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.
 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.
 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.
 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!
Bill Gallagher, Author, Lawyer, Strategist
Resource Rulers: Fortune and Folly on Canada’s Road to Resources
Not to diminish all the other subjects addressed in the first 20 pages, my area of interest lies in the 3 closing pages focusing on resource projects. To set the stage, here is a list of headlines just the week before the U.N. Report issued, which underscore the relevancy of the final three pages:
May 2 ‘Tsleil-Waututh to take legal action to block Kinder Morgan pipeline expansion’ (Huff Post)
May 5: ‘Indigenous lawsuits could paralyze the tar sands’ (VICE Can)
May 5: ‘Conflict will be the norm if mining company ignores our concerns (Huff Post)
May 6: Yukon Party won’t cancel mineral claims in the Peel (CBC)
May 6: “Stall” shale gas industry, top public health officer says (CBC NB)
May 7: ‘Northern Gateway investor money will ‘sit there and rot’, warns chief (CP)
May 8: ‘Protests shift to protocol: BC First Nations hail new way forward for business’ (CP)
May 9: ‘NWT elders parliament votes for a freeze on fracking’ (CBC)
May 9: ‘Study on impacts of uranium mining to extend Quebec moratorium another year’ (Mining.com)
May 10: “First Nations consent crucial to dam project’ (Globe & Mail)
The U.N. Report issued May 12, and to highlight its media currency and business relevancy, para 73 identifies and addresses no less than 6 of the foregoing resource projects, calling them: ‘proposed or implemented development projects that they (natives) feel pose great risks to their communities and about which they feel their concerns have not been adequately heard, or addressed’. (The report cites 16 such projects.)
I have been commenting on several of these same projects and my list of projects in the native empowerment ‘blender’ is considerably longer.
My first endorsement: it cannot be realistically argued that the U.N. Report misses-the-mark in terms of its media currency and business relevancy as it profiles a host of resource projects currently in the native empowerment ‘blender’.
The U.N. report is relevant in another key area as it clearly dovetails with Doug Eyford’s PMO report in pointing out the shortcomings of the regulatory approval process in satisfying the ‘duty to consult’, saying:
‘… Indigenous governments deliver these concerns to a federally appointed review panel that may have little understanding of aboriginal rights jurisprudence or concepts and that reportedly operates under a very formal, adversarial process with little opportunity for real dialogue. (U.N Report para 72)
Here’s Eyford’s perspective in his words: ‘ … the formality of the environmental assessments inhibits Crown-Aboriginal dialogue. It is costly for Aboriginal communities to participate, the focus is often technical, and the process can be time consuming. Further, the joint panel review for the Northern Gateway Pipeline project demonstrates how regulatory processes can turn into adversarial proceedings damaging relations between the Crown and industry on the one hand, and Aboriginal communities on the other.’ (Eyford Report to the Prime Minister Nov 29/ 2013 pg 35).
My second endorsement: it cannot be realistically argued that the U.N. Report is offside on this key ‘duty to consult’ regulatory aspect as it clearly mirrors the Eyford report. There has to be independent dialogue.
In ‘Resource Rulers’ preface, Professor Alan Cairns O.C. compellingly argues that the advances that native empowerment has now realized: ‘requires sophisticated statesmanship. It is a political task of the highest order.’ (pg xi). Here’s the U.N. Report essentially saying the same thing:
81. ‘… To that end, it is necessary for Canada to arrive at a common understanding with aboriginal peoples of objectives and goals that are based on full respect for their constitutional, treaty, and its internationally-recognized rights.’ (Conclusions & Recommendations)
My third endorsement is: it cannot be realistically argued that the U.N. Report’s call for statesmanship can be ignored. Indeed it might be well seen as a last chance; that’s because I foresee a ‘perfect storm’ blowing-in if its resource recommendations are not taken seriously in Ottawa.