Crown Lands and Forests Act Signals End to Aboriginal and Treaty Rights in New Brunswick,Canada—Part A

Introduction

Fifty-one percent of New Brunswick's Acadian forests are on Crown Lands. ¹ The Acadian forest consists of a unique mixture of softwood and hardwood trees found nowhere else in the world and encompasses the forest region of the Maritime provinces and parts of the New England states. Prior to European colonization, the Wabanaki, comprised of Mi'kmaq, Maliseet, and Passamaquoddy peoples, occupied these lands, using them for hunting, fishing, and gathering materials for the necessities of life. This land was never ceded or sold by First Nations peoples, and the issue of aboriginal title has yet to be resolved in court. ² While the provincial Department of Natural Resources (DNR) is the Acadian forests' official overseer, the actual forest managers, as mandated by New Brunswick's Crown Lands and Forests Act (CLFA), have been, and continue to be, large industrial license holders.

In the fall of 2014, after learning that new forestry management agreements (FMAs) providing the forest industry with more wood from public forests had been developed by the province of New Brunswick in cahoots with industry, 10 New Brunswick chiefs ³ went to court seeking an interlocutory injunction to prevent the new FMAs from being implemented. An interlocutory injunction is an “order restraining a defendant until trial.” ⁴ Much of this forest newly opened to corporate exploitation had previously been set aside for conservation purposes.

The increase in wood allocation entailed a reduction in old forest habitat from 438,000 hectares to 278,000 hectares; an increase in clear-cut size from 75 to 100 hectares; and an increase in cutting in stream buffers, on steep slopes and in wet areas. In short, conservation areas would be slashed from 31%, the recommended threshold required to ensure the continued survival of many of New Brunswick's native plant and animal species, to 23%. ⁵ Ironically, in 2012 it was Bruce Northrup, in his capacity as then Minister of Natural Resources for the same government that introduced the 2014 FMAs, who criticized proposed cuts to conservation areas in a news release, declaring that: “At 23 to 25 per cent, less than half of the province's 20 wildlife habitat and old-forest habitat targets would have been met.” ⁶

The chiefs lost their bid for an injunction, and that cleared the way for five forest companies to cut trees in conservation areas where the aboriginal applicants and their ancestors have been hunting, fishing, and gathering since time immemorial.

Using Dorothy Smith's method of investigation called institutional ethnography (IE), ⁷ my goal was to explore and discover how it was that the chiefs lost their case.

Founded on the principle that our everyday lives are ruled ⁸ by persons skilled in the use of regulatory frames, like the FMAs, there are two ways in which regulatory frames, used routinely in the everyday operations of the societal ruling apparatus, that is, by the ordinary people who work in governments, universities, and business corporations, transform someone's actual way of knowing about something into the institution's, or as we say in IE, the ideological way of knowing about the same thing.

Regulatory frames are defined as including the “wide varieties of conceptualizations, theories, policies, laws, plans, and so on that operate at a general level to structure the institutional action and reality coordinating people's work at the local levels.” ⁹

Take, for example, how disability is managed in the Canadian federal public service. One way of knowing disability, typically referred to as the medical model of disability, is that of a problem located in the individual. Another way of knowing disability, advocated by disability rights activists and known as the social model of disability, refers to the situation that arises when a person with an impairment has to work in an environment designed primarily for able-bodied people.

In the IE investigation for my doctorate, I discovered that one way in which the institution maintains the ideological way of knowing disability is with the use of a self-identification questionnaire. This regulatory frame is used to provide the employer with a head count of persons with disabilities, visible minorities, aboriginals, and women in its workforce. Since the institutional categories pertaining to disability on the questionnaire contain various descriptions of biological-matter-gone-wrong (e.g., deafness, blindness, physically impaired, and so on) instead of descriptions of workplace deficiencies (e.g., lack of Braille, lack of sign language interpreters), the institution ensures that the social model of disability is subsumed by the medical model of disability. ¹⁰

It is easy to recognize, as in the above example, how a person's actual experiences are transformed into the institutional model when forms, as per the above questionnaire, are activated. ¹¹ The ruling apparatus, however, does not always have to rely on forms to accomplish societal ruling.

