A British Columbia Supreme Court ruling last week highlights the costs to governments and companies that ignore the legal requirement of free, prior and informed consent.
The Canadian Press reports, “The British Columbia government didn’t properly consult with a northern First Nation community about forestry activity and then failed to warn a logging contractor about an imminent blockade, according to a court judgement that orders the province pay the company $1.75 million.”
The background is this: “Moulton Contracting Ltd. sued the government, as well as the Fort Nelson First Nation and several band members, over a non-violent blockade that began in October 2006 and stretched on until the new year. George Behn and members of his family launched the blockade after Moulton Contracting obtained timber sales licences from the provincial government. The licences covered an area used by the family for trapping under their treaty rights. …In late July 2006, Behn spoke to an official with B.C. Timber Sales and indicated he would be ‘going out to stop’ the logging activity, the court heard. B.C. Timber Sales didn’t pass along those warnings to Moulton, nor did the agency tell the company about a letter it received from a band official that said trappers such as Behn were becoming increasingly frustrated with what they considered to be a lack of consultation. …As the blockade dragged on, Moulton was left unable to sell timber, and its suppliers repossessed much of the company’s logging equipment.”
“(The) B.C. Supreme Court judge dismissed Moulton’s claims against the Behn’s family and the First Nation, but concluded B.C. Timber Sales had a responsibility to warn Moulton about the possibility of a disruptive blockade.” Judge Saunders wrote, “I cannot find that the province consulted with (Fort Nelson First Nation) in a manner sufficient to maintain the honour of the Crown.”
Significantly, the article notes, “One lawyer involved in the case says the judgment, which follows several years of legal proceedings that included a trip to the Supreme Court of Canada, should serve as a yet another warning to the provincial government about the need to meaningfully consult with First Nations over resource development.”
The Council of Canadians and free, prior and informed consent
We recognize the need for free, prior and informed consent and the need for nation-to-nation negotiations notably on resource extraction issues.
Council of Canadians chairperson Maude Barlow has stated, “We recognize and respect First Nations’ decisions to ban tar sands pipelines and tankers from their territories.” When we intervened in support of the Tsilhqot’in Nation’s title case at the Supreme Court of Canada, Barlow said, “We support Indigenous peoples’ right to free, prior and informed consent. They are the rightful stewards of their lands, and should be the ones to decide if and how they are developed.” In late November, Barlow travelled to New Brunswick to express solidarity with the ongoing protests there to stop the seismic testing by Texas-based SWN Resources and to support the demand for the free, prior and informed consent needed on the unceded Mi’kmaq territory that is being defended.
Barlow has highlighted that First Nations leadership, Treaties, and Aboriginal rights may be the last bulwark in stopping the Harper agenda of environmentally devastating resource extraction projects and pipelines that are to be on or run through First Nations territories.
The B.C. Supreme Court ruling could have significance in relation to various campaigns the Council of Canadians is working on, notably our opposition to the Energy East, Northern Gateway, Trans Mountain, and Pacific Trails pipelines; the Canada-China Foreign Investment Protection and Promotion Agreement; fracking and water withdrawals from First Nations territories, including on the Fort Nelson First Nation; and mining activity, such as the proposed New Prosperity mine on Tsilhqot’in territory.
Further reading
Energy East pipeline would cut across 180 First Nation communities
Lake Babine Nation threatens lawsuit against Northern Gateway pipeline
Unis’tot’en Action Camp shows clear opposition to Pacific Trails pipeline
Council of Canadians meets with Elsipogtog chief to express solidarity
Council of Canadians supports Aboriginal title in Supreme Court intervener submission
Protect B.C.’s water from corporate freeloaders
First Nations demand Harper government honour constitutional duty to consult regarding the Canada China FIPA
Ontario premier approves logging in Grassy Narrows territory
Barlow signs letter in defence of Fundacion Pachamama
