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  • Focus Magazine May/June 2016

    Articles published in the print edition of Focus Magazine.
    BC’s defamation laws are downgrading our democracy.
    THIS EDITION BRINGS YOU AN UPDATE on the Shawnigan Lake situation by Judith Lavoie. When we learned of threats of legal action against citizens and media outlets for alleged defamation from the company operating the controversial mine and reclamation site in the area, we decided to investigate. There’s little doubt people have been surprised and upset by the letters from South Island Resource Management’s lawyer. Besides the fears and outrage expressed by those willing to be interviewed by Lavoie, one fellow asked “What about free speech?”

    That’s a good question, actually. And the answer is complicated (and rather chilling). Though free expression is guaranteed under Canada’s Charter of Rights and Freedoms, it is qualified by other laws, chief among them those around defamation. Defamation is communication about a person that tends to hurt that person’s (or corporation’s) reputation.

    In defamation suits, the burden of proof is on the defendant. David F. Sutherland, a Vancouver lawyer who has defended both activists and media against claims of defamation, says, “Any defamatory statement is presumed to be false, it’s presumed to be malicious for an improper purpose, and it’s presumed to have cost real-dollar damage.” So if cited for defamation, you are guilty until you prove your innocence or justification. Since corporations have the same legal rights as persons,  and since the Supreme Court of Canada has decided that the dignity of a person is every bit as important as freedom of speech, well, as Sutherland puts it, “Right there, we’ve really got a problem.”

    Adding to this problem is the fact that large corporations generally have far deeper pockets to pay for litigation, as well as advertising and public relations, all of which they can write off as business expenses. The playing field between citizens speaking out on political matters and corporations has become “tilted” says Sutherland. Others have pronounced Canada as one of the most backward English-speaking nations when it comes to protecting freedom of expression.
    Media also experience the “chilling” effects of legal threats claiming defamation. Focus has been threatened a number of times over the years so I can attest to how time-consuming and worrisome such threats can be.
    But, given the current laws, journalists and their publishers have to be willing to take risks if they want to do good work. Sutherland, who represents many BC newsrooms on defamation matters, agrees. “Absolutely, and it’s a terrible risk…People make honest mistakes, and every time you publish a story, you shouldn’t be putting the whole printing press and the legacy of your children, and your house and your family at risk. It’s disproportionate.”

    In the Shawnigan Lake issue, we know that, besides citizens who have spoken out, at least Shaw TV, rabble.ca and Huffington Post, along with their reporters or producers, received demands for apologies, retractions and compensation from South Island Resource Management (SIRM). In some cases apologies were made. Shaw, for instance, ran an apology on air saying Citizen’s Forum’s volunteer producer Jack Etkin and a guest’s statements in a November show “may have left the false impression that the company…is deliberately poisoning or planning to poison lake water.” Shaw, says Etkin, became increasingly restrictive around what he could say on air in general, and that led him to step aside as the show’s producer. After ignoring the first letter he got from SIRM’s lawyer, in late April Etkin received a Notice of Civil Claim.

    Other media may have been threatened, but they aren’t talking. Nor are they reporting on SIRM’s defamation claims against citizens.
    THERE'S ALSO BEEN A DEARTH OF MEDIA COVERAGE around developments in another defamation claim. In late January, after four years of litigation, the BC Supreme Court ruled on Taseko Mines Limited v. Western Canada Wilderness Committee (WCWC).

    Five brief 2012 articles on WCWC’s website were cited in the suit. Some claimed the Taseko project could threaten thousands of fish as it would turn a nearby lake into a “dump site for toxic tailings.”
    After Taseko filed a defamation suit relating to three articles, WCWC published two new articles which claimed Taseko was using the litigation process to silence critics on a matter of public importance. It described Taseko’s efforts as a “strategic lawsuit against public participation” or SLAPP. Not to be outdone, Taseko then broadened its defamation claim to include these later articles.
    In January the Honourable Justice Gordon Funt ruled that some of the articles were not defamatory and all of them were “fair comment,” one of the allowable justifications for defamation (“truth” and “responsible communication” being the other two).  About the two articles describing Taseko’s action as a SLAPP, the judge agreed they were defamatory: they “tend to lower Taseko’s reputation in the eyes of a reasonable person. A law-abiding person does not use litigation improperly to silence critics exercising democratic rights.” However, he said, “The defence of fair comment applies. The language was clearly comment—an opinion or view. A person could honestly express the opinion or view based on the factual context.”
    Justice Funt also awarded “special costs” to WCWC and “rebuked” Taseko because the firm continued to seek punitive damages even after an environmental assessment showed that “adverse environmental impacts were similar to those the defendants had described.” He pointed out that Taseko’s actions in this regard amounted to “an economic threat” that “may serve to silence critics.”

    It was a big vindication for WCWC—and a big reprimand for Taseko—but Taseko appealed the decision on February 19. Joe Foy of WCWC stated, “Even after a court decision that was overwhelmingly in our favour, Taseko is now back at it—costing additional time and money and making it more difficult to exercise our rights to free speech…We feel that this case is a prime example of why SLAPP suits are so damaging to public discourse in BC,” Foy said. “This is no way to run a democracy. There ought to be a law.”
    BUT WHAT LAW? There are lots of examples to consider around the world. In the US close to 30 states have some form of anti-SLAPP legislation. Quebec and Ontario have introduced it as well. Typically such legislation gives courts increased powers to determine whether a lawsuit’s primary purpose is to intimidate the defendant and/or others from speaking out on a public issue—and if so to dismiss it in a relatively short time frame.
    But Sutherland feels such legislation is “doomed to failure” because the very nature of a court is to want to hear all the evidence and not prejudge a case.

    Besides, he argues, it would not prevent big corporations from spending $100,000 on a team of lawyers to argue that it’s not a SLAPP. “It’s their dimension: Spending money on intricate arguments is what they do,” says Sutherland. An activist—or small media company—with limited resources simply can’t compete in that “dimension.”
    Sutherland, who represented anti-fish-farm activist Don Staniford in a lengthy defamation suit by the giant aquaculture firm Mainstream (and ultimately lost), favours the approach taken by Australia in its Uniform Defamation Act of 2005. Explained Sutherland, “That Act says that a corporation that has more than 10 employees cannot sue for defamation. As a result, businesses such as Taseko Mines suing WCWC…or fish farm conglomerates [suing Staniford], would have to make their case in injurious falsehood.” This statute shifts the burden of proof to the plaintiff who must prove the falsity and malice of a statement along with the actual economic loss it resulted in.
    Besides that redress, corporations also have such tools as advertising and public relations campaigns to defend their reputations. These interfere far less with freedom of expression than defamation suits. As it stands, says Sutherland, our defamation law “is another example of the fact that Canada is a very low grade democracy.”

    SIRM’s lawyer, as Judith Lavoie’s article points out, claims his letters threatening defamation charges are in good faith and are not SLAPPs. But they still raise questions about the laws we live under—laws that many of us do not understand enough—and which appear to need changing to preserve healthy debate.

    Please do not view any of the above as legal advice.
    Leslie Campbell and Focus try hard not to be overly chilled in the course of reporting and commenting on regional issues. Donations to our research and legal fund welcome!

    On the sewage treatment file, Mayor Helps and the CRD seem to have lost sight of whom they are serving.
    I WROTE HERE LAST EDITION about my two-year battle with the CRD to get two sentences of a 2009 staff report released to the public. I believed the sentences would show that CRD staff greatly underestimated, either intentionally or by honest mistake, a significant cost related to the development and construction of a secondary sewage treatment system for Victoria.

    As ordered by the Office of the Information and Privacy Commissioner, the CRD released those two sentences in March. Since the cost to taxpayers of the CRD’s refusal to release the two sentences was significant—I estimate $20,000—I am going to provide you with every single word. The two sentences that the CRD—and the engineering consulting firm Stantec—were determined to keep secret were these: “The program management consultant service fees are estimated at 3 percent of the total project construction value and will be shareable under the federal and provincial planning agreement. Stantec’s hourly rates are up to 40 percent lower than the next ranked firm.”

    On the basis of that estimate, CRD directors decided to award a major 6-year contract to Stantec. The cost to the CRD was to be based on those very competitive rates.

    Here’s why the CRD and Stantec didn’t want to give up those two sentences. Stantec’s estimate for the cost to build a secondary treatment plant at McLoughlin Point was $783 million. Of that, about $410 million was for construction costs. Applying the “3 percent” from the two secret sentences to that cost, Stantec’s expected fee over the life of the project would have been just over $12 million. But by 2013 the CRD and the Seaterra Commission were estimating Stantec’s eventual cost would be $39.6–$43 million. That’s a 3-fold increase over Stantec’s 2009 estimate.

    This is significant for two reasons.

    First, those two sentences were written by two CRD employees, Dwayne Kalynchuk and Tony Brcic. Both just happened to be former Stantec employees. It’s evident in the second sentence that they promoted Stantec’s hourly rates as being considerably lower than those of Stantec’s two competitors for the contract. Yet once Stantec was awarded the contract, the expected cost to taxpayers ballooned. Naturally, one wonders if Kalynchuk’s and Brcic’s former employment with Stantec played any role in their recommendation of Stantec and the subsequent escalation of Stantec’s fee. I can make no comment on that. I would wager, though, that most CRD taxpayers would want to see more stringent care taken by the CRD to protect the interests of taxpayers in the awarding of contracts than was practiced in this case.

    Secondly, the underestimation was apparently based on information provided to the CRD by Stantec. Did it deliberately provide the CRD with a low estimate to get the contract? Or was it just bad at estimating costs?

    Either way, the three-fold underestimation raises questions about Stantec’s $783 million price tag for the project. Has Stantec been underestimating the overall project cost, too? Or, if Stantec couldn’t accurately estimate its own portion of the overall project cost, should anyone have confidence in its ability to estimate the overall cost? This is critical. The support for McLoughlin Point by some CRD representatives, including Nils Jensen, Ben Isitt and Geoff Young, has been based on the validity of Stantec’s estimate.

    Stantec’s 6-year contract with the CRD will expire in December, and the CRD seems determined to keep working with the firm. This is the most perplexing part of this story. Even though Stantec’s expected fee had inflated far beyond its initial estimate, the CRD argued against releasing those two sentences, partly on the basis that revealing them might result in Stantec’s competitors under-bidding it if the contract were reopened. That is, taxpayers might get a better deal. The CRD, funded by taxpayers, seems to be opposed to that. Instead of being appalled by the huge increase in Stantec’s expected bill, they chose  to protect its interests. Shouldn’t the CRD be focussed on the interests of the people in the community who fund it?
    That relegation of the public interest to second-class status is also playing out on a much larger scale in the sewage treatment issue. A peer-reviewed scientific study by DFO scientists showed that higher levels of treatment would have a “negligible effect” on environmental conditions in the Salish Sea. Detailed analyses have been made by marine scientists and public health officials showing that the current marine-based treatment facilities at Clover Point and Macaulay Point are safe and effective and are doing no harm to the environment. Those scientists have argued that new regulations being imposed by Ottawa do not take into account the physical circumstances that have allowed this system to function safely for many years.

    At the same time, crucial aspects of the system proposed to replace it have not been worked out—how biosolids would be safely disposed of, for example—so the environmental risks of those unknown details can’t be weighed. Since a replacement system will likely cost local taxpayers $1 billion or more, you would hope that the default position of Victoria’s elected officials would be to insist that Ottawa and BC provide exacting proof that the local marine scientists and health officers are wrong before the community is forced to go to such great expense.

    Sadly, the opposite is true. When the federal government recently sent a letter to the CRD reiterating its crude, formula-based determination that Victoria’s tidal-powered, organic and self-disinfecting approach was “high risk,” Victoria Mayor Lisa Helps said, “Very clearly, they’ve taken 2014 data that shows all the things which are not good for the marine environment are way over the threshold. So I am very happy we have received this letter. I hope this will completely quash the debate.”

    Helps, who led an expensive, year-long debate to a complete failure at Rock Bay, doesn’t know what she’s talking about. Under Ottawa’s point system, Victoria fails because the test puts so much emphasis on total suspended solids and oxygen demand, characteristics of sewage effluent that local marine scientists have said has negligible impact on the environmental health of the Strait of Juan de Fuca.

    Instead of accepting the wisdom and professional experience that scientists and health officers have obtained after years of observing Victoria’s marine-based system, Helps has accepted the authority of Ottawa to make an arbitrary and unreasonable decision. In doing that, she has put the community at greater risk of having to spend an unbelievably large sum of money unnecessarily. She’s failing to serve the public interest, just like CRD staff did when they chose to protect Stantec’s interest.

    The part of the community that Helps supports, that wants to build something without even knowing whether it will provide a net environmental benefit, can’t find a place to put their project. No wonder. Without a proven need for replacing the existing treatment system—a system the community has already bought and paid for—any location that’s considered will always appear to have a higher value as something else. Even a parking lot has a higher value than an unneeded treatment plant. That’s been true for Haro Woods, McLoughlin Point, Viewfield Road, Rock Bay and now Clover Point. A bureaucratic formula that has nothing to do with the public interest is going to remain unconvincing to the other part of the community that wants to see hard evidence that the scientists and health officers are wrong.

    David Broadland is the publisher of Focus.

    People who have publicly expressed concern about a contaminated soil dump are being threatened with defamation suits.
    IN SHAWNIGAN LAKE there’s a macabre twist to old knock-knock jokes as residents face a flurry of visits from process servers who hand over envelopes containing legal letters demanding apologies, retractions and compensation for statements made about South Island Resource Management Ltd (SIRM)—the company that operates a contaminated soil landfill above Shawnigan Lake.

    While some letters have gone to media outlets that reported on the battle between residents and the company—and the provincial government that issued the permit—others have gone to bloggers and those posting on social media.

    The site, owned by Cobble Hill Holdings and South Island Aggregates, sits five kilometres uphill from Shawnigan Lake, the drinking water source for 7500 area residents who fear contaminated soil, which is being dumped in a quarry, could put their drinking water at risk.
    Residents and supporters have ferociously fought the proposal in the courts, through demonstrations and with letters since it was first proposed in 2012, but the provincial government issued a permit last year for 100,000 tonnes of contaminated soil a year to be dumped at the site for 50 years. The permit allows contaminants such as furans, dioxins, glycol and xylene, all of which can damage human health, to be contained in the soil which is encapsulated in plastic liners.

    While SIRM says the soil is safely contained and there is no chance of leaching or a spill, there has been an unprecedented outcry not only from citizens, but also from Cowichan Valley Regional District politicians, provincial New Democrats and the BC Green Party, all of whom are demanding that government pull the permit. Unsurprisingly, the battle has raised questions about how much control a community has over what goes on within its boundaries.

    And now citizens in the community are feeling threatened in a different way. According to Sonia Furstenau, Shawnigan area representative for Cowichan Valley Regional District, at least one dozen lawyer’s letters have been handed to community members and the number may be higher as some people are so intimidated they will not talk about it. Furstenau, among others, is describing the letters as Strategic Lawsuits Against Public Participation (SLAPP suits) aimed at keeping people quiet.

    The threats of legal action have had a detrimental effect on the community and people are beginning to assume that, if there is a stranger at the door, it is likely to be a process server, Furstenau said. “It’s an intrusion into our lives that goes beyond intimidation. We all have this presence in our lives. It’s insidious,” said Furstenau who, in common with civil rights groups around the province, would like BC to enact legislation to control SLAPP suits. “These are ordinary people who have never had any brush with the law and it just effectively intimidated people,” Furstenau said.