For example, in his classic IE investigation into the reason gay men, who assembled in Toronto bath houses to have sex, were being arrested, George Smith ¹² discovered the arrests were not because the police were homophobic, but because of the language contained in Section 193 of Canada's Criminal Code. Sexual activities conducted in public, such as what the police saw in the bath houses, could be, and, in fact were being, written up by police using wording that matched the terminology found in Section 193, thereby transforming sexual activities amongst consenting gay men into a criminal offense that could then be acted upon by the state.

Of the two types of regulatory frames described above, my article provides an illustration of the latter. Note, too, that institutional ethnographers often come across a pecking order—an intertextual hierarchy—in the regulatory frames discovered in a typical IE investigation.

I used the following texts for my investigation: 1) the applicant's brief asking for an interim injunction submitted by the chiefs' lawyer Derek Simon, 2) the brief opposing the motion for an injunction submitted by the respondent J.D. Irving Limited, 3) Madam Justice J.L. Clendening's ruling, and 4) affidavits submitted by both parties to this case. These texts constitute the data for my textual analysis.

Textual analysis here means more than simply reading to understand the dictionary meaning of words. It means determining how the texts were used by the ruling apparatus to produce the kind of knowledge or way of knowing partial to the forest industry. ¹³

I had also planned on analyzing the audio recordings pertaining to this case but, at the time of this writing, my formal request for a copy of the CD has been refused by the New Brunswick Department of Justice, without explanation.

Applicant's Brief

Simon's 20-page submission, titled Brief on Law for Preliminary Motion, was divided into four main sections: 1) facts, 2) issues, 3) law and argument, and the 4) court order sought.

Section 2, “Issues,” contained the regulatory frame. Comprised of a three-part test established in the 1994 Supreme Court of Canada (SCC) decision, RJR-Macdonald Inc. v. Canada, any party seeking an injunction must be able to satisfactorily respond to three questions:

a. Is there a serious issue to be tried?

The way in which Simon structured his responses to the above questions provided the framework within which the respondents would have to articulate their cases. It would then be up to the trial judge to decide which party had the most compelling arguments.

Three Part Test for Interlocutory Injunction: Serious Issue, Irreparable Harm, and Balance of Convenience

As explained by Simon, Canadian law allows for justified infringements of aboriginal and treaty rights, by the state, provided three conditions as outlined in the 2014 Tsilhqot'in Nation v. British Columbia SCC ruling are met. ¹⁴ Consultation is the first condition. According to Simon, the province of New Brunswick had unjustifiably infringed the applicants' aboriginal and treaty rights by failing to consult with them prior to the release of the new FMAs. This, then, was the serious issue at trial and, Simon argued, as a consequence, the applicants would “suffer irreparable harm” because of the negative effects the new forestry strategy, “through the FMAs,” will have on deer, moose, and fish.

In not granting the chiefs' injunction, Simon argued that the court would be sending “a message that these rights can simply be ignored or side swept [sic] by government,” in contravention of Section 35 of Canada's Constitution. ¹⁵ Section 35 states that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Between 1725 and 1779, treaties known collectively as the Peace and Friendship treaties were signed between the British and groups from the Mi'kmaq, the Maliseet, and the Passamaquoddy nations. Claiming that the new FMAs infringed on these treaties, Simon concluded that, “the balance of convenience favoured the issuance of injunctive, or alternatively declaratory relief.” Declaratory relief refers to a judge's determination of the parties' rights. ¹⁶

Respondents

Since JD Irving Ltd. (JDI) was the only respondent to present a written brief, I restricted my textual analysis to it. The Irving brief was written by Mahmud Jamal, Catherine Lahey, and David Rankin, henceforth referred to as JDI counsel.

