The Hupacasath fight against privatization

The BC Liberals’ latest privatization schemes for British Columbia may face another serious setback soon. After a five-day hearing, the Hupacasath First Nation awaits judgement in its BC Supreme Court challenge of former Forest Minister Mike de Jong’s decision to privatize 178,562 acres (70,300 hectares) from Weyerhaeuser’s  tree farm licence 44, near Port Alberni.  
 
A ruling favouring the First Nation may reverse the blatant privatization, save jobs, and reintroduce stronger fish and wildlife protection. It could also create problems for the windfall profits Weyerhaeuser got when the BC Liberals privatized these lands.
 
It may also kibosh rumoured plans to privatize BC’s forests in the Liberals second term.
 
The Hupacasath expect judgement within a few weeks from BC Supreme Court Justice Lynne Smith, the former Dean of the University of BC Law School.  
 
The privatization-which occurred with no consultation with affected First Nations-created a windfall for Weyerhaeuser. The decision to privatize removed public oversight, reduced environmental standards for streams and wildlife, removed raw log export restrictions and freed the lands for subdivision and sale.
 
While protection of the public interest in this deal has never been evident, one can’t help but wonder what effect Weyerhaeuser’s donation of almost $450,000 to the BC Liberals since 1996 might have had on the Minister’s decision.
 
My prediction in 2004 that the privatization would be a windfall for Weyerhaeuser was confirmed when Weyerhaeuser quickly flipped these lands to Brascan as part of the $2.4 billion sale of their coastal operations.
 
Hupacasath chief, Judith Sayers told me that Brascan told the court that rescinding the Minister’s decision and reintegrating the privatized lands back into the tree farm licence would add $15-25 million in annual costs to their logging operations. Chief Sayers also said that Brascan argued they would not have purchased Weyerhaeuser’s operations without the inclusion of the almost 180,000 acres of now privatized lands.
 
Despite the supposed “new relationship” being trumpeted by the Premier’s office, the Crown resorted to the traditional arguments in attacking the Hupacasath’s claims: that the Hupacasath had no title, that if they had title it was extinguished by the E & N land grant in 1885, that the overlapping territory with Tseshaht (who are also suing on the privatization) limited their claim, and that the press release handed out by Weyerhaeuser when the deal was announced was sufficient consultation.
 
 
One interesting environmental argument advanced by the Hupacasath, was that only the  Minister of Sustainable Resource Management not Minister de Jong had the authority to remove wildlife habitat areas and riparian management zone designations. If accepted this would render Minister de Jong’s decision illegal and could lead to re-imposition of higher environmental standards.
 
Brascan tried to position themselves as the poor unknowing victim. They argued they negotiated a deal with Weyerhaeuser last fall and reached an interim deal in December only to be blindsided a few days later when the Hupacasath filed their lawsuit. However, the fact that Brascan chose to finalize the deal months after the Hupacasath’s objections were public knowledge should kibosh this argument.  
 
Brascan was caught out attempting to misrepresent its intentions regarding the future sale of the lands. At one point Brascan attempted to convince Justice Smith that it didn’t intend to sell off any of the lands other than “a few parcels”. However Hupacasath’s council pointed out that the affidavit of Reid Carter, Brascan’s senior staff member overseeing the lands, indicated Brascan planned to sell over 32,000 acres (13,000 hectares).
 
The most important long-term implication of this case may be the impact it has on the rumoured Liberal plot to privatize forest lands in the coming term. Sources have reported that a senior forestry faculty member at UBC reported he had been approached by senior Ministry of Forest staff to discuss hosting a conference on the subject.
 
A ruling favouring the Hupacasath would likely create significant impediments to these privatization plans.
 
We’ll keep you informed as this case progresses.

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