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Katherine Palmer Gordon

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  1. Posted November 30, 2020 Image: A female black bear pulls organic material into her den. Wildlife advocates say that unless urgent action is taken to protect their winter dens from the impacts of industrial logging, black bears may disappear from Vancouver Island within a generation. Go to story
  2. Wildlife advocates say that unless urgent action is taken to protect their winter dens from the impacts of industrial logging, black bears may disappear from Vancouver Island within a generation. A black bear pulls organic material into its den tree to create a soft floor (video still by Artemis Wildlife Consultants) DALLAS SMITH is President of Nanwakolas Council, a coalition of five First Nations on Northern Vancouver Island. Smith can’t understand why black bear dens are protected in the Great Bear Rainforest and on Haida Gwaii, but not on Vancouver Island. “It’s a huge question for the Nanwakolas Chiefs,” says Smith. “Just over the water—literally only a couple of kilometres away—black bear dens enjoy world class protection. Why not here?” Biologist Helen Davis, who has spent much of her career researching black bears, is equally bewildered. Despite the fact that privately-owned forest land and forestry tenures on Crown lands cover well over two-thirds of Vancouver Island, and the significant risks logging activity poses to bear habitat, the provincial government is doing nothing to protect dens on the Island. “There is no good explanation for it, says Davis. “None.” What’s the problem? A winter den may be used by multiple generations of black bears before the tree or stump disintegrates, but at that point, the bears must find other large trees or stumps to create new dens. The inventory of old-growth forest is rapidly shrinking, however, and second-growth trees are now typically harvested before they get large enough to accommodate new dens. Logging technology has become more sophisticated as well. Many tree stumps used to be big enough for dens, but now even the largest trees can be cut to ground level. Helicopter logging and aerial survey technology have also replaced “boots on the ground” in many areas, says Davis, diminishing the ability to spot den trees before they are logged. No dens mean no bear cubs. It also means that homeless black bears are straying into the Island’s urban areas, where they are at high risk of being shot. Last January, it was revealed that BC conservation officers had killed 4,341 “nuisance” bears province-wide in just the previous 8 years. Add the impacts of climate change on forest health and declining salmon runs into the equation, and while black bears may not currently be considered a species at risk, it seems likely that will soon change. Jake Smith fears that it will change much faster than we think. Smith is a Mamalilikulla First Nation hereditary chief and manager of the Nation’s environmental Guardian program. He and his fellow Guardians from other First Nations are constantly out on the ground in their territories, monitoring wildlife. Smith says they have been encountering fewer and fewer bears in the last decade. “At this rate,” says Smith sombrely, “we may see the last black bear on Vancouver Island within a generation.” Chief Jake Smith (right) with a tranquillized grizzly bear Taking it to the Forest Practices Board Davis has worked extensively with forestry companies on voluntary den protection guidelines, restored damaged dens, and created artificial ones where there aren’t enough large trees for bears to make new dens naturally. But she says these measures, while helpful, fall well short of what is required to ensure the continued survival of black bears on Vancouver Island. Nothing short of full legal protection of both dens and large trees is required, and urgently. In April 2019, Davis complained about the issue to the Forest Practices Board, which monitors and reports on compliance with the Forest & Range Practices Act (FRPA) on Crown lands. The Board responded in January 2020, acknowledging the lack of any governmental effort to afford black bear dens protection on Vancouver Island. While options exist in the FRPA to designate forested areas as having “regionally important wildlife status,” these have never been used for bears. Biologist Helen Davis beside a black bear den that was created from a stump and a piece of plywood. The Board also noted that the Ministry of Forests, Lands, Natural Resource Operations and Rural Development (FLNRORD) couldn’t say whether current forestry management is effective or not to adequately protect bear dens, or even accurately estimate the current bear population on the Island. The Board has no enforcement powers, however, and refrained from calling for formal den protection. Instead it simply urged the provincial government to “work with First Nations and stakeholders” on den “management.” It was unequivocal in its final conclusion, however: “If second-growth forests are harvested before they develop old-growth features, and old-growth harvest continues, the supply of suitable denning habitat on Vancouver Island will decline.” The provincial government’s stance A few days before BC Premier John Horgan called a snap election on September 21, the provincial government released an independent report on BC’s old-growth forest management. The report, A New Future For Old Forests, noted that the retention of “forests of old trees” is key for maintaining biological diversity, and concluded bluntly: “The overall system of forest management has not supported the effective achievement of legislated objectives for old-growth forests.” The report recommended prioritizing conservation of BC’s forest biodiversity and, at least until a new strategy is implemented, deferring development in old forests where ecosystems are at “very high and near-term risk” of irreversible biodiversity loss. In its wake, FLNRORD Minister Doug Donaldson agreed to defer any logging on up to 353,000 hectares until August 2022, but the areas being deferred contain little old-growth forest. Shortly before the election on October 24, the provincial NDP party began proclaiming it would protect all old-growth forest, but didn’t provide any details. Pleading election restrictions on provincial government media communications, no one would be interviewed or disclose any more information (as of late November). Green Party MLA Adam Olsen, an advocate for bear den protection, is sceptical that much will change: “My experience of working with the BC NDP on forestry is they have to be dragged kicking and screaming to do anything. Their approach is basically 1950s redux. It’s all about the economic opportunities in logging, and decisions about wildlife are made by the forestry ministry. Everything has been set up to fail these animals.” The forestry sector’s stance Government agency BC Timber Sales (BCTS) manages 20 percent of the provincial allowable annual cut. BCTS encourages protecting dens on Crown lands, but also emphasizes that BCTS must “be mindful of the licensee’s harvesting rights and their autonomy to direct their own operations.” In other words, logging rights trump den protection. The two biggest forestry companies operating on Vancouver Island (in terms of geographic spread) are Mosaic Forest Management Ltd, which handles approximately 6,000 square kilometres of private forest lands and forestry tenures on behalf of Island Timberlands and TimberWest, and Western Forest Products Ltd (WFP). Mosaic declined the opportunity to be interviewed, instead emailing a statement from its director of sustainability, biologist Molly Hudson, saying that Mosaic’s forestry decisions are guided by its “Bear Den Policy.” The policy, which Mosaic refused to disclose, requires protection of dens “wherever possible.” When asked for examples of when it has not been possible, Mosaic did not respond. WFP was also not available for an interview. Communications director Babita Khunkhun emailed to say that WFP “actively conserves habitat, including black bear dens, as part of our ongoing commitment to our role as stewards of forestlands.” In addition, wrote Khunkhun, WFP has “rigorous measures in place to identify and retain bear dens on the lands under our care, full-time biologists on staff, and uses independent consultants to design operating plans with the aim of conserving wildlife. Our measures include training field staff and contractors to identify and conserve bear dens and minimize disturbances to hibernating bears. We leave a reserve around dens and between October 21 and April 30, we adapt our road building and harvesting operations in proximity of dens.” Of course, WFP isn’t simply being a good environmental citizen; it’s required to meet provincial objectives for wildlife and biodiversity under BC’s Forest Planning Practices Regulation, including the objective to retain wildlife trees. Those objectives are however subject to the qualification that meeting them will not “unduly reduce the supply of timber from British Columbia’s forests.” WFP’s Vancouver Island forest stewardship plans, a requirement of the FRPA, specify only the minimum areas required to be set aside as wildlife tree retention areas in its cut blocks. The plans contain no specific reference to black bears. The Teal-Jones Group, which operates on southern Vancouver Island, is currently the subject of a blockade of intended old-growth logging at Fairy Creek near Port Renfrew. Teal-Jones also declined to be interviewed or provide any information about its guidelines—if it has any—for den protection. What happens on private forest lands? The FRPA does not apply to private forest land, even if classified as “managed” forest land under the managed forest program, where owners voluntarily commit to managing their properties to meet legislated environmental objectives. According to the Managed Forest Council (MFC), Southern Vancouver Island is home to the largest area of private forest land in the province. The MFC regulates the roughly 18 percent of private forest land that is in the managed forest program (about 800,000 hectares), but was unable to say how much of that is on Vancouver Island. The MFC’s Field Practices Guidelines contain an objective for critical wildlife habitat protection on “agreed terms” with the government, but do not mention bears. On its website, the Private Forest Landowners Association states that its members: “Recognize, and through agreement with the provincial government, protect critical wildlife habitat where it cannot be protected on Crown lands alone.” The PFLA was contacted for more information, but did not respond. An unacceptable state of affairs Helen Davis says: “Some of the forestry companies are doing better in the last three years, but it’s hard for me to celebrate when we’ve known about the problem for more than 25 years and it’s taken them this long to act.” Davis also points out that even when a den is protected by a logging outfit, it isn’t necessarily done the right way. She has seen lone trees standing on ridge lines, prone to being blown over in a strong wind, and at the sides of busy roads with nothing screening them from traffic. “Bears will probably abandon those dens, because they no longer afford adequate protection.” A black bear den tree in the middle of a cut block Jake Smith is scathing about the lack of meaningful engagement by both forestry companies and government. “I bring deep knowledge into my role as a Guardian,” Smith says. “I have been on these lands all my life. First Nations understand we need to protect bear habitat now, but everything we say to provincial officials falls on deaf ears.” As to promises to protect old-growth trees, Smith isn’t holding his breath. “Everything is dollar-driven. If the government and forestry companies were really interested in protecting bear habitat or big trees, they would already be working with First Nations to do it.” Indeed, A New Future For Old Forests recommends full engagement of Indigenous leaders and organizations on the development and implementation of policy and strategy to conserve large trees and biodiversity. Dallas Smith, President of Nanwakolas Council, agrees with that: “What’s urgently needed is a collaborative approach between First Nations, forestry companies and government that puts large trees and wildlife first, before dollar signs. It’s frustrating,” he continues. “There’s no leadership by government to take this on, and to bring the forestry industry along with them. Forestry companies tell us they want to partner with us, but they don’t want to do things differently. They want everyone to guarantee their economic future but won’t accept they have to do their part to protect the bears’ future.” First Nations are no longer going to accept the status quo, adds Smith. “Those days are over.” Guardians like Jake Smith are out on the land, identifying den trees, both existing and potential, and ensuring the logging companies know about them. Dallas Smith points out that all tenure applications also have to go past the First Nations for review: “They are taking a long, hard look at each one. If it doesn’t meet their standards for protection, they aren’t going to give it a green light.” Dallas Smith, President of Nanwakolas Council What good looks like Jeff Mosher manages Taan Forestry, owned by Xaaydaa GwaayGalang (the Haida Nation). Mosher says black bears play a critical role in Haida Gwaii’s ecosystem: “They’re a top predator in the food chain, for example. Sitka black-tailed deer have been a huge problem here, but the bears are helping keep the population down.” Bears are ecologically important in other ways: “They leave salmon carcasses and salmon-rich bear scat in the forest, containing important nutrients for the trees’ growth.” Black bears are culturally significant to the Haida (Taan is a Xaayda word meaning “black bear”) and the company therefore goes “well beyond” minimum protection requirements, says Mosher. “We’re lucky on Haida Gwaii because, thanks to the efforts of the Haida Nation, we have plenty of old-growth trees left that we can set aside. We’re planning for where new dens could go, planting cedar and allowing other trees to reach a sufficient size to be suitable for new dens.” Taan also proactively rehabilitates old dens, and field staff undertake physical ground searches for large trees and bear dens when flagging their cut blocks. Any den found is given a 60-metre reserve (the minimum requirement is 20 metres) in which no logging-related activity is allowed to take place. In prime denning season—November 15 to May 15—the restricted area is increased to 200 metres. These measures aren’t necessarily typical, says Mosher. “Other forestry companies have left Haida Gwaii because it wasn’t worth it to stay. But Taan’s shareholder is the Haida Nation. Protecting bears is a priority, even if it means a lower dividend.” Taan is a good model, says Davis, who is in the process of drafting “ideal guidelines” that forestry companies should be required to follow, including requirements to physically survey cut blocks for bear dens. FLNRORD should be mandating not only protection of the inventory of existing bear dens, she says, but planning to provide sufficient habitat in the form of large trees to meet future needs. The recommendations in A New Future For Old Forests should be implemented in full, as soon as possible. The Wildlife Act could be used to protect dens on all forested lands, public or private. A review of the effectiveness of the objectives of private managed forest lands, including protection of key public environmental values, has been underway by FLNRORD for nearly two years. Public feedback summarized on FLNRORD’s website strongly calls for more robust environmental regulation. Given the extent of private forest lands on Vancouver Island, exempting them from regulation would hugely devalue any measures applied on Crown lands only. Why it matters Black bear wildlife viewing brings substantial tourism revenue into provincial coffers, says Davis, as do hunting licences. Their role in maintaining biodiversity is critical. Not least of all, as Jake Smith points out, the cultural and spiritual interconnection between black bears, the forest ecosystem and First Nations is not only special, it’s fundamental: “That’s why it’s my job to help protect these animals. It’s so important.” If British Columbians and tourists want to continue to enjoy the visceral thrill of seeing the wild black bears of Vancouver Island, and if we want the bears to continue playing their part in the Island’s ecosystem, then something needs to be done, and fast. Otherwise Jake Smith’s grave prediction that we may see the last black bear on Vancouver Island within a generation is all too likely to come true. “We can’t let that happen,” says Smith. “We won’t.” Katherine Palmer Gordon is an award-winning non-fiction author and a contributor to numerous anthologies and magazines. She is currently working on her eighth book, showcasing Indigenous leadership in environmental stewardship and community wellbeing in the Great Bear Rainforest and Haida Gwaii. Learn more:
  3. September 2016 The Province’s failure on First Nations burial sites is leading to more Grace Islets and potentially another Gustafsen Lake. ON THE EVENING OF March 17, 2015, the Tseycum longhouse in Saanich was permeated with a sense of profound relief. The desecration of 18 ancestral graves on Grace Islet, a First Nations’ burial site in Saltspring Island’s Ganges Harbour, had finally been stopped. Hundreds of people gathered together in the longhouse not only to express their thankfulness that the desecration had ended, but to share their grief over the spiritual insult done to their ancestors. Provincial Minister of Forests, Lands and Natural Resource Operations Steve Thomson was also there, but for a different reason: to apologize for the fact that the violation of the burial ground not only occurred under his watch, but with his approval. Nine months earlier, with a Heritage Conservation Act (HCA) permit in hand issued by staff at Thomson’s Archaeology Branch, a property developer had begun building his retirement home in the midst of Grace Islet’s graves. First Nations, horrified at the wilful destruction of their ancestral cemetery, pleaded repeatedly with Thomson to revoke the permit and protect the site instead, which the government had the authority to do under the HCA. Their protests were brushed aside, however, and onlookers watched in acute dismay as building materials were piled on the tiny islet and construction began in mid-2014. Threatened with an Aboriginal title lawsuit, Thomson finally caved in, paying more than $5 million to buy the island and stop the building work from continuing. That was too late, however, to prevent significant damage occurring to the graves, and searing emotional and cultural injury to the people whose ancestors had been so disrespected. An apology was the least that Steve Thomson could offer. Thomson also promised: “I give you my sincere commitment to work with you to ensure that something like this never happens again.” He reiterated the commitment to Focus shortly after the Tseycum event, stating that he had instructed his staff to review how the HCA is implemented with respect to First Nations burial grounds, specifically to avoid any future “Grace Islet-type situations” (see “Saving Grace,” Focus, April 2015). One might think that—faced by a roomful of people hanging on his every word, and by such palpable grief—Thomson would keep his word. But, 18 months later, it looks very much like he hasn’t. Thomson’s communications staff did not respond to requests for an interview with him. Focus received only a short email instead, insisting that a review has taken place and that as a result, the Archaeological Branch has “tightened up procedures” and “is paying closer attention to areas that may contain burial sites.” That closer attention may include “more frequent site visits by a branch archaeologist, and greater detail required from proponents for any planned development.” In other words, as far as anyone can tell, nothing has been put in place to ensure a “Grace Islet-type situation” cannot be repeated. It also seems no First Nations were involved in the “review,” despite Thomson’s promise to work with them. Dr Judith Sayers, a member of the Hupacasath First Nation, is co-chair of the Joint Working Group on First Nations Heritage Conservation, established in 2007 by the provincial government and First Nations Leadership Council to help improve the protection of First Nations cultural and heritage sites. You’d think Sayers of all people would have been involved in a review. But Sayers says: “As far as I am aware, nothing has happened.” Union of British Columbia Indian Chiefs President Grand Chief Stewart Phillip, who witnessed Thomson’s promise at Tseycum, says he is also not aware of any review at all taking place, let alone one that involved First Nations: “That’s very disappointing to me.” If Thomson’s goal was to prevent another “Grace Islet-type situation,” Phillip believes Thomson’s failure to keep his promise makes the opposite outcome inevitable. Indeed, there may be more than one such situation already brewing. In New Westminster, a school built over a burial site which is believed to contain the remains of a Tsilhqot’in chief is about to be torn down. Tsilhqot’in Nation has already put the Education Ministry on notice that they will not permit any desecration of his grave to occur. Further east, in the Similkameen Valley, the ancient remains of five people were uncovered and seriously damaged on February 29 this year when an unsuspecting Cawston property owner began clearing part of his land. He reported the incident immediately, and the Lower Similkameen Indian Band (LSIB) was called in to recover what they could of the scattered bones—fewer than half to date, according to LSIB Chief Keith Crow. “We’ve been able to repatriate maybe 400 bones so far, but that means there are at least 600 left there, if not more.” Crow says that the existence of burials on the Cawston site has been known to government since as early as 1952. Despite that, efforts to have the area protected under the HCA have been unsuccessful to date. “I just want to take care of our poor ancestors,” he says in frustration. “These are our great-great-great grandparents. They were properly laid to rest on that place and it is our sacred duty to ensure we look after them.” On April 25, Crow’s frustration at the lack of action by government to help protect the site boiled over. In a scathing letter to the Premier, Crow aimed a warning shot across the government’s bows: “Oka, Ipperwash, and Gustafsen Lake all proved very costly and involved the deployment of hundreds of police and the Canadian military. LSIB is prepared to begin a highly publicized protest unless you take immediate action.” The 1990 Oka crisis involved a land dispute in Quebec that lasted more than ten weeks and resulted in the death of a police officer. In 1995, it was Ojibway protester Dudley George who was killed by police at Ipperwash. The Gustafsen Lake standoff in BC, a protest by First Nations over an ancient sacred site, took place the same year and lasted a month. The cost of RCMP involvement was the highest of its kind in Canadian history. Crow’s implied threat that the government faces a similar scenario at Cawston didn’t achieve the result he hoped for. On June 7, LSIB issued a further press release stating: “Premier Clark told Chief Crow that her government would engage in a meaningful and responsive way. That has not yet happened. Our patience is running thin. Failure to act is not an option.” Nonetheless, by the last week of July there was still no movement. To his dismay, Crow was told by a provincial official that nothing would happen “this close to an election.” (The next BC provincial election is in May 2017.) On July 27, the Okanagan Nation Alliance (ONA)—of which LSIB is a member and Stewart Phillip Chair—wrote again to the Premier, as well as Aboriginal Relations and Reconciliation Minister John Rustad and Steve Thomson, urging them to re-engage on this “escalating” matter. This time they left no room for doubt about their intentions: “Direct action is the next step in moving this issue forward.” Asked by Focus for the government’s response, Thomson’s ministry staff replied by email: “The Province shares the concerns about the recent discovery of human remains and is currently working with the LSIB, the ONA and the landowner in a collaborative manner on solutions to protect the remains. The next meeting between all interested parties is scheduled for the end of August.” If it’s aggravating for journalists to receive that kind of non-response from government, it must be triply so for Crow. He says LSIB is committed to finding a solution to protecting the remains and is using every effort to engage government, but doesn’t feel it’s reciprocated. It was LSIB who organized and planned the August meeting, not the government, and if he’d had his way, the meeting would have been held much sooner: “I find it frustrating that it seems no-one else is taking this seriously except for the LSIB.” Crow did not comment on the likelihood of protest action occurring if discussions at the August meeting failed, but as things stood at time of writing, the potential for a positive outcome was not promising. Grace Islet wasn’t the first situation of its kind—think Bear Mountain, Nanaimo’s Departure Bay, and Musqueam’s Marpole site in Vancouver. Given the government’s apparent unwillingness to respond to First Nations and implement any meaningful changes to the way the HCA is implemented, it seems likely that it will not be the last. And the next one, whether it is at Cawston or elsewhere, could have even more serious consequences for government. Stewart Phillip believes that direct action may be the only alternative left to First Nations pushed to the wall over the mistreatment of their forebears: “It seems there will have to be a full-pitched battle before the Province will act to find a resolution and protect these ancestral remains.” Katherine Palmer Gordon is a former BC Chief Treaty Negotiator and the author of six books, including We Are Born With the Songs Inside Us (Harbour, 2013). She is currently working on New Zealand’s final treaties with First Nations there.
  4. June 2015 You’d think Fisheries and Oceans Canada would be on the side of wild salmon. Think again. MAY 6 2015 was a great day for wild salmon,” says Margot Venton, staff lawyer at Vancouver-based environmental legal group Ecojustice. It was a good day for Alexandra Morton, too: The biologist and the wild fish both scored a potentially significant victory in court. Two years earlier, Ecojustice had commenced legal action on her behalf against Fisheries and Oceans Canada (DFO) and Marine Harvest Canada Inc in the Federal Court of Appeal, contesting the fish farm company’s DFO-issued licence to transfer young salmon smolts from its hatchery into open-water pens in the ocean. Fisheries regulations clearly state that such licences can only be issued if the fish do not have any diseases or carry any disease agents that may be harmful to the protection and conservation of fish. Instead of requiring that precondition to the issue of the licence to be met, however, DFO had simply put the condition right into Marine Harvest’s licence, giving the company complete discretion to decide for itself whether it was complying with it. In other words, the fox was put squarely in charge of the henhouse. DFO retained no oversight authority in the licence to make sure in advance that no infected or diseased fish would be transferred. It even permitted Marine Harvest to transfer diseased fish if the company considered the transfer would be “low risk,” despite the fact that the regulations don’t contemplate that. In early 2013, Morton learned to her dismay that young fish infected with piscine reovirus (PRV) had been transferred by Marine Harvest into one of their open net fish pens in Shelter Bay, near Port Hardy on northern Vancouver Island, regardless of the potential danger to wild fish. “It was a completely reckless thing to do,” says Morton in frustration. PRV in farmed fish in the marine environment represents a significant potential risk to wild salmon, she explains, as the weight of scientific evidence indicates that PRV is the most likely cause of Heart and Skeletal Muscle Inflammation (HSMI), a severe and usually fatal disease in salmon. “That tells us putting farmed fish carrying this virus in close proximity to healthy wild fish is a bad idea,” she says. “And most farm fish do carry PRV. Making that transfer was playing biological roulette with the lives of wild salmon.” Morton wasted no time in going to court to seek judicial review of Marine Harvest’s licence. She argued that not only was the transfer of the PRV-infected fish a direct contravention of the regulations, but so was the issue of the licence by DFO in the first place. DFO has a responsibility to protect wild salmon, she told the court. In handing off responsibility for deciding whether a transfer of smolts might be harmful to other fish to a company with little incentive to protect wild salmon, DFO was not meeting that obligation. Justice Rennie, who presided over the case, agreed unequivocally with Morton. Rennie found that DFO had clearly abrogated its duty to protect wild salmon by handing off decision-making authority to Marine Harvest: “Unlimited discretion cannot be conferred on a sub-delegate,” he stated. “Supervisory control over the delegate should be retained.” In giving Marine Harvest discretion to transfer infected fish that might pose a risk to wild salmon, in direct contravention of fisheries regulations, DFO had also, in the plainest of terms, broken the law: “It seems almost too clear to state that the Minister cannot create any licence conditions which would in fact sidestep or nullify the [regulations],” wrote Rennie scathingly. “However, that is the effect of…the licence,” he concluded. In reaching his decision, to Morton’s delight, Justice Rennie took the unusual step of considering and commenting on the scientific evidence presented to him in court. Rennie concluded that Morton was right about that too: “Although there is a healthy debate between respected scientists on the issue, the evidence suggests that PRV is the viral precursor to HSMI and may be harmful to the protection and conservation of fish.” In light of that evidence, Rennie also castigated DFO for its failure to apply the “precautionary principle” in issuing a licence giving Marine Harvest complete discretion to release potentially diseased fish into the water. The precautionary principle, which has been recognized by the Supreme Court of Canada, proposes that where a risk of serious or irreversible harm exists, a lack of scientific certainty should not be used as a reason for postponing or failing to take reasonable and cost-effective conservation and management measures to address that risk. In court, DFO argued it had taken all due precautions required. Rennie disagreed in no uncertain terms: “It is not, on the face of the evidence, open to DFO to assert that the licence conditions permitting a transfer of PRV infected smolts reflect the precautionary principle,” he stated. “The Minister is not, based on the evidence, erring on the side of caution.” Rennie was equally sarcastic about DFO’s clumsy attempts to insist that science experts were on its side: “The Minister cannot make unsupported statements of science. Nor can the Minister point to expert affidavits, drafted many months after the decision and infer that those considerations must necessarily have been taken into account by the Minister in the exercise of his discretion.” It’s a dramatic decision, putting a clear onus on DFO to do more to protect wild fish. “Justice Rennie sent a clear message confirming that DFO has a duty to protect and conserve wild fish and the marine environment,” confirms Venton. But while it is a significant win on paper, what happens now remains an open question. The judge gave DFO four months to come up with a different form of licence that does comply with the law. Any new licence will have to either leave total control in DFO’s hands to make the decision as to whether smolts are safe or not, or spell out very clear criteria for the company to follow to ensure that diseased or infected fish are not transferred into the ocean. DFO will remain responsible for ensuring the criteria are followed; the fox will no longer be allowed to control the henhouse. “The problem for the fish farms, though,” says Morton, “is that as far as I know, they can’t get stock that isn’t carrying the virus. The farms won’t let us test their stock but I am constantly testing farmed fish sold in BC supermarkets, and almost all of them are infected with PRV.” That means it’s critical for fish farms to use infected stock: “They don’t have enough uninfected stock to be profitable.” This federal government has a proven track record of gutting important environmental laws, so it isn’t out of the question that DFO may therefore simply amend the regulations to allow fish farms to keep using infected stock. Alternatively—as it has to date—it may simply side with the industry’s public stance that there is no disease or virus in their stock, so amendment of the licences or regulations will make no difference to fish farm operations. Business may well carry on as usual. Either way, worries Morton, “DFO would be ignoring the science and putting the whole coast at risk.” The problem is that there continues to be little opportunity to directly test industry claims that their fish are fine. The public has no access to disease reports, despite the 2010 Cohen Commission’s conclusion that transparency improves industry safety, to everyone’s benefit. Also still lurking in the background is Bill 37, a 2012 proposal by then Agriculture Minister Don McRae that would make it an offence for anyone to disclose the presence of a reportable animal disease—an offence punishable by two years in prison and/or a fine of $75,000. It was condemned as restricting free speech by citizens and journalists and withdrawn at the time but remains a potential threat that could well be brought forward again by a fish farm-friendly Liberal government. The industry is also hedging its bets by claiming that a strain of PRV has been present in Pacific waters since before the introduction of fish farms. “Even if that’s true, which we don’t know yet for sure, it doesn’t matter,” responds Morton. “PRV is a very robust virus and concentrating it in feedlots allows it to reproduce very fast. Unlike in the wild, there are no predators to keep the diseased fish population under control. So these farms are amplifying the problem.” Even though Ecojustice’s Venton thinks an appeal of the case is unlikely—the legal point on which it was decided is very clear and would be hard to challenge—Morton’s celebration of her victory is still tempered. “Come December, DFO will be renewing all the aquaculture licences,” she points out. “These are nine-year licences that are locked in. If that happens and DFO allows infected fish to keep being transferred into the ocean, that spells a death sentence for wild salmon on BC’s coast.” “The real victory,” she concludes bluntly, “will be when these guys pack their bags, get out of the water and go home.” Katherine Palmer Gordon is a lawyer as well as the author of six books, most recently We Are Born With the Songs Inside Us: Lives and Stories of First Nations People in British Columbia.
