SpruceRoots Magazine - December, 1998

Ministry hears but cannot listen

by Ian Lordon

"I'm the oldest man in Skidegate." Chief Gaathlaay lives in the Elders' Centre in Skidegate Heights. When he was born, in 1904, the idea of Skidegate Heights, even an Elders' Centre, would probably seem pretty farfetched to people living in the village at the time. But so would airplanes, radio, men on the moon, grapple-yarders, heck even Kool-Aid. Chief Gaathlaay has lived to witness the coming and going of many things. He was fishing for a living when Jean Chretien was still in diapers; he's older than Trudeau, and older than John F. Kennedy would be were he with us today.

Chief Gaathlaay is also older than nearly every tree in Skidegate Inlet. There is, however, one watershed along the inlet which is home to trees so ancient that Chief Gaathlaay's 94 years are but a trifle in comparison. Through the bottom of this watershed a creek winds its way to the salt water of the channel separating Graham from Moresby Island. This creek and its surroundings were once quite ordinary. When Chief Gaathlaay (Watson Pryce) was born, you would have had a tough time telling it apart from the hundreds of creeks, rivers, and streams along both sides of the inlet. But today there are a couple of things which make Jiinanga (Government Creek), and the hillsides which shelter and replenish it, special for Chief Gaathlaay.

First off, he's very attached to it. "That's my territory," Chief Gaathlaay, declares. When he was younger he would visit Jiinanga with family and friends, camp out, fish, and enjoy the area. "We used to go to Brown's Cabin every spring and summer and have a feed of fresh seafood."

But now Brown's Cabin is nothing more than a memory, and the forest which remains is in danger of becoming one as well. Pressure to log the Jiinanga watershed and its virgin stand of venerable trees is mounting. Only a few weeks ago, on October 8, the Ministry of Forests endorsed TimberWest's five-year forest development plan paving the way to allow cutting and road building in the watershed for the first time.

TimberWest, with meager reserves of old-growth forest left within the boundaries of its Tree Farm Licence, is anxious to begin logging the area. The company's island holdings have waged a losing battle to remain viable for quite some time and now there are only six people working at the Sandspit division where once over a hundred were employed. For years, as staff were laid off and operations scaled back until they ceased completely more than a year ago, company management has touted access to Jiinanga and the high-grade, high-value trees surrounding it as the answer to their struggle for solvency.

But that struggle has met resistance among locals and the Haida. Jiinanga's status as one of the few remaining places where fallers have not yet ventured makes it as precious to those who cherish trees standing as it is to those who cherish them on the back of a logging truck. Time and again Chief Gaathlaay has stood before Ministry of Forests staff and TimberWest managers and told them that enough is enough.

"That's one of the only watersheds that hasn't been touched," Chief Gaathlaay says, "I want absolutely no logging on it."

This sentiment has the full and public support of Chief Gaathlaay's fellow-chiefs in Skidegate and the Council of the Haida Nation (CHN). The CHN, empowered to speak on behalf of every Haida, has listed Jiinanga among its 14 protected areas and gone on record more than once against any proposed logging in the area.
The Haida, as a recognized First Nation, have a constitutional and legal right to be consulted before any infringement of their territorial title can take place. If an infringement does take place they are entitled to some form of compensation. To date the Haida have not seen any compensation for the trees TimberWest has already fallen and removed from the Islands, and they were not consulted when acting district manager for the Ministry of Forests, Cindy Krishka, signed off TimberWest's forest development plan.

"Nobody's bothered to give us a call," CHN president Ron Brown Jr. says. "She goes and signs a whole bunch of cutblocks without talking to me. I haven't got a letter, I haven't got a phone call."

Brown laments the Ministry's unwillingness to act in good-faith, to act in accordance with the law, and warns that if the provincial government continues to ignore the CHN's position on Jiinanga and allows a harvest to go ahead the Haida will have to take action.

