The big ideas explored in this case brief include the following:

- The relationship between environmental protection and economic development

- The use of litigation that seems designed to silence public advocacy

- Using the law to bring about social change

At the end of this learning activity students should be able to:

- List and describe the interests of two opposing parties in a law suit

- Examine and analyse the motives and goals of litigation

- Evaluate the advantages and disadvantages of resolving a dispute in the courts

- Suggest and describe alternative methods of resolving disputes.

I. CASE STUDY

This case study is based on the court decisions you see listed in the Source Materials. It is not a case brief of the type that you would find in the textbooks of law students studying in a law school. Rather, it is a narrative based on the key legal and social issues raised by the court decisions and by the underlying conflict itself. If you want to read the entire text of these cases, they can be found in a provincial courthouse library.

WHO'S IN COURT?

The plaintiff in a lawsuit is an individual or a group that is "complaining" about specific issues and is looking for remedies from the court system. In these cases, the original plaintiff was Macmillan Bloedel Limited. Macmillan Bloedel was a major forest company in British Columbia until it was bought out by Weyerhaeuser Company in 1999. Weyerhaeuser is one of the largest private owners of trees on the planet. You can find more information about this company at http://www.weyerhaeuser.com. The site for the Canadian Division of Weyerhaueser is currently under construction

The defendants in a lawsuit are individuals or groups that are responding and defending themselves in any legal action brought against them. In these cases, there were two major defendants: the Galiano Island Trust Committee a locally elected group of people who carry out the purposes of the Island Trust Act, and the Galiano Conservancy Association, a non-profit environmental group consisting of approximately 300 members, all of whom are residents of Galiano Island.

HISTORY OF THE CASE

British Columbia is described in brochures and in ads directed to tourists as "Supernatural BC" - and we invite people from around the country and the world to come and travel in our province. But do we all agree on what kind of province that we are or want to be in the years ahead? Is Supernatural BC for people in some parts of the province, and not others - and who gets to decide this? The parties in this case could not agree on what one half of one island off the coast of British Columbia should look like! So, they went to court for over four years and spent a great deal of money trying to sort out their differences.

And, in this series of cases, the parties even started fighting about how to fight! One side claimed that the other side was using very unfair and intimidating tactics, and that they should pay money to compensate for using such tactics. The other side disagreed and that became a separate lawsuit.

The lawsuits centre on Galiano Island, sometimes called in tourist literature "The Jewel of the Gulf of Georgia." It is situated in the Strait of Georgia, a 30 km. ferry ride away from Vancouver and Victoria. (See, http://www.galianoisland.com a website describing the Island by the local Chamber of Commerce)

The Galiano residents and Macmillan Bloedel went head-to-head on two major questions:

1. What should Galiano Island "look like", both now and in the future? Should it be developed to allow for the building of more residential neighbourhoods as was the wish of the forestry company, Macmillan Bloedel? Or, should the Island be developed to allow for more park land as was the wish of the Galiano residents?

2. When each side hires a lawyer and goes to court to try to sort out a dispute, you can pretty well count on the fact that each side is angry and has given up trying to talk to the other. At a certain stage in this case, the Galiano residents accused the forestry company of not "fighting fair." What are the rules of fighting fair when people have resorted to using lawyers and the courtroom to determine a "winner"? Should there be any rules and, if there are, who sets these rules?

As you read the facts of the case, keep these two major threads at the back of your mind. This was a bitter dispute and it is useful to remember that facts are facts but these cases involved people whose emotions ran very high and are the kind of people who probably never thought they would end up in an extended court battle.

ISSUES

IN 1951, ALL WAS CALM ...

In 1951, Macmillan Bloedel purchased one half of the 15,000 acres comprising Galiano Island. Its intention, of course, was to some day log all of this land. Until 1990, this seemed like a safe assumption since the relevant governing legislation, the Assessment Act, described the land as "managed forest lands."

However, in 1990, a new Islands Trust Act came into force. This was very unique legislation because it recognized that the gulf islands were special - the purpose of the Act was "to preserve and protect the trust area and its unique amenities and environment for the benefit of the residents of the trust area and of the Province generally." The Act provides for the creation of local trust committees whose job was "to regulate the development and use of land within their local trust area." For more information about this Act see: http://www.islandstrustfund.bc.ca/homepage.htm
Without reading too much further, you can probably see that Macmillan Bloedel and the local trust committee were on a collision course in terms of their different visions for what life should be like on Galiano Island.

And, in fact, in the late 80s, people on Galiano Island began to complain to Macmillan Bloedel about their logging operations on the island. Not wanting negative publicity and recognizing that the gulf islands were becoming prime recreational areas for city dwellers, Macmillan Bloedel decided to sell its land on Galiano Island.

