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  • Justice Verhoeven's flawed decision on Fairy Creek blockades


    The BC Supreme Court Justice who decided that irreparable harm was done to a private forestry company by citizens blocking logging roads didn't know that the company's harvest had actually increased. 

     

    BC SUPREME COURT JUSTICE Frits E Verhoeven delivered reasons on April 1 for allowing an injunction against BC citizens blocking a forestry company from logging old-growth near Port Renfrew. Comparing the information Verhoeven used to make his decision with BC government information about the extent to which the logging company has been affected by the blockade, it’s difficult to understand why Verhoeven granted the injunction.

    The citizens have been blockading access to three potential logging sites just north of Port Renfrew. The first blockade stopped construction of a logging road into nearly pristine Fairy Creek Valley. That blockade was set up in mid-August, 2020. When Fairy Creek Valley was ignored by the NDP government in its faux old-growth logging deferrals announced a month after the blockade was set up, other blockades were established to impede logging of old-growth forests nearby.

     

    69713425_Fairy-Creek-Headwaters-Port-RenfrewTJWatt.thumb.jpg.fcf7345836f75c37f99a6ca5463d7a56.jpg

    Fairy Creek Valley near the area that Teal Cedar wants to log (Photo by TJ Watt)

     

    Teal Cedar Products Ltd applied for an injunction against the blockades on February 18, 2021. A hearing was held by Justice Verhoeven on February 25, which was then postponed until March 25. Verhoeven provided reasons for allowing the injunction on April Fool’s Day.

    Teal Cedar Products is the tenure holder of TFL 46, which the ministry of forests notes has 45,533 hectares of commercially operable forest land that Teal can log. The approved cutblocks in Fairy Creek Valley that citizens are impeding access to totals 20 hectares. That represents such a small fraction of the land Teal has access to, it’s hard to express: it’s just four-one-hundredths of one percent of the area Teal can clearcut. None of this was mentioned in Verhoeven’s judgment.

    In his judgment, Verhoeven noted that for injunctive relief to be granted, Teal needed to show three things: First, that there was a serious question to be tried; second, that Teal would suffer irreparable harm without an injunction; and third, that “the balance of convenience favours granting the relief.” By “balance of convenience” Verhoeven meant that the harm done to Teal if the injunction was not granted needed to be weighed against the harm that would be done to the citizens manning the blockade if the injunction was granted.

    On the first requirement, Verhoeven noted that the citizens themselves conceded there was a serious issue to be tried.

    On the issue of “irreparable harm,” Verhoeven concluded: “There is also no doubt that Teal will suffer irreparable harm if the injunction is not granted.” 

    But the truth is, there’s plenty of doubt.

    Let me start with what actually happened to Teal’s logging operations in TFL 46 in the year the blockade began, just over halfway through the year. Verhoeven could easily have been provided with this information if he had requested it from Teal. Harvest volumes obtained from a publicly accessible database, maintained by the BC ministry of forests, show that in 2018, when there were no blockades in place, Teal took 255,975 cubic metres of timber out of TFL 46. In 2019, again with no blockades in sight, they removed 282,096 cubic metres.

    In 2020, the year in which the blockade started (in August), Teal trucked 437,982 cubic metres of logs out of the TFL. That’s an increase of  55 percent over 2019 and 71 percent over 2018.

    If Verhoeven had asked for this information, he would have been hard-pressed to show that the blockades had done Teal irreparable harm. In fact, Teal did much better—monetarily—than it had in the previous two years.

    Verhoeven, however, accepted information from Teal and, based on that, concluded that the blockades would do Teal irreparable harm. Verhoeven’s judgment repeats what Teal told them: “Teal employs approximately 450 people within its processing and manufacturing facilities. If Teal is unable to log within the area of TFL 46, it will not have an adequate timber supply for its mills. It may be forced to shut down its mills, resulting in layoffs of employees, and Teal’s inability to supply its customers. Teal estimates that the end product value of the products that it will produce from the timber sourced from TFL 46 is approximately $20 million. Teal stands to lose market share, and to suffer damage to its reputation as a reliable supplier of its products.”

    But as the Province’s information shows, none of that happened.

    Verhoeven went on to describe the irreparable harm done to one of Teal’s contractors, road builders Stone Pacific: “The losses extend to Teal’s contractors and their employees. Stone Pacific lost $3,500 per day for each day its operations were prevented, and its employees lost wages of $350 to $400 each for every day of work lost.”

    The Province doesn’t make public such details as whether Teal’s road-building contractor actually lost any days of work, but judging by Teal’s much greater output in 2020, someone was building the necessary roads.

