Washington law firm billed N.B. almost $2M last year for U.S. trade help

January 6, 2021

By: The Working Forest Staff

CBC NEWS — New Brunswick has won some critical trade fights in the United States in recent months, but the victories have not come cheap.

Records show that Washington-based lawyers handling the disputes have billed $6 million over the last five years — including nearly $2 million billed last year. 

“We are seeing more and more of this,” said Patricia Goff, an associate professor at Wilfrid Laurier University in Waterloo, Ont.   

Goff, who studies trade issues, said it is increasingly common for provinces to retain their own representation in international commercial disputes that affect them, even when Canada is itself fully engaged.

Since June of 2017, New Brunswick has been fighting on multiple fronts to undo duties imposed on its forest products and prevent the application of additional new tariffs being advocated by U.S. competitors.

Two months ago there was a significant victory in those battles when the U.S. Commerce Department lowered a 20.2 percent duty it had been applying only to New Brunswick softwood exports to 8.9 percent as part of its annual review of the rates. 

New Brunswick won a key fight at the U.S. Commerce Department in June by arguing low property assessments of private forests in the province are reasonable because only the ground is counted, not the trees on it. (Shane Fowler/CBC News )

Goal is to eliminate all remaining duties

That follows another favourable ruling by the same department in June 2019, which said low property assessments on privately owned forests in New Brunswick are not low enough to warrant additional special tariffs.

Those decisions have been applauded by industry representatives in New Brunswick as important steps toward the goal of eliminating all remaining duties.

“We’re free traders and we have an open and transparent market and that’s what we’re going to stake our claim on,” Mike Legere, executive director of Forest NB, said in November following the most recent reduction in tariffs.

Canada has been fighting the U.S. actions as well, but because New Brunswick was singled out among Atlantic Canadian provinces for complaints by U.S. industry, Goff says it makes sense that the province would want to confront the sanctions itself.

Goff said she thinks the provinces are “compelled” to take a role.

“But softwood in New Brunswick is particularly distinctive precisely because the U.S. government differentiated among the provinces,” she said.

“If that’s going to happen, then it just seems natural that the provinces themselves would (respond) on their own.” 

Mike Legere with Forest NB welcomed a lowering of tariffs on New Brunswick lumber exports to the U.S. in November after more than three years of efforts by Canada and a number of provinces, including New Brunswick. (CBC News file photo)

But that has proven to be an expensive undertaking.

Washington legal firms the province has recruited at various stages of the fight include Curtis, Mallet-Prevost, Colt & Mosle LLP, which billed $1.3 million over two years ending in 2019, and Morris, Manning & Martin LLP, which charged $1.5 million over four years ending in 2019.

Recently, most of the work has been assigned to the Washington law office of Pillsbury Winthrop Shaw Pittman LLC. That firm billed $1.926 million for its services last year, and $1.3 million the year before that.   

In an email, New Brunswick Department of Justice spokesperson Jean Bertin said Pillsbury Winthrop has been retained to represent New Brunswick in multiple areas.

Softwood in New Brunswick is particularly distinctive precisely because the U.S. government differentiated among the provinces.– Patricia Goff, associate professor at Wilfrid Laurier University

“They also advise GNB (Government of New Brunswick) on legal matters with respect to trade with the U.S., although the softwood lumber case is the most significant legal matter at this time,” wrote Bertin. 

“Within the softwood lumber case, Pillsbury Winthrop Shaw Pittman LLP defends a variety of programs and policies, including the provision of stumpage, licence management, silviculture and property tax system, among others.”

The provincial government did not respond to a request to speak with a minister about its trade fights in the United States. But University of Lethbridge professor Christopher Kukucha said British Columbia has always hired its own legal representation during softwood trade disputes between Canada and the U.S. 

It’s not surprising that New Brunswick would do the same, said Kukucha, who studies Canadian foreign policy and international political economy.  

“I assume New Brunswick’s argument is the same as B.C.’s. It was like, yeah, you know, we can allow Canada to do this for us, but it’s just too, too important to us. The stakes are too high.”

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