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  • Justice Verhoeven's flawed decision on Fairy Creek blockades

    David Broadland

    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.

    April 2, 2021 


    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.



    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.



    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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