Federal Court - Christian Aboriginal Infrastructure Developments ...
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Federal Court - Christian Aboriginal Infrastructure Developments ...

Federal Court - Christian Aboriginal Infrastructure Developments ... Federal Court - Christian Aboriginal Infrastructure Developments ...

caid.ca
22.01.2015 Views

Page: 140 [557] Mr. MacDonell was in the process of completing a new TSA which would consider the criteria proposed by industry, trappers, environmentalists and other forest users. His concern related to ensuring that the Minister received a balanced picture, and not just the industry preference. Mr. MacDonell also noted that he was six weeks away from completing the TSA report. 2010 FC 495 (CanLII) [558] Notwithstanding the claim that the report was almost ready, this report was not issued until January 2003 when the DIAND/YTG Technical Timber Supply Committee issued the MacDonell Report. [559] This report concluded that Y02 and Y03 contain approximately 5.1 million hectares of land. The maximum biological potential, that is the scientifically sustainable harvest, before sociological and environmental net downs, was 1.6 million m 3 of timber per year. All stakeholders who were consulted, except the Trappers Association, believed that the TSA of 128,000 m 3 was too low. It also noted that even-flow harvest policies were only used in two jurisdictions in Canada. VI. DISCUSSION A. Introduction [560] At the beginning of my discussion, I have a preliminary comment. [561] The trial judge in Carrier Lumber Ltd. v. British Columbia (1999), 30 C.E.L.R. (N.S.) 219 (B.C.S.C.) said:

Page: 141 479 In some respects counsel on both sides of this action have, in my respectful view, fallen into the trap lawyers, particularly lawyers involved with issues of contract, often fall into. The focus of much of their efforts in argument has been on a series of highly refined and narrowly focused issues in which their attention has been engaged with issues which the general public might well view as the splitting of hairs. 480 In these comments I do not wish to be taken as being critical of counsel or their efforts, indeed this is a case in which the gratitude of the court should be extended to the counsel who appeared at this trial. In attempting to carry out their task, counsel is required to refine and articulate their respective clients' positions in seeking to advance them. It is a process which is by design and necessity, a partisan one in which, in theory, the truth emerges from the adversarial process. 2010 FC 495 (CanLII) 481 The nature of the discipline of law and the techniques of legal analysis tend towards a type of focused and narrow analysis which isolates attention on narrow issues. 482 The task of the trial judge must be to bring to the process a detached examination of the case as a whole before turning to any microscopic examination of any individual issue. … 484 These characterizations move the conflict from the personal to the theoretical, they engage amorphous and broad issues of public policy and focus attention on technical matters. 485 With respect, that is not, in reality, what this action is about. This case is about a much more profound and yet simple question. Can the defendant induce a private citizen, in this case a corporation, to enter into a contract which offers to the plaintiff payment in very specific terms by delivery of 5,000,000 cubic metres of wood, and then through use of its power and legislative capacity fundamentally change the bargain, years later [562] While there are factual differences between Carrier Lumber Ltd. and the present case, there are some similarities, including the “series of highly refined and narrowly focused issues…which the general public might well view as the splitting of hairs” that were argued by the Defendant. As

Page: 140<br />

[557] Mr. MacDonell was in the process of completing a new TSA which would consider the<br />

criteria proposed by industry, trappers, environmentalists and other forest users. His concern related<br />

to ensuring that the Minister received a balanced picture, and not just the industry preference. Mr.<br />

MacDonell also noted that he was six weeks away from completing the TSA report.<br />

2010 FC 495 (CanLII)<br />

[558] Notwithstanding the claim that the report was almost ready, this report was not issued until<br />

January 2003 when the DIAND/YTG Technical Timber Supply Committee issued the MacDonell<br />

Report.<br />

[559] This report concluded that Y02 and Y03 contain approximately 5.1 million hectares of land.<br />

The maximum biological potential, that is the scientifically sustainable harvest, before sociological<br />

and environmental net downs, was 1.6 million m 3 of timber per year. All stakeholders who were<br />

consulted, except the Trappers Association, believed that the TSA of 128,000 m 3 was too low. It<br />

also noted that even-flow harvest policies were only used in two jurisdictions in Canada.<br />

VI. DISCUSSION<br />

A. Introduction<br />

[560] At the beginning of my discussion, I have a preliminary comment.<br />

[561] The trial judge in Carrier Lumber Ltd. v. British Columbia (1999), 30 C.E.L.R. (N.S.) 219<br />

(B.C.S.C.) said:

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