First Nations et al vs. Irving, Alward et al. from Peter Dauphinee When I walk into a Court in New Brunswick, there is no pleasing air of justice and liberty. Our courts reek of money and power. This was never more evident than in Courtroom 5 in the Justice Building in Fredericton last Friday. All of the chiefs of the INAC bands of New Brunswick had joined in an injunction application to halt the forestry deal between Alward and Irving being rushed through before Alward is cast into the dustbin of failed politicians reborn as high rolling directors of major public companies. A large phalanx of Men in Black Suits filled half the Courtroom, showing support for Irving and the other rapacious forestry companies piggybacking on Irving’s succulent deal. No doubt there is concern in the boardrooms that they may be slowed down in the quest to vacuum every twig from the public lands of the province without a scintilla of public debate on the deal, later to come cap in hand to the province to be made whole thanks to an ironclad guarantee of timber quantities that experts say is not sustainable. Such payments will come from the pockets of citizen taxpayers since corporations pay little tax, in Irving’s case no tax at all. If history is any guide, the citizens of New Brunswick will be paying Irving tens of millions annually to take our wood for the next twenty-five years, then much more once the wood is all gone. I digress. This type of pertinent issue never came close to the Judge’s ears. The chiefs had retained a competent lawyer from Halifax to present their case and he, following the sort of professional ethics which lawyers in most provinces other than New Brunswick follow, kept his presentation short and stuck to facts. Lawyers from outside understand neither the unique rules that New Brunswick courts follow, nor the very special arrangements that Irving has with the authorities of New Brunswick. At this hearing, the Chiefs were only looking for a short hold on things so all parties can prepare fuller briefs. Their lawyer suck to the issues most important to them, namely, the complete lack of consultation with First Nations on the deal, and the certainty that what little that remains of our forest to sustain the environment will be whittled down to such a degree, scattered in thin fringes along waterways, on rocky inaccessible promontories, or amply surrounding Irving’s many country estates, that it will not do that job, as has been testified by 184 academics in the province. The lawyers from the province, Irving, and one or two other forestry companies had different ideas about ethics, truth and relevance. They well know the informal rules of New Brunswick’s court system where the real issues are avoided at all costs, misleading argument is rampant, and evidence is mischaracterized (where it isn’t outright falsified) by means of artful disposition of half-lies and half-truths. To wit (if memory serves): -Even a few weeks of delay will cause uncertainty for business and employees. They suggested that First Nations by this injunction are attempting to shut down the forestry industry; -Irving has already expended $100,000,000 based on this deal, a jaw dropping assertion given the deal was only signed days before the hearing; -The forestry brings $1.6 billion to the province’s economy, omitting to mention that almost none of this huge amount of cash remains in the province or brings any benefit to the province; -What’s the rush? The contractual increase of wood fibre only begins next year, so there is lots of time to calmly contemplate a contractual obligation (the unsustainable increase of timber), signed last week that will remain binding next year. The phalanx of black suits seem to have forgotten the nature of contractual obligations, making it appear that there will be countless adjustments annually and every five years, contrary to the clear words of the binding Memorandum of Agreement that was signed earlier this year; -The biggest boner of the day was the black suits’ assertion that there has been ongoing consultations with First Nations on the forestry deal. This is certainly a stretch on any measure, but very likely a winning gambit since the same Justice Clendenning just last year dismissed Elsipogtog’s injunction application based on the duty to consult on environmental harm from fracking operations stating that “There is some evidence before the Court that some type of consultation did occur between the Crown, SWN, and Elsipogog Frist Nation”. There are deeper and more troubling issues lurking behind this initiative by First Nations. Of immediate concern is why this same Judge, who has already recently ruled in favour of industry against the environmental and existential concerns of First Nations, once again on the bench? Let’s face it, if anyone can successfully judge-shop in this province, the combination of Irving and the government can surely do it. Anyway, this very preliminary decision is due tomorrow, 1:30 pm at the Courthouse in Fredericton. Let’s not hold our breath for justice to prevail.
Posted on: Fri, 22 Aug 2014 11:00:58 +0000