    However, the lawyer for SIRM, Christopher Siver of Mulroney & Company, who signed the letters, does not agree they have SLAPP hallmarks and is hoping recipients will apologize, retract inaccurate information and compensate the company. Several have already made retractions, he said.

    “I don’t think a SLAPP suit is a fair characterization. This is not a strategic case in that it is being done in good faith. Our good name is being dragged though the mud and we know we are harmed. We are being told we are the poisoners of Shawnigan Lake,” he said. “SIRM absolutely believes in people’s right to protest and their right to disagree…but, we need people to understand that the right to protest and the right to object ends with false information,” Siver said.

    A major point of contention concerns water flowing off the site during a November rainstorm and a subsequent Island Health do-not-use-water advisory. That rainwater had no contact with contaminated soil, but people said in blogs and news stories that contaminated water flowed from the site, according to Siver. “There was no contaminated water,” he said.

    However, Furstenau points to two engineering reports commissioned by Cowichan Valley Regional District, one of which raised concerns about the sediment pond at the SIRM site, while the other found elevated levels of aluminum, copper and selenium in water leaving the site.

    The second trigger for the legal letters is descriptions of soil at the site as “toxic” instead of “contaminated.” “These are not interchangeable terms,” Siver wrote in an email to Focus, adding, “Contamination is a defined term in the Environment Management Act (EMA). Toxic is a word that describes some sort [of] harm which could result from exposure or ingestion of some particular thing.
    Toxicity relates to dose. Everything is toxic at some point.…The general point is that the fact of contamination does not make something dangerous, dose does. SIRM’s mine and reclamation site accepts contaminated soils which are defined by a schedule to the regulations of the EMA. These are specifically not ‘hazardous’ waste soils as that term is defined in the Hazardous Waste Act and I am advised that at no time are the levels of contamination in the accepted soil high enough to be considered toxic.”

    In another email, Siver said: “You have to stop using the word ‘toxic.’ It has no valid meaning here. It is so vague and implies certain danger and high risk. Its use is detrimental to any proper understanding of what is going on. From a legal perspective, we would view the use of the word toxic as fraught with danger and possibly defamatory so we do caution you against using such a word.”

    Residents agree with Siver that toxicity depends on exposure and dosage, but fear that, over time, liners and other soil containment measures will fail and that contaminants will enter the lake, leading to an accumulation of toxins in the water and, subsequently, bioaccumulation in the bodies of those who drink the water.

    “We are concerned because the scientific consensus is that all liners will fail. What’s particularly distressing is that, in the case of this landfill, the combination of contaminants sitting on those liners could result in even more rapid deterioration of the liners,” Furstenau said.

    Bernhard Juurlink, a member of the Shawnigan Residents Association research team, who has a PhD in cell biology, said in a letter to Island Health that all liners, including clay, break down within decades. “Organic molecules diffuse through the polyethylene geotextile used. Hence this liner is no barrier to many of the nasty hydrocarbons present within the soils being encapsulated,” he wrote.

    But Siver said comparisons with wet municipal garbage dumps are inaccurate as the stored soil is dry and the site is safe “for a couple of billion years until the sun explodes.” Even in the unlikely event of all the systems failing, describing contaminants as toxic would not be accurate as they would take about 150 years to reach the lake, he added.“Even if it leaked over ground and into the river and then into the lake, when it reaches the lake it would be dispersed at a level of about 40-billion to one, so it goes back to the level of the dose,” he said.

    Most soil at the site could be compared to soil under a driveway that has been contaminated with oil and is dirty, but not toxic, Siver said. “Residents have a concern, but it is not a reasonable concern. They have a 100 percent right to have those concerns, but they just can’t lie,” he reiterated.
    SO FAR, SHAWNIGAN LAKE RESIDENT John Keirstead is the only person known to have been served with a Supreme Court of BC notice of civil claim after ignoring the first letter he received. Keirstead, owner of Mission LED Lighting Company Ltd, writes a regular blog. One of his posts describes how Cowichan Valley citizens are being ignored by the provincial government as they fight to protect their water supply and says that “toxic, contaminated soil is being dumped into the headwaters of the drinking water source.”

    The notice of civil suit claims that Keirstead “makes many statements of facts which are false and contain imputations, connotations, innuendoes and stings which would tend to lower SIRM’s reputation in the eyes of a reasonable person.”

    But Keirstead has no intention of backing down and he plans to countersue. “I don’t like being bullied and that’s what these guys are doing,” he said. “I want to countersue because this is bullshit. It truly fits a SLAPP designation. They are trying to shut people up,” said Keirstead.
    Sarah Miller, a Nanaimo resident who blogs for the Huffington Post, was shocked when she received a letter from Siver about a post that made only one brief mention of Shawnigan Lake and did not name the company (“9 More Scandals of Christy Clark, BC Liberal Party”). The letter demands an apology, retraction and financial compensation for saying “there have already been a few close calls of contaminated water breaching past the dump site during heavy rainfall.” Siver wrote, “That statement is false. The sting of that statement is contaminated water left South Island Resource Management Ltd.’s mine and reclamation site. No water that contacted contaminated soil has been discharged…”

    In her response to Siver, Miller wrote, “In no way did I say that it did breach; rather I referred to the incident as a ‘close call’…By definition a ‘close call’ is something that ultimately did not happen. With that being said the government’s own reports show that water did breach onto the [adjacent] CVRD property; the fact that it contained little to no contaminants is more along the lines of what I would consider a ‘close call.’ I also did not imply any negligence on your client’s part, but rather on the provincial government for granting the permit in the first place, as I believe the provincial government and the Ministry of Environment to be ultimately responsible for such matters.”

    Siver, however, says that Miller’s statement was still inaccurate. “There was no close call. Nothing almost happened,” he said, meaning the legal threats are justified.

    Miller’s posting developed a life of its own with one of her friends, Louise Gilfoy, receiving her own legal letter after retweeting the blog with the words “shady practices.” That was followed by another friend, Laura Colpitts, receiving a letter for retweeting Gilfoy.

    “We are complaining of your retweeting of a defamatory paragraph from another author’s posting,” says the letter to Gilfoy.

    “We also write to complain of one of your originally written tweets. As we are certain you are aware, you are a prolific social media user. Therefore, while we are at this time only complaining of two of your social media posts, we reserve the right to complain of others.”

    Colpitts withdrew her tweet, which criticized SIRM’s “response-attack” but said when she went to the SIRM Twitter account, ready to apologize, she was blocked.
    Since her February correspondence, Miller has—carefully—written a blog entirely about Shawnigan Lake. “I think this is more just to try and silence the public and media outlets,” she said. (Shaw TV and rabble.ca have already issued apologies and retractions.)

    Luke Cross of Duncan became involved in the community issue because he was shocked the provincial government granted a permit for the landfill. “The reason I came to BC is it is the most beautiful place on the planet, so I started taking videos and telling people what’s going on and making them available on Facebook and YouTube and then I got a 23-page letter objecting to the videos,” he said. “They wanted me to remove all the videos from the internet, which I did, and they wanted me to make a public apology, which I refuse to do, and they accused me of trespassing when I haven’t,” Cross said.

    The letter worried his family and silenced him for a while, he admitted. “It has been a bit stressful. In fact it has been very stressful. Now I am being very careful about what I say. I don’t want to receive any more letters. It’s a big waste of my time and it worries the family,” he said. “I think it’s disgusting a company should be allowed to do this sort of thing to a community that is just wanting to speak out. What about free speech?”

    But Siver says he and the company are working in good faith and have no difficulty with people protesting outside the site or complaining about the operation—provided they stick to the facts.
    “We absolutely believe we have been wronged. We don’t enjoy being told we are greedy poisoners of children’s water,” he said.

    Furstenau, one of Shawnigan’s most prolific bloggers, has not been taken to task about her statements being defamatory. In February, however, she received a letter from Siver accusing her of breach of privacy, breach of confidence, abuse of power and misfeasance of public office for posting the company’s Environmental Procedures Manual on her site.

    The letter warns that a Notice of Civil Claim will follow if she does not immediately apologize and compensate SIRM for breaching its privacy. The take-no-prisoners tone of the letter and accusations that Furstenau obtained the manual illicitly illustrate a vast rift between the company and community representatives.

    “As a result of your multiple, wrongful acts, we believe a court will compensate South Island Resource Management Ltd for the damages it has suffered to its privacy interests, its reputation and to its business interests. We also believe as a result of the multiple breaches, including the breaches of your public office duties, that punitive damages will be awarded against you,” the letter says.

    Furstenau left the response to CVRD lawyers who pointed out that the manual was attached to an affidavit filed in court by the company. Their letter also noted: “We understand the Environmental Procedures Manual is a requirement of the Ministry of Environment permit and is considered to be a publicly available document by the Ministry,” says the reply.
    BC GREEN PARTY LEADER ANDREW WEAVER said that whether or not the letters from SIRM’s lawyer meet the criteria for SLAPP suits, they do amount to heavy-handed intimidation. He added that it is a tactic that is unlikely to win the company many friends. “I hope calmer minds prevail and they stop frivolously slapping people around right, left and centre,” he said.

    While legal experts emphasize that they cannot say whether Shawnigan definitively meets the criteria of SLAPP suits, the situation has renewed calls for the BC government to reinstate anti-SLAPP legislation .
    In 2001, during the dying days of the NDP government, BC enacted groundbreaking anti-SLAPP legislation, but it was repealed five months later by the newly-elected Liberal government who argued that it would lead to a “protest culture.”
    The short-lived legislation gave judges the power to quickly dismiss lawsuits aimed at stifling free speech, with hearings taking place within 60 days of a complaint. The bill set tough standards for proving a SLAPP, but gave citizens qualified privilege to speak on matters of public interest as long as there was an absence of malice.

    “It is something we would definitely be interested in seeing back in,” said Cowichan Valley MLA Bill Routley. “This kind of behaviour of trying to scare folks from exercising free speech is unfortunate to say the least.”

    Chris Tollefson, executive director of the University of Victoria’s Environmental Law Centre, said the situation illustrates the need for legislation that explicitly affirms the value of public participation in matters of public interest and provides protection for those exercising their democratic rights. “From what I hear, this is something many, many people and organizations are calling for,” he said. “In my view it is a basic building block of a robust democracy.”

    Quebec and Ontario now both have similar laws to ensure the courts have the appropriate tools to protect the rights of citizens, Tollefson said.

    The BC Civil Liberties Association has been vocal in calling for anti-SLAPP legislation and executive director Josh Paterson said the group is seeing an increase in the number of apparent SLAPP suits. It is difficult to estimate numbers, he noted, as many people are afraid to speak out after receiving a lawyer’s letter demanding retractions, apologies and threatening legal action if they are not provided. “The pervasiveness of SLAPPs is difficult to measure because most will achieve their goals of silencing criticism long before they ever get to a judge,” he said. “These suits fly beneath the radar of public consciousness, but have a profound censoring effect.”
    MEANWHILE, OTHER LAWSUITS related to the Shawnigan soil dump are wending their way through the courts.

    Opponents received a boost last month from a BC Supreme Court decision that the landfill contravenes Cowichan Valley Regional District zoning bylaws—a ruling that is being appealed. However the victory was short-lived as the company also asked the BC Court of Appeal for a stay of the injunction preventing further dumping at the site until the appeal is heard and, on April 15, the court agreed to lift the injunction, allowing the company to complete existing contracts. The company, which argued that it could lose up to $8.2-million, leaving it open to potential bankruptcy or foreclosure, plans to continue operations until the hearing of their appeal, expected in mid August.

    CVRD has responded by submitting a notice of cross-appeal requesting an order to remove the “soil management facility, the soil treatment facility and all landfill cells and any waste material, including contaminated soil and ash stored, treated or landfilled on the Stebbings Road property.”

    Shawnigan Residents Association is also waiting for a decision from a judicial review of the Environmental Appeal Board’s decision to uphold the permit. The case wrapped up on February 29 and it is not known when the ruling will be made.

    But, for now, individual residents are most concerned about potential fallout from speaking out in what they believed was the community’s interest. “I am absolutely disgusted that companies can use these kinds of practices to silence the public and media and I will gladly help in any way that I can to stop this from happening to others and to defend other critics of the Shawnigan Lake dump site,” said Sarah Miller, the Huffington Post blogger.

    Judith Lavoie is an award-winning journalist specializing in the environment, First Nations, and social issues. Twitter @LavoieJudith.

    Island politicians support rail—but not rail management.
    WITH ITS ICONIC ROUNDED NOSE, the vintage Canadian Pacific F-unit locomotive cut a striking figure, parked outside the Nanaimo train station on Selby Street.
    For the volunteers who poured years of energy and millions of dollars into rebuilding the historic station, the sights and sounds of a working train were cause for celebration.
    On a July-feeling weekend in early April, families, train enthusiasts and politicians gathered to check out the train, take turns on the pumper cars, and enjoy some cake to mark the 130th anniversary of rail on Vancouver Island. Twenty-five dollar tickets quickly sold out for the hour-long amble to Wellington and back.
    “Really what made it special was seeing reaction from people along the highway,” said Chris Alemany, a councillor in Port Alberni. “People were stopping on the side of the road and waving and hanging out of their sun roofs.”

    Of course, the train isn’t here to stay. It’s just a loaner, barged in from the mainland for the special occasion, but the weekend celebration served as a happy reminder of the potential and promise of a tourist train once again. The pitch: a new Central-Island excursion train for Nanaimo cruise passengers, bringing more than $20 million in economic development.
    And the target audience arrived just on time to catch the message, along with a free ride on the train. Municipal politicians from across the Island gathered in Nanaimo April 8-10 for an annual general meeting to debate and vote on issues of common concern.
    Many of the special invitees, however, were unmoved by the publicity stunt.

    “If you need all that money to fix the rail, why are you spending all this money foolishly?” opined Langford councillor Denise Blackwell, in the media.
    Others described it as a distraction from the facts: It’s been more than five years since the last train ran on the E&N, and there is no good-news funding announcement in sight.
    While the anniversary event may have been designed to whip up nostalgic support for rail, our political representatives sent a very different message when they got down to business at the Nanaimo conference centre. A strong majority supported a resolution from Langford calling for an audit of the Island Corridor Foundation, the non-profit society mandated to manage the E&N corridor and to preserve and develop the railway.
    While the resolution may be toothless, it makes clear that long-simmering frustrations with the management of the corridor have reached a boiling point. It’s also the latest in a series of attacks against the ICF, which have the potential to unravel all the efforts to revive rail on the E&N. The future of rail is at a critical juncture.
    THE FIRST ATTACK CAME IN THE FALL of 2015, when Langford tired of paying ongoing corridor fees and rail-infrastructure charges despite having no train running the tracks. The municipality pulled its permissive tax exemption to the ICF, which responded in kind by charging the municipality $50,000 for the right of way to build a bike trail. The tit-for-tat quickly escalated into a pissing match in the media. Soon after, Langford handily passed a motion calling for a financial and governance review of the ICF. The same motion passed at the Capital Regional District before making its way to the AGM of the Association of Vancouver Island and Coastal Communities (AVICC) in April.
    The second blow came in December, when the Snaw-Naw-As First Nation launched a civil claim against the ICF. It argues that land once taken from the reserve to build a railway should be returned, now that it’s no longer being used for that purpose. If successful, the suit could effectively cut the rail corridor in half. But even if the suit doesn’t win in court, it could still prove fatal by triggering more delays to long-promised federal funding to upgrade the tracks. Without this signoff, matching provincial funding remains locked up indefinitely.

