Banner _Pubs.jpg

We can’t just roll-over when it comes to the government’s roll-over forest plans

27 February, 2013

Here’s what the government says it’s doing through amendments to BC’s Forest Act which it introduced last  Wednesday (Feb 20th):

Proposed amendments to the Forest Act will provide for the conversion of volume-based forest licences to area-based tree farm licences …

For those paying attention, these are the same provisions that Journalist Ben Parfitt has warned about in recent weeks:

According to several sources who have been briefed on the legislation, the bill would give the provincial cabinet powers to grant forest companies de facto private control over public forestlands without first having to notify or consult with the public.

Instead of companies enjoying rights to log set volumes of trees on public forestlands, companies would gain dramatically expanded powers to log trees on defined areas that in effect become their own semi-private fiefdoms.

Many logging companies hold the right to log a certain volume of timber (with the precise location to be approved by government subsequently).  These amendments will allow those logging companies to turn in those logging rights and to receive, in exchange, a “Tree Farm Licence” or TFL – the most secure of BC’s logging rights, which offers the exclusive rights to log and manage forests over a large geographic area.  While TFLs are not technically permanent, the government is required to ‘renew’ them in perpetuity (technically referred to as licence replacement).  Anything more than a minor reduction in the logging rights within that geographic area requires compensation from the government. 

The Forest Act amendments won’t guarantee that logging companies will be able to make this switch – in each case the decision is with the Minister of Forests, Lands and Natural Resource Operations, and the logging company is supposed to make the case that the granting of a new TFL is in the public interest.   But the Act does not provide for any process to consult the public or First Nations, or provide any real guidance to the Minister about what that vague term – the “public interest” – means in this type of situation. 

Tree Farm Licences are a carry-over from the days in which it seemed next to impossible to exploit the wealth of a vast, largely inaccessible and unpeopled (other than First Nations, who were thought not to really count) province.  Large logging companies were given exclusive cutting rights over large areas as an incentive to make the large-scale investments necessary to access and cut trees, and to set up mills to process that wood.  Timber production was put ahead of other values, and that was written into the system. 

What does our future as a province look like?  At West Coast we have always believed that large-scale industrial control of our province’s forests is not in the public interest. Locking in a long-term requirement that those forests must always be managed for the sake of growing timber for cutting above all other interests, or the companies can claim compensation, is not in the public interest – not to mention its implications for the unextinguished Aboriginal Title and Rights of First Nations. We have therefore resisted, along with thousands of other British Columbians, previous efforts to roll over logging rights into Tree Farm Licences.  As Parfitt notes, this is not the first time that this type of roll-over has been contemplated. 

One need only ask then forest minister Dave Parker how well things went with a similar “Tenure Rollover” scheme in the late 1980s that was similarly designed to rollover volume-based tenures for big companies and withdraw lands from provincial timber supply areas. The provincial government was forced to shelve the plan after hundreds of small logging operators, environmentalists, forest workers, and community members –alongside First Nations representatives –spoke out at hearings around the province.  The minister and deputy minister responsible left the file shortly thereafter.

A similar outpouring of opposition has dogged other schemes to strengthen corporate tenure rights since then. Remember the MacMillan Bloedel settlement agreement in 1999? In March 1999, the government of British Columbia announced that it was considering turning over and privatising up to 30,000 hectares of public land to logging giant MacMillan Bloedel (as well as letting the company remove up to 91,000 hectares of private land from public management under Tree Farm Licences 39 and 44). This deal was an out of court settlement of MacMillan Bloedel’s compensation claim arising from park creation on Vancouver Island. In the settlement agreement the government agreed to pay MB $83.75 million in either land or cash. Again hundreds of British Columbians from diverse walks of life attended consultation sessions around the province to say ‘no way’ to the land ‘give-away’.

Or recall the massive rallies of First Nations peoples from around the province in 2004 when forestry legislation was amended to strengthen corporate control over logging, through the repeal of the Forest Practices Code of BC and the enactment of other forestry laws.

Has our provincial government not learned that British Columbians will resist efforts to increase the rights of private logging companies?

A word about process

We agree with Parfitt that this is a disturbing change, being brought in late in the mandate of this government.  There has been no public consultation on the change.  

In response to this criticism, Forest, Lands and Natural Resource Operations Minister Steve Thomson has insisted that they are merely implementing changes based on the recommendations of the Special Committee on Timber Supply (created by the BC Legislature in May 2012).  However, that Committee, which did make public consultations, and which produced a relatively balanced report, certainly did not recommend the provision that the Minister is defending.  Their recommendation 5.1, on this very point, states:

Given the history of area-based tenure management in British Columbia and elsewhere in Canada, the Committee recommends to the Legislative Assembly that the Ministry:

a)    Gradually increase the diversity of area-based tenures, using established criteria for conversion and a walk-before-you-run approach.

b)    If conversion to more area-based tenures is desirable, give consideration to incorporating a take- back-volume provision, or some equivalent public benefit, on conversion to area-based rights and reallocating that volume to First Nation and/or community area-based tenures.

c)    Before considering a conversion of a licensee’s renewable volume-based tenures in whole, or in  part, rigorously evaluate: the licensee’s past performance; their commitment to sustainable forest management; their commitment to investment in forest management including, but not limited to, silvicultural investments; and community and First Nations support for conversion through a process of public consultation. [Emphasis added]

Clearly, the Committee felt that more discussion was required to determine “if conversion to more area-based tenures [e.g., TFLs] is desirable.”  It also felt that any provision allowing for conversion should not be based simply on an ambiguous and vague “public interest” test, but should provide real benefits for the community, and even then should involve a rigorous assessment of a range of public interest considerations. 

The government will no doubt claim that all of the Special Committee’s recommendations will occur under the new legislation.  And that there will be public consultation.  And that these provisions will be used sparingly.  And, and, and... 

But the point is that none of this is explicitly required in the government’s rollover legislation. 

And Minister Thomson is wrong in claiming that his legislation is supported by the Committee’s report or by any public consultation that has occurred to date. 

This major amendment should be dropped from the Miscellaneous Statutes Amendment Act.  If it is passed, we hope that the next government will see fit to repeal it. 

By Andrew Gage, Staff Lawyer, with material from Jessica Clogg, Senior Counsel