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Briony Penn

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  1. Recent protests in support of the Wet’suwet’en could be a teachable moment, if only we study history and listen. THE RECENT PROTESTS AND OCCUPATION of the BC Legislature by young members of the Wet’suwet’en/Gitxsan First Nations, other First Nations, and settler allies, continues a 140-year tradition of reasonable requests being met by unreasonable responses from government. It seems crucial to hear these reasoned requests, so here, for the record, we invited some young protesters to explain what’s at stake and how they are upholding not only their own laws and rules of honour—but Canadian laws. Shaylynn Sampson “My name is Shaylynn Sampson. I grew up in the Wet’suwet’en community hearing about the Delgamuukw court case. It was before my time, but my great aunt was closely linked to the folks that were doing that. The court case is so closely related to what we are doing, which is continuing to defend this land. It isn’t something new, defence of this land has been going on for a very long time—since settlers first came to our territories. My ancestors have been fighting for this for hundreds of years. “There is a failure to understand the difference between the band council and hereditary leaders. The band councils were set up under the Indian Act to police people. It is helpful to recognize that the band council and that system was put in place specifically to undermine the hereditary chief, which continues still to this day. Traditional governance is all done in the feast hall and has witnesses and it is so much more. It is so important that an understanding of this is correct. “Red dresses [hanging at protest sites] are there to symbolize missing and murdered indigenous women [MMIW]. [The hereditary chiefs] are filing a complaint against the government’s Environmental Assessment Office permit process, for not taking into account the statement in the MMIW report that specifically links man camps [such as Coastal GasLink is building] to the violence. I grew up on Highway 16 so I know how serious that issue is. We can’t think about the violence against the land and violence against ourselves as not intrinsically linked. “What happens on Wet’suwet’en territory is integral because it can happen to any Indigenous Nation. We want to drive this idea forward. The state is willing to commit violence against us and where they have done it once, they can do it anywhere.” Gina Mowatt (photo by Lauren Sortome) “My name is Gina Mowatt. I’m Gitxsan, and my Nation is right beside the Wet’suwet’en Nation, we’ve been allies forever, and support each other and have been very close prior to colonization and beyond, and now we stand with each other in struggle against the violence against our land, our peoples. We have also worked together in court cases. “This is a struggle that we’ve inherited as Indigenous people, so for me, being here is my responsibility and role as an Indigenous person who knows our laws. I know who I am as a Gitxsan person so I have to stand up for the land, I have to stand up against colonial violence against our people and the animals and the water to ensure that there will be a future for coming generations, so that’s why I’m here. “I live in Victoria and there are so many opportunities here to put pressure on the colonial government and to make sure that we do everything that we can here to take pressure off the folks up north who feel the brute force of the colonial violence…and we can’t stand idly while ‘our’ government chooses over and over again to enact violence against people as if they’re not human and they don’t have human rights. “Canada has implemented UNDRIP and the TRC and they go in and rip people off their homeland and throw them into jail cells; we cannot stand by and let that happen. My main reason for being here is to try and bring the front line of resistance to Victoria where it should be because this is where the problem resides. Hannah Carpendale (photo courtesy Ancient Forest Alliance) “My name is Hannah Carpendale; I am a settler ally. The suggestion that the only acceptable way to advocate for change is through lawful means, as suggested by BC Premier John Horgan, ignores the years of work spent by Wet’suwet’en land defenders opposing severe injustices through ‘acceptable’ channels that have proven ineffective. This position also shows an ignorance of the way in which many social changes from which we benefit have come about through the course of history—namely, through disruption of the status quo in ways that were not, at the time, considered acceptable. “When considering the land defenders who have contributed so much to these efforts because it is the only clear, morally responsible path forward, the inconvenience of a missed appointment, an hour’s wait at a highway blockade, or a missed train connection seems a small price to pay. In contrast, the inconvenience of colonization, cultural genocide, and Coastal GasLink’s continued attempts to bulldoze their way over unceded Wet’suwet’en territories—damaging cultural sites, healing spaces and intact ecosystems—seems immeasurably greater.” Kolin Sutherland-Wilson (photo by Lauren Sortome) “My name is Kolin Sutherland-Wilson. I am Wet’suwet’en. We have to deconstruct this narrative Canada is creating regarding the elected band councils and Wet’suwet’en hereditary chiefs. Even the English language is so problematic when applying to this—the leaders of the Wet’suwet’en are the Dinï ze’ and Ts’akë ze’. [The term] ‘hereditary chiefs’ is a colonial imposition on Indigenous leadership—in no way are the Dinï ze’ and Ts’akë ze’ a form of monarchy, there is so much accountability and responsibility to the people. “How would Canada feel if we infringed on its sacred spaces? This space here is on stolen land; it is the territory of the Lekwungen Nation. We are reclaiming this space and pointing out the real colonial origins of Canada. Canada acts as a colony using military force to invade nations, displace people, and extract wealth from their territories.” KOLIN SUTHERLAND-WILSON’s words echo an 1884 declaration by Gitwangak chiefs reacting to the imposition of the reserve system. The declaration included a question: “[W]e would ask you, would it be right for our Chiefs to give licenses to members of the tribe to go to the district of Victoria to measure out, occupy, and build upon lands in that district now held by whitemen as grazing or pasture land? Would the whitemen now in possession permit it, even if we told them that, as we were going to make a more profitable use of the land, they had no right to interfere? Would the government permit it? Would they not at once interfere and drive us out? If it would not be right for us so to act, how can it be right for the whiteman to act so to us?” As the century turned, those questions remained unanswered and leaders from many Nations continued to petition governments for meetings, but it wasn’t until the McKenna/McBride Commission in 1915 that those requests were granted. In 1915, the Commissioners arrived at a reserve near Hazleton for the afternoon and asked leader Edward Souk/Spoukw why he was there, to which he responded: “We want to get our own land back, that is all.” The commissioners stated that he was wasting their time and left shortly after. By 1926, Indigenous leaders had formed the Allied Tribes of BC, taking their petitions to governments in Victoria, Ottawa, and London. When that alliance was undermined, the Native Brotherhood of BC formed in the 1930s to continue the cause, sending more delegations to the three centres of government, all unsuccessful. The BC Union of Indian Chiefs took up the banner in 1969 to continue the land question and Wet’suwet’en leader Misilos/Victor Jim became a key leader of the Gitksan-Carrier Tribal Council to advance legal action stating that their “hereditary lands” be set out in a map. Two years after neighbouring Nisgaa leader Frank Calder had successfully sued BC—seeking a declaration that aboriginal title had not been extinguished—the federal government agreed to negotiate comprehensive land claims over territory outside the reserve system, and the Wet’suwet’en began a process of mapping their boundaries to accompany their claim. Neil Sterritt, Gitxsan member, writes in his book Mapping My Way Home about the subsequent 14-year process of mapping the Gitsxan/Wet’suwet’en territories. Thirty-four elders born between 1890 and 1920 travelled throughout their territory while Sterritt and others helped record the place names and history. One of the Wet’suwet’en elders was Gisday Wa/Alfred Joseph, who played a major role. Another was Albert Tait from Kispiox—Delgamuukw himself. As Sterritt describes it, “they had grown up on the land and knew their histories, territories and laws. Their memories reached back to and beyond the time first Europeans started to settle our lands. We recognized that within a few short years, the legacy of those witnesses would be lost.” Originally, the maps were to provide the key evidence for their comprehensive land claim, but that eventually turned into a lawsuit out of frustration with the delays and the continued industrial encroachments on their territory. In 1984, while blockading CP Rail lines to try and stop the clearcutting of their territories, the Nations decided to pursue a lawsuit. It took three more years to get into court and then they had 318 days to put forward their maps and testimony. Peter Grant was their lawyer. The elders were subjected to humiliating and exhausting cross-examination by Provincial Justice Allan McEachern who infamously dismissed these extraordinary oral witnesses as “vagrants” whose lives were “nasty, brutish and short.” According to Grant, McEachern “did not have the capability of understanding or hearing what was being said.” It took another six years before the Supreme Court of Canada overturned most of McEachern’s opinions in its 1997 ruling on Delgamuukw. During that time many of the elders like Delgamuukw had died. The appeal court unanimously ruled that the Province had no jurisdiction over their territory without consent from the government of the First Nation. It was established that the Indigenous Nation had a system of law that predates the days of elected band councils enacted under Canada’s Indian Act. The elected band councils’ authority is limited to decisions about reserve lands. Under traditional Wet’suwet’en law, hereditary chiefs are responsible for decisions regarding ancestral lands. And as Wet’suwet’en Dinï ze’ Frank Alec/Woos stated in a CBC interview on February 12, 2020: “We have always maintained our stance on this. The hereditary chiefs are just saying no to all the pipelines on the territorial lands.” As lawyer Grant stated in a February CBC interview (in response to the media framing of the issue as one of complexity, internal division, and inconvenience): “It is not complex. The Supreme Court of Appeal and subsequent court cases recognized that the legal title carriers are the hereditary chiefs—when we are speaking of the Wet’suwet’en—and that is in Delgamuukw. There is no question that the proper title holders recognized now, and later in a 2014 decision, were the hereditary chiefs. The BC Supreme Court in the recent Canfor decision recognized that the system of government includes the feast hall, as chief Woos told you, and that the feast system is tied to territory.” In that same CBC interview, Minister of Indigenous Relations and Reconciliation Scott Fraser was asked how he justified only listening to elected leadership given Delgamuukw. He stated: “The court didn’t go quite as far enough in my opinion to clarify that…There is no question that it confirmed that there is aboriginal title, it just didn’t say who and what. I guess it was going to require subsequent court action that did not occur…The courts are one way of dealing with it, but they have been telling us it is not the right place. They have been asking government to get on with legislation.” BC’s Select Standing Committee on Aboriginal Affairs has not met since 2001 despite calls for two decades from the Wet’suwet’en, and many others, to follow up, given continued industrial intrusions into their territory. Fraser and Premier Horgan refused to meet and speak with these young people, educated in both legal traditions, who brought the concerns of their community one more time to the steps of the Legislature—and were snubbed yet again. Minister Fraser has since announced that for the first time since Delgamuukw, a committee will meet with the leadership. We have been given yet another chance to hear from a governance system that is based on accountability and responsibility to future generations, with a foundation that doesn’t distinguish human health from the health of land and water. This time the stakes are so high that we fail to listen at our peril. For a timeline of the history of the Gitxsan/Wet’suwet’en territories, see www.gitxsan.com/culture/culture-history/gitxsan-history-of-resistance/ and a good “explainer” on legal issues can be found at www.firstpeopleslaw.com. Briony Penn is an award-winning writer of creative non-fiction books including The Real Thing: The Natural History of Ian McTaggart Cowan, A Year on the Wild Side and, most recently, Following the Good River: The Life and Times of Wa’xaid, a biography of Cecil Paul (Rocky Mountain Books).
  2. Concerns over slow progress lead to questions about campaign donations from developers. SEVERAL YEARS AGO, Saanich resident Merie Beauchamp and her husband bought a large lot overrun with invasive species. It had subdivision potential but was also subject to the Environmental Development Permit Area (EDPA) bylaw. Under the EDPA, they would be required to work with Saanich planners and biologists, should they want to subdivide, in order to minimize the impact to the endangered Garry oak ecosystem. Both Beauchamps had biological backgrounds and were curious about what lay under the brambles and daphne. Said Merie: “We removed the invasives and the land came back to life. The native wildflowers began to reappear, the Garry oaks suppressed under the invasives started to take off, the butterflies, birds and other wildlife returned and we realized that we could help restore the natural diversity of this piece of land.” Saanich resident Merie Beauchamp The couple decided that they had an opportunity to manage this restored area, which lies adjacent to a protected area. Conventional thinking would describe them as having cost society in foregone development values. “True cost accounting,” however, would value their actions in terms of averting the rising costs of the biodiversity and climate change emergencies. Beauchamp wants people to get excited about true cost accounting and to educate people about the harm of the business-as-usual approach, but it is a hard thing to do with a council that is mostly stuck in an old paradigm. In May, the UN Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) released a report that gave humanity a dire prognosis. A million species are now threatened with extinction, and our own species may follow if we don’t do something about the threats. In the District of Saanich, over 90 of those species are at risk along with the ecosystems that support them. As one of the most affluent, well-educated, and still biologically-rich urban/rural districts in Canada, Saanich could be playing a leading role in reversing this trend. However, this region has lost ground—literally and figuratively. Garry oak meadows have been blasted into oblivion for everything from swimming pools to subdivisions ever since Saanich scrapped its progressive Environmental Development Permit Area (EDPA)—a bylaw and planning tool that had, since 2012, a proven record of guiding development away from, and around, endangered ecosystems. A byelection in late 2017 had resulted in a pro-development majority on council, which moved quickly to rescind the EDPA—though a replacement was promised. A battle for sustainability was waged in the suburbs, with lawyered-up landowners and developers on one side, and Saanich residents who supported the bylaw on the other. Since then, the battle has continued with divisions growing deeper. And the casualties of the lack of regulation are evident all over Saanich—endangered ecosystems wiped off their last remaining spots on Earth: at Mount Douglas Cross Road, Rainbow Road, Ten Mile Point, Gordon Head Road, Milner Road, Holland Avenue. Until journalist Wolf Depner was moved from the Saanich News to a new beat in Oak Bay, you could read regularly about yet another endangered meadow getting ploughed under by a bulldozer. The public discourse has only grown more heated. The College of Applied Biology permanently rescinded the membership of Ted Lea, a key player in the opposition to the EDPA, for violation of the college’s code of ethics stemming from his role in the matter. Councillor Nathalie Chambers urged her fellow council members to reinstate the EDPA given its removal was, in part, based on faulty reports from the biologist—or at least place a moratorium on Garry oak removals. (She failed.) University of Victoria faculty and students have weighed in on the science. Citizen’s groups, like the Falaise Community Association, have gathered people at a Tree Love Town Hall this spring “because of a growing concern for the protection of the residual Garry oak ecosystems under threat.” Citizen watchdogs, like Katherine Whitworth, are tracking what appears to be the increasing control of council by developers through electoral donations to councillors— and Chambers is calling for a ban on such donations. A perusal of the political donors to councillor campaigns reads like a who’s who of the local development industry, studded with family names like Jawl, Miller (Abstract Developments), Mann, Vanderkerkhove, Geric, and Knappet. Though donations from corporations are prohibited, and individual donations capped at $1200/year ($2400 in an election year), there’s nothing to stop multiple family members and a company’s staff from donating (this has also been noticed in other municipalities). The industry benefits when it controls the land-use planning process and has every incentive to populate council with people who share their views. That is not news. What is news is that according to the authors of the UN’s IPBES report, the key driver of extinctions worldwide is changes in land use. It also notes the trend is reversible. “Nature can still be conserved, restored and used sustainably.” The authors stress the necessity of transforming governance and accountability, so that the full costs of not conserving or restoring natural systems and of not using land sustainably are assessed. Accountability also entails the rigorous uncoupling of politics from land use change and its biggest driver, the development industry. Not surprisingly, the conflict in Saanich is exacerbated by highly confusing narratives being put forward by pro-development councillors in which citizens are told that they must choose: housing versus nature; public versus private land stewardship; farming versus conservation; restoration versus conservation; wetlands over Garry oak; emissions reduction over carbon sink expansion. Claiming that one action over another is prudent and efficient is far easier to sell politically—especially if it retains the status quo. From where the researchers of our climate and biodiversity crisis sit, however, choice is a luxury that the world doesn’t have. If we are going to avert this emergency, then we actually have to transform our thinking and figure out a way to integrate all these components of the crisis, now. Dr Eric Higgs As Dr Eric Higgs of the University of Victoria’s School of Environmental Studies puts it, “Every effort matters. We have to stem the loss and restore. For example, if we are at roughly five percent remnant Garry oak habitat presently, what would it take to get to six percent or 10 or 20 percent? What could happen if citizens were encouraged to take action in their front and backyards, new developments had stringent offset requirements, old trees were cherished, and Saanich really took seriously the need for nature-based solutions?” BEAUCHAMP WAS AGAINST SCRAPPING THE EDPA, and says the impacts of its loss have been immediate and unnecessary. The move has also devalued and demoralized other efforts for conservation and restoration on private land. She cites as an example, the controversial 4355 Gordon Head Road property where an endangered ecosystem that had previously been protected under the EDPA (through restricting building to an already existing building footprint) was destroyed