(Note: this commentary is based on the reading of documents posted on B.C. government websites (https://bclaws.gov.bc.ca) (https://news.gov.bc.ca) and does not constitute legal opinion or advice.)

The Ada’itsx/Fairy Creek conflict involves a clearly circumscribed issue in forestry reform: the permanent protection of the remaining unprotected primary and old growth forest stands with large and very large old trees within British Columbia before these stands are completely liquidated by industrial logging. Old growth forests with large and very large old trees are a tiny fraction of the original primary forest of the province (1).

This specific issue has a great deal of urgency because old growth logging continues year after year (2), continues to take place in proposed logging deferral areas (3), and the unimpeded industrial logging of old growth results in irreparable harm to the environment, unique ecosystems, biodiversity, and the habitat of species at risk.

Following years of advocacy from ENGOs and the public on protecting the remaining unprotected old growth forest stands in British Columbia from logging, the BC government issued on July 17, 2019, a media release announcing the creation of the Old Growth Strategic Review Panel (OGSRP) and temporary protection for 54 groves with individual extremely large iconic trees listed on the Big Tree Registry of the University of British Columbia through short-term designated areas under the authority of section 169 of the Forest Act (FA) (4).

The BC government subsequently used section 169 of the FA to designate a few small areas for the short-term logging deferral of exceptionally large individual iconic old trees and their supporting tree area within a 56-metre radius (5). The current Tree Designated Area No.1 and Tree Designated Area No.2, which presently protect only 8 and 5 iconic trees respectively, are set to expire on July 5, 2023.

The BC government issued on October 23, 2019, another media release outlining the OGSRP’s engagement process, which included the schedule for 12 regional panel meetings and a platform for the public to engage in completing an online questionnaire and to submit written submissions online by January 31, 2020 (6).

In its public engagement document issued following the creation of the OGSRP (7), the BC government referred the public to the BC Biodiversity Guidebook for “… a more detailed and technical definition of old growth forest” and stated the following:

“Every type of forest is distinct, and there is no commonly accepted definition of an old growth forest. British Columbia’s scientists have developed a working definition based on the age when the province’s different forest ecosystems typically begin to develop old growth characteristics…Since the 1990’s, the Government of British Columbia has used a definition that is based on the age of trees, biogeoclimatic zones and the frequency of natural disturbance, such as wind, fire and landslides. Generally speaking, most of B.C.’s coastal forests are considered old growth if they contain trees that are more than 250 years old, and some types of interior forests are considered old growth if they contain trees that are more than 140 years old .”

More than three years later, there is still no clear, cogent, binding and legally enforceable definition of “primary forest”, “old growth”, “old growth forest”, “old growth stand”, or “old growth tree” in any statute of British Columbia (8), despite the decades-long history of protests on old growth logging, the work and report of the OGSRP (9), and the further work and report of the Technical Advisory Panel (TAP) (10).

The OGSRP submitted its report to the BC government on April 30, 2020, but the BC government did not publicly disclose this report and its 14 recommendations until September 11, 2020, almost a month after the Ada’itsx/ Fairy Creek protest first erupted in mid-August 2020.

Faced with the growing protest movement in Ada’itsx/Fairy Creek and mounting pressure from ENGOs and the public, the BC government issued on September 11, 2020 a news release heralding “… a new, holistic approach as a first step for the benefit of all British Columbians to protect old-growth forests”, government’s intention to defer old forest harvesting in “… nine areas throughout the province totalling 352,739 hectares as a first step”, and “… further work to protect up to 1,500 exceptionally large, individual trees under the Special Tree Protection Regulation” (11). The minister responsible for Forests at the time of the release is quoted as saying:

“For many years, there has been a patchwork approach to how old-growth forests are managed in our province, and this has caused a loss of biodiversity.”

On September 11, 2020, the Old Growth Designated Area No.1 was established under the authority of section 169 of the FA for the purpose of effecting a short-term logging deferral on a limited area of Crown land within the Fairy Creek watershed, effective on September 11, 2020, and expiring on August 31, 2022 (12). Also on September 11, 2020, the BC government issued the Special Tree Protection Regulation (STPR) made under the authority of the Forest and Range Practices Act (FRPA), coming into effect on that same date (13).