  5. February 2015 The extraordinary potential of Vancouver Island forests to sequester carbon is being lost due to government inaction. VICKY HUSBAND, one of BC's best-known environmentalists and a member of the Order of Canada and the Order of BC, states the situation in her typical forthright fashion: “Our forests are being completely plundered. It’s a cut-and-run approach that isn’t providing local jobs, isn’t going into value-added products, and certainly isn’t seeing money coming back into the pockets of the people of BC. Forest management in BC, as it is practised today, is none of those things.” It also isn’t helping preserve the capacity of BC’s unique coastal forests, world-famous for their huge and ancient spruce, fir and cedar, to absorb greenhouse gases from the atmosphere and sequester that carbon in those giant trees. In the mid-1950s, as Husband points out, old-growth forests (more than 140 years old) once painted Vancouver Island and the south coast of BC a rich dark green. By 2014, as shown on the map below by David Leversee, green has been almost completely replaced by the purple of second-growth trees, some still in their infancy. Even second-growth forests are now at risk, as logging companies turn their eyes towards trees as young as 40 years old in the quest to meet their bottom lines. Why does it matter? The Sierra Club calculates that remaining high-quality old-growth forests on Vancouver Island and the South Coast are still currently storing at least 225 million tonnes of carbon, equivalent to more than 13 times BC’s annual greenhouse gas emissions. But that clearly can’t be taken for granted. With a business-as-usual rate of logging, those remaining old trees—along with their remarkable ability to capture and store massive amounts of carbon—could vanish in our lifetimes. With the way things are going in Canada’s efforts to reach greenhouse gas emissions reduction targets, it’s a loss we can ill afford. BY NO LATER THAN the end of March, Canada is required to submit a preliminary long-term greenhouse gas emissions reduction plan to the United Nations in anticipation of the annual UN Climate Change Conference taking place in Paris in December 2015. Given the federal government’s track record to date (Canada perennially wins the Climate Action Network’s Fossil of the Year Award), it’s difficult to imagine the plan will commit to any significant transition away from fossil fuel exploitation. That’s despite the fact that by 2020, Canada’s oil and gas sector is expected to have increased its annual emissions from 2005 levels by 45 megatonnes. It’s also despite the fact that 2020 is the year by which Canada is supposed to reduce its annual emissions by 17 percent from 2005 levels of 731 megatonnes of carbon dioxide, equivalent to a target of 611 megatonnes. We already know that we’re not going to get even close. Environment Canada estimates that Canada’s annual emissions will still be as high as 727 megatonnes by 2020. In BC, emissions reduction targets are considerably more ambitious—and equally tenuous. The Province has committed to reduce its emissions to 33 percent below 2007 levels (64.3 megatonnes) by 2020, and 80 percent by 2050. In its 2014 Progress Report on Climate Action, the provincial Ministry of Environment (MoE) reported that it had achieved an interim target of 6 percent by 2012. The next interim target is a significantly higher 18 percent reduction in emissions by next year. Yet the provincial government continues to frantically promote massive high-emissions LNG development. It has also done little to stand in the way of oil infrastructure proposals (i.e. pipelines). BC’s carbon tax, though lauded by some, is viewed by many economists as too low to effectively discourage fossil fuel use. Falling oil prices aren’t helping. MoE openly admits: “More action will be needed to move from each target to the next. With current policies remaining as they are, BC greenhouse gas emissions may begin to increase.” Meanwhile, the temperature keeps going up. Climate scientists recently announced that 2014 was the hottest year on record. They said the same thing about 2013. According to the US National Ocean and Atmospheric Administration, 11 of the 12 warmest years on record have occurred since 2000. The Intergovernmental Panel on Climate Change (IPCC) has warned against the drastic consequences of a global average temperature increase of two degrees Celsius. At current rates of emissions, that may well occur before the end of this century, with consequences typically described in biblical terms: extreme storms, lengthy droughts, flooding, famine, and pestilence. The IPCC also states: “Forestry can make a very significant contribution…to mitigation. In the long term, a sustainable forest management strategy aimed at maintaining or increasing forest carbon stocks…will generate the largest sustained [contribution].” GIVEN CANADA'S FAILURE TO REDUCE fossil fuel exploitation in the last decade, could forest carbon sequestration offer the solution to achieving our emissions reduction targets? Victoria-based Natural Resources Canada senior research scientist Dr Werner Kurz is unequivocal in his response: “Forests can definitely make a meaningful and significant contribution.” Global forests currently remove up to one-third of the world’s carbon emissions from the atmosphere and sequester or store them in their wood, leaves and roots and in the surrounding soil. They also emit carbon in a variety of ways, including through decay and wildfire. Forests are carbon sinks if they absorb more carbon than they emit, or carbon sources if they emit more than they absorb. How forest resources are used also affects whether forests are carbon sinks or sources. When cut timber is stored in long-lived wood products, like construction lumber and high-end value-added products, it continues to store carbon for a long time. Emissions are also reduced if those products are used in construction to replace emissions-intensive products like steel and concrete. Converting wastewood to biofuel may also reduce emissions if the biofuel replaces fossil fuel energy. Conversely, burning wood or using it for shorter-lived products like pulp and paper will result in the tree’s carbon being released to the atmosphere in the short term, thus adding to emissions totals. With 310 million hectares of forests, 55 million of them in BC, Canada has the potential to contribute significantly to global carbon sequestration. Since 2002, however, Canada’s forests—including BC’s—have been a carbon source, not a sink. The reasons include wildfires and unprecedented insect outbreaks (both of which can result from warming temperatures). However, it's the rate at which our trees are being cut down that is the biggest contributor. Environment Canada openly acknowledges in Canada’s Emissions Trends 2014: “The human activity that has the most impact on Canada’s forest emissions/removals is harvesting.” In BC’s 2010 State of the Forests report, the provincial Ministry of Forests, Lands and Natural Resource Operations includes a graph that clearly shows that the emissions from continued harvesting in BC far exceed those from fire and slashburning, and outweigh emissions sequestered in growing trees by a factor of two to one. In its 2013 publication Growing Carbon Sinks, Ministry of Forests also admits that increased harvest rates are a problem. Despite both admissions, neither Canada nor BC has moved to limit harvesting towards reducing overall carbon emissions. WERNER KURZ BEGAN WORKING WITH the University of Victoria’s Pacific Institute for Climate Solutions in mid-2014 to research the ways in which BC’s forests can contribute to climate change mitigation. Kurz says that BC’s coastal forests are key in the carbon sequestration equation: “On Vancouver Island and the coast, trees can grow for hundreds of years. They may be taking up carbon at fairly high rates for two or three centuries. The risk of loss due to natural forces is also probably lower than elsewhere in Canada, so [this is where] we likely have the greatest opportunity to grow long-lived forests storing a lot of carbon for a long time.” The provincial government appears to agree: “Some of [BC’s] forests,” boasts its Ministry of Forests, “contain the most carbon storage per hectare of any forest type in the world.” Ministry of Forests states that a 100-year-old coastal Sitka spruce will store about 1.84 tonnes of carbon (compared to an interior spruce the same age, at 0.47 tonnes). Coastal red cedar and Douglas fir aren’t far behind their spruce cousins, storing 1.47 and 1.32 tonnes of carbon respectively by the time they hit a century (an interior Douglas fir, by comparison, stores about one-third that amount). An assumption oft-quoted by the forest industry is that the rate at which mature trees sequester carbon slows down and becomes negligible after about 100 years. It’s used as a justification to cut down relatively young trees: If they’ve become “decadent” and they’re not continuing to absorb carbon from the atmosphere, why leave them standing? But in 2008, a scientific study in the US established that forests as old as eight centuries in fact do continue to accumulate carbon, and at a significant rate. In 2014 another group of US scientists built on that finding, concluding not only that old trees continue to accumulate carbon but that the larger a tree gets, the more carbon it accumulates each year. In just one West Coast forest plot that the scientists studied, trees larger than one metre in diameter comprised just 6 percent of the trees, but accounted for 33 percent of the growth. Lead scientist Stephen Sillett concluded: “The idea that older forests are decadent—it’s really just a myth.” Kurz believes there’s no time to waste in implenting forestry-related mitigation measures aimed at meaningful long-term reductions in provincial emissions. “Ecosystems are slow-moving,” he explains. “At the rate trees grow in Canada, it could take several decades to see the full benefit of changes to forest management. We have to start making those changes now so they are having an impact by 2050, when we need our forests to be making the biggest contribution to emissions reductions.” Unfortunately, there’s little sign of anything actually happening on the ground. When Kurz was asked about the timeline for implementation of his research results, he responded candidly: “I honestly don’t know.” In the meantime, as usual, the economy continues to drive the federal government’s agenda. Canada’s Action on Climate Change “Reducing Greenhouse Gases” webpage contains no reference to forest management. Moreover, Natural Resources Canada suggests that reducing harvesting would have a negligible impact on emissions. That’s despite their own admission that “[It is clear] that where deforestation is reduced, the immediate outcome is reduced GHG emissions.” NRC also admits that the rate at which net deforestation is occurring is only expected to drop by a fraction from 2005 levels by 2020, “due to the expansion of the oil and gas industry.” NRC says that it would simply cost too much to engage in afforestation, or the creation of new forests where none exist now: “One problem identified is that many of the costs of afforestation must be paid for upfront, but the carbon sink benefits develop slowly over time. This means that afforestation is not always economically attractive to the private sector.” Heaven forbid companies profiting from resource extraction should have to pay for mitigation of the impacts of their activities. BC at least promotes forest carbon management as “an immediate imperative.” But as usual, talk is one thing, action another. In 2013’s Growing Carbon Sinks, the Ministry of Forests admits “no official strategy exists currently.” The Ministry has committed to developing a climate action plan by March 31 of this year. A request for an update on the status and likely contents of the plan received no response, however. In 2010, the provincial government did enact a net-zero-deforestation policy for BC. As Kurz points out, however, while that may mean there have been no further reductions in forest land area in BC, that doesn’t mean a net-zero impact on carbon emissions: “You’re typically cutting down mature trees but replacing them with small ones, so you likely still have a net reduction in carbon stocks.” To the Province, age doesn’t seem to matter, despite the science pointing to the carbon storage efficiency of older trees. The Ministry of Forests states: “[The] minimum harvestable age is an estimate of the earliest age at which a stand has reached a harvestable condition—i.e., has met minimum merchantable criteria.” In other words, if there’s a market for it, you can chop it down. For Douglas fir, admits the Ministry of Forests, that can be as young as 40 years. Then there’s the issue of private forest land, comprising 20 percent of Vancouver Island’s forest cover. The provincial government doesn’t regulate harvesting on private land. The Ministry of Forests confirms that: “The determination of minimum harvest age on private-managed forest land is at the discretion of the landowner.” Commons BC geographic information system mapper Dave Leversee estimates that from 2012 to 2014, of the more than 40 million cubic metres of timber logged on Vancouver Island, one-third of it came from private lands. That’s a lot of unregulated wood. Here are some more depressing statistics. Unprocessed logs, more than 40 percent of which come from private forest land, comprise more than 30 percent of coastal forest exports. Forty-six percent of the Coast-Douglas Fir Zone—southeastern Vancouver Island and the Gulf Islands—had been lost to non-forest use by 2010. Seventy-five mills have closed permanently in BC since 2000, 17 of them on Vancouver Island and another 33 on the rest of the coast. In the two decades to 2011, forest sector jobs had declined by 52 percent to just over 46,000. In other words, strategies to support the forest economy on the BC coast—let alone promote carbon sequestration or the local wood product industry—seem to be thin on the ground. There is an upside to all this, according to the Ministry of Forests: mill closures and a reduction in industrial activity in recent years “have contributed to a decrease in emissions.” THE SIERRA CLUB ADVOCATES that from a carbon storage perspective, logging of old-growth forests needs to stop today. Their 2013 report Carbon at Risk: BC’s Unprotected Old-growth Rainforest, concluded, “Avoided logging of old-growth rainforest is one of the most immediately effective actions to reduce emissions.” It argued that from a carbon perspective, “converting old-growth rainforest to second growth is like giving away a safe, hefty bank account with a decent interest rate in exchange for a start-up bank account with almost zero money and the promise of spectacular growth based on unreliable forecasts.” Vicky Husband believes that given how little old-growth remains, it is now just as necessary to provide similar protection to mature second-growth forests: “It’s absolutely critical,” she declares emphatically, “to preserve all these big trees.” Given how important a role BC’s coastal forest could play in terms of carbon emissions reductions, preserving mature trees—on both Crown and private land—would seem logical as a simple matter of precaution. Katherine Palmer Gordon has written six books of non-fiction, including several BC Bestsellers and a Haig-Brown prize-winner. Her most recent book is We Are Born with the Songs Inside Us: Lives and Stories of First Nations People in British Columbia.
  6. January 2015 Failure to protect First Nations graves on Grace Islet may lead to the first aboriginal title claim on private property in BC. ON NOVEMBER 10, Chief William Seymour of the Cowichan Tribes wrote a polite letter to Premier Christy Clark. Attached to the letter was a formal notice of claim to aboriginal title over Grace Islet, a three-quarter-acre rocky knoll located in Saltspring Island’s Ganges Harbour. It’s not unusual these days for the provincial government to receive claims of aboriginal title over Crown lands in British Columbia. But this one is different from all the others: the claimed property, Grace Islet, is privately-owned. The claim states that prior to European contact, Cowichan people exclusively occupied Grace Islet as a burial ground. Its conversion to private property in the mid-twentieth century was a breach of Cowichan’s aboriginal title, and therefore invalid. Seymour requested that the government therefore take immediate action to repurchase Grace Islet from its current owner, Alberta businessman Barry N. Slawsky, and return it to the First Nation. Otherwise, wrote Seymour, Cowichan Tribes will proceed with legal action. The implications of the claim, if it proceeds, could be profound. How will a court balance constitutionally-protected aboriginal title against bedrock principles of private property ownership? “If it goes ahead, this will break completely new legal ground,” observes Professor John Borrows, Canada Research Chair in Indigenous Law at the University of Victoria Law School. “An aboriginal title claim over private property is uncharted territory.” It’s a risky step for a First Nation to take, notwithstanding the increasingly robust case law affirming aboriginal title in the province. A court could decide that the conversion of the land to fee simple status extinguished Cowichan’s aboriginal title. On the other hand, as Borrows points out, the court will have a blank page to fill. Given the facts related to Grace Islet, the balance could just as easily swing in Cowichan’s favour. Based on his legal advice, Seymour firmly believes that Cowichan will win: “If we are forced to go to court, Cowichan has a very strong history here and a very strong case so I think we’ll succeed.” But Seymour also strives to quell fears about what a case like this could mean to private property owners in BC. “It’s important to understand that we’re not going after private lands in general here. We’re not interested in that.” The claim is all about Grace Islet: “It’s completely exceptional.” He also emphasizes that going to court is a strategy of last resort: “I really hope we don’t have to go to court,” he says. He says the First Nation has had little choice but to take this dramatic step: “We’ve been forced to this point.” GRACE ISLET has been registered as a provincial heritage site since 1974. Archaeologists have identified at least 18 burial features clustered on the islet. First Nations who share the territory in which Grace Islet lies—Cowichan Tribes, Penelakut, Halalt, Tsartlip, Tseycum and others—have made it clear that the sanctity of such group burial sites—cemeteries in all but regulatory name—must be respected. But in 2014, with provincial government permits in hand allowing him to do so, owner Barry Slawsky began construction of a 2300-square-foot home on the tiny islet. Room to build is very limited, and the home incorporates two of the graves into its crawl space. When First Nations learned that construction was proceeding, despite their protests to the government that no construction of any kind should take place on Grace Islet, they were aghast. Building a house in a cemetery is a breach of customary laws and cultural practices governing the care of the dead in these places. Cowichan lawyer and negotiator Robert Morales says cemeteries like Grace Islet are considered “dangerous, powerful places that are to be strictly avoided by the living…it is unthinkable to knowingly build a house on top of a cemetery.” In an August 2012 letter to Minister of Forests, Lands and Natural Resource Operations Steve Thomson, Penelakut Chief Earl Jack wrote: “The disturbance of the dead is dangerous to the living, who may suffer sickness, poor fortune or death. For this reason, the dead were placed in cemeteries, such as burial islets, distant from village life. Only those persons who own the traditional ritual knowledge to deal with the dead may visit the cemeteries and care for the spirits through ceremonial practices.” But requests by Cowichan, Penelakut and other First Nations made to both the owner and the provincial government to leave the dead in peace on the islet have fallen on deaf ears. In July 2014, Minister Steve Thomson issued a public statement that the provincial government recognized its obligation to protect First Nations’ “archaeological sites,” but that the rights of private property owners must be respected. That, as far as Thomson was concerned, was that. THE ROOT OF THE PROBLEM lies in the distinct forms of legislation applied to First Nations burials sites versus those of others. Under B.C’s Cremation, Interment and Funeral Services Act, it’s an offence to litter, play games or even drive over a nearby flowerbed in a cemetery—all activities disrespectful to the dead and their living descendants. But collective aboriginal grave sites do not receive the same level of sanctity under the Heritage Conservation Act (the HCA). The HCA, says Robert Morales, is supposed to protect aboriginal graves. “It does state quite clearly that it is an offence to desecrate them,” explains Morales. There are two problems, however. “Unlike the cemeteries legislation, which is premised on respect for human remains, the purpose of the HCA is preservation of the scientific and historic value of archaeological sites. First Nations human remains are the remains of real people, but the HCA treats them like artefacts.” The second problem, says Morales, is the way the Act’s being implemented: “It’s more about facilitating development than it is about protecting heritage sites.” The HCA authorizes the Archaeological Branch to issue permits to do exactly what it supposedly seeks to prohibit—to alter (read desecrate and damage) heritage sites as part of a construction project or development. Hence a permit to build a house on top of graves on Grace Islet. The provincial government has also never developed any policies or guidelines governing what amounts to desecration or damage in the course of construction, he continues. “There are no criteria, for example, governing when a site simply shouldn’t be developed at all, like Grace Islet.” Gabriola-based archaeologist Eric Mclay, who has inspected Grace Islet, says: “There should at least be a minimum threshold that must be met before a permit can be issued. But BC won’t create any guidelines at all, and owners are taking advantage of that, as we can see. In my experience,” he adds darkly, “the Archaeological Branch will simply push and push the limits on what can be done to sites until there are no more limits. It’s almost a rubber stamp process now. Grace Islet is a good illustration of that. Where are the boundaries?” he asks in frustration. “On a known burial site, with mass graves, how is it possible that a permit could be issued?” No municipality or government would dream of issuing a building permit over a cemetery, nor would they be permitted to. Yet that’s exactly what has happened at Grace Islet under the auspices of the HCA. It’s an approach that Mclay describes as crass and appalling: “The HCA is supposed to protect these sacred sites from development. But the provincial government has instead chosen to allow a known cemetery to be developed [at Grace Islet]. There’s no morality in that whatsoever.” EVERYTHING MAY CHANGE, however, now that Cowichan Tribes have fired their aboriginal title shot across provincial government bows. A title case may be risky for Cowichan, but it’s a downright unattractive proposition to a government that stands to be held financially responsible if a legal precedent is set for aboriginal title on privately-held lands. It’s therefore unsurprising that an urgent flurry of activity followed receipt of Cowichan’s November 10 letter. Minister Thomson promptly secured Treasury Board approval to fund the purchase of the islet, and tasked former provincial deputy minister Lorne Brownsey and experienced consultant Patrick Kelly with attempting to reach a negotiated settlement between all the parties. Cowichan, encouraged by the prompt response, has put the title suit on hold while the negotiators meet with all of the affected First Nations and owner Barry Slawsky. “We see these negotiations as a positive step in the right direction,” says Seymour. His vision of a successful outcome is straightforward, and much the same as outlined in the title claim: “We don’t want a house built over our grave sites. It’s really that simple.” He would much prefer to see that outcome happen as a result of reaching an agreement with the owner and the provincial government rather than being forced to resort to litigation just to get to the same place: “I hope we don't have to go to court,” he repeats. “No-one wants that. But,” emphasizes Seymour, “that requires everyone to work together.” At press-time, the negotiators had no comment to make and the provincial government could only say: “Discussions are going slower than we would like.” Seymour was unsure whether anyone had had any luck getting hold of Slawsky, who was out of the country. The prospects for success of a negotiated settlement were anything but clear, and the likelihood of a court case proceeding—whether by Cowichan alone, or joined by their fellow First Nations with shared interests in the islet—is entirely possible. WHEN THE POSSIBILITY of a title suit was made public in December, Slawsky’s lawyer John Alexander told the CBC in dire tones that with burial sites scattered all over the Gulf Islands and coastal BC, title claims posed a huge threat to property owners: “This is going to ignite a firestorm of controversy if now private land is no longer something you can buy with any certainty.” But Seymour doesn’t agree that the Grace Islet case will set a precedent of that nature. “I hope it doesn’t do that. It shouldn’t. First Nations have never been after private land.” Cowichan haven’t asked for private property to be expropriated as part of their treaty negotiations, and Seymour notes that the Tsilqhot’in specifically excluded private land from their recent successful title claim. Grace Islet, however, is different. It may in fact be unique. Burials are found from time to time on private property but in most cases, an arrangement can be made with the landowner to deal respectfully with the remains, either by moving them or by moving the proposed construction to a different part of the property. In their experience, say Seymour and Morales, in almost every case this is the mutually satisfactory outcome. But when it comes to Grace Islet, First Nations have consistently emphasized that the entire islet is a burial ground, filled with grave sites. Eric Mclay says that given the tiny area of the islet, its steep and rocky topography, and the sheer number of burial features, it’s impossible to build a house without affecting them: “It’s clear there is not enough physical space on the islet to put a house without impacting the burial cairns.” Saltspring resident Joe Akerman, who is of Cowichan descent, agrees: “There’s simply no room to build on a different part of the property.” Because of this unusual situation, Akerman also dismisses fears that all private property would be at risk if a lawsuit should succeed. “That’s just not true. We aren’t here to kick everyone off their properties. This is just a matter of basic respect and decency when it comes to Grace Islet.” Robert Morales agrees: “It’s a great exaggeration to say all private property would be affected, whether this is a negotiated settlement or a court decision. I just don’t buy the fear-mongering. This is an exceptional situation.” Even if aboriginal title over Grace Islet is established and a court orders the return of the land to its prior occupants, it may choose to limit the impact of the decision to the almost unique set of facts that Grace Islet represents, setting concerns to rest that the decision will have general application to other private property in the province. Professor John Borrows points out that as the law stands, the government could argue that the alleged infringement of the aboriginal title—the granting of fee simple title by the Crown to an individual property owner—is justified. But the test for justification has been set high by the courts. “The Crown would have to demonstrate that the benefits of the grant of land to a private owner outweigh the detriment to the First Nation,” says Borrows. While it’s possible, it’s hard all the same to imagine that the building of a house would trump the protection of 18 graves in this situation. Cowichan isn’t the only First Nation with an interest in Grace Islet, of course (despite stating in its draft claim that it exclusively occupied the islet). That doesn’t necessarily pose a barrier to a grant of title, says Borrows; the courts have consistently taken the view that First Nations can have shared title to land to the exclusion of all others. “If Cowichan are serious about going to court they may want to talk about how to approach shared exclusivity with their neighbours and amend the statement of claim,” suggests Borrows. William Seymour agrees: “For Cowichan to claim totally exclusive use wouldn’t be right. Our neighbours used Grace Islet too. We will definitely talk to them and deal with that aspect if we go to court.” In its notice of claim, Cowichan asks for the return of the entire property. Borrows believes that if it does come to that, fair compensation by the Crown to the disenfranchised party must be embedded in the decision. “That could actually be a good thing for property owners. Right now, private property rights aren’t constitutionally recognized in the way aboriginal rights are. So if the Supreme Court ultimately decides that compensation should be a bedrock principle in a case like this, that would be a good outcome too.” Borrows acknowledges that money may never be enough compensation for people whose emotional and cultural attachment to a piece of land goes to the core of their identity and being. “Sometimes it isn’t just about the law and about rationality. You have to consider the emotive aspect and the connection to the land as well. You can get all this right on paper but if we don’t address those issues everyone still loses in the end.” Eric Mclay agrees with that assessment, saying Grace Islet simply needs to be protected from development like any other cemetery: “We have to recognize that the graves take priority.” Whether that’s through a negotiated settlement, says Mclay, or by establishing in court that aboriginal title and rights take precedence over private property rights in a case like Grace Islet, “BC needs to purchase that land back.” Ultimately neither litigation nor a last-minute, expensive and one-off desperate attempt at negotiation is an ideal way to address this issue. Things wouldn’t have got to this pass, say all the players, if the law already effectively protected First Nations cemeteries and burial sites. Future title litigation could be avoided if this aggravation were finally to be remedied. “The law needs to be strengthened so that situations like this don’t arise in the future,” concludes William Seymour. “It’s just crazy that we have to fight so hard to protect our burial grounds this way. No-one should have to do that to take care of their people.” Katherine Palmer Gordon worked for more than 15 years as a contracts lawyer and First Peoples’ land claims negotiator and facilitator, both in New Zealand and BC.
