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  • Would a BC Species at Risk Act really protect biodiversity in a world of public relations?

    Loys Maingon

    There is no legal requirement for forestry companies and forestry stakeholders, such as First Nations, the Ministry of Forests, or the Ministry of Environment and Climate Change, to carry out biological surveys and identify species at risk that may be impacted by forestry operations. Instead, Western legal ownership rights trump environmental obligations to community stewardship of biodiversity. Industry and government say they care about biodiversity but, in practice, do little to protect it. BC urgently needs a Biodiversity Protection Act.



    Clearcut logging by Canfor in the Pass Lake area near Prince George (Photo by Sean ORourke for Conservation North)


    FREDERIC E. CLEMENTS (1874-1945), who is best known as a pioneer plant ecologist and taxonomist, was one of the last disciples of Alexander von Humbolt in American botany before the re-birth of interest in Humboldtian Science in the 1990s. That makes Clements a forerunner of modern biologists and foresters who advocate for plant sentience, such as Suzanne Simard and others who tend to see forests as super-organisms. It is noteworthy that while Clements’ organismic view of nature may have been viewed as “unscientific” in some quarters during the post-1945 era, Clements was responsible for developing some of the most rigorous methods used in the study of plant ecology. It was Clements who introduced America to the methodical survey of plants and their landscapes by quadrats, transects, bisects, camera sets, and ring counts. These methods were described in the second chapter of his 1929 classic text, Plant Ecology, that he co-authored with John Weaver.

    One hundred years on, these methods remain fundamental to our knowledge of site biodiversity. Even if the sampling methods are refined by technological advances to aerial, soil, or aquatic environmental DNA analysis, they remain essentially the same. They are systematic subsamples of hard data to be analysed statistically. Biologists can only assess the species composition of a site and its biodiversity by carrying out systematic site surveys. It is a simple fact: no data, no science, only hearsay.

    That has an important implication if we bear in mind current growing concerns about climate change. As recent IPCC reports have been at pains to stress, climate change cannot be addressed if we do not also address the biodiversity crisis. The planet is not a machine. It is a living system. The complex interactions of living organisms control and regulate climate. Federal and provincial institutions that claim to protect or be concerned with biodiversity, and by extension, climate change, without supporting a programme of systematic biological surveys to assess biodiversity, are simply misleading the public. The state of our forests’ biodiversity is essential to the future of climate change. The state of our forests’ biodiversity can only be ascertained by carrying out rigorous species composition surveys.

    In a remarkable entry regarding the application of belt-transects, Clements makes the following observation about the use of ecological survey methods in forestry:

    The belt-transect method has been used very successfully for recording the composition of tropical rainforest and especially for commercially important trees. The belts are of sufficient width (66 ft) and frequency (1.25 miles apart) to include 1 per cent of the area. In fact, the method has long been used by American foresters, although they make an optical estimate of the width of the area cruised and record the number and size of merchantable trees instead of mapping them.”

    This archaic forestry norm has largely remained unchanged and unquestioned for the past century. As John Neilson and I discovered in the course of an effort to save a population of Pseudocyphellaria rainierensis (Oldgrowth Specklebelly), a rare lichen nominally protected by a provincial and federal agreement, and listed in standard forestry documents, that norm still applies in BC. While some forestry companies may elect to carry out biological species surveys before clear-cutting an area, in British Columbia there is no legal requirement for forestry companies and forestry stakeholders, such as First Nations, the Ministry of Forests, or the Ministry of Environment and Climate Change, to carry out biological surveys and identify species at risk that may be impacted by forestry operations. Western legal ownership rights trump environmental obligations to community stewardship of biodiversity. In forestry operations, barring explicit cultural interests, the value of “merchantable trees” remains the primary, if not the only, determinant of where forestry operations will take place. Species composition and biodiversity assessments are disregarded.



