Federal foot-dragging over protection of endangered southern mountain caribou herds has brought a strong rebuke from a Federal Court judge this week.

Groups struggling to protect caribou are hoping the judgment will speed up help for dwindling herds and act as a precedent for other species at risk needing help.

Justice Michael Phelan, in a decision on a judicial review launched by the Wells Gray Gateway Protection Society, described the lack of action by Environment Minister Catherine McKenna as “egregious.”

The Protection Society, which raised $33,000 from Upper Clearwater residents and received financial help from West Coast Environmental Law, asked for the judicial review after McKenna failed to respond to the group’s application for an emergency order to protect caribou under Canada’s Species At Risk Act.

Roland Neave with the protection society told The Narwhal that the application for an emergency order was urgent because Canfor Corp. has applied to log in caribou critical habitat, near the entrance to Wells Gray Provincial Park.

ICYMI: BC Liberals Grant Major Political Donor Permission to Log Endangered Caribou Habitat

“We applied for the emergency order in April 2017 and, under the regulations, the minister has 45 days to make a decision, but this took 13 months,” Neave said.

“Such fence-sitting is unconscionable when trying to protect a small herd of endangered caribou,” he said.

“We were delighted by Judge Phelan’s decision and his scathing comments about the minister’s long delay in reaching a decision.”

Under the Species At Risk Act the minister is obligated to recommend an emergency order if she believes the species faces imminent threats to survival or recovery.

The judgment says that citizens should not have to fundraise in an effort to force the minister to follow the legislation and Erica Stahl, West Coast Environmental Law staff lawyer, said she is delighted with that conclusion.

“It’s outrageous that the Wells Gray Gateway Protection Society had to go through such a lengthy, onerous process to get the minister to act,” said Stahl, who hopes the judgement will be a precedent for other cases where an emergency order is needed to protect an endangered species.

Logging near the south end of Wells Gray Park since 1984. Image: Damien Gillis via Google Maps

Earlier this month, days before the case was due to be heard in court, McKenna declared an “imminent threat” to the recovery of southern mountain caribou and told B.C. that more critical habitat must be protected from activities such as logging and oil and gas development or the federal government could step in.

The finding of “imminent threat” applies to 10 herds in B.C. and Alberta with less than 100 animals each and a detailed federal government recovery plan is expected in June.

If the minister issues an emergency protection order it means the federal government could make decisions about resource development that normally fall within the jurisdiction of provincial governments.

The crux of the question will be whether there is political will to stop industrial development in an effort to save the caribou.

“I don’t think there’s anything in legislation that says they can’t stop development, but we are going to have to wait and see the minister’s plan,” Stahl said.

Studies show that logging roads, oil and gas development and recreational back-country use opens up the large tracts of old-growth forests needed by caribou. As deer and other prey species move in, they are followed by predators such as wolves and cougars.

A controversial wolf cull program has been taking place in some areas of the province but, in the absence of a change in habitat management, numbers of caribou continue to shrink.

Habitat protection and restoration, not wolf culls, are a major part of the answer, Stahl said.

The southern mountain caribou population has dropped to about 3,800 animals this year, down from about 4,500 last year and some herds, such as the South Selkirk herd, with only three surviving members, are on the brink of extinction.

The Wells Gray herd, which sparked the request for an emergency order, had 120 animals last year, but a recent aerial survey found only 85 animals this year, Neave said.

“They are supposed to be running the survey again to try and find the missing animals,” he said.

Ironically, if the missing animals are not found, the Wells Gray herd should be included in McKenna’s definition of herds facing imminent threats to their survival, Neave said.

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In 2015, a pipeline was designed to cut through a sensitive wetland in B.C. The professional biologist reviewing the project told his company that there could be significant damage to the wetland and an extensive monitoring program would have to be set up to watch for effects.

The larger consultancy the biologist’s company worked for refused to submit the report to the pipeline company.

“They took it and rewrote it, basically,” he told DeSmog Canada. “It wasn’t my document anymore.”

The biologist, who spoke to us on the condition of anonymity, said he engaged in a protracted battle with the consultancy, with little effect.

Eventually the B.C. provincial environmental assessment office stepped in and recommended the same monitoring system he originally suggested.

That fight to alter the environmental impacts documented in a scientific report is just one example of the ways professional biologists, engineers, geoscientists and others across the country face pressure from a system with few legislated requirements for scientific rigour.

In interviews with several current and former consultants, the notion was raised again and again that strict rules for scientific integrity could provide a backstop for professionals who are being pressured to alter their recommendations to benefit a project.

That could be about to change, as the federal government introduces a new Impact Assessment Act to replace Canada’s controversial and much-maligned Environmental Assessment Act.

A large majority of Canadians want the new Act to include stricter rules around the inclusion of science, according to a new study released Monday in the journal Facets.

Looking at the comments from public, industry and government solicited by an expert review panel, researchers found the public overwhelmingly asked for more rigorous and transparent scientific analysis of projects during an environmental review.

“In the online questionnaire, people had to rank their top three concerns; science comes out way up there,” said Aerin Jacob, an author of the new study.

The sample of opinions — being drawn from written submissions to the standing committee — is admittedly self-selecting, leaving the paper open to criticisms of selection bias.

“These are people who care enough to be involved, whatever their views are,” Jacob concedes. But other surveys conducted in more traditional ways have returned similar results.

Coauthor Jonathan Moore says what makes the survey unique is that it’s a way of looking at what people are telling the government — thus allowing people to evaluate what the government actually does with that information.

For example, while industry, scientists and the public were aligned on some issues, such as transparency in the government’s decision making, one major area in which industry opinions differed from those of scientists and the public was how rigorous science should be in environmental assessments.