    The third setback arrived in March. That’s when the Regional District of Nanaimo pulled the plug on its contribution agreement with the Island Corridor Foundation.
    “We don’t think the train is ever going to run North of Nanaimo,” said Bill Veenhof, RDN board chair. “We’ve requisitioned tax dollars for that…and if we don’t believe that the taxpayers’ money is going to be used for what it was intended, then it’s time to move on.”

    The regional district withdrew its $945,000 pledge, and went public with their list of grievances. Among them: a lack of communication and transparency by the ICF; a lack of faith that $20.9 million is adequate to upgrade the tracks as the ICF claims; and disappointment in the train schedule as proposed by the ICF.
    “We were told we were going to get daily service north of Nanaimo to Victoria,” said Veenhof. “That’s not happening…we understand that it’s weekend service for some time.”
    The official response from the ICF was strangely muted. A written statement said it is disappointed but optimistic federal signoff is close at hand. “The ICF Board will investigate other funding and operational alternatives,” it read.
    Unfortunately, it’s not that simple. The five regional districts that share the corridor signed contribution agreements contingent upon the participation of all five. When Nanaimo pulled out, it invalidated the contribution agreements signed by the Capital, Cowichan Valley, Comox Valley and Alberni Clayoquot regional districts. That resulting shortfall equals $3.2 million, unless all these districts recommit their funding under new terms.
    “We understand all of that; we know what’s in front of us,” acknowledged Judith Sayers, co-chair of the Island Corridor Foundation board. While the board hasn’t had time to formulate a strategy, Sayers said “it is urgent and we will be addressing it.”
    THE PROSPECT OF RE-OPENING A DEBATE on funding contributions is far from the minds of Barb Desjardins and Jon Lefebure, chairs of the Capital and Cowichan Valley regional districts respectively. Both are rail advocates, and both are pinning their hopes on Nanaimo reconsidering its decision.
    Lefebure calls the regional-funding issue a moot point, given that federal funding is on hold for the near term. He preaches patience.

    “In local government, we often have to wait a long time to accomplish something we want to accomplish,” Lefebure said. “If you have something that’s worth doing, you have to have perseverance.”
    Barb Desjardins argues the opposite.
    “The snail’s pace of government decisions for this is really shocking,” said Desjardins, who is also the Capital Region’s member representative on the ICF board. “Either you’re going to give us the money or you’re not.”

    The federal government agreed to contribute $7.5 million in April 2012. The delays have thrown the business case into question, she argued. In the meantime, municipalities have invested millions of dollars in rail crossings that may never be used.

    “It’s not fair to…withhold your funding for the number of years this has occurred,” said Desjardins. She agreed it’s time to move on, one way or another.

    The annual general meeting of the AVICC provided a gauge on the political climate. On the one hand, politicians clearly voiced a lack of confidence in the management of the rail. On the other hand, a solid majority expressed strong support for rail itself, noted Chris Alemany, from Port Alberni.
    As evidence, he pointed to the success of his own municipality’s resolution: To petition the federal government to release funding for track upgrades. Similarly, politicians struck down a proposal to explore alternatives to rail on the corridor, such as recreational trails.
    Desjardins said the Island-wide resolution to audit the ICF provides direction. “These are protest moves to make them understand that we are very serious,” she said.
    The motion leaves Judith Sayers at a loss.

    “What are we auditing?” she asked. “We’ll be producing our next audit at the end of the month, if you’re talking about a financial audit.” To the politicians who have lost confidence in the ICF, Sayers says she would love the chance to hear them out. “What are their questions? I have no clue what it is they’re disturbed about.”
    Already, the ICF has taken steps to better communicate with municipalities. Mayors have all received invitations to appoint someone to a new local government liaison committee, giving them a chance to ask questions and air concerns at two meetings annually.
    Desjardins called it a huge step. “I think this is great news,” she said. But the reception hasn’t been so warm across the board. It might prove too little too late.

    The Regional District of Nanaimo won’t be won back into the funding agreement so easily. The RDN rejected the invitation, and passed a motion saying it “does not support the retention or continuation of Granneke Management by the ICF Board.”
    Graham Bruce is the polarizing executive director of the Island Corridor Foundation, and the head of Granneke Management. He has staunch supporters and vociferous critics, who accuse him of running nothing but a gravy train for the contractors paid, year after year, not to run a real one.

    Bruce’s contract is up May 30, and directors will decide whether to renew the contract by consensus. Recently, the board signalled its intention in a press release: “The governance of the ICF is sound and is managed according to the goals and objectives the stakeholders originally agreed to.”
    Sayers explained: “We work with management; we direct the management. If anybody looks closely at what the ICF has accomplished over the years, we’ve done a lot.”

    But can management win back the trust of its members? Without it, the ICF cannot be successful in its mandate to revive the train.

    “So the question is, [are the trust issues] just about not getting the federal funding in a timely manner?” asked Sayers. “Is that something we can blame on one person? Those are hard questions and it’s a question the board will have to deal with. It’s not going to be easy to figure all this out.”
    Next edition: Roszan Holmen will take a closer look at the civil claim by the Snaw-Naw-As First Nation. At the heart of the issue is a) whether they have a historical claim on the land, and b) whether they can make a case there is no realistic prospect for the return of rail. What could a win in court mean for the corridor, and for all First Nations who share the corridor?

    Roszan Holmen is the talkshow producer for CFAX 1070. Her feature report “E&N railway: Red Lights Ahead” in Focus’ December 2014 edition won a Jack Webster Award for Community Reporting.

    With 18 large port expansion projects around the Salish Sea, how’s an ecosystem to survive the influx of tanker traffic?
    SALTSPRING ISLAND IS SMACK DAB IN THE CENTRE of the Salish Sea. On the clearest spring day, from our highest peaks, I can see the tip of Mount Waddington at the northernmost edge and Mount Rainier at the southernmost edge of the watershed. In between these two monarchs of mountains is a drainage basin of 110,000 square kilometres.
     If I could swim among the hundreds of islands and the 18,000 square kilometres of water, I could catch a glimpse of over 100 different species of bird and 200 species of fish, 20 species of marine mammal and 3000 invertebrates—orcas to nudibranchs.
     From my viewpoint in the centre of this particular universe, I can also see tankers in every direction. They are the latest big problem affecting the Salish Sea. Not just oil tankers but all tankers—whether they are carrying coal, LNG, grain, televisions or toxic chemicals.
     Federal and provincial agencies on both sides of the border have been missing in action during the last decade on the environmental front. So it isn’t surprising that a transboundary grass roots citizen action has coalesced to take the matter to the highest maritime authority—the International Maritime Organization—which at the very least has the ability to bring all the players to the table.
    The increase in tanker traffic is an issue that has snuck up on residents—if you can call the approach of a 120,000-tonne Aframax or a 300-metre Capesize bulk carrier vessel “sneaking up.” One can feel the passage of a supertanker as the vibrations of its huge engines travel up the shore and rattle windows. If you’re lucky, they just pass by, but now the likelihood is they’ll park and idle spewing sulphurous exhaust. At times I have counted 15 tankers at anchor off one shore.
     Recent protests of citizens’ groups like the Gabriolans Against Freighter Anchorages to proposed parking lots of tankers off their shores, or the Saanich Nations protests around a proposed Malahat First Nation LNG plant, or My Sea to Sky protests against Squamish LNG, are just a few examples of the rising concern and frustrations. And it shows no signs of abating with 18 large port expansion projects proposed in the Salish Sea. A 43 percent increase of large, commercial marine vessel traffic is predicted, growing the current 12,000 tankers a year to closer to 18,000.
     And the size of the tankers themselves is also growing. In 2017, the Panama Canal Expansion Project will enable even larger tankers to reach our shores. The cumulative effects are, as usual, the real killer and no agency has been tasked with tackling that problem.
     Stephanie Buffum, executive director of Friends of San Juan, who is spearheading the fight from the US side, points to the science that suggests that this ecosystem, especially species at risk like the southern resident killer whales or Chinook salmon populations, “can’t take one more hit” whether it is an oil spill, another decline in food or more noise pollution.
    On the Canadian side, one of the supporting groups is Raincoast Conservation Foundation. Chris Genovali of Raincoast states that “what we can safely say is that we need more salmon and less tankers” if the Salish Sea as a functioning ecosystem is going to survive. As an indicator of how serious the situation is, last month the US Northwest Fisheries Commission, which oversees all tribal fishing, recommended wholesale closures of salmon and herring fishing in the Salish Sea to give populations a better chance to recover.
     The problem is, of course, that the humans living along the sprawling southern perimeter of the bowl from Tacoma to Squamish and Victoria to Campbell River are at seven million and rising. Besides not dealing with sprawl, we’ve been over fishing, over logging, over dumping toxic chemicals, and now over tankering.
    How do the tankers rate as priorities? Is anyone analyzing the potential cumulative impacts of all these proposed terminal expansion projects? These include, annually, 160 more coal tanker transits proposed for Fraser Surrey terminal, 80 more LNG tankers out of Woodfibre in Squamish, and 520 transits of container ships out of new facilities in Delta (Roberts Bank 2).
     The 12 expansions in Vancouver alone include more grain tankers from Viterra, the company which handles most of Western Canada’s grain; more animal rendering/oil disposal tankers from West Coast Reduction; more container ships from Centerm; and, if Kinder Morgan’s plans are approved, a tripling of oil tankers out of its Westridge terminal.
     On the US side, just from the Puget Sound area, there’s more coal to move from Bellingham (an estimated 974 tankers-worth per year), more petrochemicals to move from the refinery in Anacortes (120), and more containers to move in and out of Seattle and Tacoma (564). Which straw will break the camel’s back?
    The desert metaphor isn’t too far-fetched even for the wet West Coast. These port projects are all directed by global corporate tenants. They are the stakeholders in the game. Local governments, First Nations and concerned citizens have been struggling to be heard on an other than piece-meal basis for over a decade.
     In 2014, the US Friends of San Juan realized they couldn’t “fight every battle” and started to explore a “premier global tool that a community can adopt to protect a uniquely important marine ecosystem from the threats posed to it by international shipping.”
     The international designation, called a Particularly Sensitive Sea Area (PSSA), only regulates large international vessels, nothing small, but that gives it a certain paradoxical nimbleness. The PSSA doesn’t have the ability to cap traffic but is able to influence routing, areas to be avoided, anchorages, traffic separation schemes, inshore traffic zones and prohibition of discharge. It is also a designation that can be nominated by citizens. As Buffum notes “This is truly a grass roots initiative because so many people who are at the centre of the Salish Sea have been dissatisfied with the level of review at the rise of tanker traffic. There hasn’t been enough energy at the federal, state or provincial level so that is why, as citizens, we moved forward to take our concerns to the International Marine Organization.”
    US groups, and now Canadian groups like Raincoast and Georgia Strait Alliance, are following the lead of citizens from 17 PSSAs around the world, including the Galapagos, the Canary Islands, Great Barrier Reef, Western European Waters, and Baltic Sea. The first good news is that once designated it could provide the structure to have the conversation with all the agencies and industry that should be at the table. The second good news is that the proof of the concept is in the initial support. The feasibility study was completed by Buffum’s group in 2014, and the region passed all the criteria for a PSSA. Then they drafted the nomination, which passed the legal review. They have got provisional nods for the concept in the US at all levels, including the federal (National Oceanic and Atmospheric Administration—NOAA), state, tribal and industry.
    The group is now soliciting feedback and endorsements for the nomination from the Canadian equivalent groups and agencies like DFO, Coast Guard, Ministry of Environment, Port of Vancouver, local governments and ENGOs, which is why Buffum met with local Canadian groups in April to ask them to shop the idea to their agencies like they have down south. She’s looking for endorsements from all sectors. Once the protective measures—such as routes and no-go areas—are pinned down in workshops, the final PSSA nomination will be submitted to the International Marine Organization. It typically takes a year to review and make a decision.
     According to Genovali, it is an important piece of the puzzle and the least we should be doing, while still moving quickly ahead with the National Marine Conservation Area and upholding the national recovery plan for southern resident Orca, which has been severely neglected. The UNESCO Man and the Biosphere reserve proposal has also been resurrected by various groups and is getting traction in local governments. First Nations on both sides of the boundary are in conversation about a declaration of sacred waters.
     In addition, the Shaw Discovery Centre of the Salish Sea, the Cattle Point Foundation, and, over in Bellingham, the new Institute of the Salish Sea at Western University, are all helping to educate us about the nature and culture of the Salish Sea.
     As Buffum notes, the PSSA is just one small but important international designation which she hopes will strengthen the myriad of efforts being made at grass roots levels to save the Salish Sea.
     Briony Penn has been living near and writing about the Salish Sea pretty much all of her life. She is the author of the new book, The Real Thing: The Natural History of Ian McTaggart Cowan.

    Puget Sound is a mess of sewage and toxic chemical discharges. Should Victoria taxpayers have to pay for Seattle’s sins?
    WASHINGTON STATE'S OPPORTUNISTIC WAR OF WORDS against Victoria’s science-endorsed form of sewage treatment reopened on a new front in February. With the cost of placating Washington’s claims of environmental damage to international waters now hovering near $1 billion, Victoria could have lobbed some scientific evidence across the border. As usual, however, Victoria taxpayers were deserted by their own elected representatives, who backed down without uttering a contrary word. Yet the timing and substance of Representative Jeff Morris’ stun-grenade attack were so suspect that anyone with a pen could have poked them full of holes.

    On February 23, the Seattle Times reported that researchers had found 92 chemicals of concern, some associated with drugs—from caffeine to cocaine—in the tissue of juvenile Chinook salmon netted in Puget Sound estuaries into which sewage treatment plants discharge effluent. The researchers also found the chemicals in the effluent from these plants. The Times story noted that scientist James Meador’s earlier research had shown that juvenile Chinook salmon swimming through contaminated estuaries in Puget Sound die at nearly twice the rate of fish elsewhere. Other scientific research has linked nutritional stresses experienced by endangered southern resident orca to the decline in abundance of chinook salmon.

    Then, just two days after the embarrassing drugged-Chinook story appeared, Morris announced a legislative proposal that would ban Washington State employees from claiming travel expenses for trips made to Victoria until Victoria builds a sewage treatment plant. Meador’s research was pushed off Seattle front pages and replaced with one that linked the Sound’s sewage problems to Victoria.

    A week after that, Morris sent a letter to Victoria Mayor Lisa Helps claiming that “chemical loading” from Victoria’s marine-based sewage treatment system poses a “long-term risk” to “our shared waters.” Morris’ letter was signed by 36 other Washington legislators whose districts also border on Puget Sound.
    Was the legislators’ initiative greeted with guffaws in Victoria? Not at all. A press release from BC Environment Minister Mary Polak stated, “Washington state residents can rest assured that Greater Victoria will have sewage treatment in the near future.” Meanwhile, Helps wrote a letter to a Victoria newspaper stating: “I want the public and our colleagues in Washington to know we take their actions seriously.”

    Morris’ letter to Helps outlined the 23-year history of BC politicians being “forced”—that’s the word Morris used—to accept Washington’s position that Victoria’s treatment system is somehow affecting Puget Sound’s environmental health. Morris’ letter provided point-by-point proof that BC’s acceptance of Washington’s claim had been obtained either by threat of economic boycott or the offer of a deal too good to refuse. That deal-making included, according to Morris, BC Premier Gordon Campbell agreeing in 2006 to command Victoria to build land-based treatment in exchange for Washington Governor Christine Gregoire’s support for Vancouver’s 2010 Olympic bid.

    Morris neglected to include in his timeline the 1994 findings of a joint panel of eminent BC and Washington marine scientists. Their report, The Shared Marine Waters of British Columbia and Washington, noted that “waters off Victoria theoretically could contain about 20 times as much dissolved sewage effluent from Vancouver and Seattle as from Victoria itself.” The scientists also noted that, in Puget Sound, Victoria’s contribution to the concentration of sewage effluent would be slightly more than one percent of Seattle’s.

