The rules are clear. Sort of.

Culturally modified trees in B.C with marks showing they were used by Indigenous Peoples before 1846 are officially protected. But with little independent oversight, experts say these irreplaceable trees are regularly being cut down by the forestry industry.

The steady loss of culturally modified trees means historical gaps, hiwus Calvin Craigan, Hereditary Chief of the shíshálh Nation, said.

“A whole way of life has disappeared for my people and culturally modified trees are part of demonstrating that we have been here for thousands of years, using different resources in our forests,” he said.

Trees with marks where bark or boards were removed show how communities used — and continue to use — red and yellow cedar to build everything from canoes to houses, with soft inner bark used for weaving into clothes, mats, blankets and diapers.

Tree rings make it possible to identify the exact year bark was stripped and can show when and where people lived, helping to piece together histories fractured by colonization.

“The critical importance of this point is that … it is a physical marker of our territory. That we were there and we used it,” ‘Namgis First Nation elected Chief Councillor Don Svanvik said. 

Culturally modified trees can help reclaim jurisdiction over territory, Svanvik added. “This is the way to get the evidence,” he said. “We still need to demonstrate that we were on this land.”

But culturally modified trees are frequently being logged, sources told The Narwhal. 

“[Culturally modified trees] are being destroyed regularly because a lot are getting overlooked in archaeological impact assessments — when they have assessments,” according to Jacob Earnshaw, past president of the Archaeological Society of B.C, who specializes in studying culturally modified trees.

If an area of what the government refers to as “high archaeological potential” overlaps with an area that a company wants to log, it may require an archeological impact assessment. Some areas are deemed by the province to be too far inland or too difficult to access to be likely to contain culturally modified trees, so companies are not always obliged to look for archaeological sites before logging.

Earnshaw, who recently published a paper concluding industrial logging has caused the “erasure of cultural forests and thus Indigenous history from the landscape,” said he’s concerned by insufficient audits being done on cutblocks. “No one sees the [culturally modified trees] that are logged,” he said.

Why are culturally modified trees falling through the cracks? 

The current system of protecting culturally modified trees is known as a “professional reliance model.”

When an area is deemed likely to have culturally modified trees the company must hire its own archaeologist to conduct a survey and also consult First Nations. But when pre-1846 culturally modified trees are found — even if they are “protected” — the logging contractor can apply to the B.C. Archaeology Branch for a site alteration permit.

Then, unless the local First Nation has the resources and capacity to employ its own archaeologists and fight for protection, changing the logging plans, companies can be given a permit to cut trees down provided they record dates and write a report.

“The site alteration permit process is such a massive loophole in protecting Indigenous cultural heritage that you could drive a logging truck full of culturally modified trees through it,” Mark Worthing, who has an extensive history studying culturally modified trees and helps some Vancouver Island nations with tree surveys, said.

Hereditary Chief (Makwala) Rande Cook of the Ma’amtagila tribe of the Kwakwaka’wakw Nation, agreed the current system lacks accountability.

“A lot of these areas are remote, so there’s nobody there to actually see what is happening,” said Cook, whose territory spans northeast Vancouver Island and the Central Coast.

Though the exact number is unknown, the Ministry of Forests estimates there are 7,687 culturally modified tree sites across the province. Each site can have anywhere from one to thousands of culturally significant trees. 

“I’ve seen some where the bark was pulled 300 or 400 years ago, which makes our presence long before European contact very clear,” Cook said. “These markers geographically tie us to that land … Every time industry cuts one of those [culturally modified trees] down they are removing the evidence of our existence in that area.”

Culturally modified trees are not always easy to identify. The tree may have grown around the marks, or scars can be caused by natural weathering rather than stripping — that uncertainty means archaeologists may disagree about whether or not it can be cut.

On the Sunshine Coast, the environmental group Elphinstone Logging Focus won a decade-long battle proving the presence of culturally modified trees in an area known as the Dakota Bowl. 

During the dispute, a company hired by B.C. Timber Sales, which wanted to log the area and maintained the trees were not culturally modified, cut down 13 yellow cedars, including one that was 1,100 years old. They did so in an effort to prove they were not culturally modified trees. 

After four different assessments, the final decision found at least 77 trees slated for logging were culturally modified trees and therefore the company couldn’t log them. These trees are now registered with B.C.’s Heritage Branch and a 2021 agreement with the Sḵwx̱wú7mesh Úxwumixw (Squamish Nation) means the cutblock is now protected.

Ross Muirhead, longtime forest campaigner with Elphinstone Logging Focus, believes the root of the problem is professional reliance.

“The government doesn’t want to hire its own archaeologists so they allow the companies to do it. That’s when you get these conflicts of interest,” said Muirhead, who would like to see such assessments peer-reviewed.

Logging companies in B.C. have too much power, experts say

Worthing believes the problem is not so much what the government is doing, but what it is not doing.

“Most of the time, when it comes to archaeological heritage on the land base, it’s a dangerous don’t-ask-don’t-tell scenario,” Worthing told The Narwhal.

“Nobody really enforces the law, with the exception of some nations who are fortunate enough to have natural resource stewardship managers or even culturally modified tree survey teams, meaning they can independently negotiate directly with a licensee or forest company,” Worthing said. 

The Narwhal reached out to the B.C. Council of Forest Industries, which represents the forest industry in the province. Alexa Young, the organization’s vice president of government and public affairs, said the Forest Ministry would be best positioned to answer questions about culturally modified trees. 

In response to questions from The Narwhal, the Ministry of Forests sent a background statement saying it is the responsibility of the logging company to determine if archaeological sites — whether they’re registered or not — will be impacted by logging prior to harvesting.

But it’s not in the company’s interest to identify culturally modified trees or other archaeological sites, Cook said. “Industry and the government … are all working together. It’s like a system that’s tightly knit together to serve their own needs and that is the frustrating part.” 

Finding culturally modified trees disrupts logging plans and frequently areas are cut before communities have had a chance to assess the historical importance, Cook explained.

“Often there’s nothing left. Companies are blasting roads and clearing and just not taking into consideration how important these [culturally modified trees] actually are.” 

Legislation allows for fines of up to $1 million and imprisonment for up to two years for destruction or unauthorized disturbance of an archaeological site, but enforcement on logging sites is “weak to non-existent,” according to Chris Verral, president of the B.C. Association of Professional Archaeologists.

“It also very much depends on whether it gets reported at all. I am almost certain — and I think most of my colleagues would agree — that there are companies and people out there just cutting these things down and just hiding it. If it doesn’t get observed or called out, then enforcement doesn’t do anything,” he said.

“It seems to me to be left in the hands of the company a little too much,” Verral added. “I think the province could stand to bolster those protections and the enforcement process.” 

When asked how many fines have been levied in B.C., the Forests Ministry told The Narwhal their compliance and enforcement branch has conducted 75 inspections related to culturally modified trees over the last three years. Of the sites inspected, 14 were found to be non-compliant and six “resulted in an enforcement action.”

“It is important to note that inspections and enforcement actions related to [culturally modified trees] are often linked to other issues such as unauthorized harvest, unauthorized occupation or use of Crown land and other illegal or unpermitted activity,” a ministry statement said. 

What about culturally modified trees from after 1846?

Under the Heritage Conservation Act, sites containing artifacts or physical evidence of human habitation or use before 1846 – when the Oregon Treaty ceded territory north of the 49th parallel to Britain — should be registered as archaeological sites.

But trees modified after this date “are not protected and can be logged without any involvement of the regulator,” Verral explained.

“It’s a very arbitrary date. I think most archaeologists would agree with me that it’s not really reflective of anything we actually see on the ground,” he said.

“It doesn’t reflect reality and it doesn’t really offer robust protection.”

Protection of trees from after 1846 is something that many, including Cook, want to see change.

“It really should be 2022,” he said, adding that all trees need better protection. “I think like any other treaty and agreements nothing has been honoured. [Culturally modified trees] are still being cut down daily by industry.”

When asked about protection for trees dated after 1846, the Ministry of Forests’ statement said: “The Heritage Conservation Act provides automatic protection to sites that pre-date 1846, whether known or as-yet unrecorded, on private and public land.”

“This does not mean that all culturally modified trees that date to post-1846 are not protected, only that they do not receive the protection automatically.”

In response to the government’s statement, Worthing said: “Clearly the ministry is suffering from regulatory dissonance with the reality of cultural heritage features like culturally modified forests and the amount of destruction that logging companies are responsible for every day in B.C.”

The Ministry of Forests said it is currently working to transform the Heritage Conservation Act to bring it into alignment with the United Nations Declaration on the Rights of Indigenous Peoples.

“With respect to [culturally modified trees] dated after 1846, B.C. has heard the concerns of First Nations and others, and is working to improve protections and update the Heritage Conservation Act.”

A different way forward 

‘Namgis First Nation has 1,923 members, of which 573 live on its territory that stretches over the northeast coast of Vancouver Island. Protecting heritage is a priority for the nation and it has developed a good relationship with Western Forest Products and Mosaic, the major companies working in the area, according to Chief Councillor Svanvik.

‘Namgis has its own culturally modified trees teams and hires archaeologists, which are paid for by the logging industry, he said.

“We have our own crew that goes out and looks at every block that is proposed to be logged and we have found lots of culturally modified trees,” Svanvik said.

“We are involved early in the process and, if we find [culturally modified trees], that goes to the company and they plan around it,” Svanvik added.

“We told them that’s the way we want to do it. We’ve held conversations and times have changed. It’s not the same as it was even 20 years ago,” Svanvik said, acknowledging many trees were probably lost before any thought was given to protection.

Another important piece is the information the trees and other sites provide about the lives of ancestors, Svanvik said.

“For me, it has been very enlightening to come to the realization that our ancestors were foresters,” he said.

Bark harvesting is an art still practiced on ‘Namgis territory by John Macko. He’s using skills passed down through generations to make headpieces, skirts, masks and other regalia.

A key to protecting the big trees and the history they contain is ‘Namgis members got together at a general meeting and agreed on the path forward, Macko told The Narwhal.

“We don’t allow old-growth logging. We only let them log the young stuff,” he said.

When Macko peels bark he looks for 50- to 60-year-old trees that are going to be logged rather than the big, old trees.

However, not every nation has the capacity to do what ‘Namgis First Nation is doing.

“It’s difficult to put the energy into the other things we need to do and it can be really challenging, particularly for smaller nations,” Svanvik said.

While some nations have the capacity to employ archaeologists and conduct their own surveys, due to the ongoing impacts of colonization others do not have the financial means, staff or historical knowledge to adequately respond when a company submits a logging plan, he added.

“We are all funded to the bare minimum. We are kept extremely busy just trying to keep things going,” Svanvik said, pointing to crises such as struggling salmon populations and nations who do not have clean drinking water. “We’re prisoners of colonization and we’re too busy to escape.”

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For Owen Stewart, weeks of evidence presented in B.C. Supreme Court can be distilled into the most basic questions: who, where and when.

“The who is the Nuchatlaht, the where is the claim area on the northwest corner of Nootka Island and the when is the date that the British assumed sovereignty in B.C.,” said Stewart, a lawyer for the Nuchatlaht First Nation. The nation is battling for control of more than 200 square kilometres of Nootka Island, off the west coast of Vancouver Island.

The case, which will resume for final arguments in front of Judge Elliott Myers in late September, is among the first to apply the precedent-setting 2014 Tsilhqot’in decision, which granted the Tsilhqot’in Nation title to 1,750 square kilometres of territory. The Nuchatlaht case is also the first title case to test the province’s Declaration on the Rights of Indigenous Peoples Act.

The act, adopted in 2019, is meant to align B.C. laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) which states: “Indigenous Peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”

To meet standards set by the Supreme Court of Canada, the Nuchatlaht must prove they occupied the land exclusively in 1846, the date of the Oregon Treaty, when the British claimed sovereignty. The First Nation has records showing a historic line of hereditary chiefs, which remains unbroken today, and also has documented evidence of Nuchatlaht culture going back to 1778, when Captain James Cook sailed his ship Resolution into Nootka Sound.

However, lawyers for the province have argued that Nuchatlaht was not alone when the Crown asserted sovereignty over B.C. They argue the nation was “a relatively small and relatively weak affiliation of groups” and that, later, Nuchatlaht abandoned the territory.

Jack Woodward, lead lawyer for the First Nation who also shepherded the Tsilhqot’in case through the courts, has responded that Nuchatlaht were forced off their territory when extensive clearcut logging and destruction of salmon streams made Nootka Island uninhabitable.

“They were forced off their territory. Their land was expropriated without compensation,” he said at a recent webinar.

Reconciliation and UNDRIP on the line 

Arguments put forward by the province seem to contradict litigation directives from B.C. Attorney General David Eby. The directives were supposed to minimize the current adversarial approach to land claims by encouraging negotiated settlements and reducing the potential for legal action over Indigenous rights and title.

“The day the litigation directive was released we brought it up in court and the Crown’s lawyer got up and said ‘we reviewed the litigation directive and we anticipate no changes,’ ” Stewart said.

Nuchatlaht Tyee Ha’wilth (hereditary chief) Jordan Michael said in a statement that the province’s reaction represents a step away from reconciliation.

“There has been no show of good faith. The hypocrisy of the provincial government is very apparent and needs to be addressed,” he said.

Eby, in an emailed response to questions from The Narwhal, said the directives “are a formalization of my expectations of the conduct of lawyers in the Ministry of Attorney General. They are aimed at supporting negotiated resolutions and, where that is not possible, they are targeted to minimize the complexity and cost of court cases.”

“The Province respects the right of Indigenous Peoples to choose their preferred forum to resolve legal issues, including through litigation. The purpose of these directives is to ensure the conduct of litigation involving Indigenous Peoples is conducted in a manner that minimizes the potential for an adversarial court process to harm the critical and ongoing work of reconciliation,” Eby said.

The directives are an important step toward reassuring all British Columbians “that the provincial government won’t leave our commitment to reconciliation behind simply because we’re in court,” he wrote.

In light of what is happening in the Nuchatlaht case, the reaction from government lawyers is “very, very disappointing,” said Judith Sayers, president of the Nuu-Chah-Nulth Tribal Council, which has 14 member nations including Nuchatlaht.

With title and reconciliation issues at play, the Nuchatlaht case is being closely watched by other First Nations, said Sayers, who is also a lawyer.

Most nations are waiting to see how the case evolves before considering whether to follow suit. Even if Nuchatlaht wins this round, the province is likely to appeal, she said.