The STPR defines specified trees in a Schedule as trees from 14 different tree species having an extremely large prescribed minimum diameter at breast height relative to their respective biogeoclimatic zone location. These “specified trees” and immediate surrounding “supporting trees” within a 56-metre radius from the “specified tree” are to be protected subject to exemptions granted at the discretion of the minister for “forest management”, and subject to “awareness” of the “specified tree”, as reported to the minister by “a responsible person for a primary forest activity” in the area where the “specified tree” is located (i.e., the holder of the tenure agreement in that area). The STPR does not therefore provide effective protection for most large to very large old growth trees, or even most of the exceptionally large iconic trees specifically listed in the BC Big Tree Registry managed by UBC’s Faculty of Forestry (14). The BC government stated that it would protect up to 1,500 exceptionally large, individual trees through the STPR, but it has not disclosed how many of them are protected more than 2 years later, or where they are actually located.

Subsequently, while facing continuing pressure from protesters, ENGOs and the public, the BC government issued another media release on June 9, 2021, announcing old growth logging deferrals respectively in the Fairy Creek watershed and Central Walbran areas “… spanning over 2,000 hectares” at the request of the Pacheedaht, Ditidaht and Huu-ay-aht First Nations “… for two years while the First Nations title holders build resource stewardship plans for their lands” (15). The successor Fairy Creek Watershed Designated Area No.1 was made under the authority of section 169 of the FA (16). Also on June 9, 2021, the minister made a new ministerial order under the authority of section 170 of the FA respecting the separately defined and mapped Zone A and Zone B of the Fairy Creek Watershed Designated Area No.1 (17). The order for Zone B has several specific added definitions for the determination of the “Suspended Harvest Area”. Also on June 9, 2021, the minister made another order in relation to the initial Old Growth Designated Area No.1 to repeal a previous ministerial order (18), apply the same added new definitions for the determination of the “Suspended Harvest Area”, and defer logging in the other designated areas in the province. The Fairy Creek Watershed Designated Area No. 1 is set to expire on June 8, 2023.

On June 24, 2021, the BC government announced the appointment of the 5-member Old Growth Technical Advisory Panel (TAP) to “… provide recommendations and advice on priority areas for development of deferrals” but stated that “Decisions on specific deferrals will continue to be made at a government-to-government level with First Nations rights and title holders” (19).

On October 20, 2021, the BC government announced and tabled Bill 23 in the Legislative Assembly of British Columbia (Forests Statutes Amendment Act, 2021) containing mainly extensive amendments to the Forest and Range Practices Act (FRPA) with a view to eventually replacing forest stewardship plans with forest operations plans, instituting a new forest landscape planning (FLP) regime, and allowing the eventual conclusion of decision-making agreements by the chief forester and/or the minister with individual Indigenous governing bodies (20). Bill 23 did not contain any provision dealing with old growth protection.

On November 2, 2021, the BC government publicly released the TAP’s report, announced its “… intention to work in partnership with First Nations to defer harvest of ancient, rare and priority large stands of old growth within 2.6 million hectares of B.C.’s most at-risk old-growth forests” (21), and further stated:

“The Province is requesting that First Nations indicate within the next 30 days whether or not they support the deferrals, require further engagement to incorporate local and Indigenous knowledge, or would prefer to discuss deferrals through existing treaties, agreements and other constructive arrangements.”

On November 15, 2021, the BC government announced and tabled Bill 28 in the Legislative Assembly of British Columbia (Forest Amendment Act, 2021) containing extensive amendments to the Forest Act with the addition of three new parts respecting the designation on Crown land of “special purpose areas” for First Nation, BCTS licence or community forest purposes (Part 15), compensation to forest tenure holders for these “special purpose areas” (Part 16), and area reductions to accommodate the First

Nation or BCTS licence purposes (Part 17) (22). Bill 28 did not contain any provision dealing with old growth protection.

