Important Questions Answered About Wildwood, TLC and EIS

QUESTIONS AND (SOME) ANSWERS ABOUT THE PRIVATIZATION OF WILDWOOD

Many concerned citizens have attempted to understand the Wildwood situation by asking questions of both The Land Conservancy and the Ecoforestry Institute Society.  As a result, there is a high degree of confusion in trying to sort out the pertinent facts and what it all means.

EIS offers the following information as a means to add clarity to the situation.  We welcome further questions and calls for clarification.  Send your questions and comments to Kathy Code at codekat999@gmail.com

  1. Private, for-profit vs Public Ownership: what’s wrong with Wildwood being operated by a private owner?

Between 2000 and 2011, the public donated over $1 million to TLC to purchase Wildwood and ensure this world-renowned ecoforestry education site would be protected in the hands of a charitable organization forever.  This was also why Merv Wilkinson, the previous owner, selected TLC and EIS to continue his legacy at Wildwood when he no longer could.

In 2001, Merv stated in an interview with the Nanaimo Daily News that “I want to guarantee the continuation of this property as an educational unit that is now recognized by the rest of the world. People are coming here from all over.  I want to preserve as best I can a facility that needs to be in use for all people.”

The proposed privatization of Wildwood betrays donors’ trust, is prohibited by TLC’s own inalienability bylaws, and in our view contravenes the Charitable Purposes Preservation Act – a provincial law that ensures publicly donated property is sold or transferred only to a like-minded charitable society.

The sale of Wildwood to a private buyer would set a precedent that would undermine the entire land trust movement. If people cannot trust that the money they are donating will be used for the purpose they intended to support, they may lose faith and stop donating.

  1. TLC says a covenant and management plan will protect Wildwood in private hands.

According to TLC, the private offer includes only a covenant and a forestry management plan.  By contrast the Ecoforestry Institute Society offer includes a land trust deed in addition to a strong covenant and a detailed forestry management plan as a means to ensure Wildwood would be protected in a variety of ways.

A covenant is an important tool for the protection of property, but it has downfalls.   The covenant provides guidelines under which a property will be operated, and names a covenant holder responsible for monitoring and ensuring that the owner complies with the terms.

If the owner breaks the terms of the covenant and causes damage, then the only recourse is through a costly court battle. In the case of Wildwood, what if a private owner overcuts the forest? There is no remedy to replace the trees; the covenant holder could only try to recoup their value through court.

The covenant holder must have the financial means to ensure covenants are monitored and enforced in perpetuity.  If a private owner logs Wildwood too heavily, removing critical old-growth trees, would TLC, who is now in creditor-protection, have the money to take them to court?

With a private owner, there is no guarantee who will own the property in the future.  There would be absolutely no restrictions on the sale or transfer of Wildwood.  It could be sold to the highest bidder at any time, with only the covenant to protect it.

Furthermore, covenants may be altered at any time with agreement between the covenant holder and the landowner, making it a precarious form of protection. A covenant can even be removed entirely by agreement of the covenant holder and the landowner.

The private offer means the property is not protected in perpetuity.  What happens when the private owner sells or dies?  What if the private owner falls on hard times or goes bankrupt?

The issues above are why Merv entrusted Wildwood to TLC in the first place and why the community raised the money.  The arrangement was to ensure Wildwood remained protected even after Merv passed.

  1. What is a “trust deed” and how will it protect Wildwood?

EIS has sought out the strongest legal mechanism by which to protect Wildwood in perpetuity – a trust deed.  If EIS takes over Wildwood, they will hold it in trust – holding the legal title, but not the beneficial interest.

To better understand, think of the example of an older aunt leaving her property to her niece.  The niece’s parents manage the property until she comes of age. The parents only own the legal title, not the beneficial interest, as they hold the property in trust for their child.  It is against the law to sell such property, on the principle that “you cannot sell what you do not own.”

VanCity has agreed to give EIS a mortgage regarding Wildwood, and to allow the trust deed to rank in priority to that mortgage. The trust deed was drafted by Canada’s top trust lawyer. That means, once the trust deed is placed on title, EIS will no longer own the “beneficial interest” in Wildwood, and once you give that away, you can never take it back. This means Wildwood will always be held in trust, for the people of British Columbia – as Merv intended.

A covenant can be removed, a trust deed cannot. It ensures that Wildwood’s ownership will always remain with a charitable and like-minded society to be held in the public domain, no matter the financial status of the owner. 

  1. Is it true that EIS hasn’t logged Wildwood?

No and yes.  It is true that EIS has only cut a small number of trees since we took over management of Wildwood in 2001. What TLC has not mentioned is the reason. Taking over Wildwood was a huge undertaking, and before doing anything on the property we wanted to have an inventory and management plan in place. TLC approved of this, and in 2010 TLC said this about EIS’s recently completed management plan:

While the plan itself has only recently been completed, considerable work has been done over the years to develop a forest inventory for the site, and to get to know the site.  This plan is the first comprehensive effort to document, quantify and structure the processes and strategies that Merv pioneered.  It has been a huge effort, done on a volunteer basis, by dedicated people who have spent countless hours developing it, and we are extremely grateful for their work.

