Much ado about certainty: the aftermath of recent Supreme Court decisions

Two weeks has passed since the Supreme Court of Canada’s decision in the Haida and Taku River Tlingit cases. A casual observer would likely be confused by the various positions taken by government, industry, and native groups.

Government and industry continue to spin the decisions as a victory for “certainty” in BC. First Nations are claiming victory as well.

So who’s telling the truth?

While most media have reported various perspectives with virtually no analysis, a few columnists are looking beyond the rhetoric, and are beginning to rebut the government’s platitudes. They identify real problems for the Crown’s current approach to First Nations and resource issues.

Gordon Gibson’s recent editorial in the November 24 Globe and Mail, ” Making treaties just got a lot tougher“, indicated that:

…the ruling has dealt another heavy blow to the essential and struggling B.C. treaty process, and will pay for the private schools of lawyers’ children for years to come. And yet, in the tortured logic of Canadian aboriginal policy, the ruling was just.

Russ Francis’s column in the Province raised similar concerns focussing on the uncertain statutus of recent mergers between timber companies.

Who should you believe?

The government and industry will tell you, “don’t worry, invest”. A growing number of more astute observers, including Dogwood Initiative, see implications in the two decisions that foretell a continuing period of increasing uncertainty and economic instability in British Columbia.

But judge for yourself. Here are some things to consider:

  • The Supreme Court gave First Nations a big stick by ruling that the “Province has a duty to consult and perhaps accommodate on TFL [tenure] decisions…. [These allocation] decisions … have potentially serious impacts on Aboriginal rights and title.” Since consultation, let alone accommodation, didn’t occur when existing logging, mining or oil and gas tenures were granted, renewed and transferred, this ruling puts the certainty of virtually all resource tenures in jeopardy.
  • The Supreme Court ruling means that a significant amount of legislation will have to be amended. The Court ruled that the “government’s legislative authority over provincial natural resources gives it a powerful tool with which to respond to its legal obligations”. This means that the government’s forest legislation, and possibly other laws, may be challenged if the Province relies on its own recent laws to refuse to consult or accommodate First Nations. Since recent legislative changes have given control over decisionmaking to corporations, these changes will have to be reviewed and perhaps rescinded.

How much certainty will there be in BC when tenures and legislation are being routinely challenged by First Nations? Obviously, not much. And this is not speculation, for the challenges have already begun:

The Gitanyow are in court this week challenging various aspects of the new forest legislation. And one of the First Nations affected by the Crown’s privatization of Weyerhaeuser’s tree farm licence on Vancouver Island is expected to file a lawsuit soon challenging this decision.

The BC government’s attempts to create an impression of progress through the Forest and Range Agreements (FRA) have also taken a serious blow. Both the Union of BC Indian Chiefs and the First Nations Summit recently passed resolutions that directly challenge the government’s FRA strategy. The resolutions “suggest[ed] that those First Nations that feel that Aboriginal title and rights are infringed by signing FRAs consider providing notice of termination of their agreements to the B.C. government in order to create leverage for fair agreements for all First Nations.”

And what about the mergers and consolidations the government is trumpeting as illustrating that B.C. forestry is back in business?

Corporate shareholders should be worried. Very worried. There are real problems on the horizon. Why? Because the Crown and the companies involved in the mergers ignored First Nations and attempted to hide behind the legislative changes absolving the Crown of any role in tenure issues. These changes removed the Crown’s decision-making authority over the tenure transfers that result from mergers. That removes the Crown from the transfer process, and leaves it to the companies to consult First Nations. The Supreme Court forcefully rejected this offloading of responsibility, saying the Crown duty cannot be delegated.

Given the recent legislative changes, how will the government fulfill this duty to consult and accommodate First Nations about the mergers and transfers?

The simple answer is it cannot unless it goes back to the old legislation. So much for certainty!

So what about the Canfor/Slocan, Riverside/Lignum, and West Frasier/Weldwood mergers? Surely they can’t be dismantled?

The corporate lawyers and executives overseeing these mergers better have made contingency plans. If not, the lawyers, at least, have ensured themselves a lengthy career straightening out the mess. Shareholders will not be delighted.

A simple answer to a phenomenally complex situation, is that the mergers may go through, but the tenure transfers may be invalidated.

Remember that the Haida brought their successful challenge of Weyerhaeuser’s tenure transfer well after the merger with MacMillan Bloedel was completed. Since none of the First Nations affected by the recent spate of mergers was consulted, and the limitation period (the time period in which lawsuits must be brought) hasn’t passed, all the mergers are now in jeopardy.

The much-touted certainty looks a lot like wishful thinking – sort of like Wile E. Coyote, who won’t actually plummet until he looks down. This government, and the merged companies, haven’t yet looked down. The Supreme Court’s judgement should force them to do so.

Is there any chance newly merged companies can argue that the Supreme Court decision shouldn’t be applied retroactively?

This is doubtful. The Court of Appeal imposed this duty in early 2002, and said then that the duty applied to decisions and transfers that occurred after 2000. Instead of responding and accepting this responsibility, government and industry attempted to render it meaningless by creative legislation. That approach has now been rejected by Canada’s highest court.

Haven’t companies attempted to dismiss First Nations’ requests to engage in tenure issues?

The Title & Rights Alliance co-ordinated a number of letters from first Nations affected by recent tenure transfers. Dozens of these “on-notice” letters were sent to both the Crown and involved companies informing them of their obligations to First Nations and requesting engagement before tenures were transferred. These letters were unilaterally ignored. While they didn’t stop the companies and BC government from arrogantly blundering forward, they will provide strong evidence at trial when these mergers are challenged.

Judge for yourself. Does this sound like a recipe for “certainty” in BC?

Despite the certainty spin, First Nations are in a strong position to demand change. If the BC government and resource industries do not respond and agree to fundamentally change their business-as-usual approach to resource issues, then things will get hot and heavy in the courts, investment houses and streets across BC, Canada and the world.

Dogwood Initiative will keep you posted as events unfold. Beep, Beep.

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