First Nations challenge resource proposals across the west

Courthouses across the west will be busy this fall with First Nations’ challenges to energy mega-projects and Crown forest policies. The outcome of these decsions could force significant changes in how resource decisions are made.

n the last week, the Huu-ay-aht First Nation filed a legal challenge to the provincial Crown’s Forest and Range Agreements (FRA). FRAs are the principal means the Crown is using to protect status quo operations in First Nations territories. FRA’s offer small amounts of money and wood supply (AAC) in exchange for agreement that the First Nation’s interests have been accommodated.

The Deh Cho First Nation of the North West Territories filed a second suit in September, both challenging the proposed Mckenzie Valley pipeline that would link the Beaufort Delta with southern Canada.

The Hupac`^asath First Nation near Port Alberni is considering a lawsuit challenging the recent privatization of Weyerhaeuser’s Tree Farm Licence lands. They have broken off negotiations with the Parks branch and discussions with the Crown around their land-use plan and are preparing for court.

The Gitanyow First Nation will be in court once again challenging the recent changes to forest legislation that give corporations more power over unceded First Nations lands. This lawsuit is the Gitanyow’s latest skirmish in their ongoing battle with the Crown over the transfer of tenure rights to New Skeena.

And most importantly, the Supreme Court of Canada will release its decision on the Crown’s appeal of the Haida and Taku decisions.

Collectively, these lawsuits could change the direction of resource industries across Canada. For example:

  • The Huu-ay-aht suit, being handled by Greg McDade of Ratcliff & Company, has the potential to undermine the government’s Aboriginal strategy, and the government’s attempts to tie up First Nations with voluntary agreements before the Haida/Taku decision comes down from the Supreme Court of Canada later this fall;
  • The Gitanyow challenge could roll back the decision-making power transferred to tenure holders under the recent forest amendments. It could also impose new duties on government passing laws that infringe First Nation interests;
  • The Deh Cho challenge could scuttle the controversial McKenzie Pipeline thus impeding the delivery of cheap, subsidized gas to companies seeking to exploit Alberta’s Tar Sands; and
  • of course, the Taku/Haida decision could change the face of British Columbia. Forcing government and extraction companies to finally deal honourably with First Nations on whose lands they operate. The failure to do so could result in tenures being invalidated

Together these lawsuits could cast a shadow on investment in western resource projects as investors become more aware of the long history of land disputes in BC and northern Canada. The BC government is banking on creating “certainty” on BC lands. The growth in lawsuits indicates that many First Nations feel the government is on the wrong path.

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