On December 16, 2021, the BC government issued another media release (23), with the following statement:

“The Province is working to finalize deferrals with First Nations that indicated support for immediate deferrals. Deferrals can be implemented in two ways: by licensees agreeing to voluntarily pause harvest; or by a minister’s order under part 13 of the Forest Act, rescinding approved permits and preventing new permits from being issued. Deferrals will be announced as soon as they are implemented.”

The BC government next issued a media release on April 1, 2022 (later updated on May 11, 2022) stating that “Deferrals have been implemented on nearly 1.7 million hectares of old growth, including 1.05 million hectares of B.C.’s forests most at risk of irreversible loss”, including 1.05 million hectares through First Nations engagements on deferrals (24). The media release also stated:

“Government received responses from 188 out of the 204 First Nations in B.C. Eleven First Nations have either no old growth or no commercial forestry in their territory. The Province will continue to reach out to the five First Nations that have not responded. To date, 75 First Nations have agreed to defer harvest of at-risk old growth in their territory. Only seven First Nations have indicated they are opposed to any deferrals proceeding in their territory. More than 60 First Nations have requested more time to decide, including time to incorporate local and Indigenous knowledge. The Province continues to engage with these Nations.”

The BC government issued a media release on November 2, 2022 (later updated on November 3,2022), stating that there was a declining annual number of hectares of old growth logged in the province for the period from 2015 to 2021 (25). However, the Wilderness Committee BC pointed out on November 3, 2022, that the BC government was still not saying where old-growth logging was taking place, and mentioned that “… independent mapping, satellite imagery analysis and on-the-ground visits have confirmed ongoing logging in thousands of hectares of at-risk old-growth forests across B.C. (26)

The BC government held in Vancouver a meeting with selected invited representatives of some First Nations on February 2 and 3, 2023, and an “Old Growth Muti-Sectoral Forum” with selected invitees of various sectoral stakeholders on February 6 and 7, 2023, to inform on the process moving forward, report back on what was heard in the old growth strategic review (OGSR) and a First Nations Forestry Council forum held in November 2022, gather input on vision, principles, goals, and actions, and gather constructive and solution-focused ideas for the implementation of the action plan.

Shortly thereafter, on February 13, 2023, the BC government issued an Order in Council announcing the removal of the “without unduly reducing the supply of timber from British Columbia’s forests” clause in

sections of the Forest Planning and Practices Regulation (FPPR) (27), and two days later, on February 15, 2023, the BC government issued a media release announcing “… new measures to protect more old growth by fast-tracking innovation and co-developing new local plans with First Nations to better care for B.C.’s forests” (28). This was presented as significant progress on old growth protection, but a more in-depth review of this latest round of government statements and documents shows that it is not the case.

O.C. 76/2023 simply states that the BC government has decided to amend the FPPR by striking out the “without unduly reducing the supply of timber from British Columbia’s forests” clause from the prescribed government objectives in the FPPR for forest stewardship plans (FSPs) respecting soils (section 5), wildlife and the survival of species at risk (section 7 (1)), water, fish, wildlife and biodiversity within riparian areas (section 8), fish habitat in fisheries sensitive watersheds (section 8.1 (3)), water in community watersheds (section 8.2 (3)), wildlife and biodiversity at the landscape level (section 9), and wildlife and biodiversity at the stand level (section 9.1). The date for the coming into force of the amendments is not stated in O.C. 76/2023, the amending regulation has yet to be published in the B.C. Gazette, Part 2, and there is no published B.C. Reg. number at this time.

O.C. 76/2023 contains in its Schedule the following new section 115 to be added to the FPPR:

“Sections 5, 7 (1), 8, 8.1(3), 8.2 (3), 9 and 9.1 of this regulation, as they were immediately before the coming into force of this section, continue to apply to a forest stewardship plan that is in effect on the coming into force of this section.”

In plain language, what this means is that as, if, and when the proposed amendments to the FPPR come into force, all the forest stewardship plans in effect at that time will continue to be subject to the same “without unduly reducing the supply of timber from British Columbia’s forests” clause.

