Legal wins mount: Courts are ruling in favour of aboriginal treaty rights over company development plans

Resource sector faces new era of native empowerment, Legal wins mount: Courts are ruling in favour of aboriginal treaty rights over company development plans by Barbara Yaffe, Canadian Press, January 23, 2014, Vancouver Sun
It all began back in October 2006 when an 82-year-old aboriginal man took his folding chair to a Canfor logging road in northeastern B.C., and got comfortable. George Behn’s quiet act of protest has led to yet another signal from the courts that, when resource developments challenge treaty rights, the latter almost always prevail. Author Bill Gallagher has been documenting aboriginal legal challenges involving development projects going back to 1985. He categorizes the one involving Behn, which concluded last month, as: “Native legal win No. 190.” He compares the litany of aboriginal victories to a popcorn maker – “the rulings came slowly at first, now they’re at full tilt.”

Gallagher believes the court cases tell a story of continued ignorance and
naiveté on the part of both business and government. “It’s as if the (aboriginal) winning streak has made little or no impact on their thinking, in spite of the fact many resource projects have crashed and burned along the way.”

In the Behn case, B.C. taxpayers are now responsible for a $1.75-million payout to a logging company because the Crown failed to sufficiently consult the Fort Nelson First Nation regarding its treaty rights. Behn had two trap lines in the area where Moulton Contracting planned to log. Thus, when Moulton showed up with its logging equipment, there was Behn, in his folding chair. The court found the government had granted the timber licences to Moulton without consulting the Fort Nelson First Nation “in a manner sufficient to maintain the honour of the Crown.”

Provincial officials had been warned by Behn that he would thwart any logging, but only after the ministry had granted the timber licences. For its part, the province did not warn Moulton about a potential problem until after it had moved its equipment on-site.

Moulton had not sought its own assurances from the B.C. government about prior consultations with local aboriginals. Nor had it done its own checking with the Fort Nelson band.

All this, laments Gallagher, illustrates a casual attitude that governments and businesses in Canada continue to exhibit with regard to economic development on Crown land. Moulton Contracting wound up suing both the government and the aboriginals (and Behn later sued Moulton), but only the case against the government was successful.

In 2012, Gallagher, a former oilpatch lawyer and treaty negotiator, authored Resource Rulers: Fortune and Folly on Canada’s Road to Resources, a book about the power of treaty rights in modern-day Canada. The Kitchener-based author calls aboriginal entitlement “the biggest under-reported business story in Canada of the last decade.”

When I interviewed Gallagher in 2012, he reported having documented 150 legal wins for the aboriginal side. He has documented another 40 since. I believe we are about to witness the apex of the rise in native empowerment in the Canadian resources sector,” Gallagher said recently, referring to the oilsands that are also on treaty land.

He says the Behn case is worth studying because it shows how one elderly aboriginal man with a couple of traplines created “a major liability for B.C. taxpayers. “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.” He notes that the threat of aboriginal legal action could derail a host of proposed projects in B.C. Among them are the Enbridge and Kinder Morgan pipelines, the New Prosperity Mine, the Jumbo Glacier Ski Resort, the Site C Dam, and the Mount Klappen open-pit coal mine.

Court challenges were filed this week against two unrelated resource developments in northern B.C., adding to a growing list of formal proceedings aimed at halting large scale energy and mining projects. The Gitga’at First Nation is challenging a federal review panel recommendation in favour of the Northern Gateway pipeline, bringing to 10 the number of applications filed in Vancouver against the multi-billiondollar Enbridge Inc. proposal. The small community centred around Hartley Bay on the north coast said its way of life would be severely threatened by the bitumenladen tankers that would navigate Douglas Channel on their doorstep. In applications filed this week with both the Federal Court and the Federal Court of Appeal, the band asks for a judicial review of the joint review panel’s decision.

The band wants the court to declare that the panel “breached the honour of the Crown in its dealings with the Gitga’at” and failed to fulfil the Crown’s duty to consult aboriginal peoples.

