Friday, September 19, 2014
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Native Legal Win # 193: Resource Rulers perspective

Bill Gallagher, lawyer / strategist / author

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


What happens when a B.C. Tree Farm License quota is not fully harvested? In this instance, 75% of the surplus (‘undercut’) was rotated back into the License by Ministerial fiat; effectively putting that volume out-of-reach of the local First Nation that had been actively pursuing the same ministry for future logging opportunities.


No consultation between Crown / First Nation ever occurred around this decision.


Thus was the stage set for the Ehattesaht First Nation to sue both the B.C. Minister of Forests and the logger, Western Forest Products Inc. The latter, represented by Geoff Plant, is a former B.C. Attorney General and Minister of Treaty Negotiations.


The result is a slam-dunk for the native side - win # 193 - here are key paragraphs:

5] Prior to making the Decision, there had been consultation between the Ministry and Western, but there was no consultation between the Ministry and Ehattesaht. Indeed, the Ministry did not even notify Ehattesaht that the matter was under consideration, and Ehattesaht submits that it was therefore denied any opportunity to provide comments or make submissions.

[32] Nevertheless, I agree with Ehattesaht that the Decision was beneficial to Western, and indeed, that is why Western was eager to consult with the Ministry and put its position forward before the Decision was made.

[62] Thus, I do not accept the respondents’ submission that there was no duty to consult in the present case because the right or interest of Ehattesaht that was affected by the Decision was merely an economic interest as opposed to an Aboriginal right.

[63] 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.

[Citation: Ehattesaht First Nation v. British Columbia (Forests, Lands and Natural Resource Operations) 2014 BCSC 849 – author’s underlining]


The ruling ends at Para 63 making this the shortest Duty to Consult decision in a decade. The law is increasingly clear. No need to embellish. This is perhaps a trend.


Moreover, the court’s logic draws heavily from the Haida ruling, which likewise addressed the province’s administration of an impugned Tree Farm License.


The result means that the 75% undercut volume is now in-play commercially (minister’s decision is void) and it’ll be interesting to see what happens next.


But the fact that this ruling is so black-and-white makes one wonder if the industry that cuts the logs, actually ever reads the newsprint that is produced thereon? That’s because it’s now a very one-sided story of native legal empowerment in the B.C. resources sector - starting with that duty-to-consult Haida win way back in 2004.


This latest ruling exposes the tried-and-true corporate / government dynamics still at work in thwarting legitimate native economic aspirations. Except, as is clear from the outcome, those dynamics are no longer delivering the intended results for the powers-that-be. Unbelievably, it’s taken the province a full 10 years to get to this stark realization: indeed native legal win # 193 is a fitting segue for what lies ahead!


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