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Fairy Creek Got an Old-Growth Deferral. Now Some First Nations Call for More

Putting a stop to at-risk old-growth logging is just the first step, say leaders. The real issue is jurisdiction.

Zoë Yunker 13 Aug 2021The Tyee

Zoë Yunker is a Vancouver-based journalist writing about energy and environment politics. She works with The Tyee as a Tula Foundation Immersive Journalism fellow.

Splatsin First Nation Kukpi7 Wayne Christian knows the migration patterns of the last remaining southern mountain caribou in his territory in southeast B.C. — they spend their winters up in the mountains. He knows the way that water travels from glaciers to the region’s streams and back again. He knows what the region’s forests look like when they’re healthy.

Last month, he saw something he’d never seen before. The shiny green leaves of the cottonwood trees that make up part of the forest’s understory had turned a dull, parched grey — almost dead.

“I was thinking, what’s going on here? There is a signal here. Pay attention to this.”

Christian was on his way to lead a ceremony beneath a cluster of ancient cedar trees, marking the Splatsin Nation’s support for the blockades led by a group called Old Growth Revylution that opposes old-growth logging in the region.

For Christian, the fate of the cottonwoods and old-growth forests are intertwined. As the territory dries and wildfire eviction notices loom, Christian is thinking about water. Logging trees and clearing the underbrush makes the soil less able to absorb water, leaving the land more exposed to the wildfires that burn white hot around the territory. Next spring, rain will deliver ash and silt into the creeks, choking out the fish.

“It really is about the cumulative effect,” says Christian. Protecting the old growth is important, he says, “but it’s really about protecting the water, protecting the animals, protecting the fish. Those trees are connected to everything.”

Blockaders at Bigmouth and Argonaut Creek attached tobacco ties to cedar trees to mark a ceremony that happened earlier that day to protect the forest and the trees, according to Splatsin Kukpi7 Wayne Christian. Photo by Maia Read.

The Splatsin Nation is one of many First Nations calling for sweeping change to the way B.C.’s forests are managed, including the Kwakiutl, the Squamish, the Tla’amin and the Gitxsan Wilp Git’luuhl’um’hetxwit.

For these nations, protecting remaining at-risk old growth is just the first step.

In the 1990s, the War in the Woods brought international attention to Vancouver Island’s Clayoquot Sound. Today, old-growth forests have once again risen back into the public consciousness across the province.

That’s partially due to a growing recognition of just how little remains — less than three per cent of the most ecologically rich, productive forests that we tend to think about when we hear the term “old growth.”

In 2019, the B.C. government commissioned a strategic review panel on old growth to chart a path forward for managing the province’s forests.

The report, titled “A New Future for Old Forests” and released internally to government in April 2020, urged a “paradigm shift” for forests. It called on the government to “engage the full involvement of Indigenous leaders and organizations” in reviewing the report and in any policy development and implementation.

Critically, the report set out a six-month timeline to defer logging in old-growth forests at risk of irreversible biodiversity loss. That includes places at risk of being harvested, such as ancient forests, rare and/or large intact ecosystems. Once deferred, those regions would be out of the market until a management plan is developed.

During his election campaign in fall 2020, Premier John Horgan released the report to the public, promising to implement all of the panel’s 14 recommendations. But so far, the province is behind schedule.

In the meantime, a fight over logging in the Fairy Creek headwaters and the surrounding area has reached a fever pitch. Almost a year after the movement’s first blockade, nearly 500 arrests and months of tactical police intervention placed Fairy Creek at the forefront of the new war in B.C.’s woods.

In June, the Pacheedaht, Ditidaht and Huu-ay-aht First Nations demanded a moratorium on old-growth logging for two years in tracts of Fairy Creek and the Central Walbran through the Hišuk ma c̕awak Declaration, which aimed to retake control of over their ḥahahuułi (traditional territories). In their announcement, they asked the Fairy Creek protesters to stand down and to respect the nations’ right to conduct forestry in the remainder of the territory.

Two days later, backlit by a photo of a clearcut beginning to show the green stubble of newly planted trees, Premier John Horgan stood at a podium to announce that the province would abide by the nations’ request. “This is critically important,” he said. “Most importantly [because] we have allowed, as a province, the titleholders to make decisions on their land.”