  7. October 2014 A recent scientific report implies we are close to a point of no return on climate change. UVic’s Dr Tom Pedersen weighs in. LAST AUGUST, a draft report from the United Nations’ Intergovernmental Panel on Climate Change (IPCC), leaked to the news media, set out some cold, hard facts about global warming. The concentration of carbon dioxide in the atmosphere has risen from 280 parts per million in pre-industrial times to 400 now. The rate at which emissions are rising has never been higher. In 2013 alone, the concentration of carbon dioxide increased by nearly 3 parts per million. Scientists say planetary emissions must be reduced by 40 to 70 percent by 2050 to keep global temperature increases to tolerable levels and minimize infrastructure damage and coastal erosion associated with rising sea levels. But the report also points out that accumulated emissions to date will continue to have a negative impact for centuries to come, even if all emissions were to cease today. The media reacted in apocalyptic terms: “Runaway growth in the emission of greenhouse gases is swamping all political efforts to deal with the problem,” observed the New York Times. In Mother Jones, journalist James West asked gloomily: “How many synonyms for ‘grim’ can I pack into one article? [The IPCC report] confirmed, yet again, the grim—dire, frightful—reality that we face if we don’t slash our global greenhouse gas emissions, and slash them fast.” But Dr Thomas Pedersen, executive director of the Pacific Institute for Climate Solutions, a solutions-based research network hosted by UVic, has a different take. While the internationally recognized authority on ocean chemistry believes a “full frontal assault” on emissions is necessary, he also believes the future doesn’t have to spell drastic climate failure: “When the final official version of the IPCC report comes out it is no doubt going to set out some grim facts. But I doubt the IPCC is going to suggest we should all throw up our hands and surrender,” says Pedersen. “They are also going to talk about mitigation efforts that are underway.” In that respect, Pedersen ardently believes, there is “a very good story to tell.” Not every good story has a happy ending, of course. According to both the IPCC and UK-based Global Commission on the Economy and Climate, current mitigation efforts—investment in renewable energy and improved public transportation infrastructure, for example—are nowhere near enough. Any emission reductions being gained by such initiatives are being dwarfed by rocketing greenhouse gas emissions on other fronts. China is a good example of that. With its vast heavy-industrial economy, China frequently gets blamed for rising global emission rates. But Pedersen says that China is also doing more than almost any other country to produce clean energy. In August, the Chinese government announced the country will bring in a national carbon trading system in 2017. “They’ve already had seven pilot emission trading schemes in place for nearly two years, in five cities and two provinces with populations comparable to Canada’s, and the schemes are already showing good results in emissions reductions with no economic dislocation.” Moreover, China’s investment in renewable energy is the highest in the world, according to Pedersen. “President Xi Jinping has stated that Chinese coal consumption will not be allowed to increase past 2030, when it is anticipated to peak. So China now has by far the highest rate of installation of solar-voltaic capacity and wind turbines, and households are installing solar-thermal systems for domestic hot water production on rooftops across the country. China is also building more nuclear plants and hydro dams than any other country in the world.” There are downsides to the two latter initiatives that can’t be ignored, acknowledges Pedersen. “But the point is that China is trying to do the right thing,” he insists. “They’ve acknowledged something has to be done.” That is indeed good news. The bad news: Sometimes trying to do the right thing may simply not be enough. Pedersen admits that China is also “by far” the world’s largest consumer of coal. And the US Energy Information Administration estimates that China’s use of petroleum liquids will double from 2010 to 2040. An even greater increase in use of natural gas is predicted. He also acknowledges that China’s efforts in the renewable energy sector will merely “blunt” the leading edge of its emissions: “It’s not going to compensate for the rise in its use of coal and other fuels.” By comparison, in 2011, Germany adopted a policy called “Energiewende,” or Energy Transition, aiming by 2050 for greenhouse gas emissions reductions of 80-95 percent; for hydroelectricity, solar, and wind power to supply 60-80 percent of the country’s energy demand; and for electricity efficiency to be improved by 50 percent. Like China, it’s a good news/bad news story, albeit for different reasons. On the emissions front, the prognosis for a happy ending is good. Three years after the introduction of Energiewende, renewable energy now accounts for 27 percent of Germany’s power supply. Thanks to high demand, the cost of wind and solar power has been reduced by 70 percent in the last five years. A proliferation of small renewable energy cooperatives has emerged across the country, some of them meeting 100 percent of local need. Germany has also become a global leader in the export of clean energy technology, and is the biggest manufacturer of wind turbines in the world. The results of the transition remain mixed, all the same. Germany has discovered that the rapid success of the renewable energy sector—in part due to generous government tariffs paid to renewable energy producers—has made significant inroads into the profitability of conventional energy utilities. With little time to adjust, their financial viability is seriously threatened. Some utilities are facing closure. That could, ironically, be seriously detrimental to the success of renewable energy ventures: At least in the medium term, it remains vital to ensure that back-up conventional energy is available to fill the gaps when the sun doesn’t shine and the wind isn’t blowing—or people might reject renewables as highly inconvenient. Germany has also made a misstep, in the opinion of Pedersen and like-minded climate experts, in deciding to phase out nuclear energy following the Fukushima disaster in 2011. That decision was made for the wrong reason, says Pedersen: “The problem with Fukushima wasn’t the fact that it was a nuclear power station in the way of a tsunami; the problem was that the reactor was badly-designed,” he explains. “The result has been a massive increase in coal imports to make up for it. That’s led to progress in meeting emissions reduction targets in the country coming to a standstill.” All the same, Pedersen believes Germany is still “well on the way” to meeting its 2050 goals. “If the lessons Germany has learned along the way are taken into account, overall Energiewende is still a good model for rest of the world to follow.” ONE OF THE KEY CHALLENGES to reducing manmade greenhouse gas emissions remains the relatively low cost of fossil fuels in most countries, resulting in profligate use of oil, gas, and coal worldwide. Pedersen is a big fan of aggressive carbon pricing as a way to discourage fossil fuel use: “Economists have quantified the cost of damage from carbon emissions arising from the extraction, processing, and use of fossil fuels to be about $200/tonne of carbon dioxide emitted. But we aren’t paying that price for the damage we’re causing, or anywhere near it. We’re essentially getting a free ride, and we’re using it wastefully. That needs to change.” Many countries have imposed some form of carbon tax or emissions trading system to discourage fossil fuel use, but not at the level Pedersen suggests is required. Nonetheless, in BC, he credits the 2008 provincial carbon tax for the fact that the province is leading the way in Canada in its emissions reduction efforts: “The province’s per capita fossil fuel use, relative to the rest of Canada, has declined by 19 percent since 2008.” He thinks there can be only one driver responsible for that: “That’s the carbon tax.” He also acknowledges, however, that the secret to the success of the tax is that it was designed to gain acceptance by the general public by avoiding sticker shock. We pay just $30/tonne of carbon dioxide emitted: “The tax was introduced at a very low rate and has only gradually increased to its current rate of seven cents/litre at the pump. It was also intended to be revenue neutral, so was tied to income tax reductions at the same time.” Despite the low rate, Pedersen remains an admirer of the tax: “If the BC-style carbon tax were to be adopted worldwide, I think we would see similar declining consumption globally, and that would be significant. But,” he adds, “the price of energy has to go up to the real cost of using carbon, so that there’s a real incentive to stop using the atmosphere like an open sewer and a real stimulus to invest in renewable energy instead.” IT'S ONE THING TO MAKE FOSSIL FUELS more expensive. The price tag on renewable energy—perceived to be much greater than that of fossil fuels—is also, however, a significant factor at play here. Germany is out of pocket $140 billion (US) to date in implementing Energiewende. The Global Commission on the Economy and Climate has also estimated that implementing measures to limit emissions over the next 15 years could cost up to four trillion US dollars. But let’s put those costs into perspective. For a start, pricing carbon appropriately, as Pedersen advocates, would make renewable alternatives much more competitive with fossil fuels. Even in the absence of that, the Global Commission has also pointed out that the four trillion dollar cost of building and supporting renewable energy infrastructure only exceeds that of fossil fuel infrastructure requirements by a factor of five percent. A hot off-the-press Global Commission on the Economy and Climate report delivered to the United Nations in mid-September also states that aggressive action on emissions reductions would be a boon to prosperity and not the economic show-stopper some perceive it to be. Co-author Lord Nicholas Stern says: “Reducing emissions is not only compatible with economic growth and development, if done well it can actually generate better growth than the old high-carbon model.” The Global Commission also reports that the cost of renewable energy itself has plummeted over the last three decades. “The cost of a photovoltaic cell, for example, has come down more than 100-fold since the mid-1970s,” agrees Pedersen. “In 1976, solar cell capacity cost $70/watt. Today it costs 70 cents/watt. I can’t name any other energy or fuel source that has dropped that much and it hasn’t bottomed out yet.” That’s despite the fact that in addition to an absence of a truly equalizing carbon pricing system, the renewable energy sector doesn’t enjoy the kind of subsidization that the fossil-fuel industry relies on for profitability, estimated by the Global Commission to be worth $600 billion a year worldwide. The International Monetary Fund pegs Canada’s share of those subsidies at $34 billion (including tax incentives and externalized costs of burning fossil fuels). The Pembina Institute recently calculated all direct federal subsidies at $711 million—not including provincial ones, or external costs, or “reclamation liabilities.” The latter are estimated to be $12 to 20 billion in Alberta alone. ALBERTA'S NEW PREMIER, former Conservative MP Jim Prentice, has unequivocally stated that market access for Alberta’s oil and gas—including through BC—is the highest priority for his government. The federal government has given a green light to the construction of the Northern Gateway Pipeline, anticipated to carry 525,000 barrels of diluted bitumen daily from Alberta’s oil sands to Kitimat, BC for export to Asia. It is expected to do the same with Kinder Morgan Canada’s application to twin its Trans Mountain Pipeline, tripling its capacity to 890,000 barrels of dilbit daily to the Port of Vancouver. Both projects will, of course, increase global emissions. In the meantime BC’s own government continues to beat the LNG drum. Touted as a much cleaner-burning fuel than oil, BC’s LNG nonetheless is a potentially significant contributor to emissions volumes. Alberta’s Pembina Institute has estimated that carbon pollution from the scale of LNG development envisioned by the BC government could reach 73 million tonnes per year by 2020, equivalent to nearly three-quarters of the projected emissions from Alberta’s tar sands, and 30 million tonnes above BC’s 2020 climate target. In 2012, by comparison, Canada’s entire greenhouse gas emissions volume was 699 million tonnes. That means BC’s LNG production, if fully implemented, would add up to more than ten percent of Canada’s emissions volume. In the face of the known increase in emissions all these proposed pipelines represent, isn’t it critical to prevent their construction if we’re to have any chance of meeting BC’s 2020 emissions reduction targets? Selling Canadian oil to Asia will also do nothing to help global emissions reduction efforts. In 2013, the Stockholm Environment Institute analyzed the effect on global manmade emissions of the proposed Keystone XL pipeline. The Institute concluded that pipeline—which would transport up to 830,000 barrels of dilbit daily, with 181 million tonnes of associated carbon emissions attached to those barrels—would impact the global oil market by increasing supply, decreasing prices, and thereby increasing global oil consumption. The impact would be modest—that volume represents less than one percent of daily global oil production (86.8 million barrels per day in 2013)—but the Institute nonetheless concluded that “the problem of carbon pollution could be significantly exacerbated” by proceeding with the Keystone project. Northern Gateway and Trans Mountain represent more than one and a half times the volume of Keystone XL. If these pipeline projects go ahead, will there be a similar correlated impact on oil prices in Asia? Pedersen doesn’t think so: “The impact would be minimal at best. It’s a matter of scale.” He points out that the combined volume of the two pipelines still only amounts to 1.6 percent of current world oil production. “That’s not going to have an impact on price or consumption. It’s just too small in proportion to overall supply.” What’s really required, says Pedersen, returning to his mantra, is carbon pricing to drive a reduction in demand. “It’s the only way to do it,” he insists. Fair enough: Raise the price, people stop buying, and look for alternatives. But doesn’t that also mean that reducing the price (even with a tax) by increasing supply will have the opposite effect, as the Stockholm Environment Institute concluded? And even if the impact of the two pipelines seems small in the global context, when all the other negative environmental impacts associated with the two pipelines are thrown in the mix—emissions associated with extraction of dilbit, construction of the pipelines, and tanker traffic, let alone consumption of the product, the resultant lag in shifting to renewables, and the potential for leaks and spills—it’s understandable that many British Columbians will still stand in their way. The IPCC has stated that we must leave the vast majority of all known fossil fuel reserves in the ground in order to avoid catastrophic climate change. They didn’t exempt Canada’s or BC’s reserves. THE GLOBAL COMMISSION on the Economy and Climate’s September report echoes a key conclusion of the draft IPCC report: Current levels of investment in renewable energy and other anti-emissions efforts are nowhere near enough. The other glaring problem is a lack of the kind of leadership required to implement the necessary global shift away from fossil fuel dependency to renewable energy and alternative ways of living. “The first step that needs to be taken is for every government worldwide to actively and vigorously recognize that human activity is driving climate change,” Pedersen acknowledges. “They need to recognize that reality has the potential to cause large scale global damage and act to prevent it, now.” We still can overcome the grim prognosis expressed in the IPCC report, says Pedersen, if all global leaders take aggressive steps to combat rising emissions. Unfortunately, Canada is missing in action in that respect: “It’s shameful. [Prime Minister] Harper was in the Arctic in September and not once was climate change mentioned. It’s reprehensible and irresponsible.” By comparison, he says, he felt encouraged at a recent carbon conference in Bogotá, Colombia, “because all the South and Central American countries were there and they are all committed to reducing emissions.” Pedersen believes that’s a worldwide trend. Judging by results in China and Germany, however, half-hearted efforts won’t do. “What’s needed,” Pedersen acknowledges, “is a full frontal international assault on climate change.” Katherine Palmer Gordon is the author of six books of non-fiction, including several BC Bestsellers and a Haig-Brown prize-winner. Her most recent book is We Are Born with the Songs Inside Us: Lives and Stories of First Nations People in British Columbia.
  8. September 2014 Is the Supreme Court of Canada’s declaration of Aboriginal title the death knell for proposed resource projects in BC? TRIBAL CHAIRMAN of the Tsilqhot’in National Government Chief Joe Alphonse, 46, was sitting in the Supreme Court of Canada on June 26 this year when it declared that the Tsilqhot’in Nation holds Aboriginal title to more than 1750 square kilometres of what is now former provincial Crown lands. “This decision will be remembered as a turning point in the history of Canada and its relationship with First Nations,” reflected Alphonse. Some corporate commentators were appalled—to the point of hysteria. Businessman Gwyn Morgan, writing in the Globe and Mail, described the recognition of Aboriginal title as “a recipe for investment-killing litigation” and that the decision amounts to “economic poison” for Canada, ushering in a new era of economically-devastating business uncertainty. Others responded more optimistically. The BC Business Council refused an interview, but shortly after the decision was announced, Vice-President of Communications Tom Syer blogged: “Do not panic. The sky is not falling. The decision will have significant implications [but the] desired path forward is through engagement, dialogue and respectful negotiation.” First Nations, of course, greeted the momentous decision with jubilation, and a strengthened resolve not to allow their hard-won rights and title to be trampled on any longer by government and industry. Several groups had previously launched lawsuits challenging Enbridge Inc’s Northern Gateway Pipeline and Kinder Morgan’s Trans Mountain proposal. Immediately after the decision, another nine First Nations followed suit. Two weeks later, on July 10, the Gitxsan First Nations served eviction notices on resource-based companies operating in their North Coast territory. “This is the end,” says Joe Alphonse emphatically, “of denying First Nations’ rights and title. It’s the start of a new way for everyone.” A changed economic landscape Is the resource-based economy of BC dead in the water? No, says Alphonse, it isn’t. He believes the Tsilqhot’in decision could in fact be very good for the provincial economy. But the economic landscape has changed permanently, and that can’t be ignored. Alphonse says that the case will, without question, help First Nations hold the wall against environmentally-devastating projects like pipelines and mines that threaten their lands and waters. In other words, companies like Enbridge, Kinder Morgan, Taseko Mining Group, and Imperial Metals just got a serious wake-up call. So did a provincial government that has been actively promoting LNG and mining mega-projects in BC. Says Alphonse, “People should understand that First Nations aren’t going to tolerate having these kinds of projects shoved down their throats any more. Some development proposals will always be unacceptable. They were unacceptable before the court case, they still are, and now the Tsilqhot’in title case has provided a legal club for First Nations to use to stop them.” Hence the flood of lawsuits against the Northern Gateway and Trans Mountain pipeline proposals that immediately followed the decision, along with the eviction notice served by the Neskonlith on Imperial Metals Inc after the Mount Polley dam breach. On the other hand, Alphonse says: “First Nations will support development that is beneficial to them, so long as it’s the right kind of development. So it should also be understood that Aboriginal title is simply a legal club we can now use to ensure we benefit from development when it’s on our lands, to ensure that we’re included in planning, in revenue-sharing, and in employment opportunities.” Alphonse also notes that it is up to governments and industries to put to rest any panic-stricken hype about economic uncertainty by dealing promptly, respectfully, and honourably with their First Nations counterparts. “It’s in their hands. The only thing that will perpetuate economic uncertainty now is if governments and industry simply say ‘it’s business as usual,’ and nothing changes.” Tsilqhot’in Nation v. British Columbia, 214 SCC 44 Alphonse was just 14 years old in 1982, the year Aboriginal rights were enshrined in section 35 of Canada’s new constitution. Barely a year later, the provincial government granted a logging licence to Carrier Lumber Ltd over the area claimed in the court case, but failed to take into account the Aboriginal rights of the Tsilqhot’in. Their objections fell on deaf ears. Faced with little other choice, they headed to court with their title claim. Both the provincial and federal governments opposed it, vigourously, for the next three decades. But on June 26 this year, they lost—resoundingly. Anyone who thinks this case isn’t an outstanding victory for the Tsilqhot’in—and First Nations all over the province—hasn’t read it. The 40-page unanimous decision is compelling, straightforward, and crystal-clear. For the first time ever, the Supreme Court declared the continued existence of Aboriginal title over a specific area of Crown land. It also put beyond debate that a First Nation holding proven Aboriginal title has the exclusive right to decide how the land is used and to benefit from it. If Aboriginal title is established and the consent of the First Nation hasn’t been obtained to a project on their lands, the project may have to be cancelled. That’s not without constraint. It’s a collective right, and the land must be managed for the benefit of future generations. As well, while governments have to respect title, they can infringe it to further a “compelling and substantive” governmental objective, such as the development of agriculture, forestry, mining, hydroelectric power, general economic development, the building of infrastructure, and protection of the environment. That may seem a catch-all that would allow government to pretty much do as it wishes. But the Court also set out exacting standards that must be met in justifying any incursion on Aboriginal title. The infringement must be necessary; it can’t prevent future generations from controlling and benefiting from the land; and the benefits of the objective must outweigh any other adverse effects on Aboriginal title. These considerations can’t be determined solely by government, as they have in the past. The First Nation’s views must be given equal weight. In other words, it’s no longer a one-way street in which government makes all the decisions. Governments can avoid having to justify a proposed infringement, the Court pointed out bluntly, by simply obtaining the consent of the First Nation holding title in the first place. While the provincial government can continue to regulate Aboriginal title lands, it has a very limited scope of authority. Regulating pest control would be fine, for example, said the Court; but issuing timber licences to a third party without justification or consultation, as it had done in this case, clearly would not. Title here, there and everywhere “Proving Aboriginal title is no longer a political pipedream,” observes Victoria-based lawyer Drew Mildon. “That’s huge for First Nations across the country. Their negotiating position on any project proposals became much, much stronger overnight.” Mildon, who was a legal adviser to the Tsilqhot’in on the court case, believes the case sets the stage for other First Nations across the province to bring their own successful title claims: “When you scratch the surface of British Columbia, there is existing title all over the province.” Merle Alexander, a Vancouver-based Aboriginal rights lawyer, agrees with Mildon. “We’re looking at this for a number of clients, many of whom have territory that would be crossed by various proposed pipelines. It seems very likely that many of them will be able to prove title along those pipeline corridors.” Alexander also says that while the list of potentially justifiable infringements seems broad, it is still a significant hurdle to jump for proponents because of the criteria imposed upon it by the Supreme Court. He is particularly taken with the Court’s suggestion that the Crown avoid the risks of unjustifiably infringing Aboriginal title or having to cancel unauthorized projects by simply obtaining consent from First Nations in the first place. “To date governments have taken a very narrow, self-interested approach to the issue. That’s demonstrated by their fairly consistent track record of losing court cases,” says Alexander. “This now encourages governments to be more forward-thinking and obtain consent as a starting point for all future projects on any lands where Aboriginal title is asserted. That’s also a safer bet from a strategic point of view: It minimizes the risk of litigation that the government probably won’t win, or that they’d have to cancel a project when the First Nation successfully sues for title.” Governments need to do a complete rethink In a radio interview shortly after the decision was announced, Union of BC Indian Chiefs President Stewart Phillip commented drily: “There’s been a deafening silence from Ottawa and Victoria. They weren’t expecting this.” “The federal government and British Columbia have gone very quiet,” agrees Joe Alphonse. “We’ve been contacted by some senior government staff, but I’m waiting to hear from the Prime Minister and the Premier. Stephen Harper and Christy Clark should be leading the way at this momentous time.” Unfortunately, they don’t seem to be. The only statement that’s been made by the federal government was a short press release on June 26 by Aboriginal Affairs Minister Bernard Valcourt saying that the government is reviewing the decision to determine next steps. MP Jean Crowder, the federal NDP critic on Aboriginal Affairs, thinks that’s unfortunate. Crowder sees the decision as an opportunity for governments to move forward by recognizing Aboriginal title and developing protocols for dealing with resource projects, so that everyone is clear on their roles and responsibilities. “That has the potential to provide the certainty anyone considering resource development is looking for. Up until now, it’s been managed on a court case by court case basis and that’s made it difficult for business to do any kind of planning.” If the decision is seen as an opportunity to manage the development process better, says Crowder, “that gives us a way of moving forward.” As for the provincial government, on July 21, BC Premier Christy Clark told a Pacific Northwest Economic Region LNG conference: “To me, the decision gives us a little more certainty and that’s going to be good for the economy. We’re still working through the details and how it might change the way we do things.” But the provincial government, added the Premier, has already been doing a good job on the Aboriginal relations file: “Since the Delgamuukw [Aboriginal rights] decision came out the government has learned how to deal fairly and honourably with First Nations and to change the way we do things, and that’s been really good for the economy.” BC NDP Aboriginal relations critic Scott Fraser thinks more is needed: “It’s time for the government to recognize that Aboriginal rights and title exist, and to acknowledge it respectfully and openly. That’s what will bring certainty to industry and to government. Continuing to force litigation will only lead to confrontation. It’s far better to get out of the court system to reconcile jurisdictional issues and that needs to be through recognition of title.” Merle Alexander agrees. He also points to the number of Aboriginal rights court cases that the provincial government has faced over the last decade and the fact that BC has a track record of losing them: “So the Courts are consistently finding in fact that BC is failing in its duties towards First Nations. That suggests that the Province hasn’t been dealing fairly and honourably with First Nations.” There could be positive implications for the economy, he says, but only if the government and industry are willing to embrace the new legal reality facing them. “If the Premier’s saying it’s just business as usual, that they’re doing everything right already, that’s not going to be good for the economy. That’s just going to mean more litigation.” Merv Child is a Victoria-based lawyer and executive director of Nanwakolas Council, which works with seven First Nations on northern Vancouver Island to support them in land use planning and decision-making. Like Alexander, Child is sceptical; he says that despite what the Premier says, the Clark government hasn’t been particularly open to positive solutions in dealing with Aboriginal issues. “We keep hearing that there’s no money to do anything, for example, but I think that the government needs to think longer-term about the positive financial consequences of working with First Nations.” He agrees with Alexander that the status quo isn’t good enough anymore: “There needs to be a complete re-think of the relationship. If that happens, then there is some real promise for the future.” Taseko in denial? Lawyer Robin Junger is head of the Aboriginal Law group at McMillan LLP, which acts for the Taseko Mining Group. Junger is typical of legal commentators advising resource-based industry; he is adamant that the Tsilqhot’in case is not a “game-changer” that will undermine resource projects, nor does it represent “a fundamental advance” for the law of Aboriginal title. Junger’s opinion may help explain Taseko’s position on the case. Taseko is attempting to develop its proposed New Prosperity gold-copper mine near Teztan Biny (Fish Lake), a sacred place in the heart of Tsilqhot’in territory. The proposed mine has been much-reviled by First Nations and environmental groups, and has failed federal environmental assessment twice. Taseko continues to push the proposal, however, and takes this rather surprising position on its website: “The ruling confirms that Taseko’s New Prosperity [mine] is located in an area where Aboriginal title does not exist.” Merle Alexander laughs when he reads the statement. Words like “deluded” and “deranged” pepper his response when asked if Taseko is correct in its interpretation of the case. Both Mildon and Alexander agree that the case can’t possibly be interpreted as meaning that title doesn’t exist elsewhere in the territory. Alexander points out: “The Tsilhqot’in intentionally and strategically chose to claim a targeted portion of the traditional territory. If challenged, it is highly likely the Tsilqhot’in would succeed in a title claim to the New Prosperity site. The proposal has also been rejected twice because of the potential effect on Aboriginal interests being too great to justify the project as being in the public interest. That’s not about to change.” Drew Mildon concurs: “It seems a surprising conclusion. The Tsilhqot’in only requested a declaration of title for the areas where it was proven. New Prosperity was rejected twice because of a host of significant adverse impacts, aside from the title issue, and it is ridiculous to suggest that the ruling in any way changes that.” Northern Gateway? Not likely Enbridge may be equally deluded in thinking its Northern Gateway project can still advance in the face of this decision. The company’s Communications Manager Ivan Giesbrecht emailed: “This important decision affirms existing principles surrounding First Nations title in Canada. Resolving these issues provides greater clarity to complex matters and creates opportunities for respectful relations. We have more work to do and are committed to building on progress in the months ahead.” However, Stewart Phillip’s view, typical of most First Nations affected by the proposed pipeline, suggests Giesbrecht is overly-optimistic: “The Northern Gateway Pipeline cannot proceed without the consent of every First Nation whose territory the pipeline would cross, and we know that will never happen.” No less than eight First nations have already taken legal action, and, according to West Coast Environmental Law, over 100 First Nations have banned the Enbridge project and other tar sands infrastructure from their territories and watersheds through various declarations. Merle Alexander points out that if Enbridge insists on attempting to push forward with the pipeline, it will be, almost without question, the next legal Aboriginal title confrontation that industry and governments face. “And they’re going to lose. It is absolutely impossible for them to achieve consent or prove that the pipeline wouldn’t irreconcilably interfere with the enjoyment by future generations of the land it crosses.” Jean Crowder agrees: “I think Enbridge won’t be able to overcome the challenges it is facing now.” Scott Fraser also shares that view: “Projects like Northern Gateway have been almost universally opposed by First Nations. Without First Nation consent, both governments should be saying ‘No’ as well.” That, adds Fraser, “is going to be true of every major infrastructure project in this province unless governments engage in a real partnership approach with First Nations.” The Province and LNG Despite the Supreme Court ruling, Taseko, as we know, continues to push for approval of the New Prosperity mine. There is also no sign that Enbridge or Kinder Morgan are backing off their pipeline projects. Given the glacial pace at which the federal government does anything—it took four years for it to review and update half-a-dozen of its treaty mandates, announced in late July—holding out any hope that it will act in the short-term seems fruitless. On the Province’s side, Aboriginal Relations Minister John Rustad will only say that his government needs time to review the ruling thoroughly. However, he adds: “We’re not going to tell First Nations what we’re doing. We’re going to sit down with them and work with them to decide what the response should look like.” He points out that in the last ten years the provincial government has successfully negotiated hundreds of shared decision-making agreements with First Nations on everything from treaty to revenue-sharing to conservation management: “I think the strengths we’ve developed in taking that shared decision-making approach will be very helpful in our discussions with First Nations on this issue.” As evidence of that, on August 6, the provincial government announced that it has agreed with the Taku River Tlingit First Nation to protect over one million hectares of Crown land around Atlin from hydro-electric development and commercial logging. Of course, the Taku River Tlingit have also been very successful in Court defending their Aboriginal rights. In other parts of the province, Rustad’s words are less encouraging. Asked if the government is prepared to cancel exploration permits provided to pipeline project proponents such as Enbridge, if and when title is proven along the pipeline corridor by other First Nations, Rustad remained non-committal: “We have statutory requirements and processes to follow and we need to follow them.” A successful Aboriginal title lawsuit will trump any such statutory requirements, naturally. Unfortunately, it sounds like that may be what is required. In the meantime, the provincial government has also not slowed down for a moment in promoting its LNG strategy. How will it respond to continued First Nations opposition to LNG proposals? Rustad professes to be “confused” by the question. “I haven’t heard any solid opposition to LNG,” he says. “There may be some local issues we will be working through—concerns about environmental impacts— but we’ve been having very positive discussions and I believe we will work through that.” Setting aside for a moment the fact that it doesn’t get more local than an LNG pipeline running through your back yard, or that having land declared as Aboriginal title land will likely focus such “local” issues as environmental concerns in an entirely new way, Rustad may be under a serious misapprehension that LNG faces no serious First Nations opposition. Chief Terry Teegee of the Carrier Sekani Tribal Council has stated repeatedly and unequivocally that the Province doesn’t have a social licence to promote LNG: “They haven’t addressed the cumulative effects of these pipelines in our territories.” Fort Nelson Chief Sharlene Gale has stated that the price her First Nation is being asked to pay to fulfill BC’s LNG strategy is too high. The Wet’suwet’en hereditary chiefs have unanimously rejected the Pacific Trails Partnership LNG proposal, and the Unist’ot’en Camp remains firmly in place in its path. “There is no sweeping endorsement of LNG by First Nations, and the reason is obvious,” Stewart Phillip told Focus earlier this year. “The impacts of fracking are one of the ugliest footprints of oil and gas to witness.” In the face of such stated distaste for LNG, and with Aboriginal title now in their back pockets, the likelihood of First Nations simply accepting new LNG proposals without demur seems highly unlikely, despite Rustad’s optimism. “The only route to go” There is a very simple formula for industry to follow if they want to keep working in Aboriginal territory, says Joe Alphonse: “Work with us, not against us.” At the wrong end of the working-together spectrum is the Taseko Mining Group. The company has failed spectacularly to handle matters with the Tsilqhot’in an effective manner: “I can’t say anything good about Taseko,” says Alphonse. “They keep trying to push that mine forward but they don’t want to include us or work with us. They just see us a hindrance. But I can guarantee that a title case there will be successful. There have been a lot of archaeological finds there. It’s a sacred place.” But Alphonse says Taseko stands in stark contrast to several companies that have worked closely and successfully with the Tsilqhot’in since well before the Supreme Court decision came down. All of them have been ahead of the game in seeing the value in working with the First Nation and ensuring the Tsilqhot’in share the revenues and benefits of their developments, to their mutual advantage. “It’s a win-win situation for both sides that way. Everyone gets what they need and want out of a project.” Working together will also be a good strategy for First Nations to take amongst themselves, believes Merv Child. Child speculates that the Tsilqhot’in decision may be a good impetus to encourage First Nations to resolve overlapping Aboriginal title claims to their mutual advantage: “The rights that go with Aboriginal title are very powerful,” he observes. “If First Nations can collaborate to demonstrate their respective occupation and use of various areas, that will allow them to leverage the Tsilqhot’in decision in discussions with industry and government to their greatest benefit.” But for now, the focus is on more immediate matters, and the game-changing decision itself. “We did the impossible,” says Joe Alphonse. “We won title when governments never thought we could. Now we hope that those governments will take it seriously and that will lead to a better future for all First Nations in this country.” Indeed, some would argue it will lead to a better and more environmentally-sound economic future for all Canadians. The onus, repeats Alphonse, is for federal and provincial government and industry leaders to start dealing with First Nations in terms of economic development in an honourable way. “That’s where certainty lies. That’s good for everyone,” he says. “It’s the only route to go.” Katherine Palmer Gordon is the author of six books of non-fiction, including several BC Bestsellers and a Haig-Brown prize-winner. Her most recent book is We Are Born with the Songs Inside Us: Lives and Stories of First Nations People in British Columbia (Harbour Publishing). She has 20 years experience working with First Nations on land claims and inter-governmental relations.