    Natasha Lavdovsky examines Oldgrowth Specklebelly growing side by side with Lobaria linita (the greener lichen), on a tree marked with falling boundary tape, indicating the edge of a future clearcut beside a creek/riparian reserve (photo by Natasha Lavdovsky)


    This common practice means that we have very little idea of what faunal and floral species have been lost and extirpated over the past 150 years of colonial occupation, which is synonymous with “forestry operations.” Indeed, the case of the discovery of hitherto undocumented populations of listed species at Fairy Creek and the demise of Pseudocyphellaria rainierensis at Fairy Creek should serve as a cautionary tale of Canada’s lack of actual concern for biodiversity, outside of the arcane world of the biological scientific circles not in the pay of industry and government. Although this area is less than 80 kilometres from the Ministry of Environment and Climate Change’s and the Ministry of Forest Lands and Natural Resources Operations’ offices, these ministries could not provide Neilson and I with data concerning faunal or floral species that might be adversely affected by ongoing and proposed forestry activity. Astoundingly, the presence of at least 16 well-recognized and easily identifiable species-at-risk was hitherto unknown and unrecorded by ministry staff, whose ministries are nominally responsible for documenting BC’s flora and fauna, and biodiversity data collection.

    As we enter what the United Nations has proclaimed to be “The International Decade of Biodiversity”, there is an obvious disconnect between stated concerns for biodiversity and actual policy direction. In keeping with the Convention on Biodiversity, the joint report of the IPCC and the IPBES, and a growing string cannot be addressed independently of the biodiversity crisis. The world is neither a machine nor a supermarket. As Humboldt and contemporary science increasingly tell us, only life makes life possible on a living planet, and even processes driving phenomena like temperature and climate that we once considered to be “abiotic” are, in fact, biologically driven by floral and faunal composition and organization. Provincial and federal governments, if they care at all for climate change, do not seem to understand the link between biodiversity and climate change. The World Meteorological Organization’s recent report State of the World’s Climate 2021 makes the transient front pages of mainstream press to tell the public that we have indeed crossed critical thresholds. However, as the WMO notes, thanks to government inaction, generations to come can expect continued ocean warming and acidity as well as increased heat waves, cyclones, and hurricanes. Political action on climate change over the past three decades appears to have been mainly cosmetic and out of touch. Within this context, when it comes to actually protecting biodiversity, at all levels government response belongs with an alternate reality reminiscent of Monty Python’s Dead Parrot Sketch.

    The recent excellent work of Melissa Aroncyk and Maria I. Espinoza, A Strategic Nature, which traces the role of corporate public relations in shaping public understanding of nature and the environment, is worth reading. It traces the evolution of public relations strategies, often illegal but highly effective, in shaping public policy by manipulating the public and political understanding of science and the response to environmental problems. Their thesis is that through public messaging, corporate interests capture and create the illusion of environmental awareness and responsibility. That illusion pervades government and mainstream environmental organizations, on whose boards corporate representatives sit, and on whom these organizations depend for funding. Indeed, in BC, the boards of many land conservancies, land trusts, and mainstream environmental organizations are peopled by corporate executives who help finance these organizations. Serious environmental concerns such as biodiversity become subordinated to corporate messaging and greenwashed. It, therefore, is not surprising to find that Calvin Sandborn and Bronwyn Roe of the University of Victoria’s Environmental Law Centre have reported that corporate greenwashing is up 40 percent.

    That is just the marketing aspect of corporate greenwash. It does not include the cultural and institutional greenwashing that pervades all aspects of our lives, as Aroncyk and Espinosa argue. For corporations and the governments that effectively serve them, climate change and biodiversity policies are just a public relations exercise, which is why they have failed for the past 40 years and are designed to continue to fail. Climate change policy and biodiversity policies in Canada fail because they are designed not to encroach or conflict with corporate forestry, mining, and oil and gas interests.

    It would be misleading to think that the problem might be limited only to British Columbia. The recent unprecedented decision of the federal government to use its powers under the Species a Risk Act to intervene by decree to protect dwindling caribou populations in Quebec raises basic questions. By setting aside 35,000 square kilometres of critical habitat amounting to 2.3 percent of Quebec’s territory, Ottawa is not simply infringing on Quebec’s jurisdiction, it is protecting First Nations’ interests. One of the principal drivers of Ottawa’s intervention is the request of the Assembly of First Nations Quebec-Labrador that Ottawa protect the cultural rights and interests of First Nations that were excluded from Quebec’s public consultative process. The commission set up by Quebec to determine the fate of the caribou was driven by forestry interests and stakeholders that did not include First Nations.

