Denman Islands cautionary tale

Prior to 4064‘s purchase, around one-third of Denman had been owned by a forestry company that wasn’t actively logging. The public was used to accessing the forest through unofficial community trails. After 4064 Investments bought the land, company officials implemented a business plan based on a rapid clear-cut. They also cleared large portions that had been reserved for covenant under the sales agreement. (A lawsuit by the Denman Island Conservancy eventually led to these covenants being registered at Komas Bluffs and the Railway Grade Marsh — after 80 per cent of the trees had already been removed from the latter site.)

“Now on Denman there aren’t a lot of forested lands left, partly because Jenks cut a swath through here. There’s really not all that much available to protect relative to what was available,” said Des Kennedy, a well-known writer and a former chair of the Denman Conservancy Association. “For years, every ferry that left the island had at least one logging truck on it because it’s such small capacity, so only one truck could go at a time.”

In the midst of community uproar, in 1999 the Denman Island Local Trust Committee created a suite of bylaws aimed at environmental protection, including a development permit area for forest cover and sustainable forestry that impacted much of the island. A professional forester was hired to draft the bylaw with community input.

When the bylaw was challenged in court, B.C. Supreme Court Justice Robert Bauman found in favour of 4064 Investments. While Bauman conceded the Local Government Act permits DPAs that “protect the natural environment, its ecosystems and biodiversity,” he questioned the Denman LTC’s interpretation this could extend to the regulation of tree-cutting on private land.

“On its face, that conclusion seems a considerable reach, indeed it seems a considerable leap,” Bauman wrote in his decision.

He stated elsewhere in the judgement, “The fact that the legislature did not expressly give Trust Committees the broad tree-cutting regulatory powers found in [the Local Government Act for municipalities], leads to the further inference that it did not intend regional districts and Local Trust Committees to have these powers.”

In puzzling contrast to Denman, Galiano Island has a broad tree-cutting DPA that stretches across much of the island, and which has been in place since 2000. Adams said one reason the case may be different is the authors avoided taking a forestry approach.

“It was very much focused on ecosystems and protection of biodiversity and protection of Coastal Douglas-fir forests. It’s more in line with the intent of the legislation,” she said.

Meanwhile, after a BC Supreme Court appeal, other environmental DPA bylaws on Denman were upheld, including one that determined a 50-metre setback for tree clearing on Komas Bluffs.

“The take-away from that is when we’re doing development permit areas we can still protect ecosystems and biodiversity, but they have to be really defined,” said David Marlor, who was Denman Island’s planner in 1999 and is now the Trust’s director of local planning services. He suggested a narrow focus, such as a DPA where Garry oak stands exist, would be more feasible.

Since the province has moved to protect contiguous areas of Coastal Douglas-fir on some Gulf Islands’ Crown lands in the past several years, the case could potentially be made for the ecosystem’s wider protection under a DPA. Some trustees suggested during the June Trust Council session on Gabriola Island that Trust-wide protection is in order. But as it stands, the legal precedent is still defined by Denman.

“If the Islands Trust were to argue the CDF is a sensitive ecosystem, that would have to be tried in court, and who knows if a judge would find that a valid argument, or be swayed by the Trust’s mandate,” Marlor said.

Salt Spring’s early attempts at forest protection halted
Public feedback to the Salt Spring Local Trust Committee over the past year suggests there is community appetite to develop forest protection tools; participants at an open house strategic planning session held in March named regulation of tree cutting among the highest community priorities.

If the LTC does move forward by making forest protection a priority project for this term, it will have to both work within the legal parameters and ensure political will meets the need.

People wondering how the Salt Spring Local Trust Committee failed to enact tree protection tools in the past can look back a couple of decades for the answer. Sensitive ecosystem mapping launched by the province in 1993 through the Conservation Data Centre catalogued over 100 species at risk and dozens of ecosystems at risk in the southern Gulf Islands, including the Coastal Douglas-fir zone, western red cedar sword fern swamps and coastal savannas.

The Salt Spring LTC incorporated some of the new information when it initiated a major overhaul of the official community plan in 1996. The first draft of the new plan proposed a development permit area for most of the island that restricted tree cutting on many unstable slopes, along the entire shoreline and in an extensive area around all the drinking watersheds and community well-capture zones.

“And that’s when the people went berserk,” said local naturalist Briony Penn, who worked on the original mapping. “They went ‘No way, you’re imposing, you can’t impose this on landowners, it’s an extra burden we have to care for.’ And so it got thrown out.”

Salt Spring’s former head planner Linda Adams said some of the guidelines were intended to prevent negative impact on neighbouring properties such as had recently occurred when steep lands on the side of Mount Maxwell were logged in 1994-95. But the trustees’ will to proceed crumbled in the face of public opposition, which included Driftwood editorials and one heated community meeting attended by 250 islanders.