THE STRATEGIZING AMONG THE PARTIES BEGAN ...

Macmillan Bloedel knew that they would receive the greatest profit by selling land at the highest possible price to the largest number of buyers. How could this be done? Their plan was to divide the land up into residential units, and put the land up for sale to people who wanted to build houses on Galiano Island.

The Galiano trust committee and local environmental groups were alarmed, to say the least, when they heard of Macmillan Bloedel's plans. They could envision half of their island turning into a suburb of Vancouver, complete with 7-11s and gas stations - a very far cry from the kind of restful retreat and lifestyle that had prompted many of the people to live on Galiano Island in the first place.

The trust committee decided to draft several by-laws. The details are complicated but the bottom line was that the by-laws created certain zones on the island. On the half of the island still owned by Macmillan Bloedel, the bylaws had the effect of ensuring that most of the land could NOT be used for residential use, but rather only as parkland. Only a limited portion of the land remained zoned for forest use. It is important to note that the trust committee went through all of the proper channels, and the bylaws ultimately became law.

Macmillan Bloedel responded quickly. Just before the bylaws became law, they scrambled and managed to find residential buyers for most of their property holdings.

Now what? The dispute had to be resolved because otherwise the island and the forest company would be paralyzed in terms of knowing what to do with half of the island.

QUESTION FOR CLASS DISCUSSION:

What do you think are the most critical issues in the dispute so far?

SEE YOU IN COURT ...

The first lawsuit was filed in 1992. Macmillan Bloedel signaled in the lawsuits that it meant business. First, the company asked the court to rule that the bylaws were invalid. Second, Macmillan Bloedel sued the Galiano Island Trust Committee, the three Island Trustees as individuals, and the Galiano Conservancy Association. The suit was for up to $15 million for what was called a civil conspiracy. The forest company said that the island trustees and environmentalists had conspired to injure the business of the company, that they were preventing the company from enjoying use of its land, that they were causing company land to diminish in value, and that they had conspired further and engaged in unlawful conduct in the public planning process.

Let's focus on the civil lawsuit first. The stakes were high. If Macmillan Bloedel succeeded in persuading the judge that they were the target of a conspiracy, the Galiano residents would likely be bankrupted. Was it worth that risk to try to protect some parkland on an island? And it was a risk. One thing about going to court - you cannot predict the outcome.

Any doubts that the locals may have had about taking on a forest company giant grew in the days ahead. There is a great deal of drama in a lawsuit and a great deal of tension. It is like your life is "on hold" until the lawsuit is resolved one way or another. There are ways to increase the tension even further. One tactic is to delay because that has the effect of making the people involved feel nervous. It makes them think more and possibly change their minds as to whether they really want to carry on with the lawsuit. In this particular case, there was also the media and public opinion to contend with as each side tried to win the hearts and minds of British Columbians.

Delaying tactics were used. There is a stage of a lawsuit known as the Examinations for Discovery, the purpose of which is to interview the people involved in the lawsuit to discover what the other side's case is going to be - What arguments will they use? What trial strategies will the other side likely use? What witnesses will they call? Who is going to testify? In this case, it is interesting to note that Examinations for Discovery were not scheduled for over a year after the lawsuit was filed. And then, within days of concluding its questioning of members of the environmental group, and only days before trial, Macmillan Bloedel instructed its lawyers to discontinue its civil legal action against the members of the environmental group. However, the trial to decide whether or not the bylaws were valid went ahead.

Question for Class Discussion:

Break the class into two groups, one representing the Island Trust and the other Macmillan Bloedel and have each group discuss and prepare a response to the following question. What would you advise your clients to do at this stage?

MACMILLAN BLOEDEL WINS THE FIRST ROUND ...

The trial judge ruled that the bylaws were not valid and he quashed them - a legal term meaning that the bylaws never existed. The judge looked at the motivation behind creating the bylaws. He agreed with legal counsel for Macmillan Bloedel that the defendant's true purpose was to create more parkland than forest or residential land, and that had the result of lowering the value of Macmillan Bloedel's property. He said the bylaws were, therefore, passed in bad faith and discriminated against Macmillan Bloedel. The bylaws could not be allowed to stay on the books.

GALIANO APPEALS ... AND WINS

In a court action, if one side is unhappy with the result and believes that there are grounds for reversing the decision, an appeal is launched. As you might suspect, the defendants from Galiano Island in this case appealed. The Court of Appeal completely agreed with the trial judge that the true motive behind the bylaws was to prevent or delay residential subdivision, as well as the development and sale of Macmillan Bloedel's lands. The Court of Appeal also agreed that the trust committee's long-term intention was to obtain, in effect, park lands, in several of Macmillan Bloedel's properties by ensuring that no logging or only carefully controlled logging took place.

