Tuesday, September 16, 2014
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Native Legal Win # 190: Implications for Alberta’s Oilsands


Bill Gallagher

Lawyer/ strategist


‘Twas the night before Christmas’ when the latest native legal win issued out of B.C.


It’s from Treaty 8, and since the court reviewed and refreshed all the relevant legal precedents, it’s of course applicable across the entire Treaty region, including the oilsands. Thus it may well prove a huge Christmas gift for native strategists there.


Really it’s a win for a logging company that had been wrongly blockaded by natives.


But it’s also a backhanded native win; showing once again that they rarely leave court empty-handed. Here’s the sequence in plain language: a) the Crown did not properly consult with Fort Nelson First Nation b) and never warned the company of a lone irate trapper c) the ensuing blockade put the financial squeeze on the logger d) so now the B.C. government is ordered to pay the company $1.75 million! That’s because the Crown had failed to properly discharge its duty to consult owed to those same natives; and thereby breached its logging license (implied term) with Moulton.


Here's the genesis of the dispute - a one sentence paragraph - note the time lines:

"[115] The following day, Sept 29 2006, Mr. Smith advised Mr Moulton that there was a potential problem with a trapper. At Mr. Smith's request, Mr Moulton agreed to suspend logging until Oct 1."


Now a full 7 years later, what had started as a potential problem with a lone trapper has turned into a major liability for BC taxpayers. Although the Company also sued its native protagonists, but to no avail, its assertions were dismissed without merit:

[271] The claims against the Behn Defendants, Chief Logan and FNFN are dismissed.


Again, the B.C. government is on the hook because it botched the ‘duty to consult’:

[293]   On the totality of the evidence, I cannot find that the Province consulted with FNFN in a manner sufficient to maintain the honour of the Crown. The FNFN Lands Department operated with substantially limited capacity. To the knowledge of BCTS and MOF, it had no real ability to undertake meaningful evaluation of forestry proposals. That is not to say, by any means, that the Province was under an obligation to provide funding for improved capacity. But, knowing of the limitations facing the Lands Department, BCTS could have done much more than it did. It could have provided the Lands Department with longer time lines to respond to its inquiries, and could have set deadlines and held meetings outside the peak season for oil and gas approvals. It could have explored with FNFN the availability of other Crown resources. It could have arranged an intensive, on-the-ground review of the cutblocks with Mr. Behn. (Moulton Contracting Ltd. v B,C, 2013 BCSC 2348) (author’s underlining)


The oilsands implication is this: the court spends pages reviewing and summarizing Treaty 8 legal precepts (duty to consult, honour of the crown, and key precedents). If just one trapper can generate this much legal vindication, imagine what an entire First Nation can accomplish, or a group of First Nations aligned with eco-activists:

[320] I assess the plaintiff’s losses arising from the Province’s failure to warn of Mr. Behn’s intent to blockade the Canfor Road and interfere with the TSLs, at $1.75 million. (author’s underlining)


This ruling from two weeks ago has been greeted with silence in Calgary though it applies 'in spades' to the oilsands; coincidentally just as that important enterprise comes under major attack courtesy of rocker Neil Young’s “Honour the Treaties” tour. But the real reason this county is mired in resource gridlock is Groupthink!


Since there’s little doubt that the native legal winning streak will hit 200 in 2014, I’m inviting readers to follow along as I embark on the countdown from a Resource Rulers perspective. I believe that we’re about to witness the apex of the rise in native empowerment in the Canadian resources sector. I reiterate that it remains the biggest under-reported business story in Canada of the last decade.



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