"They're going to have a force over there pretty fast," he says. "We've got no other option, we're against the wall."

- - -

Oddly enough, Cindy Krishka claims she too was against the wall and had no option other than to approve TimberWest's forest development plan when it was presented to her in October. Now ensconced as a district manager in Port Alberni, Krishka disputes the validity of the CHN's fourteen protected areas.

"Those areas identified by the Haida have no legal status," she says.
The implications are clear. According to Krishka, not only is Jiinanga open to harvesting, but so are the other 13 areas the Haida declare protected. The only concession she makes to aboriginal rights is to recognize that the Haida have concerns which should be addressed before falling can begin.

"I made it clear there is a need for First Nations consultation before it can go any further," she says. "There are issues of First Nations concerns that have to be resolved."

But the process has already gone too far. Before any company can proceed with logging anywhere in BC there are three levels of authorization it must receive. The first, and most important, is the review and approval of the forest development plan by the district manager. Once the district manager approves the plan and the cutblocks mapped out within it, she is essentially giving the green light to logging in the area. The second is the silviculture prescription where the company addresses site-specific concerns like terrain stability, riparian areas, harvesting methods, and so on. The final authorization is the signed cut permit, the go ahead to fire up the chainsaws.

Krishka explains that when TimberWest's plan was presented to her it was her job to review it on its merits and make the appropriate approvals.
"I have to review it, I have no legal choice," she says. "Government Creek [Jiinanga] has not been identified as a protected area [by Government of BC or Canada], it's not in a higher level plan, and it's included in the AAC (allowable annual cut) calculation." After reviewing the plan Krishka concluded that "with two of the blocks they had completed enough requirements to submit a silviculture prescription."

But this wasn't the first time TimberWest submitted a plan for review that included cut blocks in Jiinanga, and Krishka's predecessors had always 'deferred' approval of harvesting in the watershed while allowing the other elements of the plan to proceed.

"In the past we've done that but we shouldn't," she says. "The district manager of the day said we won't review those areas until they are resolved."
So what changed?

Well, the Forest Practices Code to begin with. Recent changes to the Code have eliminated 'deferred' status as an option for district managers. Once an easy out of difficult situations, the BC government removed the word 'deferred' from its vocabulary as part of its effort to speed up cut approvals in the province.
Two attempts at a Local Resource Use Plan (1989, 1996), and one attempt at an interim development plan (1996) for Jiinanga have floundered and stalled in the face of vocal opposition. Krishka says the Ministry of Forests wanted the public to participate in planning efforts for Jiinanga in the past, but not if the public's refusal to allow any harvesting in the area made it impossible for the plans to succeed.
"The question isn't will there be logging or not, but, where is there going to be logging," she says. "I think it's really inappropriate for people who don't want development to participate in an LRUP which depends on it."

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It is precisely those people, members of the public concerned about logging in Jiinanga, that the Ministry of Forests appears to be trying to elude by approving the plans in the manner in which it did.

Under the Forest Practices Code, before a forest development plan can be approved, the company submitting the plan must "provide adequate opportunity for review and comment to persons interested or affected by operations under the plan or amendment". In TimberWest's case, the plan was available for perusal before it went to Krishka, but the blocks laid out in Jiinanga were listed as 'deferred' when presented to the public.

Between the time TimberWest held its viewings of the plan and the time when Krishka approved them, the provincial government enacted changes to the Code which removed 'deferred' status as an option for proposed cutblocks. As a result, the plan signed-off was different from the one viewed by the public in one small but hugely significant detail: logging in Jiinanga, formerly postponed, was now permitted.

By denying the legality of the Haida protected areas and timing the approval of the forest development plan to coincide with the changes to the Code, the Ministry of Forests neatly sidestepped its obligations to hear the local public.
It was at this point that Leslie Johnson, on behalf of the Gowgaia Institute, contacted the Forest Practices Board requesting a review of Krishka's decision to approve TimberWest's forest development plan.