    In Quebec, as in BC, this is a debate that is focused on the fate of the last remaining “old-growth” forests, which are critical to the survival of the species, and which are also of cultural interest to local First Nations. Thirty-seven leading biologists from 11 of Quebec’s universities weighed in to protect this habitat in the interests of the species and climate change. The scientific intervention had little impact. In this instance, the Species at Risk Act is not being used to protect the species per se, but rather First Nations’ rights to the species and the forests that are their critical habitat. It is crucial to note that throughout this saga that while Quebec biologists and naturalists have been extremely vocal about the need to protect biodiversity and species at risk, the official and publicly stated position of the Legault government and the “Ministere des Forets, de la Faune et des Parcs” (“Ministry of Forests, Fauna and Parks”) has been that the economic priorities of the forestry industry trumped biodiversity. It is also worth noting that, as in BC, in Quebec the ministry responsible for biodiversity is a ministry of forests closely aligned with the interests of the forest corporations and unions. These are really ministries dedicated to the well being of the forest corporations, not to forests and biodiversity.

    So, the provincial and federal interest has only been tangentially in biodiversity and in the species themselves, though the public is misdirected to think otherwise. It has been mainly interested in either the mainstream forestry economy or in the First Nations’ cultural rights and interests in that economy and the management of the forest and its “resources.” While First Nations’ management of the forest may indeed have a better track record than mainstream industrial forestry, as has been demonstrated, it is still focused on the forest as a source of economic prosperity and employment. The fate of species and biodiversity is still subsumed to economic interests.

    It is critically important to note that although Quebec, unlike BC, has species at risk legislation, Quebec’s provincial government has an appalling track record when it comes to protecting biodiversity. The act is set aside or generously interpreted whenever the interests of development or forestry are threatened. With complete disregard for scientific advice to the contrary, the Quebec government recently opposed the protection of the copper redhorse (Moxostoma hubbsi) and authorized the extirpation of the last habitats of the Boreal chorus frog (Pseudacris maculata). These species, whose future is now largely uncertain, were only possibly saved after much public outcry, at the very last minute by federal interventions.

    The Quebec examples demonstrate that the federal Species at Risk Act has very little real power to effectively protect species biodiversity throughout Canada’s increasingly endangered ecosystems. Provincial species-at-risk legislation can be disregarded in favour of the economy at the discretion of ministers. We, therefore, have every right to ask: “Is species at risk legislation in Canada just another bureaucratic shibboleth to pay lip service to?”

    Recent variations of the same provincial and federal half-truths or prevarications can be found in BC.

    In British Columbia, the current government was elected in 2017 on an electoral platform that captured “environmental” votes with promises to implement species-at-risk legislation. Upon election, the Ministry of Environment and Climate Change (MECC) began work on species at risk by de-listing about 30 percent of listed species. After three years of delays and promises, by 2020, the MECC ceased work on this file. Responsibility for the protection of species at risk was magically transferred to the Ministry of Forests, Lands and Natural Resources Operations (FLNRO). This move corresponded to the government’s much heralded review of the Forest and Range Practices Act, to align the problem of “species at risk” with the 2019 Declaration on the Rights of Indigenous Peoples Act. The unstated aim of these changes was to put decision making back in the hands of forestry-dependent communities, which was now to include and give greater prominence to First Nations dependent on forestry revenues. This was explicitly summed up by Minister Conroy: “We’ll put government back in the driver’s seat of land-management decisions in partnership with First Nations, including where forest roads are built.” Like Quebec, the forest industry’s priorities are to be supported by communities that are economically dependent on the forest industry. Unlike Quebec, the BC government also understood that by including First Nations in the economic benefits and decision-making associated with the forestry industry, status quo could effectively be maintained without making real changes to the Forest and Range Practices Act.

    This strategic public relations move was clearly intended to download responsibility for species at risk, which has always stood in the way of the forest industry’s interests, onto First Nations. As a result of this strategic downloading, any public or scientific attempt to protect endangered species stands to be interpreted as an attack on the corporate interpretation of “ownership” under The United Nations Declaration on the Rights of Indigenous Peoples Act. Under this scenario, science no longer matters when a First Nations government beholden to the forest corporations upholds its logging interests.