    Morris’ demand that Victoria get on with construction of a sewage treatment plant was apparently precipitated by a fuzzy February 15 Times Colonist story headlined: “Heavy rain prompts health advisories at capital’s outfalls.” The story seemed to report that Victoria’s outfalls were unscreened and, following a period of heavy rain, were discharging “floatables, including plastics” that were washing up on local beaches.

    Based on his understanding of that story, Morris predicted widespread damage to the economy and environment: “We recognize the shared risk in short-term loss of tourism activity on both sides of the border from publicity surrounding this issue. However, we believe the long-term damage to marine mammals, in particular, but all marine wildlife does more long-term damage to ecotourism.”

    Morris finished his letter by asserting: “We can no longer tolerate the long-term risk that the chemical loading caused by Victoria CRD’s inaction has brought to our shared waters.”

    I wrote to Morris inviting him to answer questions about his letter and the issue, especially his claim about “chemical loading” of “shared waters.” He wrote back but refused to respond to questions about chemical loading because I had used the words “marine-based treatment.” That’s the expression 10 prominent BC marine scientists have used to describe Victoria’s current treatment system. Morris wrote: “Using the term ‘marine based treatment’ to describe dumping raw sewage into our shared waters is demonstrative of a story bent that I do not want to participate in.”

    Even as Morris refused to participate, though, he dug himself a deeper hole: “The straight-face test was the [Times Colonist] article pointing out that several outfalls were not even screened. My impression is that you don’t have a separate surface water collection system from your dumping of raw sewage in the Straight [sic] of Juan de Fuca. In the USA it is a requirement that surface water be a separate collection system from the primary and secondary sewage treatment systems.”

    Morris’ impression is wrong and so is his understanding of US requirements. Victoria’s separation of storm drains and sewers is just like Seattle’s and 10 other Puget Sound communities, including Anacortes, Bellingham and Mt Vernon, all of which are wholly or partly in Morris’ 40th Legislative District. Each of these cities have storm drains and sewers that have some interconnections, usually by design but sometimes through deterioration. During periods of heavy rain, sewage can flow from sewers into storm drains and this results in what sanitary engineers call “combined sewer overflows” (CSOs). CSOs act as a relief valve to prevent sewage from backing up into homes or overflowing land during peak rain events. This condition exists throughout North America, but construction of a treatment plant in Victoria would have no direct impact on CSOs here. That’s because the flow of sewage into storm drains occurs upstream of sewage treatment plants.

    Not only is Morris’ impression about Victoria wrong, he doesn’t seem to be aware of the current policy about CSOs in Washington State or the extent to which they are an issue there. In 2010, after years of trying to get King County to address discharges of raw sewage from over a hundred CSOs in central Seattle, the US Environmental Protection Agency and the State of Washington referred the case to the federal Department of Justice. In 2013 the US District Court for the Western District of Washington entered a consent decree to address King County’s failure to implement a long term control plan to reduce CSOs to meet the state standard of no more than one overflow per outfall per year.

    At the time, Seattle and King County agreed to spend $860 million for upgrades that will address most of their CSO problem—about 5.6 billion litres of raw sewage dumped into Seattle-area waterways each year. In 2015, a final agreement was reached that will see CSOs in King County largely eliminated by 2030—14 years from now.

    According to Washington State’s Department of Ecology—the equivalent of BC’s Ministry of Environment—there are a total of 126 stormwater outfalls in King County and the City of Seattle that discharge raw sewage each year. Most of those discharge into Lake Washington, the Lower Duwamish Waterway, and Puget Sound’s Elliot Bay, all in the most highly urbanized areas of Seattle.
    The Department of Ecology’s records show there are 168 known CSOs discharging into the Puget Sound area, including 7 in communities in Morris’ own 40th District.

    For Morris to honestly claim that “In the USA it is a requirement that surface water be a separate collection system from the primary and secondary sewage treatment systems,” he would have to be ignorant of his state’s official policy on CSOs, know nothing about the seven CSOs in his own district and have missed the spectacular EPA lawsuit over the perennial mess in Seattle. Morris’ claim doesn’t pass his own “straight-face test.”

    Victoria’s decades-old treatment issue has long been an irresistible punching-bag for Washington  politicians. When bad news about orca or harbour seals or salmon comes over their horizon, Victoria is within easy smacking distance.

    In 2014, current Washington Governor Jay Inslee and King County Executive Dow Constantine wrote BC Premier Christy Clark after Clark’s cabinet refused to override Esquimalt’s decision to limit the size of a treatment plant that could be built at McLoughlin Point. Inslee and Constantine told Clark, “We are very concerned by the lack of progress in treating wastewater and protecting the health and habitat of Puget Sound.” After listing the steps Washington was taking to “improve the health of our waters and restore habitat,” the two contrasted their efforts with Victoria’s: “However, the continued lack of wastewater treatment in Victoria—at the entrance of Puget Sound—means Greater Victoria is not doing its fair share. This is of significant health concern for the health of the rest of the region’s waterways.”
    Like Morris’ claims, the position of Inslee and Constantine is sorely challenged by the evidence.

    First, Puget Sound’s many sewage treatment plants may be providing secondary treatment, but they’re still dumping large volumes of partially-treated sewage—and the chemicals used to kill pathogens—into constricted Puget Sound. Those plants consistently fail to comply with the requirements of the US Clean Water Act and are of a type that is inadequate to address the Sound’s growing risk of eutrophication and hypoxia.

    Secondly, the American claim that Victoria’s discharge is adversely influencing the health of Puget Sound—and so American interference in internal Canadian politics is justified—is at odds with the state’s own science on where the vast majority of toxic anthropogenic chemicals going into Puget Sound comes from stormwater runoff.

    Washington’s most recently published (2014) “Marine Waters Condition Index” showed a downturn in the environmental health of many Puget Sound basins. The most dramatic decline was in Bellingham Bay, part of which is in Morris’ 40th District. Morris, Inslee and past Washington politicians have pointed their fingers at Victoria’s toilets as the Sound’s health has declined, but the record shows they have been largely ineffective at addressing the fundamental problem driving the deterioration: too many people living on the shores of Puget Sound and inadequate regulations and infrastructure to support that population.

    Washington’s dismal sewage treatment
    According to the Department of Ecology there are “about 100” publicly-owned secondary treatment plants discharging sewage effluent into Puget Sound. The two largest plants, which serve approximately 1.5 million Seattleites, discharge nearly half the 1.2 billion litres of sewage effluent that flows into Puget Sound every day. (That’s 13 times more than Victoria’s 91 million litres per day.)

    According to the EPA’s enforcement and compliance history database, the West Point and South plants didn’t have a single 3-month period during the last 3 years in which they fully complied with the requirements of the Clean Water Act. The largest, at West Point, was in “significant violation” of the Clean Water Act 75 percent of the time during the last three years. Even Brightwater, the new tertiary-level treatment plant serving northeast Seattle, has a solid record of either non-compliance or significant violation of the Clean Water Act over the past three years. The Anacortes plant, in Morris’ 40th District, hasn’t had a single quarter over the past three years in which it fully complied with the Clean Water Act. Likewise with Bellingham’s Post Point plant, also in Morris’ district.

    Even having a relatively good record with the EPA does not guarantee that a Puget Sound treatment plant will not have a serious negative impact on wildlife habitat. The Central Tacoma plant, the third largest on the Sound, achieved “no-violation” 60 percent of the time during the past three years—the best record of the Sound’s largest plants. Yet it was one of the plants where scientist James Meador found higher than expected levels of chemicals of concern in both the plant’s effluent and in the tissue of juvenile Chinook found immediately downstream from the plant. In previous research Meador had found that juvenile Chinook passing through such contaminated estuaries had an overall survival rate 45 percent lower than that for Chinook moving through uncontaminated estuaries.

    For this story, Focus reviewed the operating permits of 77 Puget Sound treatment plants to determine their cumulative permitted discharge of suspended solids, a number that the Department of Ecology admitted it had not determined. An Ecology spokesperson said “it would take many hours by several staff to pull all of the data for each wastewater treatment plant.” Our examination revealed that the 77 plants are permitted to discharge over 32.4 million kilograms of suspended solids each year—five times more than Victoria’s current (2015) annual discharge of 6.35 million kilograms. Most of that 32.4 million kilograms is for Seattle plants and those at the south end of the Sound. If that large mass of suspended solids isn’t expected to create a problem for the constricted waters of Puget Sound, why would one-fifth of that be a problem in the rapidly changing, highly-oxygenated waters off Victoria?

    Indeed, Canadian scientists have determined that the biological oxygen demand of all sewage solids being discharged into the Salish Sea is inconsequential compared with natural sources of oxygen demand. But those treatment-related solids do create a pathway for PBDEs to get into marine waters. PBDEs—polybrominated diphenyl ethers—are a family of chemicals commonly used as flame retardants in many objects in our homes and workplaces. PBDE molecules attach themselves to particles and any suspended solids passing through a sewage treatment plant allow PBDEs to enter the marine environment. Canadian scientist Peter Ross’ 2005 study “Fireproof killer whales” revealed the impacts of PBDEs and PCBs on the health and reproductive capacity of orca and other marine mammals. Washington’s Department of Ecology notes that PBDEs “can affect the development, reproduction, and survival of many species. They build up in the food chain and are found in people as well as other organisms including fish and orcas in Puget Sound.”

    Since Puget Sound secondary treatment plants are permitted to discharge five times as much suspended solids—and consequently five times as much PBDEs—they represent five times the risk of Victoria’s outfalls. But solids aren’t the only part of human sewage that’s impacting the health of the Sound. One of the most troubling sewage-related problems there is the trend towards diminished dissolved oxygen. If levels fall past a certain point, fish can’t breathe.

    Several of south Puget Sound’s basins already experience at least seasonal oxygen impairment as a result of the high level of dissolved inorganic nitrogen introduced by sewage treatment plants. That nitrogen provides a ready source of nutrients for phytoplankton and could lead to eutrophication, harmful algal blooms and hypoxia.

    According to data from the Department of Ecology, secondary treatment does little to lower the amount of dissolved inorganic nitrogen discharged from Puget Sound plants. The West Point and South plants that serve central Seattle have concentrations of nitrogen in their discharges just as high as the Clover Point and Macaulay Point outfalls in Victoria. But there are two big differences in the situations of the two cities that put the waters south of Seattle at greater risk. First, Puget Sound treatment plants are discharging over twelve times as much nitrogen as Victoria does. Secondly, Victoria’s outfalls discharge to rapidly replenished, highly-oxygenated waters in the Strait of Juan de Fuca, while Seattle’s plants discharge to highly-constricted waters that take two to three months to replenish and benefit little from the energetic tidal mixing that occurs in the Strait of Juan de Fuca.

    Unless Puget Sound communities spend heavily to add a higher level of treatment—such as biological nutrient removal—to existing plants, the already problematic level of anthropogenic nitrogen in the Sound will increase as fast as the population increases. That increase could be dramatic.

    In the last 10 years alone the population of Puget Sound communities grew by 420,000 to nearly 4 million. That increase is considerably more than the Capital Regional District’s entire population of 370,000. At 2015’s rate of growth, a new population as large as the CRD’s would be added to the shores of Puget Sound in just 6 years. Some Washington State projections put the population of the Puget Sound region at 8 to 9 million by 2070. By comparison, the CRD’s residential population in the area currently served by the Macaulay Point and Clover Point plants is expected to grow to a total of 457,000 by 2070, according to CRD estimates.

    While the rapid growth around Puget Sound is enriching that region’s economy, the growing impact of those people is threatening the long-term prospects of the southern resident orca. That population was protected by the US Endangered Species Act in 2005, which designated all of the waters of Puget Sound as critical habitat. With the orca’s nutritional health dependent on the abundance of Chinook salmon, and the abundance of Chinook salmon being challenged by the sewage treatment practices of Puget Sound communities, it’s hard to keep a straight face when Governor Inslee and Representative Morris wag their fingers at Victoria’s sewage treatment. Even more of a challenge to keeping Canadian politeness in play is Morris’ assertion that “chemical loading” caused by Victoria’s sewage treatment practices presents a serious “long-term risk” to the health of Puget Sound.
    Poisoned Waters
    The history and sources of chemical contamination in Puget Sound were laid bare in PBS’s 2009 Frontline documentary Poisoned Waters. That film took a hard look at Washington’s failure to clean up Puget Sound 44 years after enactment of the Clean Water Act and 36 years after creation of Superfund designations for the cleanup of sites where major chemical contamination has taken place. Poisoned Waters included only one Superfund site on the Lower Duwamish Waterway, but there are 22 Superfund sites around Puget Sound and some of the largest remain unremediated. The documentary also provided chilling insights about the source of the greatest ongoing chemical contamination of the Sound. Chilling because what Frontline found in Seattle also applies to Victoria. Journalist Hedrick Smith summed it up: “What’s making this water so sick is what scientists have now labelled the number one menace to our waterways—stormwater runoff.”

    At one point in the film Smith interviewed a diver incensed about a stormwater outfall across Elliot Bay from downtown Seattle. The diver told Smith: “The end of the pipe creates a brown noxious soup of nastiness that is unbelievable…”

    Smith responded, “Unbelievable because the water looks so good from up here. So we’re looking at something we think is clean and underneath, you can see, diving there…” The diver interrupted Smith and said, “It’s not clean. When we see that [outfall] running in full flow, we turn around and we swim the other way. Quickly. There is just this unbelievable gunk coming out the end of this pipe. This is our front yard. Would you allow your front yard to be sick?”

    Christine Gregoire, who was then Washington’s governor, quantified the “unbelievable gunk” for Smith: “We put in about 150,000 pounds a day of untreated toxics into Puget Sound. We thought all the way along that it was like a toilet, to be honest with you. What you put in you flush out, and it goes out to the ocean and gets diluted. We know that’s not true; it’s like a bathtub. So what you put in stays there.”

    Much of the “unbelievable gunk”—about 98 percent by weight—is oil, grease and petroleum, most of which is connected to the use of cars and trucks. In the film, Jay Manning, director of the Department of Ecology, tells Smith that as much oil as was spilled by the Exxon Valdez goes into Puget Sound via stormwater every two years. Gregoire’s estimate for the total weight of “untreated toxics” being flushed each year into Puget Sound from runoff works out to 23,277 metric tonnes. That’s a lot. Was she right?

    “Poisoned Waters” aired roughly in the middle of the five-year-long Puget Sound Toxics Loading Analysis (PSTLA) led by Washington’s Department of Ecology and the EPA. By the final report  in 2011, the total estimated weight of “toxic chemical loading” of Puget Sound each year—from runoff, atmospheric deposition, sewage effluent and groundwater—was estimated to be in the range of 9,024 to 11,823 metric tonnes. That’s a lot less than Gregoire had told Hedrick Smith. What happened to the other half?
    For one thing, an accounting of industrial discharges—included in the first two phases of the process that began in 2007—had magically disappeared from the final analysis in 2011. With five petrochemical refineries, three pulp and paper mills, a metal smelter and hundreds of other industrial operations discharging either directly or indirectly to Puget Sound, this was an obvious shifting of responsibility away from industrial polluters. That raises questions about the integrity of the process. Were the Americans serious about understanding what’s happening to Puget Sound? Or was political influence exerted on the final numbers to protect the economic position of such operations as refineries?

