Aboriginal Law Developments in the Oil and Gas Sector -- the Dene Tha' Case
The recent Federal Court of Canada decision addressing the consultation process for First Nations in the oil and gas sector, Dene Tha' First Nation v. Canada (Minister of Environment) 2006 FC 1354, issued on November 10, 2006, may result in a new way of managing the aboriginal consultation process at the federal level with the designation of a federal Chief Consulting Officer.
The facts of the case are as follows - in 2000, representatives from several federal regulatory agencies, including Indian and Northern Affairs Canada and the Canadian Environmental Assessment Board, began to consult with one another about how to coordinate the regulatory and environmental impact review process for an application to the National Energy Board ("NEB") for the creation of the Mackenzie Gas Pipeline ("MGP"), a proposed corridor of pipeline through the Northwest Territories and Alberta. It was contemplated that the MGP would run through lands covered by Treaty 8, although no part of the MGP would run through any of the reserves set aside for the Dene Tha'. Treaty 8 is a treaty signed by the Dene Tha' in 1899 for the permanent surrender of lands formerly occupied by them, and for the surrender of certain of their rights, titles and privileges in connection with the lands, to the Queen so that the lands could be used for, among other things, settlement, immigration, trade, travel, mining and forestry. You can read more about Treaty 8 here.
In 2002, two years after the various federal agencies began meeting to discuss a coordinated approach to the NEB, they formalized a written plan setting out their proposed approach to the NEB which they referred to as the Cooperation Plan. The Dene Tha' were not advised of, or asked to participate in, the preparation of the Cooperation Plan. On June 3, 2004, the federal government made certain information available to the Canadian public, including the Dene Tha', in relation to the MGP. A month later, the Dene Tha' were provided with copies of this same information and were asked to comment on the documents within 24 hours.
Although the judgement is not clear, it appears as if the Dene Tha' had the following objections with respect to the process: being excluded from the development of the Cooperation Plan and by implication, discussions surrounding the early stages of the MGP; being provided with a short time frame with which to respond to the federal government when finally notified of the MGP; and being refused financial assistant from stakeholders which would have enabled them to engage meaningfully in the consultation process. The Dene Tha' sought judicial review of the process, seeking several declarations, including a declaration that the federal government breached a duty of consultation it owed the Dene Tha' in respect of the MGP.
November 24, 2006 in Aboriginal Law Updates | Permalink | Comments (0) | TrackBack (0)
Western Forest Products to Close New West Mill
Western Forest Products inc. announced today that it was closing its sawmill in New Westminster, effective February 7, 2007 and re-opening its Saltair sawmill on Vancouver Island, which has been shut since October, 2005. The New Westminster closure will result in the lay-off of 284 employees at that location.
November 15, 2006 in Forestry News | Permalink | Comments (0) | TrackBack (0)
Gitxsan Sign Agreement with British Columbia
Effective today, the Gitxsan Hereditary Chiefs and the Government of British Columbia have agreed on a new Short-Term Forestry Agreement (the "Agreement"), which you can view here.
The Gitxsan already have an Interim Agreement in place and, subsequent to this Agreement, will negotiate another longer-term agreement dealing with the same issues surrounding interim accommodation.
This Agreement is quite different from the standard-form Interim Agreement on Forest and Range Opportunities (the "Standardform Agreement") that other aboriginal bands are signing. The definitions include the concept of a "cultural component of aboriginal interest" defined to mean the cultural values and traditional practices of the Gitxsan. Under this Agreement, the government and third parties (who are not signatories to this Agreement) will be obligated to discuss and attempt to resolve impacts identified by the Gitxsan on the cultural component of the aboriginal interest that arises from proposed forest development by these third parties.
Unlike the Standardform Agreement, this Agreement's interim accommodation is not limited to the budgetary limitations of the Minister of Forests and Range, and presumably, that means more revenue is available to the Gitxsan than other bands negotiating similar agreements. Under the Agreement, the Gitxsan will receive a one-time payment of $13.8 million over the term of the Agreement, payable in annual instalments of $2.7 million. This amount is in addition to the $2.3 million provided to the Gixtsan under the existing Interim Agreement. Other payments will also be made to the Gitxsan under this Agreement, including a $250,000 payment for the participation by the Gitxsan in watershed consultations and income derived from contracts directed to the Gitxsan.