  9. July 2014 There’s little evidence to support the Joint Review Panel’s critical conclusion that diluted bitumen is “unlikely to sink.” WHETHER DILUTED BITUMEN WILL FLOAT on the surface or sink in the ocean, says chemical scientist Thomas King wryly, “is a simple question, but it trails a raft of complex issues.” King, based in Halifax, Nova Scotia, is leading Fisheries and Oceans Canada’s research into the behaviour of diluted bitumen under various environmental conditions. “The trouble is,” he says, “that we have very limited information about dilbit’s properties in water. Very little research has been done so far.” Yet, despite the lack of research, the National Energy Board’s Joint Review Panel (JRP) recommended approval of Enbridge’s Northern Gateway Pipeline project (subject to 209 conditions). And on June 17, the federal government did just that. The Northern Gateway Pipeline, if completed, will carry 525,000 barrels of diluted bitumen (“dilbit”) daily from Alberta’s oil sands to Kitimat for export to Asia. Kinder Morgan Canada’s expanded Trans Mountain Pipeline is intended to carry another 890,000 barrels of dilbit daily to the Port of Vancouver, also for export. Together, according to Transport Canada, that represents an additional 600 oil-laden tankers a year traversing British Columbia’s coastal waters. The ability to recover dilbit spilled by an errant tanker in these turbulent, rock-strewn waters hangs on the response to that so-called simple question: Does it sink or does it float? The JRP seemed to think it had a simple answer, stating in its report: “The evidence does not indicate that dilbit is prone to sink in the marine environment.” Unfortunately, it would seem that the evidence is nowhere near that clear. If anything, the indications to date suggest that dilbit is prone to sink in the ocean. Either way, two things are clear. We’re a long way yet from getting the information needed to answer the question definitively. And, until we have it, Canada’s ability to respond effectively to any dilbit spill will remain severely impoverished. Canada has experience dealing with surface spills of conventional light oil and has developed techniques to deal with such spills, says King. But those techniques aren’t foolproof by any means. And when dilbit is spilled, he points out: “Standard recovery approaches can’t be used anyway.” Submerged dilbit is much harder to locate and remove. It may be completely irrecoverable in deep water. There is one thing we do know for certain, he adds: “Damage to marine habitat and its living resources [from sinking bitumen] is expected to be much greater.” The great sink/float debate Conventional light oil typically floats on the surface of water—hence the oily sheen commonly seen around docks, for example. Undiluted bitumen, a form of a heavy, viscous crude oil, is considerably denser (which is why it is sometimes referred to as “heavy oil”). Bitumen deposits are often referred to as “tar sands” because of the thick, sticky texture of the oil. Undiluted bitumen is too thick to transport by pipe. Various types of condensate or light synthetic crude oil are therefore used as diluents. The end product is referred to by the generic term “dilbit” or “synbit,” but there may be dozens of different varieties. No-one knows for sure how many currently exist, however, because the development of new chemical combinations is not only industrial proprietary property, but constantly changing as new research is undertaken. Oil companies, including Enbridge, have typically taken the stance that dilbit floats and therefore doesn’t pose a greater risk to the environment than conventional oil. Alberta-based Crude Quality Inc, for example, reported in 2011 to American authorities in relation to the proposed Keystone XL Pipeline that “under standard conditions,” dilbit will float on water. A 2012 report by Ottawa-based SL Ross Environmental Research Ltd drew a similar conclusion. A year later Dr Alan Maki, a witness for Enbridge at National Energy Board hearings on the Northern Gateway project, told the NEB even more strongly: “It is an immutable fact of physics that [dilbit] will float. It simply cannot sink in water.” Independent scientists believe exactly the opposite, however. Dr Merv Fingas, an Edmonton-based environmental physicist, former head of Environment Canada’s oil spill R&D unit and the author of seven books about oil spills, told the Globe and Mail that Maki’s claim was simply “not true.” Fingas added: “Every time we did get a sample of any kind of bitumen in the lab and analyzed it, it always sank.” Last year American environmental chemist Dr Jeffrey Short, who assessed the impacts of the 1989 Exxon Valdez spill for the Alaska and US governments, looked into the susceptibility of dilbit to sinking on behalf of Kitkatla’s Gitxaala Nation. Short reviewed previous studies and then assessed that data against the typical rough, windy weather and cold temperature conditions in the Douglas Channel and Hecate Strait. He concluded that those previous studies had failed to take into account these typical conditions. The studies were therefore unreliable at best, and completely invalid in some cases. He also pointed out that testing has taken place on only two dilbit products to date. There are many varieties of dilbit being produced, so to conclude that all dilbit floats based on those tests, stated Short, simply doesn’t add up. In fact, he posited the opposite: “Because…only a very few bitumen products have been evaluated experimentally, it is plausible that other products that might be shipped through the proposed Northern Gateway pipeline might be even more susceptible to sinking.” Short also told The Tyee that he was “mystified” by the lack of available scientific information about dilbit given its importance in analyzing the environmental impact of the Northern Gateway proposal. “On a project of this significance,” he commented to writer Andrew Nikiforuk, “Canadians should go into it with their eyes open and not base your public policy on fantasies.” Unfortunately, it seems independent Canadian experts able to speak knowledgeably about dilbit’s buoyancy are thin on the ground on the west coast. The University of Victoria, Simon Fraser University, and the University of British Columbia all failed to identify anyone on faculty with this kind of expertise. The provincial Ministry of Environment admitted that there is also no one within the BC government who can speak to the science. Even Merv Fingas, who was so outspoken on the topic just last year, can apparently no longer speak about the issue. Fingas refused an interview request, writing: “Due to commitments on a particular study I am unable to do that.” Unprepared for 600 tankers On November 30 last year, the government released a multi-departmental report confirming what King is saying: “The potential range of behaviour, fate and treatment options for a possible marine spill of diluted bitumen products is not well understood. There is little information on the spill behaviour, fate, impacts and remediation options for diluted bitumen spills.” It did, however, note: “When fine sediments were suspended in the saltwater, high-energy wave action mixed the sediments with the diluted bitumen, causing the mixture to sink or be dispersed as floating tarballs.” About the same time, Transport Canada released two reports reviewing Canada’s ship-source oil spill and response regime and assessing the risk of spills in Canadian waters south of the 60th Parallel. It made this disturbing admission: “Advances in research and development of response techniques are not captured in the Canadian [response] regime and there has also been a gradual weakening of the regime in other respects. Over time, knowledge and skills sets within Government have eroded…The Commissioner of the Environment and Sustainable Development also identified a number of gaps, largely the result of insufficient data and information collection and analysis.” In other words, despite the push to export oil, the government isn’t even close to being prepared for a conventional oil spill at sea, let alone a dilbit disaster. The reports contain further bad news for west coasters: One of the areas of highest probable risk right now for a crude oil spill over 10,000 tonnes is the area around the southern tip of Vancouver Island. “In the Strait of Juan de Fuca,” notes one report in unequivocal terms, “Canada should be prepared for a spill of crude oil.” What happens when 600 additional oil-laden tankers a year start navigating British Columbia’s wild waters? It would seem neither Transport Canada—nor any other arm of the federal government—has any idea. Only recently, as the result of heavy public pressure, is the issue being taken seriously by the feds. The November 30 report also announced the launch of the coordinated scientific research initiative in which Tom King is participating. In collaboration with DFO, Environment Canada and Natural Resources Canada have begun investigating what may happen in the event of a dilbit spill in Douglas Channel or Hecate Strait. The primary goal of the research initiative is to “improve the preparedness and response for marine spills” of dilbit so that responders can “make informed decisions on the appropriate oil spill response options and strategies.” King’s team is looking not only into whether, how quickly and how far dilbit sinks in water, but also how the heavy oil behaves in different weather conditions; the impacts of salinity, rainfall, wind, sunlight, water temperature and sedimentation; and the environmental impacts of bitumen in different situations. They are also reviewing the effectiveness under water of existing conventional oil recovery techniques and chemical dispersants—all issues that must be understood before effective dilbit recovery methods can be developed. The first phase of the research work isn’t expected to be completed before March 2016. Funding has been provided to continue development of ocean and dilbit behaviour models through to the end of 2018. It’s uncertain whether this is sufficient time for the work to be completed, however. In the meantime, the environmental impacts of a major bitumen spill are still only being guessed at. We do know that three years after the 2010 Deepwater Horizon oil disaster in the Gulf of Mexico, tar balls—sticky, solid pieces of oil that form when water combines with spilled oil and which can travel hundreds of kilometres—could still be found in the coastal marshes of Louisiana. In 2013, it was estimated that approximately 680 million litres of dilbit remained in Michigan’s Kalamazoo River after an Enbridge pipeline burst in 2010, spilling more than three times that amount into the Kalamazoo. Portions of the river still remain closed. The JRP’s conclusions Notwithstanding the scientific uncertainty, the JRP was dismissive of evidence suggesting that dilbit will sink, stating: “Although there is some uncertainty regarding the behavior of dilbit spilled in water, the Panel finds that…dilbit is unlikely to sink due to natural weathering processes alone, within the time frame in which initial, on-water response may occur, or in the absence of sediment or other particulate matter interactions. The Panel finds that a dilbit spill is not likely to sink as a continuous layer that coats the seabed or riverbed.” The JRP also stated—in contradiction to the concerns expressed by Transport Canada about the negative impact of a lack of scientific information on response capability—“In the Panel's view, the weight of evidence indicates that disagreement among experts on the fate and behaviour of spilled oil is related to specific details that may not be significant from a spill response perspective.” That’s despite the fact that the JRP also admitted it didn’t have enough information: “Additional research is required to answer outstanding questions related to the detailed behaviour and fate of dilbit. All parties with technical expertise on the topic were in agreement with this. The Panel finds that research on the behaviour and cleanup of heavy oils is required to inform detailed spill response planning and heavy oil spill response in marine and freshwater environments.” Condition 167 of the JRP’s approval requires Enbridge to file much more detailed information on spill modelling and response with the National Energy Board at least three years prior to commencing operations. How that might change the JRP’s conclusions remains unclear. Federal scientists’ investigations Environment Canada, the lead federal agency investigating potential environmental impacts of spilled dilbit, could not “accommodate” a request to interview one of their scientists. Communications staff, however, confirmed: “In certain environmental conditions, dilbit can sink in saltwater environments. In general, how combinations of factors might cause oil to sink is not well known currently. Further research is needed.” DFO did permit Tom King and another of its senior scientists, Sidney-based Dr Charles Hannah, to speak about the latest state of the science on this subject. In Halifax, Tom King has been conducting experiments in flume tanks with two variations of dilbit. “There are several things that are important to understand,” he explains. “Dilbit will float at first, because it is less dense than water. However, lighter diluent material will start to evaporate. You can smell it—it’s the kind of smell you get at a gas station.” Some of the oil will start to dissolve. What remains will be subject to “weathering”—the effects of rain, temperature, sunlight, turbulence, wind, and microbes in the water. “Our tests, which mimic what will happen in a real world environment, indicate that by the sixth day of natural weathering, bitumen will sink.” Other factors may cause it to sink more rapidly. “If it spills in freshwater, bitumen will sink faster because freshwater is less dense than brackish (partly salty) or ocean water. In the Kalamazoo River, parts of the oil sank within four days.” Heavy seas will also make bitumen sink faster. So will the presence of sediment in the water. Many sediment-laden glacial rivers empty into Douglas Channel: “We’re looking at that right now and the impact when bitumen combines with sediment suspended in water,” says King. Where the spill occurs is also critical. In deep water, the oil won’t necessarily sink to the bottom but may instead hit a point of neutral buoyancy where it will remain suspended. In shallower waters, oil will likely coat the ocean floor or riverbed. As we’ve learned from the Kalamazoo River experience, it may be just as difficult to remove in that situation as if it were floating freely in sub-marine waters. The next step, King continues, is to use the data being generated by his lab to develop ocean models predicting what will happen in a range of different circumstances. That’s where Charles Hannah comes in. “What we’re doing here at DFO in Sidney,” says Hannah, “is collecting ocean observations on the north coast and building an ocean circulation model that factors in what happens to water movement based on wind, tides, current, weather conditions and so on. That will inform the development by Environment Canada of different oil spill scenarios and remediation methods to deal with different situations. ” In Hecate Strait and the Douglas Channel, says Hannah, ocean conditions vary widely from location to season. “At Kitimat, for example, when the rivers are in full flood there is more freshwater entering the Channel. So at some times of year bitumen might sink faster, or have different neutral buoyancy zones.” The problem for the modellers is the same as the one King and other researchers face: a lack of information. Asked what other factors he is taking into account in developing ocean models specific to the north coast, for example, Hannah replied: “We just don’t know yet.” He cites Kitimat again as an example. “It’s the rainfall capital of the world, but what weathering impact does rain have on bitumen? The knowledge may be out there but we don't have it yet. We do know a lot about wave impacts, but the wave environment varies enormously in that area. We need to start to study that too, and its importance. ” Sailing into dangerous waters Will dilbit-laden tankers be plying Hecate Strait—one of the most dangerous bodies of water in the world (waves can reach 26 metres)—or indeed Juan de Fuca Strait, already identified as high risk for an oil spill—before all these questions have been answered? Asked to confirm whether current spill response capacity still remains insufficient, Transport Canada replied instead: “As part of new measures for our World Class Tanker Safety System announced on May 13, 2014, the federal government will be implementing Area Response Planning starting in four local areas. Under Area Response Planning, response plans will be tailored to reflect local conditions such as geography, environmental sensitivities, and vessel traffic.” It also admitted again that it doesn’t yet have the information it needs: “As well, the Government will be undertaking additional research and development on the behaviour of petroleum products and a range of response measures to quickly and effectively respond to and clean up a marine oil spill, should one occur.” Translation: No, as things stand, we aren’t ready for a spill. Bitumen certainly doesn’t sink if it isn’t permitted to spill in the ocean in the first place, but there appears to be no appetite on the part of the federal government to consider whether dilbit-laden tankers should be allowed in those tempestuous waters in the first place, given the associated risks. Nor, given its acceptance of the JRP’s recommendation to approve the Northern Gateway project, does it seem concerned about the discrepancies between the JRP’s conclusions and the views of several of its own departments. That may change as a plethora of lawsuits challenging the JRP’s findings starts hitting the courts. Joining several other environment groups and dozens of First Nations in attacking the decision, the BC Federation of Naturalists launched its suit within hours of the federal government’s decision. The view expressed by President Kees Visser is typical of the opposition being expressed: “We cannot stand by and allow Cabinet to approve this ill-conceived project on the basis of a JRP report that is so flawed and incomplete.” Even if unsuccessful, the litigation may tie up the process long enough for the vital missing research to be completed and for response capability to be improved. Whether that will be enough is another outstanding question. In the meantime, British Columbians will have to hope that question will only ever have to be answered in theory. Katherine Palmer Gordon is the author of six books of non-fiction, including several BC Bestsellers and a Haig-Brown prize-winner.