for a swimming pool by moving the development closer to the cliff to take advantage of ocean views. “Why, when an alternative existed, would we allow an endangered ecosystem to be destroyed for someone’s swimming pool? The cost is borne by the next generation.” The scrapping of Saanich’s EDPA bylaw allowed this property, which includes an endangered Garry oak ecosystem, to be redeveloped. In the Milner Road development, four city lots of Garry oak woodland were razed with the lifting of the EDPA. Lauraine Derman, former Councillor Vic Derman’s widow, wrote to Saanich, stating, “At present, we see the ‘Sustainable’ Saanich moniker being abused and ridiculed as we witness some developers flaunting regulations and racing to destroy unique, ecological sensitive areas previously under EDPA protection. A case in point (among others)…is the well-publicized Milner/Leveret incident.” Against this backdrop of ecological destruction, many citizens wanted to see some sort of replacement for the rescinded EDPA—and quickly. Saanich staff had been working to create the “Natural Saanich” Environmental Policy Framework—which would include polices and regulations related to addressing climate change, biodiversity and stewardship—and envisioned the Framework being completed by 2022. But they also suggested some possible interim measures to address gaps left by the loss of the EDPA. These potentially included an enhanced tree bylaw (protecting other at-risk species), an enhanced fill bylaw (stopping wetland infill), and an adjusted development application. These were considered by staff as “low-hanging fruit as they are easily achievable and relatively effective,” according to meeting minutes. But the Framework, particularly its interim regulatory measures, was questioned by some councillors, including the Chair of Saanich’s Environmental and Natural Areas Advisory Committee, Rebecca Mersereau. Minutes of a June 2019 meeting show she questioned the effectiveness of regulatory measures. In this, her views were at odds with the committee she chaired. Saanich Councillor Rebecca Mersereau Mersereau argued in a July Facebook post that “developing and administering regulations also consumes resources and limits our ability to use other strategies to achieve the same goals, or other environmental goals we consider important. As much as it would be nice, resources are not available in an unlimited supply to help us achieve our environmental goals. If we were more cognizant of all these challenges, and if biodiversity conservation is truly a priority in Saanich, I believe we would have long ago invested more resources into protecting and even enhancing biodiversity in our extensive protected parks network.” Beauchamp has disagreed on development-related issues with other members of Saanich council, but nowhere has the narrative been more confusing for her than with Mersereau, who has degrees in biology, education and water resource management; was mentored by former Councillor Vic Derman; and once supported the EDPA. Beauchamp now draws a clear relationship between councillors’ decisions and their financial backers, and believes that rules around conflict of interest and disclosure must be tightened to ensure land- use decisions serve wider interests. She cites four donors from the development industry to Mersereau’s campaign, and adds “politics shouldn’t be mixed with science.” Dr Higgs has also responded to Mersereau on the interim regulatory measures question: “We need regulatory capacity to limit negative actions, and reward virtuous ones. This is why I support very strongly the kind of integrated package of initiatives comprising the Natural Saanich project. Stripping out the potential for discouraging or stopping heedless actions on private lands, or focusing only on remaining jewels [parks] that make up such a tiny fraction of historical habitat, will result in a future Saanich that is like every other municipality that failed to address issues sooner.” Higgs points to the March 1, 2019 United Nations General Assembly 2021-2030 declaration of the Decade of Ecosystem Restoration and suggests, “It would be unfortunate and ironic if Saanich were now to turn its back on the power and promise of hundreds of projects on public and private lands. Yes, environmental conditions are changing—a fact I know too well from my own research on novel ecosystems—but this is hardly an argument for letting the perfect stand in the way of good outcomes, especially those that support innovative approaches to biodiversity conservation and restoration. Every remnant patch of biodiversity that can be conserved or restored makes a difference to climate adaptation and flourishing ecosystems, whether natural, novel, or hybrid.” At the heart of Higgs’ analysis is the fact that 75 percent of the world’s land base has now been “significantly altered by human actions” and an international consensus of biologists advocate Nature Needs Half—a goal already in the CRD Regional Parks Strategic Plan. There is no research that comes to the conclusion that we will survive the political expediency of scrapping regulations on private land use for protecting endangered ecosystems. Landscape ecologist Jan Kirkby, who worked on Saanich’s original Sensitive Ecosystems Inventory mapping, notes “with strong, forward-thinking leadership and public education, landowners and land managers can embrace these conservation-based planning tools as they have in many other jurisdictions. EDPAs provide guidance and opportunities to enhance both natural and property values of the land. There are also tools like the Natural Area Protection Tax Exemption Program (NAPTEP) for conserving special features and sensitive ecosystems on private land.” Local governments are indeed free to change zoning to achieve conservation goals without compensation. But that is rarely done and only as a last resort. Kirkby emphasizes “most developers and property owners labour under a critical misconception, that there is such a thing as ‘development rights’ in Canada, that people ought to be able to do whatever they want on their land, and no local government has or should have the right to restrict development. These beliefs and views originate in the US and are supported by their constitution; however, Canada’s constitution supports the collective over the individual.” TWO YEARS HAVE PASSED SINCE THE DEMISE OF THE EDPA. And now some fear that Saanich council will further delay measures that would hopefully fill the gaps left by its loss. Mersereau, however, assured Focus in an email: “Council has approved an expedited timeline for the development of the EPF, so I’m hopeful that by mid 2020 we’ll all have a better sense of at least the scope of it.” Yet even the original process was to take until 2022, so any further delays are worrisome to those witnessing ecosystem destruction as the development boom continues. For now, a technical group to advise the process has been approved. But no “interim measures” (as the staff report advocated) to protect endangered ecosystems are likely in the near future, says Councillor Nathalie Chambers, who has repeatedly asked for them to deal with the biodiversity emergency. Saanich Councillor Natalie Chambers She is also advocating tighter accountability of councillors. Under the Community Charter, council members have to declare their own personal investments and may not vote or exercise influence over them. Chambers suggests, “They should also have to recuse themselves when voting on development issues when they receive developers’ donations.” She suggests accountability might have prevented some other recent moves that were developer-friendly: a proposed new bylaw raising development cost charges (DCC) was delayed, denying Saanich taxpayers $2 million; Local Area Plans were halted in favour of fast-tracking housing; and Abstract Developments, which has eight downstream applications, was granted special privileges on the Mayor’s Standing Committee on Housing Affordability, having access where Chambers, for example, has none. Chambers’ concern over the development industry’s “undue influence” has led her to propose a resolution for the Union of BC Municipalities to eliminate developer donations. Councillor Mersereau did not address Focus’ questions regarding Higgs’ challenge of her ecological rationale or Chamber’s comments of undue influence, but referred us to her July Facebook post which asserts: “Yup —that’s right! We’re in a process to discuss a process…If we have a good process set up to objectively evaluate how effective each option will be at helping us achieve our goals—whether they are voluntary, financial, or regulatory options (which the EDPA is one example of)—I can support the options that emerge at the top, regardless of what form they take.” Higgs responds, “We should not be caught in the midst of spats that result in inaction, but leading with the framework, policies, legislative action, and public programs that result in the very kind of Saanich that people will value in the future.” What do we need to get there? Beauchamp suggests “a conflict of interest bylaw for municipal donations might be a good start. Then let’s get Natural Saanich back on track.” Briony Penn is an award-winning writer of creative non-fiction books including The Real Thing: The Natural History of Ian McTaggart Cowan, A Year on the Wild Side and, most recently, Following the Good River: The Life and Times of Wa'xaid, a biography of Cecil Paul (Rocky Mountain Books).
  3. West Coast wildlife depends on herring—and there’s a model for bringing them back to the Salish Sea. THE WILDLIFE IN SPILLER CHANNEL, just north of Bella Bella, is alive and well this fall. Over a thousand bald eagles on their southward migration were feeding on the returns of chum and pink salmon alongside other top predators—black bear, grizzly and wolf. Sea lions, Dall’s porpoise, several humpbacks and northern resident killer whales worked the channel edges. At the entrance, where the breakers roll in, sea otters have returned, triggering a rebound of kelp forests. Juvenile fish are surviving better in these underwater nurseries. Overwintering sea ducks, like harlequins and surf scoters, fished alongside 500 Western grebes, listed as threatened. Along the channel, small buoys and lines tied to trees mark the traditional non-kill fishery of herring roe of the Heiltsuk First Nation. The foundation for the health and well-being of everyone in Spiller is herring; Spiller Channel is famous for them. Herring spawn off the south end of Denman Island (Photo courtesy Jake Berman) Spiller is also famous for the Heiltsuk Nation’s prolonged stand-offs against the commercial “kill” herring fishery (which mostly is used for fish farm feed and pet food). It is an important place—a coastal Standing Rock—where the nation has stood up to pressures that push species and cultures to the brink: overharvesting, overhunting, overfishing and overlogging. Spiller is also close to where the Nathan E. Stewart oil spill occurred in Seaforth Channel in 2016, for which the nation launched their own emergency response. With their success in stopping the commercial “kill” fishery, the trophy hunts, and commercial logging, along with winning the court case against the Texas Kirby Corporation responsible for the fuel spill, the Heiltsuk have set a course for how to bring life back to the land, the sea and the culture, with herring as the foundation. They have shown the way that abundance can return here too, in the Salish Sea. All around the Salish Sea there are Spiller Channels waiting to rebound; bays where the open ocean has been calmed by the geography of granite and forests of kelp. People have tended these fish for millennia as they return year after year to spawn on the lush eelgrass meadows. The young fish follow the older fish back to a spawning site (what elders refer to as the scouts) and typically remain loyal to that site. The Salish Sea had dozens of spawning bays with different spawning windows from Ganges SYOWT, the first place the herring come in spring, according to WSÁNEĆ hereditary chief Eric Pelkey, to the late spawners of Cherry Point near Bellingham. Some herring leave on their migration to the coastal shelf, some never leave, and with this mix of diversity of locations, timing and behaviours, the rest of the coastal community can thrive all the way up the food chain, through chinook to the Southern Resident killer whales and the human communities. For many elders like Pelkey, whose chieftanship runs from STAUTW (Tsawout) on the Saanich Peninsula to SYOWT (Ganges) on Saltspring Island, the decimation of these herring stocks indicates a fundamental flaw with the fisheries model being used by Fisheries and Oceans (DFO). “It seemed like as soon as there was a sign that herring were starting to come back again and into Ganges Harbour, DFO would open it up commercially and seine boats would come in and just scoop them up. Eventually that just killed off that herring run.” The fight that began with his grandfather, Louie Pelke, has been long and lonely—and repeated by every coastal nation. In Lekwungen territory, the Gorge was their Spiller Channel until the commercial fisheries of the 1930s wiped them out. Ross Bay, James Bay and Ogden Point lost their herring to the reduction fisheries by 1938; Juan de Fuca in 1940, Hotham Sound and Redonda, pre-1950. In WSÁNEĆ territory, Saanich Inlet, Coles Bay, Deep Cove, Patricia Bay, Goldstream and Finlayson Arm all lost their herring to the next wave of commercial fisheries of the ’50s and ’60s, and so it continued around the Salish Sea. Howe Sound, 1966; Malaspina Strait, 1975; Jervis Inlet, 1978; Fraser River, Bedwell Harbour, Campbell Bay, Lyall Harbour and Winter Harbour in 1979; Sechelt, Pender Harbour, Cowichan Bay, Ganges and Fulford Harbours, 1983; Powell River, 1988; Boundary Bay, 1992. Some bays, like Nanoose and Yellowpoint, lost their spawns during the “wild west” herring bonanzas of the ’80s, rebounding temporarily in the ’90s, only to disappear again. These local extinctions usually followed the winter or spring fishery. In 2011, Simon Fraser University archeologist Dana Lepofsky started the Herring School forum, recording elders from Alaska to Washington who told of seiners coming into their bays at night, taking every last fish and silencing their spring. Today, the only place that herring have continued to spawn at any scale is Baynes Sound around Hornby and Denman Island. Yet DFO persists in its claim that it has a workable model and a well-managed fisheries maintaining “historic levels.” Few outside of DFO and industry seem to agree with the model, which is based on taking 20 percent of the total weight (biomass) of the fish predicted and comparing it to a baseline catch in 1951 to assess “historic highs.” Pelke lists its flaws: it treats all the herring in the Salish Sea as one big population; it targets bigger fish; it doesn’t consider the ecosystem or cultural stewardship; it uses 1951 as a baseline which, as he points out, was a low point for herring during the excess of the reduction fisheries. Even with an announcement this October from federal scientists that the model is predicting a decline of what they call the Strait of Georgia (SOG) population by one third, there is no move to end the winter or spring fisheries. The WSÁNEĆ Leadership Council (WLC) of Tsartlip, Tseycum and Tsawout First Nations, like the Heiltsuk, are inviting others to join them in calling for changes. The WLC states that, “Herring have been under increased pressure from commercial fishing interests since the 1960s when herring populations reached a critical low. Since then, the Department of Fisheries and Oceans (DFO) and Coastal First Nations, including the WSÁNEĆ, have been unable to agree on policies that prioritize the health of the herring population over commercial fishing interests.” Inspired by the Heiltsuk’s successful lobbying efforts to have DFO agree to a moratorium on commercial herring fishery in places like Spiller, the WLC are cohosting an advocacy event this November called HELIT TTE SLON,ET (Let the Herring Live) with 25 local First Nations, and 50 community organizations invited. As the WLC state: “This is the first time in the Strait of Georgia’s history that such a large and diverse group of interests have joined together to oppose the questionable practices of DFO.” Part of the gathering will be hearing elders and independent researchers who have worked together for a decade in research forums providing the evidence to refute DFO’s position. They will also explore case studies like the Heiltsuk for recovery efforts. Another historic first is that all political representatives of Saanich and the Gulf Islands from the Islands Trust up through Adam Olsen MLA and Elizabeth May MP are supporting this initiative. Co-hosts like Conservancy Hornby Island, which gathered over 96,000 signatures to stop the herring fishery last spring, say DFO didn’t listen to the decades of warnings, including the latest protests when stocks could have been left to recover. Director Grant Scott, an ex-commercial fisherman, states “it took a collapse of Strait of Georgia (SOG) herring to finally show up the flaw in DFO’s modelling. To be precautionary, there should be no commercial herring fishery here until the populations of herring recover throughout the SOG, not just between Parksville and Comox.” Like Scott, co-host Vanessa Minke-Marten, a fisheries scientist with Pacific Wild, is “supporting First Nations to assume their rightful control and place in herring management.” That includes the integration of traditional and Western science for the full ecosystem: fish, sea birds, mammals, and cultures who rely on herring for their survival. Management models that incorporate spatial population dynamics, it seems, are being used everywhere on the coast but here. When Washington State saw their 21 distinct spawning stocks, like Cherry Point, flicker out, they stopped the herring fisheries in the early 1980s. Lepofsky’s archaeological evidence backed up elder testimonies prompting a call for changes in policy to align with Indigenous inherent and legal rights. The SFU work expanded into the Ocean Modelling Forum (OMF) in 2015 with 20-plus institutions, including a DFO researcher, joining First Nations in inter-disciplinary research. DFO has responded to calls for policy changes from the Heiltsuk, Haida, Nuu-chaal-nulth, and in small closures with the Q’ul-lhanumutsun Aquatic Resources Society (QARS). With this sizeable body of evidence, researchers Andre Punt and his co-authors are unequivocal that the old model has “consequences throughout the social-ecological system, including loss of trust in management bodies and conflict...” Loss of trust is top-of-mind for co-host Lockhart MacLean of Sea Shepherd Conservation Society: “There is an issue here that DFO is whitewashing harvest rates based on fictional biomass. The 20 percent harvest rate is a joke with these wild predictions. DFO’s lack of precaution is driving the last viable spawn in the Salish Sea to extinction.” Another research team under Daniel Okomoto recently found that managing stocks the way Pelkey advises, watershed by wateshed, “diversifies community benefits.” And the benefits need diversifying. The herring industry is controlled by one man, Jimmy Pattison, and all profits flow to his private empire which, according to BC Business, earned $10.6 billion in 2018, padded out by fuel subsidies for his seine boats. Pattison is counting on a reallocation of tonnage from the spring to the winter fishery which is supposed to start November 21. The social licence doesn’t appear to be on Pattison’s side. Ocean Modelling Forum researchers have identified the variety of factors having impacts on herring, which range from pollution to climate change, but the unique threat, which only exists on the Canadian side of the Salish Sea (and is easily remedied), is the fishery; a fishery that is now proven to cause local extirpations. The WSÁNEĆ response is CENENITEL, which means “helping one another to restore home.” CENENITEL could look like a comprehensive herring recovery program that supports local nations and communities in recovery efforts to improve water quality and eelgrass, traditional reseeding of bays with herring roe, or assistance to displaced herring fishermen. Spiller Channel is returning, and the Salish Sea has one last chance to do the same. Briony Penn is an award-winning writer of creative non-fiction books including The Real Thing: The Natural History of Ian McTaggart Cowan, A Year on the Wild Side and, to be released in the spring, Following the Good River: The Life and Times of Wa'xaid, a biography with Cecil Paul (Rocky Mountain Books).