This Agreement also allows the Gitxsan greater say in the operational plans and administrative decisions regarding the forest activities of third parties.
October 24, 2006 in Aboriginal Law Updates | Permalink | Comments (0) | TrackBack (0)
Lheidli T’enneh First Nation Access to Pine Beetle Wood
The Lheidli T’enneh First Nation has entered into a five-year agreement with the provincial government for permission to harvest 1.2 million m2 of timber from the Prince George timber supply area. Under the agreement, the T'enneh will receive a one-time payment from the provincial government of $914,000 ($7,616 per band member on the reserve). The agreement, called an Interim Agreement on Forest and Range Opportunities, replaces the Interim Measures Agreement that had been entered into between the parties in 2003. You can view a copy of the new agreement here.
October 18, 2006 in Aboriginal Law Updates | Permalink | Comments (0) | TrackBack (0)
More Beetle Facts
The British Columbia Ministry of Forests released figures this week showing that an area greater than the size of New Brunswick (8.7 million hectares) was infested by the mountain pine beetle in 2005. In order to combat the spread of the mountain pine beetle, Alberta and BC logged more than 45,000 infested trees over the past winter along their shared border. Thus far, the mountain pine beetle has infested an area of BC roughly the size of Sweden. The Ministry of Forests has a compelling slide-show setting out the projected devastation to the province from 1999 - 2013 here which is well worth reviewing, especially since some scientists believe the beetle may move across Canada. The Ministry also has a dedicated website with photos of the infestation here.
May 31, 2006 in Mountain Pine Beetles | Permalink | Comments (0) | TrackBack (0)
The Fine Print on Softwood Lumber
Here is a summary of the text of the softwood lumber deal, which will be formalized in Canada over the next month or so:
Scope:
The deal applies to softwood lumber products that are the subject of US anti-dumping or countervailing duty orders.
Refund of Amounts on Deposit:
The US will keep USD $1 billion from the $4 - $5 billion on deposit. The remainder will be returned to Canadian softwood lumber producers. The text is silent on how the interest amount will be allocated.
Term:
The deal is for seven years and may be renewed for another 2 years.
Export Controls:
There are three export control mechanisms that apply once the US price of lumber falls below $355 per thousand board feet: (1) export measure; (2) surge mechanism; and (3) 3rd country trigger.
(1) export measure - regions will choose between an export charge or an export charge plus volume restraint. Each region will have a market share based on its average share of exports to the US from 2001-2005.
(2) surge mechanism - if a region's exports exceed 110% of its allocated share in any period, a surge mechanism is triggered.
(3) 3rd country trigger - Canada will refund any export charges if, in any two consecutive quarters, a 3rd country share of US lumber consumption increases by 20% over the same period in the previous year; the Canadian market share is decreasing in the same period; and the US producers market share is increasing in the same period. The refund will apply except to regions that have triggered the surge mechanism.
Foreign Arbitrators:
Any disputes on the application or interpretation of the deal will be resolved by arbitration but the arbitrators cannot be from North America.
April 30, 2006 in Softwood Lumber Dispute | Permalink | Comments (0) | TrackBack (0)
Softwood Deal!
CTV News is reporting that the US and Canada have struck a deal to end the long and bitter softwood lumber dispute. The deal will need the approval of the provinces, and likely the approval of the major lumber producing companies who were party to the Nafta and DOC proceedings. As part of the settlement, Canadian softwood lumber producers would be held to a 34% share of the US softwood lumber market, broken down regionally, and the US would return about 78% of the $5 billion collected by US Customs in anti-dumping and countervailing duties since 2002. No word on whether Canada would also collect interest on the $5 billion. The deal was apparently reached on Tuesday but was not announced publicly to allow US administrators time to brief US industry representatives.