“The province has never seriously negotiated Aboriginal title,” Sayers said.

“We all thought that, with the [1997] Delgamuukw recognition of title, things could change. They didn’t. Tsilhqot’in happened and we thought things would change. They didn’t. B.C. has never seriously implemented court cases. They talk a good talk, but we haven’t seen any action and I think that is what First Nations are going to be weighing up,” she said.

One of the other title cases before B.C. Supreme Court is Cowichan Tribes’ claim to land near the mouth of the Fraser River in Richmond. It launched in 2014 and is still wending its way through the legal system. That claim is complicated by the inclusion of privately held land.

Many First Nations are reluctant to start legal action because of the cost, Sayers said, but UNDRIP includes clauses on compensation for land and resources taken without consent.

“I think that there’s got to be a process in place to start doing that,” she said.

Article 28 of UNDRIP states: “Indigenous Peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”

“Nuchatlaht has been very clear about how much of their territory has been destroyed by logging and yet, as you’re driving around you’re still seeing logging truck after logging truck leaving the territory. It’s quite shocking,” Sayers said.

New research on Nuchatlaht forest gardens 

A boost to the Nuchatlaht claim of continuous, historical occupation of Nootka Island has come from new research, published last month in the Journal of Archaeological Science, showing forest gardens were tended by Nuchatlaht on Nootka Island for hundreds of years.

The research, led by Chelsey Geralda Armstrong, assistant professor of Indigenous Studies at Simon Fraser University, working with Nuchatlaht knowledge holders, botanists and archaeologists, found that areas were cultivated to grow foods such as crabapples and berries.

Most of the forest gardens are found beside archaeological village sites and, although it is difficult to pinpoint exactly how long they have been in existence without looking at plant fossil records in the soil, the cultivated sites on Nootka Island appear to have been there at least 200 years, Armstrong said.

“There are also very rich ethnographic accounts of early colonizers who in the 1840s were saying ‘they are as careful of their orchards as we are of ours,’ ” she said.

The gold standard for title claims is whether the land in the claim area was used extensively and efficiently, whether for hunting, harvesting or orcharding, Armstrong said.

“Forest gardens, without question, show both those things … this is a really convincing case in my mind,” she said.

It is not known when a ruling will be made in the case.

“We have our fingers crossed for early in the new year,” Stewart said.

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B.C. permitted clearcut logging in the critical habitat of the Columbia North caribou herd, the sole herd out of the southern group of 17 imperiled southern mountain caribou herds to have an increasing, rather than decreasing, population. 

Eddie Petryshen, a conservation specialist with the environmental advocacy organization Wildsight, told The Narwhal he was shocked to find an approved cutblock in the Wood River basin, north of Revelstoke, which eats into the winter range of the Columbia North herd by more than 60 hectares.

Petryshen — who identified the cutblock from satellite map overlays, allowing him to compare approved cutblocks with critical caribou habitat — discovered 5.3 hectares of the area had already been logged, something he confirmed with the provincial government and company Downie Timber.

“I often go through cutblocks and where they are in relation to caribou habitat and this particular block stood out,” he said. “The Wood River is a really high value area for caribou and that particular basin was unroaded previously.”

All of B.C.’s southern woodland caribou herds — divided into north, central and southern groups — are teetering on the brink of extinction. The latest population figures, compiled by the provincial government last October, estimate just 1,254 animals remain in the southern region — down from about 2,500 in 1995.

Since 2006, six of the 17 southern herds have been listed as extirpated, meaning they are locally extinct. Seven herds are listed as decreasing and three are listed as stable, although with very small numbers.

With just 184 estimated individuals, the Columbia North herd is the only herd listed with a current population trend of “increasing.”

Yet the B.C. government is still approving logging cutblocks that overlap critical caribou habitat or require the construction of logging roads through protected areas that grant predators easier access into disappearing caribou range — and not just in the Wood River basin.

In his work for Wildsight, Petryshen has documented numerous other cutblocks overlapping critical habitat, many of which were auctioned by the government agency BC Timber Sales.

“It is pretty significant stuff,” said Petryshen, pointing out that one of the problems with current regulations is that cutblocks overlapping protected areas can be approved if they do not exceed five hectares.

“So what I am finding is a bunch of these cutblocks that overlap by two or three or four hectares. They are nibbling at these protections and doing it without actually replacing it,” said Petryshen.

“It’s kind of shocking,” he said.

“If we can’t protect caribou within provincially designated caribou habitat, where can we protect them?”

Under Canada’s Species At Risk Act, wildlife populations must be prevented from going extinct. B.C. is one of the few provinces in Canada that does not have provincial endangered species legislation and so in 2018, when the federal government threatened to step in to protect B.C.’s caribou populations, the province was compelled to take action, releasing a caribou recovery plan that was roundly criticized. The plan was critiqued for failing to implement strong measures to protect critical caribou habitat from industrial incursion.

In 2020 the province also reached a much-delayed caribou partnership agreement with the federal government and select B.C. First Nations that aims to pull six caribou southern mountain herds from the central group back from the brink of local extinction. The agreement led to some concerns that other dangerously small caribou herds, such as those populations in the south, might be sacrificed to continuing industrial development — in particular forestry.

Even in the wake of B.C.’s 2018 caribou recovery plan, numerous logging cutblocks have been approved in critical caribou habitat throughout the province’s south.

B.C. rules still allow for logging in habitat of critically endangered caribou

Habitat loss is accepted as the major cause of Western Canada’s caribou decline, with a recent study concluding caribou lost twice as much habitat as they gained over the last 12 years, driven by logging, road building, climate change and wildfire.

Southern mountain caribou are identified as threatened under the federal Species At Risk Act and, under federal rules, B.C.’s recovery strategy should effectively protect critical habitat.

“Human activities should be managed so that there is a high degree of certainty that caribou and caribou habitat will not be impacted, degraded or destroyed,” the province’s caribou recovery website acknowledges.

Yet B.C.’s caribou recovery plan does not extend to a ban on logging or mining — even in areas that are supposed to be protected under special orders or identified as ungulate winter range, which is defined by the province as “an area that contains habitat that is necessary to meet the winter habitat requirements of an ungulate species.”

A 2020 study found that 909 square kilometres of critical habitat for southern mountain caribou was logged during the five years after the herds were legally identified under the Species at Risk Act.

Where logging or other industrial activities are permitted, offsetting and mitigation measures are supposed to be employed to make up for incursions into caribou habitat. Petryshen said what he’s seeing out on the ground shows that is not happening.

A road about five kilometres long has been cut into the Wood River cutblock by Downie Timber, a subsidiary of the Gorman Group. 

Petryshen said there is no sign that the road is being decommissioned now that logging is complete or that efforts are being made to stop wolves and cougars travelling into the area where caribou feed. There is also no indication replacement habitat of higher or equal value has been added to the ungulate winter range as is supposed to happen when caribou critical habitat is disturbed, he added.

Petryshe said he is concerned that small incursions into critical habitat are not tracked and there is little government oversight or insistence that the habitat be replaced and roads rehabilitated.

“There’s no process that the province has undertaken to identify a replacement of those logged areas,” he said.

Darcy Peel, director of strategic initiatives with the provincial species at risk recovery branch and former director of the caribou recovery program, said forest companies usually obey the rules around ungulate winter range and wildlife habitat areas and he is confident incursions into no-harvest areas are caught and penalized.

“But there is a misconception that all [Ungulate Winter Ranges and Wildlife Habitat Areas] are no-harvest areas,” he said. “There are many that allow some harvesting to occur under heightened rules or special practices.”

Also, some formerly protected areas were exchanged because mountain pine beetle infestations meant they were no longer functional as caribou habitat, while other areas were hit hard by wildfire, Peel said.

“That brings in climate change and the acknowledgement that things are changing on the landscape. The big disturbances have become more frequent and, perhaps, there are places that are not going to come back the way they were before,” he said.

Landscape conditions drive the health of caribou herds and the provincial emphasis is on protecting older, intact forests, reducing the number of roads and restoring areas where there has been industrial disturbance, said Peel, acknowledging that additional protected areas and intense restoration work is still needed in some areas.

“The challenge is doing that on a working landscape, so we work with forest companies and there is still further work to do on that. We are starting to put big restoration plans in place and there is much, much, much more to come,” Peel said.

The area north of Revelstoke is a hot spot for the conflicting values of logging and caribou protection because old-growth forests rich in cedar and hemlock are prized by industry, while also providing vital caribou habitat.

Overall, B.C.’s caribou population has dropped from an estimated 45,000 to 15,000 over the past century. Columbia North is one of the few remaining viable herds, with 184 animals that interact with the neighbouring Wells Gray and Groundhog herds, but only 40 per cent of the critical habitat is protected through Ungulate Winter Range designations or special orders.

“And they are even chipping away at that 40 per cent,” Petryshen said.

A provincial forester, in an email to Petryshen reviewed by The Narwhal, confirmed that an analysis showed 93 hectares have been logged in the Revelstoke/Shuswap ungulate winter range, which is supposed to be a no-harvest area.

“The intention of these caribou ungulate winter ranges were to protect caribou habitat. If we are failing to do that, it is very, very alarming,” said Petryshen, pointing out that 93 hectares amounts to 130 soccer fields of logging.

The email from the provincial forester states that one block was logged to salvage blowdown timber and others were either salvage logging, were approved before the regulations were put in place in 2009 or replacement habitat was provided.

Petryshen said an ongoing problem is the number of loopholes in regulations, such as approving roads through a protected area if there is no other feasible way to access timber.

Kerry Rouck, corporate forestry manager for the Gorman Group, whose subsidiary Downie Timber logged the block identified by Petryshen, said harvesting and the access road were approved before the caribou habitat order was approved in 2009 and, at that time, there was a provision for “work-in-progress” to go forward without major redesigns.

About 65 hectares of the 120 hectare block was harvested in 2020 because of an active spruce beetle infestation and the rest of the block will be left standing, so will contribute to caribou habitat, Rouck said.

Only small slivers of the logged area overlap protected habitat and other slivers outside the protected area were left standing, he said.

“The net effect is probably just a shift in the slivers, but no reduction in the overall [protected area,” he said.

The company is working closely with caribou management teams to develop a road rehabilitation plan “to make it less attractive for wolf travel” and the goal is to complete the work once reforestation has finished later this year or when funding becomes available through the Habitat Conservation Trust Foundation, Rouck said.

Tree planting along the road corridor will not have an impact for several years because of the snow load in the area, so other tactics, such as placing obstacles across the road and recontouring parts of the road, will be key, Rouck said.

Ideally, road rehabilitation should be incorporated into the stumpage system so it could be done on a wider, as-needed basis, rather than through proposals to the Habitat Conservation Trust Foundation, he said.

“When applied in concert with the other management tools — habitat protection, predator/prey management, maternity pens, recreation control etc. — we are optimistic that we will see the caribou population in the Revelstoke area continue to increase,” he said.

Splatsin First Nation, which formerly relied on caribou for everything from food and clothing to tools and snowshoes, has not hunted caribou for several generations because of decreasing population levels and shrinking habitat.

Once caribou disappear, ‘the whole landscape will change’: former Chief

Former Chief Wayne Christian said the problem is bigger than logging encroachments into designated critical habitat and larger areas need to be protected from logging and other activities such as snowmobiling and ATV-riding.

“The problem is that the caribou don’t stay in one place, they move around and, in [government’s] strategy they have failed to recognize the mobility of the caribou and that the caribou is a keystone species and, once they disappear, the whole landscape will change,” Christian said.

Instead of a piecemeal approach, the whole area should be protected, he said.

“If you look at what has happened over the last 100 years it is because of how they have opened up alleged Crown land — our territory — to logging, to mining and recreational use. The caribou have been driven out. In fact their habitat has been destroyed so they can’t survive,” he said.

Caribou memories, hardwired into the creatures’ DNA, are of the land and how they move around, leaving a minimal footprint on the land, and, when the area is disturbed, they disappear, Christian said.

The keys to caribou survival are truly protecting large swathes of land, enforcing those protections and restricting access and truly deactivating logging roads, he said.

It is estimated fewer than 230 southern mountain caribou remain in Secwepemc Territory, which stretches from the Columbia River valley, along the Rocky Mountains, west to the Fraser River and south to the Arrow Lakes.

Current Splatsin Chief Doug Thomas did not return calls from The Narwhal.

Culling wolves to save caribou continues in B.C. despite concerns

While habitat is being cut down, the province recently extended its controversial wolf cull by five years, citing the need to protect dwindling herds from predators, which follow prey such as moose and deer along logging roads into caribou habitat.

Since 2015, when the wolf cull started, 1,429 wolves have been shot from helicopters and it is expected that between 200 and 300 wolves will be killed each year of the program.

While government says that, without predator reduction, caribou herds will continue to decline and die out, others say the cull is not necessary or useful.

Chris Johnson, who has spent 25 years studying caribou and is an ecology professor at the University of Northern British Columbia, said that, especially in the southern area, the most effective strategy — and the biggest bang for the buck — would be to shut down the relatively few roads that take predators to higher elevations that are the last bastions of mountain caribou.

“Don’t get me wrong, moose and wolves can walk through forests, but [roads] do act as predator highways and, when caribou cross those roads, they run a greater risk of running into one of those predators,” said Johnson, who previously sat on committees advising the federal government on caribou recovery.

Johnson said he has wildlife camera images of wolves following moose and their calves up the logging roads.

“The kicker is the caribou have to cross the road to go from one range to another, so, when they make those moves, they are in trouble. They run a lot of risk of running into a wolf or a bear or wolverine,” he said.

In the winter of 2019, the province of B.C. spent $2 million killing 463 wolves in the habitat of 10 endangered caribou herds — an average $4,300 per wolf. During this time 10 wolves were shot in the habitat of the Columbia North herd where the Ministry of Forests, Lands, Natural Resources Operations and Rural Development spent $100,000 — an average of $10,000 per wolf.

Mismanagement of forests has caused the caribou decline and serious conservation measures are needed, rather than wolf culls, according to Raincoast Conservation Foundation senior scientist Paul Paquet. 

“This is wildlife management masquerading as conservation in a cynical effort to avoid doing what is clearly necessary — protect caribou from the ecological harm caused by people and industry,” said Paquet, who is a large carnivore expert.