“I think what that means is that the degree to which the government tackled that or not will reveal the degree to which environmental assessment is created for industry or created for the rest of Canada,” Moore said.

Science often not made public

While language in Environment Minister Catherine McKenna’s mandate letter instructs her to “ensure that decisions are based on science, facts, and evidence, and serve the public’s interest,” there is no formal requirement for evidence to be made public before decisions are made.

The new study broke down that concept of evidence-based decision making in environmental assessments into five categories: openly sharing information, evaluating cumulative effects, scientific rigour, transparency in decision-making and independence between regulators and proponents.

“These results not only show there’s strong support across multiple sectors, they also give a road map of how to do it,” says Jacob.

“Rather than just saying you should use science or you should do evidence-based decision making — what does that actually mean? — here, we’re showing, here are five fundamental components of having a scientific approach to environmental assessments, and truly follow up on that commitment.”

Currently, the federal cabinet has a high degree of discretion once assessments have been presented to the government, and the factors that were or were not considered are not made public.

Increased transparency was one of the categories on which almost everyone agreed. For industry, it could mean saving time on environmental assessments, by knowing what was coming ahead of time. For the public, it could mean being able to hold politicians accountable for not taking into consideration promises they had made, or priorities they had professed to have.

Just three submissions were opposed to increased transparency in decision-making, compared to more than 150 in favour.

That’s reflected in the recommendations made by the expert panel: that “information be easily accessible, and permanently and publicly available.”

While the proposed new Act uses the word “transparent” several times, it does not require that data be made public by default, just that there be instructions on how the information can be obtained.

“That kind of redirection is not useful,” says Martin Olszynski, a lawyer at the University of Calgary Faculty of Law.

“You know that the agency has an internal file that contains all of that information, and we basically just say, all of that information should be on the public registry.”

“What if there’s a little bit of harm on my project, and there’s a little bit of harm on somebody else’s project, which is right downstream…Who’s looking at the big picture?” https://t.co/iyVNkwLqJy

— DeSmog Canada (@DeSmogCanada) May 7, 2018

No interconnected knowledge

That lack of transparency also means there are limited opportunities to consider cumulative impacts.

Commenters from the public and even many in industry also asked for more consideration of cumulative effects. Whether through greenhouse gas emissions, air or water quality degradation or wildlife habitat destruction, Jacob said the piling up of effects from different projects is what pushes consequences past a point of no return.

“No one project is going to do that. But together, they do,” she says.

A second professional biologist who spoke to DeSmog Canada on the condition of anonymity said cumulative impacts are among the most insidious, because without specific laws around watching for them, it’s easy to feel pressured to overlook how one project’s impacts stack on those of another nearby.

“What if there’s a little bit of harm on my project, and there’s a little bit of harm on somebody else’s project, which is right downstream…Who’s looking at the big picture?” she asked.

That gap in legislation means that industry-hired professionals have little in the way of recourse when asked to make determinations that they might otherwise feel uncomfortable making. British Columbia is currently conducting a review of the system through which paid consultants are relied upon by the province in environmental decision making (known as professional reliance). The province is also reviewing its environmental assessment process with an eye toward cumulative impacts.

Pressure on professionals

In December of 1980, David Mayhood sent in a report evaluating damage CN Rail had done to a forest in Jasper National Park. It had diverted a stream into the forest to protect its railbed. He found the stream had become impassable for fish because of logjams, while 10 hectares of forest had been wiped out.

“I was fairly graphic in the description about the damage that had been done there,” he said. But there was little appetite for graphic descriptions at the consultancy that had hired him.

“When I got the final copy of the report back with our section in it, it had been drastically changed,” he said. “Where I said an area had been devastated, they said it had been ‘altered.’ ”

Mayhood wrote a letter of protest, but the report was submitted.

He says that kind of pressure to water down language, and consequently undermine the science behind it, has persisted throughout his career.

“The fundamental issue is that biologists…should be independent,” he says. “They aren’t. They’re objectively not independent; they work for a government that has a political agenda, and private industry that also has its own agenda.”

Alana Westwood, science and policy analyst with Yellowstone to Yukon Conservation Initiative, experienced that lack of independence as she began her career as a junior biologist at a consulting firm. She said that although most experiences met the standard of science, there was one particular firm that went far outside what could be considered objective science.

The consulting company was dominated by one client, an electrical generation company, which held an inordinate amount of power over the quality of science Westwood and her colleagues could do.

“I was routinely asked to do things I had no experience for or training in,” she said. For example, she was asked to conduct a bird survey in what she now knows is the off-season for the birds she was ostensibly looking for, using methods she now knows would never be effective.

And it got worse, when she was asked to do a literature review of the known effects of a particular monitoring technique the firm’s sole client wanted to use.

“Then my boss came to me, and said, of the 20 or so papers you found, how many found no effect, or found it didn’t harm them?” she recalls. There were four papers among the 20.

Her boss was clear on what needed to be done, in order to please the client upon which the entire business turned — like so many biologists before and after her, she would be asked to compromise her training, ethics and better judgment to make life easier for a client whose priority was delivering value to shareholders, rather that protecting the environment.

“Use only those four,” Westwood recalls being told.

As the interview comes to a close, co-author Jonathan Moore loops the conversation around to hockey. In recent years, the NHL — concerned that team doctors were facing conflicts of interest as they assessed players for concussions — decided to change their system.

Today, that assessment is done by outside doctors who wouldn’t face pressure to put unfit players back on the ice.

Moore sees the same possibility for environmental assessment reform to take the pressure away from professionals to deliver what their clients want.

“I find that if Canada can do it for hockey, I would hope they could do it for making these huge decisions that affect the environment and people that rely on the environment.”

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.