Wednesday, September 17, 2014
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Speed-bumps on the road to resources

Analysis with Bill Gallagher, Lawyer / Strategist

Author of Resource Rulers: Fortune and Folly on Canada’s Road to Resources


There’s nothing worse that hitting a speed-bump especially when you’re in a rush. That’s why litigation lawyers get hired in the first place - to drive the bus - so that resource proponents will be assured of regulatory approval and resource access.



What follows is a series of judicial quotes from October rulings that set the stage for my conclusions - from a Resource Rulers perspective - at the end of this article. What we see clearly below is an alignment of native and eco-activists successes:



[46] … the decision of the Director is quashed as being in violation of the rules of natural justice. (Pembina Institute vs. Alberta 2013 ABQB 5670)


[14] … there is a live issue respecting the Regulator’s interpretation of its power to decide constitutional issues under the ‘Administrative Procedures and Jurisdiction Act’. The issue is of general importance, and leave to appeal is justified. (Ft McKay First Nation vs. Alberta Energy Regulator and Brion Energy Corporation 2013 ABCA 355)


[13] … The Court and many more are aware of what transpired on Thursday last. There were numerous news broadcasts showing what took place. The Information presently before the Court is that the Applicant has removed its equipment from the site where it had been kept such that the Injunction in this respect, items (a) (b) (c) and (d) are no longer required. … (SWN Resources Canada Inc … 2013 NBQB 346)



What follows is a series of press releases about more pending resource litigation:



Northern Superior Resources Inc. has determined that it has lost the ability to access its very promising … gold properties in northwestern Ontario. … primarily the result of the actions and policies of the Government of Ontario relating to First Nations in particular … Although certain actions by First Nations in the area also made continued exploration on the Properties no longer possible …. (Statement of Claim for $125 million, filed, Ontario Superior Court of Justice CV -13- 491444)


It’s off to court for Cliffs (headline) “We decided to do it but I don’t think it's the solution … If Ontario wants this project now they’ve put a heck of a roadblock to it … This is a large complex project with a lot of people with an interest in it. Companies cannot drive it alone.” (Cliffs Resources VP Bill Boor in Northern Ontario Business)


It’s gone past the SWN stuff, … It’s gone past the fracking. Right now, we’re at a point, we’re staking claim to the lands. We’re reclaiming the ownership and that’s where it’s at. Let’s settle it once and for all! Let’s go to court! (Elsipogtog Chief Aaron Sock)




In fact, October has served up even more legal actions than what’s referenced here; but these excerpts are interesting for their total reliance on the litigator’s tool-box.



Like speed-bumps, litigation is designed as a complex process to slow things down; all in the pursuit of legal clarity and (hopefully) access to resources. But litigation as a strategy is clearly not working for resource proponents, who typically end up having to broach negotiations with disaffected First Nations no matter what the judicial outcome. Moreover, slowing things down is the key to understanding the native legal winning streak - currently at 188 rulings - proving that litigators are not in any sense strategists. In fact, resource proponents are often left to clean things up.



October 2013, the month that was supposed to celebrate the 250th anniversary of the Royal Proclamation of 1763; the month that welcomed the tour of the UN Special Rapporteur of Indigenous Peoples; instead saw one resource proponent after another hitting litigation speed-bumps on the road to resources - forging alignments with eco-activists - knocking wheels off projects. There’s no deadlier combination!



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