B.C.’s big opportunity to fix under-regulated industry is here (and you’ve probably never heard of it)

The B.C. government is expected to release the results of a review of its “professional reliance” system for environmental assessments next week, in what experts call a once-in-a-generation opportunity to improve the way B.C. makes environmental decisions.

“This is the most profound opportunity for change of environmental regulation in B.C.,” said Ecojustice executive director Devon Page.

Implemented by Gordon Campbell’s government in the early 2000s, then deepened under Christy Clark, the professional reliance system essentially relinquished much of the provincial government’s responsibility for conducting its own environmental monitoring for major projects like dam construction, fracking operations, forestry management and hazardous waste disposal.  

Instead, it passed that responsibility on to private companies hired by industry — in a little move know as, well, deregulation.

This kindly named ‘professional reliance’ system has been pointed to as a key factor in the Mount Polley mine disaster and the bulk of B.C.’s other high-profile environmental controversies.

Frequency, quality of industry inspections decline under professional reliance

The reliance on industry-hired and industry-paid experts to do the work previously done by government employees has been criticised by B.C.’s Auditor General, Carol Bellringer, and the B.C. Ombudsperson who found the system is undermined by conflicts of interest.

This remarkable regulatory experiment has, perhaps unsurprisingly, led to problematic industry self-monitoring and a decline in the frequency and, many argue, quality of environmental reviews and inspections.

“Today, the number of forest industry inspections are less than one third of the number conducted before professional reliance,” wrote Stephanie Smith, president of the B.C. Government and Service Employees’ Union, in The Tyee in February.

“The number of logging truckloads checked is one-fifth the number checked in the 1990s. Mine inspections declined by almost 80 per cent in 2003, recovering somewhat after the Mount Polley disaster, but remain at 15 per cent below 2001 levels,” Smith wrote.

Further complicating the reliance on industry-hired professionals, is the way those very professionals can feel pressure from industry to provide favourable reviews.

Contractors altered report results under professional reliance system

The Narwhal spoke to several industry hired consultants that confirmed they faced pressure to alter reports, ‘look the other way’ or frame a negative issue in a positive light that would benefit their employer.

“Consultants are put in the role of cheerleader,” said one biology consultant who spoke to The Narwhal but asked not to be named for fear of retribution.

“The people who are proposing a project are also the ones paying your bills.”

“The professional reliance model relies on us being held to the highest professional standards,” said another consultant.

But in many cases contractors are not held to those standards, she added, acknowledging professionals understand providing unfavourable results to a company may lead to lost contracts in the future.

“It’s a horrible model,” she said, adding she has only met a handful of consultants who would act unethically under those pressures.

Professional reliance ‘creates bias’: lawyer

Andrew Gage, staff lawyer at West Coast Environmental Law, points to the case of a contaminated materials disposal site at Shawnigan Lake on Vancouver Island as an egregious example.

After a geotechnical report from a company called Active Earth Engineering found the drinking water would be safe from harm, the provincial government granted permits for a highly contested contaminated waste dump mere kilometres above the lake.

It was later revealed — after a manila envelope was pushed under the door of the Shawnigan Residents Association — that Active Earth Engineering had entered into a backroom profit-sharing agreement with the proponent.

But Gage says the much more insidious problem is not outright corruption among consultants or even the proponents themselves.

Rather, it’s a system of pressures and incentives that create a bias; that bias, in turn, chips away at the independence of the professionals doing the work formerly done by government employees.

“They’re looking for ways to solve [the proponents’] problem instead of protecting the public interest,” he said.

“The moment you’re receiving a financial benefit from making a decision you’re no longer unbiased.”

How to fix the professional reliance system

The provincial government began a review of professional reliance in December, hiring lawyer and University of Victoria instructor Mark Haddock, who has been critical of the system in the past, to produce a report.

The resulting document said professional reliance “raises irresolvable conflicts of interest and a lack of democratic accountability for many resource management decisions.”

Observers are hoping for a similar result from the review, which has been in the hands of Environment Minister George Heyman since the beginning of May.

Professional reliance was put in place to mitigate what many in the 1990s considered to be overly burdensome environmental regulations.

But Page says the result was an overreaction.

“The pendulum swung so far,” he told The Narwhal. “I say B.C.’s forestry laws aren’t actually laws. At best, you could call them guidelines.”

Now Page wants to see a return to a system that places more responsibility on the government to monitor development in the public interest, rather than letting companies essentially police themselves.

“Sure, logging companies are supposed to balance interests. But, practically, does anyone think that’s really going to happen?”

One of the consultants who spoke to The Narwhal said what he would like to see is more rigorous standards imposed on his own practice: strict guidelines that he can fall back on when facing pressure from companies to water down reports or use methods that are more likely to get an approval.

“There needs to be more objectivity that’s used in environmental assessments,” he said. “You’re considering the proponent’s interests, sometimes at the risk of the science.”

A study released in May found that a majority of Canadians who spoke at a review of federal environmental assessment laws wanted stronger requirements for science in the assessments. They also wanted more transparency in decision-making.

Observers in B.C. are looking for similar reforms.

“We’re looking for the types of checks and balances that people assume are there,” said Gage.

West Coast Environmental Law co-signed a wish-list of sorts in January for reforms it would like to see from the review. Among them: ensure that First Nations are engaged and their rights respected; use “professional reliance” only where appropriate; set standards that require professionals to be professional.

Whistleblower protections, transparency needed

In some cases, under B.C.’s professional reliance system, scientists “may have to choose between science and their employer,” said Kathleen Walsh, policy director at Evidence for Democracy, which advocates for science-based decision making.

She argues that whistleblower protections are needed to make sure nobody loses their job or faces legal repercussions for speaking out over lousy science.

“I would also love to see some provisions for transparency,” she said, pointing out that groups like hers can’t even file Freedom of Information requests to find out what work was done to form the basis for a company’s recommendations.

Private companies’ reports and notes are only available when they’re sent to the government — and that isn’t always required, depending on the type of assessment being done.

Under the Integrated Pest Management Act, for example, forestry companies can spray pesticides on public land without filing any plans with the government. The company is only required to describe, in an internal report, how it intends to take environmental protection into account.

“This is regulatory outsourcing,” says Gage. “To me, that’s quite radical.”

In other cases, like building in riparian areas, “the government has gotten rid of its own legal authority.”

Gage says it’s far from a guarantee the government will act on the recommendations of the review, regardless of what they are.

“A big question mark is, if the report is strong, will the government recognize the urgency of it?”

A spokesperson for the environment minister told The Narwhal the province’s professional reliance review should be released sometime next week.