Resource World Magazine

44 www.resourceworld.com d e c e m b e r / j a n u a r y 2 0 1 6 R eaders of Resource World know that First Nations in Canada have been racking up a remarkable legal win- ning streak at the expense of resource sector projects in which they are offside – 216 court wins to date. Up in northeast British Columbia, in Treaty 8, the Fort Nelson First Nation has been on an anti-fracking campaign, unique for the strategic acumen demonstrated, in how to curtail the intrusive effects of this technology on their watersheds. First, they put the word out that industry's and government's business-as-usual approach had maxed out, asserting that their tradi- tional lands couldn't withstand any more fracking. When that message wasn't heard, they went to work on a two-part strategy that saw them win back-to-back legal victories: stopping silica mining in their territory (the abrasive used to fracture rock) and then cancelling lake drainage as a water source for injection purposes. Sand plus water: talk about sending a strategic message to the energy sector! Thus, it is worth reading a couple of the actual judi- cial excerpts from these wins in order to set the stage as to where the indigenous Ecuadorians fit into the picture: "I have also determined that the poten- tial adverse effects of the Decision not only with respect to the Komi North Mine project but also other new Sand and Gravel Pits in the Fort Nelson First Nation's traditional territory is not "minimal" (excerpt para 271 Fort Nelson First Nation v. British Columbia (Environmental Assessment Office) 2015 BCSC 1180 Silica mining fell off the table and is now subject to further review. Two months later, the same result happened to sourcing injection water via lake drainage: "Further, the Manager's conclusion that the withdrawals would have no significant impacts on the environment, including fish, riparian wildlife, and their habitat, was based on incorrect, inadequate, and mistaken information and modeling results." (para 338 Fort Nelson First Nation v. British Columbia Environmental Appeal Board & Nexen Inc. Decision No. 2012-WAT-013c) All the usual factors that determine how and why natives prevail in resource sector litigation are underlined in these two rul- ings. The second case saw the operator's water license cancelled upon the ruling's issuance. Which brings us to where the Ecuadorians fit in; because their huge pro- cedural win is bracketed by the foregoing rulings (as follows): silica mining #214, Ecuadorians #215, lake drainage #216, according to the author's tally that tracks native legal wins in the resources sector. The facts are this: years ago, Texaco left a mess in the Ecuadorian jungle; Chevron ended up on-the-hook after acquiring Texaco; the natives had prevailed in the Ecuadorian legal system winning a mas- sive $9.5 billion ruling, and seek to enforce and realize upon that ruling in jurisdic- tions where Chevron apparently has sufficient monetary assets (Ontario being such a locale, ie Chevron's presence in Mississauga). Of course, it's no surprise that this case would have to end up before the Supreme Court of Canada in order to find out if the Ecuadorians could pull this off. They did, by winning a unanimous ruling that high- lighted how the legal world was changing. Here are key excerpts from the top court's ruling setting the native rights context: [4] The dispute underlying the appeal originated in the Lago Agrio region of Ecuador. The oil-rich area has long attracted the exploration and extraction activities of global oil companies, including Texaco, Inc. ("Texaco"). As a result of those activities, the region is said to have suffered extensive environmental pollution that has, in turn, disrupted the lives and jeopardized the futures of its residents. The 47 respondents (the "plaintiffs") represent approximately 30,000 indigenous Ecuadorian villagers. For over 20 years, they have been seeking legal accountability as well as financial and environmental reparation for harms they allegedly have suffered due to Texaco's former operations in the region. Texaco has since merged with Chevron. And here's the part that makes this a native procedural win: [27] I agree with the Ontario Court of Appeal and the motion judge that the approach favoured by Chevron is sound nei- ther in law nor in policy. Canadian courts, like many others, have adopted a generous and liberal approach to the recognition and enforcement of foreign judgments. … That's identical wording right out of the Supreme Court of Canada's Treaty inter- pretation leading precedents. Now here's the Ontario connection: [86] The motion judge in this case made the following factual findings concerning ABorIgINAl rIghTS From Ecuador with Love (not!) not only are multiple canadian first nations advancing their causes at home, indigenous groups from other countries are now coming to canada seeking justice. here are the actual court rulings in a precedent-setting case. by Bill Gallagher fIrST n at i o n s

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