Caribou depend on thick, old-growth forests to shield them from predators and provide the lichen they need to survive, but, over time, the logging industry has removed much of the old-growth and replaced it with younger trees and roads that provide convenient paths for wolves to access their prey, Paquet said.

“Caribou are now on a slow slide to extinction as victims of deadly incompetence and diminishing interest in environmental preservation,” he said.

B.C. caribou conservation complicated by industrial activity

The history of provincial efforts to protect mountain caribou stretches back to 2003, when the they were first listed as threatened under the Species At Risk Act. In 2005, a 14-member science team was put together to come up with recommendations. A draft recovery plan was released in 2006 and adopted the following year, with 10 special orders for caribou protection approved in 2009.

However, after the provincial government moved to protect caribou habitat in 2009, companies were compensated by being granted permission to log in nearby old-growth areas that were previously off-limits, Petryshen said.

“In all, the amendment made 7,049 hectares, or more than 8,000 soccer fields worth, of previously protected or constrained old and mature forest available for potential logging … That was so ridiculously absurd because caribou and old-growth forests are so connected,” Petryshen said.

A 2013 report by the Forest Practices Board, B.C.’s independent forestry watchdog, said the changes would result in less mature forest being retained, especially in lower elevations, and that logging those areas would fragment ecosystem connectivity and could make caribou recovery more difficult.

“It’s a very complex economic, social, environmental landscape that requires new thinking, all kinds of partnerships and everyone to be part of the solution,” said Peel, the strategic director with B.C.’s species at risk recovery branch. 

Forest companies are in a challenging position as they balance caribou protection with providing jobs and ensuring profits for the company, he said.

“So it’s an ongoing conversation that requires a lot of deep thinking to find solutions,” said Peel, who has worked on caribou issues since 2008.

Maternal penning and predator control are seen as short-term measures, but many experts point to the need for stronger habitat protections for caribou province-wide. This is especially the case in areas like those near Revelstoke where caribou populations may have a chance at repopulating their historic ranges.

“It is a complicated area for companies to work in … there’s numerous resources and users out there,” Rouck said.

Johnson, from the University of Northern British Columbia, said there is ongoing discussion about which areas are core caribou range — consistently occupied by caribou — because the provincial government has not released core habitat maps.

Surrounding the core is the matrix of areas that need to be managed for other factors, such as logging and logging roads, but, again, the government has not released the maps, he said.

“I don’t know why not. … You don’t need to be a specialist in caribou to know this species needs habitat and that habitat change is the primary factor resulting in caribou population decline, but many would argue we haven’t gotten far enough yet to protect those habitats for that endangered species,” Johnson said.

“I’m not party to internal government conversations, but I suspect there are some discussions about the implications for timber supply in releasing and managing core caribou habitat,” he said.

A Forests Ministry communications spokesman told The Narwhal via email that some maps were included in a 2014 Caribou Recovery Strategy that, under the agreement with the federal government, is being updated along with the maps.

“This work is underway now and we expect to be engaging Indigenous Nations and the public this year,” he wrote.

Forest companies will also be part of that discussion and Rouck said the Gorman Group takes social responsibility and caribou protection seriously.

“It’s not all black and white. There are rules about how you behave on the land base and what you do and then there’s what’s acceptable and sometimes the rules don’t address the acceptability. You have to go above and beyond in some cases,” he said.

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B.C.’s salmon farmers, already losing an uphill battle to win the support of British Columbians and federal politicians, are falling victim to a much tinier nemesis: sea lice.

For decades salmon farmers up and down the coast have struggled to control populations of the parasite, which feeds on the mucus and skin of fish before digging into their muscle and fat, making the creatures vulnerable to disease and death.

What’s become increasingly clear to industry and to federal regulators — but not made known to the public — is just how ineffective companies’ primary form of defence against lice, a chemical called emamectin benzoate (EMB), used under the trade name SLICE, has become in recent years. 

Although resistance to SLICE has been anecdotally evident in B.C. for almost a decade, and has been a well-documented problem in other salmon-farming areas, including Eastern Canada, almost all data from tests conducted by the industry and Fisheries and Oceans Canada (DFO) has remained under wraps. 

Until now.

In 2018, a First Nations-led agreement between salmon farmers, the provincial government and First Nations in the Broughton Archipelago, off the north-east coast of Vancouver Island, included a legal obligation to share data. And it’s through accessing this data that researchers have been able, for the first time, to glean new insights into industry’s losing battle against sea lice. 

The numbers show a long-term trend of resistance, said Sean Godwin, lead author of a new study, released Monday, which concludes that, since 2010, there has been a dramatic decrease in the effectiveness of SLICE. 

“Industry and DFO knew about this, but no one else did,” Godwin told The Narwhal.

“It wasn’t that much of a surprise given the persistently elevated counts that we’ve seen on farms throughout B.C., but we hadn’t seen the data to show that is the case.”

Bob Chamberlin, First Nations Wild Salmon Association chair, told The Narwhal seeing the released data “was like looking behind the curtain in the Wizard of Oz.”

Sea lice occur naturally in the ocean but crowded open-net pens create an environment where sea lice can easily multiply and spread. B.C. produced 87,000 tonnes of farmed salmon in 2018, according to the BC Salmon Farmers Association’s most recent reporting. That’s up more than three times from the 27,000 tonnes produced in 1995. More farmed salmon means more sea lice — and an increased threat to wild salmon populations, especially those forced to migrate past packed salmon farms, teeming with lice, up and down the B.C. coastline.

DFO has set a limit of three motile lice, or lice that are capable of moving off the salmon, per farmed salmon between the dates of March 1 and June 30, the time when young wild salmon which haven’t developed robust scales migrate out to sea and are most vulnerable to lice. Farms, which are required to publicly report lice numbers, must perform treatments when they have too many lice. 

But with a decreased efficacy of one of the main methods used as treatment, it’s unclear how salmon farms will keep their lice numbers low. 

Over the last month, companies Cermaq and Mowi reported several sea lice outbreaks that put farms over their licensing thresholds in Clayoquot and Quatsino Sounds off the west coast of Vancouver Island.

The sea lice problems are coming at a sensitive time for the salmon farming industry whose future is hanging in the balance with all 79 federal licences for farms in B.C. set to expire at the end of June. The federal government promised to remove open-net pen salmon farms from B.C. waters by 2025, a plan against which industry is enthusiastically pushing back.

Why B.C. sea lice resistance data wasn’t available sooner 

Independent biologist Alexandra Morton, who has been sounding the alarm about sea lice spreading to wild salmon since 2001, raised the problem of SLICE resistance in 2015.

Although people were openly talking about it, DFO did not admit there was drug resistance, Morton said.

“We all knew SLICE was only going to work for a while and yet there was no proactive response,” Morton said.

SLICE is federally regulated, but the province said there are “significant gaps in research as to its environmental fate” and reliance on the product as a single method of lice control has had negative implications in other salmon farming countries such as Norway, where the parasites have also developed resistance to the chemical treatment.

Limited information from bioassays — tests in which lice are exposed to emamectin benzoate — was released in 2012, and showed a few instances of decreased sensitivity to SLICE, but the results were assumed to be localized as the overall trend seemed to show the chemical was working, Godwin said.

A DFO background statement, provided in response to questions from The Narwhal, said bioassay information has not traditionally been requested or shared as part of the public reporting process.

“However, if there is interest in these results, DFO can consider making this information more widely available,” the statement notes.

Godwin said academics and non-governmental organizations have asked multiple levels of DFO staff for the data for more than a decade, including requests Godwin made to the department’s chief veterinarian in 2018 and 2019.

“None of these requests resulted in the data being made public, to the point that one scientist even tried to submit an official access to information request for the data via the federal government,” he said.

Mack Bartlett, research director at Cedar Coast Field Station, an independent, not-for-profit society that conducts research and education on ecological health in Clayoquot Sound, has been monitoring sea lice on juvenile salmon since 2018.

“Right now we are seeing issues controlling sea lice on farms,” said Bartlett, who has also tried, unsuccessfully, to get bioassay results from DFO.

Companies are using hydrogen peroxide treatments, freshwater baths and hot water devices to try and get on top of lice numbers he explained.

SLICE resistance was acknowledged by industry representatives at a salmon roundtable meeting in 2018, Bartlett said, adding that he was startled by the admission as, although it was happening elsewhere in the world, it had not been documented in B.C. The roundtable meetings include representatives from DFO, industry, First Nations and NGOs.

Salmon farm representatives responded at the meeting that they had identified resistance the previous year, but had come up with great new technologies to replace SLICE, he said.

In 2018, as resistance took hold, some farms reported up to 50 lice per farm fish and DFO reported an average of 14 lice per fish. DFO’s reporting from the time noted the majority of fish farms in Clayoquot Sound and some off the northwest coast of Vancouver Island were suffering from high infestation rates that saw salmon over the threshold limit.

“SLICE was an amazing tool that worked really well until resistance developed,” said Bartlett, whose research has found most juvenile wild salmon swimming through the Clayoquot area have lice attached.

Until there is a good way to control lice, it is unlikely that wild salmon and the farms can co-exist, he explained.

New ways to control sea lice in action, but some concerns remain

B.C. needs to catch up with the rest of the world in having more options to control sea lice, according to Godwin.

“We have been using other methods in B.C. for the last couple of years, but we’re really so far behind,” Godwin said.

One innovation is a semi-closed system trialed by Grieg Seafood B.C. Ltd. The semi-closed system, with retractable barrier, is being installed at three farms in Esperanza Inlet, off the west coast of Vancouver Island.

A Grieg news release said the new system prevents interaction between wild and farmed salmon populations, provides protection from harmful algae and drastically reduces sea lice numbers.

“During the trial period at our west coast site, we were able to keep sea lice levels so low that the fish did not require treatment for lice,” Grieg managing director Ricky Boschman said in the release.

Methods used in other countries include bubble nets around the farms, nets that keep fish deeper in the water, bio-controls — such as introducing species of fish that eat lice — and laser technology. However, many methods produce their own problems, such as lasers blinding fish.

Brian Kingzett, BC Salmon Farmers Association science and policy director, told The Narwhal that the declining efficacy of SLICE is not news to the salmon farming sector.

“We have warned the federal government for a decade that we need access to a broader range of environmentally safe and effective tools for sea lice management,” Kingzett said.

Bioassays are only one tool that veterinarians use as a predictor of the sensitivity of lice to SLICE, Kingzett said when asked why results are not public.

The industry is studying resistance to SLICE, but is also investing in other technologies, such as specialized boats to give hydrogen peroxide or freshwater baths to fish so multiple techniques can be used in rotation, minimizing the risk of lice developing a tolerance, Kingzett told The Narwhal.

“The companies have probably made over $100 million in investments in these new vessels,” Kingzett said.

But there are concerns that the boats may be doing more harm than good as independent researchers claim that the hydrolicer releases lice directly into the ocean, possibly causing explosive hatches that infect wild salmon.

Dan Lewis, Clayoquot Action executive director, said his organization sampled effluent from Cermaq Canada’s hydrolicer earlier this month and found the discharge includes live lice, which can spread to wild salmon.

“We not only got lice coming out — we found dead herring, many with live lice on them,” he said. Cermaq didn’t respond to a request for comment prior to publication.

Morton, one of the researchers sampling effluent from hydrolicers, wrote an open letter to Fisheries Minister Joyce Murray on March 11 after meeting with staff from the federal aquaculture management division a week prior.

“When I asked if they had followed up on a potential breach of licence — release of sea lice from a mechanical de-lousing vessel — [the aquaculture management division] said they did not know how to sample this effluent. This water flows from a pipe sticking out of the side of a barge. Many of us are sampling this effluent, which is how we know sea lice are being released,” she wrote.

However, Kingzett denies that sea lice are spread by the boats.

“Filtration systems are in place on the new systems that producers have invested in and they are very effective. Also, the alternative treatments themselves are highly effective and used as part of a comprehensive, integrated pest management plan,” he said.

Kelly Speck, ‘Namgis First Nation councillor and a co-author of the louse resistance study, said the main concern of the Broughton nations is always the health of wild salmon and there are many questions about delousing methods being used.

“We’re not very supportive of using hydrogen peroxide because, while it dissipates quickly in the water, as soon as they dump that water from the boat it’s actually killing microorganisms in the water,” she said.

Sea lice are a major concern, but there are also viruses and pathogens spreading between farmed Atlantic salmon and wild fish, Speck said.

“There are 15 different pathogens and diseases that we are tracking and we have a separate research project going on that is looking at an additional 38,” she said.

“All of this information will feed into our assessment about whether having any farms [in the Broughton Archipelago] is an acceptable level of risk,” she said.

Under the Broughton Agreement, 10 farms have been removed from the area and seven remain.

Morton is concerned about freshwater power washing, especially after figures from Quatsino, posted by Mowi, showed fish with five times more lice after treatment than when they started.

“The incredibly dangerous thing is, if lice become resistant to freshwater — and they have become resistant to absolutely everything we have tried on them — they can go into the lakes and rivers and infect the young salmon and trout trying to rear in those rivers,” she said.

And with licences set to expire, fish farms are feeling the pressure, Morton adds. 

“The companies really know that this is ‘do or die.’ You’ve got to get your lice down and stay in compliance and they can’t do it.” 

Explaining the complex political landscape surrounding B.C. sea lice

Claire Teichman, press secretary to Fisheries and Oceans Minister Joyce Murray, said protection of wild salmon is a priority and the fish have been negatively impacted in recent years by climate change, landslides, flooding, habitat loss and fishing pressures.

Work on transitioning away from open-net pen farms is already underway and the department is in consultation with licence holders, with a decision expected in the coming months, she said.

But, there is a complicated tangle of mixed alliances, economics and the environment when it comes to the future of these farms off B.C.’s coast.

B.C. Premier John Horgan, in a March 10 letter to Prime Minister Justin Trudeau, said any federal plans to shut down salmon farms must come with transition help for the industry and workers, including coastal communities and First Nations.

“Regrettably, there is widespread concern in coastal communities that your government is poised to make a decision in coming days that will eliminate many, if not all, salmon farming licences,” Horgan wrote.

“If true, such a decision would eliminate hundreds of job hubs and undermine the economy of dozens of coastal communities,” he said.

A provincial environment ministry spokesperson said any federal licensing decisions should fully engage affected First Nations and provide time and clarity for businesses to adjust investment decisions while mitigating potential impacts to wild salmon.

