Indigenous-led groups, such as the Indigenous Guardians, should be tasked and funded by the provincial government to keep an eye on mining operations in their territories, the B.C. Mining Law Reform network is recommending to Energy, Mines and Petroleum Resources Minister Michelle Mungall.

The proposal from the network of about 30 local, national and Alaskan organizations, including community groups, First Nations and environmental groups, is among recommendations on government’s proposed changes to the Mines Act, which the group says do not go far enough and fall short of protecting B.C.’s environment and communities from mining risks.

The reform network, a not-for-profit group, was launched this spring to counter problems caused by weak mining laws and lack of enforcement in B.C. 

Among nine specific requests to beef up the province’s proposed mining reforms — including calls for greater transparency in environmental monitoring and a more progressive regime of fines and penalties — the group is also calling on government to “enable and fund Indigenous-led monitoring and enforcement programs for mining activities as well as other forms of independent monitoring.”

Community-based programs should train monitoring staff so information collected on mines in the area can be used to help inform management and decision-making, the letter to Mungall suggests.

Allen Edzerza, member of the Tahltan First Nation and representative of the First Nations Energy and Mining Council, said his organization has recently discussed the possibility with senior B.C. officials of training a network of Indigenous monitors across the province in a range of different skills.

“If the function is to monitor mining projects to make sure they’re complying with their licences that requires certain kinds of training,” Edzerza said. “If you’re looking at monitoring forestry and annual allowable cut, that is going to require a different skillset. If you’re monitoring wildlife and hunting regulations, for example, then you’ll need to know those regulations.”

The goal is to work with communities to ensure they have the basics in place to work effectively with the province.

In their letter to Mungall, the group points to Australia’s Indigenous Ranger’s program, the Coastal First Nations’ Guardian Watchmen in B.C., the Peace-Athabasca Delta Ecological Monitoring Program in Alberta as well as the Independent Environmental Monitoring Agency in the Northwest Territories.

Incorporating Indigenous participation within B.C.’s mine management and monitoring would have the added benefit of helping “develop data collection protocols and train community-based monitoring staff so that data generated locally can be used for management, governance, and statutory decision making,” the letter states. 

Indigenous guardians are increasing in communities across Canada, through programs designed to protect the land and conducting environmental monitoring.

“First Nation leadership would say that the guardians are viewed as boots on the ground,” Edzerza said, adding that many problems associated with mines, like the leaching Tulsequah Chief mine or the tailings pond collapse at the Mount Polley mine, require regular monitoring, compliance and enforcement.

“We’re saying our communities are right next to these projects. It would make sense that First Nations would perform some of these monitoring and compliance type functions,” he said.

“It’s probably the least expensive and it’s probably the best way to ensure this monitoring is occurring on these projects because we’re the ones who are being impacted. We have the interests and we’re local to it.”

‘When are they going to ensure the polluter pays?’: proposed B.C. mining reforms don’t go far enough

Mining reforms a test case for B.C.’s recognition of Indigenous rights

The reform network’s recommendations are based on a study by the University of Victoria’s Environmental Law Centre, which found that, “For First Nations, community-based monitoring can be an expression of their territorial jurisdiction and self-governance.” 

The centre’s paper points to the “fundamental conflict between Indigenous rights and the mining regime in B.C.” with the provincial government failing to recognize the inherent legal rights of First Nations and lax rules that have allowed mining companies to inflict significant environmental harm in traditional territories.

For example, the Tsilhqot’in National Government is continuing to fight Taseko Mines’ plans to mine for copper and gold in a sacred area in their territory and Imperial Metals — the company responsible for the Mount Polley tailings dam collapse — has obtained mineral rights in the sensitive “doughnut hole” between the Skagit Valley and Manning provincial parks.

Indigenous communities on both sides of the Canada/U.S. border are concerned that any mining in the doughnut hole will affect salmon in the Skagit River, but, in the mine exploration permit application for the doughnut hole, Imperial Metals is asked whether there has been engagement with First Nations — the response is “no.”