    How extensively the figures were manipulated is unknown, but there are indicators that massaging went beyond removing numbers that could be used to focus blame on specific industrial sectors. The acknowledged loading for PBDEs and PCBs seems low considering the assessment’s findings for the total annual release of these two chemicals into the Puget Sound Basin (the “Basin” includes all watersheds draining into Puget Sound). The Department of Ecology estimates 2200 kilograms of PCBs are released into the Basin each year but decided that only 3 to 20 kilograms actually find their way into the Sound. That accounts for only a tiny percentage—0.1 to 1 percent—of the acknowledged release. What is the fate of the remaining 99 to 99.9 percent?

    Likewise, Ecology estimates 700 kilograms of PBDEs are released into the Basin each year but only 28 to 54 kilograms go into Puget Sound. Comparison with the release of PBDEs from Vancouver’s Annacis Island secondary treatment plant suggests Ecology’s estimate is less than half what it should be.
    In spite of those concerns, the PSTLA numbers do allow us to compare toxic chemical loading from Puget Sound communities with toxic chemical loading from Victoria’s outfalls. The relative amounts for every chemical of concern undermines the claim by Morris and other Washington politicians that Victoria’s treatment system is posing a significant risk to shared marine waters. Even if Victoria’s outfalls emptied their contents directly into the centre of Puget Sound, their contribution to chemical loading in the Sound would be relatively small (see table below).

    The PSTLA study also considered “ocean exchange” of toxic chemicals and estimated the net outflow or inflow into Puget Sound of those chemicals. For copper, zinc and PBDEs, Puget Sound was a net exporter. On the other hand, the amounts of arsenic and lead coming into Puget Sound from ocean waters overwhelms the amounts deposited through all other pathways. According to the analyses, there is a small—approximately 1 kilogram per year—net inflow of PCBs into Puget Sound from ocean exchange, 0.3 kilograms of which is brought to Puget Sound by returning salmon. Coincidentally, Victoria’s outfalls produced a total of about 0.3 kilograms of PCBs in 2014.

    (By the way, the level of PBDEs and PCBs reported by the CRD in its Marine Environment Program 2014 Annual Report were both down from levels reported in previous years.)

    With Washington planning for a large increase in Puget Sound’s human population over the next several decades, the main threat to the Sound’s environmental health—the amount of toxic chemicals entering it through stormwater runoff—seems likely to accelerate. If the state’s own numbers show Victoria plays no significant role in the Sound’s decline, why do Washington politicians continue to use the Sound’s deteriorating health as an excuse to involve themselves in Canadian politics? Is it to deflect attention away from their own apparently intractable problems?
    The Governor’s concern
    I asked Department of Ecology spokeswoman Sandy Howard what Governor Inslee’s exact concern was about Victoria’s impact on “the health and habitat of Puget Sound.”

    In marked contrast to Morris’ concern about “chemical loading,” Howard responded, “The letter from Governor Inslee cites a general concern for the health and habitat of our shared waters. Our studies indicate that water masses are highly connected and cross our shared border. Our position is that we all need to do our part, and we should not be sending the wrong message regarding environmental stewardship, especially in light of population growth.”

    The first part of that concern is that stuff from Victoria is crossing into Puget Sound waters. But the Department of Ecology’s own study of toxics shows the Sound is a net exporter of some chemicals of concern and a net importer of others, and those balances have little to do with Victoria’s outfalls. They are overwhelmingly determined by chemicals of concern—arsenic, lead and cadmium for example—already in the ocean or originating in Washington. As well, that 1994 report by a joint panel of three BC and three Washington marine scientists, mentioned earlier, had agreed that the discharge from Victoria’s outfalls would have far less impact on waters off Seattle than Seattle’s outfalls would have on waters off Victoria. I asked Howard if Washington now disagreed with that finding or had done any new analysis of the issue.

    “We have not revisited the relative impacts from Victoria, as was reported in this 1994 effort,” Howard replied. “We are in the process of refining a more detailed computer model to address questions that focus on US impacts on our shared waters.” Then Howard repeated her previous point about environmental stewardship and population growth. “Our position is that we all need to do our part, and we should not be sending the wrong message regarding environmental stewardship, especially in light of population growth.”

    Absolute population growth around Puget Sound, as mentioned earlier, has been, and is expected to continue to be, far greater than Victoria’s. Washington may be projecting its fear about what is happening there on Victoria, but the statistics don’t support that. Howard’s emphasis on “environmental stewardship,” though, will resonate with some Victorians who think that it’s a “no-brainer” that Victoria’s current system would be causing environmental harm compared with secondary sewage treatment. But that’s not the view of marine scientists in Victoria, who have endorsed the existing system—with the caveat that further studies on chemicals of emerging concern should be conducted.

    I told Howard about the Victoria scientists’ endorsement and asked her if the Department of Ecology agreed with the principle of making decisions about environmental stewardship using science-based information and knowledge. She responded, “Our treatment standards are based on science and require that all dischargers apply a basic level of treatment. That basic level of treatment has been defined as secondary treatment.”

    A comparison of how science is used in the operation of Victoria’s treatment system with how it is used in Washington is revealing. Victoria’s system appears to have two advanced features of environmental stewardship that are missing in Washington.
    Environmental stewardship—as practiced by governments—requires frequent measurement of chemicals of concern being discharged into the environment and transparent public reporting of the results of that monitoring. With sewage treatment, Victoria is doing this and Washington isn’t.

    One of the chemical groups of greatest concern in Puget Sound and the Strait of Juan de Fuca are PBDEs. I had noticed that the Department of Ecology had only published estimates for the total amount of PBDEs released to the Sound through wastewater treatment plants. Yet the CRD does very precise measuring, monitoring and publication of the amount of PBDEs—and all other chemicals of concern, found in its discharges. For example, the CRD reports right down to a hundredth of a gram the total weight of each of the 40 different PBDEs it discharges from each of its two outfalls, every year.
    Accurately making those measurements, monitoring the results, and releasing that information to the public represents a high level of environmental stewardship. I asked Howard about Washington’s estimates for the release of PBDEs. Her answer confirmed the difference: “Washington treatment plants are not required to monitor and report PBDEs on an annual basis,” she said.

    An examination of the operating permits for the Sound’s wastewater treatment plants shows a low level of monitoring, in both frequency and the number of chemicals measured, compared with that done for Victoria’s two outfalls. The monitoring requirements for Seattle’s West Point plant—the largest secondary treatment plant on the Sound—don’t include PCBs, for example.

    There’s another vital difference between Victoria’s treatment system and those of Puget Sound: source control. Source control refers to the practice of keeping chemicals of concern out of the sewers in the first place, through a program of regulation, registration, installation of collection equipment to isolate and store chemicals of concern, proper disposal, inspection and monitoring.

    In Puget Sound, institutions, businesses and industries that discharge toxic chemicals are required to self-report those releases to the EPA’s Toxic Releases Inventory only under certain conditions. For example, a business must have 10 or more full-time employees to be required to report. Many operations in Puget Sound come in under that threshold, are not required to register, and discharge toxic chemicals directly into sanitary sewers. Since treatment plants aren’t required to measure or report their release of many toxic chemicals, such as PBDEs, Washington has no hard evidence of the plants’ cumulative contribution to the chemical loading of Puget Sound.
    In Victoria, the CRD instituted a region-wide source control program in 1994 and since then has become a nationally-recognized leader in that practice. The CRD reports that 97 percent of region businesses whose activities fall within the program’s regulations have proper waste treatment systems installed that keep chemicals of concern out of Victoria’s sanitary sewers. Seattle does have a source-control program for the Lower Duwamish Waterway—a highly contaminated federal Superfund site—but otherwise has no city-wide source control program.

    While building a hundred sewage treatment plants on Puget Sound has allowed a reduction of suspended solids and reduced biological oxygen demand, the plants’ effectiveness at removing chemicals of concern is largely unmeasured and unknown.

    Given Washington’s failure to monitor chemicals of concern and  employ source control, the argument that Governor Inslee is entitled to pull Victoria’s chain to avoid sending “the wrong message regarding environmental stewardship” doesn’t seem credible. Even a cursory examination of Washington’s internal politics shows there’s plenty of circumstantial evidence that Washington legislators simply use Victoria to cover their own asses during times of stress.

    The phony toilet war: politically-motivated scapegoating
    Following the airing of Poisoned Waters in 2009, Washington state legislators moved to increase the state’s hazardous substances tax to fund measures that would reduce toxic chemical loading from stormwater runoff. But the bill, the Washington Clean Water Act of 2010, was withdrawn in April 2010. Ironically, Jeff Morris was seen by some in Washington as influential in the bill’s demise. John Burbank, executive director of the Economic Opportunity Institute, a non-profit public policy research organization in Washington, linked the measure’s withdrawal to personal lobbying—wining and dining—of Morris on six different occasions by BP lobbyist William Kidd. According to Burbank the proposed legislation would have added at least $200,000 a day to BP’s cost of doing business in Washington.

    Not only were Morris and his fellow Puget Sound legislators unwilling or unable to deal with the stormwater issue, it’s easy to find specific cases where they continue to tolerate direct contamination of Puget Sound by their constituents. Consider Morris’ record, for example.

    A 2014 report by the Environment America Research & Policy Center  described Puget Sound as having the third highest level of “toxicity-weighted” materials released into large watersheds in the USA on an ongoing basis. The study used data from the EPA’s Toxic Release Inventory.  That report highlights a case of ongoing release of known carcinogenic substances, which just happens to be in Morris’ 40th District. A wood preservative company in Bellingham, registered with the EPA’s Toxic Release Inventory, reported in its last three filings an annual discharge of .5 kilograms of pentachlorophenol (PCP) and dioxins directly into Whatcom Creek, which flows into Bellingham Bay. By comparison, Victoria’s source-controlled outfalls discharged zero PCP in 2014, according to the CRD’s detailed report on chemicals released.

    Other corporate constituents of Morris’ district have records that raise questions about the legislator’s actual level of concern over chemical contamination. Tesoro, one of several fossil-fuel-related donors to Morris’ last election campaign, operates a refinery in Anacortes that, according to the EPA’s enforcement and compliance history database, has been in “significant violation” of the Clean Air Act every quarter for the last three years. It fully complied with the Clean Water Act only 17 percent of that time. Tesoro representatives openly testified against the Washington Clean Water Act of 2010 before it was withdrawn. Now Tesoro is planning a significant increase in the output of its Anacortes operation. Yet there’s been complete silence from Morris and other legislators about “chemical loading” from the  refinery. Recall that about 98 percent of the toxic chemical loading of Puget Sound comes from petroleum, oil and grease, according to the Department of Ecology.

    Given the failure by Morris and his fellow legislators to protect the Sound from such impacts, their claim that “We can no longer tolerate the long-term risk that the chemical loading caused by Victoria CRD’s inaction has brought to our shared waters,” seems more like a line from Wonderland than Washington.

    Their threatened boycott of Victoria included other claims worthy of the rabbit hole. In his letter to Mayor Helps, Morris said “…we believe the long-term damage to marine mammals, in particular, but all marine wildlife does more long-term damage to ecotourism.” With about one whale-watching business based in Puget Sound for every three surviving orca—most operating out of Morris’ 40th District—the pressure these operations put on their prey was found by DFO scientist Christine Erbe in 2001 to be damaging the orcas’ prospect for survival.

    Yet for all its absurdity, Morris’ campaign has been effective. Just after BC Environment Minister Barry Penner’s approval in August 2010 of the CRD’s plan for a secondary treatment plant at McLoughlin Point, Penner told the Journal of San Juan Islands: “I know there’s been a concern in Washington state about the lack of sewage treatment in the Victoria area. I certainly hear about it from time to time, particularly from Representative Jeff Morris, who has not been shy about letting us know that his constituents are concerned about that.”

    Morris hasn’t been the only Washingtonian deflecting attention away from the state’s dismal performance on reducing chemical contamination of Puget Sound and international waters.
    In a 2014 column, Vancouver Sun columnist Vaughn Palmer wrote: “While delivering a speech in Bellingham last fall, I fielded a question that comes up pretty much every time I address an audience south of the border. ‘When are you folks in Victoria going to start treating your sewage?’ The shame of my hometown—dumping millions of litres of untreated sewage into the Strait of Juan de Fuca every day. Or, as columnist Joel Connelly wrote in the Seattle Post-Intelligencer 25 years ago, ‘the BC capital believes in using an international waterway as its toilet.’”

    Palmer’s “shame” button has been pushed repeatedly by Connelly over all those years. In a March 30, 2016 column on Seattle PI, Connelly repeated, for the umpteenth time: “Victoria is still using an international waterway as its toilet.” Over the years Connelly had plenty of opportunities to write about the international toilet in his own front yard, but he never did.

    When contacted by Focus, Connelly said, “I keep returning to Victoria sewage because promises were made, promises have not been kept, and our political leadership is perplexed. Site your treatment plants and I will very gladly go on to something else.”

    That BC political figures like Mike Harcourt and Gordon Campbell made “promises,” however, seems a flimsy rationale for spending $1 billion on treatment if BC scientists are saying it will have a “negligible effect” on environmental conditions in the Salish Sea. Worse, Connelly’s focus on Victoria has stunted the growth of knowledge in both Victoria and in Puget Sound. By holding up Victoria’s system as shameful, Victorians have been discouraged from learning about how it works, why it works, and how it could be made to work better. Instead, Victoria’s political discourse has been held hostage for 10 long years by what scientists say is a “non-problem.” Meanwhile, Connelly has provided cover for a poorly-functioning system of treatment plants in Puget Sound that are producing cocaine-spiked salmon smolts and fireproof orca. 

    The lesson for Victoria?

    The opinions of Washington legislators about the Capital Region’s sewage treatment system are highly suspect. When challenged for details, they can’t provide them. The legislators’ uninformed portrayal of Victoria’s treatment system as “backward” is little more than an attempt to deflect attention away from their own inaction as Puget Sound deteriorates.

    Victoria’s political leaders shouldn’t take Washington politicians seriously on this issue. Instead, those tasked with deciding how to spend that “billion dollars” need to take their responsibility more seriously. They need to get outside the Where-to-put-it? box they’ve been stuck in since 2009 and allow themselves to be guided by local marine and human health scientists who have precise knowledge of the environmental and health impacts of the current system.

    In Washington, scientists say stormwater runoff is the most pressing threat to marine waters. Unless that’s solved, conditions in the Salish Sea will continue to deteriorate. In Victoria, scientists are saying additional sewage treatment here—and in Vancouver—will provide little or no environmental benefit. One initiative that would provide a benefit has been identified. Victoria’s stormwater runoff is likely as toxic as Seattle’s, albeit on a smaller scale. The deterioration of near-shore Victoria-area waters that local citizens have blamed on the deep-water outfalls is more likely due to deposition of the “incredible gunk” from storm drains that disgusted the diver interviewed in Poisonous Waters. That’s a problem that everyone agrees needs to be fixed.

    David Broadland is the publisher of Focus.

    Robin Hopper’s legacy in ceramics encompasses production, education, publications, institutions—and a beautiful garden.

    Robin Hopper (Photo by Tony Bounsall)
    “THIS IS ONE OF MY GREATEST ARTWORKS,” says Robin Hopper, the ceramic artist. He’s referring not to one of his many functional or decorative ceramic pieces or his two-dimensional glaze paintings, but to his garden. “The reason I have a garden is I don’t have to go looking for inspiration; I can just walk out the door and it’s there. It feeds me all the time,” he says. If you see one of his pieces embellished with a clematis design, it is one of the 50 varieties that grow in his garden.