The BC government has not proposed to amend as well section 2 (1) (b) of the Government Actions Regulation (GAR) (29), which contains an almost identical clause saying that the minister of Forests must be satisfied that an order issued under sections 5 to 15 of that other regulation “would not unduly reduce the supply of timber from British Columbia’s forests”. Sections 5 to 15 of the GAR deal with resource features (section 5), lakeshore management zones and objectives (section 6), scenic areas and visual quality objectives (section 7), community watersheds and water quality objectives (section 8), general wildlife measures (section 9), wildlife habitat areas and objectives (section 10), wildlife habitat features (section 11), ungulate winter ranges and objectives (section 12), species at risk, regionally important wildlife and ungulate species (section 13), fisheries sensitive watersheds and objectives (section 14), and temperature sensitive streams (section 15).

In plain language, this means that the minister of Forests remains constrained by the same obligation not to “… unduly reduce the supply of timber from British Columbia’s forests” when making ministerial orders relating to these key non-timber values in forest stewardship plans and practices.

The BC government’s latest media release fails to mention that the objectives set by government for timber in section 6 of the FPPR are and will remain unchanged. This section states the following:

“6. The objectives set by government for timber are to

1. maintain or enhance an economically valuable supply of commercial timber from British Columbia’s forests,

2. ensure that delivered wood costs, generally after taking into account the effect on them of the relevant provisions of this regulation and of the Act, are competitive in relation to equivalent costs in relation to regulated primary forest activities in other jurisdictions, and

3. ensure that the provisions of this regulation and of the Act that pertain to primary forest activities do not unduly constrain the ability of a holder of an agreement under the Forest Act to exercise the holder’s rights under the agreement.”

O.C. 76/2023 and the BC government’s other measures announced on February 15, 2023, show that the BC government intends to keep its existing “belt and suspenders” regime in place for favouring timber extraction in forest stewardship and forestry practices, but will drop the suspenders from only one of its shoulders (the FPPR) at some undetermined time in the future once forest stewardship plans are all phased out, and most if not all of what little remains of the unprotected old growth has actually been logged.

The BC government’s latest media release fails to mention why there is still no objective prescribed by the BC government for the protection of old growth forests in any of its forest regulations under the authority of the FRPA.

Also, one can only wonder why the BC government has not dealt in O.C. 76/2023, or in another Order in Council, with the Fairy Creek Watershed Designated Area No.1, which is due to expire on June 8, 2023, and the Tree Designated Area No. 1 and the Tree Designated Area No. 2, which are both due to expire on July 5, 2023, leaving these small areas of old growth and exceptionally large iconic trees no longer protected from logging after their expiry dates.

Almost three years ago, the OGSRP report called for two immediate responses by the BC government:

Recommendation 6. entitled “Immediate Response to Ecosystems at Very High Risk” (30), and Recommendation 7. entitled “Compliance with Existing Requirements” (31). The subsequent report of the TAP, publicly released on November 2, 2021, clearly recommended to “Defer harvest (i.e., no development or harvesting) in all mapped highest-priority at-risk old forests” and to “Defer harvest in the most intact watersheds for each region and ecosystem” in order to support urgent conversations between Provincial and First Nations. These recommendations called for immediate government protective action, not for government standing by while its strategy continues to undergo more consultation and discussion.

Instead of immediate protective action, the BC government states in its latest media release:

“At the centre of the eight-point plan is $25 million for new Forest Landscape Planning (FLP) tables that will drive improved old-growth management while incorporating local knowledge and community priorities. Enabled by 2021 amendments to the Forest and Range Practices Act, forest landscape plans are a more comprehensive and inclusive approach to forest stewardship that will replace existing, industry-developed plans”.

The amendments to the FRPA in Bill 23 passed on November 23, 2021, for the future Forest Landscape Planning (FLP) regime have still not been brought into force by the BC government, nor is there any indication as to when they will be. At any rate, the further protracted new process of just setting up and holding these future FLP tables will not actually prevent harvesting in old-growth forests in the meantime as the BC government claims in its latest media release.

The BC government’s February 15, 2023, media release does not even refer to government’s two previous media releases on old growth protection (32), and does not provide a detailed up-to-date breakdown of the nature, location, areas, and duration of temporary old growth logging deferrals that have “… now been implemented on approximately 2.1 million hectares of old growth.”