  10. June 2014 With a likely capital cost of between $800 million and $1 billion, it had better. Focus explores the issue with two scientists. LAST DECEMBER, retired University of Victoria ocean physics professor Chris Garrett wrote to Focus, along with some of his former marine science colleagues, stating: “The allegedly scientific arguments put forward in support [of land-based secondary sewage treatment] are very superficial… [there is no] detailed, quantitative, rational analysis of what the problems are with the present system or how the proposed schemes will fix them.” Garrett is an expert in ocean dynamics and his CV includes extensive analysis of the environmental impacts of waste disposal in marine environments. Although retired, he remains keenly interested in oceanographic issues like this one where, as he puts it, science meets society. He’s also reviewed what he describes as excellent studies of the sewage issue undertaken by CRD scientists. He says no-one has conclusively established that there are problems with the CRD’s current preliminary sewage treatment system: “Fundamental questions still remain unanswered,” he says. On that premise, of course, it’s also true that no-one has proven that there aren’t problems with the current system. But with the public debate over sewage treatment mired in political rhetoric and Seaterra spin, confusion reigns supreme. The average citizen can be forgiven for finding it difficult to discern fact from fiction. Garrett is sympathetic. While he believes concerns over the current treatment system are overstated, he’s also tried to be as objective as possible in what has become an intensely polarized discussion. “I object to people on any side of this issue making absolute statements that Victoria’s current sewage output is toxic or that it’s harmless,” he says, “or that secondary treatment is the only solution or that the current system is perfectly fine. Before we can decide that, we need to make sure we’ve correctly identified and quantified the problems so we can know with certainty what is worthwhile and effective.” The status quo vs. secondary treatment Currently, Victoria’s effluent receives preliminary treatment only. Screens collect about ten percent of the solids coming through the pipes, or about 657,000 kilograms annually, which are taken to the Hartland Landfill for disposal. The remaining 90 percent—nearly 6.7 million kilograms annually—is discharged into Juan de Fuca Strait, in what Garrett describes as a “thin, grey soup,” from two outfalls at Clover and Macaulay Points, more than a kilometre from land and at a depth of about 60 metres. The CRD confirms that it routinely measures “upwards of 200” organic and inorganic contaminants in that “soup.” But those who favour this preliminary treatment system argue that the total volume of effluent coming out of the pipes comprises more than 99 percent water, and that its contents are effectively diluted, dispersed and degraded by the active tidal currents in Juan de Fuca Strait. Contamination in the immediate vicinity of the two outfalls is also believed to be relatively minor. Critics, however, cite a litany of environmental concerns. Sediment samples taken at the outfalls have failed provincial contamination standards. Organic material and dissolved nutrients in the effluent consume oxygen in a process called eutrophication, said to endanger marine life. Moreover, toxic contaminants in the liquid waste are being absorbed by the marine food chain. Human pathogens and fecal coliforms near the outfalls also pose a hazard to humans. This all adds up, say the critics, to the need to put something more than preliminary treatment in place. In 2012, new mandatory minimum effluent quality standards were enacted by the federal government. Environment Canada requires at least secondary treatment as the way to achieve those standards. Secondary treatment removes biodegradable material from effluent before it is discharged, but it doesn’t remove all the contaminants, so those it misses get flushed out to sea. Material remaining after secondary treatment, called sludge, contains all the contaminants that secondary treatment did remove, which means the sludge must be disposed of safely. Options for disposal include landfill, incineration, gasification, conversion into energy, or use as fertilizer, all of which pose issues of their own. Chris Garrett’s take Garrett says that eutrophication, or oxygen depletion, can indeed be a problem associated with dumping minimally treated sewage effluent into confined waters. However, he states, “The strong tidal currents off Victoria recharge the local waters with oxygen constantly. The addition of a relatively small amount of extra nutrient material isn’t likely to make any difference.” He adds: “In fact there is a lot of thriving marine life present in the sediments near the outfalls, which suggests that oxygen depletion isn’t having a significant impact.” That’s not to say that the dilution effect of active ocean waters is foolproof. “Discharges might not be a problem now, but the cumulative impacts after many years might be a problem in future.” Occasionally, plumes of sewage containing fecal coliforms also reach the surface near the outfalls. Most of the time the coliform count falls below provincial guidelines for recreational waters, so the plumes don’t pose a safety issue. That’s not always the case, however. Garrett notes: “The guidelines are occasionally exceeded.” That’s a problem for humans rather than fish, as is the presence of bacteria and viruses in surface water. “Bacteria tend to die within hours, but viruses can persist for many days,” says Garrett. He says this is a good example of an issue that requires more research: “There are anecdotal claims of infections from exposure to the sea in the vicinity of the outfalls, but no epidemiological evidence.” Serious concerns have also been raised about heavy metals, pharmaceuticals, industrial waste, micro plastics, and chemicals contained in the effluent, and the negative impact not only on the areas surrounding the outfalls, but on marine life in the Strait itself. High levels of PCBs have been found in marine mammals, and flame retardants and similar pollutants are also worrying. “PCBs are a real problem,” says Garrett, “that is a known fact. That’s why they were banned back in the 1970s. But they’re very persistent and they get recycled again and again into the environment, so are taking a long time to disappear.” He points out, however, that in local waters, most of the PCBs aren’t getting into the marine environment from the sewage system. “They’re entering the marine environment from the atmosphere, river run-off, and sediments contaminated by former industrial activity.” Emerging problems these days arise from other persistent pollutants such as flame retardants, which unquestionably are entering the ocean via the sewage outfalls: “Controls are only now being imposed on use and disposal of flame retardants, so levels will have to be monitored. This is another example of a very important issue we need to understand better. Simply treating for removal of these pollutants from the effluent may not be good enough, for the same reasons as PCBs and metals. Limitation of use in the first place may be the only effective control.” “The other thing to remember,” adds Garrett, “is that secondary treatment doesn’t destroy many contaminants. Some are still discharged into the sea, and others simply get concentrated in the leftover sludge instead of the liquid effluent. Whether that’s worse for the environment or not depends on what you do with the sludge. If you dispose of it on land, it may contaminate surface and groundwater. If you incinerate it, it may produce dioxins. What’s the environmental impact compared to the contaminants being absorbed and buried in the sediments around the outfalls? We don’t know, because an objective comparison hasn’t been done.” Under the CRD’s plan, no final decision has been made on what to do with the sludge, though use as a fertilizer has been rejected. Tertiary treatment Given that secondary treatment doesn’t remove some of the contaminants, tertiary or “advanced” treatment has been raised as a better solution to the federal government’s mandated treatment of CRD wastewater. Advanced treatment can remove additional contaminants from wastewater after it has been through the secondary process, including some heavy metals and nutrients like phosphorus and nitrogen. Pathogens and other microorganisms may be removed through a final disinfection stage, often called “polishing.” The goal is to produce effluent suitable for safe discharge into the environment or for reuse in certain applications. In parts of the world where water is scarce—Namibia, for example—the resulting water is used for human consumption. Water may be plentiful in the CRD, but Victoria’s Sewage Treatment Action Group (which has developed “the RITE Plan”) believes advanced treatment is the way to go. Green Party MLA Dr Andrew Weaver has publicly supported the concept. Colwood has jumped on board, opting out of secondary treatment in favour of its own advanced treatment plan with resource recovery and recycling of wastewater for irrigation and similar purposes built into the concept. Garrett doesn’t profess to be able to speak authoritatively on the merits of advanced treatment, but is emphatic that his questions remain the same: “We need to analyze the facts before we jump to solutions that are expensive, address problems that might not exist, and create other potentially worse environmental impacts.” Dr Don Mavinic, however, is more than qualified to weigh in on where advanced treatment fits into the discussion. A professor in the Department of Civil Engineering at the University of British Columbia, Mavinic’s research over the last four decades of his career has included biological waste treatment processes, wastewater residuals treatment, phosphorus removal and recovery, and disinfection by-products in drinking water; and his department at UBC is engaged in extensive research into various aspects of advanced treatment. Mavinic agrees with Garrett about the need for hard facts. “There are basically several questions that have to be asked before deciding on advanced treatment,” says Mavinic. “What’s left in the water that you really need to deal with? How much of it is there? What’s the potential environmental impact—where is the water going? Into saltwater, like Victoria, or freshwater or into another particularly sensitive environment? Do you intend to recycle it?” To make sense of the issue, he says, “You have to do your homework first.” In the meantime, he adds, there’s still uncertainty in scientific and engineering circles about some aspects of advanced treatment. There are also bad ways to do advanced treatment as well as good ones. But right here in BC, points out Mavinic, is a model of how to do it in the best possible way that current technology can offer. It’s a model that most of Western Canada has followed—and that the CRD should, at minimum, have a long, hard look at before it finalizes its secondary treatment plans. The nutrient issue Mavinic says that the typical issue of concern that leads to adopting an advanced treatment system is the presence of excess nitrogen and phosphorus in effluent, both of which nutrients are excreted in human waste and have potentially negative environmental impacts in water, including eutrophication and algal blooms. One way to remove these nutrients is by the use of chemicals such as alum (potassium aluminum sulfate) or iron salts (such as ferrous sulfate). But there’s a problem that goes hand in hand with that process: the nutrients end up in the leftover sludge, along with the chemicals and any metals that might have been picked up in the process—and that sludge can’t be burned, used as fertilizer, or recycled in any other useful way. (The CRD admits that such chemicals “will be used during chemically enhanced primary treatment for wet weather events.”) “This is a huge problem in Ontario right now,” observes Mavinic, who is currently advising the Ontario government on this issue. “It’s become very contentious. Very few landfills will accept the sludge now. Most incinerators won’t touch it. Ontario has ended up with this chemical soup that has to be stored somewhere because you can’t do anything with it.” For now, the sludge is simply contained in holding ponds. Some heavy metals, such as nickel, can only be extracted using a chemical process. But for nutrients like nitrogen and phosphorus there is a smarter approach, and Mavinic says BC’s Okanagan Valley has led the way. “Biological nutrient removal technology is a process that was first pioneered in South Africa and adapted for use in a cold climate setting right here at UBC. Kelowna was the first place to use the treatment process 30 years ago. It’s now used throughout the Okanagan Valley and much of BC, as well as Alberta and Saskatchewan.” The Kelowna model eschews the use of chemicals to treat nutrients in favour of a biological process that results in the nitrogen being converted into gas and the phosphorus being absorbed into reusable biomass. “You still have leftover sludge,” points out Mavinic, “but because it doesn’t have any chemicals in it you can now gasify it safely and the water can be discharged into Okanagan Lake.” At the same time, the lake is the source of drinking water for 100,000 people in the Okanagan Valley. Is this a model the CRD should be interested in? “Victoria is different from the Okanagan, where they’re discharging their effluent into a lake system,” says Mavinic. The ocean off southern Vancouver Island, he says, is a “giant sink” that isn’t as sensitive to some of these contaminants. “Ocean water is also typically phosphorus-deficient,” he says, “so the level of sensitivity just isn’t the same as in Okanagan Lake, say.” But, Mavinic continues: “It depends very much on what is coming out of the pipes. You have to understand that before you can be definite that there isn’t a problem that needs treatment of some kind.” Kelowna’s treatment, called Bardenpho Biological Nutrient Removal, requires large tanks and would occupy a much bigger footprint than is available at the McLoughlan Point site. Kelowna’s plant, which will serve a population of about 161,000 people by 2030, is located on a 9-hectare property. The McLoughlin Point site, which CRD projections have shown could need to serve an equivalent population up to 493,000 by 2030, is only 1.4 hectares. Cleaning up the trace contaminants Another key issue is how to deal with additional trace contaminants remaining in effluent even after such advanced treatment: contaminants such as pharmaceuticals, caffeine and endocrine disrupters, the latter found in many household and industrial products. These chemicals can interfere with hormone systems in mammals, leading to cancer, birth defects and other developmental disorders. In May, the CRD confidently announced it plans to add an “advanced oxidation” process to the secondary treatment plan, stating that this process will “significantly reduce the level” of these types of contaminants in the region’s discharged effluent. “Advanced oxidation can certainly help,” confirms Mavinic. “It’s a lot better than doing nothing. Ozone, for example, is a powerful oxidant in increasing use for disinfecting water rather than using chlorine, and it may be useful in dealing with some trace contaminants as well.” But Mavinic also says there are no guarantees as to just how effective the process is in practice. “The fact is that there really isn’t any effective technology out there in the marketplace yet to deal with these other contaminants. It’s coming, but it isn’t there. This is a very young science still. There’s a huge amount of research going on globally right now on this subject, including here at UBC, but the jury is still out.” He includes in this judgement the Membrane Bioreactor (MBR) technology used at Dockside Green: “Frankly, the jury is still out on the efficacy of MBR. It was developed for the drinking water industry, not wastewater treatment. The industry is now looking at wastewater treatment applications and we’re working on a pilot plant here at UBC to test its efficacy and see if there are any real differences in output to the Kelowna model in terms of processing nutrients. That’s a long term process, and the jury is still out yet as to whether it will be effective in treating micro contaminants, pharmaceuticals and other trace contaminants, let alone nutrients. No-one has the answer yet. We’re a long way away from making any recommendations on it.” Microplastics, found in both personal care products and fleece clothing—and released into wastewater—have also lately become a contaminant of concern. Scientists studying the issue agree that microplastics may pose problems in the marine environment because of their increasing abundance, their longevity, and their demonstrated ingestion by marine organisms. Mavinic says, “I haven’t seen any published literature or even heard of anyone doing any meaningful research on effective treatment for microplastics. I don’t think anyone has any idea what will deal effectively with that. If anyone is making a claim that there is a system to treat them effectively, I would love to see their data. It would have to be very convincing. Let’s just say it would be a real stretch to make a claim like that.” Mavinic says unanswered questions include exactly what “trace contaminants” need to be targeted: “There are so many different types of chemicals out there and they all respond differently to various treatments.” Exactly what impact those contaminants are having in different environments also needs to be considered. “There are still many, many unknowns,” concludes Mavinic bluntly. Where to from here, then? On this point Mavinic is completely unequivocal: If the CRD is committed to secondary treatment, planning ahead to integrate effective advanced treatment such as biological nutrient removal into the process is simply prudent, both from cost and environmental perspectives. “Ontario is facing that question right now as it looks to upgrade its secondary treatment facilities,” he says. “Will it move to advanced biological treatment to deal with the nutrients going into the Great Lakes? The answer is probably ‘Yes’. The lakes do have problems with excess nutrients and no-one wants any more chemical sludge to deal with. It’s a much more sustainable environmental approach and that’s why the Okanagan adopted it decades ago.” Chris Garrett simply favours doing the math first. He likes to adapt a borrowed quote: “I’m not necessarily anti-sewage treatment, I’m pro-arithmetic,” he concludes. Identifying the problems and doing a thorough quantitative analysis of all of the factors is about good decision-making, he says, whatever treatment solution the results favour in the end. “Without that, people are simply going to stay confused about what the right thing is to do.” Katherine Palmer Gordon is the author of six books of non-fiction, including several BC bestsellers and a Haig-Brown prize-winner.
  11. November 2013 The Truth and Reconciliation Commission process, aimed at raising awareness of the impacts of the Indian residential schools and building bridges between indigenous and non-indigenous Canadians, has proved a remarkable and moving experience for those involved. But much more is needed to make the process of reconciliation meaningful. “THE POLITICAL ELITE ALL KNEW WHAT WAS HAPPENING in the residential schools and they did nothing. I am filled with incandescent rage,” seethed celebrated humanitarian Stephen Lewis during his address to September’s Truth and Reconciliation Commission event in Vancouver, “thinking about what was done to the children. It was sheer, unadulterated evil and they did nothing to stop it.” In a contemporary context, continued Lewis, who is an honorary witness to the TRC proceedings: “Changes need to be made at a political level. Governments still refuse to negotiate land claims in good faith. The level of poverty and ill-health of Aboriginal people in this country is scandalous. Look at Attawapiskat. The disappearance and murder of hundreds of Aboriginal women is unacceptable but the federal government refuses to address this. This is not a political spasm. How much bad faith can a government display? The Prime Minister’s 2008 apology to survivors,” he concluded to thundering applause, “withers on the vine in the face of the ongoing hostility and racism of our government.” Truth, yes, reconciliation not so much The last of Canada’s Indian residential schools (which were operated by churches and funded by the federal government) closed in 1996. By then, more than 150,000 indigenous children had been incarcerated in the schools. The goal was to assimilate the children into Canadian non-indigenous society by forcibly separating them from their families, teachings, language and culture. It didn’t work. In the meantime, however, several generations of Aboriginal people were severely traumatized by the pervasive physical and psychological abuse that occurred in many schools. In the late 1990s, victims began bringing lawsuits against the government and the churches. The 2008 Indian Residential Schools Settlement Agreement (IRSSA) provided for compensation to victims, an apology from the government, and the creation of the Truth and Reconciliation Commission (TRC). The stated goals of the TRC were to “raise awareness of the history and impacts of the residential school system,” and to “enable a process of healing and reconciliation between those affected and non-Aboriginal governments, communities and individuals.” Five years later, thousands of tragic stories have been shared and millions of archival documents gathered for permanent safe-keeping. Non-indigenous attendees at one of the many public TRC events that have taken place across the country have gained a deeper understanding of the problems that Aboriginal people face today, directly stemming from the residential school system and its multi-generational impacts. Is the TRC simply preaching to the converted, however? In 2012, as many as 3,000 Victorians attended a TRC event held in the provincial capital. People were eager to reach out and learn, and a warm atmosphere of goodwill pervaded the proceedings. But if members of a native lacrosse team can still have racist slurs hurled at them in Victoria, as they did in September this year, it suggests that outside the supportive environment of a TRC event, a large and intolerant gulf still yawns between First Nations people and other Canadians. Then there’s the relationship—or the lack of one, as Stephen Lewis so eloquently points out—between First Nations and government. On the 250th anniversary of the Royal Proclamation on October 7, which should have been a cause for celebration of the relationship between First Nations and the Canadian government, instead Idle No More protests took place on the steps of government buildings across the country. That’s not surprising. While defending its commitment to the reconciliation process, as Lewis pointed out, the track record of the federal government is one of refusal to respect Aboriginal title and the right to self-determination and control over lands and resources; funding cuts to First Nations institutions; and failure to address urgent educational and health needs. That’s also true of the provincial government. “The reconciliation process is meaningless, total whitewashing,” says Troy Sebastian unequivocally, “as long as the government treats us like this.” Sebastian, a 36-year-old Ktunaxa man living in Victoria, is fighting on behalf of his Nation to try and stop the massive cultural and environmental threat posed by the proposed construction of a new ski resort at Qat’muk, a sacred and ecologically fragile grizzly bear area in Ktunaxa territory in the East Kootenays. To date, Ktunaxa’s pleas have fallen on deaf provincial government ears. Under those circumstances, Sebastian views the BC government’s participation in the reconciliation process as sheer hypocrisy: “[Minister of Aboriginal Relations and Reconciliation] John Rustad stands up and talks about reconciliation being so important, and about how he took part in the Truth and Reconciliation Commission event in Vancouver in September and in [Reconciliation Canada’s] Walk for Reconciliation,” says Sebastian. “Well, as far as I’m concerned that’s just BS. He shouldn’t have been allowed to take part. How does he have the gall to do something like that while he and his government are behaving this way towards First Nations in this province?” “I would never want to take away from the individuals telling their stories at the TRC, and I wish them the best,” says Dr Robina Thomas (Qwul’sih’yah’maht), an associate professor in the University of Victoria’s School of Social Work and a member of the Lyackson First Nation. “I understand this process is about raising awareness of the impact of the residential school system and hearing people’s stories. But where is the conversation about the fact that the impact of the schools still isn’t being addressed by governments?” TRC Chief Commissioner Justice Murray Sinclair adds sombrely: “We have more children in care now, I understand, than went through residential school. That’s shocking to me. So is the fact that any young First Nations person in school today is still statistically more likely to end up in prison than to graduate. It makes me want to cry. Governments should be stepping up and confronting that reality, but they aren’t doing it.” Instead, both levels of government continue to pursue development agendas that conflict constantly with the desire of First Nations to protect and control the future of their traditional homelands. Mining, large-scale forestry, oil and gas development and open-net fish farming all receive abundant government support, often in the face of passionate First Nations opposition, while at the same time First Nations advocacy groups knock fruitlessly on the door of improved education programs and healthcare, better housing and poverty reduction initiatives, language revitalization support and environmental protection. There may be a whole lot of truth coming out at the TRC, but it certainly doesn’t feel like there’s much reconciliation to go with it, at least at government level. After the Commission concludes its work in 2014, and its final report and recommendations vanish into the unlit Orwellian depths of bureaucratic review, where will Canada be on its path to reconciliation with First Nations? If current indications are anything to go by, a long and difficult road still lies ahead. Has the TRC had any effect at all? The work of the TRC has without question helped to raise public awareness of the impact of the residential schools. Extensive media coverage of TRC events may also have helped shift diehard public perceptions. In 2004, more than half of those polled in a national survey said poor Aboriginal people have only themselves to blame. By contrast, in 2012, according to Karen Joseph, executive director of Reconciliation Canada, an Environics poll found that two-thirds of Canadians believed they have a role to play in reconciliation. “People are ready for this,” says Joseph. “They want reconciliation to happen.” There has also undoubtedly been immense value to survivors in sharing their experiences publicly. “Thank you,” survivor Deborah Johnson told the audience at the September TRC event in Vancouver, “for listening to me.” Johnson had just recounted how she was proudly wearing the brand-new dress and shoes her mother had given to her when she was taken to St Joseph’s residential school at Williams Lake. But on arrival, the dress and shoes were promptly ripped off her tiny four-year-old body by the nuns. She was left standing in the cold room in her underwear, confused and crying, begging to be given back her pretty new clothes. She was given a ragged old uniform and tattered shoes instead, and punished for crying. Her mother left, sobbing heartbrokenly. Johnson mistook her mother’s sobs for laughter. Until adulthood, when she finally learned of her mistake, Johnson hated her mother for abandoning her with apparent joy. Like thousands of other children, Johnson also spent her childhood suffering abuse at the hands of her supposed caregivers. “It helps people like me to heal and to grow,” she said to the hushed crowd, “knowing you are supporting me and not judging me.” Antoinette Archie, from Canim Lake, had similar experiences. Archie sat outside in the warm September sunshine and spoke about appearing at the TRC in Vancouver: “I think the TRC process is great. All these years, I have been feeling sorry for myself for everything that was done to me. I was so angry. Being able to understand that I was not alone, that all these other people were there too, has helped. Knowing non-First Nations people want to hear about it really helps.” But the TRC process hasn’t proved a cure-all for the damage done to Aboriginal children like Johnson and Archie. Archie says she still needs therapy, and hasn’t yet revealed everything that happened to her; she doesn’t know if she ever can. As Grand Chief Ed John told the crowd at the 2012 Victoria event, the memories and the impacts of the residential schools will stay with the survivors for the rest of their lives: “Like the Hotel California,” he observed, “You can check out, but you can never leave.” The TRC itself has had challenges right from the start. It was set up as a federal department rather than an independent commission, so receives its marching orders from the federal government. In other words, the guilty party calls all the shots. Department of Justice officials watch every step of the TRC process with hawk-like ferocity, ensuring there is no deviation from the legal terms of the settlement. All TRC processes also have to comply with onerous federal bureaucratic policies tailored to large, resource-rich government departments rather than a tiny, brand-new organization. Getting an office up and running in 2008 and hiring staff was immensely challenging. Then, before the substantive work had even begun, the first three Commissioners all resigned. Justice Harry LaForme, the former chair, stated publicly that the Commission’s independence had been compromised by political interference and that his authority was being questioned. More than a year after it was established, in July 2009, the TRC process finally got under way with a new slate of Commissioners, a small group of overworked staff, and its public credibility badly-shaken. Dollars depend on abuse specifics In 2012 the TRC issued an interim report, with 20 recommendations for federal and provincial government action. They included developing educational materials about the residential school system, creating parenting programs, establishing trauma therapy centres and restoring funding to the Aboriginal Healing Foundation, extending compensation to day students (currently excluded from the settlement), and increased funding for archiving historical residential school records. None of the recommendations have been accepted by either level of government. “The federal government says it is looking at the recommendations,” says TRC Chief Commissioner Murray Sinclair, “but I can’t say there has been any significant change as a result. Some of them have been rejected outright, like the recommendation to re-establish funding to the Aboriginal Healing Foundation and making improvements to the TRC process. I expect,” Sinclair concludes with resignation, “that we will be repeating most of the recommendations in our final report.” It doesn’t seem likely they will meet with any greater success second time around. Minister of Aboriginal Affairs and Northern Development Canada, Bernard Valcourt, was not available to comment on the government’s lack of action on the recommendations. Press secretary Erica Meekes provided this anodyne written response: “Our government is committed to a fair and lasting resolution to the legacy of the Indian residential schools and will continue to work with the TRC and to fulfill its obligations under the IRSSA.” And not one iota more, Meekes may as well have added. That may be in part because the government has chalked up approximately $4 billion to date in settling compensation claims through the IRSSA. Survivors could choose to accept a limited “common experience payment” based simply on proven years of attendance at a school—the government set aside $1.9 billion towards this category of compensation—or participate in an independent assessment process (IAP) in which they could receive considerably greater compensation based on proving the actual abuses that had occurred. To date, more than $2 billion has been spent on compensating IAP claims to 23,268 claimants. Another 14,600 remain in progress. It is questionable whether the IAP has contributed to reconciliation or compounded the problem, however. Participants are interrogated by government lawyers in a quasi-legal setting, and asked repeatedly to describe the most intimate acts of sexual abuse upon them. Points are awarded to the claimants based on how many times they suffered digital, vaginal or anal penetration, and whether those acts were persistent or occasional. Fondling doesn’t score as highly as persistent masturbation; broken bones rate less than anal intercourse. Dollar figures are assigned to the points scored; they are non-negotiable. It is difficult to imagine the sheer horror of having to tell strangers such intimate details, while lawyers repeatedly question your integrity and memory. Inspite of such indignities, thousands have done so, determined to hold the government to account in the only way that seems possible, and despite the psychological consequences of having to relive all those dreadful experiences. Whether the payments will adequately compensate for the reawakened memories is questionable. Also questionable is the federal government’s refusal to apologize for its role in undertaking unconscionable nutritional experiments on the children, another horrifying fact that gained prominence in mid-2013. In tests bringing to mind those undertaken on Jewish Holocaust victims, students were deliberately starved and studied to assess the effect of poor nutrition on growing kids. Minister Valcourt simply told media that the past can’t be erased, and “everyone needs to reconcile and move forward.” Risking being labelled a sham Critics of the federal government’s lack of commitment to reconciliation point not only to its refusal to live up to the spirit of the TRC process, but to its apparent lack of interest in having any kind of relationship with First Nations, let alone a positive one. The Harper government remains determined to drive the Northern Gateway bitumen pipeline through British Columbia despite ferocious First Nations opposition; refuses to honour historic treaties or show any inclination to move forward on concluding contemporary land claims and self-government agreements; and continues to neglect impoverished communities. “I would say that it goes beyond neglect to a completely counter-productive agenda that does nothing whatsoever to promote reconciliation,” says Lorne Brownsey bluntly. Brownsey is a former executive director of the federal treaty negotiations office in Vancouver and deputy provincial minister of aboriginal relations and reconciliation, now retired in Victoria. In late 2011, he told Focus: “Unfortunately, the government of Canada has become an increasingly reluctant partner in the process of reconciliation in British Columbia and elsewhere.” Two years later, nothing has changed. “The relationship between the federal government and First Nations has not improved one iota. To talk about reconciliation without any relationship is pointless, especially when the party with the fiduciary responsibility towards Aboriginal people—the government—is frankly derelict in its duties.” Brownsey is cynical about the federal government’s reconciliation agenda, citing its recent frantic attempt to engage with First Nations on the Enbridge file. In mid-September a plane-load of federal deputy ministers landed in Vancouver and fanned out across the province to try and persuade First Nations that they could trust the government on this one. “I’m not impressed. Frankly, this isn’t about building a proper relationship with First Nations. I think they’re just trying to butter up the ones they think they need onside. It’s the same old story.” That attitude, thinks Brownsey, explains why the TRC process has some fundamental barriers to success in its way. “How can the TRC do its job when the federal government is not engaged and is uncooperative? If they don’t step up to support it and the recommendations it’s at risk of being labelled a complete sham.” Things aren’t much more promising on the provincial government front. Minister of Aboriginal Relations John Rustad says he has found the TRC process “very moving.” But when it comes to the recommendations that the provincial government actively address educational and health issues, all he has to say is: “We’re looking at them. I am particularly interested in the education recommendations.” Rustad says he is more interested in moving forward on the provincial government’s treaty agenda. “I think that’s where the greatest opportunity for reconciliation lies. We’ve managed to reach a few agreements and there is interest from other First Nations in moving forward.” The merits of the BC treaty process and the provincial government’s role in it are fodder for a whole different article. Despite what Rustad says, in September the independent BC Treaty Commission berated the provincial government for its lack of commitment to the treaty process. Whether or not treaties will achieve reconciliation of anything other than governmental economic agendas also remains a hotly-debated issue, as is the question of whether treaty agreements can possibly address the kinds of needs and issues highlighted by the TRC process. In the meantime, people like Troy Sebastian are incensed when they hear Rustad pushing the government’s treaty agenda as a path forward to reconciliation. “His government’s actions are utterly inconsistent with any commitment to reconciliation,” repeats Sebastian. “How on earth can John Rustad talk about reconciliation with a straight face?” he demands. “It makes me sick.” Is there any good news here? Yes, insists Reconciliation Canada’s Karen Joseph. “We are inundated with interest from both indigenous and non-indigenous people wanting to be involved in the conversation about reconciliation,” she says. “As people learn about the history, and understand not only the impact of the residential schools but of everything that governments have done to First Nations people in Canada since first contact, they are hungry to do something to repair the relationship.” Reconciliation Canada, a non-profit organization, was created following the 2012 Victoria TRC event. “We’d already been talking about putting something in place that could carry on the work of reconciliation,” says Joseph. “People were really engaged but had nowhere to go to continue the conversation. That’s when we started talking about creating the Walk for Reconciliation as a way for people to show solidarity.” Within a matter of weeks Reconciliation Canada had been created and substantial funding was in place to organize the walk. “I couldn’t believe the level of appetite for it,” says Joseph. The walk, held on September 22, was hugely successful, reportedly attracting 70,000 participants. “We aren’t stopping there,” says Joseph. “Clearly people want to continue the conversation. We have to have a structure that people can become involved with on an ongoing basis, especially after the TRC is gone.” Reconciliation Canada, says Joseph, is about moving forward past “sorry” and into a new relationship together that will benefit everyone long after the TRC completes its work. “It is partly a matter of social acceptance. When people at an individual level can become comfortable with each other, we’re really getting somewhere.” Commissioner Sinclair thinks individual Canadians have a responsibility to make their actions speak as loudly as their words. “People who support reconciliation need to reach out. The TRC process is just part of a huge conversation that needs to take place about all the gaps that still exist between First Nations people and their lives and the lives of non-indigenous people in Canada. That conversation needs to take place with everyone.” People can also help by advocating to government for the rights of First Nations people, say the critics of government inaction to date. “In the simplest terms, reconciliation, at some point, has to be not only about the residential schools but about transference of power back to First Nations,” observes Lorne Brownsey. “That means return of lands, restoration of prosperity, and not least of all, self-determination. British Columbians need to accept that’s vital, and support it.” “Governments aren’t doing that right now in a way that is meaningful to First Nations, and won’t unless their constituents support them doing it,” he continues. “I know the TRC process has been worthwhile for many people who have found healing in sharing their stories, and for non-indigenous people who have been touched by hearing them, so it isn’t a failure from that perspective by any means. But there remains a major piece missing, and that is acceptance that reconciliation goes beyond individual healing and requires the return of real control to First Nations and recognition of their rights.” Troy Sebastian expresses his view in starker terms: “I don’t believe it is necessarily within our interest as indigenous peoples to participate in reconciliation when the concept of reconciliation is predicated on strong principles of white supremacy, apartheid and cultural genocide. If people mean what they say about wanting reconciliation, they have to put pressure on the government to compel the state to re-imagine its relationship with indigenous peoples, lands and law. Tell government to stop flying in the face of First Nations’ rights and needs and culture. If non-indigenous people don’t support us in our rights, and our goals for self-determination, this reconciliation process is all completely meaningless as far as I’m concerned.” Where to from here, then? On Canada Day 2014, the TRC will hold its final national event in Ottawa. That, at least as far as governments are concerned, is where the TRC process will end. But, as Joseph and Sebastian and Brownsey all point out, it doesn’t have to mean the end of reconciliation efforts by everyone else. Fred Robbins, chief of the Alkali Lake Band, stood up at the TRC in Vancouver and said: “We need to recognize that things can’t end with the TRC process. We need to support the recommendations they have made. We need to carry on this momentum, or all this work will just get folded up by bureaucrats and put away on a shelf. And we need to do it together.” Otherwise, all those stories so bravely shared will be forgotten, and the past, as usual, will simply be repeated. We can’t ever get Deborah Johnson’s brand-new dress and shoes back for her, but metaphorically at least, we can work together to make sure that governments never take them away from future generations of little girls just like her. And if Canada is ever to truly reach meaningful reconciliation with First Nations, we must. Katherine Palmer Gordon is the author of six books of non-fiction, including several BC Bestsellers and a Haig-Brown prize-winner. We Are Born with the Songs Inside Us: Lives and Stories of First Nations People in British Columbia has just been released by Harbour Publishing. She also has 20 years experience working with First Nations on land claims and inter-governmental relations.