But for the other nations wanting deferrals, a response has yet to come.

In an emailed statement, the Ministry of Forests, Lands, Natural Resources and Rural Development said that it has “received several requests from First Nations regarding deferrals,” and that it is “committed to working with all Nations where there are old-growth ecosystems at high and near-term risk of irreversible biodiversity loss.”

Union of BC Indian Chiefs president Grand Chief Stewart Phillip questions this delay.

“Their policy is talk and log,” Phillip says. “They’re willing to make grandiose public statements about deferrals, but the practice is that they are still out there actively logging old-growth forests.”

A creek runs alongside forest in the Squamish Nation’s territory. Photo courtesy of the Squamish Nation.

Days after the province announced the Fairy Creek deferrals, the Squamish Nation notified the B.C. government that it intends to defer old-growth logging in the territory.

“We were concerned that they were going to renege on their promises,” says Squamish Nation Coun. Khelsilem. “We just saw really bad faith behaviour coming from the government. And if we didn’t speak out, there was a chance they were just going to walk away from their commitments to Indigenous peoples.”

Since then, the Squamish Nation has been talking to the province and is crafting a technical proposal to identify areas it wants to protect. It’s yet to be seen whether the province will implement their deferrals, said Khelsilem.

In July, the UBCIC released the “Protect Our Elder Trees Declaration,” urging immediate deferrals in remaining, at-risk old-growth forests as defined in the strategic review report, as well as the province’s adoption of the remaining recommendations put forward. The UBCIC has called on other First Nations across the province to adopt their declaration.

“Our elder trees are vital for the health and future survival of our forests — their survival ensures we will have forests that are not only capable of sustaining the cultural needs and livelihood of Indigenous peoples but are more resilient to wildfires and climate change,” said Kukpi7 Judy Wilson, secretary-treasurer of the UBCIC in a statement.

Hereditary Chief David Mungo Knox assesses a creek in Kwakiutl territory that has been logged up to the water. Logging companies are often not required to maintain any buffer when logging next to small tributaries. Photo by Mark Worthing.

More than just big trees

Dressed in a green raincoat to ward off the damp February weather on northeastern Vancouver Island, Hereditary Chief Walas ‘Numugwis, David Mungo Knox, stood beside a tributary to the Cluxewe River, one of the five watersheds in Kwakiutl territory.

Behind him, a tangle of fallen hemlock and spruce trees cut across the water. It’s what was left of the thin barrier separating the Cluxewe from the clearcut shearing the mountain behind it.

Knox remembers looking into the river where the salmon had spawned six months before. “I looked at one side, I saw the ancient forest, and on the other side, I looked and it had been deforested right to the river. It was devastating…. The salmon won’t spawn when the river is hot.”

Salmon, Knox says, face myriad challenges on the territory — everything from the impacts of logging to salmon farms. Intolerant of heat, they rely on the shade from trees above creeks and rivers for their survival, and on nutrients from surrounding forests to support the invertebrates they eat.

In this region of the Cluxewe, logging companies can log up to 20 metres from the creekbed. That buffer is designed to help prevent disturbances and regulate water temperature. But in this case, it wasn’t enough to protect the stream from “blowdowns” — the newly thinned patch of trees was left vulnerable to the elements, particularly the heavy storms that hit the region last November, and many of the trees fell.

Lukas Malvet, an environmental consultant who works with the nation and documents logging impacts in the Cluxewe, can list at least four blowdowns in the lower kilometres of the watershed that he works in. “It’s a grocery list of problems that ensue from things like that happening,” Malvet says.

In smaller creeks and streams, Malvet says, the province allows companies to log right up to the water.

Four years earlier, a landslide occurred because of road building to access cutblocks on steep slopes, sending rocks and debris directly into the Cluxewe. This kind of incident further damages salmon habitats: deposits of big rocks remove holding pools and spawning areas, and fine sediment can suffocate salmon eggs relying on oxygen in the water.

Malvet has seen other slides and sloughs throughout the Cluxewe. In one region a few kilometres up from the headwaters, sediment in the river caused it to change course entirely, he says.