“I think people often agree in principle with some of this stuff, and then when it starts affecting their own property, less so,” Adams said.

She noted there were also attempts in the late 1990s to protect Garry oak ecosystems on Salt Spring, with equally strong reaction.

“Some of the large property owners that had Garry oaks actually began to cut their trees down. I don’t think that bylaw even got first reading. People thought buffers would restrict their ability to develop their properties, so thought they’d just remove them before the bylaw took effect,” Adams recalled.

In the end the LTC decided to go with an educational approach and to encourage voluntary protection of Garry oaks because the proposed bylaw was having the opposite effect intended. A similar approach was taken with many of the measures drafted into the OCP. The review ended with much lighter restrictions. Tree cutting was regulated only on the highest-instability slopes and in a setback from the shoreline along just a few highly sensitive stretches.

Part 3:

Salt Spring Islanders joined people from 20 other communities throughout British Columbia on April 6 to rally in support of reforming forestry practices.

Forest March BC participants demanded changes to provincial legislation to ensure logging plans include ecosystem restoration, sustainable forestry and meaningful community consultation about forests. March organizer Jennifer Houghton had produced a documentary film and founded the Boundary Forest Watershed Stewardship Society after Grand Forks was hit by historic flooding in 2017 and 2018, which has been linked to clear-cuts in the local watershed.

“Our little group is just one of hundreds across B.C. working to make significant changes to forestry legislation and practices. Many groups are having the same experience: making very little progress when attempting to make changes to the forestry practices that are negatively impacting their communities,” Houghton said.

Individually, every community involved in the march had a local crisis needing to be addressed. Citizens were outraged to learn 109 hectares of Vancouver Island old-growth forest near Port Renfrew were about to be auctioned. In the Kootenays, community members were embroiled in a campaign to prevent the logging of 600 privately owned acres located on the steep hills above a prized lake. And the tiny village of Ymir (population 230) had pitched a massive campaign to stop logging in the watershed that provides that community’s only water source.

Given the cry for change coming from all across the province, a complete shift in the forest’s role is required to give local governments much-needed authority over lands in their jurisdiction.

Cascading limitations
Forestry regulation limitations in B.C. are stacked like the proverbial house that Jack built. The owners of fee simple private lots are not required to file stewardship plans or commit to replanting, whether they are logging 10 acres or 1,000. Regulations established by local government bodies that would restrict tree clearing — or even hamper forestry indirectly — can be completely overridden by the Private Managed Forest Land Act. Critics are asking that landowners registered with the PMFL program follow the same rules as Crown land timber lease holders, at the very least. Meanwhile, the Forest Practices Board, B.C.’s independent watchdog for sound forest and range practices, has found these rules are also insufficient.

“For more than 20 years, the board has called for improved planning and objectives at the landscape and watershed scales,” said Kevin Kriese, Forest Practices Board chair. “Recent board work has confirmed that forest stewardship plans, despite considerable energy and effort to develop and approve, do not address the need for planning for multiple forest values across the landscape.”

Frustrated efforts to reduce forestry impacts start at the community level. Islands Trust Council, the group of 26 trustees elected to represent 13 Salish Sea island communities, voted to prioritize Coastal Douglas-fir protection at their March 2019 session.

Denman Island author Des Kennedy, who is a former chair of the Denman Conservancy Association, said he thinks it’s wonderful the Trust is willing to view land-use applications with CDF protection in mind. However, he believes there is an underlying flaw in the entire system: even if the work is put in, it’s questionable how far local committees can get. Most remaining forests on Denman have been protected through purchase by the conservancy, an unreasonable solution to export as Gulf Islands land values continue to rise and development pressures increase.

“Most troubling is that a succession of provincial governments has refused to fully enable the Trust with the legislation that would allow it to carry out its mandate,” Kennedy said. “To me it is obscene and embarrassing that we should have an Islands Trust that is not empowered to have any control over the destiny of forests in one of the most endangered ecosystems in the country.”

Private Managed Forest Land review
The NDP government implemented reviews of B.C.’s two main forestry laws this year, with public comment on both the Forest and Range Practices Act and the Private Managed Forest Land Act capped earlier this month. During the spring legislature session, Green MLA Adam Olsen asked Forests Minister Doug Donaldson to put a moratorium on PMFL logging until the review was complete and decisions made on how to proceed. Donaldson replied that many provincial and federal acts ensure forestry practices meet water sustainability and environmental regulations, and investigations are made on complaints. While he acknowledged the importance of maintaining forests for climate regulation and biodiversity, he also raised the spectre of forestry job loss. No moratorium would be ordered.

Continued in Part Three