    In spite of all the sweet-sounding motherhood and pie promised under the much-heralded revisions to the Forest and Range Practices Act, at no point is protection of species at risk ever really considered. There is no real interest in the Act and its revisions in the protection of biodiversity. The essential point that a biological survey needs to be carried out to determine the ecological impact of logging activities before a logging permit is issued is never even remotely considered in this legislation. The Act, together with its much-heralded “progressive” revisions, remains beholden to the forestry practices and interests described by Clements in 1929. A species at risk act, based on basic scientific principles inherent in biological surveys, such as was promised and envisioned before 2017, would seriously compromise the viability of this economic and political edifice.

    This government has not stalled work on species at risk legislation, it has duplicitously shifted the conversation to make species at risk and biodiversity legislation disappear by promoting First Nations’ interests in mainstream forestry economics. Biodiversity is inconvenient to political interests. It is neither a federal nor a provincial priority, any more than climate change has ever really been for the past 30 years, as the track record shows.

    The general assumption made by the public and the environmental community is that First Nations stewardship for the land should provide better protection for species at risk, as indeed it usually does. The assumption is largely based on the cultural value that keystone or umbrella species, such as large mammals or salmon, have within the First Nations world-view. As with the general keystone and umbrella top-down approach in ecology, this approach has all the pitfalls of coarse-grained approaches. The survival of bottom-up primary producers of lesser cultural immediacy, which is only evident in fine-grained analysis, stands to be jeopardized. In a society in which the public itself is largely unaware of species other than signal macro-species, First Nations’ cultural nature-literacy does provide definite leadership. However, as in any society, the requisite fine-grained knowledge necessary for environmental management is the domain of only a select number of trained scientists and knowledge-keepers. The problem for settler society seems to be that in rejecting a species at risk legislation, it also rejects its knowledge-keepers, its biologists, and in so doing, encourages First Nations to turn their back on their own knowledge-keepers.

    The assumption that First Nations’ leadership and engagement will substitute species at risk legislation is misleading because it depends on the ambiguity and fluidity of the concept of “ownership.” In Delgamuukw, hereditary chiefs set the bar for subsequent aboriginal rights and claims by stressing that aboriginal ownership is an obligation to the care for the territory because it is identical with the people. Aboriginal ownership is, therefore, diametrically opposed to western legal concepts of “ownership.” Anglo-American law defines “ownership” as “the power to enjoy and dispose absolutely.” Ownership as it is related to industrial practices and corporate interests, by definition invites “the power to enjoy and dispose absolutely.” The meaning of a word is always performative. There are no essences that magically define a word outside of the role it has in a context. The meaning of “ownership” shifts with the economic framework and context. In a corporate economy, ownership is the power “to dispose absolutely,” regardless of the culture. As Joel Bakan has repeatedly demonstrated, a corporation is a psychopathic entity, no matter what cultural dressing it takes.

    Through the revisions to the Forest and Range Practices Act, as well as the recent doubling of First Nations’ share of forest revenues, the provincial government has effectively modified the “ownership” of First Nations as major stakeholders in the forest industry. By increasing the dependency of First Nations communities on revenues from the forest industry as a matter of social justice, it would be naïve to argue that the meaning of ownership within those communities is not affected. Indeed, while hereditary Pacheedaht chief Bill Jones, in keeping with Delgamukw, argued against logging of old growth and for his obligations to his traditional territory, elected chief Jeff Jones has publicly argued forcefully for his right to dispose of the forest as he sees fit for the economic well-being of his community. These are two starkly different versions of “ownership.” The Jeff Jones version, which was opposed by the position taken by the BC Union of Chiefs, is the version of ownership upheld and promoted by the Minister of FLNRO and her many colonial predecessors. This version is diametrically opposed to the spirit informing Delgamuukw and UNDRIP, which the same government and its First Nations supporters claim to promote in support of corporate interests. That is corporate greenwash at its finest. Can one really have one’s cake and eat it? Apparently so....