    On the basis of irreparable harm, Verhoeven seems to have seriously erred in assuming that what the company’s lawyers said in court didn’t need to be examined more closely.

    The third bar that Teal needed to meet for an injunction to be granted was the “Balance of Convenience” bar. Verhoeven described that this way: “Finally, an assessment must be made as to the balance of convenience, which typically starts with consideration of which of the parties would suffer greater harm from the granting or refusal of the remedy, pending a decision on the merits. Many other factors may come into play, depending on the circumstances. In Charter cases, the public interest must be considered within the question of the balance of convenience.”

    Verhoeven then recounted a short list of what various witnesses had told the court; these amounted to a repetition of the warnings already made by thousands of forest and climate scientists around the world about the impact forest destruction is having on the both the biodiversity and the climate crises. 

    But a careful reading of his written judgment shows that Verhoeven never actually weighs the harms to Teal against the harms the defendants are trying to avoid by impeding Teal’s logging operations. Rather than making a serious effort to understand those harms, Verhoeven seemed to throw his hands into the air in exasperation and declared: “The problem is, all of the concerns raised by the respondents are for the government to address, and not this Court. Forestry decisions are highly policy driven and require the government to coordinate, balance, and reconcile often competing values and interests.”

    Note that in trying to work through the “Balance of Convenience” consideration, Verhoeven was willing to declare that it was up to the BC government to work out an appropriate response to the concerns of the citizen blockaders. Yet, in examining the question of whether Teal had suffered irreparable harm as a consequence of the blockades, he accepted Teal’s claims without referring to government records about the small area of what the citizens wanted protected, or the increased volume that Teal had harvested during the blockades.

    Moreover, the government, as many of us already know, only pretends to “coordinate, balance, and reconcile competing values and interests.” In the real world, the forest industry long ago captured the only public agency that could regulate forestry—the ministry of forests—and together the two have become the “mindustry.”

    Had Verhoeven actually completed his “Balance of Convenience” assessment, he might have properly weighed what Teal had lost—nothing—against what the public is losing every year that the reign of the mindustry continues.

     

    1906722794_1BurnedslashandstumpswithpersonKlanawaValley.thumb.jpg.a40c2af93f52a12a98f88edb1399c38c.jpg

    Old-growth forest in the Klanawa Valley, northwest of Port Renfrew; this is what the blockades are trying to keep out of Fairy Creek Valley (Photo by TJ Watt)

     

    If he had done what justice required him to do, Verhoeven would have summed up all the public subsidies received by forestry companies in BC: the forest management subsidy, which is the million-dollar-a-day cost to the public of running the ministry of forests after accounting for all the modest revenue it receives from companies like Teal. It would have included the more-than-one-million-dollar-a-day subsidy that mills like Teal’s receive through low electricity rates and the more-than-one-million-dollar-a-day subsidy that pulp mills receive through the lower rate they pay for water compared with the rate that municipal authorities pay for water (without pulp mills, Teal’s own mills would soon be buried in sawdust). And it would have included the multi-billion-dollar-a-year subsidy that forest companies are granted by the BC government, which ignores the carbon released by the industry’s destruction of BC forests. If that carbon was priced at the current level of BC’s Carbon Tax, this subsidy alone would overwhelm the entire $3 billion contribution to the provincial GDP credited to the forest industry.

    Those are some of the monetary public interests that Verhoeven failed to consider in his incomplete “balance of convenience” assessment. The blockaders are, I know, partly motivated by this monetary insult to the public interest. This is where irreparable damage is being done.

    In the end, after failing to adequately examine either the issue of irreparable harm or the issue of the balance of convenience, Verhoeven simply relied on “the law” that people can’t block roads if it affects other people who have a right to use those roads. So the question of whether Teal should have received injunctive relief seems to have been settled unjustly. The blockaders are now mobilizing support. The public would do well to try to understand that the power of BC’s justice system has been used improperly to support a private company’s interests over the public interest.

    David Broadland has spent the last year amassing information about the mindustry. He’s discovered that the future of BC’s forests is not in good hands.

    Justice Verhoeven’s judgment: https://www.bccourts.ca/jdb-txt/sc/21/06/2021BCSC0605.htm


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    Thank you David Broadland for your thorough analysis of Justice Verhoeven's ruling. 

    It appears to me that you have set out solid grounds for an appeal of the judge's decision.  Let's hope that a lawyer, who cares about justice as opposed to the legal system, steps forth to represent pro bono the Fairy Creek demonstrators in an appeal.  

