Treaty rights are key
By Pierre-Christian labeau
May 14, 2014 - Forestry companies across the country develop resources on lands claimed by First Nations or on which they hold treaty rights. Considerable effort has been made by these companies in the last decade to take into account the traditional activities of First Nations. Despite these efforts, First Nations are often opposed to forest development, entailing delays and financial losses for forestry companies. Caught between a rock and a hard place, the latter feel at the mercy of misunderstandings between provincial governments and First Nation. They often consider the governments responsibile for complications that put projects on hold and threaten access to fibre.
In British Columbia, Moulton Contracting Ltd. has decided to act and initiate legal proceedings. It filed a claim against the British Columbia government and the members of a First Nation for damages suffered during a blockade. In December 2013, the government of British Columbia was ordered to pay the impressive amount of $1.75 million to this company.
Moulton Contracting obtained licences from the Government of British Colombia to harvest timber in Fort Nelson First Nation traditional lands (FNFN). Members of the FNFN, the Behn family, had erected a camp blocking Moulton’s access to the logging sites. The Behns argued that, under the FNFN system of territorial management, hunting and trapping rights are exercised on tracts of land associated with different extended families.
At first, the Supreme Court of British Columbia dismissed the claim made by the forest company against the Behn family.
Then, the court stated that the province had a duty to consult First Nations and this duty was a term of the contract concluded with the company. However, the court did not find the province liable for breach of this term as the evidence showed that even if the province had fulfilled its duty to consult the First Nation, the Behns would likely have blocked access to the road.
However, the court decided that the province owed a duty of care to company. It found the province liable on the grounds that the latter failed to warn the company about the Behns’ intention to block access to the road.
More lawsuits against government are inevitable
This decision comes at a time when some governments are being sued by companies on the grounds that they have failed to fulfill their duty to consult First Nations, thereby depriving the companies of the ability to carry on their
Governments should take a careful look at this decision, especially the Ontario government, given the number of blockades and threats in that province.
Indeed, several junior mining companies are currently suing the province of Ontario because they could not carry on their exploration programs as the First Nations living in the area were opposed to such activities. According to these companies, the Ontario government did not make sure the duty to consult was respected and thus they should be awarded damages.
As an example, in January 2013, Solid Gold Resources Corp. filed a lawsuit against the province for $100 million on the sole argument that the province had “encouraged and promoted” a conflict with a First Nation, which would have caused the slowdown of its gold mine project. Moreover, in October 2013, an other junior gold mining company, Northern Superior Resources, filed a lawsuit against the Ontario government for $110 million on similar grounds.
It seems inevitable that there will be more claims of this nature against governments. From now on, every time members of a First Nation take action against a private company, the latter will have the possibility to argue that the government should take responsibility for the misunderstanding with the First Nation. In other words, no government can ignore its responsibility towards private companies.