“B.C.’s Broughton Archipelago process is a successful example of how we tackled the complex issue of reconciliation, wild salmon health and the needs of our communities. Our government hopes that a similar process can be established,” for remaining farms the spokesperson said.

Speck, from the ‘Namgis First Nation, said the Broughton agreement has allowed researchers to obtain important information. While 10 farms have left the area, the Broughton agreement notes seven remaining farms will continue operations if additional agreements between First Nations and industry lead to DFO licences being in place by 2023.

“[The federal government] is facing a very important decision and I hope they have the courage to live up to the mandate of the Department of Fisheries and Oceans: they are not there to create and protect an industry, they’re there to protect the fish and the environment and support wild salmon and other species,” she said.

Unanswered questions about the future of salmon farms include whether partnerships with First Nations will circumvent federal shutdowns and what power Indigenous governments will have to close fish farms in their territories.

In the Discovery Islands, a dense migratory zone for salmon returning to the Fraser River, former fisheries minister Bernadette Jordan, after consultation with seven First Nations, decided not to renew farm licences after June this year.

Companies then asked the Federal Court of Canada for a judicial review of Jordan’s decision and a ruling is expected shortly.

But some First Nations have agreements with aquaculture companies and a new group, the Coalition of First Nations for Finfish Stewardship, says on its website that “salmon farming is a path to self-determination and reconciliation for many First Nations in coastal B.C.”

An early version of the coalition’s map of supportive nations created immediate controversy by including the three Broughton First Nations, The Mamalilikulla First Nation, the ‘Namgis First Nation, and the Kwikwasutinuxw Haxwa’mis First Nation. The nations were “deeply offended” to be included on that map, says a release from ‘Namgis First Nation Chief Don Svanvik.

“The Broughton First Nations have individually and collectively opposed the presence of open net-pen feedlots of Atlantic salmon in their territories for decades,” he said.

The map on the coalition website was later adjusted to remove the Broughton Nations.

Dallas Smith of Tlowitsis Nation, in an emailed response to questions from The Narwhal, said the map includes First Nations “who have agreements of some sort with salmon producer companies” and the report is clear that it does not mean they support the industry.

“Every First Nation is taking their own approach to these relationships. Some are in favour of industry and others have decided not to have salmon farms in their territories,” he said.

The coalition, which says fish farms in coastal B.C. provide 276 jobs and $50 million annually in economic benefits, wants the federal government to renew the salmon farming licences for a minimum of five years to allow time for individual nations to come up with an aquaculture transition plan.

Chamberlin said the Crown must consult on any decision that infringes on Indigenous Rights and, in the case of migratory salmon, that means consulting all affected nations.

“We are talking about something that happens in neighbourhood one that could impact people in neighbourhoods five to 10,” he said.

“The concern we all have is about wild salmon and the introduction of lice and larvae into migratory channels. Giving the fish a wash, somewhere around the point, is not an answer,” he said.

Companies, First Nations and researchers are now waiting for the June decision on licence renewal and for details to clarify what a 2025 transition away from open-net fish farms will look like on the water.

Researchers are hoping decisions around the transition will include a close look at sea lice control.

“As long as you have a high number of lice on your farm, and you can’t control them, well, you are killing the young, wild salmon,” Morton said.

Updated on Apr. 8 at 9:07 a.m. PT: This story has been updated to correct the location of Clayoquot and Quatsino Sounds as off the west coast of Vancouver Island, rather than the east.

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As Archie Little anticipates the groundbreaking Indigenous title case heading to B.C. Supreme Court on Monday, March 21, he emphasizes the phrase supporters are using to describe the legal battle between the tiny Nuchatlaht First Nation and the provincial and federal governments.

“We’re small, but mighty,” said Little, Nuchatlaht House Speaker, confidently predicting the case will change the course of recent history for Nuchatlaht and also chart a path for other First Nations in B.C. hoping to lay title claim to their unceded territories.

“We won’t lose. We can’t lose. Losing is not in our vocabulary. We’re here to win. We’re here to change. We’re here to make things better for everyone … we all have to encourage the province to come to their senses quickly,” Little said.

The Nuchatlaht rights and title case, claiming about 200 square kilometres of Nootka Island, off the west coast of Vancouver Island, is the first to apply the precedent-setting 2014 Tsilhqot’in decision, in which the Supreme Court of Canada granted the Tsilhqot’in First Nation title to 1,750 square kilometres of territory.

It is also the first title case to test the province’s Declaration on the Rights of Indigenous Peoples Act, passed in 2019. The act is meant to bring all B.C. laws into alignment with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

So, as the Nuchatlaht prepare to take their arguments to B.C. Supreme Court, here’s what you need to know about one of the most important Indigenous title cases currently being fought in the province.

Why is the Nuchatlaht land title case heading to court now?

Intensive industrial clearcut logging by forestry company Western Forest Products has removed 80 per cent of the old-growth timber on Nootka Island and destroyed salmon streams, according to Nuchatlaht Ha’wilth (Hereditary Chief) Jordan Michael, who spoke about the legal case at a webinar hosted by the Wilderness Committee in early March.

But the provincial government, which manages forestry tenures and licences, has refused to recognize Nuchatlaht’s right to manage and protect their territory, Michael said.

In January 2017, expressing frustration that protracted treaty negotiations with B.C. and Western Forest Products were allowing extensive forestry operations to continue impacting water quality and salmon runs, the Nuchatlaht filed their land claim in B.C. court.

The case then stalled out, after the province claimed the Nuchatlaht did not have legal claim to their lands because the nation abandoned its territory.

The abandonment claim snagged the case in pre-trial limbo for years as the province sought to establish the Nuchatlaht’s abandonment of their territory. Provincial lawyers even requested the nation provide documents proving they did, in fact, abandon their territory. 

Jack Woodward, lawyer for the Nuchatlaht, said he briefly held out hope earlier this month that the provincial government might back down and settle the case outside the courts. But the case is now advancing to the B.C. Supreme Court in Vancouver, with the trial expected to last for eight weeks until early June, followed by two weeks of legal submissions in September. 

B.C. is arguing the Nuchatlaht abandoned their territory and did not hold Aboriginal title

Last week, Woodward received the province’s latest response to the nation’s civil claim which states B.C. “denies each and every allegation of fact” put forward by the Nuchatlaht, “except as expressly admitted.”

The province argues the Nuchatlaht abandoned Nootka Island, that B.C. laws displaced their Indigenous title — meaning forestry tenures are lawful — and that the Nuchatlaht Nation was a loosely affiliated group of First Nations families that was too small and weak to hold Aboriginal title, as it’s known in legal terms.

Woodward, who successfully litigated the precedent-setting Tsilhqot’in case — which established that semi-nomadic First Nations can claim entire territories, not only village sites — and is renowned for his role in drafting Section 35, which enshrined Indigenous Rights into the Canadian Constitution, is exasperated by the provincial arguments.

Nuchatlaht did not abandon their lands, but were forced off them when their territory became Crown land, making it an offense to build a house or cut trees on the territory, he said.

“They were evicted. They were forced off their land by the government. This is a disgraceful argument and I am embarrassed that our province continues to advance that position,” Woodward said.

The response document from the province describes the Nuchatlaht as “a collective of politically autonomous local groups” that cohabited in the territory between 1803 and 1846 and says that “there are not now and, since the 1980s there have not been, resident communities in the claim area.”

The document also claims the Nuchatlaht “is a modern-day Indigenous collective which, through the lineage of Michael family chiefs, is descended from an historical Indigenous group which used and occupied a part of the claim area at the time when the British Crown asserted sovereignty over Nootka Island and the surrounding area.”

The province also claims the particulars of the current civil claim are argued “without clarity and inaccurately and are denied.”

Woodward said, “It has been the shame of British Columbia. It’s really our original sin in this province that there have been no proper dealings with the First Nations about their lands, which were simply taken. What is new is that the current government has promised that they are going to conduct this litigation in a spirit of reconciliation on a principled basis.” 

How does B.C.’s fight against the Nuchatlaht square with the province’s promise to uphold UNDRIP?

The Nuchatlaht title claim is being closely watched as a test of the province’s commitment to UNDRIP as it is the first case to be brought before the courts since B.C. passed legislation to implement the declaration in 2019. 

The landmark legislation has been frequently referenced by the government as an example of B.C.’s commitment to reconciliation. 

UNDRIP recognizes the inherent rights of Indigenous people to their lands, territories and resources and requires Indigenous communities to consent to decisions — especially concerning natural resource development — that affect their rights.

“Indigenous people have the right to the lands, territories and resources that they have traditionally owned, occupied or otherwise used or acquired,” the declaration states.

But so far the Nuchatlaht understand the province’s fight against the civil claim as a reason to question B.C.’s commitment to UNDRIP.“Considering the way Canada has been towards us up to now, there’s been no sign of UNDRIP or any of that good faith yet, so I was not holding my breath,” Michael said during the webinar. While there was opportunity for Crown prosecutors to change their strategy when arguing abandonment, so far that has not happened. 

“Sure enough, there’s no change in their tactics. It’s pretty disappointing, but no surprise,” he added.

A spokesperson for the provincial Ministry of Indigenous Relations and Reconciliation told The Narwhal the province’s primary goal is to resolve issues outside the courts, but the government respects the right of Nuchatlaht to pursue their interests through the legal system.

“We are deeply committed to advancing reconciliation in B.C. —- guided by the Declaration on the Rights of Indigenous Peoples — and with meaningful consultation and cooperation with Indigenous Peoples,” a spokesperson said in an email.

Under the Constitution and UNDRIP “you cannot say that Indigenous title was displaced or extinguished,” said Woodward, who is also appalled by the argument that Nuchatlaht was too small and weak to have title in 1846 when the British Crown claimed sovereignty over Nootka.

“This is the bully’s argument and I’m embarrassed that our province is still making the argument that only the strong have a right to survive,” Woodward said.

The ministry framed its position differently in response to questions from The Narwhal, stating that since 2019 the province has based its negotiations on a recognition of the inherent rights of Indigenous Peoples, “with all agreements stating explicitly that government will not require Indigenous Peoples to extinguish their rights. … The province is not arguing extinguishment, nor has it advanced such a defence at any time since initiation of this litigation.”

But Woodward said that provincial claims that ‘if there was Aboriginal title it was displaced’ is functionally “the extinguishment argument recycled with a different word.”

“Nuchatlaht was small and they had this magnificent territory and a complex and very intricate network of diplomatic and family relationships with their neighbouring tribes which guaranteed their continued existence,” he said.

Documents to be submitted during the court case trace Nuchatlaht culture going back to before 1778, when Captain James Cook sailed into Nootka Sound, and illustrate an unbroken line of hereditary chiefs that continues to the present day. 

Nuchatlaht were wealthy people before colonization, smallpox and residential schools took their toll and, when they were at their lowest ebb, the government passed laws taking away their land and issuing forest licences to multinational corporations, Woodward said.

What would a title win mean for the Nuchatlaht?

When it was no longer possible to live on Nootka Island, Nuchatlaht members moved to reserves on Vancouver Island near Zeballos. Of the approximately 170 members, the majority now live off-reserve.

Michael said a win in the courts would allow the First Nation to start addressing some of their housing and social problems.

“We are all jammed on a little reservation, kind of like living in a third world country. The possibilities that are about to unfold, are just going to create a lot of opportunities for us,” he said.

Nootka Island was once a magnificent archaeological site with ancient cedar trees, many of which were culturally modified, and it has since been completely vandalized, Woodward said.

“It’s as if someone went to Athens and went up to the Parthenon and decided to use it to make marble countertops,” he said.

“Our argument is really very simple: that Indigenous people, like all Canadians, have to have the right to inherit the wealth of their grandparents. …  That right was cut off by government actions in the last decades and that is what we are going to fix in this court case,” he said. 

Western Forest Products, which is named as a defendant in the case, holds the major forest  licence on Nootka Island, but a declaration of Aboriginal title would negate the provincial Forest Act, and the licences it grants. And it would leave Nuchatlaht to decide how to manage their land, Woodward said.

The forestry company’s spokesperson Babita Khunkhun said the company could not comment as the case is a “pending legal matter.”

One of the main differences between the Tsilhqot’in and Nuchatlaht cases is that Nootka Sound’s coastal forest has greater economic value than what was at stake in the Tsilhqot’in claim. It is not known whether the province would have to buy out forest licensees if the Nuchatlaht case is successful and if, as the Supreme Court of Canada found in the Tsilhqot’in case, the Forest Act ceases to apply to those lands.

Little anticipates that a win will give the Nuchatlaht a chance to start healing the land.

Even with only 20 per cent of the land left unlogged, local management and local ownership will make a difference, he said.

“We have to stop somewhere and start helping good Mother Earth to recover. We can’t just keep taking and taking. We’re looking for solutions,” he said.

“Salmon depend on water and land. We can’t cut all the trees and expect the salmon to survive. We need healthy waters and healthy fish and healthy people,” he said.

Are neighbouring nations supporting the Nuchatlaht?

The province’s legal response to the Nuchatlaht claim says the government is concerned about possible overlapping title claims with the Ehattesaht and Mowachaht-Muchalaht First Nations, but Woodward said the nation’s claim ensures that it does not include any areas with overlapping claims.

“What distinguishes this case is the very careful way that Nuchatlaht have exercised restraint by not making a claim for any areas claimed by another First Nation,” Woodward said.

Irregularities in the claim area are where Nuchatlaht have deliberately pulled back to avoid any overlap, he said.

Ehattesaht and Mowachaht-Muchalaht confirmed to The Narwhal that they support the Nuchatlaht claim and there are no problems with overlap.

Ehattesaht Councillor Ernie Smith said the First Nation is 100 per cent supportive of the Nuchatlaht title claim.

“They are my relatives,” he told The Narwhal.

“We are all basically the same people, the same family. We totally support them and hope they win their case. We don’t have any territory on Nootka Island. Because we’re so close we have areas that we were allowed to go to, but we’re not claiming any of their territory,” he said.

In times past the nations gathered together for strength and power which is why there were many intermarriages, Smith said.

“And that is why we have survived to today,” he said.

Could the Nuchatlaht case help smooth the way for future Indigenous title litigation?

The slow pace of getting the case to court has been a frustration for Nuchatlaht and for Woodward, who has accused the province of deliberately dragging its feet. 

“I have always agitated to make it shorter,” Woodward said.

“All of the delay has been caused by the resistance by the provincial government. Canada is being more or less passive and British Columbia is just making it more expensive and more difficult,” he said.

