News  Band appeals B.C. Supreme Court order

Ruling permits commercial logging on land under investigation for title claim

On March 12, judge Caroline E. Brown will hear the Okanagan Indian Band’s (OKIB) application to appeal a February 1 order prohibiting their interference with commercial logging operations by Tolko Industries on contested land. The band alleges that the initial decision by the Supreme Court of B.C. did not consider the irreparable harm that logging will cause to an ongoing investigation to determine the band’s title claims to the area.

The OKIB has taken all measures to prevent Tolko from initiating the project at Brown’s Creek Watershed near Vernon, B.C. – an area that supplies drinking and irrigation water for the 1,800 residents of the OKIB. Logging will also affect the headwaters of the Bouleau and Nashwito Creeks, disturbing the habitat of Okanagan fisheries.

The band has constructed a checkpoint on Westside Road and a blockade of the Bouleau Creek Forest Service Road. They also intend to file a complaint with the B.C. Human Rights Commission for the failure of government agencies to protect their water supply.

The Ministry of Transportation has challenged the blockade, claiming ownership of the roads, – but OKIB chief Fabian Alexis has defended his band’s rights.

“We have a specific claim: the road runs through our land on our trails, and we haven’t been compensated. Our community is adamant that no commercial logging will take place in our territory anymore,” said Alexis.

He and other members of OKIB were issued a “cease and desist” letter by Tolko in October of last year.

The watershed has been legally disputed territory since 1999. Under economic pressure, the OKIB began harvesting trees for domestic use under a permit issued by the Okanagan Nation Alliance. When the province issued a stop-work order on these activities, the OKIB challenged its constitutionality in connection with ongoing title claims over the watershed.

According to Louise Mandell, a lawyer representing the OKIB, the litigation “challenges the province’s claim to 100 per cent ownership and jurisdiction in the absence of [a] treaty.”

“Tolko knew that the Brown’s Creek Area was before the court and about the conflict on the ground. Tolko went into it with its eyes wide open,” said Mandell.

Despite the ongoing case, B.C. granted Tolko Industries cutting permits in the disputed area. According to Alexis, the logging threatens the archaeological collection of aboriginal title evidence.

Tolko hired its own third party consultants to carry out archaeological investigation over the winter, which concluded on February 25.

Alexis asserted that the investigation disregarded adequate Okanagan involvement, as ordered by Brown.

“We have to first prove our existence, which is ridiculous. There is no bill of sale; we never sold this land. They are saying that there is no evidence of Indian people in higher mountain elevations, but how can you find trails under feet of snow?” said Alexis.

In a March 5 press release, Mark Tamas, Tolko Industries’ Okanagan Woodlands regional manager, described OKIB’s blockade as “in defiance of B.C. Supreme Court Orders…. Tolko has a court-issued injunction and enforcement order to allow access to our legally approved cutting permits.”

Will Koops, a coordinator for the B.C. Tap Water Alliance, a group that advocates for the protection of community water supply watersheds from resource use exploitation, has voiced support for the OKIB. Skeptical of any B.C. court decisions, he argued that in the ‘60s, the attorney general’s department began systematically acting for corporate interests.

“In whose interest does the provincial government act? On behalf of the companies. There is no legal mechanism that looks at both the companies’ and indigenous and non-indigenous public interest. This means unequal representation to the courts,” he said.

The majority of watersheds in B.C. were protected until 1962, when the Social Credit government moved to protect them from commercial logging.

“The province has been granting tenure to companies for decades without honouring First Nations, and the forestry is not sustainable,” said Koops.

Alexis also commented on the fact that most B.C. First Nations have never formally ceded their territory. “The government presents a facade of trying to recognize rights, but meanwhile nothing is happening. If anything, our rights are being lessened.”