April 26, 2006 in Softwood Lumber Dispute | Permalink | Comments (0) | TrackBack (0)
Softwood Lumber Talks Are On
Reuters has a good piece today on whether the softwood lumber talks are on or off which you can read here. The story suggests that under a proposed deal being worked out, US Customs would return to Canadian lumber producers approximately 78% of the $5 billion in duties collected during the dispute. The deal would likely include a border tax on softwood lumber that would apply once softwood lumber imports from Canada hit one of three possible triggers: (a) 34% total US market share; (b) US prices falling below a price threshold; or (c) market share for a specific region of Canada exceeding its regional threshold.
There is pressure to resolve the dispute by this Thursday - the deadline for the US to file an Extraordinary Challenge Committee request under Chapter 19 of Nafta. The Free Trade Lumber Council is opposed to the proposed deal because they say it undercuts gains Canadian lumber producers have made in years of trade litigation and jeopardizes the Canadian lumber industry. 940AM Montréal has an updated story which you can read here.
April 25, 2006 in Softwood Lumber Dispute | Permalink | Comments (0) | TrackBack (0)
Softwood Lumber Talks
There has been no official word yet on whether the US and Canada have resumed formal negotiations to settle the softwood lumber dispute. If talks resume, the biggest item on the agenda will be the distribution of the USD $4 billion in deposits collected by US Customs from Canadian lumber producers. In past negotiations, the US has suggested Customs return only half of the funds on deposit, a suggestion rejected by Canadian lumber producers. A few months ago, the Canadian government said that it would not negotiate at all unless the US returns the $4 billion in deposits or revokes the countervailing and antidumping orders. There appears to be some movement away from that position on the Canadian side.
The resumption of talks would follow an important Nafta panel decision released on March 17 that affirmed a de minimus subsidy finding by the US Department of Commerce. The DOC finding was made pursuant to a Nafta decision that directed the DOC to recalculate the subsidy. In the next two weeks, the US is expected to request the establishment of an extraordinary challenge committee (ECC) under Chapter 19 of Nafta to review the March 17 decision. Although the US is unlikely to be successful at the ECC, a hearing would delay revoking the countervailing duties (CVD) and increase the amount of money in deposits. Any delay in the revocation of the CVD hurts Canadian lumber producers, especially if the American strategy is to refund only 50% of the deposits collected to Canadian lumber producers in an eventual softwood lumber settlement agreement.
April 4, 2006 in Softwood Lumber Dispute | Permalink | Comments (0) | TrackBack (0)
No Common Canadian Front on Softwood Lumber
Reuters wrote an interesting article on the softwood lumber dispute, published today in the Washington Post. In the article, Canadian Trade Minister David Emerson apparently told Reuters that "Canada's lumber-producing provinces have yet to agree on a common position to take into negotiations with the United States on the softwood lumber trade dispute." From everything I have heard on this issue, this is one of the main stumbling blocks for a negotiated settlement (see story in Business in Vancouver Download softwood_lumber_article.pdf). Until the provinces and industry in Canada can agree on a common position, the softwood lumber dispute will continue, unresolved.
February 28, 2006 in Softwood Lumber Dispute | Permalink | Comments (1) | TrackBack (0)
WTO Preliminary Ruling Favours US
The US media is reporting that an interim decision from the WTO in the softwood lumber dispute has found in favour of the US. The decision was apparently released to the parties on a confidential basis. At issue in this part of the dispute was the Commerce Department's method of calculating margins of dumped goods using a "zeroing method."
February 18, 2006 in Softwood Lumber Dispute | Permalink | Comments (0) | TrackBack (0)
Byrd is Going
According to the Canadian Press newswire, the U.S. Congress today approved the repeal of the U.S. Continued Dumping and Subsidy Offset Act (the Byrd Amendment), effective October 1, 2007. See corresponding post written earlier here.