Woodward said he is surprised that the victorious Tsilhqot’in case did not encourage more B.C. First Nations to bring forward title claims on their unceded territories. But he added that in his experience, First Nations are usually more interested in a negotiated solution than in a long, expensive court case.

However, as legal proceedings are smoothed out, more nations may be encouraged to take that route, he said. The Tsilhqot’in case took 25 years to work its way through the courts with a trial that spanned 339 days and cost roughly $27 million.

Woodward said his aim is to complete the Nuchatlaht case in 10 per cent of the time and 10 per cent of the cost of the Tsilhqot’in case and for subsequent cases to be increasingly efficient. 

Friends of Nuchatlaht, a supporter group, has raised almost $30,000 through crowdfunding to be used to help fund the court case.

A rally in support of Nuchatlaht is planned for 8:30 a.m. on March 21 at the Nelson Street entrance of the B.C. Supreme Court in Vancouver.

Updated March 17, 2022, at 3:47 p.m. PT: This article’s deck head was updated to note the B.C. Supreme Court is one of the province’s highest courts and not the highest court as previously stated. B.C.’s highest court is the B.C. Court of Appeals.

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There is a golden rule when it comes to tailings ponds: if you can’t build it safely, don’t do it, says Steven Emerman, the author of a new report on B.C.’s mine waste regulations. It’s a rule that Emerman says B.C. is continuing to break. 

The report, Bridging the Gap: Towards Best International Standards on Mine Waste Safety in B.C., looks at the province’s first internal audit of regulations for tailings storage facilities, released in April 2021. It concludes that, despite the province’s world-class claims, its legislation is not yet up to par with international standards on mine waste storage safety. 

“The audit’s overall conclusion that current B.C. requirements are ‘in alignment with industry best practice’ is not accurate,” according to the report.

This, despite the province’s experience with the Mount Polley disaster in 2014, when a tailings dam collapse sent 24-billion litres of mine waste flooding into the Quesnel Lake watershed. 

“It was a recommendation of the Mount Polley report — safety had to be the guiding principle …  project safety cannot be balanced against other project benefits,” Emerman, a consultant who specializes in evaluating the environmental impacts of mining, tells The Narwhal. Adding to the concern is catastrophic weather events in the province, he says.

Ugo Lapointe, B.C. Mining Law Reform Network co-chair and co-lead with MiningWatch Canada, says the report, published by the two organizations, underlines deficiencies in B.C.’s laws.

“The reality is that we still have out-of-date laws that will not adequately protect communities or the environment from mine waste disasters like we saw with the Mount Polley dam breach,” he says.

Emerman, a former associate professor at Utah Valley University who has led international projects evaluating mine risks and given presentations on mine safety assessments to the European Parliament and the UN Permanent Forum on Indigenous Issues, found the audit was lacking in scope and had significant limitations.

Climate change and extreme weather events not factored into B.C. mining regulations

In addition to highlighting omissions from the audit, the report makes specific recommendations for revisions to B.C.’s mining legislation, including mandating technologies that will reduce or eliminate wet tailings and banning upstream dams. 

B.C.’s regulations contain gaps that could put lives at risk, Emerman writes in the report, which was produced by the B.C. Mining Law Reform Network and MiningWatch Canada.

For example, the province does not require all tailings dams to be built to withstand the most extreme flooding and earthquake events.

“With climate change resulting in more extreme weather and atypical weather events, such requirements are more important than ever,” the report says.

The government should get the most up-to-date predictions on 100-year, 1,000-year and 5,000-year floods and incorporate that information into decisions, Emerman says.

Nikki Skuce, co-chair of the B.C. Mining Law Reform network and a director of Northern Confluence Initiative, agreed it is essential that B.C. brings in legislation to ensure mines and waste dams are designed to withstand extreme weather.

“The province has seen floods, heat domes, wildfires and atypical weather events due to climate change,” she says.

The report also suggested requirements for accountability, transparency and public disclosure of mine waste risks be improved as the audit concluded that the Health, Safety and Reclamation Code does not currently meet best practices or international standards for transparency, Emerman writes.

Another point of concern Emerman notes is that companies are not obeying the existing rules. The audit found that one in four tailings storage facilities were not in compliance with basic mine waste safety requirements.

“It raises serious concerns about the safety of mine waste facilities in British Columbia,” Emerman says.

Significant gaps found in B.C. mine waste regulations audit

The provincial audit did not look at the need to gain Indigenous and community consent before building, expanding or closing mine waste facilities, which should be required in line with the Declaration on the Rights of Indigenous Peoples Act, the report says.

The audit also omitted to look at risks associated with building mine waste dams near communities. Specifically, B.C regulations don’t prohibit mine waste dams immediately upstream from communities and sensitive ecosystems, according to the report.

“That is where B.C. regulations are furthest behind the times. I would say that nothing in B.C. legislation makes it impossible to build a tailings dam immediately upslope from a large city,” Emerman says.

“That almost happened with the Ajax mine, that was supposed to be right above the city of Kamloops on a steep slope. How was it that could even be considered?” he asked.

The federal and provincial governments rejected plans for the open pit copper and gold mine in 2018, after it was fiercely opposed by many Kamloops residents and the Stk’emlupsemc Te Secwepemc Nation.

The report noted another area that is opening the province up to risk is B.C.’s failure to require full financial assurances for mine site closures and post-closure costs, in addition to full financial insurance for accidental damages.

As was the case with Mount Polley, taxpayers are left holding the bill for mine cleanups in B.C. because the province does not demand adequate bonding from companies to cover the cost of reclamation or ensure there are hefty penalties for breaking the rules.

‘We’re still dealing with the difference between promise and practice’

In an emailed response to questions from The Narwhal, the Ministry of Energy, Mines and Low Carbon Initiative said safety is the top priority at all mine sites in B.C. and the ministry “is committed to maintaining world leading regulations and implementing robust oversight of all regulated mining practices, including those related to tailings storage facilities.”

The ministry has accepted all seven recommendations made in the audit and has committed to concrete actions to address them, the ministry statement says.

Enforcement provisions are being modernized and the mining code review committee, a 12-person group with representatives from First Nations, industry and labour, has formed a sub-committee to address the audit’s recommendations, according to the statement.

Alan Young, director of the Materials Efficiency Research Group, consultants on sustainable resource extraction, says the audit was an unprecedented step forward, “but we’re still dealing with the difference between promise and practice.”

The audit revealed significant gaps in B.C.’s ability to deliver tailings dam safety, but it did raise the right questions, says Young, who is also a member of the B.C. Mining Jobs Task Force under the provincial government.

“So, it’s kind of a good news/bad news story. The good news is that we are asking the right questions. The bad news is the answers are that we still need to do more work,” Young says. “What has to happen is the audit needs to generate the necessary changes in the bureaucracy to deliver on a safety first agenda.”

Young says B.C. is not alone in falling behind on best practices.

“The concept of best practices and tailings is a bit of a holy grail and we’re seeing a lot of theoretical best practices, but we’re not seeing a lot of practical best practices,” he says. “It’s a challenge B.C. shares with every other mining jurisdiction on the planet.” 

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A raft of proposals to expand open-net pen salmon farms on the B.C. coast, including a plan for a new salmon farm off the north-east coast of Vancouver Island, is raising questions about whether fish farming will really be phased out in the province or whether companies will find ways, such as partnerships with First Nations, to circumvent federal Liberal government pledges to remove open-net pen salmon farms from B.C. waters by 2025.

Applications to expand the number of pens or quantity of fish on existing farms have been made by Cermaq Canada, Grieg Seafood B.C. and MOWI Canada West Inc., the three major companies operating in B.C., and fish farming opponents are questioning why the applications were not immediately turned down.

Three of the 12 expansion proposals are in the Broughton Archipelago, where the B.C. government plans to phase out farms by 2023, and five proposals are in Clayoquot Sound where conservation and advocacy groups, including Clayoquot Action, have fought to have salmon farms removed because of diseases and sea lice transferred to struggling wild salmon stocks.

“It is outrageous that DFO would even consider increasing fish farm capacity or production levels in, of all places, Clayoquot Sound,” says Clayoquot Action executive director Dan Lewis, describing the applications as the last roar of a dinosaur industry trying to avoid extinction.

B.C. Salmon Farmers Association spokesperson Michelle Franze did not answer several questions from The Narwhal, but in an emailed statement said not all the proposed amendments involve more fish or more pens.

“Any increased capacity will be within licensing regulations and will not impact the health of the fish,” she wrote.

“All changes to existing farms or for proposed new farms [are] in concert with First Nations and we respect and support their rights to self-determination and governance of their territories.”

In 2019 the federal Liberals and other major political parties promised to phase out B.C.’s open-net pen salmon farms by 2025, although questions remained about whether that meant a transition plan would be in place by that date or whether the farms would be gone.

Newly-minted fisheries minister Joyce Murray, Vancouver Quadra MP, has since reiterated that she is committed to phasing out the farms and her recent mandate letter supports the 2019 pledge. 

The letter, issued Dec. 16, 2021, says the federal government will continue working with B.C. and Indigenous communities on a “​​responsible plan to transition from open net-pen salmon farming in coastal British Columbia waters by 2025.”

Murray, before her appointment, was already making it clear she wanted changes to salmon farming on the B.C. coast. In an email to her constituents, written last year, she said “Prime Minister Trudeau gets it. In the 2019 federal election he promised to end open-net pen salmon aquaculture by 2025. I will keep working towards fulfillment of that promise.”

In November 2020, after former fisheries minister Bernadette Jordan announced she would start consultations on ending open-net pen aquaculture, Murray described it as big news.

“The health of our sockeye salmon and concerns about the current salmon aquaculture methods have been a high priority since I was provincial environment minister and created B.C.’s first-ever regulations protecting the ocean floor from excessive waste generated by salmon farming operations,” she wrote.

Claire Teichman, Murray’s press secretary, said in an emailed response that the government is committed to transitioning from open-net pen salmon farming in B.C. waters.

However, Teichman did not say whether partnerships with First Nations would allow companies to keep farms in the water after 2025 or explain why expansion applications were not immediately rejected.

Teichman said applications for additional aquaculture facilities are assessed by DFO on a case-by-case basis and the minister’s decisions “are informed by departmental regulations, policy, science advice, fish health information and consultations with First Nations.”

Questions also remain about the promised transition plan, which, so far, has been limited to a report on public engagement and, with carefully-worded responses, it is not certain whether farms will be shuttered by 2025 or plans for the phase-out will be completed by then.

“We have committed to developing this plan by 2025,” a spokesperson for the previous fisheries minister told The Narwhal in early 2020.

Still, fish farm opponents remain guardedly confident that the commitment stands.

“I would be surprised if they back down because it’s another Liberal minority government, similar to the last one, and they made the commitment,” said Stan Proboszcz, science advisor for the Watershed Watch Salmon Society, which, with Clayoquot Action, Living Oceans Society and David Suzuki Foundation, is raising concerns about the expansion proposals.

“I can’t imagine a better Liberal minister of fisheries to get these farms out of the water,” Proboszcz said, referring to Murray.

But, the expansion proposals are puzzling, especially as most federal licences are set to expire in June 2022, Proboszcz said.

“There is this looming, very important deadline in June 2022, when we will see whether the government is committed to this,” he said, adding that a concrete, action-based transition plan leading to the 2025 phase-out is desperately needed.

The plan should include federal and provincial help for fish farm employees who lose their jobs, especially in remote and First Nations communities, Proboszcz said.

Lewis, the Clayoquot Action executive director, suspects the expansion proposals are an effort by the fish farming industry to gain concessions around impending shutdowns.

“It’s kind of a tactic. It’s like asking for a milkshake and getting a cookie. They hope by making a fuss the government will soften what they’re going to do and maybe keep the farms in the water,” he said.

“Just don’t get trampled by the dinosaur as it drops and flails around,” Lewis advised the federal government, adding a reminder that any expansion of the industry moves in the opposite direction of the commitment to remove the farms.

Lewis believes there is no time to waste in getting remaining farms out of the water, especially as Clayoquot Sound has now become a stronghold of the industry at a time when wild salmon in the area are on the verge of extinction.

“There are 20 farms here, all hidden up the inlets, so they are out of sight, out of mind. People who visit Tofino don’t even realize the fish farms are here,” he said.

Clayoquot has pristine old-growth, protected in the 1990s, so habitat is not a problem, but conservation wins are being undermined by the salmon farms and the loss of wild salmon puts the ecology of the entire area at risk, Lewis said.

Bob Chamberlin, chair of the First Nations Wild Salmon Alliance, is optimistic that the end of open-net salmon farming is in sight.

But, for those who have spent years fighting the farms, there is always a touch of caution as victories, such as the federal government decision to order salmon farms in the Discovery Islands to close by June 2022, are fought by the industry.

The four companies operating in the Discovery Islands — Cermaq, Mowi, Grieg and a numbered company — have launched a court challenge asking for a Federal Court judicial review of the decision.

“I have learned not to start singing and dancing until it’s done,” Chamberlin said.

Expansions and new farms must be approved by the federal and provincial governments. The province is responsible for tenures, such as any expansion in the area occupied by the farm, and the federal government is responsible for licences, including issues such as increases in production.

An emailed statement to The Narwhal from B.C.’s ministry of agriculture, food and fisheries does not clarify whether partnerships with First Nations will allow companies to continue operating.

“In June 2018 we announced a new salmon aquaculture policy, effective June 2022, which says no new tenures along B.C.’s coast unless the fish farm operator has negotiated agreements with the First Nations in whose territory they propose to operate and the operator can satisfy DFO (fisheries and oceans canada) that their farm will not adversely impact wild salmon stocks,” the statement reads.

Salmon farming companies lean on B.C. First Nations

While some First Nations leaders are becoming increasingly concerned that companies are pushing hard for partnerships in an effort to avoid closures, others are eyeing the potential economic opportunities.

Ernest Alfred (Kwakwabalas), elected councillor for the Namgis First Nation and a Tlowitsis Nation hereditary chief, said fish farm companies are taking advantage of First Nations communities by offering financial or job benefits.

Even though the real job numbers are usually low and many First Nations do not want the farms in their territories, it can result in split communities, Alfred said.

“When you go into these communities what you find is a lot of division thanks to industry which comes in with big, fat checks and basically bribes communities. We are talking about a lot of money, which communities really need, but, when you actually talk dollars and cents you are right back at the stage of talking trade beads and old blankets infected with smallpox,” he said.