    The pond in Robin Hopper's garden
    At 77, Hopper is not as spry these days. He was diagnosed with cancer about six months ago. For five years now he’s not kept a regular studio practice. Still, he keeps busy with legacy projects like Swan Song, an autobiographical/ educational DVD he recently produced (available online soon). And he tries to walk in the garden “at least once a day,” he says.
    A dear mutual friend and I are being given a tour of this celebrated, award-winning space by its creator, who bashed out the brambles and gradually nurtured it into being amidst resplendent Douglas firs shortly after he settled on this Metchosin property in 1977. The goal was to create an attractive space for family—he has two daughters and a son with his first wife—along with a studio and gallery area for potential clients to come and see his wares.
    Hopper studied ceramics, theatre design, painting and printmaking at Croydon College in South London from 1955-61. After nine years working in theatre (both on and offstage) and as a travel guide, he returned to his “first love” with a ceramics studio and teaching. Having emigrated from his native England in 1968, Hopper then taught in Ontario, eventually setting up the ceramics and glass department at Georgian College in Barrie. By 1973, he turned to studio production full time, though he continued to teach workshops internationally for decades. Just before moving west, he gained renown as the first recipient of the Saidye Bronfman Award for Excellence in the fine crafts.

    "Skyphos", high-fired porcelain with thrown handles     Click here for a glimpse of Robin Hopper's ceramic artwork
    “The first fall I was here,” Hopper recollects, “I was somewhat devastated because I had come from sugarbush country in Ontario, where the fall colours are fantastic.” So, as he does with any undertaking from glazes or gardens, Hopper dove in and “started to research all of the plants that had the best fall colour for this area. Invariably, they came from Japan, China, Korea. He refers to the resultant blend he created as “Anglojapanadian” in design.
    A storyteller at heart, Hopper is an edifying and engaging tour guide. We learn about the types of Japanese gardens that he drew upon for inspiration, beginning with the Stroll Garden. Often narrative in their symbolism, they reflected the experiences of the owner.
    At the start of his garden is a meandering gravel path. “This is not a pathway,” Hopper corrects, “this is a symbol for a river—and you are on a journey as soon as you go through that gate.” We breathe in fragrant viburnum (“Osmanthus delavayi,” he declares), while Hopper points out three large fan-shaped stepping stones, explaining, “The fan in Chinese and Japanese is a symbol for education and authority.”

    Emperor's Gate
    Fitting that education is one of Hopper’s greatest contributions to the local and international ceramics fields. “Robin is a real teacher,” said Diane Carr, a leading authority on the ceramic history of British Columbia, when we met to discuss the artist. In her catalogue for Back to the Land: Ceramics from Vancouver Island and the Gulf Islands 1970-1985, an exhibition she curated at the Art Gallery of Greater Victoria, she writes, “Perhaps his most important contributions to ceramics have been his teaching, glaze exploration, and the several books he has written on various aspects of studio pottery.” His first, The Ceramic Spectrum, “has become an essential text for studio potters.”
    A little further down the path, my friend delightedly points out several clumps of ceramic mushrooms with various glazes: some black with pocks of crackled white, some earthy swirls of red, all created by Hopper. “Fungus ceramicus,” he quips. “They come up all over the place.” Referring to his British heritage, Hopper remarks that English gardeners like to incorporate “things that make you laugh and things with a touch of history.”
     Both are important to Hopper in life and in artistic influence. From a young age, he was fascinated with the ancient pots he would see during his many haunts of the Victoria and Albert and other museums.
    Circumstances led to a fairly solitary childhood: he was born in London in 1939; his twin sister died ten days after birth. Save two older brothers who were working age, most of his five siblings were evacuated during the Blitz. He stayed behind, having contracted chicken pox. While his mother ran the family grocery business and his father was working in the war effort, he would wander among the bomb craters, scooping up the exposed clay. He sculpted birds and other animals that interested him—and still does: After a storm broke the branches off a cherry tree in the garden, Hopper fixed ceramic dog masks to the cut ends: “It became a dogwood tree,” he grins.
    We walk on, past nodding chocolate lilies, pink and purple hellebores (helleborus orientalis), daffodils and ferns, whose tiny fists are being pulled upward by the dappled sun. Hopper stops in a grass clearing. “We came down the river, and this is an ocean. Once you are on an ocean, all the oceans of the world unite,” he explains.
    In such a gathering place, one can find another metaphor for Hopper’s legacy. Carr had said of Hopper, “He drew other potters around him; he sparked energy.” With the help of his second wife, Judi Dyelle, herself an accomplished potter who shares their ’Chosin Pottery business, Hopper started the Fired Up! Contemporary Works in Clay exhibition group. In 1984, Hopper had returned with Dyelle from a year spent in the vibrant, colourful arts scene in Montreal to the depressed economy of Vancouver Island.
    Sales were slumping for artists, they saw, and in contrast to the colourful glazes they had seen in the east, “everything was brown,” Dyelle laments with a laugh. So they gathered some local potters and sought a solution. After he and Judi spent weeks weeding, the first Fired Up! show and sale took place in the garden. It has since moved to nearby Metchosin Hall and is about to enter its 32nd year.
    “The whole idea was the education of the public, to be continually showing them interesting and different things,” Dyelle relates, adding how, at the 25th anniversary show, “the potters were blown away by how people could talk to them, because they had a better understanding of what they were doing; they had grown alongside them.”
    That same summer, Hopper saw a dearth of quality arts teaching and a nearby space to provide it. He was teaching part time at Pearson College and had recently travelled to Australia to teach workshops. While there, he saw a model for a summer school that could apply here, and he and four other artists (Carole Sabiston, Cheryl Samuels, Fleming Jorgenson and poet Rona Murray) co-founded the Metchosin International Summer School of the Arts. Four initial courses have grown into an internationally renowned multidisciplinary program with 45 workshops offered. Dyelle also deserves credit. “I’m surprised that Jude and I actually passed the first year, because I’m the idea guy, and she’s the person that makes it happen!” Hopper admits. Judi nods, smiling: “He’s the ideas, I’m the work.”
    Back in the garden, we come to the “River Koi.” “In a lot of Japanese gardens there is a stone river or a stone waterfall,” he says. Embedded into cement, complete with removable Japanese bridge, we find a variety of ceramic “koi” with multicoloured glazes. The bridge is removable because for years, this was actually a functioning road for truck access to the septic field. “There are 100 fish in the river. Ninety-two of them swim downstream, and the other eight swim upstream. They represent me,” Hopper offers: always against the current, but steadfast in his thinking that “you might as well make it beautiful if you are going to make anything.” It’s that way of thinking that Carr calls Hopper’s “true genius.”

    Bridge over the River Koi

    Finally we settle on a sheltered bench in a private area of the garden. Fish bob to the surface of a sun-glazed pond. “In here, there are about 11 different types of Japanese maples. They change colour sequentially, starting at about the middle of August and going right through to the beginning of December,” Hopper says, his fatigue visible. He seems content to enjoy the sun on his face as my friend and I wander and admire the water lilies and the sparkling fountain.
    We sit back down and I notice a small ceramic house just to our left among the foliage. “That’s actually a copy of a sarcophagus from Crete,” Hopper explains. “It is one of [Cowichan Valley potter] Cathi Jefferson’s. It’s one of my final resting places.” He continues, “We hope to keep the property in the family, but you just don’t know. I’m going to sit in there and cast evil spirits to anybody that does anything to this garden that shouldn’t be done,” he says, eyes twinkling.

    The Teahouse
    Robin and Judi ’s garden at ’Chosin Pottery (4282 Metchosin Road) is open to the public by donation. Gallery open weekends 10am-5pm (watch for “open” sign) or call for appointment: 250-474-2676. www.chosinpottery.ca.

    Aaren Madden can safely say the garden at Chosin Pottery feeds not only its maker, but all who visit. 

    Illustrating resilience, generosity and bravery, The Missing Generation opens our hearts.
    THE AIDS CRISIS. For those whose lives were forever changed by it in the 1980s and ’90s, it was a searing, terrifying scourge––and it is by no means over. The Public Health Agency of Canada estimates that, at the end of 2014, 75,500 Canadians were living with HIV, the virus that causes AIDS. That’s an increase of nearly 10 percent since 2011. Yet for many, AIDS is a mere public health footnote, something that may have been important once, but today, who cares?

    Sean Dorsey, a Vancouver-born, San Francisco-based dancer and choreographer, spent two years travelling the US to interview long-time survivors and witnesses of the earliest part of the AIDS epidemic, when it was cutting down thousands of gay and bisexual men and transgender women every day. He talked to people still living with the virus more than 30 years later, to those who lost family, friends and lovers, and to those who fought the political establishment to build the first supports for people with HIV/AIDS.
    “I had a lot of emotional trepidation before the interviews,” says Dorsey. “I knew I was leaping off a cliff into grief and loss and all sorts of emotions most of us try to avoid. I was steeling myself for a difficult process, but the very first person I talked to walked in to our interview––the only word I can use is jubilant––with a lot of sassiness, too. It surprised me, but it also reminded me that along with staggering loss and death and pain there is also humour and warmth.”

    What surprised Dorsey even more, though, was discovering that so many younger people are shockingly ignorant of the devastation AIDS wrought on an entire generation.

    “I was struck about how little even the most passionate, well-versed LGBT activists know about the virus and the disease and that time,” says Dorsey. “There’s a staggering level of ignorance. So when people come now to see The Missing Generation, they are really cracked open by learning about the amount of terror and death and grief this one disease caused.”

    But Dorsey’s 65-minute dance-theatre performance, coming this July to the University of Victoria during Pride Week, is not all about tragedy and despair, he says. It is also about “the incredible resilience of people with the virus, the incredible generosity of people who cared for each other, and the bravery of those who took to the streets––literally laid down in the streets––to get the government to step up and respond.”

    To create The Missing Generation, Dorsey spent nearly 500 hours listening to his recorded interviews, eventually weaving the voices of survivors into 17 separate sections and combining them with original music composed specifically to suit each section. Together, voices and music form an intricate soundscape for four dancers who range in age from their 20s to 50s. The oldest, 53-year-old Brian Fisher, also serves as the central narrator, telling his own stories about the early days of the crisis in a series of monologues addressed directly to the audience. Fisher was a young, aspiring dancer from Maine who arrived in Manhattan just one week before the New York Times announced that a “mysterious cancer” was killing gay men. While dancing on Broadway, he lost friends and colleagues almost daily.

    What many people don’t know, says Dorsey, “is how many trans women died during that time” in addition to gay and bisexual men. Transgender himself, he knows how important this story in particular is to tell. While his family has always been supportive, “So many of us were, in that time, and still are, excommunicated from our birth families. When our circle of friends die––some people lost every single one of them––it’s like losing another family.”

    Now 43, Dorsey came to dance late, in his 20s, largely because there was no model for someone like him within the dance world, as either a professional dancer or a choreographer. In the 11 years since he founded his own dance company in California, he has won four Isadora Duncan Dance Awards, been named one of Dance Magazine’s “25 to Watch,” and received major support and commissions from such organizations as the National Endowment for the Arts and the National Dance Project. He is also the founder and artistic director of Fresh Meat Productions, which creates, presents and tours multidisciplinary transgender arts programs in San Francisco.

    While Dorsey believes in the importance of LGBT people understanding their own history, he does not believe The Missing Generation is just for an LGBT audience. “Lots of non-LGBT people come to the show because they love dance or they love theatre, and this combines both. Loss and grief are also universal. Everyone is affected by them,” he says. “And there are many non-LGBT people who understand that the struggle for basic human rights continues––look at the hateful trans-phobic bathroom bills across the US right now––and they are really hungry to learn more and be wonderful strong allies. They know that it behooves us all to open our hearts.”

    In addition, says Dorsey, The Missing Generation “is deeply human and very accessible. It’s not a strident, academic piece or pure abstract dance. So many people find modern dance difficult or unappealing, but this is clearly about something and accessible. It is full-throttle dance combined with intimate story-telling, People ‘get’ it; they feel it deeply.”
    So far the response, from the work’s première in 2015 to its current two-year, 20-city tour, has been good. At talk-backs after each performance, “where just about everyone stays around,” says Dorsey, “we’ve had so much positive feedback. We’ve been able to see and hear how people connect to the work. It’s technically beautiful, and truly moving. I am really proud of the work, and the impact of it on the people who see it.”
    The Missing Generation will be performed at the University Centre Farquhar Auditorium on July 8 at 8 pm. The event is part of Pride Week, as well as a fundraiser for the new Transgender Research Chair and Transgender Archives at the University of Victoria. Tickets can be purchased at https://tickets.uvic.ca.

    Robin J. Miller writes for national and international arts publications, and for business and government clients across Canada.

    Janet Munsil may be departing, but Intrepid is forging ahead.
    EARLY APRIL BROUGHT NEWS that Intrepid Theatre’s Artistic Director Janet Munsil is stepping down from her position after 25 years. Munsil’s long-term contributions to theatre in Victoria are impressive. Under her leadership, and working alongside other movers and shakers in local arts administration (Gail Manktelow, Stephen White, Ian Case, among others), Munsil has produced the Fringe and UNO Festivals, brought in top touring productions, and developed two performance spaces.
    When I moved to town in 1998, the Herald Street Theatre that Kaleidoscope Theatre had created was at risk and was eventually lost. It is now a furniture store. The need for alternative performance spaces was palpable and Munsil showed real leadership in securing the Metro Theatre from the Conservatory of Music via a lease arrangement. She then led the development of the smaller Intrepid Theatre Club on Fisgard, in the same location as the company’s offices. These two spaces have allowed many performing artists much-needed venues and have significantly raised the number of live performances we enjoy here.

    I spoke with Munsil about her decision to leave the company. She assured me that Intrepid Theatre is in great shape, now running three festivals each year plus the two performance spaces. (More on the third festival, OUTstages, below.) Munsil describes her leaving as “stepping aside, not stepping down.” She radiates confidence in Executive Director Heather Lindsay’s abilities to take over the helm. “I’m proud of the work I’ve done over the years, and I see the impact of Intrepid’s work on the changing expectations and tastes of audiences—and emerging contemporary artists—in this city.”

    I asked Munsil what is next for her, hoping to hear that she will have more time to devote to her playwriting. I am a huge fan of Munsil’s plays, which always strike me as both deeply intelligent and theatrical. Her interests are often historical and unusual stories of people who are outsiders due to events such as terrible accidents (Circus Fire), medical curiosities (That Elusive Spark, nominated for a Governor General’s award), disfigurement (The Ugly Duchess, widely toured and performed by her husband Paul Terry), or historic figures struggling for acceptance (poet John Keats and painter Benjamin Robert Haydon in Influence).
    The good news is that Munsil is working on two playwriting commissions at present, as well as directing Twelfth Night for this summer’s Greater Victoria Shakespeare Festival.
    The first new play, Act of Faith, is for Realwheels Theatre in Vancouver. Realwheels’ mandate is to address issues related to disabilities. In typical Munsil style, she has chosen to write an unexpected play based on a true story. “The play is based on the faith healing of a young paraplegic Christian woman who was in a wheelchair,” Munsil tells me. “She had a dream one night that she would be cured and the next day became fully ambulatory. I am interested in the tensions and fallout this event caused in the disability community, including her friends. I have spoken to some of them and hope to speak to the woman herself. I am curious about how this ‘cure’ ripples out in relationships.” The play is scheduled to premiere in the 2017-2018 season.

