Wednesday, September 17, 2014
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Judge reserves decision on forestry plan challenge by First Nations chiefs

Group of chiefs seeking injunction to block government from giving industry more Crown wood

CBC News

A Court of Queen's Bench judge has reserved decision on an application by First Nations chiefs to block the provincial government's new forestry plan, which gives industry access to more Crown wood.


Justice Judy Clendening will rule Friday at 1:30 p.m. whether to issue an interim injunction on the government signing final agreements with private companies.

But the court heard on Monday that one deal has already been finalized.

J.D. Irving Ltd.'s lawyer Mahmud Jamal revealed the company's agreement was signed last Wednesday and Thursday, one day after Premier David Alward told CBC News the deal would be ready "within the very next few days."

The forestry plan is a key part of the Progressive Conservative Party's re-election strategy, which urges New Brunswickers to "say yes" to natural resource development and a stronger economy.

The chiefs argue the new forestry strategy will damage the forest they've relied on for thousands of years.

They allege the province has not met its legal and constitutional obligations to seek consent or input from aboriginal people and that aspects of the forestry strategy violate their aboriginal and treaty rights.

But Alward told reporters on Monday he has consulted.

"What I feel very good about is the work Natural Resources and other departments have done in working with First Nations peoples," he said.

'Press the pause button'

Still, First Nations lawyer, Derek Simon, said the fact the chiefs didn't know the deal with J.D. Irving Ltd. has already been signed shows they've been kept in the dark.

He asked Clendening to consider an injunction of between 10 days and two weeks, to give all sides time to fully prepare arguments on the merits of the motion.

"We are asking this court to press the pause button for a matter of weeks," Simon said.

Government lawyer Bill Gould argued "fulsome consultation has occurred and is ongoing."

An injunction would bring all forestry operations to a halt, he said.

A 10-day pause could cost J.D. Irving Ltd. $100 million and a "substantial loss of employment," said Jamal.

Urgent bid unnecessary

Jamal argued the First Nations chiefs had a copy of the memorandum of understanding between the government and J.D. Irving Ltd. since May 5, but "manufactured" the urgency of Monday's hearing by waiting to go to court.

The hearing, which he described as taking place "in a bit of a hothouse," wasn't necessary or justified, he said.

In addition, First Nations evidence shows harvesting levels won't exceed the previous forestry plan until February 2015, so there is no need for an urgent injunction, said Jamal.

Twin Rivers's lawyer, Matthew Hayes, argued that whatever harvesting takes place over the next few weeks would not be enough to cause irreparable harm.

The lawyer for AV Nackawic, Jim O'Connell, agreed, saying the company's new allocation would only be harvested in 2015, so an urgent injunction is unnecessary.

He expressed concern, however, about what type of message a pause "would send outside the province to potential investors."

Liberal Leader Brian Gallant contends the Alward government has "not consulted with New Brunswickers as a whole" over the past four years.

"They haven't consulted with First Nations properly, often saying it was the companies' business to do so," Gallant said during a news conference on Monday morning.

"The duty to consult makes it very clear that it's the role of the government to consult," he said.

"I won't comment on the litigation, but I can certainly say that I believe all New Brunswickers feel the Alward government hasn't been listening to them enough."

Meanwhile, the chiefs have refused an invitation to meet with Alward this week.

Alward issued a statement on Sunday, saying he is "disappointed."

"As I've said, these are crucial times for New Brunswick and for First Nations. I'd been hopeful a meeting at this time would allow us to discuss responding to short-term challenges, continue collaborating on the development of new financial arrangements and to look at some long-term ways in which we could continue to build and sustain trust," Alward said.

"I remain committed to working together with First Nations to improve social conditions, address resource development issues and provide greater economic‎ growth and prosperity for all residents of New Brunswick."

The forestry plan, announced in March, gives Crown licence holders the right to cut 20 per cent more softwood on public land.

It also reduces the amount of public forest that is off limits to industry to 23 per cent, down from the previous standard of 28 per cent.

The deal is expected to result in the harvesting of an additional 660,000 cubic metres.

The applicants are 10 chiefs of the Mi'kmaq and Maliseet First Nations of New Brunswick and the Assembly of First Nations Chiefs in New Brunswick Inc.

The application is supported by affidavits from several chiefs, a retired provincial forester and a retired provincial wildlife biologist.

In addition to the provincial government, the other respondents are the five companies that hold Crown timber licences: AV Cell Inc., Fornebu Lumber Company Inc., J.D. Irving Ltd., AV Nackawic Inc. and Twin Rivers Paper Company.

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