February 1, 2006 in Softwood Lumber Dispute | Permalink | Comments (0) | TrackBack (0)
Canfor To Buy US Lumber Comapny
Canfor has announced plans to buy New South Companies Inc., a US based lumber company for $205 (US). New South has three sawmills, two treating plants, a finger-joint plant and a European lumber import business. Revenue was $500 million US in 2005, with sales throughout the U.S. southeast. The proposed acquisition requires approval from holders of two-thirds of New South's outstanding shares.
January 19, 2006 in Forestry News | Permalink | Comments (0) | TrackBack (0)
Canada Appeals WTO Ruling
The World Trade Organization (WTO) announced today that Canada has appealed its November '05 ruling that upheld the U.S. determination that there was a threat of material injury from Canadian imports of softwood lumber to the U.S. A decision on the appeal is expected to be released within 100 days.
Two days earlier, Canada filed another Nafta Panel Review request with the Nafta Secretariat to review the Department of Commerce's December '05 countervailing duty determination. Under that determination, the DOC set the countervailing rate at 8.7% down from 16.37%. The Canadian government is requesting the elimination of any countervailing duty.
January 13, 2006 in Softwood Lumber Dispute | Permalink | Comments (0) | TrackBack (0)
Much Ado About Byrd
"A victory is twice itself when the achiever brings home full numbers" (from Shakespeare's Much Ado About Nothing).
One could surmise from recent media reports that the possible repeal of Byrd (the U.S. Continued Dumping and Subsidy Offset Act of 2000) will spell the end of the softwood lumber dispute and result in the return of the $4 billion paid to U.S. Customs Service by Canadian softwood lumber producers. The fact is, though, the repeal of Byrd will not bring home the full numbers.
Why is that? There are two key reasons. The first is a self-evident truth. The U.S. will not settle the softwood lumber dispute without some cut of the $4 billion. The second is the language of the budget reconciliation bill that repeals the Byrd. It is drafted so that the repeal takes effect only on October 1, 2007 without retroactive effect.
As a result, the Byrd repeal will not end the distribution of duties to U.S. softwood lumber companies that petitioned for the trade actions in the U.S. Instead, the budget reconciliation bill stipulates that the duties collected on goods, including softwood lumber, that enter the U.S. before Oct. 1, 2007 will be distributed to petitioning U.S. companies. This could mean payments for several years after that date since it can take several months before final duties are assessed by the U.S. Customs and any disputes that arise over these amounts could take a few years to settle.
Unless Canada wins its challenge of the Byrd at the Court of International Trade (see earlier post here), no one is bringing home the full numbers.
January 10, 2006 in Softwood Lumber Dispute | Permalink | Comments (0) | TrackBack (0)
$1.5 Billion Bail-Out for Canadian Forest Industry
The federal government has announced an assistance package totalling $1.48-billion for the forestry industry. The new assistance program, called "The Forest Industry Competitiveness Strategy" includes the following funding initiatives:
- $581 million will be available to forest-dependent communities, market diversification and incentives for innovation in the forest industry;
- a realization of up to $110 million in tax savings for forestry industries;
- funds to facilitate up to $800 million in loan insurance; and
- $100 million for a repayable contribution program for forestry companies adversely affected by the softwood lumber dispute.
November 24, 2005 in Softwood Lumber Dispute | Permalink | Comments (0) | TrackBack (0)
WTO Ruling on Softwood Lumber - A Win for the U.S.
The long-awaited World Trade Organization decision on the softwood lumber dispute has been released. You can read the full report here.
The WTO has found that the International Trade Commission finding of a threat of material injury to the U.S. softwood industry by Canadian softwood lumber imports is consistent with U.S. obligations under the GATT Agreement and the Agreement on Subsidies and Countervailing Measures.
November 15, 2005 in Softwood Lumber Dispute | Permalink | Comments (0) | TrackBack (0)
Western Forest Products To Acquire Cascadia
Western Forest Products announced it has entered into a definitive agreement with Trilon Bancorp Inc., a wholly-owned subsidiary of Brookfield Asset Management Inc. (formerly Brascan Corporation) for $120 million plus Cascadia's net working capital. Western will acquire 3.6 million cubic meters of associated annual Crown harvest rights on the coast of British Columbia and four sawmills and remanufacturing facilities on Vancouver Island and the lower Mainland with total production capacity of approximately 600 million board feet of lumber. The deal has been in the works for quite some time.