In short, none of the measures announced by the BC government on February 15, 2023, actually implement any of the immediate protective actions recommended by the OGSRP and the TAP reports.

While reporting annually the very large volumes of raw log exports from the coastal and interior regions to foreign countries involving mostly British Columbia’s older-growing and more valuable tree species (33), the BC government apparently still does not specifically mark, track, and audit the location, diameter and actual volumes of raw logs exported abroad, nor does it do so for their shipping and final destination within the province or within Canada. The annual British Columbia Log Export Permit Report prepared by the Economics and Trade Branch of the Ministry of Forests (34) contains a cryptic qualifying note stating that:

“Federal and Provincial volumes are based on export permit data as of the date and time of revision and are subject to corrections and final reconciliation. Not all volumes permitted are exported.

In order to fully understand where we currently stand on priority high-risk old growth protection, we must look not only at the present patchwork of the BC government’s short-term protection measures, continuing procrastination on the immediate implementation of key recommendations from its own OGSRP and TAP experts, and the absence of permanent protection measures, but also at the continuing lack of binding financial commitments by the BC government to fund these measures. The federal government has specifically committed over 18 months ago $50 million of federal money for a new old-growth protection fund to be matched by the BC government, which has yet to commit its part of the new fund. The latest BC government published documents on its 2003 provincial budget and forecasts (35) are silent on this or other specific funding commitments urgently needed to support priority high-risk old growth protection measures going forward.

Finally, but not least, the BC government has yet to table a Bill in the Legislative Assembly of British Columbia to address directly, specifically, and conclusively the immediate and permanent protection of the most at-risk primeval and old growth forest stands remaining in the province (36). The majority BC NDP government could quite readily protect without any further delay all the few remaining unprotected high-risk old growth forest stands by tabling such a Bill amending forest legislation before the Legislative Assembly of British Columbia with a legally binding and enforceable definition that simply refers to an attached Schedule incorporating the detailed maps already developed by the TAP for its October 2021 report (37), together with a clear agreement and funding mechanism for the First Nations to opt in on the permanent protection of the mapped areas in the new legislation. The BC government has stated almost a year ago that 75 First Nations have already agreed to defer harvest of at-risk old growth in their territory. Nothing precludes the BC government from proactively offering and concluding agreements with affected First Nations to finally conserve and protect their respective high-risk old growth forest stands based on the TAP maps, with a fully committed BC government funding scheme, before engaging in another protracted and complex multi-year new forest landscape planning exercise and allowing in practice the continued depletion of these irreplaceable stands.

The BC government will no doubt continue to insist that it must first consult with First Nations on its future Forest Landscape Planning (FLP) scheme. However, this FLP scheme, which has yet to come into force, is another putative and bureaucratic initiative announced with the tabling of Bill 23 at the Legislative Assembly on October 20, 2021, without prior meaningful public consultation. One cannot help but note that the BC government did not even see the need for any prior meaningful consultations with First Nations before giving them a 30-day notice to agree or disagree on protection of the 2.6 million hectares of priority high-risk old-growth mapped by the TAP (38), or speedily passing Bill 23 on November 23, 2021, proposing substantial amendments to the FRPA, or precipitating the passing of Bill 28 on November 25, a mere 10 days after it was tabled, which proposed substantial amendments to the FA, including a very elaborate and detailed new government compensation regime specifically for forest tenure holders as, if and when new ‘Special Purpose Areas” would be established by the BC government once the new Parts 15 to 19 are eventually brought into force and effect.

In conclusion, the arcane piecemeal regime of temporary short-term and limited logging deferrals through the use of sections 169 and 170 of the Forest Act, the spurious and ineffective Special Tree Protection Regulation, the key recommendations of the OGSRP and the TAP not followed by immediate, binding and enforceable permanent protection measures, the never ending succession of forums, panels and tables, and the continuing lack of clear and binding BC government funding commitments to support old-growth protection measures, are all evidence of a systemic pattern of procrastination, stonewalling and obfuscation by the BC government on the permanent protection from logging of the 2.6 million hectares of priority high-risk old-growth forest identified and mapped by the TAP over 16 months ago, with no end in sight.

Notes