Added complications are the differences between elected chiefs, looking for economic opportunities, and hereditary chiefs, tasked with protecting the environment, Alfred said. That along with overlapping territorial claims and the problem of downstream First Nations not wanting diseases or sea lice spreading to wild fish from farms supported by upstream nations, he added. 

While some nations, such as those around the Broughton Archipelago and Discovery Islands have fought to protect their rivers and wild salmon, others are looking at benefit agreements, he said.

“Our salmon swim past our neighbour’s territory and pick up sea lice, so how does their benefit agreement override our rights to have our fish return healthy and their right to say no?” he asked.

“It is really sticky.”

Biologist and wild salmon activist Alexandra Morton is not surprised the industry is fighting and she is concerned that, as companies read the writing on the wall, they are leaning hard on First Nations.

Although not all First Nations have come to the point of actively opposing fish farming, most are not comfortable with the industry because of the documented effects on wild salmon runs, Morton said.

“I can only imagine that, under their constitution, (the companies) have to do everything they can to protect the interests of their shareholders, so they’re trying to resist the trend of phasing them out,” she said.

“What the industry looks like to me is that it’s as if the Roadrunner has gone off the cliff and his legs are still going,” Morton said.

Attitudes towards salmon farms, both among the public and within DFO, have undergone a massive change in recent years, helped by cutting edge research into pathogens on fish farms, she said.

That change in attitude was seen in November in the $500,000 fine issued to Cermaq after the company pleaded guilty to spilling 500 litres of diesel into the water near Campbell River, Morton said.

“That’s the first fine I have seen. I know it was made by a judge, however, the Crown decided to go ahead and prosecute. Normally those things are let go. That’s a real shift in the mood,” Morton said.

That attitude shift was reinforced last month by a downgrading of B.C. farmed salmon by the Monterey Bay Aquarium Seafood Watch program which now lists the fish as “red,” which warns retailers with sustainable seafood procurement policies not to buy or sell B.C. farmed salmon.

The failing grade was assigned by Seafood Watch because of the ongoing inability of the industry to control the impact of sea lice, viruses and bacteria on wild salmon, as well as the use of delousing chemicals in farming operations.

Grieg Seafood’s B.C. fish farm proposal causing a storm of controversy 

Forming partnerships with Indigenous communities, even when First Nations are willing partners, comes with complications on the B.C. coast.

The problem of who speaks for a nation and which nations must be engaged came to a head in Port McNeill Nov. 30, 2021 when Grieg Seafood held open houses on a proposed new salmon farm in Chatham Channel.

The company, which has three more farms in nearby Clio Channel, is planning a joint venture with Tlowitsis Nation, but other nations also have claims in the area.

Ma’amtagila hereditary chief Andrew Wadhams, (Chief Hamdzidagame’ Siwis’) whose father was a hereditary chief of both the Tlowitsis and Ma’amtagila nations, said the site is clearly within Ma’amtagila traditional territory.

“We are letting them know that they are talking to the wrong people. They should be talking to us. This is our land,” Wadhams said.

“When they say this is Tlowitsis unceded territory, it’s not true,” he said.

Tlowitsis Councillor Thomas Smith said objections from other nations came as a surprise and, as Tlowitsis is in stage five treaty negotiations with the province of B.C., questions of overlapping jurisdictions should have been raised previously.

“Our traditional territorial map has been out since the beginning of the treaty process, going back to 1993 or 1994. There’s a lot of political intrigue going on and we are not quite sure why it is happening,” Smith said.

“We have had comments about it before, but we’ve never had anyone assert that we don’t have jurisdiction or it’s not ours … We’re going to try and work through it and move on,” he said.

The salmon farms are a benefit to the nation and will help finance a much-needed new community south of Campbell River, said Smith, who does not know whether Grieg’s partnership with the nation means they can carry on operating after 2025.

“We’ve done all the things we are required to do … and they can either approve our request or deny it,” he said.

Grieg communications director Amy Jonsson referred The Narwhal to a statement the company and Tlowitsis issued last June in which Grieg managing director Rocky Boschman said integrating Indigenous businesses into core operations reflects the work the company is doing around reconciliation.

Such integration is “how we create even more opportunity than before with our First Nations partners,” Boschman said.

Alfred said there is a major overlapping issue between at least four nations and the company has been told, in no uncertain terms, that, if the proposal goes ahead, it will be heading to court.

“Grieg Seafood was all but threatened with a hefty, hefty lawsuit,” Alfred said.

The proposed farm is causing angst because it would go slap dab between the two areas where farms have already been removed, Alfred said.

“In many views, it is really quite disrespectful to the many people that have fought to have the farms in the Broughton and the Discovery Islands removed,” he said.

Wadhams said hereditary chiefs were not contacted about the planned salmon farm or about the meeting and, after hearing about it at the last minute, many turned up at the open house in full regalia, accompanied by hereditary chiefs from other nearby First Nations who oppose the new farm.

“We have other nations reaching out to us in support,”  he said.

“All other nations, including the hereditary chiefs of the Tlowitsis and Ma’amtagila, are in opposition to adding any more farms in our area where our wild salmon migrate and (we want) to get the existing ones out,” Wadhams said.

Hereditary chiefs have control over land, waters, resources, title and rights — not the elected chief and council who are in place to run the band office, Wadhams said.

“So these guys aren’t including the right people at these tables and are overstepping their boundaries,” he said.

The Ma’amtagila Nation now has legal counsel and is writing to both levels of government about the proposal, Wadhams said.

“It’s mind-blowing. Our resources, our beaches and especially our wild salmon, are paying the price,” he said.

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Three years of negotiations, against a backdrop of international outrage from Indigenous communities, environmental groups and local governments, have ended plans by Imperial Metals to conduct exploratory drilling for copper and gold in the Skagit Doughnut Hole, a sensitive and unprotected area near the Canada-U.S. border, that contains the headwaters of the Skagit River and is encircled by Skagit Valley and E.C. Manning provincial parks.

The B.C. government has signed a memorandum of agreement with Imperial Metals and the  Skagit Environmental Endowment Commission — a binational group charged with protecting the Upper Skagit watershed — allowing the company to hand over its mining rights in the 5,800-hectare area, also known as the Silverdaisy watershed, to the provincial government.

The agreement is a step toward “protecting the rich natural heritage of the Silverdaisy watershed and surrounding areas for generations to come,” Premier John Horgan said in a news release.

First Nations will be integral in deciding on future protection of the area as “since time immemorial, Indigenous Peoples, including the Stó:lō, Syilx and Nlaka’pamux First Nations, as well as the Swinomish Indian Tribal Community, Upper Skagit Tribe and Sauk Suiattle Tribe have depended upon the pristine ecosystem and diversity of wild salmon running in the Skagit River watershed,” the release states.

B.C. Environment Minister George Heyman said the province now has “the opportunity to explore how best to manage this important area and its uniquely valuable connection to the surrounding conservation areas,” in future discussions with Indigenous nations and other stakeholders.

Imperial Metals, which has held the Giant Copper mineral claims in the area east of Hope since 1988, will be paid $24 million for the surrender which will cover “all prior investment in the Giant Copper claim area,” says an Imperial Metals news release.

The decision to surrender the claims recognizes the “challenges of obtaining mineral exploration and development permits in this area,” according to the company, which says the claim area contains copper, silver and gold.

In 1995 the company surrendered some claims along the Skagit River, allowing the area to be included in Skagit Valley Provincial Park, in return for a commitment to allow mineral exploration and possibly mining in the remaining Giant Copper claims, according to the Imperial Metals release.

“Our objective as a mining company would have been to proceed with exploration of our claims, but, as a company that is responsive to the aspirations of Indigenous communities, government and neighbours, we support this agreement,” said Imperial president Brian Kynoch.

In addition to fears that mining would destroy the environment and pollute the Skagit River headwaters, the battle against Imperial Metals — led by an international coalition of almost 300 conservation, recreation and wildlife groups, together with First Nations, Tribes and elected officials — was fueled by the company’s history.

Imperial Metals owns and operates the Mount Polley mine, near Williams Lake, where, in 2014, the tailings dam failed, sending 25 billion litres of toxic copper and gold mining waste into surrounding waterways. Opponents to the Donut Hole exploration plans said no company should be drilling in the area, but particularly not one with Imperial Metals’ record.

The $24 million to pay out Imperial Metals will come from a mix of government and non-governmental organization funds. The province of B.C. and Washington State will each contribute $7 million, the Skagit Environmental Endowment Commission will add $5 million and the Nature Conservancy of Canada will also contribute $5 million.

The agreement is being applauded by MiningWatch Canada, but the payout also reveals a gaping hole in B.C.’s regulations that could cost taxpayers further millions of dollars if left unchecked, said Ugo Lapointe, MiningWatch Canada program coordinator.

It is likely the company made a significant return on their investment with the $24-million buyout, especially if the company never officially identified mineral resources in the area, Lapointe said.

If that assumption is right, it could send the wrong signal to some companies and investors and encourage claims in other sensitive areas of the province in order to get buyouts, he said.

“To avoid this risk, B.C. should modify its’ Mining Rights Compensation Regulation to limit compensation to only the actual spending made by companies and not include any speculative market value losses,” Lapointe said.

The Skagit River, which flows from Canada into the U.S. through Washington State, the North Cascades National Park and into the Skagit River Valley before reaching Puget Sound, is home to endangered bulltrout and supports the largest population of threatened steelhead and chinook salmon in Puget Sound. The river provides one-third of the freshwater running into Puget Sound and the Doughnut Hole and surrounding area provides habitat for threatened North Cascades grizzly bear populations and endangered spotted owls.

In 2018, the possibility of far-reaching environmental effects if logging and mining were allowed in the Doughnut Hole brought a strongly-worded letter to Horgan from former Seattle Mayor Jenny Durkan, who pleaded for the area to be incorporated into the B.C. park system as originally intended.

The Doughnut Hole was left out of provincial park designations because of mineral and logging claims dating back to the 1930s, a challenge for the Skagit Environmental Endowment Commission, which was tasked in 1984 with acquiring mineral and timber rights in the Upper Skagit Watershed “consistent with conservation and recreational purposes” as part of the High Ross Treaty, signed between the City of Seattle and British Columbia. The treaty came into being after lengthy negotiations, which resulted from public outcry over a 1942 plan by Seattle City Light, the city-owned power company, to raise the Ross Dam, which would have flooded vast areas of B.C. land. The treaty resulted in an agreement to not raise the dam for 80 years, in return for a power purchase deal, and the creation of the cross-border Skagit Environmental Endowment Commission.

A legacy of dam building on the Skagit brought about the treaty, which tasked the Skagit Environmental Endowment Commission, composed of four commissioners from each country, with the responsibility of resolving disputes over the dams and maintaining the environmental integrity of the shared river. For decades, the commission has been unsuccessful in its attempts to buy up the mining tenures in the Doughnut Hole.

In previous years, B.C.’s decision to move ahead with resource development has caused tension with the commissions. In 2015, for example, the former B.C. Liberal government handed out timber sale licences in the area, leading to an outcry from both sides of the border and claims that B.C. was breaking the treaty.

In December 2019, the NDP government halted all commercial logging in the area and said no future licences for the area would be issued by B.C. Timber Sales. But that still left the area open to mining prospects and, in 2019, an exploration application from Imperial Metals provoked intense opposition.

Now, the move to extinguish the tenures, is bringing praise from current Seattle Mayor Bruce Harrell who thanked Horgan for the shared commitment to jointly protect the environmental integrity of the headwaters of the Skagit River.

“On behalf of the City of Seattle and former Mayor Durkan, I want to thank Premier Horgan for honouring our shared commitment made in the High Ross Treaty to jointly protect the environmental integrity of the headwaters of the Skagit River,” Harrell said in a statement. “We commend the Skagit Environmental Endowment Commission, a model for transboundary collaboration for the past 35 years, for their vision and persistence in retiring these mineral tenures so that the province can permanently protect the Silverdaisy area.”

The decision to remove mining rights in the area is gaining praise from many quarters with Joe Foy, Wilderness Committee protected areas campaigner, describing it as terrific news.

“It has been a long time coming, so this victory is very sweet indeed,” he said.

“Now this beautiful, wild area can get the protection it deserves and people want,” said Foy, who would like to see the area protected through Indigenous-led conservation.

“Now that the mine claims are gone, we urge the B.C. government to work in partnership with Indigenous Peoples whose territory this is, to legislate protection for the entire Skagit headwaters region,” he said.

Tom Uniack, executive director of Washington Wild, the conservation organization which coordinated the international opposition coalition, said the agreement is “incredible news” and represents a win for all parties.

The protection is also being celebrated in the Swinomish Tribal Community, said Swinomish Tribal Community Chairman Steve Edwards.

“This is an extraordinary conservation success that will benefit current and future generations of Coast Salish people and we express our gratitude to all our conservation partners who advocated with us to protect our salmon and ecosystem forever,” he said.

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The swollen creek, hurtling down a hillside toward Day Road on the Sunshine Coast, carves a path through the tarmac, chomps massive bites out of the road surface and then flings a metal culvert into the air while trees topple into the water.

The video, taken by a bystander, shows a scene that was repeated in communities around British Columbia as a rare weather bomb brought record rainfall and intense winds to the south coast. Roads washed out, landslides swept away vehicles, causing at least one death, and rivers flooded homes and farmland.

As thousands of British Columbians remain displaced and under evacuation orders, the province declared a state of emergency Wednesday. As the full extent of the flood damage across the province is being assessed many are questioning what factors might have contributed to such extensive flooding and mudslides, especially after a summer of deadly heat and devastating wildfires.

The combination of climate change, clearcut logging and poor forestry practices are being blamed as contributing factors in many communities. On the Sunshine Coast, where Elphinstone Logging Focus (ELF) has kept meticulous records of logging in controversial areas, the Day Road washout did not surprise ELF founder and forest campaigner Ross Muirhead who, before the exceptional storm, photographed plugged culverts and rain washing along logging roads.

“Just last year they completed 60 hectares of clearcutting in about six blocks all connected by 1.3 kilometres of new logging road. The road is at the bottom of the clearcut, so all the water was peeling off the clearcut,” said Muirhead, pointing out that, even in such an extreme event, an intact forest would have intercepted much of the groundwater.