And, as The Narwhal recently reported, jade placer mining is occurring in northwest B.C. under a provincial permitting regime that is explicitly opposed by the Tahltan Central Government and its customary laws. 

The provincial government, which is also in the early stages of looking at changes to the contentious Mineral Tenure Act, announced last week that it is starting on the process of reconciling B.C. laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and mining rules are likely to be near the top of the list.

Edzerza said guardians are tasked with the responsibility of carrying forward traditional knowledge. 

“If you take a look at the new legislation tabled with respect to UNDRIP, it’s our belief that the guardian program is going to be absolutely essentially to truly implement those articles that are set out in that legislation,” he said.

Mines Act overhaul an opportunity for Indigenous rights

So far, the overhaul of the Mines Act, which is likely to be introduced in the Legislature next year, is looking at separating permitting and authorizations from enforcement and inspection duties and creating a new oversight body, but pressure is building for more action and any changes will have to adhere to UNDRIP principles.

According to the articles of UNDRIP, Indigenous people have the right to participate in decision-making processes, using their own laws and land tenure systems and that they must give “free, prior and informed consent” before any activity takes place in their traditional territories.

Joe Foy of the Wilderness Committee, one of the groups signing the submission to Mungall, said it would be hard to understand how the provincial government could move forward in retooling its laws without ensuring mining legislation adheres to UNDRIP.

“You would think it would also be important to the mining industry because the history of current events are showing us that distrust in Indigenous communities is making them resistant to mining,” Foy said.

Organizations representing the mining industry say they are not expecting UNDRIP to be a problem.

A statement from Vancouver-based Association for Mineral Exploration said the sector supports the goal of the legislation “to advance reconciliation with First Nations and the objective to reduce uncertainty for users of the land base.”

The industry expects “minimal immediate change” as most companies “are leaders when it comes to building relationships and early engagement with First Nations,” says the media statement.

The Mining Association of B.C. is also cautiously optimistic that the changes will bring greater certainty on the land base.

Other recommendations in the B.C. Mining Law Reform paper include taking mining compliance and enforcement completely out of the jurisdiction of the Mines Ministry and requiring mining companies to provide security that is sufficient to pay for 100 per cent of the cleanup and reclamation costs in addition to paying into a fund to cover the costs of disasters not covered by private insurers.

The ELC estimates that liability costs for old mines in B.C. are $1 billion, while a report from Mining Watch Canada estimates the figure to be closer to $3 billion. In 2016 Carol Bellringer, B.C.’s auditor general, in a damning report, found that mining companies do not post enough security deposits to cover reclamation costs and estimated the fund is short more than $1 billion.

With files from Carol Linnitt.

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Placer mining kills fish, damages streams, poses a risk to drinking water and jeopardizes Indigenous rights, but the activity is virtually unregulated and brings little money into government coffers, says a report urging B.C. Auditor General Carol Bellringer to conduct an audit of the province’s failure to adequately regulate placer operations.

“Placer mining — the practice of mining for gold in and near streams and riverbeds — is expanding across B.C.,” the report states. “The province allows prospectors to stake claims in private property, salmon watersheds and Indigenous lands, leaving local communities to cope with potential mercury contamination and other hazards.”

The report, written by the University of Victoria’s Environmental Law Centre on behalf of the Fair Mining Collaborative, concludes that B.C.’s current regulations cannot prevent or mitigate harm caused by unregulated miners.

“Placer mining offers little in economic return to offset the environmental damage,” the report says.

A spokeswoman for Bellringer’s office said the request will be considered along with numerous other audit suggestions, and added that, if accepted, audits can often take more than a year from the day they are started.

“We aim to make the best use of our resources and choose audits with the greatest value to government and the people of B.C.,” Colleen Rose wrote in an e-mailed response to questions from DeSmog Canada.

