Forestry Reform?

March 28, 2003

Breaking Forestry Contracts - Campbell Style

Bill 28 (2003) breaks contracts, in this case forest tenures which are contractual obligations. The Campbell government recognizes that interfering with tenure rights incurs damages of at least $200 million. It has introduced legislation to limit government's liability to no more than that sum.

Don't expect the usual champions of free enterprise to scream bloody murder because it is their friends who are doing the contract breaking. First they broke contracts with unions, now they are breaking contracts with BC's biggest companies. Some cynics say that some companies "high graded" their tenures so that the compensation is really nothing more than a disguised bailout that overvalues the scrub that remains. If that were true, it will just add to the frustrations of First Nations who may challenge the new legislation in the courts.

Just imagine what they would say if the NDP had introduced legislation that confiscated tenure rights and limited by statute the maximum extent of any compensation! No one should be surprised at the hypocrisy of BC's business elite; they are the same bunch who uttered barely a critical word with respect to the biggest deficit in BC's history. It appears that what counts is not what is done, but who does it.

Legislative language like "This Act must not be construed as lacking effect, whether retroactive or otherwise, in relation to any matter because it makes no specific reference to that matter" is as Draconian as legislation can get, yet that is precisely what Section 8 (2) of Bill 28 states.

The powers to make regulations, cabinet orders, in Bill 28 (2003) exceed the powers of any statute previously enacted in the history of the province. Section 13 (2) states:

"Without limiting subsection (1), the Lieutenant Governor in Council may make regulations
(a) defining a word or expression not otherwise defined in this Act, and
(b) for the purposes of section 6, prescribing respecting value, including but not limited to
    (i) determining value and defining the components that comprise value,
    (ii) prescribing methods of evaluation for use in determining value,
    (iii) prescribing factors to be taken into account in an evaluation,
    (iv) defining the role of evaluators in a determination of value and prescribing
         qualifications for evaluators that are prerequisite to their participation in
         the determination of value, and
    (v) prescribing requirements for the selection of
          (A) the arbitrators in an arbitration before 3 arbitrators, or
          (B) the arbitrator in an arbitration before a single arbitrator."

What this means is that after the legislation is passed, government can adopt a cabinet order that defines what words in the legislation mean. It can fix the selection of arbitrators, and it can prescribe what constitutes "value".

Many critics will comment on how the forestry legislation violates a "social contract" that is almost as old as British Columbia. That "contract" tied the resource to the community so companies had to maintain some employment even in bad times, and so that local resources supported the local economy. The Campbell government is canceling that social contract and making forest tenures another commodity to be traded.

A fundamental criticism of Campbell's "forestry reforms" should come from what is usually associated as the political "right" - Campbell is breaking commercial contracts. However, those who occupy that political space are too loyal to his government to open their mouths.