  4. A retired physics professor ground-truths the tanker traffic at Burnaby’s Westridge Terminal. FROM HIS LIVING ROOM WINDOW above Westridge Marine Terminal on Burnaby Mountain—the terminus of the Trans Mountain pipeline—retired SFU professor emeritus David Huntley can see the oil tankers coming in to pick up or offload cargo. It’s August and Huntley hasn’t seen a crude oil tanker at Westridge since June 30. Pulling out his iPad with Vesselfinder.com, Huntley finds the large orange icon that is the closest crude oil tanker and pulls up its information—size, draft, speed, destination, location, port of origin and so on. The next anticipated one, the Nordbay, is drifting west of Juan de Fuca Strait, and is not due in until the middle of August. Nordbay’s recent port of call is Martinez, California, where there is an oil refinery. “California is where most oil tankers are headed,” says Huntley. He tells me only 20 crude oil tankers have left Westridge for China since 2014. Twelve of these were in late 2018 when the Canadian crude price was as low as $11 US per barrel due to a glut of oil in Alberta. When the Alberta premier ordered a curtailment in production, the price jumped back to normal and shipments to China stopped. Westbridge Marine Terminal in Burnaby Why is a professor with two degrees in engineering and physics and doctoral studies at Oxford tracking these tankers? “Because,” states Huntley, “initially what the tankers were doing was inconsistent with the rules on the Vancouver Port Authority website. Now, Trans Mountain and politicians are telling us things that are not true.” For instance, as he notes in a recent report, “The numbers commonly quoted from them are an increase from 5 [tankers] per month to 35 per month, an increase of a factor of seven. In the two years before the application, there never were five per month (i.e. 60 per year) as claimed.” It was more like 3.4. Since the application the rate has varied between a low of 1.2 per month in 2016 and 3.6 in 2018. In 2019 (to date) the rate has been 1.0 per month. Huntley, who built his career on facts and (amongst other things) helping reconstruct the Earth’s climate through dating sediments using the physics of sand grains, has turned his focus from understanding this planet’s paleoclimate to finding the evidence to protect its future climate. “What got me interested in the tankers—besides living next to them—is the lack of good solid data on them,” he says. “How can we evaluate the effects of the proposed increase of tanker traffic in the Salish Sea that would accompany the TMX [Trans Mountain Expansion Project] without this information?” he asks. Huntley’s findings are in direct contradiction to what we have been led to believe: Kinder Morgan’s 2015 business case presented to the NEB stated that “access to Pacific Basin markets is almost non-existent…” Implied is that being able to ship oil to Asia would realize higher prices for Alberta bitumen. As Huntley points out, “These claims about a lack of access to ‘tidewater’ are without merit since there is—and has been—guaranteed access to tidewater. And that access is—and has been—severely underutilized.” Huntley’s research has been rigorous, and he has appeared at NEB hearings in the capacity of intervenor, commenter and observer. He has assembled data—names, dates, and destinations—on crude oil tankers from 1974 to the present using various sources: the Pacific Pilotage Authority, Port of Vancouver annual reports, Trans Mountain submissions to the National Energy Board, a document ironically known as CRED (Conversations for Responsible Economic Development) published in 2013, and AIS (Automatic Identification System) with navigational tracking software like Vesselfinder. With these he has done that indispensable form of research called “ground-truthing,” i.e., observing first-hand which tankers use the terminal, where they are heading, and whether they leave loaded or empty. It should strike anyone as strange that this information has to be assembled by a retired physics professor instead of the pipeline owner, the Government of Canada, to substantiate the business case for buying a $4.5-billion pipeline that requires a further $9.3 billion for expansion, including that of the Westridge Terminal. It seems the government relied on Kinder Morgan’s own business case, which was prepared by Neil K. Earnest of Muse Stancil, a Texas oil and gas consultancy. Earnest provided no evidence for his claim that there was “almost non-existent” access to Asian markets—probably because there is no such evidence. Yet the Government of Canada seems to have bought that. The Westridge Terminal is currently capable of loading over 100 Aframax or 200 Panamax tankers per year. So far this year, the rate is only one per month. And on average, only 30 to 40 tankers a year are loaded, with virtually all of them heading to California, according to Huntley’s research. He notes, “It has been rare for Kinder Morgan to exceed 50 percent of [Westridge’s] loading capacity, and in 2016 and 2017 it was using less than 15 percent of its loading capacity.” The capacity of the current Trans Mountain Pipeline is 300,000 barrels per day. About 55,000 stays in BC, refined for BC usage. About 170,000 barrels per day—over half of the current capacity—heads south via the Puget Sound Pipeline to four refineries in Washington State. (Some of the refined products are sold back to BC.) Reportedly, the US is interested in bringing in a lot more this way. In an April 2019 podcast interview, the CEO of the new Trans Mountain Crown agency, Ian Anderson, said that new capacity of the expanded pipeline might be soaked up by markets in BC, Washington State or California. He admitted he did not have contracts requiring shipping in tankers. “I’ve got contracts to move barrels down my pipeline, but those could go to different places, not necessarily over water. So the market will decide how many ships move,” said Anderson. The oft-quoted—and for many coastal citizens, worrisome—34 bitumen-laden tankers per month plying coastal waters apparently refers to the maximum physical capacity of the terminal once expanded from its one berth to three. Another researcher, a 32-year veteran of the Geological Survey of Canada, scientist J.David Hughes, has shown that historically there has been no appreciable price differential between what oil commands from North America versus Asia, making the main case for expansion seem dubious. As Earnest’s report for Kinder Morgan put it, TMX “enables Canadian crude oil producers [access to] higher-priced Pacific Basin markets.” He projected Asian markets would pay $5–8 more per barrel from 2018 to 2038. Hughes, however, writes “the price in the Far East is $1–3 per barrel lower, plus the transport costs via TMX and tankers will be at least $2 per barrel higher to Asia. Hence building the expansion would mean a loss of $3–5 per barrel compared to shipping oil via new pipelines that will be built long before TMX.” In a recent article, Hughes explains there is a pipeline bottleneck due to the 376 percent growth in oil sands production since 2000, but that “the Line 3 and Keystone XL pipelines…will provide double the export capacity of TMX before its earliest completion date and yield higher prices on the US Gulf Coast compared to the Asian markets that TMX is allegedly being built to access.” Huntley notes, “If there were higher-priced Asian markets, the tankers would be going there.” He writes, “The existing pipeline and Westridge terminal are capable of supplying world markets with far more oil than they have been doing, at least since 2014.” From Trans Mountain’s perspective, one of their most strategic errors was locating a pipeline terminus on the same mountain as a university community of over 20,000 residents. There are a lot of smart people living on that mountain who like facts—starting with biochemistry professor Lynn Quarmby, who successfully led the first challenge to Kinder Morgan back in 2014, and Gordon Dunnett, a retired structural engineer who released a report on the high risk of a catastrophic fire to the 66-year-old storage tanks in the event of an earthquake, and the failure of Kinder Morgan to adequately assess them for failure. There’s also John Clague, professor emeritus at SFU, emeritus scientist for the Geological Survey of Canada, and past president of the Association of Professional Engineers and Geoscientists of the Province of BC, whose work substantiates the lack of risk assessment. Huntley and these other academic heavyweights are just some of those providing contradictory evidence to claims made by the company and government—evidence which has been underreported by the mainstream media. Vancouver Sun reporting has “bordered on nonsense,” says Huntley, as do op-eds by industry shills like Stewart Muir from Resource Works, a PR arm of the resource sector. But if facts aren’t guiding the process, then what is? Huntley answers: “Politics and money.” If there is no plausible business case, what company is going to invest in the expansion, unless it is heavily subsidized by the taxpayer? Currently, the pipeline and some or all of the associated costs are being paid for out of the Canada Account, which allows the federal government to make large investments in higher-risk ventures if they are deemed in the national interest. In April 2019, the international Institute for Energy Economics and Financial Analysis (IEEFA) produced a report characterizing the project as “built on quicksand and clear as mud” with “no full accounting of ongoing operations” (see http://ieefa.org). It states: “The government has an obligation to tell its citizens how much the Trans Mountain Pipeline Project is costing.” Perhaps with the October federal election coming, Canadians will demand such answers. But the IEEFA report also notes that getting answers might prove difficult: “The Canadian government has already routed payments to fund and develop the pipeline through a maze of government agencies with different missions, reporting mechanisms and accounting standards.” The other question is: What exactly is in the national interest? Email huntley@sfu.ca for David Huntley’s report on tankers at the Westridge Marine Terminal. Briony Penn is an award-winning writer of creative nonfiction books including the prize-winning The Real Thing: the Natural History of Ian McTaggart Cowan, and most recently, Stories from the Magic Canoe with Wa’xaid (Cecil Paul).
  5. An appeal before the courts should spark debate about whether Trans Mountain is compatible with a stable climate. AS THE FIRES BURN, storms rage, ice melts, and drought warnings go into effect, a rising tide of climate policy supporters from professional ranks are demanding change. Insurance company CEOs, health professionals, and journalists (like Bill Moyers) are joining scientists and academics to name the threat posed by climate change and continued burning of fossil fuels. Retired Vancouver civil litigation lawyer David Gooderham is one of the latest to put his reputation and his freedom on the line. He is one of the 229 arrestees who defied court injunctions to block the gates of the Trans Mountain Pipeline in 2018 and could face jail time. He is hoping to bring a novel concept to the attention of the courts—evidence of the magnitude of the threat of climate change. Gooderham, at 74, spent his career constructing cases from evidence of catastrophic losses involving flooding, fire, structural failures, and such. He discovered that no Canadian court or parliament has ever considered the evidence about whether the emissions from the expansion of oil sands production in Canada are consistent with keeping the warming of the Earth below the internationally-accepted increase of 2°C. Jennifer Nathan and David Gooderham (Photo by Holly Nathan) In other words, every large infrastructure project like the Trans Mountain pipeline has been approved without a single inquiry or environmental review considering their implications on the global emission target of the Paris Agreement—or our own national goal of reducing domestic emissions 30 percent by 2030. The Ministerial Panel on the Trans Mountain Pipeline of 2016, appointed by the Minister of Natural Resources, found that the question, Can construction of a new Trans Mountain Pipeline be reconciled with Canada’s climate change commitments? had not been answered. The National Energy Board never asked this question. Environment and Climate Change Canada, when tasked with reviewing emissions estimated for the Trans Mountain Expansion Project, admitted that the answer was “not clear.” Yet the cabinet still passed an Order in Council in 2016 authorizing the building of the expanded Trans Mountain Pipeline declaring, with no evidence, that it was consistent with our commitments. This failure to answer the question has left Canada pursuing a very dangerous course. Even for those whose concern is only around fiscal matters, it leaves us vulnerable to legal challenges or ending up with stranded assets, including the Trans Mountain Pipeline. With the June 18 federal government decision to green-light the pipeline, more of these types of appeals are inevitable. As Jessica Clogg of West Coast Environmental Law stated on the CBC about her reaction to Trudeau’s decision: “We’ll see you in court.” Gooderham didn’t arrive lightly at the decision to get himself arrested. He had spent the last six years engaged in lawful political activity to “encourage, persuade and induce the Government of Canada to reconsider its plans.” It was the failure of the political process to examine evidence that pushed him into getting himself arrested. At least in a court of law, where there are rules, expert witnesses, cross examination, and consequences of perjury, Canadians might at last have an opportunity to learn whether the government’s plans to continue expanding oil sands production can possibly be compatible with a world that is in dire need of cooling down. But there is a long row to hoe before he gets that particular day in court. On December 3, 2018, Gooderham made his first court appearance with co-accused, science teacher Jennifer Nathan. They informed the court, under Judge Affleck, that they wished to use the defence of necessity. This common law defence recognizes that in rare circumstances, we can be excused from criminal liability if we are faced with an “imminent peril” and where the wrong of disobeying the law can be “justified by the pursuit of some greater good.” Necessity is one of the few legal remedies available for climate supporters around the world, since it enables a legal exploration of what constitutes “imminent peril” and “greater good.” Encouragingly, across the border, in April of this year, the first favourable decision from a state court in Washington permitted the necessity defense to be raised in a climate protest case called the “valve turner’s case.” The conviction of US citizen Ken Ward, who shut off the oil by turning a valve in a pipeline, was reversed, and he will return to court for a new trial where he is able to bring his evidence and expert witnesses forward. Gooderham, like Ward, is arguing for simply that—a fair trial with the right to call evidence on matters of climate science. This is where Gooderham’s civil expertise teamed up with Nathan’s training as a science educator to brief an uneducated judiciary on climate science. For the December court hearing, they prepared an Outline of Proposed Evidence that includes projections over the next 12 years based on current policies, where the concentration of carbon dioxide and other greenhouse gases in the atmosphere will exceed 450 parts per million CO2 equivalent, bequeathing us all to “a dire future”—or in legal terms, “imminent peril.” The 119-page report, filed with the Court of Appeal, is persuasive and sets this global expansion within the context of Canada’s failing domestic efforts to meet the Paris Agreement of cutting 200 million tonnes by 2030. Their central argument is that the Trans Mountain Pipeline has a pivotal role globally in increasing emissions. Canada’s plan is to continue expanding oil sands production to 2040, but the evidence from the International Energy Association (IEA) and other reports show unequivocally that global oil consumption must start to decline in 2020, or else by 2030 the world will be irreversibly committed to warming above the 2° Celsius limit. Canada is one of the world’s six largest suppliers to the world oil market. Our country’s largest growth in emissions is coming from the oil and gas sector—offsetting most of the reductions in all other parts of the economy. The proposed evidence lays out oil sands production and emissions; the technology available to reduce emissions during extraction, and per barrel; proposed carbon capture and storage; political caps on emissions, gas sector emissions, methane emissions, and other additional measures proposed in climate plans. Findings are brought forward from the National Energy Board inquiry, Trans Mountain upstream emission report, IPCC reports, global oil consumption projections, mitigation scenarios, the global emissions gap with Canada’s commitment, and consequences of climate change. It isn’t easy bedtime reading but will likely illuminate “the magnitude of the threat.” On January 17, 2019, Judge Affleck predictably rejected their request to call climate evidence at their trial—which was held March 11, and at which they were convicted. The judge has rejected three other applications to put forward a defence of necessity, but Gooderham is the first to appeal. In Affleck’s 39-page Reasons for Judgement, he stated: “Despite a historical lack of initiative to curb emissions over these same decades, adaptive social measures may be taken to prevent such a dire outcome. Whether government, private industry, and citizens take these measures is a contingency that takes these consequences outside of ‘virtual certainty’ and into the realm of ‘foreseeable or likely.’” For Gooderham, this ruling was gold. It meant that an appeal to the BC Court of Appeal could focus directly on the crucial question. The judge appears to agree that we are on a path of a 2° Celsius rise in temperature, but asserts, with no evidence, that there is “a contingency” and that our imminent peril is not “virtually certain.” The contingency, however, according to Gooderham’s evidence, would require unprecedented cuts of emissions on a global scale starting in six months, including an immediate halt to the growth of global oil consumption. The question for the Court of Appeal then would be whether a contingency of that kind has, what is called in legal terms, “an air of reality.” That was enough to act on, and following their conviction, Gooderham and Nathan filed their Notice of Appeal to overturn Affleck’s decision. The appeal is due to be heard sometime in the fall by three judges. I asked Gooderham what he anticipates as success. “The best possible outcome will be that Justice Affleck’s decision will be overturned, and we can have a retrial where we call our expert witnesses.” The Crown would have the right to call their own expert evidence to try and show there is no imminent climate threat. If he is not granted a retrial at the provincial level, then he plans to take it to the Supreme Court of Canada. If he succeeds with a retrial with a suitable set of facts, a defence of necessity would apply. Whatever the final outcome, it will still have been a success for Gooderham “to open the public discourse on a subject that has largely been treated with silence.” If in the best case scenario, a defence of necessity is accepted, Gooderham indicates that it would not trigger “some kind of anarchy.” The most dramatic thing that could happen would be parliament abolishing the ancient common law and thus pushing climate change and the evidence for immediate action back into some messy, but better-informed, public debates—something that should have happened long ago. Ironically, just at the same time Gooderham and Nathan brought their case to court in Vancouver, the Federal government found itself obliged to file evidence about climate science in the Saskatchewan Court of Appeal, where the Government of Saskatchewan has challenged the constitutionality of the Trudeau government carbon-price scheme. The Federal government, in order to defend its carbon tax, has had to provide the court with evidence about the risks of rising carbon emissions, and to persuade the court that it is urgent to reduce Canada’s emissions. The evidence did not, predictably, extend to the prospect of failing to meet the Paris Agreement; that would have been risky to their own climate policy on pipelines. The Saskatchewan court ruled 3-2 that the federal carbon price is constitutional. The case will be appealed to the Supreme Court of Canada. It appears that suddenly, the issue of climate change has found its way into the courtroom, and that it might be “our last chance to help people grasp the magnitude of the threat”…if it can all happen in the next six months. A funding site for the appeal has been launched at www.gofundme.com/help-fund-addressing-climate-change-in-the-courts Briony Penn is an award-winning writer of creative non-fiction books including the prize-winning The Real Thing: the Natural History of Ian McTaggart Cowan, and most recently, Stories from the Magic Canoe with Wa’xaid (Cecil Paul).
