INNOVATIVE SOLUTIONS FOR FORESTRY
The Forestry Industry in Canada faces challenges on many fronts: competition for markets; increased productions costs; aboriginal claims; environmental compliance; third-party certification; technological change; and, responding to ongoing changes to the regulatory environment are but a few examples.
Helping the forest industry turn challenges into opportunities is the goal of Fasken Martineau's Forestry Practice.
For over a century, Fasken Martineau lawyers have provided advice and representation to those who have created prosperity from the forests of Canada. Building on tradition and "know how", the continuing commitment of our Forestry Practice is to provide:
- innovative solutions
With a forestry team of over 35 lawyers, we are able to provide strategic solutions in a timely manner to assist clients in achieving their objectives throughout Canada. Our practitioners have in-depth legal experience and hands-on understanding of the unique processes and issues associated with the forestry industry.
Fasken Martineau is committed to providing our clients with the best results that a practical, creative and business-oriented approach can offer.
Fasken Martineau's Forestry Practice offers clients a practice group approach that draws on the knowledge and expertise of lawyers in various fields. This allows us to work with clients on any project and have available firm-wide resources based on the clients' changing needs.
The following are representative transactions where we have acted as counsel:
- Assist in the decommissioning of industrial facilities and special use permits.
- Assisted with applications for and transfers of timber tenures and related permits and licences.
- Advised and represented major tenure holders on issues under the Timber Harvesting Contract and Subcontract Regulation, including standardizing replaceable contracts.
- Prepared and standardized non-replaceable operational forestry contracts.
- Prepared road use agreements for mineral tenure holders and independent power producers.
- Negotiated with government for compensation for the take back of harvesting rights under the Forestry Revitalization Act.
- Assisted major tenure holders with forestry revitalization proposals under the Forestry Revitalization Act.
- Developed standard forestry, environmental and safety operating procedures.
- Developed a standard form Purchase Order Terms and Conditions for forest products companies.
- Drafted various forestry lease agreements with aboriginal groups.
- Provided advice on the purchase and sale of goods including entering into sales agency agreements.
- Provided extensive legislative review and consultations on legislative matters.
- Drafted fibre supply agreements.
- Regularly assist companies with Opportunities to be Heard and appeals to the Forest Appeals Commission under the Forest and Range Practices Act.
- Assisted clients in structuring and negotiating joint ventures and other commercial agreements with aboriginal groups.
- Helped forest company resolve dispute over harvesting rights.
- Negotiated with government to make ministry policies protecting aboriginal rights more responsive to the "on the ground needs" of forest companies.
- Provided advice to forestry companies dealing with delays caused by belated government attempts at consultation.
- Successfully opposed aboriginal rights injunction.
- Represented the Business Coalition, including COFI, in the Supreme Court of Canada on the seminal cases regarding the duty to consult: Haida and Taku.
- Represented members of the forest industry in the Supreme Court of Canada in Kitkatla re the harvesting of timber under permit from the Heritage Conservation Branch.
- On behalf of Husby Forest Products, successfully reviewed a decision of the District Manager, which denied a cutting permit on the basis that it might infringe on aboriginal rights. Husby Forest Products Ltd. v. BC Minister of Forests and the Council of the Haida Nation.
- Acted for Skeena Cellulose in Gitxsan et al. v. BC Minister of Forests on the first attempts by aboriginal peoples to use the principles from the Court of Appeal's decision in Haida, successfully keeping Skeena out of the order requiring consultation and accommodation.
- Assisted forest company in packaging and spinning off a major operating division.
- Assisted in mergers and acquisitions in the forestry and solid wood products industries in Canada and internationally, along with related public financing.
- Represented US based forest company in a takeover bid of a B.C. based pulp mill operation.
- Assisted client in negotiating and securing fibre supply and other commitments in connection with a proposed greenfield MDF plant.
- Provides ongoing advice to boards of directors and assists with securities disclosure and governance matters.
Employment & Labour
- Advised and represented on all human resource issues arising during construction of a mill expansion, the first major forest industry project successfully completed outside the umbrella of traditional building trades unions.
- Provided strategic advice on restructuring and downsizing union and non-union work forces.
- Successfully defended a forestry company in one of the first criminal prosecutions brought by the Workers' Compensation Board.
- Developed Prime Contractor Agreements and provide ongoing advice on occupational health and safety matters.
- Developed occupational health and safety protocols for use in safety manuals.
- Successfully defended forest companies against charges under environmental legislation, including under the Forest and Range Practices Act, the Fisheries Act and the Environmental Management Act.
- Assisted in the development of due diligence practices including development of spill contingency plans, hazardous waste management standards and standard operating procedures for a forest products company, and assisted in the training and implementation at the operational level.
- Advised on environmental investigation and disclosure on the sale of a pulp mill.
- Regularly assist companies with prosecution work under forestry legislation, including the Forest Act and the Forest and Range Practices Act.
- Assisted in decommissioning licenses and permits.
- Assisted in the development of industry-wide environmental management system and related permits and licenses.
- Extensive dealings with government and regulatory provincial and federal agencies.
- Involvement with the Chambers of Commerce and the Boards of Trade in commenting on proposed legislation and drafting briefs lobbying for changes to legislation.
- Drafted briefs to the Competition Counsel of British Columbia.
- Drafted various briefs on softwood lumber.
- Meet regularly with senior governmental officials.
Insolvency & Restructuring
- Advice and representation on all creditor and debtor aspects of forest practice, including realization, lien rights, bankruptcy and debt restructuring (both formal and out of court).
- Counsel for lenders, receivers and trustees in receiverships and bankruptcies of numerous forest products companies.
- Counsel for the Doman Group of companies in the successful debt restructuring of approximately US$673 million.
- Counsel for the trustee in bankruptcy of Skeena Cellulose and for the court-appointed monitor in the previous restructurings of Skeena Cellulose.
- Advice and representation for lenders in relation to the Celgar pulp mill restructuring.
Litigation & Dispute Resolution
- Overturned a ministry decision to cancel a timber sale licence and forfeit a deposit for non-performance.
- Obtained compensation for client in the first expropriation proceeding for under the Forest Act arising from the taking of timber licences in Queen Charlotte Islands.
- Set aside trespass allegations against landowner of forest lands.
- Represented client in connection with various mediations and arbitrations of rate, volume and general contract disputes under Timber Harvesting Contract and Subcontract regulation.
- Represented client when Province denied compensation arising from the taking of certain forest tenures. Petition filed on client's behalf seeking a declaration that compensation was payable. The claim was settled for $83.75 million.
- Represented client where compensation was paid by the Province for restriction on the ability of the licensee to harvest its cut entitlement.
- Advice on logging on land located in development permit area (Islands Trust).
- Advice on ownership of mineral resources and rights of surface owner.
- Document reservation of sand and ground on sale of land-with lease to secure royalty.
- Negotiation of statutory rights of way for use of private roads.
- Advice on riparian rights of upland owners in relation to booming areas.
- Advice on sale of rural land holdings including subdivision of servicing.