JDI counsel framed their arguments in response to the particulars iterated in Simon's description of each of the parts in the three-part test for injunctive relief. To the serious issue of lack of consultation, JDI counsel wrote that the applicants “have not been denied any opportunity to consult with respect to matters that may actually have an impact on asserted aboriginal claims in New Brunswick.”

On the issue of irreparable harm, JDI counsel disputed the claim that wildlife would suffer any harm because the forest was being harvested in a sustainable manner. More importantly, JDI counsel argued that the alleged harm would not materialize for another six months when the new FMAs would actually take effect.

With respect to the balance of convenience, JDI counsel contended that granting the injunction would cost the corporation millions of dollars, while the province of New Brunswick would lose both revenues ¹⁷ and jobs. ¹⁸ Thus, in comparison to the plaintiffs whose losses had not yet crystallized, ¹⁹ JDI counsel asserted the impact on the respondent would be felt immediately, and thus the balance of convenience clearly favored the respondents.

The key to my understanding of what went wrong for the chiefs in this case comes not from my analysis of the three part test for injunctive relief, but from the title of one of the headings used in this respondent's brief, ²⁰ namely, “The 2014 FMA was entered into in the ordinary course of business.”

“In connection with this business, and pursuant to the Crown Lands and Forests Act,” JDI counsel argued its newest FMA was just an amended and restated version of the first FMA signed between JDI and the government more than 30 years ago on March 23, 1982. Since the original FMA was deemed an acceptable business transaction back in 1982, JDI counsel asked why would it suddenly become an urgent problem, requiring immediate injunctive relief? Intrigued by this reference to a business transaction authorized by the CLFA, and recognizing for the first time the hierarchical relationship between the CLFA and FMAs, I started wondering if, perhaps, the chiefs had targeted the wrong text in their plea for injunctive relief.

Trial Judge's Response

In paragraph 16 of her ruling, Justice Clendening wrote: “It is unlikely that the courts would have issued an injunction prohibiting J.D. Irving Ltd. from entering into the 2014 Forestry Management Agreement, because, as submitted by J.D. Irving Ltd., the signing of the agreement was done in the ordinary course of its business [my emphasis].”

Framing her response in terms of the three-part test for an injunction, Justice Clendening surmised that the serious issue which appeared to be of concern to the aboriginals was not the unjustified infringement of their aboriginal and treaty rights but the “increased allocation of timber.” Given that its impact had not yet been felt, as argued by the respondents, and that no irreparable harm had yet been caused, the balance of convenience did not support issuance of an injunction. On the question of infringement of treaty rights, Justice Clendening made no ruling. Nor did she offer any declaratory relief.

Discussion

This controversy was about two different ways of knowing about our public forests. On the one hand, from the chiefs' standpoint, the series of 2014 FMAs that were issued to industry infringed on their rights to hunt, fish, and gather because the forest required to exercise these rights was about to be destroyed. Their argument was that their rights come from the land and that once old forest habitat is clear-cut, those rights are gone forever. Thus, the 2014 forestry strategy providing the industry with a guaranteed wood supply from what little is left of the original Acadian forest infringes upon, and effectively extinguishes, those rights.

On the other hand, the respondents countered that FMAs are just an ordinary part of doing business, an argument with which the trial judge agreed. Section 29(1) ²¹ of the CLFA authorizes the minister to negotiate FMAs with industry every five years. Moreover, Section 31 authorizes the minister to increase the annual allocation of timber to a licensee. So, even if an injunction like that requested by the plaintiffs were to be granted, there is nothing to prevent the minister from renegotiating similar business agreements in the future. In fact, since the first FMA issued in March 1982, JDI's FMAs have been renewed three times and now extend until “the last day in March 2037.” ²² In sum, the FMAs were just subordinate texts whereas the CLFA is what, in IE, we would call the boss text.