  12. December 2012 The final report of the 3-year, $26-million Cohen Commission may signal the end of fish farming on BC’s coast. IN THE SUMMER OF 2009, the number of Fraser River sockeye salmon reaching their spawning grounds could be counted in mere thousands rather than the ten million fish originally predicted to arrive in the river that year. By then, steadily declining returns had already led to closures of the fishery for three years in a row. Bowing to vociferous public demand for action, in December 2009 the federal government commissioned BC Supreme Court Judge Bruce Cohen to investigate what was happening to the wild fish. Cohen’s terms of reference required him to consider the Department of Fisheries and Oceans’ (DFO) policies and practices, investigate and make findings of fact on the state of the fishery, and make recommendations for improving its future sustainability. Cohen, a slender man with a neat head of silver-white hair and a penchant for dark suits, had the right credentials for the job: a West Coaster born and bred, he had more than 40 years’ legal experience, 22 of them as a judge. Cohen also had the necessary gravitas to keep a courtroom full of ardent and often angry people in check. Both attributes were put to the test many times over the next three years, as Cohen listened to 900 public submissions and 160 witnesses, and analyzed 2100 exhibits, totalling 14,000 pages of evidence. The bill for the process was $26 million, not counting what other organizations and individuals had spent to participate in the proceedings. In 2010 Fraser River sockeye returns hit the highest levels in decades. Sadly, scientists concluded it was merely an anomaly. By 2011, the numbers were back down to the levels of the last few years. Overall stock numbers—not just of Fraser River salmon, but of at least 45 other stocks—continued to steadily decline. On October 31, 2012, Cohen held a press conference to release his findings. Thousands of NGO representatives, scientists, academics, First Nations and other British Columbians who had followed the three-year process were chewing their nails in anticipation. Hopes were high that he would direct the federal government to act without delay to mitigate potential risks to wild salmon posed by the fish farm industry. Many hoped Cohen would go further and order the industry right out of the water. While the latter outcome wasn’t likely, even the former was anything but a sure thing. Much of the evidence Cohen had heard on that subject had been contradictory. In just one of many examples, Raincoast Conservation Foundation biologist Michael Price had told Cohen that exposure to salmon farms has had a significant impact in spreading sea lice to juvenile wild salmon throughout Georgia Strait. Biologist Alexandra Morton too reported that sockeye running the gauntlet of Broughton Archipelago fish farms were heavily infested with sea lice. But the aquaculture industry disputed such findings, claiming they were based on misleading research, and in turn producing reports denying that sea lice from salmon farms were endangering wild fish. DFO also disputed the connection. In August 2009, in the same breath it admitted it didn’t know what had happened to the missing fish, DFO adamantly stated: “Sea lice from fish farms are not the explanation.” Confronted with such conflicting evidence, not just about sea lice but also about diseases and other risks associated with fish farms, what chance was there that Cohen would come down on the side of wild fish over the aquaculture industry? Even if he did make recommendations for action on salmon farms, would they go far enough? Perhaps most important of all, having heard repeatedly how strongly the government supports the aquaculture industry, would Cohen be prepared to hold the federal government to account for its failure to protect the wild fish? A resounding victory for wild salmon To the joy of wild fish advocates, Cohen exceeded all expectations. Making his view clear beyond any debate, Cohen stated unequivocally in his opening announcement: “I conclude that the potential harm posed by salmon farms to Fraser River sockeye salmon is serious or irreversible.” As Cohen continued speaking to his spellbound audience at the press conference, wild cheering was breaking out along BC’s entire coast. “It was like a thunderbolt!” recalls biologist Alexandra Morton. For Morton, who has devoted decades of unwavering effort to protecting wild salmon, it was a huge moment of vindication. Originally a whale researcher in the Broughton Archipelago, when orcas left the area in the early ’90s her work shifted towards protecting wild salmon and campaigning against proliferating fish farms. She has spent countless hours documenting sea lice on wild salmon and more recently has been spearheading efforts to get proper monitoring for the ISA virus in salmon. In total, Cohen made 75 recommendations for action by the federal government to improve the chances of survival of wild fish, covering everything from climate change mitigation to enhanced habitat protection. He put clear deadlines on their implementation and fearlessly threw the gauntlet down to the federal government to publicly account for its actions in implementing the report. The first public report on progress is due by March 2014. Although he acknowledged that he can’t force the government to accept his recommendations, there is little doubt Cohen believes the government must do as he advises, and do it fast or our fish are doomed: “Fraser River sockeye face an uncertain future. If implementing [my] recommendations is delayed, ongoing threats to the stocks will make remedial action all the more challenging when it does begin.” “Overall, it’s a fabulous report,” says Craig Orr of Watershed Watch, still savouring the good news over a Sunday morning cup of coffee a few days after the report’s release. Orr, who holds a PhD in behavioural ecology from Simon Fraser University and who has been working to protect BC’s wild fish for 20 years, had followed every step of the Cohen process closely. He and his Watershed Watch colleagues had collectively devoted thousands of hours and extensive resources to providing evidence and issuing daily public updates as new information came to light in the hearings. For Orr, Cohen’s report made it all worthwhile: “His finding that DFO is in a conflict of interest in promoting salmon farms is huge. Calling for immediate implementation of the 2005 Wild Salmon Policy, with conservation of wild fish as DFO’s primary mandate and confirming its obligation to take a precautionary approach to conservation—we’re very happy about that. Those two things alone are worth all the effort.” Cohen’s findings: a damning indictment Cohen couldn’t have been any clearer about DFO’s responsibilities towards salmon: “In relation to wild fisheries, DFO’s paramount regulatory objective is the conservation of Fraser River sockeye salmon and other wild fish species…In my view, DFO should act at all times in accordance with [that objective].” Although he did it in more restrained terms than Orr might have used, Cohen also did make it crystal clear that DFO has been doing anything but acting in accordance with that objective. The report recites a damning litany of failures and omissions in DFO’s management of wild salmon. First and foremost, found Cohen, DFO has plainly and simply failed to act to conserve wild fish species. Its mandate to promote and support the aquaculture industry is in direct conflict with its responsibility for conservation of wild salmon, and may be responsible: “Promotion of salmon farms might prejudice the health of wild salmon stocks,” wrote Cohen. “As long as DFO has a mandate to promote salmon farming, there is a risk that it will act in a manner that favours the interests of the salmon-farming industry over the health of wild fish stocks.” DFO has also failed to implement the 2005 Wild Salmon Policy (WSP), a detailed plan of action setting out the federal government’s responsibilities under the 1995 United Nations Agreement on Straddling and Highly Migratory Fish Stocks. Under that agreement DFO is required to apply a “precautionary approach” to its management of wild fisheries. When scientific information is “uncertain, unreliable, or inadequate,” the precautionary approach prohibits DFO from using the absence of adequate information as “a reason to postpone or fail to take action to avoid serious harm” to a fishery. Wild salmon advocates have been urging DFO for years to take a precautionary approach to minimizing potential risks from salmon farms. But their efforts have been fruitless to date, and Cohen pinpointed why: “Seven years [later], little progress has been made in implementing the WSP. The level and manner of funding for implementation [of the WSP] is inadequate and disappointing. The blunt truth is that, in terms of dollars, [DFO] attaches greater importance to programs such as promotion of salmon farming.” This situation has been compounded by a dearth of meaningful research by DFO into the various stressors that affect wild salmon, including salmon farms, sea lice and infectious diseases: “DFO has not yet completed research into the effects of [these] diseases and pathogens [and] DFO’s lack of research into the stressors means that the department had no capacity to draw firm conclusions about the decline as the years unfolded and therefore was precluded from taking action in a timely manner.” Despite that, DFO has continued to make decisions supporting fish farms in the face of a real likelihood that wild fish are being exposed to diseases and pathogens spreading from fish farms: “The evidence before me,” wrote Cohen, “indicates several plausible mechanisms for harm.” Obfuscation and obliquity These are just some of the formidable list of DFO’s shortcomings described in the Cohen report. Unfortunately, the list doesn’t end with the report itself. Interwoven through the dense stack of Commission transcripts of evidence are page after page of DFO and federal government cover-ups, obfuscation and evasion. Cohen was specifically directed in his terms of reference not to find fault on anyone’s part. That must have been remarkably challenging. Browsing the transcripts is akin to turning the pages of a conspiracy thriller: there are shonky alibis, security goons with earpieces, muzzled scientists, blatant political interference, questionable financial transactions, secrecy, and denial. It’s a plot any novelist might envy. Here’s just a tiny smattering of what transpired. On March 17, 2011, Dr Laura Richards, DFO’s regional director of science, was on the stand responding to questions regarding several revealing departmental emails and documents. It quickly became clear that even though staff had prepared ministerial briefing notes admitting plainly that sea lice and disease were possible causes of the decline of wild fish, DFO had continued to publicly dismiss sea lice as a factor rather than taking the precaution of investigating the potential link further. It was evident that federal government communications staff in Ottawa had control over what could be said publicly, rather than DFO scientists, who had received written instructions on what could and couldn’t be included in any news releases or ministerial speeches and correspondence on the subject. Denial of the possible existence of disease such as infectious salmon anaemia (ISA) in BC’s farmed fish, particularly in correspondence to potential United States buyers, was routine. Ottawa’s unequivocal support for salmon farming was clear in DFO’s communications plan, the goal of which is to convince an “uninformed” and “confused” public of the merits of fish farming. The plan was clearly unsuccessful: on August 31, 2011, the Commission heard that Trevor Swerdfager, director general of aquaculture for DFO, eventually instructed his staff to simply ignore numerous letters that DFO was receiving from the public expressing concerns over salmon farming. Other documents submitted to the Commission the previous day revealed that DFO had developed a marketing strategy to counter NGO campaigns against aquaculture. It also had a budget to send senior management staff, including Swerdfager, on several trips to the US to promote Canadian farmed salmon. These travel expenses were just a small portion of a $70 million federal budget for aquaculture promotion, large chunks of which were doled out directly to private aquaculture companies undertaking research and development projects. At the same time Ottawa was subsidizing the industry, it was threatening to cut funding to its own scientists—at least the ones doing work that might prove detrimental to the fish farm industry. In January 2011 Dr Kristi Miller, DFO’s head of molecular genetics, co-published a paper in the prestigious journal Science hypothesizing that a virus could be responsible for the dying wild salmon. While the breaking news electrified the West Coast, and anti-salmon farm activists immediately connected the potential virus to salmon farms, Ottawa also moved immediately, forbidding Miller to talk about her discovery. When Miller appeared before the Commission in 2011, she alone of numerous DFO staff was accompanied by a burly security guard, ostensibly there to protect her but clearly under instructions to ensure she didn’t speak to the media. Miller needed no such “protection,” however. The scientist proved unafraid to speak candidly to the Commission about events that had unfolded after the publication of her team’s hypothesis. Once on the stand and under oath, the evidence she provided was nothing short of explosive. After publication of her paper, testified Miller, her department’s funding came under immediate threat from senior DFO management. She was also extremely worried that her extensive body of research materials might be taken away. She had been quarantined within her own organization, admitting to the Commission: “I’m pretty alienated in the department at the moment, so I’m not included in any conversations about disease. Once I reported the information, nobody in the department talked to me about disease after that.” Since publication of the first results, continued Miller, she and her team had discovered yet another virus, this time a parvovirus never before seen in fish and one she believed could be the “smoking gun” responsible for the 2009 sockeye collapse. This astounding discovery complemented other research results going back several years that identified a number of diseases and viruses discovered in BC hatcheries and net pens with potential to have caused harm to Fraser River sockeye, including ISA. Miller’s testimony about being alienated, was dramatically illustrated when fellow DFO scientist Kyle Garver, who followed her onto the stand, attacked her findings on the new parvovirus. Garver dismissed her conclusion as pure speculation, saying far more research was required before a connection could be made between the parvovirus and the collapse. Miller had in fact tried to get more research done, only to be stymied yet again by her own department. Her requests to get farmed salmon samples for testing for the parvovirus were repeatedly ignored. Miller persisted, sending an email to her colleagues in July 2011 asking them to elaborate on “their reasoning for not initiating any testing of [farmed] Atlantic salmon for the parvovirus we have recently identified in high prevalence in wild sockeye populations.” She not only received no response, she was actively obstructed in her efforts to get further samples for parvovirus testing. The samples were sent to her, but in a thawed state: “Anyone who knows anything about molecular biology,” said Miller, “knows you cannot send tissue samples that aren’t kept frozen or they degrade very, very rapidly. By the time they got to our lab, they were no use.” Miller wasn’t the only scientist attacked by DFO for her findings. Dr Fred Kibenge, an ISA specialist at the University of PEI and an independent and credible scientist, had also been examining the presence of ISA in BC under the supervision of DFO scientist Simon Jones. When Kibenge confirmed ISA may be present, Jones refused to publish his report. Under questioning, Kibenge confirmed that he had been heavily criticized for his findings, something he found incomprehensible: “I can’t understand where the government is coming from. I mean, that’s my view.” Legal counsel asked Kibenge if he thought he would have experienced the same kind of pressure had he found no evidence of ISA; Kibenge unequivocally said no. What Cohen recommended After everything he’d heard, it’s little wonder that Cohen hit hard when he made his recommendations. In addition to immediate implementation of the Wild Salmon Policy, they include immediately relieving DFO of its responsibility for aquaculture to allow it to focus 100 percent on wild fish. He also advised the government to undertake properly funded and extensive research into wild fish health, and supported much greater transparency of data and data-sharing with independent scientists, including health data from salmon farms. He recommended development of new farm siting criteria by March 2013, building in protection of wild salmon migration routes. Farms that don’t meet the criteria, he stated, should be shut down without delay. He called for immediate implementation of a policy limiting licences to one-year terms in the Discovery Islands, where a high density of farms and a narrow passage for Fraser sockeye to pass through puts the wild fish particularly at risk, and recommended an immediate freeze on any expansion to fish farm activities in that area. Perhaps most fundamental of Cohen’s recommendations is to shift the onus of proof as to whether harm is being done to wild salmon back to DFO and the industry, where it should have been all along. “Until now,” says Alexandra Morton, “as a scientist you’ve had to prove some impact has happened to the wild population because of farms. Well, the trouble with that is by then it may be too late to prevent permanent damage.” Now, thanks to Cohen, the shoe is finally on the other foot. In the face of the uncertain science and real potential for risk to wild salmon from fish farming, Cohen gave DFO a maximum of eight years to do research into diseases and pathogens affecting wild fish. If by then DFO “cannot confidently say the risk of serious harm is minimal, it should prohibit all net-pen salmon farms from operating in the Discovery Islands. If DFO is satisfied before then that the risk is more than minimal, it should,” wrote Cohen, “put an immediate stop to operations.” The industry response Mary Ellen Walling, executive director of the BC Salmon Farmers Association, thinks no one should be holding their breath that the industry is about to vanish from BC’s coast as a result of Cohen’s report: “We have an important role to play in the economies of the small coastal communities of BC in which we operate,” says Walling firmly. “We provide employment in those communities and we’re working hard to make sure they understand we’re going to be here for a long time to come.” Walling, a self-described “long term resident of the BC coast,” has an applied communications Masters degree from Royal Roads. On her website, maryellenwalling.com, she highlights her expertise in applied marketing, public relations and promotion, with a “particular focus on risk communications.” The industry, continues Walling, “fully supports” the Cohen report. Pressed as to whether the industry has plans to take mitigative steps on a voluntary basis to address the concerns identified in the report—or indeed to prepare to exit the coast if further research doesn’t support their case—Walling is evasive, however. “We are confident in the health of our fish,” she insists. She then changes the subject: “We’ve proven we’re prepared to be transparent with information. We provided unprecedented amounts of raw data to the Commission and we’ll continue to provide it to DFO.” The industry continues to look at options for closed containment but the technology remains expensive and small-scale in nature. More likely to be on the radar are innovative new vaccines: “That’s at the forefront of our management approach. We use very few antibiotics compared to other farming sectors, so vaccinating at smolt stage against the risks of disease is a good form of protection.” But Walling is talking about protecting farmed fish, not wild salmon. She agrees that further research into the health of wild fish is required, but for a different reason than folks like Orr and Morton: “We know our fish are brought into the pens healthy, so we’re very concerned to protect them. What we’ve been saying for a long time is that more information is needed about wild fish, because our fish are vulnerable to the diseases that wild fish carry.” That’s quite the “risk communication” spin on Cohen’s findings: the research needs to be done in order to protect the farmed fish, rather than the wild fish. Unsurprisingly, Alex Morton is derisive when she is presented with these perspectives. “Well, finally we agree on something!” she scoffs. “That’s easy to fix. If you want to protect your fish, get them out of the ocean, Ms Walling!” Morton also disputes Walling’s assertions about the industry’s contribution to coastal communities, and speaks from personal experience. “My community had about 200 people in it when the industry moved in here in the late eighties. They told us they would be good for the community and, naively, I believed them. Today, we have 27 Norwegian feedlots, and about 8 people left in the community. They don’t hire locals, they don’t buy gas from us. As far as I’m concerned, they’ve destroyed us.” What else has been happening in the meantime? In 2010, authority for the management and regulation of fish farms was transferred to DFO from the provincial government after the BC Supreme Court decided in 2009 (in a lawsuit brought by Alexandra Morton against the province) that finfish aquaculture is a federal government responsibility. DFO’s official policy since then has been to hold off making any decisions on applications for new fish farm sites, or for amendments to existing licences where there is “potential for a significant increase in the environmental footprint,” until DFO has had time to consider the Commission’s recommendations. But even as the release of the Cohen report was imminent, DFO’s actions spoke louder than its words. In October it gave clearance to a new farm site at Meares Island, near Tofino—only a few kilometres away from another farm at Millar Channel, where earlier this year all stock was destroyed after an outbreak of IHN virus. The rationale for the exception is that the new site replaces an existing one with a higher environmental impact. The provincial government, which retained the authority to issue and manage fish farm tenures, approved a licence for the new site, agreeing that no “significant” environmental impacts had been identified with that location. In 2008, the Province placed a moratorium on fish farm applications on the north coast. Apart from that, there have been no limitations on the issue of tenures for fish farm sites pending Cohen’s report. According to BC’s Ministry of Forests, Lands and Natural Resource Operations (FLNRO), the Ministry of Agriculture is in the process of reviewing Cohen’s findings and will be communicating its response directly to the federal government in due course. In the meantime, FLNRO communications staff report that there are seven outstanding applications for tenure replacements in the Discovery Islands, all of which are currently operating under month-to-month tenancies and “under review,” along with one tenure amendment application. It’s not much information on which to base any sense of where the provincial government’s going to land on the Cohen report. But in mid-2012, the government introduced Bill 37, an apparent attempt to override freedom of information legislation and severely constrain whistle-blowers from publicizing reportable diseases (read salmon farm outbreaks) by the threat of severe criminal penalties. It was only withdrawn after legislators were bombarded by public protests. In the absence of any indication to the contrary, the message seems clear: far from constraining any further activity, let alone shutting it down, both governments are still backing the industry over wild fish and the environment. In fact the environment, as much as the fish, appears to be the victim in this story. One of many things Cohen criticizes the federal government for in his report is its performance on climate change, including its withdrawal from the Kyoto Protocol. In recommendation 74, he urges the federal government to reverse that direction by “championing” reasonable steps to address warming waters and their effects on fish. Cohen is also critical of the federal government’s failure to implement DFO’s long-standing habitat protection policy, premised on a principle of no net loss to vital fish habitat. In fact, as it did with Kyoto, the government has yet again been going in exactly the opposite direction. On June 29, 2012, the Orwellian Jobs, Growth and Long-term Prosperity Act, also known as Bill C-38, amended both federal fisheries and environmental assessment legislation by emasculating environmental assessment processes and fisheries habitat protection. Notwithstanding roars of outrage from the public, both vital processes were effectively made secondary to economic interests. Read the section of Cohen’s report covering this issue and it’s impossible to conclude that he is also anything but utterly outraged. Not only did the government fail to alert him to the changes coming down the pipe—changes that he notes would have a “significant impact” on his findings—but they chose to introduce the legislation when his draft report was nearly complete. “The federal government’s tabling of Bill C-38 is disappointing,” fumes Cohen. “It is regrettable that [these] legislative amendments could not have waited until the Government of Canada had the opportunity to consider this report.” Someone with lesser integrity or courage may not have done what Cohen did, which was to go back to all the Commission participants and invite them to make submissions on the changes. After he analyzed the results, he concluded unequivocally: “Bill C-38 reverses the explicit approach to fish protection set out in the Wild Salmon Policy.” He also found that the combined effect of the legislation means that “it is likely DFO will be less involved in assessing the impacts of projects on Fraser River sockeye and sockeye habitat. Expanding the circumstances in which harm to fish habitat may be authorized concerns me. Based on the evidence I heard, this shift could harm the long-term sustainability of the [fish].” What happens now? “The only thing Cohen could have done better is ask for permanent removal of fish farms right now,” says Craig Orr of Watershed Watch. “But he’s done the next best thing. He’s said the precautionary principle has to be applied to all decision-making about wild fish from now on. So it’s still a whole new ballgame for fish farms.” But will Cohen’s report simply fade into oblivion like so many of the other reports that have preceded it. Orr feels that won’t happen. Besides going so much further than any previous review of these issues, he says, “It’s very powerful. It captures so much testimony and evidence and information that might never have seen the light of day otherwise, especially the evidence that DFO staff were required to give under oath, which includes some very honest and compelling testimony. That’s permanently on the record now, whatever happens.” Alexandra Morton, too, is optimistic: “The industry’s on the way out the door. There’s no question. We’ve already seen that wild salmon bounce back when they’re relieved from the risks posed by salmon farms. There’s tremendous potential in our wild salmon stocks, and coastal communities should be preparing to get ready to take advantage of that when the industry moves on. Because believe me, it will.” Still, she’s not relaxing her efforts. Morton is now undertaking research in collaboration with independent international scientists to track and verify the existence of ISA in BC. “Given the type of tests we’re doing, tests undertaken by internationally respected and credible scientific institutions, it’s impossible to say ISA is not here,” says Morton. “The results are already demonstrating that there is more than a minimal impact from these farms on the wild fish. It’s more than time to act on this.” The data Morton and her colleagues are collecting will be vital in the battle to save BC’s wild fish, but at times it feels like she is fighting a lonely and financially challenging war: “We’re working to track three potentially deadly European viruses here. This work has to be funded. The fish farms have to go. But it’s not just up to me. I am really trying to wake British Columbians up to the need to be proactive and tell our politicians that they have to do something now. Nothing will happen if we don’t all rise up and take action.” Otherwise, ultimately, the fate of the wild fish will be left in the hands of the federal government. Bruce Cohen may not have had the authority to find fault with anyone in his report, but there’s no question that if his recommendations aren’t implemented, at least we know squarely who is to blame. Katherine Palmer Gordon is an author and freelance writer based on Gabriola Island. Her sixth book, We Are Born with the Songs Inside Us, is scheduled for publication by Harbour in December 2013.