Until this work was completed, and with the guidance of the Ecoforestry Institute, we took a very conservative approach to managing the forest – it was felt by the ecoforesters that both the timber supply and the forest health would benefit from us being cautious and proceeding slowly for a few years.  Thus, we have only done one small cut (and have taken out a few other individual trees) during the past ten years.

http://conservancy.bc.ca/2010/08/tlc-comments-on-recent-media-stories-about-wildwood-2/

Since that time, because of their financial difficulties and then entering creditor protection, it has been TLC that has not wanted EIS to do a cut. To be clear: EIS has not been been able to do a cut since 2009 because TLC wouldn’t let them. So it’s ironic that TLC now uses this fact to justify a private sale of Wildwood.

  1. Are EIS capable managers of Wildwood?

Merv Wilkinson was a key member of EIS, was on the board when TLC took over the property in 2000, and wanted EIS to be managers of Wildwood.  Along with Merv, EIS is the genesis of ecoforestry, with the term itself coined by former EIS chair Alan Drengson.

Independent of TLC and at its own expense, EIS has developed a comprehensive forest management plan that contains all the details of the property, including a recent inventory of the plant and animal life, and operating procedures for managing the forest specifically as an ecoforest.

The EIS board and membership are highly qualified registered professional foresters, land managers, academics, and eco-foresters. They have experience from the ground up as certified and experienced fallers, millers, authors of books and papers on ecoforestry, and managers of FSC certified property.

To ensure the highest standard of ecoforesty, the EIS covenant and forest management plan were in the process of being reviewed by one of Canada’s most recognized ecoforesters.  When TLC decided on a private sale instead, EIS put that process on hold for now.

TLC has said EIS wants to make Wildwood more “park-like”. That is untrue. EIS is the founding entity of ecoforestry, and the only entity with the broad expertise and skills to restore Wildwood to its rightful place as North America’s premier working ecoforest.

  1. TLC cites EIS for backing out of deals and not coming up with the money, as a reason they accepted the private offer.

EIS has worked hard to acquire Wildwood and it is not in our interest to stall the negotiations.  EIS is committed to acquiring Wildwood, holding it in trust for the public, and ensuring its perpetual protection, as TLC promised Merv.  We have been attempting to negotiate with TLC since October 2013, only to be told there was another offer on the table and that TLC could not consider two offers at once.  TLC only began to negotiate with us when the public pressure to keep Wildwood public increased, and when EIS’s offer exceeded the other, even though TLC said the other offer was withdrawn.

TLC’s claims about EIS repeatedly withdrawing offers and not being able to fund the purchase are inaccurate.  EIS was forced to back out of only 1 of the 4 offers, in December 2015, when significant donors fell through due to the delay in TLC signing the agreement.  These were circumstances beyond EIS’s control.  EIS has provided a timeline of offer submissions since July 24, 2015 and made these available online at  https://savewildwood.com/2016/08/01/ecoforestry-institute-answers-questions-about-their-sale-offers-for-wildwood/ .

EIS is willing to resubmit their$700,000 offer at any time.  EIS would rather be serving the public and working on the infrastructure and educational programming at Wildwood than fighting to keep Wildwood protected.

  1. TLC also talks about the private offer being more secure for the future because it comes with no mortgage.

Part of EIS’s most recent offer TLC includes a mortgage, and TLC cites concerns about a mortgage as a reason they have accepted the offer from a private buyer.

To secure Wildwood’s future when donor arrangements fell through in December 2015, EIS had to quickly raise the exorbitant asking price for Wildwood ($860,000).  That meant applying for a mortgage, the conditions of which EIS has been able to satisfy the lender.  Few of the other properties sold by TLC went for this type of price.

With our trust deed on title, the issue of a mortgage becomes moot.  Even if EIS is no longer able to care for Wildwood, the property would pass on to another like-minded charitable society dedicated to carrying out the purpose of the property in the public domain.

  1. Recent TLC responses indicate that the sale of Wildwood to a private individual is legal because the judge has already lifted TLC’s inalienability clause.

That is not accurate. “Inalienability” is an internal designation made under TLC’s bylaws, for their most precious properties. Under Section 20 of TLC Bylaws, inalienable properties can never be sold to private interests, and can only be transferred to another charitable society if TLC were to dissolve.

In addition, Section 4 of the TLC Constitution states that upon dissolution the assets “shall be distributed to one or more charitable institutions with purposes similar to those of the society”, which expresses TLC’s motto, “special properties, for everyone, forever”.  This section of the TLC Constitution is inalterable.

Because their bylaws prohibit the sale of inalienable properties, TLC had to get a court ruling to allow them to transfer 26 inalienable properties to the Nature Conservancy of Canada.  The judge involved, Justice Fitzpatrick, ruled that she has the power to lift inalienability, and has reserved the right to do so, or not, as each sale is brought before her.