  6. A forestry conference invited Forests Minister Doug Donaldson to give a keynote address. He talked but didn't listen. THE GOVERNMENT'S DECISION on the future of our last ancient forests has been made. Doug Donaldson, Minister of Forest, Lands, Natural Resource Operations (and now) Rural Development, pronounced in the Legislature on March 28, 2019: “There will be no moratorium on old-growth logging.” As proof of this policy failure, BC Timber Sales is poised to clearcut 1,300 hectares of old growth on Vancouver Island. BC’s 54 million hectares of public forests represent 95 percent of the province’s landbase, but if you are hoping for a broader vision for those forests than just a supply of timber, don’t hold your breath. Disappearing carbon sink: in this view of logging on the BC coast, areas clearcut over the past 30 years cover 80 to 90 percent of the land base. Two weeks after his sentencing on old growth, Donaldson was invited to a gathering of 65 of BC’s top forest policy advisors, including ecologists, First Nation leaders, climate change specialists, northern community mayors, union reps, academics, and environmental groups. They were attending a dialogue hosted by the Northwest Institute, a research non-profit of coastal First Nations, environmental leaders and scientists that aims to “promote cooperation among communities and initiate model projects—all towards the goals of environmental conservation and sustainable use of natural resources.” The major forest industry companies and unions didn’t attend. The hope was that at least Minister Donaldson would bear witness to the ideas in the room. Instead, he talked for 30 minutes and then left. Donaldson missed presentations from those with thousands of years of collective wisdom—about the issues, values and future of forests. People like Joel Starlund, Gitanyow manager from the Skeena and Nass River, who was speaking for Chief Glen Williams. Williams guided the mapping of thousands of years of knowledge of wildlife corridors, breeding and overwintering habitat and culturally important areas that are now interlaced with 73,000 hectares of industrial clearcuts. These clearcuts generated $110 million in stumpage for government over 60 years, with only .0025 percent of that coming back to the community. Donaldson also missed hearing from Jim Pojar, down from Smithers, the chief forest ecologist for the ministry before the great purge 16 years ago when all forest policy staff and the forest research branch were axed by BC’s Liberal government. Pojar is an expert in synthesizing and interpreting the nuanced impacts of climate change on forest ecosystems, wildlife and carbon sequestration. This is the person you really need to listen to when anticipating the future of our forests, the impacts of increasing fire, drought and storm events and what all that will mean for water, air quality and the biological web of life which we all rely on. John Innes was also present. As dean of UBC’s Faculty of Forestry, Innes has brought a European lens—wherein communities create more value with less fibre—to one of the most wasteful, carbon-polluting corporate forest industries in the world. Quesnel mayor and forester Bob Simpson spoke. As he stood in the smoking remnants of a half-million hectares of charred Chilcotin Plateau firescape—the largest in BC’s history and which only narrowly missed the town itself—he started to forge his own community’s plan for ecological and economic restoration, bypassing the status quo industrial clearcuts and monoculture that would just repeat the tragedy in future years. Chris Cole of the Truck Loggers Association attended as well. He described the relationship between the large forest license holders and the contractors who actually do the forestry work as unbalanced. “The large license holders consistently abuse the power imbalance in this relationship and benefit from an imbalanced distribution of wealth from harvesting trees on public and private forest lands,” he said, noting, “The majority of funds generated from our forests are distributed to company shareholders and pension funds rather than local communities and workers living near the forests being harvested.” Minister Donaldson also missed hearing from Jennifer Houghton from Grand Forks, who was galvanized into action when floodwaters flowed through her kitchen after the logging of her watershed. Houghton and her community, like many others, have joined the BC Coalition for Forestry Reform, which advocates for a shared decision-making process with local communities and full recognition of our forests’ non-timber values including water, wildlife habitat, biodiversity, tourism, and recreation. Another member of the Coalition, the West Kootenay Glade Watershed Protection Society, was represented at the dialogue by Herb Hammond, a veteran forester, who monitored the overcut and over-roaded Glade logging plans, and shared the David and Goliath story going on in our public forests over drinking water. Glade residents lost their bid for an injunction in February, so logging there—and destruction of watersheds—continues. Al Martin, of the BC Wildlife Federation, a broad rural constituency of hunters, anglers, trappers and guides, has dealt with BC wildlife issues for 30 years. His recommendation was to fund long-term rural jobs, financed through the carbon tax, to steward and restore the ecosystems that sequester carbon and support our biodiversity. Martin pointed to the government’s CleanBC initiative and noted that “environment” isn’t even mentioned. With climate change, there are two imperatives: reduce emissions, and protect and restore carbon sinks. BC is apparently ignoring both: forest industry emissions continue to exceed every other sector. Bob Bourgeois, who coordinated the wide-ranging, non-partisan “Healthy Forests Healthy Communities” conversations around BC between 2011 and 2013, was at the conference with his latest report card on the poor progress government had made on their recommendations. Ross Campbell, representing wilderness tourism operators, could have reminded Minister Donaldson that BC’s job-rich ecotourism industry outstrips the forest industry in GDP. Old growth brings tourists; clearcuts repel them. There were more speakers the Minister should have heard: 65 of the best minds in BC on the complex and nuanced issues of forest ecology and policy—people who recognize the complicated and diverse ecosystems coming from diverse cultures and governance systems. Chief amongst the recommendations was that planning around forests should be locally based, and incorporate long-term cultural knowledge with scientific data. The science would provide long-term projections of the landscape—as ecosystems die, change, or shift north and upwards with warming temperatures. The IPCC has told us we have 10 years to halt the destruction of carbon sinks. Minister Donaldson, personally, is no stranger to these ideas and issues, and knows many of the people in the room. During the heady, pre-2003 period of collaborative resource planning work in rural areas, he was trail-building in Yoho National Park, reporting on forestry issues for a northern newspaper, writing the old pre-harvest silvicultural prescriptions for cutblocks, and working on the Land Use and Resource Management Plan in Chief William’s territory. So why is he doing so little now? He told his audience that most of his time is taken up with his mandate from Premier Horgan in the following order of priority: softwood lumber agreements, increasing rural jobs for domestic wood products, being a leader in engineered wood, modernizing land-use plans, and undertaking a new wildlife management plan, all through the lens of the United Nations Declaration on the Rights of Indigenous Peoples. “Yes, change has been slow,” Donaldson admitted to the group, but his ministry doesn’t have the staff, lost during the Liberal era, to deal with the increasing emergencies of fires, floods and storms, while trying to keep domestic production curves pointing upwards. “Any forest policy we do introduce might look slow to you, but looks fast and threatening to others,” he warned, pointing to the well-financed backlash against both the grizzly trophy-hunting moratorium and the draft caribou agreement that the Province is legally bound to carry out through the federal Species at Risk Act. Not surprisingly, the logging industry isn’t on board with the caribou agreement—why would it want change, when they have full control of our forests now? The last time anyone in this ministry put these complex interests together to work out viable policy was in 2003, just before they were all fired. Judging by the minister’s failure to hire anyone back, it’s doubtful intelligent policies will arise. Green MLA Sonia Furstenau started the process in the fall to get feedback on the professional reliance system, which is based on the polite fiction that professionals hired by industry will look after the public interest. When Donaldson was offered a similar opportunity to hear from a range of interests by the Northwest Institute at this April gathering, he made no time for questions and answers with the excuse that he was too busy facing off with industry opposition to the caribou agreement. The message at the conference from every corner of British Columbia was loud and clear: rural people aren’t going to wait around for the Province to do something. Mayor Simpson said his defining moment was standing on the moonscape of the Plateau fire and realizing that only local control of plans was going to make a difference. Control has different manifestations—it could be hereditary chiefs of Gitanyow using newly court-awarded jurisdiction, Simpson expanding local government tools, the people of Glade appealing court decisions, or Ladysmith watershed groups exploring provisions in the Water Sustainability Act to get local authority for the protection of water. Communities from Duncan to Invermere are realizing that they actually own the forests—and that their forests have values far beyond timber. There are strong leaders all over this province communicating the urgency of climate change, and the need to change our practices to end the old economic model of huge tenures owned by clear-cutting corporations. My guess is that if the provincial government, regardless of its political stripe, doesn’t catch up, local communities will simply take over their watersheds and change the rules themselves. Briony Penn is currently working with Xenaksiala elder Cecil Paul, Wa’xaid on Following the Good River, due out in 2019. She is also the author of (the prize-winning) The Real Thing: The Natural History of Ian McTaggart Cowan.
  7. Nothing has changed in BC forestry practices under the NDP government. IF YOU GO INTO THE WOODS TODAY you’re in for no surprises. Nothing has changed since the BC Liberals left in their wake vast clearcuts, gutted rural communities, and species on the edge of extinction in our deregulated, corporate-controlled public forests. It doesn’t matter who you talk to: unions, First Nations, rural politicians, enviros or insider scientists, the prognosis is that nothing has changed with the rate of mowing down what’s left of our ancient forests since the NDP picked up the reigns in May 2017. The Chief Forester, Diane Nicholls, is the same; the latest unsustainable Annual Allowable Cut (AAC) that she is setting remains the same. The empty Ministry of Forests offices and lack of anybody on the ground monitoring the forests is the same. The legislation (or lack thereof) is the same. The silent renewal of Tree Farm Licences over vast areas of public forest with no public consultation is the same. The number of raw logs leaving our shores is the same. Ancient Forest Alliance campaigner surveys downed old-growth Western red cedar in the Nahmint Valley near Port Alberni. (Photo by TJ Watt) Even the guidance letters that Nicholls uses in her determinations of AAC haven’t changed: in two recent timber allocations for Arrow and Arrowsmith regions, Nicholls refers to guidance letters from the former BC Liberal minister who appointed her—not even a touching-of-the-hat to current Forest Minister Doug Donaldson. Was it just a faux pas or the failure of Minister Donaldson to lead British Columbians, including his top staffer, in a new direction for the sake of our decimated forests? According to Gary Fiege, president of the PPWC (Public and Private Workers of Canada, formerly the Pulp and Paper Workers Union), the minister seems to be paralyzed. Despite a platform to bring in the much-needed forest management reform, the NDP seem to have been unable to implement a single change. “Nothing has happened,” states Fiege. His union will take their frustration public in the new year. Certainly the calls for change haven’t changed, particularly around the exporting of raw logs and the continuing “fall down effect”—i.e. the decline in timber production as old growth is depleted and the industry logs smaller and smaller second growth. The last two years have been record years for exporting raw logs: 8 million cubic metres per year, equivalent to full logging trucks lined up bumper to bumper from here to Montreal. Exporting 8 million cubic metres also means exporting jobs—six of them a day. As Fiege states, “Instead of dealing with the loss of jobs, the minister is in Asia selling our logs. We weren’t even invited on the tour.” The PPWC are one of the signatories for a resolution to end the logging of Vancouver Island’s ancient rainforest. Many would assume the NDP would be listening to their union base, so why has nothing happened? One clue is that every one of the 36 existing Tree Farm Licences has recently been renewed, guaranteeing under the existing Forest and Range Practices Act a dedicated supply of fibre; so there is no wiggle room. The BC Liberals tied up 31 of those leases in the last nine years, even though half of them weren’t coming up for renewal until 2019. The kicker is that another five TFLs were renewed by Minister Donaldson in the last 15 months (TFL 8, 41, 43, 48 and 53) with virtually no public consultation. The question is why? According to a ministry insider who cannot be named for fear of reprisal, a structural cause is that top staffers remain the same, especially the Chief Forester, whose job it is to determine how much timber is to be cut down. When it comes to public interest issues, whether it is the protection of ancient forests, wildlife, water, indigenous rights, carbon storage or recreational values, all ultimately depend on reducing the cut—but that cut remains the same. For Fort St John, the largest timber supply area in BC, Nicholls has set the AAC for the next 10 years at the same levels set by the BC Liberals a decade ago. And this is despite all the fires, the insect predations, the warnings on climate change, the smaller trees, the threats to endangered caribou and inland rainforests. It also appears blind to the recommendations in the government-commissioned June report of Mark Haddock concerning the failure of the “professional reliance” system to adequately monitor our forests. Nicholls’ career flourished in the era of professional reliance where deregulation and demise of public oversight created the conditions for advancement to those who helped their employers do well. Focus is still getting whistleblower reports on the failure of her leadership. A letter from one states that Nicholls hasn’t even called a staff meeting to discuss the recommendations of the Haddock report, many of which she could implement. “Instead,” the letter continues, “she seems to spend all of her time in meetings with the companies she knows well. Who is working for the public interest?” According to the Lobbyist Registry, 98 percent of the lobbyists registered under Forestry visiting the minister and staff were from industry. Dealing with corporations like Canfor and Interfor, whose TFLs were renewed, obviously constituted a great proportion of the Minister’s time. When asked about his own lobby success, PPWC’s President Fiege stated that they had had limited access but no action, “so what is the point?” These sentiments are echoed in the ENGO sector. According to Jens Wieting of the Sierra Club, after collecting 200,000 signatures from around the world asking for a moratorium on British Columbia’s ancient rainforests, there was no response from the Minister, certainly no meeting with him. “It is symbolic that Minister Donaldson has made it his priority to go out to the world to sell our old growth logs, but it is the world that is calling him to save it—and he didn’t have even a word to say about it.” When the petition was submitted, an assistant came out and received the names, but there was no comment from the Ministry. “That lack of response,” states Wieting, “was very telling.” The original hope for policy on ancient forests stems from a vague promise in the NDP’s environment platform to use “the ecosystem-based management approach of the Great Bear Rainforest as a model to sustainably manage BC’s old-growth.” This would require revisiting licences and reforming the Forest and Range Practices Act which currently puts timber ahead of all other public interest values. As Wieting points out, there hasn’t even been a public conversation around what the public interest is. The Union of BC Municipalities passed a resolution to end old-growth logging, and even the mayor of the resource-dependent town of Prince George is asking for reform in forest management, but their calls go unheeded. Calls from many First Nations for reform continue to go unanswered. This past November, the Nuu-chah-nulth asked the Province to do more to protect old growth, because logging it is threatening their culture with the disappearance of ancient Western red cedars that root their material, artistic and spiritual lives. Fiege suggests that after 17 years of sitting in opposition, the NDP were “woefully unprepared on the forestry file.” It defies logic when you have so many sectors calling for forestry reforms, especially with protecting something as valuable to our biggest industry, tourism, as the last bit of old growth. A big tree protection law even made it onto the BC Liberal agenda back in 2011 because of their value to tourism, though was never implemented. Now the big trees are falling faster than ever. Wieting notes: “This government risks becoming the government of extinction for many of the species that are dependent on old-growth forests.” The percentage of large-enough, intact ancient forests to support marbled murrelets, caribou, and other old-growth-dependent species is diminishing so fast that it looks like some extinctions might occur on this government’s watch. Some high-profile cutting of ancient trees through BC Timber Sales has also highlighted the failure of this agency that sells 20 percent of our AAC. Where is the Green Party on this? They have been pursuing improvement in forest management through the narrow window they have under the Supply and Confidence Agreement to review the professional reliance system that puts the public interest in professional hands. In November, Bill 49, the Professional Governance Act, was introduced to implement 2 of the 121 recommendations made under the Haddock report. However, professionals are only as good as the regulations they have to follow, so there still has to be leadership in reform of forest legislation. Even industry and professional foresters, like Christine Gelowitz of the Association of BC Forest Professionals, stress “the need for government to clearly define values, clarify desired results, set objectives and values and establish a hierarchy for objectives on the landscape. Without those tools, forest professionals are left trying to balance numerous competing and varied expectations by disparate groups with differing values and competing interests on the land.” Meanwhile, the war in the woods continues. Climber/activists like Alex Smith have been scouring imminent cut blocks, flagging and measuring the last of the huge trees in the Nahmint, Klaskish, and Walbran watersheds, as well as Edinburgh Mountain and other places. Smith and others have built witness trails to some of the big giants, like those in the proposed cutblocks of the upper Walbran, which has been the site of blockades for decades. As Smith notes: “Everyone else in the world can see the value of these ancient rainforests, why doesn’t our current government?” ACCORDING TO WIETING, 2019 is going to be a make-or-break year for rainforests and climate policy in BC. Our ancient rainforests are the biggest sequesters and storehouses of carbon on the planet, but government is barely counting their contribution or loss in the BC greenhouse gas emissions inventory. If they did, they would find the logging companies are a larger contributor to greenhouse gas emissions than the oil sector. The problem with not factoring in the role of the forest industry is that when you add up the carbon loss through logging and slash burning, the climate loses twice: once for the loss of a forest sink for future carbon sequestration, and again for the emissions released. Many are lining up to get in front of Minister Donaldson in the new year to recommend the setting of targets related to actions like phasing out slashburning; the protection of carbon rich old-growth rainforests; and reforming forest management to achieve negative emissions in recovering second-growth forests managed for carbon and timber by careful selective forestry. After all, this was the basis for the NDP platform on ecosystem-based management. And, as with the Great Bear, there are carbon financing mechanisms to do this now, using a combination of incentive and regulation to reduce waste. In response to Focus’ request for input, the minister’s office wrote, “Given the scope of the subject matter, we will not be able to meet your deadline. Minister Donaldson is also on a trade mission in Asia at the moment.” Selling BC’s logs, no doubt. Briony Penn is currently working with Xenaksiala elder, Cecil Paul, Wa’xaid on Following the Good River, due out in 2019. She is also the author of the prize-winning The Real Thing: The Natural History of Ian McTaggart Cowan.
