New Brunswick

First Nations forestry plan injunction request denied

A bid by a group of First Nations chiefs to block the New Brunswick government's new forestry plan has been rejected by a Court of Queen's Bench judge.

Risk of irreparable harm "has not crystallized,' judge rules

A Court of Queen's Bench judge has denied an application by First Nations chiefs for an injunction to temporarily block the provincial government's new forestry plan, which gives industry access to more Crown wood.

The 10 chiefs of the Mi'kmaq and Maliseet First Nations of New Brunswick and the Assembly of First Nations Chiefs in New Brunswick Inc. plan to review the decision before commenting.

Several other people have also opposed the Crown forestry plan, including academics and former provincial government employees. (Jeff Bassett/The Canadian Press)
​But Susan Levi-Peters, the former chief of Elsipogtog First Nation, told CBC News she is "disappointed" and "hurt."

"I thought that for once justice would prevail for us, but unfortunately, New Brunswick is holding on very strong and doesn’t want to work with my people and wants to keep us in poverty," she said.

Justice Judy Clendening said she had to consider three tests in reaching her decision — whether there is a serious matter to be tried, risk of irreparable harm and balance of convenience.

Although she found there may be a serious issue to be tried on the government's duty to consult First Nations about the forestry plan, the second test, risk of irreparable harm, "has not crystallized," she said.

"The balance of convenience argument, at this stage, does not favour the granting of an interim injunction," Clendening said in her nine-page decision.

"Balancing the rights of all parties at this stage is not possible on the evidence before the court, hence, the 'status quo' will be maintained."

The chiefs still have the option of pursuing the larger constitutional issues surrounding the plan in the coming months.

No immediate risk

The native leaders had argued the government failed to meet its obligation to consult aboriginal people, who claim title to the public land where companies will be allowed to cut more trees.

They said the plan was an immediate threat to their aboriginal and treaty rights.

But the lawyer for J.D. Irving Ltd., had argued the company won't start cutting at its new increased allocation levels until next February, making an injunction unnecessary.

Clendening agreed.

Ken Coates, a Canadian historian and author of the book, The Marshall Decision and Aboriginal Rights in the Maritimes, said it was a difficult case because determining whether consultation was adequate can be tricky.

"The question before the judge is always — was there a good faith effort made by the government, lots of opportunities for First Nations people to speak to government officials? Did the government cultivate First Nations's interest in the topic?

"So it isn't a precise situation where you have to have four meetings or talk to 10 people, it's actually a sort of vague requirement," Coates said.

He expects any future cases that involve deciding whether adequate consultation has occurred will be easier.

"It's one of these situations where everybody is sort of trying to figure out what the standard is, and if you come back in 10 years' time, we'll know what the standard is, we'll have had a series of court cases, and a series of injunctions, and over time, we'll figure out what that consultation requirement actually entails."

The forestry strategy is central to the Progressive Conservative Party's re-election strategy, which was officially launched on Thursday.

David Alward's campaign urges New Brunswickers to "say yes" to natural resource development and a stronger economy.

The forestry plan, announced in March, is expected to result in the harvesting of an additional 660,000 cubic metres.

It gives Crown licence holders the right to cut 20 per cent more softwood on public land. It also reduces the amount of public forest that is off limits to industry to 23 per cent, down from the previous standard of 28 per cent.


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