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Judge strikes down attempt to halt timber sales

A B.C. Supreme Court judge has turned down the Blueberry River First Nation’s attempts to stop the B.C. government from selling the rights to cut down timber in a certain area of their traditional territory.
Blueberry River First Nation Chief Marvin Yahey testified to the importance of certain areas that the province wants to sell logging rights to in court. William Stodalka Photo

A B.C. Supreme Court judge has turned down the Blueberry River First Nation’s attempts to stop the B.C. government from selling the rights to cut down timber in a certain area of their traditional territory.

The move may benefit the employees of the Canfor mill in Fort St. John. Court documents suggest that the company relied on these sale lots being put up for auction “to sustain its sawmill operators and its employees in Fort St. John.”

The issue goes back to 2010, when the Ministry of Forest and Range (now the Ministry of Forests, Lands and Natural Resources) drew up forest plans that allowed about 17 square kilometres of trees to be cut down over 15 Timber Sale Licences near Inga Lake, Pink Mountain, and other areas.

The B.C. government consulted with First Nations, and removed 354 hectares from development in response to Blueberry concerns. 

However, new leadership that was elected in late 2013 “raised issues that apparently were not raised by their predecessors,” wrote Justice Nathan Smith. 

In June 2014, Blueberry River First Nation Chief Marvin Yahey wrote to the Ministry of Forests, Lands and Natural Resources saying that BRFN was concerned about the impact of forestry on its constitutionally protected rights and that previous consultation and accommodation had not been adequate. 

A letter sent in September from BRFN “requested immediate cessation of logging activities in a number of specified areas.” 

Last March, BRFN sought an injunction to stop these lots from being sold. 

The matter relates back to Treaty 8, a document signed in 1899 between the crown and Blueberry’s ancestors. The Crown assured the First Nations that “they would be free to hunt and fish after the treaty as they would be if they never entered into it,” and further court judgments found this assurance was an essential treaty element.  

Court documents show that Yahey testified that “forestry has destroyed wildlife habitats, which reduces game available for hunting and trapping.”

In an affidavit, Yahey said that three of these areas were “prime calving grounds for moose and important berry-picking sites.”

Another six of the 15 timber sale lots are within or partially within established trap lines. 

The B.C. government, in their defence, contradicted Blueberry River First Nations assertion that forestry has hurt wildlife populations.

“The Crown says that (animal) populations, including those of moose and a number of furbearing animals, have been stable or increasing,” Smith wrote.

Smith did not say whether this was true or not, and said this would be determined at a later trial. 

This injunction was complicated because Blueberry entered in evidence relating to another, larger claim. 

“The question raised by (that larger claim) is whether the cumulative effect of all industrial development in BRFN’s traditional territory has become so extensive that it amounts to a breach of treaty rights,” Smith wrote. “The logging operations that are at issue in this action are alleged to be a part, albeit perhaps a small part, of that ongoing process amounting to the alleged treaty violation.”

Smith found that the timber lot sales were not the “tipping point” beyond which Blueberry could not exercise its treaty rights. 

“Although Chief Yahey deposes to the significance of the (timber sale lot areas) involved, I am not satisfied that these (timber sale lots) will materially increase the cumulative effect on treaty rights that BRFN complains of or that stopping the TSLs will amount to a significant slowing of that overall process,” Smith wrote.

Smith did not rule out that an injunction stopping northeastern industrial development shouldn’t or wouldn’t occur, but that these matters shouldn’t be done on a piecemeal basis. 

Smith found that for this particular injunction against these particular timber sale lots, BRFN’s application did not meet a “balance of convenience.”

Balance of convenience is a term for the court where one party’s need for protection is weighed against the other party’s need for protection against injury. 

In this case, the injuries that would result if the BRFN injunction were allowed would affect both the government and certain private rights. 

According to the B.C. government, the injunction “would interfere with the ability of BCTS to perform its functions as a public body, which include providing price and cost data that is used throughout the province.”

It would also hurt Canfor, which runs a mill in the Fort St. John area.

Court documents state that Darrel Regimbald testified that Canfor has relied on these timber sales put up “in order to sustain its sawmill operations and its employees in Fort St. John.”

This mill, along with another mill that it supplies raw material to, employs 400 people, court documents state. 

In response to the Crown’s statements about Canfor, BRFN said that Regimbald didn’t say that people would lose jobs, and that timber purchases from timber sale lots account “for only a small part of Canfor’s total wood consumption.”

Corinne Stavness, a spokeswoman for Canfor, referred questions about the statements made in the judgment about Canfor’s operations to the Crown.

In a statement, a ministry spokesman said the ministry was pleased by the Supreme Court decision, and that the sale of the licenses would provide “significant contributions to the local economy.”

“BCTS and the Province continue to take our consultation obligations to First Nations seriously, and we will continue to engage in a dialogue with the Blueberry First Nation to try to address their concerns,” the spokesman said. 

In the end, Smith decided that the “balance of convenience” weighed against BRFN, and decided against the application.

Calls to Blueberry River First Nations’ office were not returned as of press time. Maegan Giltrow, one of Blueberry’s lawyers, declined comment. 

The timber lot sales could occur as early as Sept. 1, court documents state.