  8. Some local First Nations leaders fear the next rounds of “consultation” around the Trans Mountain pipeline may be even worse. GWEN UNDERWOOD, a member of the Tsawout First Nation, chokes back her emotions as she leafs through a binder that contains some of the voluminous materials used to assess and fight the Trans Mountain Expansion Project (TMEP) between 2014-2016 for her community. In her capacity as then-lands-manager, it was her task to assemble the legal and scientific team, and the traditional knowledge keepers, to help review the proposal and assess the impacts to “existing Aboriginal and treaty rights.” In that binder is a picture of her grandmother and great-grandfather and the map of SENĆOTEN place names describing the wealth of sea life that has fed her community for millennia throughout the Saanich Peninsula and Salish Sea. She stops at his photograph and says, “I believe our ancestors were with us too,” then pauses; “That’s what makes what is happening now so hard.” Gwen Underwood (left) and Belinda Claxton overlooking the Salish Sea What is happening now is that Ottawa—after losing the court challenge by Tsleil-Waututh and other First Nations for not considering Aboriginal concerns—is returning to “consult” again. Trudeau directed the National Energy Board (NEB) on September 26 to complete what he is calling the “reconsideration process,” with a report due February 22, 2019. The NEB provided only five working days to amend the scope of the environmental assessment to be sent by fax by October 3 (their fax machines were jammed with protest complaints). Many legal experts predict that the timeline is so unrealistic and egregious that it will lead to new court challenges. This time round, Gwen Underwood will not be on the Band’s reviewing committee. In 2016, Tsawout were poised to join the other First Nations in the court challenge, but a new council was elected and they pulled out. “Tsawout did an excellent job on their report submissions. We had the strongest legal case and RAVEN said that they could fund part of it. But our new council said we can’t afford it,” said Underwood. The council is now divided on the issue, and Underwood has resigned from her position. The stress has driven her to a new job with a non-profit, but she is worried for her community’s future. “The government still is not obligated to listen,” notes Underwood; “so my question is: Why are the feds trying again? First Nations still cannot veto the decision.” She fears “that some might see it as ‘it is going to happen anyway so they might as well get something out of it.’” Underwood and I are meeting at the Tsawout Reserve with another member of the original review committee, elder Belinda Claxton, who tells me: “The government tries to starve First Nations out. They wait for people on council who will sign on. It ultimately gets down to divide- and-conquer mentality.” The original committee also included Hereditary Chief Eric Pelkey. For 30 years he has held positions, both elected and staff for the Band, including most recently the position of Douglas Treaty Officer. But he was dismissed in 2015, a decision he is challenging in the courts as unfair. He believes his outspokenness on the Trans Mountain pipeline could have been a factor. “That is what is so maddening in terms of those type of tactics. I think that we have experienced it a number of times in our territory where we go out and fight for our rights and title, and then Canada or BC goes behind our backs and offers resources to come to some kind of side agreement and undercuts negotiations that we are trying to put forward. And that is the type of thing Trans Mountain seems to be doing all the way through the territories—undermine any kind of unity in terms of opposition to the pipeline.” Hereditary Chief Eric Pelkey Flipping through the binder and reading the briefings, it is apparent that Tsawout would have won alongside the other Nations had they gone ahead with the court challenge. They experienced the same litany of concerns. As Underwood notes: “We gave [NEB] a full list of our impacts and concerns backed up by our marine traditional use and scientific reports, and they didn’t address it. We asked about cumulative impacts and they didn’t address that. Climate change wasn’t even in the terms of reference. My brother Harvey Underwood’s submission talks about how important the orca are, and how once they start disappearing, we aren’t too far behind them. The federal government representative said: ‘Well they are dying anyway.’ That was his response; we have that recorded in our minutes. Everything we did, they didn’t address it.” Pelkey adds, “The federal government had already made a decision—even before we made our submission to the National Energy Board—that the transport of dilbit in these ships was in the ‘best interest of Canada.’” Pelkey’s experience was that “the NEB decisions always fall on the side of the proponent. [The federal] government says NEB is flawed but they continue to use it.” Underwood says the length and complexity of the process itself has worn down communities, forcing them to agree to the pipeline. “It is a completely overwhelming process. They sent us five boxes of binders and then we have information requests and you have to understand all the legal and scientific terms. How do councils cope if they don’t have the background or the time to review it? You realize how projects like this go under the radar, if they don’t have good scientific and traditional knowledge experts and a legal team.” In order to hire the legal and scientific experts to do the studies, review the proposal, and argue the case, councils sign “capacity agreements” to receive funding for those purposes. These agreements are often misrepresented by some as agreements to support the pipeline, another tactic that confuses both the public and some members of the community. As Pelkey notes, “We said in our [capacity] agreement that just because we were accepting funds to do the independent research, we were not obliged to give them a thumbs-up to increased tanker traffic in our territory. I personally spoke out against the pipeline because I didn’t want even myself as hereditary leadership to be seen to be bought off by any kind of…agreement.” The binding agreements are “Benefit Agreements”: once accepted, they have to be paid back if a community changes its mind about increased tanker traffic under a new council (they change every two years). The benefit agreement offered by Kinder Morgan in July of 2015 to Tsawout was a $3-million payout over 50 years. The Tsawout community members rejected this offer outright. Claxton, Underwood and Pelkey all fear that this offer might be reopened to the new council, who might be more open to the prospect for a variety of reasons, including the costs to Tsawout council for the process to date which have already put them in debt. The reason councils find themselves in debt, despite capacity agreement funding, is that the agreements do not necessarily cover the unpredictable costs of the process. As Underwood tells me, “Even with capacity agreements, there wasn’t enough to cover the changes in strategy by Trans Mountain or through Intervenor Information Requests (IIRs) that were thrown at us. We ended up spending a lot of our own money because they changed some of their witnesses. Canada should provide the capacity for us to address any changes, but they wouldn’t allow it.” One such Intervenor Information Request reads as follows: “We are seeking feedback from you on the completeness and accuracy of the concerns and issues you have raised and your views on concerns and issues that may have not yet been addressed by proposed mitigation measures or proponent commitments to this point in the process.” These kinds of questions take hours of professional time—first to determine what they are actually asking for, and then to answer them adequately. How can the accuracy of a concern about impacts of dilbit spills to a traditional fishery be measured? In his capacity as hereditary chief, Pelkey continues to speak out against the pipeline. Although the courts have determined that there is a requirement to consult traditional governance leaders, Kinder Morgan made no effort to approach Pelkey, or other hereditary chiefs of the W̱SÁNEĆ Nation, who have responsibilities for the Salish Sea, Gulf Islands and Saanich Peninsula and live in the five reserves of Tsawout, Tsecum, Tsartlip, Pauquachin and Malahat. Kinder Morgan only approached the elected councils of each Band. Malahat and Pauquachin signed a benefit agreement. Claxton states, “It is important for our full council to stand up for our people, recognize our rights and honour our W̱SÁNEĆ way of life in our traditional waters and territory.” According to Pelkey, this is the kind of conflict that is a direct result of the Indian Act governance model. When Tsawout successfully challenged the development of the Saanichton Marina in a court case years ago on the basis of Douglas Treaty rights and aboriginal rights, their lawyers advised council to put their hereditary leadership up front in terms of rights and actions on behalf of the whole WSÁNEĆ Nation. According to Pelkey, that hasn’t happened yet on the pipeline project. But it might now. Pelkey notes, “I believe that the time is right for that type of unified position of the entire W̱SÁNEĆ Nation. The main problem is that the Indian Act divided us up and created these little kingdoms. The W̱SÁNEĆ Nation includes all of us.” Briony Penn is currently working with Xenaksiala elder, Cecil Paul, Wa’xaid, on Following the Good River, due out in 2019. She is also the author of the prize-winning The Real Thing: The Natural History of Ian McTaggart Cowan.
  9. Can we undo, or fix, the 17-year-old Professional Reliance Model used to regulate BC’s resource industries? AN AUGUST ROUNDTABLE MEETING to discuss the future of BC’s public forests is held in the Cedar Room of the Legislature. It seems appropriate, as the threatened western red cedar is one of the victims of 17 years of a failed regulatory model for our public forests—at least according to most of the people seated around the table. It is also the first time in 17 years that this type of citizen engagement about the future of public forests has been convened in the Legislature. The person responsible for spearheading this conversation is Sonia Furstenau, Green MLA. She introduced one of the four conditions in the NDP/Green Supply and Confidence Agreement: a commitment to review the professional reliance model (PRM) of forest management in British Columbia. MLA Sonia Furstenau The seemingly innocuous request “to ensure the legal rights of First Nations are respected, and the public’s expectations of a strong, transparent process is met,” understates the huge significance of PRM in the lives of British Columbians. It has affected the security of our drinking water, the viability of wildlife populations, the exacerbation of forest fires, the occurrence of disasters like Mount Polley, and the failure to uphold indigenous rights. PRM, put in place by the provincial Liberals, is at the heart of how 95 percent of British Columbia is managed and regulated. Fifty-four million hectares are in public ownership; half of that is under forest management agreements. Most British Columbians had never heard of PRM—before the last provincial election sent everyone scurrying to look it up. But that is all changing. No one is better qualified for the task of defining the slippery term than the publicly-appointed reviewer, lawyer Mark Haddock, whose experience with an independent review in 2015 made him the obvious candidate to lead this huge task. PRM is “the regulatory model in which government sets the natural resource management objectives or results to be achieved, professionals hired by proponents [e.g. forest companies, mining companies] decide how those objectives or results will be met, and government checks to ensure objectives have been achieved through compliance and enforcement.” At least that’s how it is supposed to work. One of the attendees at the August conference, John Irving, CFO of the SIMS Group, a construction firm in Prince George—and no fan of PRM—refers to it as “the fox guarding the chicken coop.” Haddock’s review, which came out at the end of June, contains 121 recommendations stemming from the 4,600 submissions. Those submissions lined up along citizen vs corporate interests “with fully 88 percent [of citizens] believing that the PRM does not strike a good balance between environmental protection and resource management,” Haddock reported. The two roundtables convened by Furstenau this August to gauge response to Haddock’s recommendations roughly reflect the same citizen vs corporate split. The citizens opposed come from every corner of British Columbia, whether rural or urban, white or First Nation communities, resource or tourist towns, Mackenzie or Metchosin. Alan Martin of the BC Wildlife Federation, a 40,000-member organization of hunters, fishers and trappers, and Torrance Coste of Western Canada Wilderness Committee, both call the model “an abject failure.” Pat Crook, mayor of Mackenzie, representing a northern resource town that wouldn’t normally sing from the same song sheet as southern environmental groups, describes the current forest management in the north as “sloppy and poor. There is little regard for other users on the land, or for the other values such as water and other riparian features.” Irving, who routinely works on public projects under PRM, argues that the public are not getting value from the model. “The economics are not better under professional reliance.” Also invited to the roundtable were emerging alliances like the Coalition of Forestry Reform that includes 16 (so far) small communities like Clearwater, Shuswap, Clinton, Juan de Fuca, etc; and the Professional Reliance Working Group of Concerned Citizens, a coalition of the Professional Employees Association, Ecojustice, Organizing for Change, BC Wildlife Federation, BC Government Employees Union, Fraser Watershed Initiative, Evidence for Democracy, and others. With smoke from forest fires permeating the Cedar room at the August 21 meeting, stakeholder groups express the urgency for action. Stories are shared of corporate mismanagement under the regulatory watch, or lack thereof, of PRM. Examples include the accumulation of burn piles on cutblocks exacerbating already critical fire conditions; exceeding 400 percent of the recommended cut level in the largest Timber Supply Area; playing “stumpage bingo,” a type of fraud through stumpage in an unmonitored environment; ignoring guidelines on the movement of spruce beetle-infested wood and thereby spreading the beetle through the region; and failing to take into account the increasing effects of climate change and other cumulative impacts. Attendees share their frustration that district managers have no legal authority to protect local communities’ drinking water—or habitat for moose, mountain caribou and other threatened wildlife. Citizens have no ability to review roads or cutblocks, or protect culturally important sites, old-growth forests, or recreational and tourism opportunities. Union representatives attribute this to the loss of 1,700 public employees who were the boots on the ground providing the science, inventory and oversight—but were laid off since PRM came into effect. Furstenau had invited all stakeholders to provide feedback to guide the next steps by government, but there are two noticeable absences. Corporate and professional associations, like the Association of BC Forest Professionals and the BC Council of Forest Industries, haven’t turned up, even though it is billed as a collaborative opportunity. Instead, the Forest Professionals are expressing concern that the principle of self-regulation is “undermined” in Haddock’s recommendations. The Council of Forest Industries writes in a press release that they are disappointed with the report “drifting well beyond [Haddock’s] terms of reference to propose unjustified changes to the forestry regulatory regime unrelated to professional reliance.” The top two recommendations in Haddock’s report are on governance, due to be implemented by the government in the fall sitting of the legislature. The first recommendation calls for the creation of an Office of Professional Regulation and Oversight that would monitor and direct forest (and other) professionals. The second calls for the passing of legislation to make this work. There was a clear mandate from the roundtable to proceed with this as an essential and urgent first step, but the 119 other recommendations must not slip through the cracks. The lone logging company at the roundtable, Timberwest, offered an opening gambit to government: If it wants the companies to protect values other than timber, government has to set those objectives clearly. Independent forest professional Martin Watts has been calling for clear forest policy that includes management objectives with measurable performance benchmarks that can be monitored over time, along with strengthened forest legislation. “These are public forests, not private. We need to return accountability and transparency to the public sector and hold government accountable for their work,” Watts says. He has filed a lawsuit against the government on this issue, and the pending case has highlighted the critical importance of governance recommendations that enable professional organizations to regulate firms, and provide whistleblower protection and competency requirements. “If these had been in place, I probably would not have had to resort to the courts,” Watts observes. Mackenzie’s Mayor Crook went further: “We need regulations to save the resource industry in the north.” The need for modernized land use planning was a stipulation by all. Van Andruss from the Coalition for Forestry Reform tells Focus, “This is just the beginning and we won’t go away until drinking water is safe in every community. We are in this for the long term.” Bob Peart, representing the PR Working Group, states: “I had no idea how bad it was out there. Forest practices are terrible and we will push for every recommendation to be implemented.” Watts sees the restoration of science and funding for wildlife management as the top priority to return a level of public trust to government. Megan Scott, representing the BCGEU, is calling for the restoration of professionals in the ministries as key to public health, safety and trust. She points to the loss of 25 percent of staff in compliance and monitoring as the cause of much of the failure of the system. The key question for everyone attending is: How far will Furstenau and the Greens push the NDP if they don’t implement the recommendations? If the NDP cave to industry, will the Greens use the Agreement to push back? As Peart states: “Horgan has been given a silver platter by Haddock’s report. He should take it.” Furstenau is adamant that she is not going away either. This is the issue, as played out at Shawnigan Lake, that drove her into politics and got a review of PRM on the agenda in the first place. With the majority of BC citizens supporting reform of public land management in some form, it seems impossible for Horgan not to run with it, especially with the smoke from forest fires still lingering in our lungs. Briony Penn is currently working with Xenaksiala elder, Cecil Paul, Wa’xaid on Following the Good River, due out in 2019. She is also the author of (the prize-winning) The Real Thing: The Natural History of Ian McTaggart Cowan.