    Indeed, as you point out so well,  "the irreparable harm" is to the public interest with outrageously bloated subsidies to the forest industry that employs only 1.9% of BC's jobs and generates only 2% of BC's gross domestic product (Source: BC Stats).  

    It is these inordinate government subsidies together with a complete absence of BC NDP forest policy that enable the forest industry's ongoing destruction of communities, watersheds, rivers, drinking water, biodiversity, caribou, salmon, grizzlies, wolves, carbon reserves, high-value old-growth primary forests, forestland, and climate.  

    By continuing to allow the logging of high-value, old-growth, primary forests, is premier John Horgan practising ecocide?

    Edited by Anthony Britneff
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    Thanks for your comment Anthony. At least one lawyer has come forward offering his services pro bono to do an appeal of Justice Verhoeven's judgment.

    It took Teal eight months to seek the injunction. I can't see Teal doing this at all unless the company had some assurance from Premier Horgan that he would support it. Without such assurance there would be little to stop Horgan and his cabinet from deciding to avoid the spectacle of mass arrests by withdrawing permission for Teal to log in the general area of Fairy Creek.  Given the findings of the Gorley-Merkel review of old-growth, which recommended that the government change how it values old-growth forests and put a moratorium on cutting old-growth forests like those at issue in the Port Renfrew area, the seeking of this injunction suggests that Horgan has no intention of moving in the direction Gorley and Merkel recommended.

    I think you are correct in calling out the BC NDP. Unless it changes its forest policy, this kind of conflict is going to go on for years.

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    Will the NDP really support mass arrests of people trying to protect the trees Horgan said he would protect? Cities across BC are getting behind protecting Fairy Creek and at-risk old growth. Municiapl governments in Powell River, Port Moody, Nanaimo and Victoria have all called for immediate protection of all at-risk old-growth forests on Vancouver Island, including Fairy Creek. The City of Victoria is even circulating an image showing the Fairy Creek Valley, a green jewel amidst a sea of logged areas. That the NDP are letting this happen on their watch seems unbelievable to me. That's the last time I will vote for this government!!

     

     

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    9 minutes ago, Guest City Boy said:

    Will the NDP really support mass arrests of people trying to protect the trees Horgan said he would protect? Cities across BC are getting behind protecting Fairy Creek and at-risk old growth. Municiapl governments in Powell River, Port Moody, Nanaimo and Victoria have all called for immediate protection of all at-risk old-growth forests on Vancouver Island, including Fairy Creek. The City of Victoria is even circulating an image showing the Fairy Creek Valley, a green jewel amidst a sea of logged areas. That the NDP are letting this happen on their watch seems unbelievable to me. That's the last time I will vote for this government!!

     

     

    You mean this?

    1522593211_CityofVictoriaimageofFairyCreekValley.thumb.jpg.db84d139ca79778431d693544f457dbb.jpg

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    The way I read the injunction granted by the judge in favour of teal Jones, is that the injunction covers the TFL 46 in it’s entirety, not just area specific. If that’s the case, that’s a tremendous area to be excluded from if you violate the language within the injunction, to be excluded from port renfrew and the pacific rim park in the south to Nitinatt  in the west, sooke in the east, and north to the E&N land grant, it sure makes one really think twice about blockading and subsequent arrest.

    I hope this is not true, needs clarification 

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    Industry appears to be moving back into the Fairy Creek area. Other forest defenders are needed. For information on what you can do, visit 

    https://laststandforforests.com/

    https://laststandforforests.com/get-involved/visit-us/  for maps and the main intake site just up Granite Main off Highway 14 north of Port Renfrew

    rain4est flyingsquad rain4estflyingsquad@gmail.com   

     

    laststandforforests.com

    Facebook: Fairy Creek Blockade, Rainforest Flying Squad

    Instagram: fairycreekblockade, rainforestflyingsquad

    Support our efforts through our Go Fund Me campaign

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    I watched the recent exchange between Green Party leader Sonia Furstenau and Forests Minister Conroy.  Furstenau asked if the government would implement the recommendations of the Gorley-Merkel old growth report and immediately protect high risk old growth, specifically Fairy Creek.  Minister Conroy responded that there was lots of old growth left and protecting old growth would result in job losses.

    I challenge the logic of both of Minister Conroy statements. 

    First any old growth number needs clarification.  List it by productivity class ie poor, medium or high capability to grow big trees.  And the number needs leading species as well.  I understand that Fairy Creek is yellow cedar.  By any measure yellow cedar, a most beautiful tree with sacred wood, is scarce in BC.  The third measure is location and amount.  For example, scattered remnants irregularly distributed around the province would indicate problems.

