Could oil and gas drilling happen off B.C.’s coast? A new lawsuit aims to prevent it

For more than two decades, Mark Hipfner has been studying seabirds on the Scott Islands, a small archipelago off the northwest coast of Vancouver Island.

There’s the “charismatic” tufted puffin, with its orange beak and iconic hair-do. The Cassin’s auklet that will travel up to 100 kilometres from its nest and propel itself deep into the ocean in search of food. And the common murre, which learns to swim before it can fly and looks a bit like a penguin.

More than a million seabirds nest on these islands every year. Many more feed in the area, migrating vast distances for the fish and zooplankton found in the surrounding waters. 

“In the summer, the place just comes alive,” said Hipfner, a seabird biologist with the wildlife research division of Environment and Climate Change Canada.

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As climate change leads to warmer oceans and more extreme heat events, it’s threatening the seabirds of the Scott Islands, some of which have already been listed as species at risk. Now, a new lawsuit, brought by the David Suzuki Foundation and World Wildlife Fund Canada against the federal government and two companies, has shone a light on another potential threat: offshore oil and gas.

Though the 11,546 square kilometres of marine waters surrounding the Scott Islands were protected as a marine National Wildlife Area in 2018, the federal government has yet to revoke a series of decades-old offshore oil and gas exploration permits that overlap with the wildlife area. 

Ian Miron, an Ecojustice lawyer representing the two environmental organizations in this case, said there’s a loophole in the protection that means the environment minister could permit activities, such as exploratory drilling, that wouldn’t typically be allowed in a protected area.

The regulations for the Scott Islands protected area prohibit any “activity that is likely to disturb, damage or destroy wildlife or its habitat.” But they also give the minister authority to allow activities that would damage habitat or otherwise negatively affect wildlife as long as the activity isn’t likely to compromise wildlife conservation. Just how conservation can be upheld while habitat and wildlife are put at risk isn’t clarified in the regulations.

“These permits … serve as a threat that’s just lurking out there,” Miron said.

Oil and gas permits issued in the 1960s and 1970s should have expired

Since 1972, a federal moratorium has prevented any offshore oil and gas exploration off the coast of B.C. A federal review panel in the early 2000s consulted British Columbians and concluded that 75 per cent of people who participated wanted the moratorium to remain in place.

Two decades later, Miron warns there’s nothing preventing the moratorium from being overturned in the future.

“Given Canada’s recent support for a rapid expansion of offshore oil and gas development on the East Coast, that definitely raises the urgency level in terms of getting these expired permits off the books so something similar doesn’t happen on the West Coast,” he said.

The David Suzuki Foundation and WWF-Canada have asked the Federal Court to declare the permits expired in an application for judicial review filed July 26.

Eighteen of the permits that overlap with the Scott Islands marine wildlife area are owned by Chevron Canada, while one is held by ExxonMobil. Another permit held by Chevron overlaps with the Hecate Strait/Queen Charlotte Sound Glass Sponge Reefs Marine Protected Area. Both companies are named in the lawsuit.

The permits were first issued in the 1960s and 1970s. Changes to the legislation and regulations in the intervening years mean these permits should have expired or been renegotiated as updated exploration licences with limited nine-year terms, Miron explained. Instead, the federal natural resources minister has allowed these permits to be indefinitely extended, he said.

According to the notice of application for judicial review, the minister has relied on the moratorium to justify extending the permits rather than renegotiating them. However, the claimants note other permits off B.C.’s coast were previously renegotiated despite the moratorium.

A spokesperson for Chevron Canada said the company would not comment on pending litigation. ExxonMobil did not respond to a request for comment.

According to the Canada Energy Regulator, there hasn’t been any offshore oil and gas exploration off B.C.’s coast since the early 1970s. Neither has the regulator received any applications or show of interest in exploration in the area, a spokesperson said in an emailed statement to The Narwhal.

There was some interest in opening the West Coast to offshore oil and gas exploration from the B.C. Liberal government of the early 2000s, but it’s long since dissipated. 

“The current B.C. government has not made any requests to the federal government to lift their moratorium on offshore oil and gas and is not considering making such a request,” a spokesperson for the provincial ministry of Energy, Mines and Low Carbon Innovation said in a statement.

Ian Cameron, the director of communications for Natural Resources Minister Jonathan Wilkinson, noted the ongoing moratorium and the federal government’s commitment to protect 25 per cent of Canada’s oceans by 2025 in a statement to The Narwhal

“As the matter is before the courts, we cannot comment further at this time,” he said.

The concern is that the moratorium currently in place isn’t legally binding, which means it can easily be lifted by future governments, Miron said.