    In 2021, this cultural contradiction had tragic consequences for the largest population of Pseudocyphellaria rainierensis ever found in Canada. This unique population of a rare lichen protected by a federal and provincial agreement received no protection whatsoever and has now been extirpated. Every level of government, starting with the elected Pacheedaht Council, MECC, and FLNRO as well as the forestry company concerned and federal Minister Steven Guibeault were formally appealed to in order to save this species at risk. What stood in the way were the financial interests of Teal Cedar and Pacheedaht council led by Chief Jeff Jones. There is no difference between Premier Francois Legault’s claim to Quebec’s territorial right to extirpate three populations of endangered mountain caribou because endangered species cannot be allowed to stand in the way of jobs, and Chief Jeff Jones territorial claim to protect aboriginal employment on Pacheedaht lands by enabling the extirpation a population of endangered lichens. The non-aboriginal logic of legal ownership gives license to those private interests that steal from the inheritance of future generations.

    The extirpation of this population is a confirmation that, while intentions may be good, and while some First Nations feel more obligations to endangered species than others, the ultimate protection of species at risk cannot be left to the discretion of First Nations, as the BC government contends, anymore than it can to municipal, provincial, or federal governments.

    Should there be any illusions about the moral high ground that the federal government may claim thanks to its obligations under the Species at Risk Act, two recent actions of Canada’s ex-Greenpeace firebrand minister of the environment may leave one somewhat nonplussed. Back in 2021, marbled murrelets (Brachyramphus marmoratus) were one of the species at risk found to be nesting in the Fairy Creek area. Leading experts urged the minister to issue a ministerial order to protect this blue-listed species whose numbers are steadily declining and which is now known to be functionally extinct. It was then thought that by November 2021, Steven Guibeault would issue a ministerial order to protect critical marbled murrelet habitat, which is known and mapped. Instead, minister Guibeault has upheld the standard provincial development and forestry guidance norm, which is an extension of the Migratory Bird Convention Act (1994), that no tree could be fallen if it was found to have an active nest. Of course that depends on making a determination that a) there is a nest, and b) that it is occupied, without actually having to carry out a minimal biological survey.



    Marbled murrelets nest on wide branches, high above the forest floor, and lay only one egg. (Photo: Peter Halasz)


    For anyone familiar with marbled murrelet habitat, this protection can only strike one as 100 percent montypythonesque. First, murrelet nests are minimal and notoriously difficult to locate, as they consist of a mossy depression enclosed between two densely vegetated branches about 30 to 60 metres (100 to 200 feet) up an old-growth tree in a dense forest. The only way to find a nest is to be on location before sunrise and observe a tiny bird come out of the ocean clouds and enter its “nest” at high speed, from which its partner will depart shortly after. Second, after August, the nests are vacated and the tree can be fallen, thereby removing critical habitat together with the need to protect this species at risk. Indeed that is what occurred in the fall to critical marbled murrelet habitat in the Fairy Creek area. That is the high level of federal protection that has not too surprisingly resulted in the extirpation of yet more marble murrelet habitat throughout BC, and the further decline of the species protected under SARA. That is what greenwashing government institutions sell to the Canadian public as a gold standard in Canadian conservation and biodiversity protection.

    It is no surprise that the Minister of Environment and Climate Change now faces a lawsuit for failing to uphold his responsibilities as outlined in the federal Species at Risk Act. For this external observer, the lawsuit itself is somewhat surreal. While one needs to keep a straight face listening to the serious intent of environmentalists and lawyers, most court and media discussions tend to be simplistically devoid of a sense of the biological reality based on facts. It is all arcane points of law between learned friends paid to argue in court. The government and the corporations don’t collect biological data. The environmental organizations rarely collect data. If they do, it is at the last minute. How can anything be based on facts without, established baselines and robust data? Yet we are told that everybody cares for “the environment,” “resilience,” and “sustainability.”

    Conservation is not difficult if you start with the facts. The facts are the data of a biological survey. But nobody, no lawyer, no environmental activist, no forestry executive or FLNRO official, or First Nations’ representative, wants to talk about the most basic and urgent fact: there has been no real data collection, because the data are inconvenient to the political and financial interests at play.