However, the Court of Appeal judges were not troubled by the fact that these were the motives for passing the bylaws. They noted that all bylaws have some kind of motive or purpose. All the Court could decide was whether or not the local trust committee had the authority to pass the bylaws, and by looking at the Islands Trust Act, the Court had no problem concluding that the committee had the appropriate authority. The Court of Appeal noted that judges should be very slow to find bad faith in the actions of democratically elected representatives acting under legislative authority. In other words, the Court did not think it was its role to substitute its opinion for that of the local committee on Galiano Island. The Court saw its role as just deciding whether or not the committee had the legal authority to act as they did.

So, you can see that with the same set of facts and applying the same laws, different judges came to different conclusions.

IS THIS A FAIR FIGHT?

You will recall that just before the trial began, Macmillan Bloedel dropped their civil lawsuit against the defendants - the trust committee and the environmental group. You might think that this would make the defendants very happy. On the contrary ... the defendants went to court to ask that the lawsuit continue!

This seems so contradictory. Why would the defendants want to keep such a potentially financially harmful lawsuit alive and kicking? The reason was that the Galiano representatives had from the very beginning a great deal of suspicion as to why Macmillan Bloedel would personally sue them. As conflicts between environmentalists and forest companies grew in number across North America during the early 90s, it appeared that some big corporations were allegedly using a certain kind of legal manoeuvering. This legal tactic was known as Strategic Litigation Against Public Participation - the SLAPP. In this case, the defendants claimed that Macmillan Bloedel had "SLAPPed" them and they wanted special costs for having had to go through that experience. They also wanted to conduct their Examinations for Discovery of the Macmillan Bloedel witnesses. The defendants' view was, "No fair. You got to grill our witnesses and obtain a great deal of information about our strategies and us. Then, when it came our turn to grill you, you end the lawsuit and deny us that opportunity. That is not playing fair."

Macmillan Bloedel's lawyers argued that they were simply using the remedies available in our justice system - nothing more, nothing less. How could lawyers be penalized for using legal tools such as Examinations for Discovery? How could a plaintiff be penalized for wanting his legal team to take as long as needed to prepare a strong case?

DISCUSSION QUESTION:

You be the judge - Do you think what Macmillan Bloedel did amounted to a SLAPP? Which arguments do you think have the most merit?

NO RESOLUTION

You need to know at this stage that neither issue has ever been completely resolved. The trial court judge concluded that an abuse of process may indeed have taken place. On that basis, he ruled that the Examination for Discovery of the plaintiff's chairman should proceed for the limited purpose of determining whether the action against the defendants was an abuse of process.

These matters, which were very contentious and confusing, continued to be the subject of lawsuits, with the parties even trying to take the case all the way to the Supreme Court of Canada. Although there appeared to be a ruling that the Galiano Island defendants' lawyers could "examine" Macmillan Bloedel representatives, including the Chairman of Macmillan Bloedel, it actually never took place. As for the SLAPP allegations, again, no clear-cut answers emerged from the court and, in fact, there are no clear rules on this matter even in the province today.

But it is worth taking a closer look at the defendants' claim that they had been SLAPPed. According to the defendants, SLAPPs attack citizens for exercising their democratic rights. They are lawsuits in which powerful and wealthy corporations seek civil damages for criticism expressed in a public forum. Targets of SLAPPS are typically private individuals or citizen groups that disagree with the actions of a corporation. These differences may be expressed in public hearings, letters to the editor, open meetings, demonstrations, and correspondence with elected officials or petitions. Again, from the defendant?s perspective, a SLAPP does not depend on successful legal arguments but rather upon exploiting sluggish judicial procedures. High costs of litigation award a distinct advantage to the party with the greater financial ability. SLAPPs prey upon the fear of being sued and speaking out. Opponents of SLAPPs note that the effects include loss of time, money, increase in stress and intimidation.
(See: http://www.miningwatch.org/emcbc/publications/toolkit/5htm)

The Galiano/Macmillan Bloedel lawsuits brought the issue of SLAPPS to the public's attention. In April 2001, the government of the day passed anti-SLAPP legislation called the Protection of Public Participation Act (http://www.qp.gov.bc.ca/statreg/stat/tlc/tlc01019.htm). Four months later, a newly elected government repealed the legislation, which essentially means that it no longer exists or applies in British Columbia.

