Monday, October 18, 2021

How it all began: The Shadow Dancers of Fairy Creek

     


             

What am I talking about with the Shadow Dancers?  Who are they and what are they doing at Fairy Creek?

First, there are only two of them. However, it only takes two to tango and this pair has been dancing in and around BC forests since 1958.  Actually, they are ghosts as they are both deceased, but their spirits live on at Fairy Creek and in the court rooms of BC. I think of them every time a tree farm license is in dispute. Let me tell you about this pair and how together they have deforested, and are still deforesting, the last remaining bits of old growth in BC. and why they won’t stop dancing until our mountains are shadows too.

I want to call their names.

In 1952 a former schoolteacher and part-time musician named Robert Sommers (Honest Bob as he as known) was elected under the new Social Credit government and made minister of Lands, Mines, and Forests. Six years later (1958) he was sentenced to five years in prison by Chief Justice J.O. Wilson for conspiring with and taking bribes from a very large logging company (BC Forest Products) for a very large Tree Farm Licence on Vancouver Island. Is the spirit of Robert Sommers one of the ghost dancers?

No. While I think Robert Sommers was guilty as charged, I also think he took the fall for other players, too. I think the accusations and convection of Robert Sommers for bribery and conspiracy was simply the catalyst for the ghost dancers to come together and do their crazy dance and act out the precedent that they created.

However, his crime is almost beside the point. The point is a far worse crime was the one committed against him, and by extension to all of us, especially First Nations. How so? By the way Justice Wilson broke the law himself in his effort to unlawfully protect one of the largest and riches logging companies in BC and its owner, E.P. Taylor, which set the precedent for other and later BC judges to do the same.  Taylor was the owner of BC Forest Products and was one the richest men in BC. Justice Wilson must have been truly dazed by him because his decision to protect Taylor and his company was so unethical, so unreasonable, so unlawful that I can’t figure out how Justice Wilson got away with it even then. So what did he do?

Justice Wilson also convicted Robert Sommers, the same judge, to five years in prison.  But for the man who gave the bribe and his company, E.P. Taylor of BC Forest Products, Judge Wilson declared not guilty of anything. Taylor and his company was declared to be innocent of all charges.  And the icing on the cake for Taylor and BC Forest Products was that they were allowed to keep the massive old growth Tree Farm License they had won through bribery and conspiracy.

How was this possible?  How was it legally possible for the giver of bribes not to be punished for this as well as the receiver of the bribes?  How indeed was this not utter contempt for the law?  Of course it was.  And the precedent that was set in that courtroom that day lingers on to this day in the courthouses of British Columbia. What is that precedent?

That it is absolutely fine for BC judges to skirt the law, and even break the law, if that is necessary to protect rich logging companies from any perceived harm, particularly financial harm. That protecting the logging industry in BC is a major component of BC judicial practice. This is the main reason, in my opinion, our BC courts rule on precedent.  It is why judges give out logging injunctions with hardly bothering to read them. The logging companies must prevail. The spirits of these two men, Chief BC Justice J.O. Wilson and E.P. Taylor linger still, dancing at Fairy Creek, whispering in the ears of the Land and Forest Defenders…

 “Oh, give up, you know that money is everything, most of you have no money to speak of, all you have is spirit and spirit is never a match against money...Give up. Your own justice system is demonstrating to you that these forests that were ripped out of the hands of First Nations and there’s nothing you can do…Give up. You are fighting a losing battle because the entire thing was born in corruption, and we don’t care...Give up. It’s getting cold in Fairy Creek. It’s time for you to go home...”


And nobody would blame you if you did.  But for those of you who are young and strong and can bear the cold and wet you are getting close to something. You are getting close to setting your own precedent for doing away with the use of injunctions every time a logging CEO shoves an application for one across a judge’s desk. You are getting close to interrupting this dark crazed dance between money and nature, you are getting close to making history for us all. Be well. Be happy in you work. I hold you close.

 

 

 

Sunday, October 10, 2021

Defending Fairy Creek in Court: Lessons from Leonard Cohen


Like a bird on the wire

Like a drunk in a midnight choir

I have tried in my way to be free

These, the first three lines of Leonard Cohen’s song “Bird on the Wire”, spring to mind when hovering over the dilemmas and dangers still facing the forest defenders at Fairy Creek. 

While Cohen said the song inspired by a woman, it is also about freedom. And yes, the responsibilities that come with the right to freedom, but only in a free society, with the right to free expression, the right to free assembly and to free association, the right to protest and demonstrate peacefully against perceived wrongs commented by the government, are both these freedoms and responsibilities acknowledged. And most importantly, it is the right for all to appear before unbiased court systems where people are able to rise up and take on the responsibility of creating a more just and equitable society. 

BC’s Ministry of Forests Doug Donaldson recently said that he recognized the way old growth forests are managed is an “emotional, divisive, and complex issue” and while people can peacefully protest, the ministry expects all people to “follow the law”. Odd that Mr. Donaldson doesn't appear so concerned about the law when it was the representatives of the law itself who were brutally mistreating the forest defenders. The Minister also said that they would be “working with stake holders to establish a better way to manage forests...”

It is the phrase “stake holders” that troubles me the most.  Who are the stakeholders?  When the forest defenders get into court, they will be shocked at how the court may describe stakeholders, at least as they have in the past.  In the past the courts have primarily acted as a closed club against environmental arrestees and environmental arrestees ain’t in it. In this case the club of legal “stake holders” will consist of:

·       Teal-Jones and share holders,

·       The provincial government, 

·       The forest workers unions and organizations,

·       The Attorney General of BC,

·       The RCMP, and

·       The past poor performance of court appointed lawyers.