  10. The recent renewal of fish farm tenures is just the latest in a long saga of denial of First Nations’ fishing rights. IN 1930, a group of First Nations fishermen gathered around a fire to wait out a storm on Langara Island. They were sheltered by their rowboats pulled up on the beach as the storm set in. Salmon prices were so low, gas so high, and federal policy so targeted to support commercial companies, the fishermen had abandoned motors and returned to hand-trolling to make ends meet. Visiting them that night was Haida elder Alfred Adams, Nangittlagada. He had come with an idea that he had picked up in Alaska—he wanted to form a Native Brotherhood (and Sisterhood) for increased recognition of aboriginal rights in hunting, fishing, trapping and timber harvesting in off-reserve traditional lands. And he wanted to meet with Ottawa officials about these matters. The BC Native Brotherhood was founded in 1931. Another leader of the Brotherhood, Guy Williams (Haisla), who went on to become a senator in 1971-82, wrote, “The men listened long into the night, no one noticing that the fire had gone completely out and the great rollers were still pounding the beaches heavily from the grey cloud wall at the edge of the world…” Ninety years later, at the edge of the world, the Brother and Sisterhood still fight on against a metaphorical grey cloud wall: that of the corporate fish industry, morphed into its latest permutation of farming Atlantic salmon. Three Dzawada’enuxw First Nation Hereditary Chiefs, including Willie Moon (r), deliver an eviction notice to workers at a Cermaq/Mitsubishi fish farm in 2016. (Photo by Tamo Campos) When the NDP government recently announced their decision to continue to allow open net-pen salmon farms until 2022, it was no surprise to the activist descendants of the fishermen on that Langara beach. Dzawada’enuxw First Nation Elected Chief and Traditional Leader Okwilagame (Willie Moon) of Kingcome Inlet stated, “We’ve been fighting fish farms in our territory for over two decades, and that battle does not end with today’s announcement. We will fight it in court through the various legal tools at our disposal…” Fighting fish farms is just one chapter in a century of fighting for aboriginal fishing rights, a battle where traction has only been gained through the courts. Politically, there has been little progress, federally or provincially. The pattern of pushing on ahead with ever more aquaculture, followed by token slow-downs, usually in the form of moratoriums, is all too familiar. The provincial government has no real jurisdiction for regulating the federal fisheries other than the granting of land tenure permits for the farm itself. It has only ever used slow-down-and-study approaches to fish farms over the last 30 years. In the 1980s, a Namgis fisherman, Chris Cook, joined the board of the Brotherhood right about the time the fish farms were being brought into his territory around Alert Bay. He was one of the first to warn his community about the impacts of the farms. He had already experienced the devastating social impacts of the 1971 Davis Plan, which implemented a fishing license buy-back program. The commercial fishing fleets were blowing locals out of the water, at the same time that stocks were declining. The buy-back program was the final nail in the coffin for small-scale native fishermen; it favoured those with capital who could improve the efficiency of their boats to meet increased operating standards. Through the buy-back program, the DFO reduced the number of boats; those who couldn’t afford to upgrade had no alternative but to sell. DFO further consolidated the fleet by giving larger boats the ability to obtain rights to fish in other areas. A token grandfather clause provided a special Native licence, but it only provided a right to fish, not the ability to sell the licence. The Brotherhood had some influence on the Indian Fishermen’s Assistance Program, in which capital was made available to upgrade equipment, but again it favoured existing boat owners who had the down payment necessary to get in on the scheme. Fishing policy did not change substantially when, in 1996, the federal Mifflin Plan replaced the Davis Plan—and neither did the results. Corky Evans, then Minister of Agriculture, Fisheries and Food for BC, summed up the two world views of fisheries at a standing committee on fish: “If you’re an economist, you would say that the Mifflin Plan to reduce the fleet to increase the viability of the remaining operators was a perfectly rational response to a changing technology and market conditions. If, however, you were a resident of Ahousat, or maybe a lot of the people in this room, you would say that it’s the elimination of half the jobs in your community.” Atlantic salmon open-net fish farms arrived on the coast in the early 1980s as mom-and-pop operations around Vancouver Island and the Sunshine Coast. There were just 10 farms in 1984, but within a couple of years, the industry had consolidated and grown ten-fold, and started shifting from farming local species of salmon to Atlantics. In the north, only the tiny remote village of Klemtu brought fish farms in. The village didn’t have much choice: it had lost all its fish boats through the Davis and Mifflin plans. It had a fish processing plant standing empty and few other options to sustain its community. Cook says Indigenous bands were left with no choice but to turn to aquaculture because of erosion of their fishing opportunities. He speaks about the divide-and-conquer tactics and his people “being used as pawns by the aquaculture industry.” A moratorium on further expansion of fish farms was put in place in October 1986, after pressure from fishers following a massive bloom of phytoplankton on the Sunshine Coast that killed an estimated 100,000 fish. That same year, a commission led by David Gillespie explored some of the stickier issues of growth. Again the Brotherhood raised alarms on the impact to their own salmon fishery, the commercial fishery, and the environment. But many fishing families had already lost their fish boats and livelihoods and so were left with no alternative to get any fish. The recommendation of the Gillespie commission was to lift the moratorium but introduce stricter, clearer guidelines. The moratorium was lifted in 1987 by the Socreds. During the early 1990s, salmon farms became increasingly owned by transnational corporations and more operating processes became automated, resulting in fewer jobs. Farm locations became concentrated off the coasts of the mainland and east Vancouver Island. In 1995, the NDP instituted a moratorium on the issuance of new salmon farm licences. Production at existing sites, however, was allowed to intensify. During this time, aquaculture companies ramped up their operations, forging an agreement with some Native villages, and increasing tension between neighbouring First Nations who had placed their own moratoriums on the farms. By 2000, the aquaculture industry accounted for 15 percent of BC’s total agriculture production. In 2001, fish farm expansion once again hit the pressure valve. The federal Auditor General’s Report came out, followed by the Standing Senate Committee, and the David Suzuki Foundation-funded Leggatt Inquiry. Not one of the three inquiries gave green lights to fish farms. Stuart Leggatt, a retired judge, was given independence to hear and review the evidence. Leggatt gave a definite red light and recommended a permanent moratorium and switch to closed-containment, land-based operations. Cook spoke at its release: “I’m tired of sending letters. I’m tired of talking. I hope my people stand up and start to fight.” The Standing Senate Committee recommended the precautionary approach, while the Auditor General reported that DFO was “not fully meeting its legislative obligations under the Fisheries Act to protect wild Pacific salmon stocks and habitat from the effects of salmon farming.” It recommended keeping the moratorium while more public review was conducted. In 2001, a Liberal government was elected provincially. Despite the recommendations of the three bodies, the moratorium on new locations for fish farms was lifted in 2002. The south was now wide open for expansion, while a battle was waged in the northern communities where there were still livelihoods to be made in the wild salmon fishery. By 2008, a total ban was placed on open-net fish farms on the north coast (north of Klemtu). In 2012, the $37 million Cohen Commission reported on its examination of the decline of sockeye salmon in the Fraser River, making 75 recommendations, most still unmet, though a moratorium on fish farm tenures around the Discovery Islands was put in place by the Province. In 2016, Chief Bob Chamberlin noted to the press, “The part I find disingenuous with freezing [licences] of the farms in Discovery [Passage], is that just up the coast, five or ten miles from there, they’re expanding the industry and creating new farms.” In 2017, Chris Cook was still fighting in his territory on Vancouver Island for a southern moratorium. His First Nation, the Namgis, led the way in setting up the first closed containment, land-based fish farm. At age 75, Cook told the press: “What happened to us, the coastal First Nations people? My words would be ‘economic assassination.’” Most recently, on June 20, 2018, BC Minister of Agriculture Lana Popham announced that any fish farm will need approval of local First Nations to operate beyond 2022. Fish farm operators will also have to “satisfy Fisheries and Oceans Canada (DFO) that their operations will not adversely impact wild salmon stocks.” Is this a true turning point, or just another twist in the tale of fish farms destroying the wild salmon fishery? Does it spell the end of open net-pen salmon farming on BC’s coasts? What happens if the NDP government gets defeated? How much damage has already been done? While the Union of BC Indian Chiefs views the new plan as “an initial step on the pathway to preserve and safeguard the future of wild salmon,” others are disappointed and wary. Chief Willie Moon of the Dzawada’enuxw First Nation is leading the legal challenge. The Dzawada’enuxw First Nation is not waiting around for another four years of negotiation with the fish farm operators while fish stocks continue to decline. The Nation’s lawyer, Jack Woodward, said, “What the Dzawada’enuxw require is legal rights now, not political promises four years from now, when there may be a new government in power with no obligation to follow its predecessor’s policy.” Meanwhile, six Kwakwaka’wakw First Nations, including the Dzawada’enuxw, continue their occupation of a Broughton Archipelago fish farm, which they began on August 24 of last year. As for the requirement that fish farms show they are not harming wild salmon stocks, many of the Indigenous salmon protectors of the north island have no trust in what they see as a politicized scientific community. Yet another standing committee has formed, and the prospect seems probable that the struggle over salmon fish farms on BC’s coast will become a 100-year war. Briony Penn is currently working with Xenaksiala elder Cecil Paul, Wa’xaid on Following the Good River, Stories from the Magic Canoe of Cecil Paul. Rocky Mountain Books, due out in 2019.
  11. Charged with criminal contempt of court while protesting the Trans Mountain pipeline, the author writes to Prime Minister Trudeau and Alberta Premier Notley about leadership. DEAR JUSTIN AND RACHEL, You might want to review the recent case of a Massachusetts judge who recently found that protesters were “not responsible by reason of necessity” for stopping the building of a pipeline “because the action was taken to avoid serious climate damage.” I, as one of the 200-plus—and growing—arrestees, was also acting out of necessity when I stood in front of the Kinder Morgan gates on Tsleil-Waututh territory. We arrestees, like other protestors from Massachusetts to Standing Rock, and Kitimat to Kalamazoo, are acting in the national—no, actually—the global interest. We are trying to prevent the crime of the millennium—stopping what BC energy economist Mark Jaccard calls, “the single biggest reason we will not meet our climate targets.” Targets that are essential to realize for our well-being on this planet. Briony Penn being arrested for protesting Kinder Morgan's Trans Mountain pipeline expansion I seem to remember that you were going to listen to people like Jaccard who provide evidence-based arguments. Jaccard, along with US climate scientist Professor James Hansen, knows what he is talking about. That is why he and Hansen were called up as expert witnesses to testify in front of the British House of Commons. Here is what they told those MPs: “If you are trying to hit that 2°C limit, you don’t dramatically develop resources like Canada’s oil sands, tar sands, or the heavy oil in Venezuela or in several other jurisdictions.” The reason I bring this up is that over in the UK, quite a few people have been listening to their testimony, including Mark Carney, now the head of the Bank of England. I think he has learned a few more things about international banking since he left the Bank of Canada. He and former New York mayor Michael Bloomberg have formed a task force on risk from climate change, that your minister, Catherine McKenna, attended. I’m sure that she heard them tell the world that Canadian banks are too heavily invested in the fossil-fuel sector, and that doing so undermines “the country’s leadership on climate.” One of their imperatives is for companies to disclose risks to their business from climate change as the world transitions to a lower-carbon economy. Kinder Morgan didn’t pass the test of full disclosure. According to a lot of credible energy economists, whether Jaccard, Robyn Allen (ex-CEO of ICBC), Carney or those with the Minnesota Department of Commerce who were reviewing the market analysis of Kinder Morgan for another one of their projects, the company has not accurately modelled the demand for global crude and its overseas price. Even Jeff Rubin, former chief economist at CIBC, was quoted in the Financial Post saying that the claim that the additional pipeline capacity to BC will “unlock higher prices is not corroborated by either past or current market conditions.” But whenever I listen to you, all you cite is Kinder Morgan’s figures for revenue and jobs, and none of these risks. So who is acting in the national interest? Who is following science? I am pretty careful about sources in energy reporting, because the reporting is generally appalling, even to the industry itself. EnergiNews states, “Is there a branch of journalism these days more politicized than energy reporting and opinion?” What we do get from you is political opinion. I’ve heard you make comments like, “Most First Nations along the route are strongly in support.” When I trace your sources I end up at one of energy columnist Claudia Cattaneo’s Financial Post pieces. Even the oil patch doesn’t trust Cattaneo. EnergiNews says “reading her is as cringe-inducing as fingernails on a chalkboard.” American Energy News dubs her “everyone’s favourite oil and gas shill.” It’s disturbing to hear you chanting from the same song book as her. Speaking of the media, even the CBC failed to accurately report a protest of 10,000 people until pressured to, and instead gave more coverage to a tiny pro-pipeline industry-sponsored rally. Only the two members of Parliament—from amongst the hundreds of arrestees—have ever been interviewed. Perhaps noticing that, Kinder Morgan got choosy about who they arrested on April 7. Grand Chief Stewart Phillip, head of the BC Union of Indian Chiefs, was viewed as more of a liability as an arrestee than standing in front of their gate, so he was not arrested. He would condemn you for “brazenly and arrogantly ignor[ing] First Nations rights.” He would state, “Now is the time to stand beside Indigenous people in support of our timeless struggle to defend Mother Earth. This is about water versus oil and life versus death, and ultimately, survival versus extinction.” There are 14 court cases currently being brought by First Nations, municipal governments, and the provincial government. This includes evidence going back to 2007 when a Kinder Morgan leak occurred in Burnaby. That was the same year the company first voiced their ambition to ramp up bitumen exports out of Burnaby, when the rejection of the Northern Gateway appeared likely. Much was learned by legal teams during the judicial review of the Northern Gateway project. Now there are opinions and precedents with seasoned lawyers honing complex legal arguments that will delve into: aboriginal rights both under treaty and outside of treaty; cases about jurisdictional matters between federal, provincial and municipal governments; validity of economic cases put forward by the company; liabilities once the bitumen leaves the pipes and gets into tankers; evaluations of claims of “world-class” clean up standards; incursions on federal legislation like the Species at Risk Act; the behaviour of bitumen; the inability of meeting federal emission targets with this kind of investment; the relationship with Washington state; and on and on. There is much of value to report on, but again the media fails. In a CBC analysis by Calgary business reporter Tony Seskus, he mentions five things to know about the Trans Mountain pipeline battle: not one of them is the court challenges or what they are about. Bob Chamberlin, vice-president of the Union of Indian Chiefs, who represents more than half of the 198 First Nations in the province, responds with the kind of analysis that American Energy News might appreciate. “[First Nations] have the authority to make decisions and this is a complex discussion. It is not where the [federal government] can pick favourites, divide and conquer as they always have.” Who are the “favourites” that the oil industry holds up in its media? The Financial Post loves citing BC Liberal politician Ellis Ross of the Haisla Nation. This is not the kind of non-partisan opinion that is going to instill confidence in investors. Within the complexity that Chamberlin refers to are three forms of governance which produce different “leaders”: traditional governance models under hereditary systems which vary with every community; the elected chief and council that liaise with colonial governments as defined under the Indian Act; and combinations of the two. For example, the Heiltsuk Tribal Council official governing body includes both the Hemas (hereditary Chiefs) and the Heiltsuk Tribal Council (elected leaders). Back in Enbridge days, an editorial team from the CBC erred in not doing their homework about alleged negotiator Elmer Derrick, his ability to represent the Gitxsan Nation, and his connections with industry, before leading with his story supporting Enbridge. On Haida Gwaii where a similar model exists, traditional governance systems dealt with the pressures of oil industry bribery by having two hereditary chiefs stripped of their names for signing a letter in support of Enbridge as if they represented the Haida at large, who opposed the project. A business or energy reporter, especially with no experience in these communities, is unlikely to understand or communicate the significance of these kinds of events to their readership, and the implications for rights and title. That is why there is such a focus on the courts, where evidence is painstakingly provided as to the legitimacy of leadership and the proof of free, prior and informed consent. It is a slow, complicated business. The Tsilhquot’in case took 26 years. But the courts can be trusted more than the press who lead daily with opinion—or the politicians. Canada operates under the rule of law. So it is disturbing to many of us to hear you, Mr Trudeau, saying “this pipeline will be built” when the courts have not decided key questions about it. Elizabeth May, during coverage of her arrest, said, “There are constitutionally enshrined rights of Indigenous peoples in this country. They are embedded in the constitution. No legislation can say that federal jurisdiction over interprovincial pipelines is paramount to the extent that it dissolves the rights of Indigenous peoples.” If you are about to invest two billion of our dollars in this industry, besides needing clarity on First Nations rights and leadership, you will also need understanding about what the “mutual benefit agreements” with some First Nations mean. Some are Letters of Understanding, some provide funding to do research on impacts in order to come to a decision, some are Term Sheets (a nonbinding template for a legal agreement). Most are agreements that if the project proceeds, then the community would wish to secure economic benefits. They do not mean that the project is supported. The “divide and conquer” that Chief Chamberlin refers to are the divisive electoral tactics, misrepresentation, fraud, and use of debt and bribery on the smallest, most vulnerable nations. If you’re serious about truth and reconciliation, you better take a deep hard look at divide-and-conquer colonialism. Unfortunately, it doesn’t seem to be on your radar. Instead we get more spin and charges that environmental protesters are “eco-colonialists” and that there’s a rift between them and First Nations. When I was on the unceded territory at the invitation of the Tsleil-Waututh Nation at the gates of Kinder Morgan, I was there with professors, oil engineers, teachers, lawyers, doctors, journalists, biologists, farmers, elders, technologists, artists and regular citizens of British Columbia, all standing behind First Nation matriarchs. There was no rift. We were standing in support of the real leadership in this country. Briony Penn is currently working with Xenaksiala elder, Cecil Paul, Wa’xaid on Following the Good River, Stories from the Magic Canoe of Cecil Paul (Rocky Mountain Books) due out in 2019. Trials for protesters arrested in recent weeks will begin in June and continue through October. Those who plead guilty, with some exceptions, will be liable for a $500 fine, or if unable to pay, 25 hours of community service. This does not apply to the two federal MPS arrested: Elizabeth May and Kennedy Stewart were scheduled to be in court with special prosecutors on April 30.
