By Lloyd Dolha
The Okanagan Indian Band (OKIB) and the Okanagan Nation Alliance (ONA) have set up a checkpoint blockade in the Brown’s Creek watershed area, preventing any heavy equipment from a local forest products company entering the area. The Brown’s Creek watershed is the subject of a long-running court battle with the province of British Columbia in which the First Nation is asserting Aboriginal title ownership. “It’s technically not a blockade,” said Okanagan Chief Fabian Alexis. “If they bring equipment up here, they will be stopped. People are still allowed in the area, but no equipment.” Grand Chief Stewart Phillip, chair of the ONA, and about 25 community members established the checkpoint at Bouleau Lake to monitor and manage the flow of traffic within the watershed, which has been in operation since October 21st.
The province’s claim to exclusive jurisdiction of the Brown’s Creek area has been the subject of a major legal challenge by the OKIB, known as Wilson, for the last ten years. Within the context of the Wilson case, the OKIB was granted a court-ordered preservation order to allow for the preservation of archeological evidence and the mapping and documentation of cultural evidence. While the vital archeological evidence was being collected, Tolko Industries Ltd. (a Vernon-based privately owned specialty forest products company) made a unilateral declaration on October 21st of their intention to commence clear-cut logging operations within the disputed area. Despite strong objections from the alliance and First Nation, Tolko, was granted access to Tree Farm License (TFL) 49, which covers the disputed area. Tolko was also issued a pair of cutting permits for cut blocks from the Ministry of Forests and Range.
On Thursday, October 22nd, Tolko officials Murray Wilson and Jim Knight attended the checkpoint site and hand-delivered a threatening letter from their legal counsel. The letter demanded that all OKIB and ONA members immediately cease and desist obstructing the company’s efforts to commence clear-cut logging in the disputed area. The letter said the company has followed all regulatory requirements and permits to undertake the cutting, and the blocks in question contained stands with significant percentages of pine trees infested with the mountain pine beetle. The letter warned that the infestation has and continues to degrade the utility of the pine and the company will hold the First Nation and alliance responsible for it’s losses if they did not allow Tolko to complete the logging in a timely manner
The company further indicated they would be seeking an injunction, demanding protesters leave the area. The letter stated, “Contrary to what you may have heard, there is no Preservation Order in the Wilson litigation. While there is an order that provides OKIB with funding to collect evidence, that order in no way restricts or limits Tolko from exercising its legal rights in the Brown’s Creek area. Further, although the OKIB filed an application for an injunction against Tolko earlier this year, the OKIB never proceeded with that or any similar application.”
When approached by Tolko representatives, there was no physical blockage of the road. Instead, Chief Alexis asked Jim Knight that Tolko respect their land and culture and allow the elders and witnesses to continue their work in mapping archeological sites critical to their assertion of Aboriginal title. In response to the threat, Louise Mandell (counsel for the OKIB) sent a letter to Tolko’s lawyers the following day. “We disagree that Tolko may proceed to log without any regard to the destruction of evidence in the litigation area and [we disagree] with your view that the Okanagan are not entitled to be present in the area and must immediately vacate it. The reason there are so many trails in the area is that it is culturally a very important area for the Okanagan,” she wrote. Mandell said that when Justice Sigurdson ordered the trail to proceed in stages in August 2007, he was responding to the OKIB’s concern that critical evidence would be lost in OKIB’s ongoing efforts to establish their claim to Aboriginal title. The letter goes on to state, “If Tolko proceeds to log in the litigation area, it will destroy evidence of Aboriginal title, and this is in direct conflict with the Court’s order about preservation of evidence.”
Based on discussions between opposing legal counsels, an injunction hearing will be held as early as November 19th or 20th. In light of these developments, on November 5th, the Okanagan Nation Alliance (ONA) announced that it has launched a lawsuit against Tolko in response to a lawsuit filed by Tolko that seeks an injunction against the Okanagan Indian Band. In this action, ONA seeks an injunction preventing Tolko from engaging in any further logging in the Brown’s Creek watershed. OKA also seeks damages for the harm the company has already caused by logging in the area. The action charges Tolko with trespassing and for interfering with the Okanagan’s Aboriginal rights including a right that has been admitted by the province. The action further seeks to enforce a previous court order permitting the Okanagan to gather important cultural evidence within the cutblocks Tolko intends to log. The Okanagan had offered Tolko a permit to selectively log pine beetle-infected wood in a manner that would preserve Okanagan cultural evidence, but the company rejected that offer, preferring to go to the courts to try to force them off the disputed area. They say the province has aggravated the escalating conflict by providing Tolko with the cutting permits despite the objections of the Okanagan.
The Brown’s Creek watershed is a sacred area of the Okanagan people that houses archeological, ethnobotanical, and cultural evidence that has been at the heart of the ongoing litigation since 1999. “The Okanagan Nation has a duty and an obligation to fully protect, preserve, and defend its Aboriginal title and rights interests within the Brown’s Creek watershed,” said ONA chair Grand Chief Stewart Phillip. “In this regard, we shall take any and all steps necessary to carry out our duties to fulfill our obligations in terms of defending the Brown’s Creek watershed.” OKIB Chief Alexis reiterated his desire to work with Tolko in an environmentally viable approach to resolve the conflict. “We still welcome the opportunity to work together in a meaningful and respectful process,” said the chief. “The OKIB remains committed to prevent further destruction in our watersheds and to ensure that Tolko’s plans to cause irreparable harm does not succeed.”