Court rejects ELF petition against Clack Creek logging

A BC Supreme Court judge has rejected Elphinstone Logging Focus’s (ELF) petition against the sale of cutting rights in an area known as the Clack Creek Forest.

ELF filed the petition in April, with a West Coast Environment Law grant to cover legal fees.

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The reasons it cited that logging shouldn’t go forward include: the cutblock falls within the area designated in the Roberts Creek Official Community Plan as the preferred area to expand Elphinstone Provincial Park; it lies within territory subject to the new land use agreement being negotiated between the province and shíshálh Nation; studies recommend setting the area aside to protect rare plant communities.

“There is ample information available to BC Timber Sales regarding the value of this forest and the availability of other timber outside the proposed park expansion area,” said Matthew Nefstead, the Victoria-based environmental lawyer retained by ELF when the petition was filed.

Despite the court challenge, BC Timber Sales (BCTS) continued with the auction and awarded cutting rights for the cutblock known as A93884 to a Squamish-based company, Black Mount Logging, giving it the right to remove roughly 29,500 cubic metres of timber. ELF has been calling on Forest Minister Doug Donaldson to offer the company a different area to log.

The group has also staged “Living Forest Institute” classes in the cutblock and, on Oct. 19, ELF supporters placed more than 1,000 felt hearts on the trees in the cutblock.

In a decision handed down Nov. 22, Supreme Court Justice Robert Punnett said the local BCTS manager overseeing the cutblock auction “was alive to the issues and matters to be considered” and acted properly.

Punnett said of the argument that the decision to auction cutblocks in the area is inconsistent with the ongoing Modernized Land Use Planning (MLUP) process with the shíshálh Nation, “The petitioner’s position that an MLUP had to be undertaken before timber could be harvested in the Clack Creek TSL is not supported in law or principle… Significantly the Chief and Council of the shíshálh Nation have confirmed their support for the harvesting.”

ELF also argued that other blocks, outside the proposed park expansion area, would be more appropriate to offer up for harvesting.

“While this is the opinion of the petitioner, it is contrary to the decision of the Timber Sales Manager,” said Punnett. “In addition, on May 7, 2018, the province completed an assessment of ELF’s Elphinstone Park Expansion Proposal and concluded the proposal would add limited benefits in terms of the key values identified by the province.”

Punnett also ruled that BCTS has adequately addressed the issue of species at risk, in part by engineering the cutblock in two sections, one of which will have only 15 per cent of the trees removed and be co-managed by the Roberts Creek Research Forest. Another will have “retention levels that exceed legal requirements … and contains identified recruitment areas for at-risk plant communities in areas of high ecological biodiversity.”

Another ELF argument was that BCTS’s decisions about the Clack Creek Forest have been inconsistent compared to the decision to delay auctioning the area known as the Reed Road Forest, which community members have also been pushing to convert to a park. Punnett said there was “insufficient evidence” to make a ruling on that question.

ELF has not commented on the court ruling specifically, but the group issued an invitation this week to Donaldson and Environment Minister George Heyman to tour the area, which they’re now calling “The Forest with a Thousand Hearts.”

“We suggest that before a final decision is made it’s imperative to walk the trails underneath the towering Douglas firs and discuss the issues with local stakeholders,” said ELF’s Ross Muirhead in an email to the ministers and copied to Coast Reporter. “I trust you agree it’s time for leadership to show up on the ground.”    

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