It is difficult to see the forest for the trees when it comes to ownership of timber on City of Powell River-owned property known as Lot A.
At the December 19 council meeting, councillors heard from resident George Orchiston, as well as a legal opinion from the city’s lawyer Lidstone and Company, regarding timber harvesting rights on Lot A.
Orchiston, appearing as a delegation, said he was before council to comment on a memorandum from Lidstone and Company in response to a letter he wrote to the city on September 16, 2019. He said his letter had to do with the city’s purchase of Lot A between Brooks Secondary School and Millennium Park, the timber on it, and who owns it. He said he read the Lidstone legal memorandum and it was substantially non-responsive to the purpose of his September 16 letter.
Orchiston said that on June 23, 2017, the city was registered at the Vancouver land title office as the owner in fee simple of Lot A after purchasing it from PRSC Land Developments for $800,000. He said for clarity, no charge, such as a grant of timber harvesting rights, was or is registered on this land title in the name of any third party.
Orchiston said while memorandums the city has received from the lawyers spend a copious amount of time speaking to the history of timber licences, harvesting plans and licence expiry, they fail to provide a single piece of factual evidence establishing the city, in purchasing Lot A, ever agreed any third party would possess timber harvesting rights for that property.
“In conclusion, the City of Powell River is lawfully entitled to enjoy maximum interest in Lot A, guaranteed by the Province of BC, including the land and timber upon it,” said Orchiston. “If there exists a third party claiming they have an interest in Lot A, such as timber harvesting rights, there are legal options available to address such claims. It is not for the city to make arguments on behalf of a claimant.”
Orchiston said he would caution council not to adopt the October 22 memorandum from the lawyer as its own as the conclusions are inconsistent with points Orchiston has made.
“The bottom line, as of today, the city owns the land and the trees,” said Orchiston. “The province guarantees that. If there is any challenge to that [by a licensee], they have options. They could go to court and argue that the city was fraudulent in making the agreement. My position is the city conducted itself in good faith in negotiating the purchase of that land from PRSC. I don’t see any challenge being successful to the city’s purchase of that land.
“Those trees belong to the people of Powell River. I really do think we are wasting our time discussing timber rights. Until some third party comes along and actually questions in court the city’s declaration and the commitment by the BC government that we own the land and the trees, end of story.”
Mayor Dave Formosa said when the city purchased the land, city council was aware there was an agreement for ownership of the trees. He said he and chief administrative officer Russell Brewer had gone through all of Orchiston’s points with the lawyer and asked if there was something Orchiston had come across.
“We went through all of the points you’ve made with the lawyers,” said Formosa. He added that this is the third time the city has received an opinion.
“I don’t know what to say,” said Formosa. “Legally, this is above me. We knew there was an agreement for those trees.”
While the property was logged between September 1999 and April 2002, there has been no harvesting in the 12 years Formosa has been on council.
Councillor Maggie Hathaway she did not think the city needed to do anything until the licensee comes to cut down the trees. She said the city could then say no, the city owns the property in fee simple and take it to court, which is the proper forum.
“They are not showing any indication they want to cut down the trees,” said Hathaway. “It’s just sit and wait it out.”
Orchiston said a third party challenging the city would have to show the licences did in fact not expire.
“Right now, the land belongs to the city, held in trust for the residents of this community,” said Orchiston. “We own the land, we own the trees. I don’t want to talk about who owns the trees anymore until Island Timberlands walks across the street and says ‘we own them.’”
Formosa said council’s position is that nobody is coming to log these trees.
“We are enjoying the trees,” said Formosa.
Later in the meeting, Brewer reviewed the October 22 memo from the lawyer. The memo stated concerns have been raised that there is a dispute as to whether the timber harvesting rights granted by the timber licences have expired. The legal opinion states that the timber licences for harvesting on Lot A have not conclusively expired.
The terms of the timber licence states: once the timber has been harvested in accordance with the agreed to harvesting plan and removed from the lands by the licensee, this licence and all the rights inferred will terminate. Any remaining timber not harvested by the licensee will at this time belong to the licensor, which would be the city.
The legal opinion further states: therefore, the timber licences likely do not expire until the timber is harvested as set out in the harvesting plan. Because the harvesting plan has not been located, the city is unable to concretely determine whether the plan provided for more harvesting has already been carried out.
The legal opinion concluded that the city is taking a cautious approach to ensure it is not exposed to an unnecessary liability.
“The city continues to consider the range of options available to it with respect to this matter and will keep the public informed as the city moves forward on this,” the memo stated.
Hathaway said this legal opinion cost more than $4,000 and required approximately three and a half hours of staff time.
“Legal opinions are expensive and I’m reluctant to do them because we get blasted all the time for legal costs being way too high,” said Hathaway. “I hope, Mr. Orchiston, that we can let this lie for a while and at such time as Island Timberlands wants to come and cut down the trees, of course we’ll take some kind of action, but at the moment, it’s getting very costly responding to your request.”