I. Questions for Discussion

1. Both sides in this long dispute have spent many thousands of dollars. Why do you think the issues are so important to the parties in this case? What is at stake for Weyerhauser, the company that bought out Macmillan Bloedel? What is at stake for the residents of Galiano Island and the member of the trust committee?

2. Usually, we think of the law as being a powerful tool for promoting social change. Do you think that litigation helped and is helping to resolve the kind of dispute that took place on Galiano Island? Can you think of other ways that resolution could be reached?

3. Who should pay for the defense of trees, a rural lifestyle, and endangered species? Who should pay for the defense of the interests of corporations? Who should pay for the interests of working people and people in communities who are negatively impacted when a forestry mill needs to close its doors?

4. How would you feel if a lawsuit was filed against you? How do you think it might impact your life? Your family's life?

5. Do you think that the Galiano residents were acting in their own best interests or in the interests of all British Columbians? Should people who do not live on Galiano Island care about the results of these kinds of lawsuits?

6. We have watched the decline of the forest industry in BC with the shut down of mills, loss of employment and even the abandonment of towns. Does this kind of action by citizen groups cause more harm than good?

II. EXTENSION ACTIVITIES

1. Have the class participate in a mediation or public hearing in which both sides present their arguments and then attempt to reach a settlement of the issues.

Students should be encouraged to present the positions of as many stakeholders in the mediation process as possible e.g. environmental groups; local families; local businesses; loggers; the forest company; an aboriginal group; municipal officials.

Students could then debrief and discuss not only what they decided as the outcome to the dispute, but how the process felt to them. Did they end up feeling angrier or was there a real sense that everybody came out a "winner"?

2. Vigorous media campaigns were conducted by both the environmentalists involved in this case brief and the forest company. Students could design a media campaign for each side e.g. create posters, create a website, write letters to the editor, hold mock public meetings, design and distribute brochures.

3. Hollywood has recently addressed environmental disputes in two very popular movies - "Erin Brockovitch" starring Julia Roberts, and "A Civil Action" starring John Travolta. Compare and contrast the underlying conflicts in the Galiano lawsuits with the lawsuits described in these movies.

5. The Island Trust legislation in this case brief was, in many ways,
"the star witness." Find out more about this unique legislation at the website for the Real Estate Foundation of BC, and its link to the Land Centre which provides information on all aspects of land use in our province. (http://www.landcentre.ca/foundation)

III. SOURCE MATERIAL

Three judgments from the following list of cases which relate to this case study:

Macmillan Bloedel Limited v. Galiano Island Trust Committee et al (April 24, 2021) No. A920930 Vancouver Registry (full text of Reasons for Judgment)

Macmillan Bloedel Limited v. Galiano Island Trust Committee et al (November 12,2021) No. A920930 (full text of Reasons for Judgment)

Macmillan Bloedel Limited v. Galiano Island Trust Committee (April 23, 2021) No. A920930 Vancouver Registry

Related litigation (not a comprehensive list, as some cases are still pending):
(a) Macmillan Bloedel Limited v. Galiano Conservancy Assn. (1994), 2 B.C.L.R. (3d) 99, 51 B.C.A.C. 236, 84 W.A.C. 236 (C.A.) R31B Reis. 10651
(b) Macmillan Bloedel Ltd.v. Galiano Conservancy Assn. (1993), 81 B.C.L.R. (2d) 307, 31 B.C.A.C. 25, 50 W.A.C. 25 (C.A.) R31B Reis. 10653
(c) Macmillan Bloedel Ltd. v. Galiano Conservancy Assn. (1994), 2 B.C.L.R. (3d) 99, 51 B.C.A.C. 236, 84 W.A.C. 236 (C.A.) R21 Supp.262
(d) Macmillan Bloedel Ltd. v. Galiano Island Trust Committee (1995), 10 B.C.L.R. (3d) 121, 28 M.P.L.R. (2d) 157, 126 D.L.R. (4th) 449, 63 B.C.A.C. 81, 20 B.C.L.R. (3d) xxxv, 78 B.C.A.C. 240, 128 W.A.C. 240, 203 N.R. 390 (note), 203 N.R. 390 (B.C.C.A.), reversing (1993), 16 M.P.L.R. (2d) 229, 103 D.L.R. (4th) 65 (B.C.S.C.), leave to appeal to S.CC. refused (1996), 133 D.L.R. (4th) vii (note), 20 B.C.L.R. (3d) xxxv (note), 78 B.C.A.C. 240 (note), 128 W.A.C. 240 (note), 203 N.R. 390 (note) (S.C.C.) R27 Reis. 6463