Tuesday, September 23, 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.

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