Logging also threatens the community’s cultural traditions. Knox, a master carver, teaches youth the practice. Lately, he’s found it hard to find wood to carve in the surrounding regions. He sometimes salvages old-growth wood from slash piles sitting in the midst of clearcuts — wood that would otherwise be burned.

A recent study on cedar in five neighbouring Kwakwaka’wakw Nation territories, which cover around 21,604 square kilometres, found only 350 viable trees for carving. Of those, only two were viable for large pieces like canoes and totem poles.

Like Christian, Knox’s fight to save old growth is also about protecting water, the salmon and his Kwakiutl culture. “Those ancient trees — we call them our tree of life, because everything is connected,” he says. “Everything.”

The Kwakiutl Nation has been asking for an end to old-growth logging for well over a decade, according to Knox. The nation is a signatory to the Douglas Treaty, which guarantees its right to fish and maintain its village sites across a coastal strip of the territory reaching from current-day Port McNeill to Port Hardy on the northeast coast of Vancouver Island.

In 2015, the B.C. Court of Appeal found that the province had breached its responsibilities by denying the Kwakiutl Nation’s title and treaty rights by failing to meaningfully consult the nation while making decisions about forestry in its territory.

The court encouraged the government to carry out deep consultations with the nation about its treaty rights and its Aboriginal Title rights. “It cannot be said that offering the [Kwakiutl First Nation] an opportunity to participate in fundamentally inadequate consultations preserves the honour of the Crown,” the judgement read, in part.

Five years later and with no changes in sight, Knox penned a letter to Horgan before his election last October. Receiving no response, he wrote another letter demanding immediate deferral of all old-growth logging in the Douglas Treaty areas, and in all old-growth forests surrounding watersheds leading into rivers like the Cluxewe.

“Our own laws have been violated, now it’s time for your laws to step into alignment with our nation’s requirements,” the letter stated.

To date, those deferrals have not been granted.

The issue is urgent, Knox says. On recent drives through the territory, he’s noticed flagging tape on trees on the other side of the Cluxewe River adjacent to the blowdown, indicating that side, too, could soon be logged.

“We’ve got to halt it. We’ve got to stop it now,” he says.

David Mungo Knox stands in the middle of a clearcut in Kwakiutl territory. Photo by Mark Worthing.

‘It’s just this ridiculous notion of consent’

As one half of the strategic review panel that produced the “A New Future for Old Forests” report, Garry Merkel heard a lot of feedback on B.C.’s approach to old growth. A professional forester and Tahltan Nation member, Merkel is familiar with calls for immediate deferrals.

“I appreciate why people are doing that. And I empathize,” Merkel says. “They’re just seeing stuff disappear here — that needs to stop now to give us some space. And they’re right.”

But Merkel thinks a one-off deferral process isn’t the answer.

“It’s not in any of our interest to have this as a knee-jerk, one-off conversation 200 times,” he says. “It needs to be done in a way that is smart and respects the process of government-to-government.”

A one-off approach could lead to gaps and inconsistencies in what gets protected and what doesn’t, Merkel says.

Merkel understands the province’s decision to implement an immediate deferral for the Pacheedaht, Hu-ay-aht and Ditidaht. “Fairy Creek needed to turn the heat down, that just had to happen, because it was really hard to move on everything else with this kind of thing looming there,” he says.

And he says that further deferrals are on the way. Merkel is a member of the Old Growth Technical Advisory Panel, brought together by the province in June to advise the government on the most at-risk ecosystems in need of immediate protection.

“We’re deep into the analysis right now,” Merkel says, adding that their information release to the government is “imminent.”

Once the areas identified for potential deferrals have been sent to the government, the province will enter into discussions with First Nations.

“There will likely be a prioritization scheme,” said Merkel. That scheme would assess ecosystem risk and the level of interest from nations in creating immediate deferrals.

After that, the province will start working with the logging companies whose cutblocks include the deferral regions. Merkel thinks the province will start out by asking for companies to voluntarily agree to forgo their cutblocks. If companies co-operate, says Merkel, they’re more likely to receive government support and co-operation.

Above all, the province says it will gain First Nations’ consent before any deferrals on their territories are implemented. “Decisions on deferrals will continue to be made at a government-to-government level with First Nations rights and title holders,” said B.C. Ministry of Forests, Lands, Natural Resource Operations and Rural Development in an emailed statement.