“The bottom line is that our landscapes have become less resilient to handle these new heavy rainfall events due to human-caused disturbances such as clearcut logging and the associated road building — which has resulted in a huge-fold increase in surface runoff conditions,” said Muirhead, who mapped 10 cutblocks between Gough Creek and Clack Creek — auctioned off by BC Timber Sales — on the slopes above the road that was washed out by both the usually-benign creeks.

Around the Sunshine Coast, concerns extend beyond washed out roads to the effect of sand and gravel from clearcuts washing into wells, said Muirhead, who believes, at the very least, logging contractors should be obliged to figure out how much extra water will flow from clearcuts into communities so municipal staff can figure out whether culverts and roads will be able to cope.

In a letter sent to BC Timber Sales and the forests ministry, ELF is calling for a complete ban on all planned cutblocks and roadbuilding across the Elphinstone and Gibsons slopes. BC Timber Sales has at least seven cutblocks planned above the Town of Gibsons in the aquifer recharge zone, Muirhead said.

B.C. government urged to explore connection between floods and logging

Experts are reluctant to lay the blame for the catastrophic damage solely at the feet of the logging industry and the provincial regulations that allow clearcut logging to continue without consideration of climate change, but most agree that the hydrology of an area changes as soon as the forest cover is removed, whether by logging or fire, and that contributes to floods and landslides.

Peter Wood, author of a report written earlier this year for Sierra Club BC that looked at the relationship between forest management and severe climate impacts, such as droughts and fires, has looked at satellite images showing several of the hard-hit areas were heavily logged.

“I don’t want to jump to conclusions right away, but I think, at the very least, the Forest Practices Board or another government agency should look into this,” he said.

A forests ministry spokesman said in an emailed response to questions from The Narwhal that the link between clearcut logging and floods has been investigated for decades, but studies are often conducted on smaller streams and it is not clear how they apply to large river networks.

“We know clearcut logging can have a significant effect on hydrologic processes at both the forest stand and watershed scales. Loss of forest cover following logging generally results in increased precipitation reaching the ground,” he wrote.

However, the severity of the impacts depend on everything from vegetation type to timing and some studies have concluded that the effects of logging are not significant for very large storms, according to the ministry email.

Wood, who has a PhD in forestry from the University of Toronto, said it is sometimes easy to spot a smoking gun, such as a logging road that has slumped, but, often, it is a much larger problem, involving the entire drainage system, so it is essential to look at cumulative impacts.

If that drainage area has been heavily clearcut or burned, it will contribute more quickly to runoff as a mature forest acts as a giant sponge releasing water over time, he said.

“Even the rainfall that gets caught up in the branches and a billion little needles is an incredible surface area that can just take the rain and moderate the rate at which the rain comes into the river systems,” he said.

Better accountability is needed, with the chief forester taking responsibility for climate risks, such as fire, flooding and landslides, instead of being responsible only for the amount of timber to be harvested, Wood suggested.

“There’s a lot of solid science out there that can tell you how much you can cut within a given drainage without creating risk,” he said.

“On steep slopes maybe a forest can take a few trees being removed and it’s still okay, but then you go past a certain threshold and you are in danger of the whole hillside collapsing,” he said.

‘You take off the trees, you end up with more water in your soil and you get those slides’

Watershed geoscientist and hydrologist Kim Green, an expert in the impact of forestry on snow melt regions, said logging affects the frequency and magnitude of floods because it changes the way the soil behaves, especially if there have been successive rain events before a big storm.

“Without question, the removal of forests both increases the frequency of landslides and frequency of flooding,” she said, explaining that, as roots rot after trees are removed, they create conduits for water.

“You take off the trees, you end up with more water in your soil and you get those slides,” she said.

Forest ecologist Rachel Holt, a member of the province’s Old Growth Technical Advisory Panel and author of two technical reports criticizing the province’s management of old-growth forests, said ecologists and hydrologists have warned for decades that clearcuts radically change how water runs off slopes.

Climate change means more help is needed from forests which store massive amounts of carbon and moderate how water lands on the ground and flows off the hillsides, but, instead, the opposite has happened, she said.

“We’ve been managing for timber at the expense of all the other values such as biodiversity and climate mitigation and climate adaptation. … The pressure on the system has been increasing with climate (change) and, at the same time, we’ve increased the harvest over the last 30 years,” Holt said.

“So, what do we do? We radically lower the harvest level. Leave the forest standing on the ground to do its job. Then we stop clearcut harvesting and go to partial harvesting across the board. … This is not radical. We’ve known this for 30 years and started doing it and then we stopped with the change in government,” she said.

In 2001 the BC Liberals scrapped the prescriptive Forest Practices Code and, instead, brought in rules allowing companies to use their own professionals to decide whether they were meeting broad objectives.

Areas that have been devastated around Princeton and Merritt are surrounded by heavily logged landscapes, Holt pointed out.

“The combination of bog-standard forest management, combined with mountain pine beetle means the rate of removal of forest cover has been phenomenal in the last 30 years, so the amount of flow that can happen very, very quickly off those hillsides is huge,” said Holt, who expects to see court cases launched by those affected by the floods and landslides.

In Grand Forks, which was devastated by floods in 2018, a group of residents has filed a B.C. Supreme Court lawsuit against the forests ministry and logging companies, claiming over-harvesting in the Boundary and Okanagan forests significantly contributed to the flooding. 

A second lawsuit has been launched by the same group against the West Boundary Community Forest Inc., which holds harvesting rights to about 18,000 hectares of forests around Grand Forks.

Retired forester Fred Marshall, a woodlot owner and forestry consultant from the Boundary region, said the Grand Forks floods and recent disasters prove the validity of the many research studies showing B.C.’s clearcuts affect the hydrological regime.

But naysayers continue to refuse to accept the truth that cutting down forests has serious ramifications and the provincial government has been aggressively on the same side as the clearcutting companies, so has not held them accountable, Marshall said.

“Hence, the people of B.C. suffer the consequences and pay for them while the forest industry does neither and demands to keep creating the clearcuts,” he said.

Taryn Skalbania of Peachland, a long-distance horse rider and founding member of the B.C. Coalition for Forestry Reform, was spurred to action after discovering forestry companies were entitled to clearcut in the community watershed, threatening drinking water and wiping out trails, but the municipality and community organizations had “zero control.”

The group filed a Forest Practices Board complaint after mudslides near clearcut logging blocks in 2017 meant five months of a boil water advisory.

“We were told that past and current logging is definitely affecting our drinking water and recreational trails and roads and sedimentation. However, all those activities are legal and they hadn’t broken any laws. Then we really decided we have to change the laws that govern communities,” Skalbania said.

There is a wealth of evidence about how clearcutting exacerbates wildfires as well as floods and landslides and, with this week’s events, the urgency of the situation is becoming apparent, said Skalbania, who, with her livestock, has been evacuated from her home three times.

“Will the already-subsidized forest industry pitch in for the collateral damage?” she asked.

“When our government is rewriting forest policy they should be writing it firmly and immediately to save our forests, our first line of defence against mudslides, floods and climate change. … If they (the companies) can’t do it right, it should be back to the drawing board,” she said.

As the province struggles toward recovery, for many the question is what happens as climate change continues the march toward warmer temperatures.

Conservation ecologist and agrologist Greg Utzig, who specializes in landslides and terrain mapping, said floods, fires and landslides were predicted in climate studies written by him and Holt a decade ago and have been discussed for at least three decades.

Logging roads, bridges and culverts are not built to withstand the type of storm that hit B.C. this week and fires this summer contributed to creating water-repellent soil, he said.

“This is not unexpected, it’s just unfortunate and it is just the start,” Utzig said.

“Right now we have warmed the earth by one degree, maybe 1.1 degrees [Celsius], and we’re headed for 2.4,” he said.

Jens Wieting, Sierra Club BC forest and climate campaigner, said time is running out to make changes.

“We have degraded landscapes with much less vegetation and a shifting climate with more than one degree of global warming translating into about seven per cent more water vapour in the atmosphere” he said.

“With the heat dome this summer and now the flooding we really have a spectacularly unfortunate combination of shifting baselines and we are still continuing with business as usual,” he said.

Government must speed up the process of reforming forestry and adopting recommendations from the recent Old Growth Strategic Review as industrial logging is threatening lives and communities, said Wieting, who would like to see a climate risk test for all logging proposals.

Some plans must be cancelled or drastically revised to ensure more lives are not put at risk, Wieting said.Updated Nov. 18, 2021 at 9:35 a.m. PT: This article was updated to clarify a quote from Jens Wieting to indicate that one degree of global warming translates into seven per cent more water vapour in the atmosphere.

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When Ross Muirhead and Hans Penner made their first trek of the season to the Dakota Bowl, slogging through cutblocks and then up into the ancient forest of giant yellow cedar and hemlock on the hills north of Gibsons, B.C., the hike turned into a spontaneous celebration that eight years of confrontation was finally behind them.

“It was a totally different experience going up there, knowing that this forest was now protected. We didn’t have that dark cloud hanging over us with the possibility of seeing road-building and contractors and trees falling and all that despicable destruction that we’ve seen in other areas,” said Muirhead, forest campaigner and founder of Elphinstone Logging Focus (ELF), a small Sunshine Coast-based environmental group that, for a decade, has been a thorn in the side of logging contractors and the government agency BC Timber Sales.

Penner, a longtime ELF forest campaigner, recalls the growing knot of dread he felt during previous hikes into the area as he wondered if he would find new flagging tape, marking cut blocks and road-building boundaries, in the old-growth forest that is part of Sḵwx̱wú7mesh (Squamish) Nation territory.

“We have come across that so many times and it means devastation. We saw the flagging this time, but we know now they are not coming in, so it doesn’t bother us. We can enjoy it now — they didn’t win this one,” Penner said.

ELF has had a tough fight against BC Timber Sales, the agency that manages 20 per cent of the province’s annual allowable cut and decides which blocks of Crown land will be auctioned off to logging contractors.

BC Timber Sales appeared undeterred by a six-week blockade that prevented it from building a road into the Dakota Bowl area, accompanied by lobbying and letter-writing campaigns.

Despite reports from wildlife biologist Wayne McCrory documenting extraordinarily high number of black bear dens, two ELF-funded archaeological reports that noted 77 culturally modified trees — now included in the provincial heritage registry — and evidence the area contains trees well over 1,000 years old, the Dakota Bowl appeared in BC Timber Sales logging plans year after year.

When BC Timber Sales first put the block up for auction in 2015, no contractors were interested because of the difficulty of building a road into the remote area. Two years later, BC Timber Sales offered to subsidize road-building costs and, to sweeten the deal, it combined the offer with a block that had valuable Douglas fir and low road construction costs. It was enough to spark interest, but, following a successful blockade, the road-building contractor eventually walked away, Muirhead recalled.

One major point of contention was that BC Timber Sales refused to accept ELF’s expert studies which found the area potentially contained the largest number of culturally modified trees in the Lower Mainland.

“[BC Timber Sales] refused to accept that these were human-caused bark stripping. They hired an archaeology company who said First Nations would not come this far looking for yellow cedar. They tried all the tricks of the trade,” Muirhead recalled.

Then they brought in a helicopter and fallers and cut down eleven old yellow cedars with scars, including one that was 1,100 years old, to prove they were not culturally modified, Penner said.

“I was completely outraged and, of course, it was all paid for by the public.” 

The battle to prove the trees had been marked historically by Indigenous people involved four different assessments by three companies. Two were brought in by ELF. One company identified 33 culturally modified trees while the other, following a peer review, said the marks could be cultural in origin, with some scars dating back to the 1500s. Another company, which conducted two studies, was brought in by BC Timber Sales and concluded the marks were natural.

The final opinion, from the B.C. Archaeology Branch, was that, on balance, the marked trees were likely culturally modified. 

Five logging deferrals over eight years and the reluctance of contractors to go into the remote, roadless area offered temporary reprieves, but the threat of logging didn’t go away. Then, in a remarkable reversal in February, BC Timber Sales removed the 70-hectare cutblock from the auction block. Combined with road building, logging the block would have taken the heart out of the Dakota Bowl.

A joint news release from the Sḵwx̱wú7mesh Nation and the Ministry of Forests, Lands, Natural Resource Operations and Rural Development said the area “is no longer part of BC Timber Sales operating plan for the Sunshine Coast and it will not be auctioned for harvesting.”

“In recognition of the ongoing cultural importance of the Dakota Bowl area, the Squamish Nation and the province agreed to work together in assessing options that restrict future development or harvesting in this area,” the ministry said in the news release.

ELF’s role was not mentioned. In an email, a forests ministry spokesman attributed the decision to “a collaborative government-to-government decision between the province and Sḵwx̱wú7mesh Nation” that was a decade in the making.

The bottom line is the area, which ELF nicknamed the Dakota Bear Sanctuary, is safe, Muirhead said, thanking the Sḵwx̱wú7mesh Nation for its stewardship.

“We did it and we did it together,” he said. Even though only a relatively small area was taken off the auction block — the McCrory report recommended at least 450 hectares be protected to preserve biodiversity — Muirhead said it will now be extremely difficult for logging companies to access the area.

“So we don’t perceive any other blocks being proposed within that 450-hectare area,” he said.

The Dakota Bear Sanctuary is not accessible for much of the year, as snow often remains on the ground until summer and bears return in October to den, so ELF makes the most of the few months of access, leading guided hikes to show the unique forest to visitors such as artists, scientists and Squamish Elders.

All visitors are in awe when they spot their first ancient yellow cedar tree and most comment on the peaceful atmosphere of the undisturbed forest, Muirhead said.

“The temperature drops and it’s just calmer. You feel as if you are walking into a living museum with trees that have been standing there for 1,000 years plus.” 

“It is an area undisturbed by mountain bikes and ATVs, it is like a time capsule,” Penner added. 

The battle to protect the Dakota Bear Sanctuary has inspired groups such as the Living Forest Institute, The Only Animal and Artist Brigade to offer support in innovative ways. T’uy’t’tanat Cease Wyss, Damien Gillis and Olivier Leroux created a geodesic dome with a mix of music and nature sounds and wraparound view of the Dakota Bowl’s ancient forests, which displayed at the North Van Arts gallery, while the Artist Brigade produced art projects and a video.

Sḵwx̱wú7mesh Nation members who have visited the Dakota Bear Sanctuary say the ancient forest and the knowledge that it was used by Indigenous people for hundreds, or possibly thousands, of years offers a remarkable link to the past.