  13. September 2012 While fleets of log-laden ships depart our shores in growing numbers, scores of mills have closed resulting in massive job losses in BC. With so few mills left to send logs to, logging companies claim exports are the only way to stay in business. With the removal of the requirement that forest companies holding tenure on Crown forestland must mill that timber locally, there’s little or no impetus for them to invest in much-needed infrastructure that would provide an alternative to log exports. What will it take for BC to stop exporting so much home-grown opportunity to Asia? “ADVOCATES OF RAW-LOG EXPORTS in British Columbia claim log exports create employment. The truth of the matter,” the United Steelworkers Union declared bluntly in a May 2012 publicity campaign linking massive BC job losses to record volumes of log exports, “is that raw-log exports kill BC jobs.” A few months earlier, the Truck Loggers’ Association had kicked a similar but opposing crusade to support log exports into high gear. “Many people continue to insist that exporting logs means we are exporting BC jobs,“ stated TLA Executive Director Dave Lewis in a February 2012 press release. “This is simply not the case. Log exports support jobs in the logging and transportation sectors. The last thing we should be doing,” insisted Lewis, “is sacrificing the jobs we already have by banning log exports.” It’s an acrimonious battle line between BC’s manufacturing sector and harvesting companies that goes back a long way. It’s not just an economic issue; it’s a highly emotional one in a province where trees and wood products have been the backbone of the economy for more than a century, and where protection of both our forests and our manufacturing jobs is dear to the heart of most British Columbians. Log exports were banned as far back as 1891, but have also always been a cash cow for those in the harvesting and transportation business; hence the introduction of exemptions less than 20 years later, in 1909. The war has raged back and forth ever since. When times are good in the manufacturing business here, the angst over exports naturally loses its intensity. When things are tough going, as they have been for the last few years, the fight hits the front pages on a regular basis. By the end of 2011, with record-breaking levels of log exports headlining the news, the battle had taken on a whole new level of intensity. In 2010, more logs were shipped to China alone from this province than in the preceding 20 years combined. By May 2011, the volume of log exports to that country had already exceeded 2010 totals. By the end of the year, they had exceeded those totals by a third again. In the meantime, manufactured wood product exports had dropped in value from $16.6 billion in 2000 to $7.6 billion in 2009. Over 50,000 timber-based jobs had vanished since 1991, a decline of 52 percent. For every job opening in the forestry sector in 2011, there were 34 unemployed workers lining up for it, and over the year, forestry employment dropped a further 2.3 percent from 2010 figures: another 1,660 people out of work in just twelve months. Were record export volumes responsible, or were they helping maintain what few jobs were left in the forestry sector? First, some background Bill Dumont is a registered professional forester and a consultant in forestry policy and economics based in Cobble Hill. In 2006, with export volumes on the rise and BC’s manufacturing sector in economic freefall, the provincial government commissioned Dumont and former deputy minister of forests Don Wright to undertake a review of log exports and their impact on the forestry industry. Those two analysts concluded that trying to correlate job losses with log exports simply doesn’t work. Increases in exports, they wrote, lead to increases in harvesting and export-related jobs but a decrease in processing positions. With constantly fluctuating numbers, added Dumont and Wright, “It isn’t possible to say anything definitive about the net effect.” Dan Schrier agrees with that assessment. Asked if it was possible to do an objective mathematical analysis of the data, Schrier, who is the manager of trade and business statistics for BC Statistics, said “no” immediately. “I suppose it would technically be possible,” he admitted after some thought, “but it would be enormously complicated. You’d have to make so many assumptions about so many variable aspects that it would be almost impossible to rely on the outcome.” But that doesn’t mean a link can be dismissed out-of-hand, especially when it comes to the coast. Here, for instance, are a few more facts and figures to toss into the mix, along with a little history to consider. According to BC Statistics, in 2011 log exports comprised only about ten percent of BC’s overall annual forestry revenues (pulp is the dominant export, followed by processed softwood products). For the coast, however, that ten percent figure is misleading. The term “log exports” can only mean coastal log exports. There is virtually no log export market for BC’s interior wood harvest, because of the high cost of transportation to export hubs. In that context, the figures look quite different: last year, while record numbers of unemployed forestry workers lined up to collect EI cheques, 31 percent of all trees harvested on BC’s coast were being exported in log form. The tension between would-be exporters and the manufacturing industry also intensified in early 2003. That’s when the Liberal government’s Forest Revitalization Act removed what was known as the “appurtenancy” requirement from provincial forestry tenures, a condition that had previously required tenure holders to use the trees in local sawmills. It was a huge blow to an industry that had already seen 15 medium to large sawmills close on the coast since 1990 (and another 18 in the interior). By 2003, there were 28 active sawmills in that category left on the coast, processing 2.3 billion board feet per year. By 2006, another five sawmills had closed. Three years later, only 19 medium to large coastal mills remained, processing 1.2 billion board feet annually. The estimated figures for 2011 are much the same. In the meantime, coastal log export volumes spiked immediately after the removal of the appurtenancy clause, increasing by 20 percent over 2002 volumes. There was a sharp drop in 2004, but that seems to have been an anomaly: the rate doubled again in 2005 and stayed at that level through 2006. It dropped again in 2007 following the burst of the US housing bubble, nonetheless remaining at higher levels than 2003. Since then, the volume has kept steadily climbing, while employment rates, as we already know, continue to decline. How log exports work...in theory A permit from the provincial government is required for the export of any trees harvested from provincial Crown lands. There are limits on how many logs harvested from provincial Crown lands can be exported, as well as on which species, and before a permit can be issued, the log must be harvested, graded, and ready for shipment. It must also first be offered for sale to BC buyers, to determine whether it is surplus to the needs of the domestic manufacturing sector. Any offer to purchase the log is reviewed by the Timber Export Advisory Committee, or TEAC, a panel of individuals from various sectors of the industry. TEAC’s job is to determine whether the offer is fair, based on the current price being paid for logs on the domestic market. An export permit will only be issued if no offers are received or TEAC rejects the offer as unfair, and declares the log surplus. Successful applicants for an export permit must pay the provincial government a fee in lieu of manufacture on the log’s domestic market value, depending on the species and where it is harvested. A Douglas fir harvested on Vancouver Island attracts a 20 percent fee, for example; for all species on the north coast, the fee is just five percent. Export limits are also set higher on the north coast, where, since the mid-1980s, it’s been permissible at times to export 100 percent of the harvest from some areas. In other words, government has essentially waived the fees and normal volume limits in locations where, thanks to the loss of local mill capacity, it’s too expensive for the harvesting companies to ship logs profitably to the few domestic mills that remain. If the log is leaving Canada, a federal export permit must also be obtained. The federal government also regulates all exports out of BC from private and federal lands. The surplus test is essentially the same, but no fee in lieu of manufacture is charged and there are no constraints on which species may be exported, although limits are placed on the total volume that can be applied for in any one permit. …and how they work in practice The fee in lieu of manufacture has proved to be little disincentive for harvesting companies that can earn close to double the domestic price in export premiums. For 2007, the last year for which specific figures are available, the province earned a paltry $1.3 million in fees from coastal exports. But revenues to the industry that year were $369 million. By 2011, revenues were $588 million. It’s unsurprising that in February 2012, Minister of Forests Steve Thompson admitted the provincial government was receiving an average of 1000 export permit applications every month. And there is no fee charged on logs exported from private and federal government lands. Given that 65 percent of exported logs came from private forest lands in 2011—even though they comprise only about five percent of BC’s forested lands—it’s a lost revenue opportunity and a regulatory issue that is begging to be addressed. The surplus test is also under fire. Cowichan Valley MLA Bill Routley, NDP critic on the forestry file, says something’s gone fundamentally wrong when BC mills are “crying out for wood” while record volumes of logs are being shipped offshore. In March, Teal Jones Group CFO Hanif Karmally told the media that the company could put another 100 to 115 people to work at its Surrey sawmill if it could get more logs. Routley says this is just one example of many he has heard: “Around two dozen offers are made by BC buyers every month to buy logs for which export permit applications have been made, but only three or four succeed. The rest are being categorized as surplus, despite the purchase offer, and exported regardless.” The same month, news also broke that Minister of Forests Steve Thomson had overruled a TEAC decision that logs should be sold to Teal-Jones, handing the exporter a permit instead. On further investigation, it was revealed that a total of 86 TEAC decisions originally made in favour of local purchasers had been overturned. TEAC had started making its decisions based on excluding the costs of shipping the logs to the buyer, a policy change that favours the competitiveness of domestic buyers over would-be exporters. When he learned of it, Thomson brought the new practice to a rapid end. By February, the government had ceased referring any applications to TEAC from the west coast of Vancouver Island, saying it expected the decisions would be overturned anyway. The industry’s argument “The global industry is ultra-price sensitive and ultra-competitive,” says Rick Jeffery, president and CEO of the Coast Forest Products Association, who also describes forestry markets as “brutal.” Jeffery insists: “It’s very simplistic to say that the export of logs is the export of jobs and that it’s easier to export logs than to sell them here, so that’s why companies do it, but neither of those things are true.” He says that BC’s log exports are simply a response to market demand. “Log exports have always been part of the mix in BC. On any given day companies look at the costs and the margin return they can get on a particular log, and that’s what determines whether it goes to a mill or to the docks. Not every log has a market in BC that the company can make a profitable return from. If that’s the case, it isn’t going to sell the log here. It might not even cut it.” Some forestry companies say that a ban on log exports would simply cause more mill closures and job losses, because it isn’t worthwhile to cut logs for the domestic market unless they can also cut higher value export logs at the same time—it can cost up to $78 to harvest a log that only sells for $50 in BC but up to $90 offshore. Without the export premium, they can’t afford to take what they claim is almost always a loss on domestic sales. Dumont thinks that’s an indisputable fact: “I have absolutely no doubt there would be no logging going on without log exports.” On the north coast, where the nearest mills are simply too far away to transport logs economically to them, companies like Coast Tsimshian Resources Ltd claim that they are utterly dependent on being able to export their harvest. In July, CEO Wayne Drury told the Vancouver Sun: “If we and others in the northwest couldn’t do it, none of us [up here] would be in business.” Bill Sauer of the Northwest Loggers Association added: “If log exports were banned today, we might as well close the doors and throw away the keys.” Coastland Wood Industries Ltd President Hans de Visser confronts the tough realities of the business from the other side of the table. He says his Nanaimo-based veneer manufacturing plant has gone through some very difficult times recently: “Especially with China on fire—we had great difficulty finding logs of a suitable quality because all the best logs were going offshore. It’s been a bloodbath for us for the last couple of years.” As a manufacturer, de Visser could be forgiven for having harsh views on the subject of log exports. But he says a reality check is required: “When times are tough, everyone starts running around looking for someone to blame and pointing fingers. But in North America, we only have about half the normal home construction going on. The long-term average is 1.5 million housing starts a year. We’re still only at 700,000 or so.” When there’s no building going on, says de Visser, no one wants wood products. “That’s just the way it is. So the companies start exporting logs to China instead. At least the companies are logging,” he adds. “I think things would look a lot worse for the coast,” he admits frankly, “if we didn’t have any log exports at all.” Taking the easy way out But is that really true, or is it just the easiest default option? It sounds reasonable: it’s certainly true that right now, exporting companies are keeping thousands of forestry workers employed. But it also begs this question: if there were more domestic manufacturing mills buying logs, wouldn’t that make it economical to harvest for the local market? You bet, says Ben Parfitt, a forestry analyst for the Canadian Centre for Policy Alternatives. “It strikes me that the more investment we get in manufacturing mills here in BC,” says Parfitt, “the more domestic demand there will be, and with increasing demand come higher prices. That’s to everyone’s advantage to see that happen, and soon. The longer we go without investment here, the more exports there will be. That’s what we really can’t afford.” In 2011, Parfitt undertook a detailed analysis of ways to boost manufacturing jobs in BC, picking up on a question that had been posed by UBC business management professor Rob Kozak: “Why is one of the world’s leading manufacturers of Douglas fir window frames, with about 1,500 employees, located in Manitoba?” BC, says Parfitt, continues to seek out new markets for its pulp, logs and low-end commodity products like rough-cut lumber. Parfitt says the better strategy would be to focus instead on diversifying BC’s product base into a much broader range of high quality secondary wood products—everything from specialized laminated materials to cabinets and mouldings—that are also in big demand in global markets, and which fetch considerably higher prices. Parfitt analyzed industry data and concluded that investment in the kind of infrastructure required for that level of production—along with ramped-up bio-energy production from wood waste, greater integration of infrastructure for improved efficiency, and reforestation management improvements to see older, higher- quality wood being harvested—would create as many as 2,630 additional manufacturing jobs and another 2,400 jobs in waste-wood recovery in the short term, an additional 5,200 seasonal silviculture jobs, and more than 10,000 jobs over the long term in higher-end value-added product manufacturing. An untaken opportunity These are compelling figures. But the big BC players have yet to invest a dime in new infrastructure of the kind Parfitt describes. “No-one has spent a cent on large mills in BC for 20 years,” agrees Dumont. That has also left the coast with virtually no mills capable of processing much of the second-growth wood that is now being exported. In a July editorial in the Vancouver Sun, Ancient Forest Alliance Executive Director Ken Wu quoted forestry analyst Peter Pearce, who in 2001 said that at as many as 14 new large mills would need to be built in BC over the next decade to cope with the changing pattern from old-growth to second-growth harvesting. Eleven years later, however, Teal-Jones’ Surrey mill is the only operation on the coast with that specific capability. Western Forest Products has done some upgrade work to two of its Vancouver Island sawmills, and says it plans to put another $200 million into further improvements to all of its mills and manufacturing plants over the next three years. But it is the exception. Instead, for the most part, says Parfitt, the industry—including Western Forest Products—has simply defaulted to the easy cash represented by log exports. “That represents a huge lost opportunity for a much greater return on our wood supply, and nothing’s being done to take it.” Wu says we need to learn from history. As with our fisheries, if we simply keep logging at the rate we are now, we can expect one day to see all of our old-growth forests vanish. “That’s why we need to retool the mills to be able to process high quality second-growth and develop high-end value-added manufacturing capability,” says Wu. “You don’t have to cut as much, but at the same time, you create more jobs in manufacturing. That, and protecting our remaining old growth forests, are the most important things to do right now.” But short-term profit goals are also trumping long term management planning to increase the inventory of older, higher-quality wood. Bowing to corporate pressure, the provincial government announced earlier this year that it is considering opening up protected areas of old-growth forests for logging activity. As Ken Wu succinctly puts it: “That’s like burning up parts of your house for firewood after you’ve used up all your other wood sources.” In the meantime, smaller and smaller trees are being taken off private lands and increasingly, from provincial Crown lands. With no mills capable of processing them, they are heading straight offshore. Opening up old-growth protected areas to logging is also completely counterintuitive to this statistic: nature-based commercial tourism that relies on forests provides an estimated 19,400 jobs in BC. That’s more than 40 percent of the total number of forestry jobs in the province in 2011. But if the government is aware of the threat it is posing to those jobs through this short-sighted strategy, there’s little sign of it. Can anything be done about all this? Export critics like Parfitt believe that more export disincentives are required and that a higher fee in lieu of manufacture, applied to both provincial Crown lands and federally-regulated private lands, would help rejuvenate local mill activity and provide government with much-needed revenue for investment. Rick Jeffery, on the other hand, believes the solution is to remove regulatory constraints, not add to them: “We’re over-regulated in BC, and we need to have a free market and competitive pricing to create a really healthy sector.” That, of course, won’t necessarily result in new mills, and Jeffery does agree there is an urgent need for infrastructure investment. With sufficient investment, acknowledges Jeffery, there are “huge” opportunities for BC mills to process and develop wood products that will justify paying domestic prices for logs that are competitive with export prices. “That’s the way the wind is blowing,” concurs veneer manufacturer Hans de Visser. “It just makes sense. I’m always bellyaching about having to compete against international buyers able to afford higher prices, but the reality is that sooner or later we are all going to have to compete with global prices. That’s the trend, whether we like it or not, so we’re just going to have to figure out how to do that.” De Visser thinks the government has to step up to the plate on the policy side. “They need to encourage the domestic manufacturing industry to spend the money, whether that’s through favourable taxes or subsidies—most other countries around the world do it, and BC would be remiss to turn a blind eye to that. That may smack of protectionism, but that’s just the reality.” Ben Parfitt says that the government is completely failing to provide regulatory drivers to ensure a viable domestic manufacturing industry across the board, especially with respect to logs taken from provincial Crown lands. “These are public resources and we should be able to dictate the terms on which they are used,” he argues. Parfitt advocates bringing log exports to an end through an escalating tax system that acts as a significant disincentive, and says government policies to encourage more manufacturing are essential: “We should insist on a minimum threshold of investment in local manufacturing, and if that isn’t met, then reallocate the resources to someone who will invest.” Last but not least, says Bill Dumont, on top of investments in the manufacturing sector, a gap he agrees needs to be addressed, there’s also a need for investment at ground level. “There’s a complete lack of government and industry interest in investing in the forest before the trees are cut,” says Dumont. “There are a lot of things we can do to manage better for value at the forest level as well as the manufacturing level, to increase prices and margins—fertilizing, pruning, thinning, genetic improvements.” Dumont says one of the issues facing workers in the manufacturing sector is increasingly sophisticated mechanization of production, reducing the need for labour. But the ground-level investment activities he is describing were all high employment activities in BC 30 years ago, and could be again. “Government hasn’t supported forestry work in the field since the 1970s, so we stopped. That was very short-sighted.” What is government doing? What little government has been doing has been counterproductive, says Dumont. “Governments have successively monkeyed with export policy over time, opening up markets when times are tough and when the going gets better again, closing them down. As things stand, no one is going to build new mills on the coast without certainty about where government policy is going to land on this issue.” Both the federal and the provincial government fund product development research, and in July $2.3 million was allotted to the Wood First! Program to promote use of BC value-added wood products. But that’s a drop in the bucket of the estimated $200 million plus required as just a starting point for essential infrastructure upgrades in BC. While the government’s Forest Sector Strategy speaks of “encouraging” investment, there appears to be no hard cash attached to that. In the meantime, as Dumont has pointed out, the government remains all over the map in its stance on log exports. It has publicly stated its preference that “all logs remain in BC to be manufactured into other products.” In an interview for this story, Minister Thomson repeated that is his ideal goal. But Thomson also admitted: “We recognize log exports are a critical component of the industry on Vancouver Island. There will always be log exports on the coast.” Thomson initiated a log export policy review in 2011. The report was expected this spring, but as of August, there was no committed date set for its release other than a vague “sometime this fall.” The behind-the-scenes scuttlebutt is that the draft report contains some nasty thorns that may need pruning out. Thomson would only say that “no decisions have yet been made on adjustments to the policy. The analysis of the impacts of potential adjustments is still a work in progress.” Whether the review will do anything to change the status quo in any significant way seems unlikely. NDP forestry critic Bill Routley is adamant some change is required. “I’m not talking about banning log exports,” he says. “There have always been exports. I’m talking about how we maximize the value-added opportunities here in BC first. The surplus test clearly isn’t working and the fee in lieu isn’t a sufficient disincentive because exports are growing.” Routley wants forest policy adjusted so that all sectors of the industry can benefit, but is light on specifics as to how that’s to be achieved, including the issue of stimulating investment in new infrastructure. “I do know we need to have the right policy tools, with incentives built in and strings attached to them, like requiring investment. I believe in a carrot-and- stick approach. We will increase the fee in lieu of manufacturing, but we have to get it right. We want to add jobs, not take them away.” Where does that leave things? With polls suggesting an NDP government will likely to be running the forestry file after May next year, it’s probable that Routley’s carrot-and-stick approach to log exports will win the day. That may not be soon enough to save the last remaining protected old-growth forest in the province, says Ken Wu: “It remains to be seen whether the BC Liberals want to leave behind a legacy as the despoilers of BC or not in the last few months of their term.” Wu is also worried about whether the NDP is really prepared to step up to the plate. “Is the war in the woods simply going to carry on under their tenure?” Unless a new government is prepared to put its money where its mouth is on infrastructure investment, it may simply find itself, like its predecessors, stuck in what is now a decades-old tug-of-war between the manufacturing sector and harvesting companies as they all struggle to stay afloat. One thing’s clear: it would be a rare individual who wouldn’t be in favour of seeing all of BC’s logs being used in a thriving manufacturing industry in BC. But unless and until something changes at a more fundamental level than policy tweaks and tax adjustments, we should expect to see newspaper headlines about job losses in the forestry sector and log-laden ships leaving our shores for some time to come. Katherine Palmer Gordon is an author and freelance writer based on Gabriola Island. She’s written five books with a sixth to be published by Harbour exploring the connections between culture and self through the stories of young aboriginal Canadians. Her history of land surveying in BC, Made to Measure, won the Haig-Brown prize at the 2007 BC Book Awards.
  14. September 2011 Will the city have what it takes to minimize loss of life and property damage when the Big One hits? Not if expensive, politically driven band-aid measures are the norm rather than comprehensive resilience planning focused on well-considered priorities. WHEN A CATASTROPHIC EARTHQUAKE struck Christchurch, New Zealand on February 22, 2011, thousands of buildings and homes were destroyed; 181 people died. Christchurch was almost completely unprepared for that level of devastation. The cost of rehabilitation is likely to be around $11 billion (CAD). Six months later, Christchurch’s central business district, where tattered high-rises still cling to their foundations and the rubble from collapsed buildings litters the streets, remains cordoned off from business owners and residents who ran for their lives that day, leaving everything behind. Repairs to the sewer system are incomplete, and thousands of people still have to use chemical toilets and communal Portaloos. Insurance companies are scrambling just to assess the claims pouring in, let alone pay them. Most people won’t see a penny for months, possibly years. Immediately following the quake, many roads were impassable. Grocery store shelves were empty, their ruined contents scattered in the aisles. It was very difficult to buy food, water, diapers, or gas—anything that people normally stop for on the way home from work. Few people were able to go to work anyway, as hundreds of businesses lay in ruins. Many will never return. Not every earthquake is created equal Could Victoria find itself in the same situation? What happened to Christchurch is certainly a scenario that we could face if a major earthquake struck the city tomorrow. But before anyone panics, it’s important to understand what that actually means. There are three types of earthquake that might occur in the vicinity of Victoria. Megathrust or subduction quakes, triggered when two tectonic plates converge and one starts to move over the top of the other, are the most powerful. Subcrustal earthquakes, occurring within the subducting or lower plate, typically occur 50-70 kilometres below the surface. The third kind are shallow crustal quakes, which have the potential to cause the most damage. The last massive subduction earthquake hereabouts took place off Vancouver Island in 1700. In 1946, a large, shallow earthquake, Richter magnitude 7.3 in size, struck northwest of Courtenay. Southern Vancouver Island escaped damage, however, because of its distance from the epicentre. The greatest earthquake in Canadian recorded history was a magnitude 8.1 shake near Haida Gwaii in 1949. Cows were knocked off their feet and some chimneys toppled, but again, the damage was fairly minor. In recent times, the nearest Victoria has come to a major earthquake was the Nisqually shake that struck just north of Olympia, Washington in February 2001. No-one was killed, but many older brick-and-mortar buildings near the epicentre, including schools, suffered significant damage. The cost to Seattle of structural repairs surpassed $2 billion US. The aftershocks of Nisqually Not every Victoria resident felt the Seattle quake, but no-one has since escaped the much greater impact it had on their tax bills. The provincial government, fearful of negative political backlash if anything should happen to vulnerable school buildings in British Columbia, committed $1.5 billion in 2005 to an upgrade program. A report that a $250 million seismic upgrade to the Legislature is required has been quietly shelved, at least until the school upgrades are complete, but other one-off measures triggered by the spectre of a potential Nisqually-type earthquake have included a $3.1 million seismic upgrade of Victoria’s City Hall and, of course, the impending multimillion-dollar replacement of the Johnson Street Bridge, final price tag yet to be determined, but likely more than the $77 million budgeted. Planning and priorities Can measures like these be justified based on Victoria’s seismic risks? And where do they fit among the overall priorities for building a more earthquake-resilient region? Why has the Johnson Street Bridge trumped hospital upgrades, say, or shoring up the city’s ancient and vulnerable water and sewer infrastructure, in the overall priority list? It may be because Victoria has no priority list for seismic upgrades. The City has the opportunity to apply the accumulated experience of Christchurch, Japan and other recently devastated locales to a cost-effective and comprehensive seismic resilience plan that would significantly reduce the kinds of impacts those places have suffered, and that sets out well-considered, defendable priorities. But there’s little evidence it’s doing that. Both the provincial government and the City of Victoria, like other municipalities in the Capital Regional District, do have extensive emergency management programs in place focusing on post-disaster coordination and recovery efforts. That’s vital, of course. But dropping and rolling exercises and flashlights in earthquake kits won’t help much if buildings are collapsing before people can escape from them, the water is cut off, and the local food supply runs out after three days, as is expected if transportation links to the mainland are unserviceable. That’s the reality that every municipality in the CRD could be facing, emergency plan or not. What about doing more to maximize the region’s resilience to an earthquake and to reduce its impact before it strikes? When it comes to the City of Victoria, detailed geological seismic risk information has been available for a number of years. In 2006, a thorough hazard risk assessment was also undertaken for the City, identifying earthquakes as one of the municipality’s five highest-risk exposures. But it appears there is still no plan in place for how best to allocate limited municipal government resources in dealing with the earthquake hazard, or for the adoption of robust policy initiatives aimed at reducing the risks. Shouldn’t the City of Victoria, for example, be prioritizing upgrades to its water and sewer infrastructure, identified in the draft official community plan (OCP) that is currently under review as needing imminent replacement at significant capital cost? The Sooke Dam, from which Victoria draws its water, has been seismically improved. But shouldn’t the city be trying to establish an earthquake-proof source of drinking water closer to downtown, as Vancouver has done? What about ramping up support for local food production? Prudence would also suggest adopting the highest seismic standards in local building codes, as Vancouver has also done, instead of the minimum levels. The objective of seismic standards in building codes is, after all, to ensure public safety in the event of an earthquake. Shouldn’t every building owner in Victoria be compelled to implement seismic upgrades, not merely be offered tax incentives to do it as currently contemplated in the draft OCP? There is nothing to indicate that steps like these are on the radar. But then, the City of Victoria is also keeping its cards very close to its chest. Focus Magazine has requested, through provisions of the Freedom of Information and Protection of Privacy Act, the two seismic risk assessments the City completed in 2010 on Fire Station #1 and the Crystal Pool, and a third, recently completed study for other City-owned buildings. The City has refused to release these completed reports. What is there to hide? What the City of Victoria says about the Big One It is difficult to ascertain whether local authorities have a realistic grip on the likelihood of an earthquake affecting Victoria and its potential impacts. In public documents, City staff state the probability of a major earthquake in the region in highly simplistic terms that are virtually meaningless in the context in which they are used. The current draft OCP states, for example: “There is a 32 percent likelihood of a damaging earthquake event in the city before 2054.” In the publicity that the City generated to justify the expense of replacing the Johnson Street Bridge, it similarly stated that “recent studies have indicated that there is a 30-35 percent probability of a major earthquake occurring in Victoria in the next 50 years,” described as being similar to an earthquake “in the range of Magnitude 7.0-7.9.” But the material doesn’t go on to explain how these estimates were derived, or what they mean. In fact, the probability models from which the City has derived its figures are based on intensity, not magnitude (more on this below). Earthquake probability estimates are also not precise calculations. Dr Garry Rogers, a senior research scientist with the Geological Survey of Canada (GSC) and an adjunct professor in earth sciences at the University of Victoria, says that such estimates should be given considerable leeway. “It would be better to use a figure like 30 percent, or about one chance in three of the predicted event occurring over 50 years—something that doesn’t suggest that the number is known to the precision of 32 percent, which it simply isn’t.” For the average citizen of Victoria, it’s difficult to place much confidence in the figures quoted by the City, let alone understand what the hazard and risks really are. An earthquake measurement primer Magnitude is a common way to convey size, but is the least useful measurement of actual risk to planners and engineers. It is also the least meaningful term to use to convey to citizens what will happen in different scenarios. Intensity of a shake, and ground level of shaking, says Rogers, are more appropriate terms to use. Magnitude, intensity and level of shaking aren’t interchangeable terms. The Richter scale measures magnitude, which is the amount of energy released at the epicentre of a quake. “Earthquakes only have one magnitude,” explains Rogers. “It doesn’t change depending on your distance away from the epicentre. Think of a 100-watt light bulb, for example. It’s always 100 watts, whether it’s in the lamp next to you or in the room next door. A magnitude 7 earthquake is always a magnitude 7, wherever it is and wherever you are in relation to it.” An earthquake has to have a magnitude of 7 or greater to be considered “major.” Only a tiny portion of shakes fall into that category. The Modified Mercalli scale measures intensity by describing the impact of a quake at a specific location. Unlike magnitude, intensity does change depending on proximity to the epicentre, much like the perceived brightness from a light bulb depends on how far away it