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FORESTRY: An Introduction to Nationwide - Canada

Nicole C. Gilewicz
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FORESTRY: An Introduction to Nationwide - Canada

By Mark S Oulton and Nicole C. Gilewicz of Hunter Litigation Chambers (Vancouver)

The practice of law in the forest sector sits at the intersection of numerous industrial, environmental and social issues. It is both a highly regulated and highly dynamic area - engaging questions of how to balance economic and industrial development with considerations of social licence, indigenous rights and title, and broader societal issues like climate change. Whether practising as a solicitor or litigator in this space, it is, as noted, dynamic, engaging and - on most days - subject to change.

There is no better example of this than the ongoing old growth logging debate in British Columbia. This debate has given rise to what is being described as the largest act of civil disobedience in Canadian history in the form of the Fairy Creek protests against old growth logging. Those events have, among other things, led to jurisprudence testing the scope of permissible police enforcement tactics, given rise to a temporary moratorium on old growth logging in British Columbia and spurred further consultation with those First Nations in whose traditional territories the old growth stands at issue are located with regard to the future of logging in those areas. The motivation behind these protests is well documented - flowing from a growing social awareness and concern regarding the role of old growth forests in maintaining biodiversity and slowing climate change. The protests and resulting jurisprudence provide lessons in how these environmental issues engage consideration of the rule of law, and how different aspects of social policy may interact ‘on the ground’, so to speak.

The forest sector is also one of several areas attracting attention as part of the reconciliation efforts of Canada and the provincial and territorial governments with First Nations. The renewable nature of the resource, combined with the fact that these Crown resources are located in the traditional territories - either areas of asserted Aboriginal title or treaty lands - of historic First Nations, means they hold value in the reconciliation discussion. A reallocation of control over forest resources - through shared decision-making or reallocation of tenure rights - to First Nations is seen by many as a potential tool for furthering the aims of reconciliation and economic and social development for and with First Nations communities. This gives rise to opportunities and challenges for solicitors and litigators alike as new regulatory regimes, tenure takebacks and other potentially novel structures are being considered and implemented.

Industry sits at or near the centre of the intersection of many of these issues as courts, governments and society at large seek to better understand and achieve balance between the economic, social and environmental issues at play. The contributions of the forest sector to local, provincial and national economies and communities are well known. Canada remains a global leader in the production of primary forest products such as softwood lumber, pulp and wood pellets. The industry is responsible for over CAD20 billion in contribution to the Canadian gross domestic product and contributes more than CAD30 billion to the export market. In a similar vein, the forest sector contributes significantly to the coffers of provincial and territorial governments through taxes, stumpage and other revenues (approx. CAD1.9 billion in 2019), and is particularly important in rural and remote areas where the forest sector can and does offer employment opportunities where few other industries operate.

The tension between competing motivations - to monetize, preserve and reallocate our forest resources - can lead to uncertainty and other impacts in the sector, impacts that lawyers and clients alike must be prepared to grapple with and respond to. That said, uncertainty can - and often does - lead to development and change, as evidenced by the recent overhaul of forestry legislation announced in British Columbia, which will be accompanied by some form of reallocation of a portion of existing tenure rights from industry to First Nations operators and entities. Uncertainty can also lead to opportunity as innovation, a growing demand for bioproducts and the desire to develop domestic value-added manufacturing capacity continues to drive investment in the forest sector. Uncertainty can also lead to opportunities for mergers and acquisitions as companies seek synergies, access to fibre and other benefits, e.g. the recent acquisition of Norbord Inc. by West Fraser, all of which provide opportunity for creative and thoughtful legal advice and guidance.

In addition to these internal pressures, the forest sector faces challenges on the international front. The current round of the softwood lumber dispute is now approaching its sixth year (after the one-year grace period following the expiry of the last softwood agreement), and has shown limited signs of progress toward a resolution. The ongoing dispute adds to the strains already on industry, and represents another layer of consideration for lawyers practising in this sector to navigate on behalf of their clients.

For lawyers operating in the forestry space, change remains a constant. Addressing and staying abreast of the many new and ongoing regulatory changes in the context of evolving societal views, advising clients of the impacts of those on their operations, including the opportunities and challenges these changes may present, while navigating the intersection of the competing demands on forest resources on behalf of clients is both challenging and rewarding. As the Crown tries to balance the competing demands of the international community, industry, First Nations and societal concerns within the forest sector, practitioners in all aspects of practice in this area must remain nimble, responsive and patient. This past year has been one of change and challenge on many fronts, and the future in the forest sector likely holds more of the same.