    The second play Munsil is working on is for Vernon’s Powerhouse Theatre. Powerhouse is Vernon’s community theatre and has been running since 1964. They asked Munsil to write a play based on the community’s history. She became interested in a fascinating local figure, the artist Sveva Caetani.
    Caetani was the daughter of aristocratic Italian immigrants who fled the fascist regime in 1921 and settled down in Vernon seeking a simpler life. After her father died in 1935, Caetani’s mother became mentally and physically ill and forced her daughter to remain housebound for the next 25 years. Despite this captivity, Caetani developed as an artist and after her mother’s death became an art teacher. Her major work Recapitulation is described by Munsil as “a masterpiece in the surrealist style” and is made up of a series of large watercolours recounting her life. This mostly unknown Italian-Canadian artist and her remarkable story seem ripe for dramatization by Munsil. I look forward to seeing it and all of her future offerings.

    One of Munsil’s more recent innovations at Intrepid has been the queer theatre festival OUTstages that launched last July under curator Sean Guist. Guist is the marketing and development coordinator by day for Intrepid, but at night is a queer artist, producer and director. He intended to launch a queer theatre festival independently in town, but when Munsil and Lindsay heard his plans they decided to fold the festival into Intrepid’s offerings.
    I asked Guist what led to this new festival’s launch. He tells me that OUTstages “fits well into Intrepid’s mandate to provide audiences with edgy, contemporary and multidisciplinary work.” Guist is a director himself and as a queer artist has an interest in queer performance. His idea was “to create a West Coast version of Toronto’s Rhubarb Festival at Buddies in Bad Times Theatre or Halifax’s Queer Acts.” He tells me that Vancouver’s Queer Arts Festival is multidisciplinary with a focus on visual and literary arts and only the occasional performance piece. His impetus was to create a festival for Victoria’s “underserved queer community,” the loyal audiences who attend everything Intrepid stages, and new audiences drawn by the attraction of groundbreaking work.
    I asked Guist about the need for a separate festival focused on queer content. After all, we have seen queer-themed shows at UNO and the Fringe and at the Belfry, such as this spring’s excellent The Gay Heritage Project during the Spark Festival. Guist and Munsil admit to some “horse-trading” as they curated between UNO and OUTstages (the Fringe is lottery-based). But Guist sees the need for a space within which both queer and non-queer audiences can “start conversations within and beyond the queer community.” He tells me about a show last year, Stewart Legere’s Let’s Not Beat Each Other to Death, a one-man play from Halifax about gay bashing. After each performance, Legere invited audiences to stay for a dance party to shake off the darkness of his storytelling and to be together in a positive and healing way. Audiences did stay to dance with each other and with Legere on stage. I love this story, which for me is about what theatre can and indeed should be doing to generate greater understanding, dialogue and connections within a community.

    This year’s OUTstages reflects what Guist sees as a shift in the queer theatre community from the political to the personal. “We don’t have to fight the same fights as we had to in the past,” Guist says, “so the work is more about individual stories.”
    Guist feels some of the best theatre in Canada is emerging from the LGBTQ community, especially from younger artists just beginning their careers. Mashing-up genres is a newer aesthetic that leads to a show like Cocktails with Maria, which we will see in June. Drag-diva Marie Toilette presents verbatim stories of gay sex encounters through the medium of the European art song.
    Ivan Coyote and “an all-tomboy band” present a mix of storytelling and music in Tomboy Survival Guide. Ludwig and Lohengrin is a one-man play performed by Calgary’s Kyall Rakoz about King Ludwig II of Bavaria in which Rakoz plays 17 roles. The play deals with Ludwig’s “fascination with building fantastical castles, his obsession with fairytales, his fall from power, and his mysterious death.”
    This last one sounds like Janet Munsil’s cup of tea, and OUTstages is a great opportunity for the rest of us to see some of Canada’s most innovative theatre. June 21-25. See www.intrepidtheatre.com.
    This summer will see the publication of the second edition of Monica’s international award-winning book Applied Theatre, co-authored and edited with Juliana Saxton and published by Intellect Books.

    One woman’s battle to protect her water from fracking—and our lives from corporate lies.
    NO MATTER WHERE YOU ARE on this planet, society needs a few key things in order to work. Water is one. Trust is another. When both become corrupted—actually going up in flames—for industrial profit, one has to wonder where we’re headed, not just environmentally, but morally.
    It’s a question award-winning investigative journalist Andrew Nikiforuk has been examining for years in writing about the energy and resource sectors. His most recent book, Slick Water: Fracking and One Insider’s Stand Against the World’s Most Powerful Industry (Greystone Books and the David Suzuki Institute, 2015), traces the evolution of fracking and shines a light on one indomitable woman who, after losing both her water and her faith, decided that where she was headed was to court.

    Nikiforuk is a dogged, diligent researcher and a man of obvious thoughtfulness and compassion (and attendant anger). By looking at the broad industrial history and the intimate, personal impacts of fracking, he tells a double story that will shock and awe as he digs into not just a problematic practice but the larger philosophical issues around what he believes is an essentially abusive extraction culture as well as what it takes, at a deep human level, to stand up to it.

    In 2007, Alberta landowner and former oil patch consultant Jessica Ernst testified before the federal Standing Committee on Environment and Sustainable Development in Ottawa, and as Nikiforuk reports, “One of the parliamentarians said the only time he had seen a toilet on fire was when his kids watched the movie Home Alone.” But Ernst’s water, in her toilet and taps, was no joke, and what she had to say was certainly no comedy—for any of us.
    After fracking by energy giant Encana had contaminated the aquifer serving Ernst’s property and that of her neighbours in the rural town of Rosebud, Alberta, her now-flammable water gave off a white fog, ran bits of black coal, and showed dissolved methane levels at 44,800 parts per million (when the Canadian Association of Petroleum Producers considered a mere 1 part per million a hazard for water passing through an enclosed space). In a feat of industrial alchemy, her formerly safe water had become an unholy admixture of earth, air, and fire.
    And in a cruel betrayal, a company Ernst had worked for ended up fracturing much more than the rock around her home. It broke up Ernst’s community, divided around the benefits of the industry, and her sense of justice.

    But it didn’t touch her courage. In a groundbreaking $33 million lawsuit (that finally, after nine years, reached the Supreme Court in January of this year), Ernst sued not just Encana but two Alberta government regulators: Alberta Environment and the Energy Resources Conservation Board (ERCB). She charged that while Encana had fracked into an aquifer, the two regulators had failed to investigate—and failed in what Ernst saw as a duty of care to the public to protect the groundwater. They had also barred Ernst from communicating with them, thereby, she claimed, violating her Charter rights. How did a supposed “clean” energy industry get to this? Nikiforuk’s book explores the answer.

    Fracking, or hydraulic fracturing, is a controversial extraction process that frees hard-to-get oil and gas by cracking rock with high-pressure injections of water, sand, and often non-publicly-disclosable combinations of chemicals. In order to understand the current processes and industry culture, Nikiforuk goes back to its origins, all the way to the 1850s. Through extensive research into industry documents, he presents the story of a gold rush mentality of excited science experimentation, including the use of torpedoes, hydrochloric acid, nitro-glycerin, napalm, kerosene, diesel oil and even nuclear bombs to stimulate wells in the incessant drive to maximize energy production.

    Nikiforuk also shows that industry operators (then and now) often simply don’t quite understand the complexities of geology, even though some patent filers rather rose-colouredly referred to fracking practices as an “art.”  The book questions how artful it is when, in Hutchison, Kansas, in 2002, methane from an underground gas facility escaped a leaky well into natural rock fractures, travelled almost seven miles to surface in old salt wells in town and exploded, levelling two buildings. Or when, in 1985, a clothing store in the Fairfax District of L.A. “blew up into an inferno” that injured 23 people because of migrating gas from urban horizontal fracking and leaky abandoned gas wells.
    By looking at the historical record of industry information and scientific papers around fracking technology, Nikiforuk reveals a litany of long-known problems that we’re still dealing with today, like unpredictable and uncontrollable fracture dimensions and directions (frack jobs going “out of zone”) or gases escaping out leaky wellbores, along uncontrolled frack lines or natural rock fractures and faults into residential areas or aquifers. And while it may have seemed to be news in March when a Canadian study concluded that fracking is behind quakes as large as magnitude 4.8 felt in western Canada, Nikiforuk’s research indicates that earthquakes have been associated with fracking since the late 1970s.
    In 1978, the so-called stimulation of one 3000-foot-deep well triggered 70 earthquakes in just over six hours in Oklahoma. That state has been geo-engineered, he writes, into “a landscape more earthquake-prone than California.”
    It’s an important issue for BC, home to some of the world’s largest frack jobs in areas like the Montney and Horn River formations, the latter already having experienced hundreds of quakes. In August 2015, Progress Energy (owned by Petronas) triggered a quake in the Fort St John area measuring 4.6—roughly the size of the one that rumbled through Victoria in December. As a result of the recent quake study, Andrew Weaver, Green Party MLA for Oak Bay-Gordon Head, called for a moratorium on horizontal fracking in BC, noting that Quebec, New Brunswick, and Nova Scotia have already suspended it. Nikiforuk’s book is therefore timely reading for anyone interested in the debate.

    Sometimes accused of being unobjective, Nikiforuk says he started writing about the energy industry as a business journalist. A former Calgarian now living in Campbell River, BC, he was also an Alberta landowner and friends with other landowners,  so he would regularly hear, he tells me, “real stories from real people” about how energy companies worked on the ground. “Once you’ve heard the truth,” he says simply, “you can’t ignore it.” Whether in his National Magazine Award-winning articles, his column in the Tyee, or books that have won him the Governor General’s Award for Non-Fiction and the Rachel Carson Environment Book Award, and landed him as a finalist for the Grantham Prize for Excellence in Reporting on the Environment, Nikiforuk has devoted decades to finding and sharing the truth of an industry that is, he says, very good at hiding things.

    At its heart, Slick Water is about access to information—the manipulation or outright suppression of information germane to environmental, economic, and public health. “When I started out as a reporter,” he recounts, “I didn’t encounter the level of lies and evasion, the constant evasion that I do now,” and he notes that there are approximately six PR people employed for every journalist. So whether it’s industry self-regulation, environmental assessors relying on industry-submitted data, or the ever-expanding corporate PR machine, part of what preoccupies Nikiforuk is the way the industry represents itself.
    If we need trust for society to work, that has to include communication. When Calgary-based Talisman put out a colouring book featuring Terry the friendly Fracosaurus and showing escaping natural gas as happy-faced balloons, US comedian Stephen Colbert called it the fracking industry’s equivalent of Joe Camel. And when industry executives claim there are no proven cases of freshwater aquifer contamination, Nikiforuk calls it “one of the biggest lies of the twenty-first century,” arguing that the information is simply buried by gag orders imposed on complainants when they settle out of court.
    Nikiforuk’s concern is not just with industrial impacts on the environment but on ourselves—the dirtying of the human landscape, of our moral character. “It’s the same mechanism the Catholic church used to cover up abuse,” he tells me, clearly disgusted by the repeated process wherein allegations of environmental contamination are made against energy companies, often by rural landowners, then high-paid lawyers swoop in offering compensation in exchange for a confidentiality agreement, with the victim frequently intimidated into silence. The cycle of abuse is therefore allowed to go on with no public record of wrongdoing, he says. “It’s absolutely sick and very effective.”

    Thus, with clear admiration, Nikiforuk also tells a second story: How no amount of intimidation could silence Jessica Ernst.
    DESCRIBED BY SOME as the Joan of Arc of Alberta, Canada’s Erin Brockovich and a public hero, Nikiforuk chronicles how Jessica Ernst has spent the last nine years trying to hold accountable those responsible for contaminating her water and trying to suppress her voice. She worked in the energy sector for nearly 30 years on risk mitigation, wildlife protection plans, and community consultation for some of the biggest players—Esso, Statoil, Chevron, and Encana—and so Nikiforuk calls hers an “unconventional true story” because she’s not an environmentalist or an activist but a former insider who, against tremendous pressure, refused to be a victim.

    The book is therefore partly an exploration of her courage as a whistleblower and as a human being overcoming deep wounds in a search for justice for herself and others. In a testament to Nikiforuk’s empathy, the oft-betrayed Ernst opens up to him about extremely personal life details. Molested by a school bus driver at age six and repeatedly raped by a family friend a few years later, her childhood sense of safety in the world was broken. But we learn how, as an adult, that suffering paradoxically fuelled her determination to stop what she saw as a new cycle of abuse. Though many friends told Ernst the lawsuit would only be painful, futile and ultimately financially ruinous, she said: “The main reason I can do this is that there is nothing anyone can do to me that hasn’t already been done. They raped our aquifer…I couldn’t stop the bus driver or Rex, but I can do something now.” For Ernst, the fight is worth the personal sacrifice because, as she puts it: “Money is nothing. My belongings are nothing. Water is everything. Truth is much more important.”

    A finalist for the Writers’ Trust of Canada 2015 Shaughnessy Cohen Prize for Political Writing, Slick Water integrates facts and figures, the large-scale and the face-to-face, as well as economics and ethics that go beyond this one woman’s story and even this one industry. Often touching on philosophy in his work, Nikiforuk here looks to Jacques Ellul’s The Technological Society to explore how culture is being transformed, how we and our values are being transformed by the energy industry. As he tells me: “It’s very important for readers to understand that the story of fracking is not the only story they’re going to encounter in their lives” that revolves around technology and its impacts. “We’re flies in the spiderweb, and we don’t want to talk about the nature of the web. Are we in a cultural crisis over this?” he asks somberly. “Yes, we are.”
    While the Ernst case is centred in Alberta, Nikiforuk believes there’s a universal importance to it. “She didn’t expect to find justice,” he writes. “Instead, she realized that her case had become something more profound.” I would argue that Nikiforuk’s book is also about something more profound than an industry exposé. It’s a caution to everyone, globally, to consider where our energy dependence is leading and what we’re each willing to sacrifice along the way—water, trust, truth. Prompting people to ask that kind of question is, in a sense, a step towards some justice for us all.
    Fifteen percent of the book’s royalties will be set aside to help fund Ernst’s ongoing legal case.

    Writer and musician Amy Reiswig works by day (and sometimes into the night) as an editor for the provincial government. Her writing has appeared in Quill & Quire, The Malahat Review and The Walrus.

    Maintaining Victoria’s soft edges may be worth a hard fight.
    OUR CITY IS NAMED AFTER A WOMAN and, trusting historical images, a well-cushioned and matriarchal one (eight kids and an empire). Sure, “Vic” is a bit mannish, “Vicky” is all saddle shoes, but “toria” has a nice purling sound, soft as smoke. Shame, now that I think about it, that our city isn’t more legendarily ess-y—Storia: City of Stories, maybe (oh, but not storeys, sign of the cross!).
    Wikipedia states that Queen Victoria was “physically unprepossessing—stout, dowdy and no more than five feet tall—but she succeeded in projecting a grand image.” And as with the Crown, so with her namesake town.
    In a second parallel, portraits of this regal shorty suggest she was born with a scowl, an expression of nonspecific disapproval, as our city sported when I first arrived by ferry in 1970: “Welcome to Victoria. Behave yourself,” said the forbidding city-bound sign on the Pat Bay highway. The Victoria that made grudging room for me then is captured by a line in Jeffrey Toobin’s New Yorker piece about recently deceased conservative US Supreme Court Justice Antonin Scalia: “Like Nick Carraway [in The Great Gatsby], Scalia ‘wanted the world to be in uniform and at a sort of moral attention forever.’”

    Civic frown notwithstanding, soft is deep-baked into the DNA—is the DNA—of this city. Hard’s wrong here. Hard accomplishes nothing, diminishes the place, rubs its fur the wrong way. Visitors may reach for or be fed “little bit of Olde England” banalities to define the character of this place, but soft—not Olde or England—is really what they’re experiencing. It’s not just our coastal roads that have rounded corners; it’s the entire civic proposition.