Meanwhile, the Taku River Tlingit First Nation has also launched a lawsuit in an attempt to stop a struggling, but potentially lucrative, mine in the northwest corner of the province. The suit was filed in B.C. Supreme Court, alleging the Tulsequah Chief Mine project must be stopped because it will significantly harm the band’s way of life. The proposed zinc, copper, lead, silver and gold mine is perched in the Taku River watershed, a region rich in wildlife and salmon that straddles the border between northwestern B.C. and southeastern Alaska. The band’s lawsuit says environmental approvals for the mine have expired, the province failed to consult about the project, and the decision-making process is flawed. [Emphasis added]

WATCH: This Is One Time-Lapse Big Oil Doesn’t Want You To See by Thomas Nelson, May 30, 2013, Upworthy

2013 05 30 Pipeline incidents in US since 1986This time-lapse video presents the human and financial cost of every oil spill since 1986

Gitga’at First Nation challenges Enbridge panel ruling in court by Dene Moore, Canadian Press, January 23, 2014, CommonSenseCanadian
The Gitga’at First Nation in British Columbia has filed a court challenge to the federal review panel recommendation in favour of the Northern Gateway pipeline, bringing to 10 the number of applications filed in Vancouver against the project. The small community centred around Hartley Bay on the north coast said its way of life would be severely threatened by the bitumen-laden tankers that would navigate Douglas Channel on their doorstep.

In applications filed this week with both the Federal Court and the Federal Court of Appeal, the band asks for a judicial review of the joint review panel’s decision. “We’re talking about hundreds of ships passing by basically our front door… and the impact that that’s going to have on our way of life and the cultural identity of the Gitga’at people,” Cam Hill, an elected band councillor, said Wednesday. “We are a sea-going people. Our life is on the sea.”

First Nation: Crown failed to consult
The band wants the court to declare that the panel “breached the honour of the Crown in its dealings with the Gitga’at” and failed to fulfil the Crown’s duty to consult aboriginal peoples.

They’re asking the court to quash the report and recommendations or, failing that, to refer the report back to the panel for further consideration. The joint review panel issued a report last month recommending approval of the 1,200-kilometre pipeline from the Edmonton area to a tanker port in Kitimat, B.C. — with 209 conditions.

Ivan Giesbrecht, spokesman for Northern Gateway, said the company anticipates the court will deal quickly with the legal issues. Said Giesbrecht: We’re confident the court will agree that the JRP process was thorough, fair, and based on sound science. In the meantime, we are focusing on the important task of meeting the conditions set forth by the province of British Columbia.

Enbridge recommendation faces 10 legal challenges
The Federal Court registry said they have received 10 applications regarding the project with the Federal Court and the Federal Court of Appeal. Most applicants have filed to both courts. The Haisla Nation, the Gitxaala and several environmental groups also filed applications to both courts for a judicial review within the 30-day deadline. The reasons for the court challenges vary, including that the panel erred in law by considering the economic benefits of the project to the Alberta oilsands, but ignoring the adverse effects of the development.

Opponents also said the panel made its decision despite gaps in the evidence, such as the absence of a federal study of diluted bitumen and how it behaves in water. That study, which found the heavier, molasses-like product sinks when mixed with sediment in salt water, was quietly released by Environment Canada after the panel wrapped up hearings.

The panel also didn’t get to consider a federal recovery strategy for humpback whales or a draft strategy for caribou, both published by Environment Canada after the hearings ended and years overdue under the federal Species At Risk Act.

All say the Canadian Environmental Assessment Agency panel, which conducted the review for the agency and the National Energy Board, made legal errors in arriving at the opinion that the pipeline should be built. Hill said the Gitga’at felt their voices really weren’t heard during the panel process. “Court is not an avenue that we really wanted to go down,” he said.

The band did not accept any money from Northern Gateway Pipelines to fund its participation at the many months of hearings, but he declined to say where the money came from for panel participation or for a court fight. The federal cabinet has 180 days from the time it received the report, released in December, to make a final decision. [Emphasis added]

2012 02 19 Drums of the Great Bear Historic gathering against Enbridge in Prince Rupert

Video by Common Sense Canadian February 19, 2012

[Refer also to:

BC Government ordered by BC Supreme Court to pay Moulton Contracting Ltd. $1.7 million because the government owed the company a duty of care

Neil Young to Harper: Fear Our Emotion! ; Neil Young Athabasca Chipewayn First Nation “Honour the Treaties” Tour

Athabasca Chipewyan file lawsuit against Shell’s Jackpine oilsands expansion ]

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