is. Many other factors also influence the measure of intensity, including the depth of the quake, and the nature of the geology and soil of a particular location. Poor, swampy soil and infill are prime culprits in increasing the impact or felt intensity of a quake; rock is much more stable. MM1 on the Mercalli scale is essentially zero impact. MM5 would be felt by most people, but would not have any significant impact. MM7 will see the onset of damage to some weak structures. MM8 is the point where things become much more serious, with more widespread structural damage occurring. At MM12, it’s game over. The Mercalli scale is the oldest seismic measurement tool in use. It is still helpful as a descriptor, says Rogers, but since seismographs were invented that could measure shaking in terms of gravity acceleration percentages, it is the latter that is used by seismologists and engineers for determining with greatest precision the potential hazard, at specific sites, from various levels of shaking that might occur at different levels of intensity at those sites. The three different measurements all have their uses in different contexts, says Rogers. “But it’s important not to mix them up.” Using simplistic one-size-fits-all magnitude figures in planning and public communications isn’t advisable, he says: “That’s dangerous. It’s not defensible and doesn’t help people understand the problem.” The real probability of a major earthquake in Victoria Significant historical and geological data are available in BC to seismologists, who can use hazard models based on that data to develop the probability of the three different kinds of earthquakes we have here occurring over different periods of time, at different levels of intensity, and within the vicinity of general areas such as south-western coastal BC. The higher the potential intensity level plugged into the model, the lower the probability it will occur. According to the Geological Survey of Canada, the nearest subduction earthquake source zone does not extend beneath Vancouver Island. A subduction quake is the least likely to occur within our lifetimes, with an expected probability of anywhere between 10-15 percent over the next 50 years of a shake impacting Victoria at an intensity level of MM7 or more. The GSC estimates that the likelihood of a level of shaking from a greater crustal or sub-crustal earthquake that will cause damage to weak structures (MM7) over the same time period at about 20 percent. In practical terms, as Rogers has already pointed out, that means a more or less one in three chance in the next five decades, give or take a couple of percentage points either way, of an earthquake that could cause some damage to weak structures somewhere in the vicinity of Victoria. But that doesn’t mean there’s a one in three chance of that earthquake actually occurring in Victoria. Trying to provide specific predictions as to where potential earthquakes will occur, or even what intensity they will be, is risky business. Maiclaire Bolton, a Canadian seismologist working with California-based Risk Management Solutions Inc, is a graduate of UVic’s Earth and Ocean Sciences program and the former head of the seismic program at Emergency Management BC. Bolton says: “We can state the probability of an earthquake occurring, and even its size, with a fairly high degree of accuracy, but stating it will actually occur in Victoria is another matter. That’s simply impossible.” What does all this mean in terms of assessing seismic risk? “It’s nonsense,” Rogers states bluntly, “to use magnitude when talking about risk, or what a certain piece of infrastructure can handle. A 6.5 magnitude shallow earthquake ten kilometres away can do as much or more damage locally as a 9.0 subduction earthquake 100 kilometres away,” he continues. “Take the Blue Bridge in Victoria, for example. It’s what level of shaking it will be able to withstand in an earthquake that matters, regardless of whether it is a small-magnitude quake close by or a larger one further away.” The most useful way to undertake risk assessment is to first understand the level of shaking that will cause the collapse of a structure or similar devastation—the hazard, as Rogers describes it—then base decisions on priorities for remediation on the probability of that level of shaking occurring. “The level of shaking is usually measured as a percentage of the acceleration of gravity caused by ground movement,” explains Rogers. That sounds very technical, but in real terms people can start to feel earthquake shaking at about one-tenth of one percent of gravity. “Structures in the Nisqually quake experienced a maximum level of shaking of about 20 percent of gravity, with corresponding damage. In Christchurch, the shaking was so bad it exceeded the acceleration of gravity. The level of shaking, measured this way, is what engineers and planners should be using in making decisions on risk mitigation. It’s what’s used in the building codes.” Is any seismic resilience planning happening in Victoria? Southwestern BC is one of the most seismically active regions in the country, and becoming more earthquake resilient is not only appropriate but essential for public safety. But current initiatives in that direction appear haphazard at best. Seismic risk mitigation goals in the City of Victoria’s draft OCP are vaguely worded and high-level, lacking any tough measures behind them. Budget priorities are unclear. By comparison, the City’s 2006 hazard and vulnerability assessment, commissioned on behalf of the Victoria Emergency Management Agency with the goal of using the information as the basis for allocation of resources for priority risk mitigation, is clear about the need for action and contains 18 recommendations for mitigation initiatives. Some of those are questionable, however. The VEMA report recommends upgrading or replacing the Johnson Street Bridge, for example, despite also pointing out that the Point Ellice Bridge, a short distance away, has already been seismically upgraded and that water, gas and telecommunications lines coupled to that bridge are expected to be earthquake-resilient. Other recommendations have made it into the draft OCP, such as encouraging property owners to upgrade through incentive programs. The latter document also identifies the need to focus seismic mitigation measures on areas of vulnerability identified on local hazard maps. The draft OCP even forecasts the need for robust local sources of food, energy and materials to be on hand in the event of an emergency. Whether other recommendations arising from the VEMA report have been implemented, including the creation of a building inventory and map of high-risk structures and the conducting of a regional soil study, is difficult to ascertain. VEMA Director Rob Johns did not return phone calls requesting an interview, and the City, as mentioned above, has refused to release any of its completed risk assessments. An urban design discussion paper produced by the City in May 2010 outlined Victoria’s strengths and weaknesses in anticipation of updating the OCP. If the discussion paper takes into account the hazard assessment, it isn’t obvious. There is only one reference to seismic risk management in the 67-page document, and that is a note that the Bay Street Armouries building should be seismically upgraded. In the meantime, the OCP does not identify specific priorities, and does not incorporate an overall comprehensive seismic risk management plan. It does not identify why the Johnson Street Bridge was deemed a priority for upgrade over other critical infrastructures. Nor does it cross-reference seismic risk management in its development and land management sections—or in its infrastructure section, or any other part of the document. It also makes no reference to what seismic standards the City plans to subscribe, either in terms of retrofits or new development. Since 1964, building codes have contained minimum seismic standards, and the national code was updated as recently as 2010. Those standards are all about public safety: it’s impossible to legislate into existence a quake-proof building, but it is possible to build in safety mechanisms aimed at ensuring people can get out of the structures in one piece, without the structure collapsing on them. The provincial building code has been adapted from the national code. While it contains some mandatory seismic standards, they do not apply in all cases. Maiclaire Bolton identifies a significant problem in the code for Victoria in particular, saying that many smaller multi-family apartment buildings (three storeys or less in height and less than 600 square metres) are also exempt from some of the code’s seismic standards. “All you have to do is walk up and down [lower] Cook Street, and that applies to almost every apartment building,” observes Bolton. “They’ve been built to that precise dimension to beat seismic code provisions. Many of them also have open parking underneath. Those buildings are very high vulnerability.” That’s disturbing, especially after reviewing Victoria’s hazard map: the lower part of Cook Street is coloured an uncompromising red due to soil issues. Municipalities can choose to adopt higher standards than the code, and Vancouver has done so. Victoria has not followed that path to-date, preferring to encourage building owners to upgrade rather than force them to do so. Nor does it have in place any hard-nosed restrictions on expanding development on vulnerable soil—which, according to the hazard map, is what a great deal of downtown Victoria is built upon (have a look at Map 14 in the draft OCP, for example). Credible resilience assessments require an analysis of not only the soundness of structures on a landscape, but the ground on which they are built. Rock is good; sand, mud and peat are all prone to liquefaction. In a paper entitled Earthquakes Don’t Kill People, Buildings Do, Dr Tark Hamilton of Camosun College’s geosciences department notes that the most vulnerable building sites are on slopes with thick, unconsolidated sediments. He cites Beacon Hill Park, Dallas Road and—again—Cook Street Village as being high-risk in this regard. Recalling that the intersection of Vancouver and View Streets is built on what was a peat bog at the time of settlement, he notes that as the intersection became subject to heavier and heavier traffic, the peat in the centre once bulged as high as 1.3 metres higher than the curb. “Think of sitting on a water bed and watching it bulge up beside you,” he says. “When hydrous, unconsolidated sediments are subjected to long period earthquake waves, they move in standing waves that can have amplitude of a metre or more. Pity anything built on this as bulges move around and horizontal and vertical do not keep constant orientation. It is hard to keep buildings standing as they act like the Leaning Tower of Piza.” Victoria is continuing to build, he says sombrely, in harm’s way. Gerry Buydens, a structural engineer and former manager of the provincial government’s seismic mitigation program, was involved in the early stages of BC’s seismic assessment of schools. “Our thinking back then was that if we found a school wasn’t built on good soil, it was just as well to knock it down, because even if you refurbished it, it was still an old school on bad ground,” says Buydens. “If there’s an earthquake, the building will slump and fall.” Upgrading old buildings constructed on poor, swampy soil—the Legislature, say, and much of the rest of downtown—is tough, and costly. “I don’t think it’s really worth it.” In addition, says Bolton, governments really need to think more about comprehensive planning instead of knee-jerk reactionary initiatives to individual projects. “You’ve got to step away from one bridge, for example, and move to the big picture. You have to think about moving key assets away from the high risk areas, and prioritizing essential services instead.” That’s exactly what the provincial government has done, relocating its emergency planning office to a safer location at Keating Cross Road. The City has less choice in that regard when it comes to City Hall. All the same, there’s little question that it will be vitally important for there to be a secure headquarters for civic management in an emergency. Victoria’s hazard maps indicate that there are areas within municipal boundaries that are much safer to locate core services and protect them than the downtown core. The location of City Hall itself is on a blurry moderate-to-high-risk section of the map. But whether it really is sitting on poor ground or not, and whether the City has simply thrown good money after bad in upgrading instead of moving locations, we simply don’t know, and won’t until the City’s risk assessment is released publicly. Vancouver engineer Leon Bell, who has undertaken numerous seismic assessments in Victoria, adds that about 90 percent of the damage caused by earthquakes in North America is to non-structural systems within buildings—electrical wiring and plumbing, for example—not the buildings themselves. “Only a small percentage of high-risk buildings actually fail,” observes Bell. “Conversely, low-risk buildings with no seismic mitigation of the non-structural systems can and do suffer significant damage. This is a very serious economic issue.” But again, there is nothing to suggest that the City understands that statistic, either. Priority-setting and the fear factor Dr Kenneth Elwood, an associate professor in UBC’s civil engineering school, is one of 26 researchers with the Canadian Seismic Risk Network, a group of academics working on lower-cost alternatives to dealing with seismic mitigation. In April this year, Elwood told National Post reporter Tristin Hopper that mitigation is simply too expensive “to jump at renovating every building. If you look at the probability of dying in an earthquake versus all the other things you could die from, it makes you stop and think where you should be spending your resources.” The CSRN has numerous ideas for cost-effective measures to shore up buildings that could cut costs by up to 50 percent. Those include state-of-the-art, fibre-reinforced plastic “wallpaper,” ten times stronger than steel, that can be used to wrap quake-susceptible buildings. CSRN’s Perry Adebar pointed out: “By being clever—not just throwing money at it—one can do repairs that will make a significant difference without spending a fortune. More thinking, less bricks and mortar.” In a similar vein, Tark Hamilton says: “The goal is to educate people about what they can do to prepare, reduce risk, improve public procedures, and not to scare them or needlessly destroy real estate value, when ultimately earthquakes are unpredictable.” But the fear factor is an effective strategy when governments want to sell a project: witness the Johnson Street Bridge. Fear also drove the very expensive provincial school upgrade program—an easy sell to scared parents. No-one wants to see children die in a collapsed building, says Gerry Buydens, but at the same time, it doesn’t make a lot of sense to be spending so much on buildings that are unoccupied three-quarters of the time. “What about the other places where kids spend all their time—like downtown malls and their own homes?” Buydens and Bolton also point out that an immediate and relatively cost-effective way to improve public safety would be to encourage people and businesses to anchor furniture to walls. Buydens points out that there could be as much risk of a child being hurt by a loose vending machine tumbling down a set of stairs as being hit by falling bricks. In Christchurch, one infant died when a heavy television set fell from its stand and landed on top of him. In Japan, video footage showed fully-loaded filing cabinets falling on workers with nothing to protect them. It’s a cheap, straightforward public education program that could begin tomorrow, with a real likelihood of saving lives. A once in a lifetime chance The plans to rebuild Christchurch are expected to take at least 15 years to be implemented, given limited resources. There is much discussion in that city about how to avoid repeating the mistakes of the past—moving key services away from the vulnerable downtown core, for example, preventing further dubious development in unsafe zones, and making rational choices about priorities: the right way to rebuild the city in the best possible way, keeping in mind that another quake could hit at any time, and understanding in very real terms what that means in practice. It would be a very good discussion for every municipality in the CRD to have. For Victoria, a good start would be to publicly release the three seismic risk assessments that have been completed before November’s municipal election, so that citizens have some time to absorb their contents and question candidates on their understanding of the risks and their proposed strategies for dealing with them. But whether Victoria’s civic leaders are up to that discussion, before they are forced to confront it, remains to be seen. Expat Kiwi Katherine Gordon arrived in New Zealand for a family visit seven hours before the February 22 earthquake struck in Christchurch, and was able to witness the immediate aftermath firsthand. Several months later, she continues to observe from a distance the ongoing pain of a city almost completely unprepared for what hit it that day.
  15. December 2010 British Columbia’s 32 indigenous languages were almost completely obliterated during the infamous reign of the residential schools. In 2010, they remain close to extinction. In a province where English predominates, does restoring them to active use make any sense? Overwhelming evidence suggests that the answer is yes—not only for the First Nations people from whom they were stolen, but for everyone. “ALL OUR SOCIAL PROBLEMS STEM FROM the disconnection of our young people to our culture because they don’t know our language,” says Renée Sampson, tears sparkling in her eyes. “Without that sense of cultural identity, they just don’t know who they are.” “Language is our birthright,” adds the 27-year-old SENCOTEN language apprentice and teacher from Tsartlip, north of Brentwood Bay. “But it was deliberately taken away from us by the residential schools. People should know that. That’s why our young people don’t know the language and it’s in such danger. We have a right to get it back,” she says, her voice shaking with emotion. “We deserve to be who we are.” On April 30 the Report on the Status of BC First Nations Languages 2010 was published by First Peoples’ Heritage, Language and Culture Council (FPHLCC). Subsequent newspaper reports rang alarm bells over the fact that BC’s aboriginal languages are almost extinct. Language workers pleaded for much-needed financial support to save them, but expressions of support were few and far between. Instead, the local newspaper article attracted overwhelmingly negative public commentary—some of it so openly racist that the online version has since been removed from the newspaper’s archive. The gist of the comments was that the death of aboriginal languages doesn’t matter, that tax dollars should not be “wasted” on them, and that “really, they should just get over it.” Five months later, the chill of those sentiments is still palpable in the SENCOTEN language room at the WSANEC (Saanich) Adult Education Centre at Tsartlip, where I am sitting with Sampson and a group of other language apprentices and teachers. Sunlight is streaming through the windows over the colourful posters on the walls, and cheerful preschoolers chattering in SENCOTEN can be heard from next door. But a sombre mood has fallen over the room as the group discusses why First Nations people aren’t about to “get over” wanting to prevent their languages from dying—and why they not only need but deserve support in their efforts. PENÁC (David Underwood) is a fourth year arts student at the University of Victoria. “You could say that our language takes care of our people,” he says. “Our words tell us how to behave through the values associated with them. That’s why it isn’t easy to translate into English—those values get lost. That’s why we need to know it.” SELILIYE (Belinda Claxton), 58, PENÁC’s aunt, nods in agreement. “SENCOTEN is not just a language, it’s a philosophy,” she explains. “So speaking the language is a way of being. It gives back to the young people self-confidence in how they behave and a strong sense of who they are.” Kendra Underwood, 26, works for the WSANEC School Board as an administrator. “I don’t think the people [on the newspaper’s website] who made those comments are typical, fortunately,” she says. “But I also think that most people just don’t get how important our language is in our lives. We deserve to have our language be healthy and whole. We need help for that to happen, because we don’t have the money or resources to do it by ourselves and if we don’t do it now, it will be too late. And it comes down to this,” she adds. “We didn’t let it go. It was taken from us!” Underwood exclaims passionately. “Do people understand that?” Indeed, if these articulate, bright, hardworking men and women are anything to go by, it is more than time we understood that First Nations languages do matter—and why paying for language revitalization not only makes sense, but is money well spent. A state of emergency Here’s the problem: the five percent of First Nations people in the province who remain fluent in BC’s 32 indigenous languages are mostly over 65. That tiny pool is dwindling rapidly. Groups like the WSANEC School Board are working hard to document their languages, and intense efforts are being made by First Nations-operated schools to incorporate language lessons into curricula. But in most cases all they can manage, with inadequate budgets and limited numbers of speakers, is an hour or two a week. Dr Lorna Williams, chair of the First Peoples’ Heritage, Language and Culture Council (FPHLCC), based at Tsartlip, is of Lil’wat heritage. Williams also holds the Canada Research Chair in Indigenous Knowledge and Learning at the University of Victoria. Williams admits, “A lot more work has to be done to protect BC’s languages before it’s too late.” But federal government funding remains woefully inadequate at only $5 million annually split equally between all the provinces and territories, regardless of the number of resident languages. BC has been more generous, contributing between $3.5 and $4.5 million annually to the provincial effort through various agencies, including FPHLCC. But that sum covers all aspects of arts, heritage and culture, not just language, and it is nowhere near enough. FPHLCC estimates that documenting all of BC’s indigenous languages will cost at least $20 million. In the absence of that kind of money, it is difficult to make significant progress. Lorna Williams remarks: “Anyone’s who ever been on a reserve knows that the government dollars provided go nowhere near covering everything that is needed—housing, elder care, education, and so on. People in the communities have very little money to work on their languages. It’s amazing what they achieve despite that.” “How much did the government spend on residential schools to beat the language out of us?” ponders one of the language apprentices. “It would be nice if the government would return what they spent on trying to assimilate us to revive what was taken away.” That kind of gesture, says Tracey Herbert, executive director of FPHLCC, would demonstrate a genuine reconciliation effort by governments: “A strong investment in language and culture would make a huge difference in closing the gaps between non-First Nations and First Nations people.” Brand-new Minister of Aboriginal Relations and Reconciliation Barry Penner is acutely conscious of that point despite his short tenure, noting: “Preserving the languages might also help us all communicate with each other better.” But Penner is hamstrung by the usual suspect: grim-faced finance ministry officials demanding proof of the cost-benefit analysis of throwing money at a cultural issue like language. “All the same,” promises Penner, “I’m willing to have that conversation with them. These languages are part of every British Columbian’s history, after all.” What’s the big deal, anyway? The story of the abuses that took place at residential schools is now well-known. Less well-known, explains Tracey Herbert, is the fact that the main goal of the schools was to exterminate aboriginal languages by interrupting their transmission from generation to generation—and in the process of doing so, stamp out cultural world views that were in conflict with those of the colonizers. It was an effective strategy, according to Andrea Bear Nicholas, chair of Native Studies at Fredericton’s St Thomas University: “It took only two or three generations before people stopped using their language.” Loss of language was further exacerbated when child welfare services were put in the hands of provincial governments in the 1960s. Under what is now infamously known as the “Sixties Scoop,” aboriginal children were taken in droves (no one knows the exact numbers) from their families and placed into non-aboriginal foster homes far from home. More than half of them were sent to the United States and Europe, never to return. When SELILIYE went to public school in the 1960s, she wasn’t allowed to speak SENCOTEN. “It was a nightmare for me,” she recalls. “We were taught Latin instead. I had no idea what any of it meant. I would get called a dumb Indian. I dreaded going.” Eventually, she simply stopped. “There was no point. I learned nothing at all.” SELILIYE, along with all the other children deprived of their languages, was the victim of a universally accepted truth: remove the language from the child, and the emotional, cultural and academic costs are enormous. They include disproportionately high school dropout rates, unemployment, addictions, crime, and suicide rates—as well as the consequential burden on medical, welfare and correctional systems. A grim relationship In 2007, UVic psychology associate professor Christopher Lalonde co-authored a report starkly entitled: “Aboriginal Language Knowledge and Youth Suicide.” The report described known socio-economic factors contributing to youth suicide rates in aboriginal communities, such as poverty, and then overlaid an additional factor: absence of language. Lalonde and his colleagues researched 150 communities in British Columbia, and discovered that language had more predictive power in anticipating suicide rates than any previously-known indicator. Even more striking: “Rates dropped to zero in communities in which at least half the members reported a conversational knowledge of their language.” By contrast, where there was little or no connection to language, the suicide rate was typically six times higher than the national average. “Loss of language is also the canary in the coalmine of cultural distress [generally],” concluded the report’s authors. “The association between cultural collapse and the rise of public health problems is so uniform and so exceptionless as to be beyond serious doubt.” Giving language back to kids: the good news At Thanksgiving this year, Renée Sampson watched her 16-year-old niece lead her cousins in performing a SENCOTEN drum song. “I was watching her,” recalls Sampson, “and thinking, here are these teenagers—they are at the point where they could be out drinking, dropping out of school, getting pregnant—and they’re not! They’ve embraced the language instead, and they’re proud and they’re healthy.” Sampson’s nieces, unsurprisingly, are excelling in school. It is now well established that children versed in their mother-tongue language as well as English benefit from positive brain development and do well in all areas of education. Tracey Herbert notes the success of Mohawk and Cree immersion schools founded in Ontario in the mid-1980s: “Their kids have higher high school graduation rates than national averages, and some of the highest rates of follow-through into post-secondary education of any First Nations in Canada.” Bear Nicholas applauds Papua New Guinea, which has provided mother-tongue education in indigenous languages since 1993. “The results are striking. Children become literate more quickly and learn English faster than children who went through the old unilingual system, and score higher in all subjects. The drop-out rate has also decreased.” The same results are also emerging closer to home. The N’kmaplqs i Snma’mayat’tn klSqilxwet (Okanagan Indian Band Cultural Immersion School) is the region’s first school with Okanagan language and knowledge at its foundation. Dr Bill Cohen, a band councillor and former associate professor of Indigenous Studies at Okanagan University College, helped establish the K-7 school, now in its fifth year. “The community has two fundamental goals it wants to achieve with the school,” says Cohen. “They want the kids to be fluent in their language—to speak, think and dream in it. Equally importantly, they want the children to be successful in the provincial school curriculum and in gaining world knowledge. We’re well on the way to meeting both those goals,” he says with satisfaction. Cohen says that most of the children going through the program shine when they enter high school, getting onto honour rolls, principal’s lists, and school sports teams. “There’s a real difference in these kids,” he observes. “They’re more confident in public. They know who they are. They are healthy, happy young people who are succeeding in the public school system with ease.” Kathy Michel, cofounder of the Chief Atahm immersion school in Chase, has had the same experience: “When my children entered the public school system at Grade 11, they opened up their science book and said, ‘Oh, this is easy stuff. We were taught this way back in Grade 5’.” Sl,OLTENOT (Madeline Bartleman), 26, is another WSANEC language apprentice. A confident, articulate mother of four studying for her B.Ed at UVic, Sl,OLTENOT is living proof of the benefits of having grown up learning her language at the LÁU,WELNEW Tribal School at Tsartlip. “When I go out in the world,” she says simply, “I know exactly who I am and where I come from, and I’m proud.” Her children are now learning SENCOTEN at the same school. “The teachers say they are very fast learners and doing really well,” she says proudly. Mike Willie, 33, is the Cultural Preservation and Revitalization Coordinator at the Gwa’sala-‘Nakwaxda’xw K-7 School in Port Hardy. Originally from Kingcome Inlet, Willie experienced both sides of the language coin growing up. “Because Kingcome Inlet is so isolated, we were able to retain our language and customs, even when they were banned by the government,” says Willie. “I grew up hearing my language and singing the songs. It was wonderful.” That all changed when it was time for high school, however: after Grade 7, Kingcome Inlet families have to send their children away to complete high school. “I was sent to Victoria,” says Willie. “I really struggled—it was a huge culture shock.” Like SELILIYE, Willie wasn’t taught about his own history: “I learnt all about the Romans and the Vikings, but not about what happened right here in Canada to my people.” What saved Willie was the strong sense of identity that was ingrained in him from his earliest childhood. “I kept up my singing, even though I was far from home.” Indeed, the remarkable teenager was so hungry to stay grounded in his culture, he skipped school regularly to spend time in the BC government archives, transcribing tapes of his language. “The archivist thought I was researching for my degree in University, so he didn’t question me being there!” chuckles Willie. More soberly, he reflects: “Having been taught in my language as a young child totally helped me with my self-confidence and getting through school and university. That’s true of many kids from Kingcome—there is a really high success rate in post-secondary education and I attribute it directly to being grounded in the language.” Take that away, and the results speak for themselves. “After all,” concludes Willie, “if you don’t know who you are, you’re just roaming this world, lost. You’re not grounded anywhere.” The case for support The moral case isn’t difficult to make. We took the language away; shouldn’t we give it back? Dr Peter Heap is a retired government official now on the Board of the First Peoples’ Cultural Foundation, which raises funds to support FPHLCC and other language revitalization organizations. “Not supporting revitalization of languages, in one sense, is actually continuing to hammer nails in their coffin—to keep contributing to the oppression that First Nations have suffered for so long,” says Heap. “The impact of all that pain and suffering remains abundantly clear and we owe it to them to help stop that.” Environmental scientists have also made a strong case for language preservation, arguing that with the extinction of any indigenous language a wealth of knowledge about animals, plants, mathematics, navigation and medicine is also lost. One First Nations language, for example, has two different names for a salmon which non-aboriginal fisheries scientists insisted for decades was just one species—until DNA testing finally proved them wrong. Even if you don’t subscribe to such arguments, consider this business case, put forward by Drs Heap and Bear Nicholas. Heap, who lives in Victoria, read the online complaints about “misspent” tax dollars last May. He dismisses them summarily: “It’s a brutal assessment, but if you really want to look at it that way, then consider it a case of ‘pay me now or pay me later.’ The evidence is blindingly strong that a healthy language contributes to a healthy community. An unhealthy one puts a disproportionate burden on the social welfare system. Ultimately, the taxpayer is going to pick up a much bigger tab for that.” Bear Nicholas is equally blunt: “Providing mother-tongue education for First Nations children would avoid the expense involved in addressing high dropout rates, including social and financial costs associated with welfare, addictions, suicide, incarceration and poor health.” She cites this compelling example: the cost of a private tutor in a mother-tongue language for nine years is significantly less than keeping someone in prison for just one year. The cultural and emotional saving is immeasurable. Efforts at the front lines There is good news, and it lies in the work being done by people like Bill Cohen and Kathy Michel, Saanich language guru STOLCEL (John Elliott), FPHLCC and UVic. The latter institution is supporting young teachers like Sampson and Williams by providing SENCOTEN teaching certification programs that are compatible with provincial school standards. The LÁU,WELNEW Tribal School, under STOLCEL’s direction, supports 185 K-9 students from the four Saanich First Nations communities with an extensive language curriculum. Pilot pre-school “language nest” immersion programs around the province have proved highly successful. FPHLCC also administers a highly sophisticated web-based language archiving program called FirstVoices, in wide use by First Nations across BC. The program was created ten years ago by STOLCEL, working with Peter Brand, then a teacher at the LÁU,WELNEW Tribal School (and now the coordinator of the FirstVoices program). STOLCEL’s father, Dave Elliott, had created a SENCOTEN alphabet a few years previously. Brand stumbled across inexpensive software that enabled the creation of a simple dictionary using Elliott’s alphabet, and FirstVoices was born. As of October 2010, says Brand, a full audio-visual dictionary of SENCOTEN words and phrases is now downloadable from iTunes, free of charge, as is the Halq’emeylem language. The possibilities, he adds, are endless. A promising future In the meantime, Renée Sampson will graduate this year with a B.Ed and her provincial teaching certification in SENCOTEN. Likewise, PENÁC will graduate with an arts degree and a passionate ambition to see his infant daughter speaking her language fluently with her peers. Sl,OLTENOT is avidly studying her SENCOTEN dictionary on her iPod in between working on her degree. All of them hear stories from the parents of the children they are teaching that fill them with happiness: a small child asking her mother in SENCOTEN if she is feeling all right; teenagers leaving giggly phone messages for each other in their language to foil their non- SENCOTEN-speaking parents, who smile indulgently and proudly behind their children’s backs—then head quietly over to the WSANEC Adult Education Centre to enrol for adult language starter classes. SELILIYE is looking forward to graduating from Grade 12 at LÁU,WELNEW Tribal School, to which she returned this year at the age of 58. It is a quiet ambition, but a meaningful one: no longer does she feel like a “dumb Indian,” but a proud and healthy WSANEC woman speaking her language. She is also looking forward, with a heart full of tears and joy, to sitting at the kitchen table as she once did as a small child listening to her grandmother, but this time it is her grandchildren who will be speaking SENCOTEN. “My achievements in life are totally attributable to knowing my language and my origins,” says Mike Willie, the cultural revitalization coordinator in Port Hardy. “Without that, I would be completely lost. Where do people go when they’re lost?” Katherine Gordon is an author and freelance writer based on Gabriola Island and is on the board of the First Peoples’ Cultural Foundation. Her sixth book, We Are Born With Our Songs Inside Us, explores the links between identity and wellbeing through the stories of 21 young and inspiring aboriginal British Columbians.
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