November 14, 2005 in Forestry News | Permalink | Comments (0) | TrackBack (0)
Softwood Lumber Dispute -- Constitutional Challenge Launched Against Nafta
The Coalition For Fair Lumber Imports, a U.S. lumber lobby group, launched its long-anticipated constitutional challenge to Chapter 19 of Nafta, the anti-dumping dispute resolution mechanism, in the U.S. today. The CBC story is posted here.
September 13, 2005 in Softwood Lumber Dispute | Permalink | Comments (0) | TrackBack (0)
Softwood Lumber Dispute -- WTO Interim Decision
Reuters News is reporting that, according to the Coalition For Fair Lumber Imports, a US lumber lobby group, the World Trade Organization has released an interim private decision upholding the November 2004 finding by the International Trade Commission that Canadian imports of softwood lumber to the US pose a threat of material injury to US domestic producers. I'll post more as the information becomes available.
More stories are available here at Reuters.
August 30, 2005 in Softwood Lumber Dispute | Permalink | Comments (0) | TrackBack (0)
Softwood Lumber Dispute -- Another Escalation in Canada's Trade War
The Softwood Lumber Dispute took another twist this morning, as the Canadian government and several Canadian softwood lumber producers filed a petition with the International Trade Commission seeking to have returned duties paid by Canadian lumber producers to the US Customs Service that were funnelled to US lumber producers under the Byrd Amendment. It isn't clear how this lawsuit is any different from the earlier one Canada initiated over the same issue (see the earlier post on this issue here). The Canadian government is also contemplating recalling Parliament to debate the fact that the Nafta Extraordinary Challenge Committee decision, which was favourable to Canada, has not resulted in a return of the $5 billion collected by the US Customs Service on Canadian softwood lumber imports since 2002. Download the_story_here.pdf
August 29, 2005 in Softwood Lumber Dispute | Permalink | Comments (0) | TrackBack (0)
Softwood Lumber Dispute -- Trade War Escalates
The Canadian government is considering imposing tariffs on a whole new set of goods imported into Canada from the US in retaliation for the US position on the softwood lumber dispute, following the release of the Nafta ECC decision earlier this month. Download the_latest_news_here.pdf Or link to the Bloomberg article here.
August 23, 2005 in Softwood Lumber Dispute | Permalink | Comments (0) | TrackBack (0)
Softwood Lumber Dispute -- Canada Wins the ECC
Softwood Lumber Dispute -- ECC Decision Released by Christine Mingie
The Nafta Extraordinary Challenge Committee, in a unanimous ruling, (the "Decision"), denied a US challenge of an earlier Nafta Bi-National Panel decision which had ordered the International Trade Commission to find that there was no threat of material injury to US lumber producers by Canadian lumber imports.
The affirmation of the earlier Panel decision means that there was no basis for the imposition of countervailing and antidumping duties on Canadian imports of softwood lumber in 2002, now totalling over $4 billion (USD).
The ECC found that the Nafta Panel did not exceed its powers, authority or jurisdiction by substituting its views for those of the International Trade Commission; by refusing to allow the International Trade Commission to reopen the record evidence; or by ordering the International Trade Commission to make a negative finding of material injury. The ECC also dismissed the claims of conflict of interest and alleged misconduct against Panellist Louis Mastriani.
August 16, 2005 in Softwood Lumber Dispute | Permalink | Comments (0) | TrackBack (0)
Softwood Lumber Dispute - U.S. May Not Refund Duties if Canada Succeeds at Nafta
Reuters News is reporting that the U.S. Commerce Secretary is indicating once again that the U.S. will not refund to Canadian lumber producers, duties imposed on imports of Canadian lumber to the U.S., even if Canada wins the Nafta Extraordinary Challenge Committee review, whose decision is expected in August or early September. The U.S. is taking the position that any Nafta decision in favour of Canada would only have prospective (and not retroactive) effect meaning that duties collected before the Nafta decision would not have to be refunded. Canada takes the opposing point of view and with $4 billion (USD) at stake, both sides are likely to battle this one out unless a resolution can be negotiated that is acceptable to both sides.