  12. Or was the battle fought over an invented crisis? IN THE KEYNOTE SPEECH at a recent conference on the value of nature in urban areas, Don Luymes, director of strategic initiatives in Surrey, cited a refrain that had many of the participants, like Saanich resident Carmel Thomson, nodding. “The battle for sustainability will be won or lost in the suburbs,” said Luymes. The suburbs of Saanich have become one of the most watched of these battlegrounds, because the stakes have never been so high: one of the hottest high-end real estate markets in the world vs. one of the most endangered ecosystems in the country. Emotions run high on both sides. Nowhere in Canada is there a place so rare and ecologically-important pitted against a global luxury housing market so aggressive. A new house under construction in Saanich amidst a Garry oak ecosystem, the kind of property subject to Saanich's EDPA bylaw Just as Premiers Notley and Horgan face off over a fundamental disagreement on what constitutes the national interest and constitutional rights (protecting oil investments or the coastal environment), Saanich residents engage in similar clashes over what is more important: protecting their property rights, or nature. Some, like Mayor Richard Atwell, are asserting that there is agreement that nature is valued, but disagreement on the best way to protect it on private property (or if, in fact, it can be protected on private land at all). Others are arguing that the biggest problem is leadership—a failure to listen and bring opposing groups together to work out a less polarized solution. For people like Carmel Thomson, a local landowner who has been at the forefront of sustainability initiatives in Saanich and is one of the members of SAFE (Saanich Action for the Environment), the 33-year battle for Saanich’s “rare ecosystems and vital habitat” lost a lot of ground it couldn’t afford to lose on November 6, 2017. That night, Mayor Atwell, and councillors Susan Brice, Karen Harper, Fred Haynes and Lief Wergeland, voted to rescind a bylaw and planning tool called the Environmental Development Permit Area (EDPA). Their one-vote majority was the result of the September by-election to fill Vic Derman’s seat (Derman died suddenly last year). Carmel Thomson and Saanich Mayor Richard Atwell Adopted by Saanich Council in 2012, the EDPA bylaw identified environmentally sensitive areas like Garry oak ecosystems in the municipality, putting them under a special set of guidelines, and requiring a permit before you could alter them (for example the construction of a new building or dock). The areas—representing about five percent of the 40,000 private properties in Saanich (and 52 percent of public lands)—were determined by various inventories of sensitive ecosystems, wildlife trees, and conservation data. Though a permit for alteration was required, numerous exemptions were allowed, for everything from hazardous trees to existing gardens and landscaping to small outbuildings and slope stabilization. If a permit was required, certain guidelines were to be employed. While proponents saw it as inoffensive and helpful, critics claimed it was heavy-handed and an invasion of privacy. Thomson traces Atwell’s decision to rescind the EDPA back to a pledge he made publicly to represent a group of anti-EDPA landowners called SCRES (Saanich Citizens for a Responsible EDPA) who were successful in convincing the mayor, at the start of his mayoral career in April of 2015, with their claims that an EDPA designation “places an undue burden on homeowners while not protecting the environment.” Atwell defends his loyalty to the anti-EDPA side: “I pledged to give a voice to the issue at the council table. This is what we do as elected representatives.” According to Thomson, this loyalty has led to a “failure” in public process that might have brought some clarification to these claims, and the bylaw itself. The issue has certainly attracted a more-than-average amount of controversy. The biologist who supported SCRES’ claims is now facing disciplinary hearings from his professional association over possible conflict of interest. With regard to public participation, the $50,000 independent review of Saanich’s EDPA (called the Diamond Head Report) described the process as “an acrimonious social discourse” and pointed to “confusion and misunderstandings about the bylaw and its implementation.” The acrimony and confusion seeped into town halls, open houses and the by-election to replace Derman, who had been pro-EDPA. Rather than clear up the misunderstandings or implement the recommendations of the Diamond Head Report, Mayor Atwell and council passed a motion to rescind the bylaw on November 6, 2017. The toxicity of the process pushed one frustrated citizen, Dr Lynn Husted (in support of the EDPA) to file a legal petition through the Canadian Charter for Rights and Freedoms, just for the right to express her concerns without interruption from Atwell and some members of council. According to Chris Tollefson, who is the executive director for the Pacific Centre for Environmental Law and Litigation and who took Husted’s petition forward, his rationale for supporting this case is “to stand up for due process and the rule of law when we see things going so sideways.” What he means by “sideways” can be seen on a video of that November 6 meeting, available on the Saanich Council website. What viewers will see is Husted trying to deliver her arguments for why Saanich should have waited before passing a motion to rescind the EDPA, pending results of the disciplinary hearing of the biologist. After being cut off on several occasions by the mayor and Councillor Haynes on what they perceived as a point of order, Husted was ordered to stop. Atwell apologized in a settlement out of court, but is not initiating any changes in the chilly climate of debate around EDPAs. According to Atwell, “The rules that currently exist have been in place since we began webcasting council meetings and remain in place unchanged.” When asked why he didn’t implement the recommendations of the Diamond Head Report (which was commissioned by Saanich) instead of rescinding the bylaw, Atwell stated: “The overwhelming response is that the EDPA is not working as intended, is burdensome and achieving little in the way of measurable results.” Thomson argues that Atwell’s position is inconsistent with the findings of the report which “confirmed the high level of interest, knowledge and passion Saanich residents have towards environmental protection in their municipality…there is support in the community for protecting the natural environment using the EDPA, but that improvement in the Bylaw is required.” The 77-page Diamond Head Report provides ample evidence that the EDPA is supported by the public, along with 15 recommendations on how to improve it. The consultation was extensive, and included a review of all public feedback from open houses, town halls, questionnaires, and interviews with landowners, staff members and council—as well as a review of economic impacts of the bylaw, and best practices in other local governments. Atwell’s reference to “measureable results” seems unclear, as the only measureable data available is what staff collected for 2016 on 20 permits for restoration. Those permits resulted in the successful planting of native trees and shrubs in all 20 cases, and removal of invasive species in half of them. AT THE HEART OF THE ISSUE is whether the battle for sustainability is losing ground because of the limited tools available, or the deteriorating state of public discourse—with real estate prices skewing the debate further. EDPAs are one of the few legal tools that a municipality has to influence how natural areas on private land are protected. It is the same kind of tool that has worked reasonably well for stream and tree protection, flood control, and hazardous slopes where the development permit designation provides restrictions, but also some flexibility to negotiate development design through the permit process. The tool has been available under the Local Government Act and Municipal Act since 1985, but it took Saanich Council 27 years—after a lot of lobbying from citizen groups and people like Thomson—to add ecologically-sensitive areas like Garry oak ecosystems to more conventional stream and slope protection measures. The Province kick-started the process in the early 1990s in the Capital region by leading the Sensitive Ecosystems Inventory Mapping project—a necessary first step to establishing this bylaw, and following on BC’s international commitment to biodiversity. The municipal role of protecting ecological values has only slowly been embraced, because the development industry has influenced, perhaps unduly, local government agendas. Understandably, those who had fought for this hard-won planning tool are not happy with the reversal, especially in light of the fact that the independent consultants found the majority of the public was in support of it. Part of the problem, Thomson suggests, is the misinformation that was generated by “well-lawyered landowners.” Much of the recruiting for SCRES appears to have emanated from Ten Mile Point. Eight properties that applied for removal from EDPA and were identified in the disciplinary hearing for the biologist’s “failure to undertake proper due diligence and ground work with respect to the preparation of reports” all came from two streets: Tudor and Seaview. Residents on both sides of the issue declined to comment, due to the toxic nature of the conflict. When trying to find a spokesperson for SCRES, Focus was directed to the biologist named in the hearings. On the SCRES website, a key resource listed is the Fraser Institute’s Stealth Confiscation: How Governments Regulate, Freeze and Devalue Private Property without Compensation, which claims that property values are lowered by these types of designations. SCRES’ campaign was launched in 2015 on that assumption. Leaflets were distributed stating “it punishes thousands of homeowners without compensation” and “Not only does it impact true property development or subdivision but it also impacts the enjoyment, use AND the resale value of thousands of private properties whose owners just want to plant gardens, add patios and build fences.” Yet a BC Assessment Authority report of January 2016 (obtained through a freedom of information request) stated there was no evidence that an EDPA designation devalued property in Saanich. Was this report ignored by those opposed to the EDPA? A January 2017 report conducted by Rollo and Associates concluded that in only a few extreme cases would the EDPA guidelines impact property values. These impacts could be eliminated by Saanich relaxing the EDPA guidelines for these very few properties. The authors noted that there was “quite a bit of confusion, uncertainty and misunderstanding regarding the impact of EDPA guidelines on land use and property development.” Again, we have to wonder whether this report, too, was ignored by EDPA opponents. Thomson doesn’t buy the idea that this is an unworkable bylaw. The Diamond Head Report points out that “similar EDPAs are implemented in many other BC municipalities without incident.” This includes North Vancouver, West Vancouver, Kelowna, Nanaimo, Campbell River and Surrey. Though “broadly comparable…none had the degree of protest seen in Saanich.” The consultants reviewed the use of EDPAs in nine other local governments and identified key elements that Saanich might want to adopt and improve on. Some of those strategies (outside of the EDPA), Saanich council is already endorsing. When mayor and council passed a motion to explore rescinding the bylaw on October 28, they also requested their staff “report as soon as possible on the potential of developing a Saanich program which includes the topics of Climate Adaptation, a Biodiversity Conservation Strategy, and Stewardship Program to serve as a policy framework for other Saanich environmental policies and programs and a new Environmental Development Permit Area be considered part of this program; and the Diamond Head Report recommendations be considered as a component of this report.” But by November 6, a resolution was moved by Karen Harper to rescind the EDPA. Dozens of citizens spoke forcefully on the matter—on both sides—and councillors opposed (Brownoff, Murdock, Plant and Sanders) made the point that it was imprudent to ignore the consultants’ recommendations, throw aside a bylaw that had been years in the making, and act contrary to the goal of a sustainable Saanich. Throwing the baby out with the bathwater doesn’t make a lot of sense to Lynn Husted either. “How can a close vote be able to overturn a bylaw that various reports found to be at least as good or better than others studied, that has been in place for six-plus years, and where most of the recommendations for improvements could be implemented within a year.” Atwell, on the other hand, seems attached to his voluntary approach to stewardship: “The municipality cannot police private property in any practical way. To accomplish that, it needs an incentive-based approach towards stewardship that gains social license and can be easily understood by residents. The EDPA took the opposite approach, and failed for that reason.” Stewardship programs have been underway in Saanich for years, with an Environmental Education Officer who administers programs like Naturescape; Our Backyard quarterly newsletter; the Garry Oak Restoration Project that showcases best practices; workshops; control of invasive species; and a native plant salvage program. Saanich has been leading the pack provincially in this regard, but voluntary measures have not halted the downward decline of this vital ecosystem. The Sensitive Ecosystem Mapping Inventory was completed over 20 years ago, and at that time, less than five percent of Garry oak ecosystems still existed, with over a third of these remnants in Saanich (of which roughly half were on private land, and half in Saanich’s parks). One thing almost all municipal planners will agree on is that tracking the success of policy is essential, and that voluntary measures only go so far before laws need to kick in at a critical level—and Garry oak ecosystems are at a critical level. Thomson and Husted are hoping that there will be some changes in the process: more education, more use of data about the current state of the environment, and building on the information and ideas generated through earlier consultation (i.e. research and reports like Diamond Head). “We could be engaging the wider community in identifying issues, generating ideas and, together, developing workable solutions that could include notions such as tax incentives for those who have natural areas.” In the Gulf Islands, for instance, the Natural Area Protection Tax Exemption Program (NAPTEP) provides a tax rebate of 65 percent of a landowner’s annual property tax on the portion of their land protected by a NAPTEP convenant. There are lessons to be learned from the wider community. According to Thomson, “the battle for sustainability can be won if Saanich shows true leadership, and lives up to its Official Community Plan’s commitment to being ‘a sustainable community where a healthy natural environment is recognized as paramount for ensuring social well-being and economic vibrancy for current and future generations.’ Preservation of our fragile ecosystems depends on it—and our children and grandchildren are depending on us.” Briony Penn’s most recent book, The Real Thing: The Natural History of Ian McTaggart Cowan, won the Roderick Haig-Brown Regional Prize and the inaugural Mack Laing Literary Prize. She now lives on Salt Spring Island, but she grew up in Saanich and worked on mapping Garry oak ecosystems in the Sensitive Ecosystem Inventory over two decades ago.
  13. One man’s graphic video evidence spawns new awareness of fish farming dangers—and a government review. IT IS MIDNIGHT ON BARANOF ISLAND, off the coast of southeast Alaska. Tavish Campbell, captain of the schooner Maple Leaf, has woken all of us up—crew and guests—to witness a mysterious phenomenon: the mass migration of small opalescent squid to spawn. The water is shimmering with millions of squid that have made their way up from deep on the continental shelf to spawn in the shallow bay in which we are anchored. Few people other than fishermen witness this summer spectacle, and it takes a certain passionate eye with experience to anticipate this kind of event. Campbell has shared many of these types of moments with people around the world, whether it is the lucky guests aboard the ecotourism boats he captains, or the followers of his powerful videography blog. His latest video has gone viral, but it isn’t about squid or the extraordinary diversity of life on our coast—it is about blood…diseased blood, and lots of it. Tavish Campbell On November 27, Campbell released his mini-doc Blood Water, documenting an underwater pipe spewing out blood and guts from a fish processing plant at Brown’s Bay, right on the edge of Discovery Passage, through which one-third of BC’s wild salmon migrate. The video points to the poorly-regulated and under-monitored treatment of waste from processing Atlantic salmon from open net fish farms. These farmed salmon threaten the native species, first when they are alive, and then when they are dead, by exposing them to viruses in the offal and blood. Blood Water is a visceral video, and was linked to and reported on by many news organizations. Campbell was busy responding to calls about the video when I reached him where he lives in the Discovery Islands, near where the fish farms in the video operate. The response was international, and is finally getting the attention of the people that can change the narrative once and for all—Dominic Le Blanc, federal minister of fisheries and oceans; and George Heyman, BC minister of environment. On December 20, Heyman announced a review of fish farm processing plants to ensure that contaminated effluent does not endanger wild salmon stocks. What has been most gratifying for Campbell is how the Blood Water video told the story of disease and viruses in a way that other attempts to raise public awareness of fish farming have failed over the years. “I was surprised at how far the video went and is still going. When we captured these images, we knew it was going to be an incredible opportunity to tell a story. Viruses are difficult things to show visually, and then suddenly the image was there to show viruses being released. What we have to do now is to direct the conversation, that even if the effluent is cleaned up, the fish are still infected by virus, and there is still the spread of disease to wild salmon.” The release of the video coincided with the 100th day of the occupation of two fish farms in the Broughton Archipelago by the Musgamagw Dzawada’enuxw, a cause which Campbell supports and hopes people will connect to the Blood Water issue. “We are all coastal people who care about salmon and want open net fish farming to stop.” Campbell has been working on environmental issues as long as he has held a camera and sailed a boat, which has been most of his life. He was described by CBC’s The Current as a naturalist and underwater videographer, which he was pleased with. “Sure beats being called an activist!” he laughs. “An activist is someone who wants change. I just want the systems that have been around for thousands of years to stay the same. I think the radical activists are the corporations wanting to change everything.” Campbell is also a captain aboard various ecotourism boats like Maple Leaf, research vessels for organizations like Pacific Wild, and his own family mothership, Columbia III, which takes kayakers around the coast. A captain since he was 19, he has had the opportunity to explore a lot of the coast since his voyages on his first boat, which he and his twin sister, Farlan (also a captain), got at the age of 12. “We were allowed to sail anywhere on multi-day adventures as long as we could reach our parents on VHF radio. The only thing that limited us was the range of the radio.” Today, there are few places at which Campbell and his extended family haven’t aimed their cameras. They still keep in touch from their respective boats by VHF. “Anytime we go out and poke around and ask questions, we find things that are surprising and unexpected.” In his travels, Campbell has worked with the Heiltsuk nation documenting the impacts of the commercial herring kill industry—largely owned by Jimmy Pattison—that included filming the incredible herring spawns of Spiller Channel. That fishery has now been stopped in Heiltsuk territory. Some of his footage has been used in CBC’s “Wild Canada” and BBC natural history productions. He also captured the ill-fated tug Nathan E. Stewart when it grounded and leaked over 100,000 litres of diesel into the pristine waters near Bella Bella. “While my colleague April Bencze and I were documenting the damage, a hurricane-force storm came in. We spent the night out in Gale Pass where the boat ran aground, and got footage of the big storm and the tug being bashed out by the storm.” It’s worth noting: No one else was out there from the “world-class” oil-spill team at that point. Campbell’s biggest passion has been documenting the clearcutting of old growth around his home in the Discovery Islands. The government has failed to live up to the spirit and intent of the Great Bear Rainforest Agreement, leaving decisions to industry. He attributes the problem to the BC Liberals’ “professional reliance” system, currently under review, where government sets the management objectives to be achieved, and professionals hired by corporations decide how those objectives will be met. Critics call it the “fox guarding the hens.” Professional reliance coupled with deregulation, leaves the public interest high and dry. Campbell has recorded the details of the clearcuts, the stumps of old growth, the trashed wetlands, and riparian areas that even the companies’ foresters haven’t walked. He says, “The trouble is that no one is out on the land anymore, and the people who are, are involved in industry. That means people can get away with whatever they want because no one is watching. If a company’s sole motive is making profit, they are going to do surprising things. We are always able to find something that shocks people.” For Campbell, the bigger story he wants to tell is that issues are related—from bloodwater to oilspills to clearcutting old growth. He also aims to encourage people to support a better regulatory system with rigorous, independent monitoring and oversight, instead of citizens having to monitor their own water and wildlife. When Blood Water went viral, he was accused of having some bias. “People asked, ‘Why are you doing these films, what is in it for you?’ I was fortunate enough to grow up in the islands with a connection to the natural environment. If you see something you love getting hurt, you go to help, not because it benefits you, but because you care, and it hurts not to do something. It isn’t theoretical or academic; I genuinely care about the area, and that is what drives me to do what I do.” Campbell fits his thoughtful documentations of coastal life into his work and spare time. It’s a labour of love, like getting up at midnight to witness the opalescent squid migration. To get a sense of this labour, go to his other viral video, This is Why I Care, and celebrate our wild beautiful place and the citizens who have tried to stop its destruction for the last 17 years. If you are a community member who has seen land use practices that you don’t feel are in the public interest, you can submit your comments to the Engage BC professional reliance input process available until January 19: www.engage.gov.bc.ca/professionalreliance/ Briony Penn’s most recent book, The Real Thing: The Natural History of Ian McTaggart Cowan, won the Roderick Haig-Brown Regional Prize and the inaugural Mack Laing Literary Prize.