International guidelines prohibit oil and gas activity in marine protected areas. Canada’s rules are less defined

The lawsuit is focused on 20 old permits within protected areas, but Miron said there are about 50 other permits off B.C.’s coast as well as a few more modern exploration licences. There used to be more.

In 2018, Shell voluntarily relinquished offshore exploration permits that covered about 50,000 square kilometres off B.C.’s coast. Some of the company’s permits overlapped part of the Scott Islands National Wildlife Area. 

In 2017, the federal government launched a national advisory panel to develop standards for marine protected areas, building on the guidelines established by the International Union for Conservation of Nature.

Both recommended that industrial activities including oil and gas and mining be prohibited from marine protected areas.

In 2019, the federal government committed that such activities would not be allowed in marine protected areas. While the government said economic activities would be assessed on a case-by-case basis in areas protected by other conservation measures, such as Scott Islands National Wildlife Area, it also committed that any areas that allowed oil and gas extraction would not be counted towards international conservation targets.

Offshore oil and gas exploration has already been permitted in a marine refuge on the East Coast. The Northeast Newfoundland Slope Closure contributes about one per cent towards Canada’s goal of protecting 25 per cent of its marine waters by 2025. The refuge prohibits any fishing that would impact the ocean floor, but in January 2021 BP was granted a licence to explore part of the protected area — a necessary first step towards extraction. That exploration also does not require a federal environmental impact assessment, since a broad regional assessment was done for a larger area encompassing the refuge, though this has since been appealed.

Kilian Stehfest, marine conservation specialist with the David Suzuki Foundation, said the organization has reached out to Wilkinson’s advisors to push for the exploration permits off B.C.’s coast to be rescinded, to little avail.

“For us, those places, they’re just too important to leave them at the mercy of moratoria that aren’t really set in law — they can just be overturned if the political winds were to change,” he said.

Climate change, pollution already threaten Scott Islands seabird colonies

“The Government of Canada has a huge stewardship responsibility in the Scott Islands, not only because it’s the largest, most diverse seabird colony of British Columbia,” Hipfner said, adding that a number of seabird species here are listed as at risk either under Canadian law or internationally.

“You don’t need me to tell anybody that oil and seabirds don’t mix,” he said. 

Hipfner pointed to the 2010 Deepwater Horizon spill off the U.S. coast in the Gulf of Mexico and the 1989 Exxon Valdez disaster off the coast of Alaska as two well-known examples of what can go wrong. 

Hundreds of thousands of seabirds were killed as a result of the spills. 

Even if offshore oil and gas is never allowed off the coast of B.C., the seabirds that rely on the Scott Islands and surrounding waters have been put at risk from the production and use of fossil fuels.

Take the Cassin’s auklet, as an example. The bird was listed as a species of special concern under the Canadian Species at Risk Act in 2019.

“They breed most successfully in summers where they have access to these coldwater copepods,” Hipfner said. 

Copepods are tiny crustaceans that drift in the water, but warmer temperatures can lead to fewer and poorer quality copepods for the seabirds to feed on. That’s what happened during the 2014-2015 marine heat wave known as The Blob — so-called for the system’s appearance on marine temperature maps — when thousands of Cassin’s auklets died from B.C. to California.

Climate change is not only expected to result in a warmer ocean, but also more extreme events such as the blob.

Both “are likely to have very severe impacts, and not just on Cassin’s auklet, but on the entire marine ecosystem off our coast here,” Hipfner said.

At the same time, seabirds and the waters they rely on may be exposed to massive amounts of waste dumped around the protected Scott Islands, according to a February 2022 report by WWF-Canada.

The report estimated that between 2020 and 2022 almost 65 million litres of greywater, sewage and bilge water was generated as ships travelled through the Scott Islands protected area each year, plus more than 4 million tonnes of scrubber washwater. 

Greywater is any water from sinks, laundry machines, showers and dishwashers. Sewage includes any human or animal waste. Bilge water collects in the ship’s lowest compartment and can contain seawater, oil, coolants, lubricants and drainage from various ship systems such as air conditioners, the report says. Scrubber water, meanwhile, is the liquid waste created by exhaust gas cleaning systems, which prevent sulphur dioxide from being released into the air through a ship’s exhaust system. Dumping this sort of wastewater is still permitted off the coast, including around the Scott Islands, though some can be disposed of at port.

“More waste was created, and therefore potentially dumped, in the Scott Islands protected area than any other protected area included in this assessment,” the report says.

Combined, this waste contains a toxic mix of substances that can be harmful to marine life.

Canada is working to finalize minimum standards for marine protected areas that will prohibit dumping. But a ban won’t automatically apply in places such as the Scott Islands, which are protected by other conservation measures. This leaves the national wildlife area vulnerable to toxic wastewater from marine shipping, the broader threats of climate change and the impermanence of a moratorium on oil and gas development.