- - -

Calvin Sandborn is legal counsel for the Forest Practices Board. The board is an independent watchdog organization that monitors the enforcement of the Forest Practices Code. The board's function is similar to that of an ombudsman but dealing exclusively with issues involving the Code.

On November 18, the board initiated a review of Krishka's decision to approve TimberWest's forest development plan. Sandborn, who acts on behalf of the board, is now in the process of gathering evidence he will present to a three-member review panel in December.

"I'm going to plea the position of the Forest Practices Board which is responding to the information of Leslie Johnson," Sandborn says. "The board's concern is if there has been an adequate public review process."

The review panel, composed of upper-level Ministry of Forests bureaucrats, will accept written submissions from Sandborn and Krishka outlining their positions by December 17. Two weeks later, on January 7, the panel will receive responses from both parties before reaching a decision January 17.

Sandborn says the review panel's decision can be appealed to the Forest Appeals Commission, a quasi-judiciary organization designed to handle such cases. And whatever the commission decides can, in turn, if necessary, be appealed to the BC Court of Appeal.

The final decision, wherever it is made, is legally binding.
The Forest Practices Board has handled hundreds of complaints, and dozens of requests for reviews of penalties administered under the Code but this is only the third time in the board's history that it has reviewed the approval of a forest development plan.

While the review is under way, Sandborn says TimberWest is not obliged to suspend implementation of its plan but may, if allowed by the Ministry of Forests, proceed as usual until a decision is rendered.

- - -

Rory Annett is the latest district manager assigned to look after logging on Haida Gwaii for the Ministry of Forests. Although he only started the job in November, Annett has had some time to get briefed on local issues, and says he's been "plugged in somewhat since July."

Annett says if the review process concludes that Krishka's decision was correct and the cut blocks remain approved in TimberWest's forest development plan, he imagines logging will proceed in Jiinanga.

"It's approval to harvest, assuming you can get the silviculture prescription through," he says, and notes that getting it through is usually fairly simple. "Normally what you get are some minor modifications to the boundaries. You don't erase the block."

The real approval for cutting in Jiinanga, according to Annett, was given when the Islands Community Stability Initiative signed its memorandum of understanding with the province agreeing to an interim development plan for the area.
"That was the actual commitment," he says. "It was intended to allow some harvesting in the watershed. The interim development plan was intended to be a bridge to something."

But Annett isn't sure where the bridge leads to. He doesn't know if it will be a Local Resource Use Plan, a Land and Resource Management Plan, protected area status, an interim development plan, or a forest development plan. "It depends entirely on the situation." Annett was clear on one point. He won't sign off any cutblocks in Jiinanga until the review of Krishka's determination is complete.
"I certainly wouldn't approve the documents while there's a review process," he says. "That wouldn't be acting in good faith."

For now, Jiinanga's immediate future rests in the hands of the review process. For those interested, Krishka and Sandborn's submissions will be posted on the Forest Practices Board's webpage at http://www.fpb.gov.bc.ca as they are handed to the review panel.

- - -

Diane Brown, Chief Gaathlaay's daughter, has stood by her father time and again while he explained what he wants from the Ministry of Forests for the future of his territory.

"The Government said we want to hear what you have to say," Brown recalls. "The hereditary chiefs made their position very clear." And although the government heard them, she now sees they didn't listen. "It's so dishonest," Brown says. "It's such a dishonest way to treat our elders and chiefs. It's hardly consulting and good faith."

And so, Chief Gaathlaay must wait for lawyers and bureaucrats he's never met to decide whether or not his territory will be logged. When Chief Gaathlaay was born, there was no such thing as TimberWest, or MacMillan Bloedel for that matter. The territory he inherited stood as it had from the coming of the first tree. Today all that remains is Jiinanga, the rest has been taken.


SpruceRoots Magazine - December, 1998