In a much-criticized announcement this June, Horgan likened the imposition of logging deferrals on First Nations to a “return to colonialism” characterized by the discovery of unmarked graves at the former residential school in Kamloops.

But the province’s assertion that deferral implementation needs to be consent-based does not stand up to scrutiny, according to some Indigenous leaders who have recently called for deferrals.

The “opt-in method,” Khelsilem says, is an “offensive approach to Indigenous rights.” It allows companies to keep logging without having gained the nation’s permission to log in the first place, he points out.

“It’s just this ridiculous notion of consent,” he says, “where you have a government that is — to use a metaphor — attacking our territories. And you can never say, ‘I’m going to continue to attack you and assault you, but I need your consent for it to stop.’”

Khelsilem says that is particularly true for nations who don’t have many resources, including those whose forests and fish stocks have been depleted through over a century of colonialism.

Horgan’s announcement presented a “modernized approach” to B.C.’s forestry, which includes doubling the number of tenures that First Nations hold, making it easier for First Nations to participate in the forest industry.

But Grand Chief Phillip takes issue with this commitment in the absence of ecosystem protections.

“It’s insidious,” he says. “The province can hide behind First Nations logging operations by saying they have the right to do what they’re doing. It’s exploiting the poverty of First Nations because they know the socioeconomic conditions in our community are beyond dismal.”

Instead of approaching deferrals on a nation-by-nation basis, the UBCIC’s Elder Trees Declaration requests an immediate, provincewide deferral in the most at-risk environments, with the option to opt into permanent protection after nation-by-nation discussions with First Nations.

This distinction is important for Phillip, who says laws that protect ecosystem health are missing from the province’s rhetoric around Indigenous rights.

“There must be truth before reconciliation, and we need to speak the truth here,” he says. “Indigenous rights do not give us the right to destroy the land. Indigenous rights should give us the opportunity to fulfill our sacred cultural duties to defend Mother Earth.”

Phillip wants to see the province reverse its priorities when it comes to forest management, putting environmental concerns before economic values.

Merkel shares Phillip’s concerns about the values underpinning the industry. “We manage our forests for timber, subject to constraints,” he said. “We need to manage for ecosystem health as our priority, period.”

But he also sees the value of a slower, more methodological approach to old-growth deferral to create more buy-in from nations across the province, which will in turn improve the province’s accountability.

“It builds us a really solid rudder,” he said, describing a shift that can withstand the changing winds of electoral politics. “We’re trying to manage 1,000-years-old ecosystems on a four-year political cycle, and that’s just not working.”

Merkel sees a common denominator in both the opt-in and immediate deferrals approaches. Both approaches, he says, recognize that rare ecosystems need to be protected. “The question is now — how can we work through the process?”

More than just deferrals

For Khelsilem, old-growth deferrals are just the first step in a much bigger needs shift for forestry. He wants to see the province transform its forest industry to align with the United Nations Declaration on the Rights of Indigenous Peoples.

That’s something that First Nations communities, organizations and the First Nations Forest Council have long called for. For Khelsilem, it would mean amending the Forest Act, redesigning tenures and revenue sharing, and ensuring that First Nations are statutory decision-makers over harvesting in their territories.

In 2019, the B.C. government passed the Declaration on the Rights of Indigenous Peoples Act in order to bring its laws and policies in line with UNDRIP.

This legislation confers the right for Indigenous peoples to “own, use, develop and control” their territories and resources. It also means that Indigenous people have the right to conserve and protect the environment and the productive capacity of their territories.

That’s not what’s happening on the ground, says Phillip.

“The Trudeau and the Horgan government are long on rhetoric and short on substance when it comes to implementing the principles of UNDRIP when it comes to Indigenous jurisdiction over land,” said Stewart. “That’s what the battle is about — jurisdiction.”

For Wayne Christian of Splatsin First Nation, deferrals are an intermediary step to allow for those larger conversations around decision-making.

“We need deferrals so that we can sit down with the province, and say, this is how we want to manage this area with, in this case, the Crown, and this is how we want to do it,” Christian says.

