Law Times

PAGE 10 Controversy stems from lack of consultation on forestry agreement FOCUS Boreal organization says sorry BY JULIUS MELNITZER For Law Times for failing to involve aborigi- nal people in formulating the Canadian Boreal Forest Agree- ment reached by 21 Canadian forestry companies and nine environmental organizations, including Greenpeace, in June. "Th e agreement remains T very controversial among First Nations because they were not involved," admits Larry Innes, executive director of the Cana- dian Boreal Initiative. "We rec- ognize that we made a grievous error in the way the agreement was announced and that we did not have a good foundation with First Nations, so we apolo- gized and are working to make amends and embark on some constructive conversation." Th e agreement, billed as the world's largest conservation pact, committed forestry com- panies to stop logging on near- ly 29 million hectares of boreal forest while environmentalists agreed to suspend their global boycott campaign. But the deal ran into trouble almost immediately. "Th e agreement was drafted demarking logging and con- servation activities without regard to the rights and social realities of local First Nations who have, in many cases, been important stewards of these ancestral lands since time im- memorial," says Rosanne Van he Canadian Boreal Initiative has apolo- gized to First Nations Schie, economic develop- ment offi cer with the Wolf Lake First Nation in north- western Quebec. Th e band has stopped deforestation in many of its key water- sheds and plans to develop and manage its own com- munity projects without the assistance of conservation groups. "Th e agreement covers the same territory over which First Nations have negotiated historic and modern-day treaties or have outstanding claims." First Nations appear to be on solid legal ground. Th e main international frame- work for biodiversity conser- vation is the Convention on Biological Diversity created during the Earth Summit of 1992. It references the rights of indigenous peoples to control their traditional ter- ritories and protect their ances- tral knowledge and skills. As well, the United Nations licensed to the industry for most of the last century." He adds that the agree- ment's goals can be "broadly supported" and that his orga- nization looks forward to the exchange of positive ideas. "Th ere's a lot more work to be done, but we are com- mitted to engagement with First Nations," Innes says. Following the initial con- troversy, however, First Na- tions' ultimate position re- mains unclear. "It's not unusual to have Division among First Nations isn't unusual, says Adam Chamberlain. tells Law Times. Th at place was the interna- General Assembly passed the Declaration on the Rights of Indigenous Peoples in 2007. Although Canada has not signed on, the Canadian Bo- real Initiative's web site recog- nizes that "more than 600 First Nations communities maintain traditional roots in the boreal." Innes concedes his organiza- tion was "quite aware" of First Nations' exclusion from the initial conversations with the forestry industry. "I wouldn't call it intentional, but it began with conversations that came out of a particular place," he tional boycott led by Forest- Ethics, Greenpeace, and other environmental groups. "Th ings reached the stage where the industry was willing to change its practices on the ground and protect land under tenure if the environmentalists would work with us to make us com- petitive," says Innes, who notes the agreement was merely an announcement. "Th e agreement was just a statement of goals. We recognize that we're not in a po- sition to make decisions about land that we do not own and we always intended to open the door to a conversation about what we could do diff erently about forest lands, many of which have been Subscribe to Law Times Why pay extra for your legal news? Cutting-edge legal affairs, news and commentary for just 37¢ a day! Make the time for Law Times and keep up with all the developments in Ontario's legal scene. Subscribe today and receive: • Unlimited access to the Law Times digital editions and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer...FREE division among First Na- tions, whether you're dealing with the Mackenzie Valley pipeline, building a wind farm or constructing a hydro plant," says Adam Chamber- lain of Borden Ladner Ger- vais LLP's Toronto offi ce. Th e agreement produced heated discussions about how to respond at the July meeting of the Assembly of First Nations in Winnipeg. Th e heat came to a boil when British Columbia's Carrier Sekani Tribal Council and the First Nations Energy and Mining Council organized an October meeting in Prince George, B.C., attended by the forestry companies and envi- ronmental groups that signed the agreement. Th e organizers hailed the gathering as a conclave of na- tional leaders, but those from bands in Central and Eastern Canada condemned it as a "backdoor approach" to com- ing up with a national First Na- tions policy. In fact, Nishnawbe Aski Nation Grand Chief Stan Beardy, Manitoba Keewatinowi Okimakanak Grand Chief Da- vid Harper, and Algonquin Na- tion Secretariat Grand Chief Norman Young insisted the Prince George gathering wasn't a national meeting and wouldn't refl ect the position of First Na- tions on the boreal agreement. Still, First Nations leaders maintain they're not split on their rejection of the agreement or the lack of transparency and accountability that led to its exe- cution. At the same time, they've initiated technical and legal re- views with the goal of presenting a common front through the As- sembly of First Nations. LT U.S. tries flip scheme Continued from page 9 innovation is available, it will draw innovators, entrepreneurs, and in- vestors who in turn will draw talent and intellectual capital to become a self-reinforcing cluster. "Enhanced clusters lead to enhanced prospects for success," he says. "Th at's exactly what happened in Silicon Valley." Last but certainly not least, Sutin points out that successful innova- tion in the green economy will have signifi cant social and economic benefi ts for Canada. Despite the optimism, Stephen Fyfe of Borden Ladner Gervais LLP's Toronto offi ce warns that the success of the fl ow-through lobby is far from a guarantee. He notes that in the late 1990s, the federal government amended the defi nition of Canadian explo- ration expense to add a subcategory called Canadian renewable conservation expense. "Th ey did that with the idea of extending fl ow-through fi nanc- ing to the renewable energy sector," Fyfe explains. But the uptake on the renewable energy side has been disap- pointing. "Unless you're dealing with wind farms or geothermal projects, the development costs tend to be very small," he says. "Th e upshot is that there are few renewable projects that justify embarking on a fl ow-through program." For his part, Fyfe believes that the partnership fl ip approach that exists in the United States could be a more useful fi nanc- ing tool for the innovative clean-tech industry than fl ow-through shares. Th e fl ip structure involves the formation of a tax partner- ship between a developer and tax equity investors. Th e tax eq- uity investors get the bulk of the various tax credits that are avail- able. If the partnership meets certain requirements in the Internal Revenue Code, the Internal Revenue Service won't challenge the allocation of these credits. 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• Cover
• Libel Ruling Appealed
• Double-dipping
• Focus On Environmental Law