Native legal win #190: Implications for Albertas oilsands

Twas the night before Christmas when the latest native legal win took place inB.C.

Its from Treaty 8, and since the court reviewed and refreshed all the relevant legal precedents, its of course applicable across the entire treaty region, including the oilsands.

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It applies "in spades"to theoilsands; coincidentally just as that important enterprise comes under major attack courtesy of rocker Neil Youngs Honour the Treatiestour.- Lawyer and author Bill Gallagher

Thus it may well prove a huge Christmas gift for native strategists there.

Really its a win for a logging company that had been wrongly blockaded by natives.

But its also a backhanded native win; showing once again that they rarely leave court empty-handed.

Heres the sequence in plain language:

• The Crown did not properly consult with Fort Nelson First Nation.
• The company was never warned of a lone, irate trapper.
• The ensuing blockade put the financial squeeze on the logger.
• The B.C. government has been ordered to pay the company $1.75 million.

Thats because the Crown failed to properly discharge its duty to consult owed to those same natives; and thereby breached its logging licence with Moulton.

Here's the genesis of the dispute a one sentence paragraph note the time lines:

"[115] The following day, Sept. 29, 2006, Mr. Smith advised Mr.Moulton that there was a potential problem with a trapper. At Mr. Smith's request, Mr.Moulton agreed to suspend logging until Oct 1."

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 witheco-activists.- Lawyer and author Bill Gallagher

Now a full sevenyears later, what had started as a potential problem with a lone trapper has turned into a major liability for B.C. taxpayers. Although the company also sued its native protagonists, but to no avail, its assertions were dismissed without merit:

"[271]The claims against the Behndefendants, Chief Logan and FNFN are dismissed."

B.C. government on the hook

The oilsands implication

The court spends pages reviewing and summarizing Treaty 8 legal precepts (duty to consult, honour of the Crown, and key precedents). 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:

"[320] I assess the plaintiffs losses arising fromthe provinces failure to warn of Mr.Behns intent to blockade the Canfor Road and interfere with the TSLs, at $1.75 million."

This ruling from two weeks ago has been greeted with silence in Calgary though it applies "in spades"to the oilsands; coincidentally just as that important enterprise comes under major attack courtesy of rocker Neil Youngs Honour the Treatiestour. But the real reason this county is mired in resource gridlock is Groupthink!

Since theres little doubt that the native legal winning streak will hit 200 in 2014, Im inviting readers to follow along as I embark on the countdown from a Resource Rulers perspective. I believe that were about to witness the apex of the rise in native empowerment in the Canadian resources sector.

I reiterate that it remains the biggest under-reported business story in Canada of the last decade.

This essay was first published inFirst Perspectives: Canada's source for news aboutIndigenous Peoples.Bill Gallagher is a lawyer, a strategist, and the author ofResource Rulers: Fortune & Folly on Canadas Road to Resources.Published with permission of the author.