Sḵwx̱wú7mesh Elder Xwechtáal, Dennis Joseph, who accompanied one of the ELF tours of the area, said during the hike that he could feel the spirit of his ancestors.

“This is our sacred home,” he said.

Brian George, 26, a Sḵwx̱wú7mesh Nation member, who works for a Vancouver-based environmental consulting firm, made his first trip to the Dakota Bear Sanctuary in September.

He described the area with the Sḵwx̱wú7mesh words “an kilus,” meaning very beautiful scenery.

“The high-elevation sites are something of a newer archaeological interest,” he said.

It was previously thought Indigenous people historically stayed close to the shoreline, but that is incorrect, George said.

The bark of yellow cedar, found in the high elevation forests, was highly prized for its softness and strength and is believed to have been used for clothing and especially for regalia.

“The Indigenous people were everywhere. The evidence is there and I saw it for myself on some of the [culturally modified trees],” George said.

“They were there during the time of pre-contact and making their mark, harvesting some of the cedar for maybe their clothing, their hats, their baskets. The ancestors were there and they are still there. Those high elevation areas are of great importance because the area is a lot closer to the Creator,” he said, wondering why anyone would consider cutting down such a rich old-growth forest instead of concentrating logging efforts on second-growth.

Cindy Prescott, a University of British Columbia professor in the Department of Forests and Conservation Sciences and a Sunshine Coast resident, also made her first trip to the Dakota Bear Sanctuary in September.

Untouched old-growth forests, in all their complexity, are now rare and the most effective way to protect such areas is for First Nations to be vocal about the need to leave them standing, she said.

“I hope they make it clear to government that they want old forests protected, that they are not okay with the business-as-usual model,” said Prescott, who worries about the increasingly intense logging of old-growth around the Sunshine Coast.

“Our government seems to be living in a past time, before there was a climate crisis and a biodiversity crisis, and we’re managing our forests for one thing only — timber. That is so out of touch with what we now know about the real value of old forests. It’s so out of touch with what we have learned in the last 30 years — it’s shocking,” she said.

Filmmaker Trent Maynard, who is making a documentary about the watershed surrounding Mount Elphinstone, uses 12 wildlife cameras to help illustrate the stories he tells.

The Dakota Bowl is unique because it offers people a chance to reconnect and relearn the history of the land, Maynard said.

“It shows how these forests have been tended for thousands of years before settlement. For me, it’s a real reminder of the damage settlement has done to the Sunshine Coast. It’s a place we can go to think about the original stewardship of these lands. I think a lot of people feel the Squamish history there and they realize there is a lot to be learned from Aboriginal forestry,” he said.

Maynard’s wildlife cameras have picked up bobcats, coyotes, rabbits, cougars and —  of course —  bears.

McCrory, who conducted the bear den surveys, has worked in some of B.C.’s most spectacular wilderness areas and believes the Dakota Bear Sanctuary is one of the most magical places in the province.

“I have never seen an ancient forest this profound in terms of its aesthetic, biological and First Nations values. It’s littered with culturally modified trees and we found upwards of a dozen black bear dens in the old trees,” McCrory told The Narwhal.

“The history of that area is so incredibly rich that logging those kinds of values would be criminal in my opinion,” he said, adding that he is pleased that, with the help of ELF and the Squamish Nation, BC Timber Sales finally recognized their assessments were off the mark.

Bear dens are usually found at the base of the big yellow cedars, whose centres are prone to rot, creating natural cavities. After a bear has hibernated, the high elevation snowpack provides protection for the mother and cubs, while, in spring, the isolated area, with small hanging lakes and creeks, offers plentiful food for the bruins.

It is not yet known what type of protection will be given to the Dakota Bowl, but possibilities that offer the most protection include an Indigenous Protected and Conserved Area that could come under the Sḵwx̱wú7mesh Nation’s Xay Temixw (Sacred Land) land use plan, whose vision is to protect old-growth and wild spirit places.

Other preferred possibilities could be a Class A provincial park or Class A tribal park or ecological reserve, Muirhead said. 

The forests ministry said in its email that land use designations under consideration include an old-growth management area, wildlife habitat area or Sḵwx̱wú7mesh Nation area of interest.

“Once a decision is made on the land use designation, the Sḵwx̱wú7mesh Nation and the province will collaboratively determine the shape and size of the protected area,” the email said.

Although ELF welcomes any protection, an old-growth management area or wildlife habitat area would not offer full protection as roads, hydroelectric development or commercial recreation tenures could still be allowed, Muirhead noted.

One nagging question for ELF is why BC Timber Sales was so insistent about logging such a special area and whether there are lessons to be learned that will help other efforts to protect at-risk areas on the Sunshine Coast.

Already a battle is shaping up over the Sunshine Coast Community Forest’s plans to log an area in the Trout Lake Forest, within shíshálh (Sechelt) Nation territory. There’s also an ongoing campaign to protect parcels of land that could help connect the three isolated islands that make up Mount Elphinstone Provincial Park.

ELF campaigns and expertise are more important than ever as logging pressures increase around the Sunshine Coast as the population grows, Penner and Muirhead said, noting little of the area is protected.

Only about three per cent of the Sunshine Coast forest district is protected in provincial parks, while about two per cent protected in regional parks. The figures do not include wildlife habitat areas or old-growth management areas.

The province says about 15,400 hectares are available for recreation within the Sunshine Coast Regional District, including 12,300 hectares classified as provincial parks.

But when it comes to old-growth and habitat connectivity, the Sunshine Coast is being short-changed, according to ELF, and an ELF-funded GIS report looking at remaining old-growth in the Howe, Chapman and Sechelt landscape units. The report, completed in December last year by Applied Conservation, shows less than one per cent of old forest remains in some areas in Chapman and Sechelt. 

One exception is the Dakota Bear Sanctuary where 37 per cent of the old-growth still stands. 

Penner and Muirhead estimate that ELF, a group known for punching above its weight and making its presence felt during land use processes, has won about one-half its campaigns.

It is a pretty good record for such a small group, said Muirhead. But along with the celebration of victories comes the heartbreak of losses, including the Clack Creek forest, which was logged in 2020 despite a local outcry and felt hearts stapled to the trees by community members. It’s a small comfort for Muirhead that ELF succeeded in deferring logging for five years and gained some concessions that protected the best Douglas firs.

Other losses for ELF include the Twist and Shout forest on the slopes of Mount Elphinstone that was logged in 2016, after a two-month roadblock and a dozen arrests. A 2018 report from the Forest Practices Board, B.C.’s forestry watchdog, completed too late to stop the logging, said the area would have been a good candidate for protection because of its rare plants, but noted there are no applicable provincial rules that would have offered protection.

Among ELF’s successes are a 30-hectare site in the Dakota Ridge ancient forest, adjacent to the Dakota cross country ski area. In 2011, following an ELF campaign, it was designated as an old-growth management area. Other victories include the heart-of-the-park campaign, which resulted in the cancellation of logging plans for a BC Timber Sales block adjacent to one of the parcels that makes up Elphinstone Provincial Park in 2018 and the area’s designation as an old-growth management area, the Roberts Creek headwaters ancient forest, containing rare densities of Pacific yews and red cedar, which was protected in 2013 and the Reed Road forest reserve in Gibsons, where logging has been deferred and the areas in question is now part of a long-term planning process.

“We have definitely made the community more aware of us,” Penner said.

Key to the successes are community support and hiring professionals to conduct archaeological and biological assessments for each site.

“The logging agencies do the bare minimum assessments, beyond timber values, so we can expect that they will always miss important details that should be considered,” Muirhead said.

ELF takes a proactive approach by identifying forests of high value that appear on either BC Timber Sales or Sunshine Coast Community Forests’ five year plans. It’s a vital first step, as lack of public input during the early decisions made around site plans is a longstanding issue for community groups, Muirhead said.

ELF then scouts the locations of the cutblocks of interest and, through preliminary field research, decides whether to hire professionals to provide a scientific analysis and examine elements such as ecological or cultural values that appear to be missing from the site plan or when the site plan includes questionable findings.

The next step is public education and fundraising and, as ELF has no overhead costs, all money raised goes to the chosen campaign.

It can take years to get professional reports published, mount public pressure and seek First Nations support, usually through contact with Elders, and that is what makes ELF unique, Muirhead said.

“The strategy is to be doing this research years ahead of a block entering the bidding or contract stage,” he said.

“Many other environmental groups work in a reactionary way -— when logging begins they get mobilized — but, once a contract is signed, the courts will uphold the contract 99 per cent of the time,” he pointed out 

Muirhead credited ELF’s unique strategies with helping to save the Dakota Bear Sanctuary from logging.

“However, the journey to get there was filled with dread, confusion, anger, hope, some sacrifice and doubts in the government’s own logging agency — BCTS —  to properly manage these great natural gifts provided by intact forest ecosystems.”

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The company responsible for Canada’s largest tailings spill failed to meet new provincial conditions for a wastewater permit in the wake of a 2014 mining disaster, B.C.’s Environmental Appeal Board has ruled.

The ruling shoots down an appeal by Mount Polley Mining Corp., a subsidiary of Imperial Metals. The B.C. Environment Ministry previously issued the $9,000 administrative penalty last December after concluding the company had failed to investigate and test long-term water treatment systems — a condition of the permit, which was amended as a result of a major tailings dam collapse.

The 2014 Mount Polley disaster sent 24-million cubic metres of water and tailings effluent into surrounding lakes and streams, including Quesnel Lake.

After the disaster, the company was given permission, on a temporary basis, to discharge wastewater into Quesnel Lake. The permit, which expires on Dec. 31, 2022, was amended in 2017 to include requirements for designing and testing “mine influenced water,” but Mount Polley missed several deadlines and was sent numerous letters warning it was out of compliance, according to the new ruling by the appeal board.

The company had attempted to appeal the penalty by claiming that there had been no contravention because it was impossible to meet some of the new requirements and deadlines. It also had argued that if there was non-compliance, it was not major, so the fine was out of proportion.

But in the new ruling, Teresa B. Salamone, chair of the Environmental Appeal Board, rejected the company’s arguments and concluded that the penalty should stand since the company failed to do its due diligence and “take sufficient steps” to avoid violating the terms of its permit.

“I find that [Mount Polley Mining Corp.]’s failure to comply with a term of its permit for more than two years undermined the integrity of the legislative scheme and interfered with the ministry’s ability to protect the environment from the potential impacts of waste discharge,” she wrote in the Sept. 3 decision.

However, the company did begin design and construction of the water treatment systems and “the contravention was not deliberate,” which is why there was not an additional penalty, she wrote.

Imperial Metals CEO Brian Kynock did not return calls from The Narwhal before publication. But in its appeal, the company had argued for a lower fine of $900, alleging that the problem was “administrative” in nature and did not prevent the ministry from protecting the environment.

Salamone disagreed, describing the infraction as a “major” violation since the company failed to meet the terms of its permit for more than two years. Although B.C. regulations allow for a maximum fine of $40,000 for this type of offence, Salamone said a fine at the lower end of the scale was appropriate since the actual or potential impact of the violation was low.

An independent investigation found that the Mount Polley tailings dam was built on a glacial lake that weakened its foundations, but, seven years after the dam collapsed, the company has not been disciplined or fined for the 2014 disaster. 

Years later, Doug Watt of Concerned Citizens of Quesnel Lake is baffled that the company fought such a small fine related to the terms of its new permit.

“We feel that Mount Polley is doing all they can to minimize how much work they have to do to protect the environment and, the least work they can do, is to continue to discharge their effluent, basically untreated, into Quesnel Lake,” he said.

Calvin Sandborn, legal director of the University of Victoria Environmental Law Centre, said companies will sometimes fight small fines because they don’t want their record besmirched or if there is concern that it could set a legal precedent. For example, if a violation continues, fines could escalate on a daily basis, he said.

Although $9,000 sounds like a miniscule fine for a mining company, it is larger than most fines issued in B.C. and underlines the need for mining law reform, said Sandborn. He has recommended that the province should act faster to tighten up its mining legislation.

“The whole point of having significant fines is to encourage people to spend the money and do things better,” he said.

“We have got this pathetic record of enforcement of either not enforcing or enforcing with very small fines in an industry that can do long-term grievous damage to the environment,” he said. 

Concerned Citizens of Quesnel Lake wants the mine’s wastewater pipe removed from the bottom of Quesnel Lake and is asking the province to demand full treatment of contaminants before effluent is discharged into the environment.

“I fear that this miniscule penalty will not prompt the company to do the right thing. It’s time that the B.C. government increase its sanctions to ensure compliance, especially before renewing the mine’s permit in December 2022,” Watts said.

Watts explained his group believes the company hasn’t been able to develop an acceptable plan to deal with waste effluent for two years.

“So now this leaves us in a situation where, in just over a year, they either have to have alternative technology to replace the pipe or authorization to continue to use the pipe,” he said.

An application to permanently discharge water into Quesnel Lake, will require a major permit amendment, with consultation and public meetings, said Watts, who suspects the company will be granted a temporary permit because they have nowhere else to put the water. 

The company previously announced it would partially re-open the mine this fall, but it is not known whether those plans are still on track. Meanwhile, effluent continues to be discharged into the lake because of the build up of water on site, Watts said.

“They have a water treatment plant, but it can only handle about two-thirds of the amount they are allowed to discharge through their permit,” he said.

After the dam disaster the company pumped water for a couple of years but then stopped because of technical difficulties, and the water has now built up.

An emailed government statement said the ministry is pleased that the monetary penalty has been upheld and it will “continue to monitor and assess compliance at the site.”

It is difficult to assess long-term effects on the lake as the plume is extremely diluted, but residents notice problems such as slime on the rocks, discoloration in the water, plugged filters and, this year, there was a blue-green algae bloom Watts said.

Ugo Lapointe of the watchdog group MiningWatch Canada said even though the $9,000 fine is a “pitiful sanction” at least there’s a ruling on the record that has confirmed the company failed to meet its permit requirements.

“We’re obviously glad it was upheld, but this paltry fine is a good indication of the degree of corporate capture of the regulatory system in B.C,” he said.

“Now it is important that the government really push for this company to do the right thing and doing the right thing means figuring out a water treatment system. They need to cough up the money and they have not done so,” he said.

The Mount Polley water processing units take off some of the suspended matter, but do not remove chemicals such as selenium and copper, Lapointe said.

“The onus is on government to say ‘no more fooling around or you are not going to get your December 2022 permit,’ ” he said.

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