The province of New Brunswick's CLFA makes no provisions for aboriginal and treaty rights in any of its language. So, every time the province either renews or extends FMAs, aboriginal and treaty rights in New Brunswick are automatically infringed upon.

Yet, Canadian jurisprudence stipulates that “priority of use” ²³ must be given to the “First Nation whose Aboriginal Rights are infringed.” Now consider that in 1985, the SCC stated (Simon v. the Queen ²⁴ ) that for the Mi'kmaq in New Brunswick, the Treaty of 1752 (part of the Peace and Friendship family of treaties) “constitutes a positive source of protection against infringements of hunting rights.” And, in 1988, the New Brunswick Court of Appeal (R. v. Paul and Polchies) said that the Treaty of 1725 (also known as the Mascarene Treaty) affirmed the right of the Maliseet and Mi'kmaq peoples “not to be molested in their persons, Hunting, Fishing and Planting Grounds nor in any other [of] their Lawful Occasions by His Majesty's Subjects or their Dependants.” ²⁵ What this means is that as of 1985, priority ²⁶ in the management of our public forests ought to have shifted from the production of wood fibre for industry to maintaining all the biological and ecological relations necessary for both the production and proliferation of the types of plants and animals Mi'kmaq and Maliseet have been using for hunting, fishing, and gathering. ²⁷

That shift in forest management never occurred. Chief Freeman Ward, as he was known then, of the Mi'kmaq First Nation at Metepenagiag, addressed that issue during a forestry consultation meeting on August 29, 2011:

Conclusion

The chiefs lost because the conditions specified in the text activated in their defense by their attorney were not met. In addition to this important discovery, this IE investigation has allowed me to make five other discoveries on how the management of our forests through texts privileges the forest companies while marginalizing aboriginals. Such is the value of my chosen methodology which focuses on figuring out how what happened actually happened. This is a precursor to knowing what steps those who have been marginalized need to follow next.

First, the text which should have been targeted by the chiefs was the boss text—the CLFA—and not the subordinate FMAs. The CLFA, rather than the FMAs it spawned, was and remains the real problem.

Second, expecting a judge to see factual evidence of irreparable harm in the present for clear-cutting that would only be occurring in the future was, at best, futile. So, seeking an interlocutory injunction was evidently not the best approach to use.

Third, in embedding the test for unjustified infringement within the test for injunctive relief, the latter's failure entombed the former.

Fourth, the CLFA's enactment contradicted Section 35 of the Constitution Act rendering it, in my view, unconstitutional.

Fifth, there is clear evidence, as shown in Chief Ward's disclosure cited above, that the past 33-year administration period of the CLFA has caused irreparable harm to New Brunswick's aboriginal and treaty rights. To my knowledge, the magnitude of that harm has yet to be quantified, so this is the new challenge facing those who seek environmental justice on this issue.

There are, however, other losers in this trial—the trees. In the sequel to this article, Part B, I shall re-examine this case from the trees' standpoint. Their inherent rights simply to exist, as is, were being pitted against the rights of corporations to exploit them. Now while the chiefs may live to talk about their experiences in this trial for generations to come, the same cannot be said about the trees. So, perhaps the time has come to revisit Christopher Stone's 1972 article titled, “Should Trees Have Standing—Towards Legal Rights for Natural Objects.” ²⁹ As previously mentioned, the corporations won because texts like the CLFA and FMAs secure the rights of corporations to treat nature as rightless. But what is beyond the scope of this article and will be a major theme of Part B is that those texts help maintain what has been called the great divide between Western society and nature.

Aboriginal peoples, on the other hand, view nature and their society as inseparable. Giving nature some of the same rights we as natural persons have, something which has already been done for corporations, as witnessed in the case at bar, may be the only way of levelling the playing field for nature. The consequences of having rightless trees confronting rights-based corporations in a court of law are only too predictable: the authorized destruction of New Brunswick's last remaining old forest habitat signalling an end to aboriginal and treaty rights as collateral damage, and a monumental setback for environmental justice for all New Brunswickers.