International courts and BC teachers try to make up for government and corporate abuse of human and environmental rights.
THE EXTRAORDINARILY RICH FORESTS of Vancouver Island have been fought over since James Douglas had 14 Vancouver Island chiefs sign a blank piece of paper. The frustration in losing virtually every battle by four generations of First Nations and concerned citizens has bred some sophisticated new approaches to the old task of protecting Indigenous rights and nature. These reach out internationally and to corporate shareholders. As a result, 2014 is off to a difficult start for Island Timberlands, the corporation most in the news these days for questionable logging practices.
First, a resolution on an ethical investment issue was passed unanimously on January 31 by the BC Teachers Federation. The resolution urged BC Investment Management Corporation (bcIMC), which invests the teachers’ pensions and is a majority shareholder in Island Timberlands, to send the company back to the planning table over its liquidation of old growth forests on Vancouver Island, specifically around Port Alberni (near Cathedral Grove and McLaughlin Ridge). This resolution built on a 2012 recommendation that “the BCTF seeks legislative or regulatory changes that would clarify the definition of fiduciary duty to include consideration of long-term financial sustainability through environmental, social, and governance responsible investing principles.” Since pensions are fuelling the logging rates, this hits at the heart of the problem.
In support of their resolution, members of the BCTF used the argument presented in the 2008 Supreme Court of Canada judgment that the directors must resolve to balance stakeholder interests “in accordance with their fiduciary duty to act in the best interests of the corporation, viewed as a good corporate citizen.”
This leaves it wide open for the courts and citizens to define “a good corporate citizen.”
Another case brought by Robert Morales, chief negotiator for six southeast Vancouver Island First Nations of the Hul’qumi’num Treaty Group (HTG), might do just that at the international level. The Inter-American Commission for Human Rights (Focus, November 2011) will assess the culpability of Canada and three corporations (including Island Timberlands) who are the “successors in interest” in breaching human rights. Morales explains that after the original application to the international tribunal was filed in 2011, the government of Canada objected on the grounds that the native groups had not exhausted all domestic remedies.
Morales states, “We argued that no Canadian court has ever recognized Indigenous people’s rights to private property. The Inter-American Commission agreed with us, and were satisfied that there were no domestic remedies. Canadians don’t realize the gravity of this statement. Here is an international body of human rights experts stating that in Canada a situation exists where a group of people’s human rights cannot be effectively dealt with under the existing legal and political structures here.” The case is now awaiting the final hearing—and we can anticipate that this court’s judgment might point to a lack of good corporate citizenship.
Island Timberlands’ third worry is a cluster of community groups up and down the island, who, under the slogan “No community stands alone,” have been seeking an improvement in forest practices of the company. On February 4, Jane Morden, spokesperson for Watershed Forest Alliance out of Port Alberni, released in a letter to bcIMC and IT “the evidence for our concern regarding Island Timberlands’ logging practices on private lands in the Alberni Valley area.”
In the documents submitted to bcIMC and IT, the Alliance detailed the history of the IT lands in question. In 2004 the provincial government removed 74,000 hectares of Island Timberlands private land from Tree Farm License 44 with a letter of intent that grandfathered the protection of 2400 hectares of critical wildlife habitat (old growth) for wintering ungulates (deer and elk) and the nesting Northern Goshawk—a red-listed species at risk. After long negotiations between 2005 and 2008, and upon acquiring these lands, IT agreed to the boundaries of the 2400 hectares of ungulate winter range (UWR) and wildlife habitat area (WHA) for goshawk as the minimum area required for protection. Shortly after, however, IT began clearcutting these lands.
In a document obtained by FOI, government scientists Darryn McConkey and Erica McClaren stated “negotiations ceased because we could not agree on the management regime within these boundaries. Island Timberlands wanted to extract timber resources from within UWRs and WHA 1-002 and Ministry of Forests could not scientifically rationalize how the quality of these areas could be maintained.” Ministry scientists go on to say that IT’s proposed management “did not incorporate any input from the Ministry of Environment” and “is not supported by the best available science.”
