of the members of Native communities), et al, have been deprived of, including The Compensation embodied in The W.A.D. Accord
&
2) the international arrangements that are continuing to be utilized by corporate Canada in order to supersede, minimize, &/or, eliminate Aboriginal Canadians economic, educational interests, etc. with the foreign signatories of the FT Agreement (FTA), NAFT Agreement (NAFTA), C-CI Treaty (C-CIT), CET Agreement (CETA), TP Partnership (TPP), et al, as was the case with Jay's Treaty vs. Aboriginal Canadians.

Perhaps, the reader might also consider learning more about what the other potential signatories to the aforementioned arrangements are willing to share about the provisions for the retroactive Compensation, as well, before continuing their support of PM Harper's (corporate Canada's) secret arrangements, tribunals, punitive penalties to be paid by the domestic & foreign non shareholders by way of further major cuts to program funding, transfer payments, services, etc.

The departure of Mr. Atleo seems to have been particularly well timed as it avoided the attention that the potential signatories to the aforementioned arrangements (Agreements, Treaties, etc.) are expressing on behalf of their countries' non shareholders who will not be the beneficiaries of the enterprises that can be generated by the "arrangements", ie. the uncertainty for the 95% - 99% of the citizens of the signatory countries that is caused by, amongst other things:
1) The NOTIFICATION of PREEXISTING CHALLENGES to the China - Canada Investment Treaty (C-CIT; FIPPA)**,
2) The NOTIFICATION of PREEXISTING CHALLENGES to the EU - Canada Comprehensive Economic &Trade Agreement (CETA)***,
3) The NOTIFICATION of PREEXISTING CHALLENGES to the Trans Pacific Partnership (TPP)****,
4) et al,
&
5) the reopening & renegotiating existing "superseding" arrangements (Agreements, Treaties, etc.).
In conclusion, with the departure of Mr. Atleo, do the non shareholding readers think that they will start to obtain the information that they have been deprived of, or, will corporate Canada continue to secretly & successfully play off the most vulnerable community members against the potential foreign investors by way of "our new" political leaders?

*The WAD Accord; Google; "The W.A.D. Accord""...
** "...PREEXISTING CHALLENGES to C-CITreaty; Google; "Prime Minister Harper; You've Been Served with The NOTIFICATION..."
*** "...PREEXISTING CHALLENGES to CETA; Google; "Presidents of the EU; You've Been Served with The NOTIFICATION..."
****"...PREEXISTING CHALLENGES to TPP; Google; Relevant PRESIDENTS/PRIME MINISTERS of the potential signatories to the TPP; "...You've Been Served with The NOTIFICATION...".

Sincerely,
David E.H. Smith
- Researcher
- "Qui tam..."

For more Info. & Questions re; The Relationship between Human (Nature) Rights & Economics in the C-CI Treaty, the CET Agreement, TPP, et al, via The WAD Accord,
see; Facebook; David Smith, Sidney, BC,
or,
Google; "David E.H. Smith" to access "RECENT ARTICLES, LETTERS & NOTIFICATIONS" by DEHS,
*******
"HELP IS ON THE WAY?; The INHUMANELY HIGH RATES of SUICIDES, etc. in Canada"
Written by David E.H. Smith

Re; the NESKANTAGA First Nation's (Canada) high rate of SUICIDES.
After discussing with a
psychologist (Native), et al, the relationship BETWEEN:
the DEPRIVATION of the most vulnerable Native community members, et al, of the simplest & most basic information, such as the information in The W.A.D. Accord* (aka; The Australian Question).
and
the high rates of:
1) SUICIDES,
2) despair,
3) disenchantment,
4) unemployment,
5) poverty,
&
6) etc.,
that are found in many Native communities, et al, across Canada,
the PSYCHOLOGIST CONCURRED.

I have subsequently shared some of the aforementioned information, et al, with, &/or, have had the information & questions improved by, amongst others:
1) senior politicians & bureaucrats; both, federal & provincial, Canadian, et al,
2) the relevant lobbyists' clients & the executives of the political parties operating in Canada,
3) the "coveted" foreign investor, et al,
4) the United Nations High Commissioner for Human Rights.
&
5) et al.

If you are interested in utilizing the aforementioned information to minimize, &/or, ELIMINATE the aforementioned major contributing factor to the SUICIDES, etc,
&/or,
have questions regarding the basis for The Compensation (similar to the compensation re; theResidential Schools, except larger, et al) to the most vulnerable community members, et al, for being deprived of the aforementioned simplest & most basic information,
then,
you might consider contacting the above groups & individuals in order to obtain some of the information that is in The W.A.D. Accord, etc.,
then,
contacting me by mail at:
2173 Bradford Ave., Sidney, B.C. CANADA. V8L 2C8.

By way of closing, does this information & the information in The WAD Accord belong to you, or, to the community members?
And, what do the psychologists that the Neskanataga are utilizing know about the aforementioned relationship & do they concur, or, not?

Sincerely,

David E.H. Smith
- Researcher
- "Qui tam..."

* For those who may not be familiar with The WAD Accord, &/or, its recent developments, see below the less comprehensive version of The W.A.D. ACCORD (aka; The Australian Question), &/or, The Accord can be accessed on line by way of the submission entitled:

"Towards a More Informed Opinion regarding the Environmental Impact & Context of the NGP (Pipeline), et al", Researched & Submitted by D.E.H.S., July 24, 2012 to the Enbridge Co.'s NGP Joint Review Panel..

Contact:

Ms. Colette Spagnuolo,
GatewayProcessAdvisor@ceaa-acee.gc.ca
Process Advisor, Northern Gateway Project.
(22nd Floor, 160 Elgin St. Ottawa ON K1A 0H3).
regarding:
gatewaypanel.review-examen.gc/cl... r-eng.html
Public Registry; File #A43076.
All letters of comment are under "F". This comment is available.
under the subfolder "S".
Further questions?;
GatewayProcessAdvisor@ceaa-acee.gc.ca
VOTES:-1

Ovide Mercredi

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