Justice Fitzpatrick also said that her decision whether to lift the inalienability provision will take into consideration how well the proposed sale meets the purpose of TLC’s bylaws, which she said included, “the express purpose of protecting these properties from being sold for profit.”

For the private sale of Wildwood (or any sale of Wildwood) to go ahead, the court will have to make an exception to TLC’s inalienability bylaw.

 

  1. TLC is citing the precedent that sales to private individuals of Maltby Lake and Keating Farm have been permitted, saying the sale of Wildwood is legal.

Neither Maltby Lake or Keating Farm were inalienable properties.  Wildwood remains protected by TLC’s current inalienability bylaws, the spirit of TLC’s Constitution (which is inalterable), the Charitable Purposes Preservation Act (a provincial act that requires publicly donated land to go to a like-minded charitable society) and by the requirement for court approval and conditions for the proposed sale.

Other questions for which EIS has no answer:

  1. Why did TLC set such a high price for Wildwood when they sold 26 properties to the Nature Conservancy of Canada for $1.5 million in total (that averages less than $58,000 each property)?

Donors paid off the entire mortgage on Wildwood so that TLC could protect it forever.  In 2014 TLC set a price tag of $860,000 for Wildwood, and did not waver from that.  It made for a very difficult goal to reach, but EIS did so eventually. When EIS lost some funding and then made an offer for $700,000, TLC said that was not acceptable because $860,000 was the price.

They then accepted a private offer for $725,000.

If TLC wants to ensure that Wildwood is owned and operated in the public interest, why would they set such a high price and force the community to pay twice?   Thankfully EIS was able to secure a $450,000 mortgage towards TLC’s asking price – but would that community money not be better spent on educational programming and covenant monitoring for Wildwood?

TLC will have to answer this question.

  1. Why is the TLC willing to risk public outrage, the anger of much of Merv’s family, TLC members and those who love Wildwood, the loss of membership and donations, and damage to its own reputation through a private sale that provides only $25,000 more than the EIS offer?

TLC will have to answer this question.

  1. What are the details of the private sale, and when will the membership be able to review those details, including the covenant and management plan?

TLC will have to answer this question.

  1. How much has TLC spent so far, on staff time and lawyers, regarding Wildwood?

TLC will have to answer this question.

  1. How much has TLC budgeted for legal costs regarding this private sale of Wildwood?

TLC will have to answer this question.

  1. Will the private purchaser pay those legal costs, or will TLC pay their lawyer to try to convince the court to approve the private sale?

TLC will have to answer this question.

 

TLC Board Members

 

Briony Penn:  penn@saltspring.com

Frances Pugh:  francespugh48@yahoo.com

Fred Newhouse:  efred.fn@gmail.com

Mel Lehan:  mel.lehan22@gmail.com

Tom Watson:  twatson@odlumbrown.com

Lori Roter:  lroter@gmail.com

Frances Sloan Sainas:  sainas@shaw.ca

Jennifer Bagelman:  Bagelman@uvic.ca

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3 thoughts on “Important Questions Answered About Wildwood, TLC and EIS

  1. Re: #5 “TLC has said EIS wants to make Wildwood more “park-like”. That is untrue. EIS is the founding entity of ecoforestry, and the only entity with the broad expertise and skills to restore Wildwood to its rightful place as North America’s premier working ecoforest.”

    I think this accusation shows that the TLC Board do not understand ecoforestry or Merv Wilkinson’s alternative to conventional logging. My first visit to Wildwood was in September 1989, when Merv spent several hours showing our hiking group through his forest. What impressed me:
    1. Merv’s passion in promoting his new forestry method, where the prime consideration was the health of the forest, rather than the usual desire for the most revenue in the shortest time.
    2. The fact that, after decades of logging, there were more board feet of lumber in Wildwood than when Merv acquired the property.
    3. The fact that the lumber was of higher quality because the trees grew up naturally in a mixed forest, as opposed to the usual monoculture seedlings in a clear-cut.
    4. And in spite of Wildwood’s being logged for decades, the forest was more beautiful than any park I had ever been in.

    Like

  2. I feel truly shocked and dismayed that the TLC has betrayed the honesty and integrity that i thought they had embodied. I wonder what is the “real” or whole reason for their decision to try and sell the beautiful Wildwood Forest that Merv entrusted to them. I’m very saddened by this situation.

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  3. Sustainable forestry is very important for our future. The urgent need for forests as carbon sink in meeting Climate Change commitments, the protection of essential habitat for wildlife, the protection from erosion due to soil disturbance and clear cutting by most present conventional commercial logging, the damage to spawning streams and water quality by clear cuts, the loss of plant and animal diversity and soil fertility, and the possible use of herbicides in monoculture re-planting of clear cuts are all reasons for Wildwood to continue to demonstrate and teach how to “have our cake and eat it too,” to have our forest and wood products, as well as all the environmental values and advantages the intact forest provides.

    Like

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