Island Timberland’s spokesperson Morgan Kennah, in answer to this claim of unscientific forest practices, stated IT stands by its forest certification process, Sustainable Forestry Initiatives (SFI). SFI has received strong criticism for being an industry-financed certification system. ForestEthics, for example, has stated, “The SFI certification program actually assures its timber company customers that it does not prohibit logging in old growth forests, wild areas that do not currently have roads, or other places in which ecological values are especially rich.”
When asked about these critiques and industry ties to SFI, IT’s Kennah responded, “Many people would say that it [SFI] is independent. The board is made up of economic and environmental interests. We feel strongly, as [do] others, that it is not controlled by industry.” On the SFI board various non-profits are represented, including Bird Studies Canada whose website states that SFI is a Gold Donor with donations of over $50,000 for projects like their Bird Atlas, which ironically would include the goshawk nesting site that the Alliance seeks to protect. Bird Studies Canada President George Finney, defended his role: “From Bird Studies Canada point of view, we are just giving them bird information and how they can be less detrimental to various bird populations.” He said, “Complaints could be registered and they will be investigated.”
The Kwakiutl First Nation also added their voice to the chorus of disenchanted Vancouver Islanders with an ongoing peaceful protest when Island Timberlands started to log cultural sites, traplines and cedar trees in their territory. The Douglas Treaty (signed 163 years ago to the day of their February 9 press release) stipulated “that lands and waters were to be set-aside for the exclusive use by Kwakiutl to maintain livelihood ‘as formerly’ and for ‘generations to follow.’” Chief Coreen Child of Kwakiutl First Nation stated: “The people of Kwakiutl have been left with no choice but to protest and stop Canada and BC from allowing Companies to cut and remove cedar trees from our land.” IT’s response to this was: “We have done due diligence by sending in an archaeologist to do an Archaeological Impact Assessment with members of the band attending.” Focus asked to view the report or the terms of reference, but was refused. Chief Child argues that these studies don’t address cultural land-use issues granted in the Douglas Treaty.
Morales and the Hul’qumi’num Treaty Group are also pointing to these cultural land-use issues as the nub of the case: “The Inter-American Commission is not judging whether the action of transferring the land to private corporate hands was legal or not, but whether the ability of the people to practice their culture has been significantly affected by this action today.” He argued that the privatization resulted in a situation in which First Nations cannot practice their culture due to the losses that they have sustained. “How can you teach your children how to build a canoe when there are no longer any cedar trees? That is the loss that the Inter-American Commission is considering.”
Finally, Cortes Islanders, who have successfully fended off Island Timberland’s clearcutting plans for the old growth on their island to date (Focus, January 2013), celebrated—after 20-plus years of negotiation—realization of a community forest agreement (CFA). The agreement covers Crown lands adjacent to IT’s land and includes equal partnership with the KIahoose First Nation. The partnership is in the process of developing a Community Forest Operating Plan that reflects community values and will guide forest management within the CFA. Cortes Islanders had asked IT to bring their own forestlands under a similar value-added ecosystem management and certification system, Forest Stewardship Council, but IT has consistently rejected that idea, citing increased costs. Today, with shareholders demanding this type of ethical management, IT’s excuse of fiduciary responsibility is sounding less and less convincing.
Documenting all these examples of citizens fighting back is Dan Pierce who, with producer Cari Green (of the award-winning documentary The Corporation), is developing a feature documentary (through crowd sourcing) on these initiatives. That gives hope to the idea that community involvement could finally supplant the old corporate model—from how we invest our pensions and how we run our timber companies to how we fund our films. See www.heartwoodfilm.com.
Briony Penn has been writing about controversial issues surrounding bcIMC and Island Timberlands since 2006.