This doesn’t mean shutting down logging altogether, says Christian, though it might mean getting less revenue from the forest to maintain biodiversity.

Six years ago, the BC First Nations Forestry Council presented six goals to bring B.C.’s forest industry in line with UNDRIP. The first of those goals — shared governance — is just one of the objectives the province has failed to implement, says Charlene Higgins, chief executive officer of the BC First Nations Forestry Council.

That failure became particularly apparent through the province’s recent plans to modernize forestry. The province offered a one-month engagement period for First Nations to weigh in during the summer.

The BC First Nations Forestry Council requested that the engagement period be extended until the end of the year.

The province’s plan is based on an “Intentions Paper” that was developed without consulting or engaging First Nations, says Higgins.

While the paper addresses one of the council’s goals — tenure reform — Higgins says it misses other elements like legislative reform and fails to address First Nations’ requests to have a say in how much harvesting occurs in their territories under the timber supply review process.

“We’ve got a government that is still making changes to forest policy and practices without the meaningful involvement and input of First Nations,” says Higgins.

While the province is providing substantial engagement opportunities to some nations, Higgins adds, that’s not true across the board.

851px version of GitxanWilpGitluuhlumhetxwit.jpeg
Kolin Sutherland-Wilson, Denzel Sutherland-Wilson and Elders Elaine Gunanoot, Sheila Gunanoot and Art Wilson sit on the foundation for a cabin the family is building on the house group’s traditional territory. Photo by Amanda Follett Hosgood.

‘It boils down to our law around harvesting’

Members of the Wilp Git’luuhl’um’hetxwit, a house group of the Gitxsan Nation, aren’t waiting any longer.

Last winter, Wilp Git’luuhl’um’hetxwit spokesperson Denzel Sutherland-Wilson discovered three massive old-growth cedars lying freshly cut on the forest floor near Date Creek Forest Service Road, in a neighbouring Wilp’s Lax’yip (territory).

The fallen stumps punctuated a strip of clearcut leading up to them, where hemlock and other, less valuable wood was piled up to get hauled away over the coming year. The old cedars, however, disappeared the next day. Sutherland-Wilson loaded the stumps into his four-wheeler and hauled them back to his community to show what was happening nearby.

“People were devastated, but they weren’t surprised,” he says.

When Sutherland-Wilson finally got access to B.C.’s five-year forestry plan, he saw an expanse of roads planned throughout the territory, indicating the logging activity yet to come.

“That was honestly the catalyst for me,” Sutherland-Wilson says. “They’re making all these plans for our territory without even making anyone aware or involving anyone in any planning.”

This spring, members of the Wilp Git’luuhl’um’hetxwit set up a checkpoint, reclaiming jurisdiction over who enters the territory. Since then, they’ve followed their own laws when it comes to resource extraction.

“It boils down to our law around harvesting,” Sutherland-Wilson says. “You can’t harvest on someone else’s Lax’yip without their consent. If harvest does happen, you need their consent, and give a portion of what you harvest to the Wilp that you’re harvesting on their Lax’yip.”

Sutherland-Wilson and other members of the Wilp Git’luuhl’um’hetxwit are building cabins to permanently relocate to the region.

The B.C. government has met with the Wilp’s leadership, proposing the possibility of an old-growth moratorium in the territory, Sutherland-Wilson says. But these limited-term moratoriums miss the point, he says.

“They’re like a little bucket they’re trying to throw on a giant fire,” he says. “Ultimately, when it comes down to it, they’re not gonna stop coming for our logs.”

Instead, Wilp Git’luuhl’um’hetxwit is returning to their own legal system on the territory.

“We have a path laid out in front of us, that was the way that our ancestors managed the territory,” Sutherland-Wilson says.

For Grand Chief Phillip, direct action is an appropriate response to the province’s inaction.

“That’s pretty much the only card we have left,” he says. “Occupy the land.”

Reflecting on occupations throughout the decades where nations took back control of their territories and forest operations, Stewart sees continuity in today’s actions. “This fight has been going on for a long time,” he says. “The one heartbreaking factor is that clear-cut logging is going on unabated.

“This issue is not going to go away.”  [Tyee]

Read more: Indigenous, Environment

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