You can read our article on what's at stake in the Nafta Extraordinary Challenge Committee decision, published in the National Post, by downloading it here. Download nafta_noose_story.pdf
July 28, 2005 in Softwood Lumber Dispute | Permalink | Comments (0) | TrackBack (0)
Abitibi-Consolidated Closing Two Mills
Abitibi-Consolidated Inc. announced today that it is closing two newspaper mills in Ontario and Newfoundland after posting a second quarter $43 million loss. The closures will affect 960 workers. You can read the newspaper report here. It was widely expected that Abitibi would announce closures in Quebec but so far that has not happened.
July 27, 2005 in Forestry News | Permalink | Comments (0) | TrackBack (0)
The Aboriginal Case of the Decade in Canada
R. v. Bernard
The much anticipated Supreme Court of Canada decision R. v. Bernard 2005 SCC 43 (July 20, 2005) (the "SCC Decision") was released today. The decision is not necessarily surprising despite the publicity it has garnered but is a stunning reversal of the New Brunswick Court of Appeal decision (see R. v. Bernard 2003 NBCA 55 (August 28, 2003)) that had determined that the Mi’kmaq held aboriginal title to ¼ to ⅓ of the province of New Brunswick.
July 20, 2005 in Aboriginal Law Updates | Permalink | Comments (0) | TrackBack (1)
A Blog of Note
It's always nice to come across a blog that covers topics related to the areas that I blog about (mainly forestry, lumber trade, environmental and aboriginal issues) around the world. It's equally nice when you find a good blog site and the blogger has already found you and written about your blog. That was the case when I came across ::Fieldnotes: Occasional Musings On Anthropological Topics written by Tad McIlwraith. Tad's blog has an impressive list of categories and his posts are succinctly put together, easy to read and interesting. It's a blog worth blogrolling.
July 12, 2005 in Weblogs | Permalink | Comments (1) | TrackBack (0)
Quebec Government To Help Provincial Forestry Industry
Yesterday, the Quebec government announced it will assist the ailing provincial forestry industry by providing $30 million in aid annually to the industry until 2009. You can read the full story here.
July 8, 2005 in Forestry News | Permalink | Comments (1) | TrackBack (0)
Kruger Inc. & Betsiamites First Nation Case Update
Since my earlier post on the Forestry Law Blog about the aboriginal forestry law case Betsiamites c. Le Procureur Général Du Canada, the provincial government and Kruger Inc., have been granted permission by the Quebec Court of Appeal to appeal the temporary injunction prohibiting Kruger from undertaking any forestry activities on Ile René-Levasseur, a small island north of the Betsiamites (Bersimis) Indian Reservation near Baie Comeau, Quebec. The Court of Appeal also granted Kruger permission to salvage fire-damaged timber on the island until November 2005 to prevent the timber from losing its commercial value.
Kruger had argued that the injunction caused serious and irreparable damage to the company, its employees, their families and contractors and would threaten the viability of its business on Quebec's north shore. The Betsiamites Montagnais have said that the Court of Appeal decision is contrary to the edict of consultation mandated by Canadian jurisprudence.
The appeal will be heard in September.
July 7, 2005 in Aboriginal Law Updates | Permalink | Comments (0) | TrackBack (0)
Mountain Pine Beetle Spreading Beyond British Columbia?
The Tyee.ca has an interesting story on the Mountain Pine Beetle epidemic in British Columbia (which you can read here). According to the report, the Mountain Pine Beetle infestation is unstoppable, and currently covers an area twice the size of New Brunswick. Within ten years, at least 80% of British Columbia's pine trees will be dead. The great fear now is that the epidemic could spread east across the country, swallowing pine forests throughout Canada.
July 4, 2005 in Mountain Pine Beetles | Permalink | Comments (0) | TrackBack (0)