While selected First Nations’ representatives will be included in “the club”, and treated with a feigned respect, ,much will be made of the division between them at Fairy Creek and used primarily as a wedge to further divide First Nations’ peoples.

In the courtroom the arrestees may begin to feel as disoriented as Cohen's drunk who had stumbled into a church choir when they begin to recognize in a gut way the power of the forces arrayed against them. They may even begin to sway a bit like a bird on a wire.  Especially when they begin to understand the nature of the conversation the judge wants to have with them or their lawyers. To find what it is all based on will astonish some of them.  It did me. The primary question will be asked of an arrested is “Have you personally been financially disadvantaged by the logging at Fairy Creek?” That is, has the logging cost you money?

Your answer will have to be no because if you had a financial stake in the logging then you probably wouldn’t be protesting the logging.  So the judge will rule, if he or she follows precedent, that you have “no legal standing” in the matter.” This means that you have no right to claim that Teal Jones is doing you a personal injury, unless you can clime a physical injury, and you will not be allowed to continue with legal arguments in your defense.  So what can you do? 

First, insist that you, living in BC, have a right to be considered an equal stakeholder as you also have a monetary stake in the survival of the province environmentally. Without environmental survival, we all lose financial standing in the matter. You can also challenge that justice is not served by tying legal rights to defend oneself to one’s individual money loss or gain in the claim, and that justice is only served by full discovery and disclosure of intent and purpose of the accused.

Consider...it has been over twenty years since the Clayoquot Sound blockades and in the meantime, environmental awareness and challenges have become front and center around the world.  Most of us now know how trees are part of climate, how the universal practice of clearcutting leaves the land severely damaged, making it hotter with frightful opportunities for the ever-increasing forest fires. The young people at Fairy Creek see this and worry for their future. When a government is so unresponsive to the burning of their province how are the young to react?   

You Fairy Creek Forest Defenders are truly birds on the wire. Your physical courage and determination are becoming legendary but the courtroom is a whole other country. Be respectful and humble in the courtroom, but with the dignity and determination of persons who are not afraid to fight for the freedoms they believe in and the things they hold dear. Just don’t be afraid. Your cause is righteous. And I beseech you to keep this thought in mind...this is not just a struggle only for a certain forest in BC, but for forests all over the world. Trees, bees, plants, animals, including humans, all communicate with each other. Everything is connected.  And so is freedom. So is courage. I keep you close in my heart. 

Thursday, September 30, 2021

Fairy Creek Defenders' Karma just ran over BC Court Dogma


 

 Fairy Creek forest defenders, I salute you!

First Nations people and non -First Nations, standing all together, fighting to preserve some of the last strands of old growth forests in the nation, has firmly placed a sense of uneasiness, indeed, perhaps of fear, into the consciousness of the Justice System of BC. How so? Well, maybe the fear of an aroused people of Canada demanding justice where there has been none before, at least not for citizens and First Nations people of Canada who have been awakened and sensitized to the criminalization of clear cut logging on public, titled and unceded native lands.

 While Justice Douglas Thompson reasons for refusing to renew the injunction didn’t say so, his ruling opens the door to a possible change in the court’s thinking about using injunctions as a weapon against the people who protest. It also opens the door to a clearer understanding of human rights for all of us. But this is tentative. It depends on what the police do next and how the court interrupts the reasons given by Justice Thompson when and if the forest defenders wind up in court if arrested without an injunction.

As an old forest defender myself who accumulated a lot of experience in the courtroom, permit me to mention something of what I learned there. Of course all experiences are different, still I think much remains the same. I learned enough to realize that you forest defenders at Fairy Creek have just climbed over an almost insurmountable wall by sheer guts, determination, and love, love of nature, love of each other, love of humanity.

You, especially the young may not even realize the feat you have accomplished. But by your unceasing bravery in the face of bloodied flesh and fractured bones, you have influenced a BC Supreme Court judge’s decision that will become a precedent in the practice of environmental law. And you have done this without the help of any of the environmental elites who in secrecy many years ago signed away what they thought was your right to protest rain forest destruction. And the Rainforest Flying Eagles flew in to take up the slack. If you are arrested without the injunction and brought to court the judges will have to treat you like all other Canadians accused of a crime; by the Criminal Code.

And you will have to stand your ground in a different way in the courtroom. This time the judges will have to listen to you. They will have to take your motives into consideration. For First Nations there is a growing body of legal decisions that express acknowledgement of their claims, and the success of these past claims explains much about the current victory.

I don't know, of course, but it sounds as if this movement has competent lawyers. However, if you doubt, and feel capable, don’t be afraid to represent yourselves. Remember that a lawyer is an officer of the court and must do as the judge dictates. When a lawyer is told to desist in argument and sit down by a judge, then he or she must promptly do so or risk disbarment. As a private citizen you have more leeway. If a judge tries to cut you off in what seems like an unfair way before you have adequately presented your defence, you can object. When the Crown tries to misrepresent your motives or impinge upon your character you can stand up and object to that, too. But if you do this, always defend yourself boldly, as you did at the Creek. Don’t unnecessarily annoy the Justices, always try to be polite, but remember that you are making history. You are helping to destroy the stranglehold the Justices of British Columbia, by the use of court ordered injunctions, have held over the citizens and First Nations of this province for what seems like forever. And maybe just the threat of this will encourage Teal Jones to quit the area and take their soul destroying, job destroying mega machines with them.

The courtroom is in spirit the extension of the physical defence of the Forests of Fairy Creek. I hold all of you warriors in my heart.

More next time.