    And it is not jobs vs old growth.  Job losses per cubic meter are due to mechanization and show steady decline.  Plus if the wee amount of old growth asked for will result in job losses then there is serious sustainability problem and AACs are too high (which they are).  And it can’t be argued both ways: “we have sustainable AACs” and “the little old growth retention proposed will seriously jeopardize that”.   If it is really about jobs then do more about jobs—Guaranteed Livable Income etc.  

    I would like to add some thoughts on todays Fairy Creek court ruling. The BC Supreme Court judge is right: this blockade is unlawful protest.  But blockades occur when other avenues are inadequate.  There is no mechanism by which a harmful harvest can be stopped—not by the forest district manager being able to disallow cutting permits in the first place or even really refusing forest stewardship plans.  So people have few real avenues remaining. The Forest and Range Practices Act is a problem. 

    Eventually, I hope this protest results in the FRPA being replaced.  So, as the judge states, the bigger issue of minimizing ecosystem integrity loss province wide will be mitigated.   

    Judy Thomas, RPF.

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    45 minutes ago, Guest TreeTalker said:

    Time to quickly seek out Eco Philanthropists to buy out TFL 46 to the tune of $20 million. 

    Hmmm. You are probably referring to the "$20 million" mentioned by Verhoeven in his judgement. He said, "Teal estimates that the end product value of the products that it will produce from the timber sourced from TFL 46 is approximately $20 million."

    Presumably he meant to add "in a year," or some other measure of time. On this count, too, Verhoeven made a serious error in accepting Teal's information. I have asked Teal questions about the information they provided in their injunction application. Once I have those answers I will provide a second story addressing those numbers. It should suffice to say for now that the value of the wood products manufactured from wood cut in TFL 46 are far greater than "$20 million."

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    Judy Thomas is correct, the Forest and Range Practices Act is a major problem.  In Division 4 - 16 of that act it states, "The minister must approve a forest stewardship plan or an amendment to a forest stewardship plan if it conforms to Section 5." (the emphasis on 'must' is mine).  This means that as long as the forest company can tick off all the boxes, meeting the requirement laid out in section 5 of this act, the forest stewardship plan must be approved (a forest stewardship plan is an oxymoron; it is actually a logging plan).  The approval has been delegated to district managers from the minister.  This act leaves them with a very restricted ability to manage, little government oversight. The Forest and Range Practices Act was produced by Gordon Campbell's administration after it threw out the Forest Practices Code (the baby with the bathwater) giving the forest industry most everything it asked for. The government needs to have the authority to not approve logging plans that are not in the best interests of the public.  

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    The Rainforest Flying Squad announced today that its legal team has filed an appeal of Justice Verhoeven's judgment granting an injunction to Teal. The appeal asked that the order be said aside due to:

    1. (a)  The Court erred in deciding that the granting of the injunction be allowed on behalf of the Respondent, Teal Jones Products Ltd.;

    2. (b)  The Court erred in allowing police authorities and/or the Royal Canadian Mounted Police to enforce the injunction against the Appellants;

    3. (c)  The Court erred in its determination that the Respondent would suffer irreparable harm had the injunction not been granted;

    4. (d)  The Court erred in failing to treat an injunction as an extraordinary remedy, especially in the context where arrests could be made but the police and Attorney General choose not to do so;

    5. (e)  The Court erred in deciding the balance of convenience on one issue–the presence of a permit(s) to log;

    6. (f)  The Court erred in failing to properly balance the public interest;

    7. (g)  The Court erred in failing to analyse whether, in an area where there is a road-building permit but no cutting permit - a road building permit meets the irreparable harm branch of the test for an injunction; and,

    8. (h)  The Court erred in applying the balance of convenience test determining the forestry decision to approve the Fairy Creek watershed Cutting Permit 7265 was a governmental policy consideration outweighing the public interest in preserving the few remaining old growth forests in British Columbia.

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  • The NDP's old-growth logging deferrals

    The map below shows FLNRORD's mapping of the 9 areas where logging deferrals were announced in September 2020. It also shows the intended deferral in the Central Walbran Valley, which has not been publicly announced. The mapping below shows that very little actual old-growth forest was included in the 9 deferrals that were announced. The Clayoquot deferrals includes a large part of Strathcona Park, as well as several parks in the Sound area, none of which were in any danger of being logged. Read more about this issue here.



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