Court Postpones Sacred Headwaters injunction decision

Fortune Minerals went to court Monday, November 14, 2005 in Vancouverto extend its injunction for a year.

But this time the Tahltan trying toprotect the Sacred Headwaters from Fortune Minerals open pit coal mine had alawyer to defend their interests. Oh,what a difference having legal counsel makes.

At issue was whether Fortune Minerals was entitled to aninjunction-a court created law that would criminalize protest against FortuneMinerals in a very large geographic area encompassing much of Tahltantraditional territory.

The irony is there is no blockade inplace and hasn’t been for almost two months and Fortune Minerals will not bedoing additional drilling until spring, five months away.

Sparks began to fly as soon as Cameron Ward, the Tahltan’s lawyer began to speak. He argued that injunction applicationslike that of Fortune Minerals were an “invidious and draconian weapon” used tocriminalize opposition to resource development.

Once again Fortune Minerals tried to paint themselves as thewhite hats-the poor Ontario company caught in, to use the phrase their lawyerrepeated over and over, “a political dispute.”

As in earlier court appearances, Fortune tried to portray itselfas an undercapitalized company, short of funds, whose stock price is vulnerableif it doesn’t get the okay to move ahead with its drilling in the SacredHeadwaters unchecked.

This just shows that once again, Fortune Minerals is talking out of both sidesof their mouths. Remember how soon after the arrests Fortune Minerals made a bidto spend millions to acquire the Ridley coal terminal in Prince Rupert?

In the media that followed their controversialmove, Fortune Minerals emphasized the strength of their financial position, tryingto send signals that they are a good investment. It didn’t work as their stockprice tanked again after the announcement.

Early in the hearing the judge took some of the wind out ofFortune’s lawyer’s claims of Tahltan support for thier operations by asking a seriesof questions that clarified that the Tahltan Central Council is just a provincially registeredsociety and has no legal mandate to represent the Tahltan nation. Fortune’slawyer bungled this exchange by arguing with the judge and claiming the only opposition was comingfrom a minority.

The issue of who represents the Tahltan and whether theysupport a coal mine came up repeatedly. Fortune’s lawyer continued to repeatthe argument that they have 3 of 4 Tahltan groups supporting them. But Fortune’s lawyer’s submissionsdistorted the facts and omitted key information. For example:

  • When Fortune says ithas the support of the Tahltan band, they really mean they have the support of JerryAsp, the chief of the Band. In fact Fortune’s lawyer failed to mention that theTahltan Band Council has ceased to exist as the Dept. of Indian Affairs hastaken over the band’s administration. In fact, the Band Council has not had ameeting in months and has not taken a position either way on the FortuneMinerals project.
  • Fortune’s lawyer also failed to mention that the second Tahltangroup she claimed support from is the TNDC, a corporation, which has noauthority to represent anyone.
  • The Tahltan Central Council once again was the main Tahltan groupFortune Minerals claimed support from. In fact the Chair of the TCC once againsubmitted an affidavit in support of Fortune Minerals’ application. Thestatements in the new affidavit contradicted information provided previously inthe affidavit submitted in the original injunction hearing.

Mr. Ward, the Tahltan’s lawyer, argued several procedural reasons whythe injunction should not be extended and the case should be dismissed. Insteadof an extension, He said the court should dismiss the case, allow the Crown to engage in consultationwith affected Tahltan through the spring, and if further conflict develops FortuneMinerals could return to the court then. The Judge seemed to be sympathetic tothese arguments.  

One issue at the hearing was how long Fortune Minerals’ permitfor exploratory drilling lasted. Some documents indicated until October 30, andmy information indicates that it expires November 14, but thisinformation was not relayed to the court.

After a full day of arguments, the Judge instructed bothsides he was reserving his judgement till noonon November 23However, beforeannouncing this, he made a couple of statements that bode well for the Tahltan tryingto protect the Sacred Headwaters of the magnificent Stikine,Skeena and Nass river systems.

Echoing the arguments made by the Tahltan’slawyer, the Judge indicated that he would extend the injunction until he rendered his decision. But he said, “I do that guardedly…Injunctive relief is a veryserious exercise.”

So we will have to wait until November 23 for adecision. But the ongoing struggle to protect the Sacred Headwaters continues.

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