Submitted by Section Co-Chair, Joseph A. Pagé
Summary of Meetings
Number of Meetings Held: 2
December 5, 2012
Guest Speaker: Andrea Akelaitis, Edwards, Kenny & Bray LLP and Angela Folino, Edwards, Kenny & Bray LLP
Synopsis: Domtar Inc. v. Univar Canada Ltd., 2011 BCSC 1776
June 25, 2013
Guest Speaker: Mark Oulton
Synopsis: Practical Implications of Behn v. Moulton Contracting Ltd., 2013 SCC 26 | Elections of 2013/2014 Section Executive
Mr. Oulton's presentation focussed on two recent court decisions involving challenges to the validity of licences granted by the provincial government in the natural resource sector and the availability of injunctive relief in that context. The discussion that followed the introduction of the two decisions revolved around "self-help" remedies used by First Nations, or individuals belonging to First Nations groups, to address consultation issues and the appropriateness of the use of such remedies in light of the process set out in Haida.
Canadian Forest Products Ltd. v. Sam, 2013 BCCA 58, was a successful appeal by Canfor from an interlocutory injunction obtained by a First Nations group that precluded Canfor from harvesting under one of its cutting permits in Northern British Columbia. The underlying claim of the First Nations group included pleas that the licence under which the permit was granted was not validly issued, including allegations of inadequate consultation. Behn v. Moulton Contracting Ltd., 2013 SCC 26, arose in a somewhat similar fact pattern to Sam as it involved a challenge by members of a First Nations group to the issuance of a timber sale licence based on their assertion that the Province had failed to consult adequately when the licence was issued. Both cases involved, among other things, blockades by the First Nations members and attempts by the license holders to obtain injunctive relief to remove the blockades.
In brief, these recent decisions found that the claims advanced by the First Nations groups amounted to collateral attacks on the licences. Mr. Oulton presented his views that the Courts' approach in these recent decisions was informed, at least in part, by the view that self-help remedies, like blockades, were contrary to the rule of law and ought not to be encouraged. Instead, the groups should have made applications by way of judicial review to challenge the issuance of the licences themselves. The Behn decision also affirmed the presumptive validity of crown authorizations as important to allow interim resource management to proceed pending proof of aboriginal rights and title claims.
The main practical implications from the discussion that flow from Sam and Behn were as follows:
1. abuse of process/collateral attacks of the nature characterized in Sam and Behn will not be condoned by the Courts. The process contemplated by Haida should be followed. This flows from the reciprocal duty of good faith applicable to both First Nations and the Crown in the consultation process;
2. both Sam and Behn point to judicial review as the proper means to challenge permits or other crown authorizations in the resource context; and
3. attempts by First Nations to try to bring industry back into the consultation debate by challenging licences late in the process will not be accepted by the Courts.
Another minor point arising out of the discussion of the Behn decision was that collective rights, like aboriginal rights, generally cannot be asserted by individual members of the collective without proper authority.
Comments and Observations of the Chair
Changed the mandate of the Section from a focus on Forestry to broader Natural Resource issues. Meetings for the upcoming year will include water issues, forestry, and a third meeting on Natural Gas.