    The basic facts are either absent because a survey was not carried out, or because if the facts do exist they are disregarded in favour of forestry or natural resources industry interests, which in this case have been compounded by BC’s downloading of its responsibilities for species at risk to First Nations under UNDRIP. If we want to understand why Steven Guibeault, a bona fide environmentalist, could avoid taking action and produce an irrelevant statement, we have to understand his predicament. Should Guibeault uphold actual protection of critical marbled murrelet habitat, he would infringe on the financial interests of the forestry industry, forestry unions, and First Nations forestry revenue dependency. Under the new provisions of BC’s Forest and Ranges Practices Act, that would constitute an infringement on the United Nations Declaration on the Rights of Indigenous Peoples Act, which is a hot potato nobody wants to touch or discuss seriously. It would be interpreted as an act of colonialism infringing on the right of the Pacheedaht and Ditidaht to enjoy and dispose absolutely of their property and maintain forestry revenues, notwithstanding that this interpretation vitiates the original understanding of aboriginal ownership under Delgamuukw. So marbled murrelet protection is limited to a public relations exercise.

    This is also consistent with the federal government’s protection of Southern resident killer whales and Chinook Salmon habitat in the Salish Sea. While the fate of prime nursing habitat at Roberts Bank continues to be threatened, after adverse scientific reports were submitted to the minister three years ago, the minister has yet to sign an order to put an end to the ecological threat posed by the Vancouver Port Authority’s Roberts Bank Terminal 2 project. The problem here is not that the reality of this threat is not soundly established by scientific evidence. The problem remains that this project is considered economically essential to Vancouver’s growth. It may yet appeal to the public if the economy slumps. “Roberts Bank Terminal 2” has gone eerily silent, though mention surfaces from time to time awaiting for the right circumstances. Meanwhile, as like every good magician, Steven Guibeault has used misdirection to draw the public’s attention to a renewal of fisheries closures and the re-introduction of “sanctuary zones” for Chinook Salmon off Pender and Saturna islands. Roberts Bank used to be nature’s “sanctuary zone” for salmon. The newly selected zones may soon be used to mitigate planned losses needed to support endless growth. After all, if Legault can’t trade jobs for endangered caribou, or Chief Jeff Jones can’t trade old-growth jobs for rare Pseudocyphellaria rainierensis populations, maybe Steven Guilbeault, who could not trade oil and gas jobs on the Bay du Nord project for beluga habitat, will likely find it necessary to save jobs rather than salmon habitat and biofilm at Roberts Bank? The writing is on the wall—forget species at risk legislation, it leaves too much discretion to ministers, and only deals with isolated species within complex ecosystems.

    There is a sad consistency in this logic. Corporate interests and the jobs that come with them consistently trump endangered species legislation and biodiversity. Yes, this is psychopathic. Canada and BC claim to be able to meet climate change targets they have never met—and never will, as they develop more oil and gas! BC claims to save endangered species without even having inventoried them as it cuts old growth! We are told First Nations log sustainably without really carrying out a biological survey anymore than the corporations they work with, because this is not a permit requirement! And yet we are told that we really care about biodiversity... as we see it dwindle before our eyes and daily witness more destruction.

    Fifty years after Richard Nixon signed into law the US Endangered Species Act, the NDP government of British Columbia has shelved plans to introduce species at risk legislation. It has cleverly downloaded that responsibility to First Nations engaged in forestry and increased their dependency on forestry revenues. Maybe it is time to realize that species at risk acts were cutting edge in 1973, but are no longer up to the task? What we now need is a Biodiversity-Protection Act.

    A Biodiversity-Protection Act would really not be very difficult to write or implement. Its fulcrum is this simple point: sites must be professionally surveyed before any resource extraction takes place. It begins with the simple recognition that the protection of biodiversity is essential to humanity’s survival on this planet. Corporate interests cannot be given precedence. The protection of biodiversity is a universal human obligation based on science, which is our objective common ground. The protection of biodiversity is not a cultural privilege, and it should not be treated as a cultural football. Management protocols must be adhered to for listed species identified. Critical habitat must be mapped and protected. If we are serious about addressing climate change and biodiversity for future generations, science must take precedence over economics, politics, and cultural privilege, for the good of all humanity.

    Loys Maingon is BC director of the Canadian Society of Environmental Biologists.

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