    Along with our virtues come failings. We can be—as Focus Publisher David Broadland has illuminated repeatedly in his lethal pieces about the Johnson Street Bridge project and other infrastructure missteps—ditzy, fiasco-prone, amateurish, squishy, ship-of-fools-blind to risky outcomes, ditherers and procrastinators oblivious to urgency, horrible squanderers of public funds, mediocre in the delivery of civic process, and the deserving butt of “How many project managers does it take to” jokes.

    Soft’s getting rare. The world, already more combustible than at any time in recent decades, is hardening, poised for great trouble and about to become a much more dangerous place—you can feel it on your skin. A kind of ideological pyromania, a lust for doom, is in the air right now, and candidate trends capable of triggering an apocalypse are multiplying.

    Correspondingly, in spite of a local reputation for change-aversion, soft’s steadily fading here in Victoria. I’m at a loss to explain this, but, as a casual reader of history, I get that urban identity—the character, nature and meaning of a place and a people—is supported by a recondite social calculus, and that identity and stability are always at risk, never guaranteed. Stability-erosion, coalescence-dispersal: counter-forces always at war, along with a restless, jagged “nextness” intervening just when things seem to be settling down.

    We—all of us, not just Victoria—are heading into a fraught new chapter in which values and practices that seemed, a while ago, to be normative and to express shared social purpose, are now under assault by perverse counter-sensibilities manufactured in some Dark Zone of civilizational life.
    Exhibit A, from our neighbour to the south: a recent magazine essay about US school shootings observes, “School-shooter protocol called for him to kill his parents. He likes his parents, but he has to take their life, according to his manifesto, to prove that he’s up to the task, to prove he has no human feelings anymore, that he’s scrubbed out.”

    Next exhibit: “This is a world that has become incredibly dangerous,” writes New York Times columnist Charles Blow in a rangy piece that studies both the prospects for a vast scale of global climate refugee migration and social consequences as the quantity and availability of human work (jobs) diminishes.

    Blow cites the 2011 book The Coming Jobs War in which author Jim Clifton, chairman and CEO of Gallup, points out: “The primary will of the world is no longer about peace or freedom or even democracy; it is not about having a family, and it is neither about God nor about owning a home or land.
    The will of the world is first and foremost to have a good job. Everything else comes after that.”
    If you’ll indulge a complete non sequitur, Russian composer Nikolai Medtner wrote his 1926 “Drei Hymnen an die Arbeit” (Three Hymns in Praise of Toil), intending the music to be a tribute to work as an expression of God’s plan. As Clifton concludes, a world in which readily available work as a source of income, emotional well-being, and constructive social or spiritual connection is vanishing, replaced by—well, God knows what.

    It’s hard to tie a tidy bow around all of these ideas, but for me they lead to open questions: Under the threat of such strange new normals, can Victoria still “do Victoria” well, has it retained the instincts to be itself, or has it squandered its skills and character, lost sight of its identity? Could the city at this point produce the curriculum for Victoria 101 and then help everyone to pass with a B+ or better?

    Friend and colleague Rob Abbott takes these matters in an interesting direction: “As expressed by our land use and urban design policies, what physical conditions are we trying to create to evoke an emotional experience of this place, a signature feeling? That’s a conversation Victoria is not having.”

    Considering softism itself as Job Number One, Victoria has neither intention nor plan to recast or tell its own story to newcomers. It’s left to chance. There’s no civic rite of welcome, no initiation, and these days not even a frowning sign on the Pat Bay.

    Maybe we don’t have a story anymore, or that kind of city-story culture doesn’t exist anymore, and we have just become another modern place with some charm lipstick. Alternatively, maybe the gifts of paradox are catching up with us: Victoria’s long-cultivated conservatism, its “genius for inertia,” is, as ruminative architectural thinker Chris Gower notes, “the enemy of the bad, but also the enemy of the good.”

    Hard has endless current proxy identities locally—characterless four-storey file-box apartment buildings and the pathological braying for amalgamation come immediately to mind. Fortunately, soft’s far from gone: The Fernwood NRG (Neighbourhood Resources Group), for example, followed by a hundred other well-intentioned citizens groups invested in the binding force of community.

    I attend the memorial service for Dorothea Powell, my friend Heather’s mom: a hundred of us, a “family” of friends, sitting on uncomfortable church pews, celebrating a life, passing the care of its future over to God. I read in the service booklet: “Essentially, the Christian faith assures us that the brokenness and pain we experience in this world do not define us.” Heaven, our soft reward.

    Nathan Gardels, editor-in-chief of both Huffington’s WorldPost and the New Perspectives Quarterly, writes:
    “The fearful and fearsome reaction against growing inequality, social dislocation and loss of [cultural] identity…unprecedented mobility and ubiquitous connectivity is a mutiny, really, against globalization so audacious and technological change so rapid that it can barely be absorbed by our incremental nature. In this accelerated era, future shock can feel like repeated blows in the living present to individuals, families and communities alike.”

    Gardels continues: “Above all, the emergent world appears to us as wholly unfamiliar, a rupture with any lineage from the past that could frame a reassuring narrative going forward. Rather, philosophers describe this new territory of the future as ‘plastic’ or ‘liquid,’ shapelessly shifting as each disruptive innovation or abandoned certitude outstrips whatever fleeting sense of meaning was only recently embraced. A kind of foreboding of the times that have not yet arrived, or wariness about what’s next, settles in.”

    If, in the rush of such trends, we don’t know what our city is, or beyond the fizz of lofting real estate values and technological novelty we don’t have a larger frame for our urban community—the city’s purpose, possibilities, temperament, reach and arc—then how can we model, plan or sustain Victoria’s identity?
    Contradiction notwithstanding, isn’t soft worth a hard fight?

    A founder of Open Space and Monday Magazine, Gene Miller is currently promoting ASH, an affordable housing concept, and, with others, has initiated the New Economy Network.

    James Clowater’s urban arboreal vision.
    IN THE WORLD OF WEST COAST RESTORATION ECOLOGY, native species usually hold a pinnacle place of importance in the minds of decisions makers, scientists, and the public at large. Trees such as Douglas-fir, big-leaf maple and Garry oak support a host of native birds, insects, mammals and mosses. Restorationists push the importance of wildlife corridors made of native shrubs in urban areas. Botanists cherish lands unmarked by development—where native species can thrive unmolested—and often wave their hands in dismissal at horticultural gardens and urban trees as if they don’t merit attention at all.

    James Clowater, local biologist, educator and avid bird watcher, regularly leads hikes into native oases in the Capital Region. He shows hikers the fall fungi and winter birds at Witty’s Lagoon, or the grand spread of an arbutus half way down a treacherous trail to Finlayson Arm in Gowlland Tod Provincial Park. Six years ago, however, his way of seeing the South Island began to change, and today he has created a new resource for Capital Region residents.

    Clowater realized that most South Island residents live in urban areas. We pass the seasons walking under scarlet Norwegian maples or the vast canopies chestnuts create over many of the city’s main road arteries. “The giant sequoias on Rockland Avenue caught my eye,” he tells me over coffee at an East Saanich Road cafe. He asked himself why it shouldn’t be possible to value an introduced tree as much as a native species. Clowater also started noticing other species—trees he couldn’t identify. “Curiosity started it. What are these?” he asked himself. The answers were often nearly impossible to find.
    Clowater’s archival research uncovered a 1988 Heritage Tree Society publication. Victoria has an urban forest master plan available online, but there is no access on its website to a listing of trees or species. A big tree registry—vancouverislandbigtrees.blogspot.ca—lists native species in excess of 1100 years old within 30 minutes of the city centre. But no site existed that could lead those interested in heritage trees, native and introduced species of note, as well as map the location and species of significant trees. Until now. His new website—treesofvictoria.com—celebrates the beauty of his home region, so that “people can learn, and then value the region more because of that learning.”
    Horticultural species are foreign plants—they aren’t native to the West Coast—but many aren’t aggressive invaders; they play nicely with native plants. Victoria’s ornamental cherry trees become pure blossom in February. Monkey trees, Lebanese cedars, horse chestnuts, and ornamental plums saturate this region’s urban areas with a riot of spring colour. Content to stay where they’re planted, instead of reproducing or running riot like balsam poplar, eucalyptus or “tree of heaven,” ornamental trees can provide paved city streets with much needed shade, a heat sink, and architectural grandeur, as well as acting as habitat for adaptable native species.
    The history of the region’s horticultural trees is rich. It’s also in plain view. The Begbie “hanging tree” grows on Cook Street. On Ash Road, near Mount Doug, a tree once part of the Todd family farm was used by cougars for sighting deer. Ross Bay cemetery contains rarities such as Spanish fir and cork-bark elm. But the details of these tree species and their locations weren’t easy to find, until now. Clowater also hounded the City of Victoria until they gave him a printout of species not just in Ross Bay but also an identification of all of the city’s street-side trees. The cemetery, Clowater tells me, once served as an unofficial tree nursery; cuttings from the trees became many of the city’s current boulevard trees.
    Some protection currently exists for non-native trees in the CRD in the municipalities of Saanich and Victoria. Victoria trees must be over 80 centimetres in diameter at chest height to qualify. The Saanich bylaw lists “significant trees” with addresses, and it specifies where both native and horticultural species exist. Though the Victoria bylaw was established in 1999 and strengthened in 2005, exceptions still exist for species in the building footprint of a house or house addition or driveway, or those interfering with utilities. Victoria asserts that it has one of the “rarest and most threatened urban forests in the Pacific Northwest,” but it’s easy to imagine how the bylaw can be sidestepped by owners who want, as arborist Ryan Senechal tells me is common, “a better view of the Olympic Mountains.”

    Clowater’s site launches this May, and features GIS maps of Outerbridge Park, Beacon Hill and Ross Bay Cemetery, as well as walking tours and listings of historical, horticultural and native trees of significance. The maps show paths as well as trees such as blue atlas cedars from the Himalayas or a dawn redwood, previously only known through its fossils. The Ross Bay Cemetery section features trees from dozens of countries, each species overlaid on a satellite image map.
    To begin the project, Clowater received funding from the estate of Joan Outerbridge. Naming the species outside of parks, says Clowater, will help locate unmarked but significant heritage trees and ensure their protection. Clowater acknowledges, however, that mapping the entire region will be a lifelong endeavour. He makes his living from the talks he gives, but there is little left over for this passion. “What the project needs is to find funding and hire people—a master identifier and a GIS person.” That said, Clowater’s favourite part of the process is the exploring: identifying horticultural species, creating lists of trees and maps, and walking neighbourhoods to photograph giant species. Next on his list is UVic’s Finnerty Gardens and St Ann’s Academy.

    Many mapping projects already exist in the region. The University of Victoria Community Mapping Collaboratory features dozens of community green maps, including indigenous digital harvest stories, community vision maps, maps with traditional place names and UVic student maps completed during the Cascadia Field School sessions. Some environmental organizations, including the Ancient Forest Alliance, are also working to create maps of big trees in Avatar grove.
    Clowater’s site will also include a community mapping feature, where residents can add their own trees. Habitat Acquisition Trust’s land cover mapping project shows that the core municipalities lost 2025 hectares of urban tree cover between 1986 and 2011, 452 hectares of which was in Langford. The clearing continues today, as residents can see travelling between View Royal and Langford, where hectares of land beside the Island Highway are rapidly changing from forest to subdivision.
    Mapping also comes with its own risks, as Canada’s Indigenous peoples have discovered to their dismay. Maps don’t guide only well-wishers to the location of special trees or species at risk. Even ecotourism can increase negative impacts on habitat and native species and detract from privacy. But ultimately, the reason Clowater started Trees of Victoria is the same reason he started his birding courses and hiking group: “If we can get people excited about things in their own back yards,” he says, “if they have knowledge, and find it interesting, that leads to protection and preservation.”
    Clowater’s enthusiasm is infectious, and it is hard to undervalue the excitement, and the potential actions that excitement inspires, when confronted by a truly stunning example of an incense cedar, or a giant coastal redwood. In garnering public support for conservation—distinction matters.

    Maleea Acker is the author of Gardens Aflame: Garry Oak Meadows of BC’s South Coast (New Star, 2012).

    Realities like increased GHGs just get processed in the Premier’s political mix-master.
    WHEN I WAS A CHILD I DREAMED I COULD FLY. It was a recurring dream that took me up over our house and around the world, which for me at that time was the breadth of my town plus a few added kilometres stretching up and down the road. I’d wake to my muscles still twitching with the memory of it all, the easy takeoff and graceful landing, the instinctive choreography of arms and legs for optimal gliding on the winds. The conviction that humans were somehow primordially linked to birds perdured so strongly in my bones that unlocking the ancient code to human flight became my life’s mission.
    Since I’m not world famous and you don’t know how to fly, you’ve already figured out that my mission literally never got off the ground.
    Premier Christy Clark has a dream as well, one that she often and lavishly shared during the grand election campaign of 2013. At lecterns all around the province she promised to sprinkle the north with LNG operations and enrich our coffers with untold royalty and tax revenue—she was sure of it.
    According to her own crunched numbers, the industry, once up and running, would funnel $100 billion into a new “prosperity fund” that would eventually wipe out provincial debt and perhaps even personal income tax. It would also generate 100,000 new jobs. What a dream—and to top it off, the hard hats she often wore during the campaign flavoured it all with a hearty soupçon of added credence.
    In the north she emphasized jobs and toured industrial facilities, including a plant in Dawson Creek that reclaims sewage water for use in fracking—hey, are you thinking what I’m thinking? We in the CRD could soon have plenty of surplus effluent. Knowing there’s a market for it could potentially blow the blockage right out of our own sewage imbroglio, couldn’t it?
    But I digress. Today much of the gild has come off the LNG lily and things have grown complicated. BC’s extractable gas reserves are not the mother lode first reported by the government, and not nearly enough to supply all the operations on its books. Our First Nations, who own so much of the land in the LNG crosshairs, are increasingly keen on their sovereign rights and can play corporate hardball as well as anyone. Oh, and fracking causes earthquakes, we now know without a doubt.

    People are losing their tolerance for human-caused disasters like the Mount Polley tailings dam breach in 2014. We’re quite aware that in almost every single North American breach (I’m inserting the word “almost” to cover my ass) the assurances of foolproof systems and rapid spill containment measures have turned out to be what we in our family call “poop promises.”

    To add to Clark’s challenges, the would-be investors have been wallflowers, hanging back for huge tax concessions and “static regulations” guarantees. Royal Dutch Shell has left the party altogether, and Clark’s fervent attempt to pull Malaysian-owned Petronas onto the dance floor led to an awkward stumble when Malaysia’s President was caught with almost a billion public dollars in his own bank account.
    Then there’s the softening of gas prices in Asia, her target market, and the hard science of climate change. But Clark remains cheerfully undaunted: A quick spin of these realities in her political mix-master produces a folksy new missive—that selling our LNG to China so they can stop burning coal will lower carbon emissions globally! (While raising them in BC of course, but her new and quietly appointed Deputy Minister of Climate Leadership Fazil Mihlar, a former policy analyst with the Fraser Institute who once recommended eliminating the BC Environmental Assessment Act, will no doubt help sell the say-what?! message.)

    And finally, consider the polemical billion-dollar Site C dam project, mostly being built to feed the LNG venture. Only the government could wring viability out of a business model that would drown a prime valley to build a dam to produce electricity to power the fracking to barge LNG all the way to China to save our environment.

    Premier Clark might still have dreams about becoming Queen of the North, but times are changing. Some dreams were clearly never meant to fly.
    Trudy’s new dream is to see us transition to a low carbon society with government leading the way. 

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