  14. A ceremonial trip into grizzly territory with the Kitlope’s elder watchmen. IT'S 6 AM AT THE DOCK IN KITAMAAT VILLAGE. The spiders are busy weaving their last webs around the dock lights before the winter storms catch up with them. It’s drizzling and the morning light is just beginning to creep under the blanket of cloud. Cecil Paul, Waxaid, a Xenaksiala elder, clambers aboard the fish boat despite his recent broken foot and an illness that has reduced his solid frame to a lean one. He looks more like a young grizzly in March than the grandfather bear that he should be at the end of salmon season. Next to board is Gerald Amos, Haisla elder, who also shows a surprising agility, given his recent cardiac arrest from extreme sepsis that robbed him of much of his mobility and his famous oration skills. The two men, with family and friends, are taking their friend, Bruce Hill, back to the Kitlope where their work together on a coastal grizzly moratorium first began over 25 years ago. The voyage was originally planned to unite the three of them in a last trip to Qos Lake. Bruce Hill’s cancer overtook him, so they are taking their friend’s ashes in a glass jar to Qos to be watched over by Paul’s ancestors. Otherwise known as Kitlope Lake, Qos translates to sanctuary, or cathedral, in Paul’s Xenaksiala language. Bruce Hill, telling a story Hill died on September 18, 2017, one month after the grizzly bear trophy hunt was banned in the Great Bear Rainforest. It’s a fitting tribute to a man who, to quote Paul, “put his power saw away and came aboard the canoe.” Paul is referring to what he calls the supernatural canoe that he launched with Amos and his sister, Louisa Smith, in 1990 to guide the protection of the largest intact temperate rainforest in the world—the Kitlope or Huchsduwachsdu. The metaphor of the supernatural canoe captured the idea that no matter who came to save the Kitlope, there was always room for them. Bruce Hill, a one-time logger, sawmill operator and sport fisher guide was one of the first non-native people to turn up to help the Haisla—an unlikely ally being a “hippy ex-logger,” as Hill described himself. The Kitlope Agreement that established the Huchsduwachsdu Nuyem Jees/Kitlope Heritage Conservancy was eventually forged with the provincial government in 1996, the genesis for the later Great Bear Rainforest Agreement. It followed a ban on grizzly bear trophy-hunting, which was the forerunner to the ban in the whole Great Bear that is in place today. In the late 1980s, the impetus for the grizzly bear moratorium started with the elders, people like the late hereditary Chief Kenny Hall, coming to the Kitamaat Village Council with reports that the grizzlies of the Kitlope were disappearing due to trophy-hunting and poaching. Grizzlies are considered the guardians of the forest, so the Haisla started training band members as guardian watchmen to monitor and enforce the protection and stewardship of their Kitlope territory. They also started a children’s rediscovery camp, introducing a new generation to culture and science and providing hope for a community in crisis. The programs were run under the banner of the Nanakila Institute, which was the brainchild of the Haisla, along with Ecotrust, a group that joined the magic canoe early on. Nanakila Institute invited Hill to be its first executive director. A tipping point came very early on when Paul was with a group of children from the rediscovery camp. A grizzly-hunting guide, angered at the presence of children in prime grizzly area, threatened to shoot through the kids if a grizzly was there. Hill brought a deep understanding of how the trophy-hunting lobby and resource industries thought and worked. He helped point out that the Wildlife Branch had no capacity to accurately count the grizzlies in this huge remote watershed, monitor for poaching, or enforce regulations. Hill and the Haisla argued that, given so many unknowns, the grizzly quota, according to their scientific habitat modelling, should be brought down to zero. The next strategic step of the Nanakila Institute was to generate its own data by hiring independent wildlife biologists to do an inventory, with the Haisla watchmen to help. The inventory was the final bit of evidence that convinced the government to ban trophy hunting in the Kitlope, which met with international support on one hand, and threats of litigation from the trophy hunting lobby on the other. The Kitlope was one of the first places in BC to have trophy-hunting banned, and it helped precipitate the first-ever provincial grizzly management strategy. Hill, Amos and Paul continued to work for the protection of indigenous culture and the land, welcoming a growing community of British Columbians who stepped into the canoe to join them. The fledgling watchmen program has since spread to the Coastal Guardian Watchmen Network, an alliance of the coastal First Nations, one of the big success stories of the coast. Bruce Hill went on to help in every major campaign in northwestern BC from the Sacred Headwaters of the Skeena (the river he lived beside), the Nass and the Stikine, to Lelu Island. His obituary describes his ability to “foster unstoppable alliances between First Nations and non-indigenous conservationists.” Those alliances were formed in the magic canoe that Paul attributes to the teachings of his granny and matriarch of the Xenaksiala people, Annie Paul, born in the Kitlope in 1870. She lived to the age of 96 and weathered every arrow that came her way, from influenza to tuberculosis, and her grandchildren being taken away to residential school. IT'S AT THE VERY PLACE WHERE ANNIE'S GRANDSON CECIL PAUL was abducted in 1941 by government representatives that Amos, Paul and I arrive in our boat at dusk: the old village of M’skusa, at the mouth of the Kitlope River. At M’skusa is a replica of the Gps’golox pole, from which a supernatural grizzly bear looks over us as we load everyone into a smaller boat to get up the river to the watchman cabin before dark. The original pole was carved when Chief Gps’golox lost all his children and many members of his clan to smallpox, which was brought by white traders in 1863. Cecil Paul’s great grandfather was one of the carvers. As we trade boats, a real grizzly stands up close to the pole to see who has arrived in the estuary, and his well-beaten stomp trail around the pole marks his territory in the estuary. Diggings for rice root and browsed sedges are everywhere. The next morning, we travel the rest of the way up the Kitlope River in the smaller boat, layered up in wool and rubber raingear. Getting to the lake, Qos, is never guaranteed; the channels shift and get blocked with huge spruce trees and debris during seasonal floods. In Xenaksiala there is a word for the person who steers the canoe, dla laxii layewy. To be a true steersman requires skill and judgement. We come round the huge granite cliffs, cloaked in mist, that form a portal where the vista opens up to a lake flanked by ice-capped mountains that plunge into the milky blue water. We get to one of the old village sites that has a fine golden sand beach and unload the precious cargo. A fire and lunch are prepared, and then Paul begins the ceremony to ask his ancestors to welcome his brother, Bruce Hill, back to the Kitlope and watch over him. Paul is the last male fluent speaker of his language; his two sisters and a cousin are the last three fluent matriarchs. His beautiful language floats out over the lake like birdsong. Paul asked his ancestors for a sign that they will welcome a non-Xenaksiala man to the valley, and at that moment the skies parted, a beam of light lit up the group, and a rainbow appeared. A red-necked grebe swam by too, the last little joke from Bruce Hill that there is room for everyone, even rednecks, in this canoe. The ban on the grizzly trophy hunt will generate much more than many of us will ever understand. It is part of the process of reconciliation for culture, nature, the survival of humanity and rich ideas—beautiful ideas that will continue to help us all get in the canoe and paddle together with skill and judgement through the troubled waters of our time. Donations can be made in Bruce Hill’s honour to the SkeenaWild Conservation Trust for a bursary that will be used to provide leadership training to young conservation activists in the community. SkeenaWild.org. The new grizzly ban in the rest of BC excludes grizzlies hunted for meat. Consultations are being carried out with the Haisla, other First Nations and other stakeholders like Raincoast Conservation Foundation, which bought up coastal guide outfitting licenses to stop the hunt. Briony Penn’s most recent book The Real Thing: The Natural History of Ian McTaggart Cowan won the Roderick Haig-Brown Regional Prize and the inaugural Mack Laing Literary Prize.
  15. The practice may have played a leading role in creating some of BC’s most high-profile environmental blunders. FIFTEEN YEARS AGO, as a reporter for CHUM TV (aka The New VI), I got a call from a professional wildlife biologist in Port Alberni called Mike Stini. He’s an Island guy to the core—understated, drives a pickup, knows the bush like the back of his hand and, more than anything, loves this place and isn’t afraid to share his knowledge. He was clearly upset. The BC Liberals had changed all the rules on forest management, and suddenly wildlife experts like him, who were hired by government prior to harvest plans to identify the old growth where elk and deer overwintered, or find and map the bear dens and the goshawk nests, were being shoved out the door. His concern wasn’t about losing the work; he could always go back full-time to taxidermy. It was about what was going to happen to his habitat on McLaughlin Ridge, the forested mountains that were about to be levelled by industry. But the government seemed to reason that biologists like him were dispensable. If what was standing between a company and profit margins was a bear den, an ungulate winter range, or a goshawk nest, then the best thing to do was to get rid of the people who have that knowledge. My reporting crew travelled all over McLauglin Ridge to do the story, looking at the hard-won designations of old-growth management areas, riparian zones, wildlife trees, and habitat for species at risk. We even crawled right up to one bear den that Stini had been monitoring for years, to check out the condition of the bear who looked out at us in a torpid state from the old-growth tree that served as his home for six months. Stini had data stretching back decades on the bear dens that he had found in the region. Up on the south-facing slopes of the ridge, under the big old Douglas-firs laden with arboreal lichens, he pointed out the signs of the deer and elk that overwintered there, surviving on lichens that blew down from their canopies in each winter storm. All these areas, under the old designations, were about to be put under the control of logging company biologists—in a system that was referred to as “professional reliance.” The Forest Practices Code had been gutted, and the discretion to manage 45 million hectares of our public forests for the public’s interest, which included the protection of wildlife, water, recreational opportunities, cultural sites, subsistence hunting and so on, was now in the hands of industry. Under the new regime, there was no legal requirement to have the forest surveyed for ecological or cultural values prior to logging; it was up to the professionals hired by industry to judge. If the public wasn’t happy with “the results” in this “results-based system,” they could take issue. But what use would taking issue be after the fact? And how did one assess results when the evidence for what had been there was gone? Especially when no one had been mandated to collect it. Stini forecast that all the places that we visited would be logged under the new system. In 2015, I revisited those sites and he was right—everything was levelled, from the bear den to the winter range. Even worse, under the current designation of working forest, there is no chance the forest can even recover. In an industry-led cutting cycle of under 50 years, the trees will never mature long enough to produce a tree with a suitable diameter for a bear den, goshawk nest, or arboreal lichen to grow. Logging on McLauglin Ridge As Stini said in 2002 for the TV show, “Basically the wildlife is being punished by changing the rules all of a sudden. We are removing the checks and balances and turning it over to industry that is in the business of making money. All the habitat biologists feel strongly that this is backwards; they need to review the plans prior to logging, because once an area is logged, the habitat is gone forever. The real big danger is we are going to lose so much and no one will know. This legislation is so far-reaching that it will make it difficult for future generations to rebuild wildlife habitat. It is going to be a major problem. This legislation is wrong. It shouldn’t be happening.” The government extended the practice of relying on resource extractors’ own professionals to evaluate the environmental aspects of mining and other projects. “SILENT BUT DEADLY,” is how Green MLA Sonia Furstenau describes professional reliance. “Most people have no idea what it is. It’s only when you encounter it that you recognize it for what it is.” What is professional reliance for those who haven’t encountered the beast? After 17 years in the media following this slippery, seemingly innocuous monster that couldn’t make a headline if it drove itself off a cliff, I describe professional reliance, at best, as an elegant euphemism for deregulation and privatization. At its most egregious, it is this century’s master weapon for white-collar crime. Those who utilize these weapons—knowingly putting the public interest at risk—are referred to by David O. Friedrichs, a Distinguished Professor of Criminal Justice, as “trusted criminals.” Wendell Berry, land reformer and activist, calls them “professional vandals.” How do the proponents of professional reliance define it and defend it? And why is reviewing it one of the top four priorities in the 2017 Confidence and Supply agreement between the BC Green and NDP caucuses? With all the issues they could have picked, why did it push its way to the top? Forest Practices Board legal counsel Mark Haddock, who was with the UVic Environmental Law Centre in 2015 when he did a lengthy analysis of the failures of the professional reliance “experiment,” says it is a grey term and has multiple interpretations that can easily mislead. His definition is “the substitution of professional opinion from experts inside of government for that of professionals in the employ of the [resource development] proponents.” He suggests renaming it “decision-making reliance.” Furstenau thinks it should be rebranded for what it is—conflict of interest. British Columbians are not unfamiliar with how deregulation, with a loosening of standards around conflict of interest, can spiral into corporate white-collar crime. The Mount Polley disaster is a case in point of how badly it can go wrong with no third party oversight. The fact that the company, Imperial Metals, can continue to operate with no penalties, after destroying a lake for generations, clearly pushes citizens to the edge. Citizen groups are pursuing private prosecutions, and Premier Horgan has now committed to determine why a deadline was missed by the BC Liberals to lay charges against the company. Furstenau feels the blame should lie in the failure of government to protect the public interest by handing over the responsibility to industry. Over the years, corporate spin-doctors have found devious new ways to shed rules and government oversight, but professional reliance was a stroke of pure genius. Many were lulled into thinking that handing the management and oversight of our public lands and interest to a coterie of smiling, reliable professionals, with their reputations and professional associations hovering above to keep them in line, was a grand solution. After all, it was expensive to fund government-hired professionals. MLA Sonia Furstenau Furstenau’s close encounter with professional reliance was over the issue of South Island Aggregates and Cobble Hill Holdings filling an active quarry in the Shawnigan watershed with contaminated soil. She realized that not only could industry legitimately hire people who had a personal stake in that business (as employees, business partners or shareholders) to assess the environmental impacts of their activities, but there was no way to stop harm as long as those people were “up front” about their relationships. If the case hadn’t found a “deliberate concealment” of the discussion of ownership with the company hired to conduct the environmental assessment, South Island Aggregates might still be shovelling dioxins, hydrocarbons and furans onto what an independent hydrogeologist warned was fractured limestone “that provides no natural protection for the established drinking water sources in the region.” In the last 17 years, virtually every news story about damage to public forests, lakes, rivers and oceans, affecting wildlife, water, air, soil, climate, and First Nations rights, with repercussions on every aspect of our health, can be traced to flaws in professional reliance. The big issues like Mount Polley, the Testalinden Creek landslide, and Shawnigan Lake are what catch the headlines, but they represent a fraction of the damage to our forests, communities and wildlife that Mike Stini predicted. Citizens’ only recourse is to take the matter into their own hands, which is what they did in Shawnigan Lake. Haddock summarizes this state of affairs this way: “The deregulation takes government out of the picture and leaves health, safety and environmental protection outcomes to the ‘social license’ to operate for a given proponent or industry.” Removing that “social license” at Shawnigan Lake cost local citizens $2 million in legal fees and thousands of volunteer hours with the very real possibility, still, of a contaminated watershed. As Furstenau says, “I want to be able to live my life without having to monitor and watchdog every aspect of my life from the water I drink, to the bridges I drive over. This is the main reason I got into provincial politics—to build trust in government again to protect its citizens.” The lack of trust pervades not just government, but the professional associations themselves. As Furstenau points out, it isn’t their job to look after the public interest. And in a deregulated environment, with narrow terms of reference, there are virtually no laws to break, therefore no disciplinary actions to be taken. The whole thing is a Machiavellian bag of worms. Haddock, along with a recent report by Evidence for Democracy, both revealed the level of concern that many professionals themselves have with provincial decision-making on natural resources. Few professionals are willing to talk openly. But, under protection of anonymity, they told Haddock of the many problems: “expert shopping”; clear conflicts of interest, but no way to address it; lack of checks and balances; loss of expertise in government; lack of confidence in government monitoring; problems with independent monitoring; lack of confidence in the disciplinary process of professional associations; reduced formal public involvement; greater user conflicts; no one out in the field who knows what is going on; filtering of information by proponents; too many grey areas; inexperienced crews operating; cavalier approach to risk…and the list goes on. With the professional reliance model no longer being tied to the public interest, many professionals found it intolerable to work in an environment in which the term “stewardship” has largely been stripped out of their duties. And now, at least one has resorted to legal action: Professional forester Martin Watts has accused the Province of blacklisting foresters for raising concerns over the quality of inventory data. Watts is spending his retirement savings to fund a case he might not win, but which will certainly lose him clients. Furstenau, now overseeing the professional reliance file for the Green caucus, is at the information-gathering stage, helping Minister of Environment and Climate Change George Heyman set out a direction for the review. For her, citizen involvement is essential. It is important to hear from everyone who has been impacted by professional reliance, both within the professions and as citizens who have fought these issues. As she says, “this needs to be a robust review.” As for predicting the outcome of the review, she can’t speculate, but one thing is certain: She wants an outcome in which she can return to her community and not feel as if all the responsibility for safeguarding the environment is in the hands of volunteers like herself on the Shawnigan Lake issue. It is a powerful motivator, and biologists like Stini will be cheering from the sidelines. Briony Penn has been reporting on regional environmental issues for over 20 years. In the 2000s, she hosted the TV show “Enviro/Mental” which was nominated one of the top three magazine shows in Canada. She lives on Salt Spring Island.
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