The report’s authors, Calvin Sandborn, Environmental Law Centre legal director, articled student Renata Colwell and law student Erin Linklater, believe the problems with placer mining are causing health and environmental problems and are hoping for quick action.

“We are saying it’s urgent,” Sandborn said.

“This is an expanding industry. The large machine operations have almost tripled since 2005 and so it can’t be ignored any longer. We have to figure out how we can regulate this. There are a lot of jurisdictions we can learn from — starting with the Yukon.”

While the Yukon has rigorous rules, in B.C., hand-panning or using hand tools with a sluicer or shaker box — an activity that has more than doubled since 2005 — has little government oversight or tracking.

Miners do not have to obtain Water Sustainability Act authorization to excavate waterways. Adequate setbacks from stream banks are not enforced and some placer mines discharge tailings directly into streams instead of settling ponds.

Miners that use machinery for the excavation have little more regulation, apart from a requirement to apply for a Notice of Work permit.

An environmental assessment is triggered only if they have production capacity of more than 500,000 tonnes a year — a threshold so high that it excludes almost every placer mine in the province.

The Fair Mining Collaborative could not find a single record of a B.C. placer mine undergoing a federal or provincial environmental assessment since the mid-1990s although at least 50 environmental assessments a year are triggered in the Yukon.

“…it’s urgent.” https://t.co/avr4aueDXO

— DeSmog Canada (@DeSmogCanada) April 17, 2018

Tara Lamothe-Ammerlaan, Fair Mining Collaborative program manager, said about 550 open permits have been issued for placer mines in B.C. annually for the last three years and, while not all are active, they all have permission to mine.

“For the most part, they operate in or near riparian areas, which are arguably the most valuable ecosystems in a landscape. We need to have some kind of regional environmental assessments that set parametres around how much mining activity is compatible with First Nations plans for their territory and with healthy and resilient ecosystems,” she said.

Lamothe-Ammerlaan said another major problem is the free entry system that allows anyone to stake a claim for a minimal fee and miners then have rights — even if it is private property, an important ecosystem, an area important to First Nations or if land-use plans conflict with the mining plans.

Last year, Bev Sellars, chair of First Nations Women Advocating Responsible Mining, illustrated how easy it is to stake a claim by staking the Cranbrook property of then-energy and mines minister Bill Bennett.

The report says regulation of placer mining is rooted in hopelessly outdated 19th century gold rush laws and some damage is historical, such as the 58-million cubic metres of sediment added to the Fraser River between 1858 and 1909, but modern mining is now stirring up sediment and dangerous substances such as mercury.

Other major problems started more recently, such as the deregulation of creeks around the Atlin area in 1985, allowing direct discharge into streams, after placer miners successfully lobbied their MLA.

The lack of regulation has resulted in sky high levels of aluminum which jeopardises the health of Taku River Tlingit First Nation members and other Atlin residents who use Atlin lake as a drinking water source.

“It’s an environmental law-free zone,” Sandborn said.

“Someone should let the fish know.”

Placer mining can kill fish by introducing sediments and metals into the water and improper excavation destroys spawning grounds, says the report, which uses numerous studies to support its claims.

A 1992 study found that unmined streams “support a standing stock of fish 40 times that of placer-mined streams.”

While the environmental damage mounts, B.C. sees little economic return with the province collecting only $253,248 between 2008 and 2015 on more than $50 million in reported gold sales.

“Since operators are taxed per mine, individual operators may pay no tax, even if they are producing more than $50,000 of gold a year across multiple mines,” the report says.

Lamoth-Ammerlaan believes the report has built a strong case for an audit by documenting the lack of regulation and the high environmental stakes.

“The government collects very low royalties on the gold that placer mines extract from our rivers and streams,” she said.

“I think this industry, with its significant potential for environmental harm and recorded gold sales tanging between $2 million and $15 million per year over the past decade, is perfect for this kind of scrutiny.”

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Widespread criticism of B.C.’s mining rules is undeserved according to Energy and Mines Minister Bill Bennett, who has turned down a recommendation from the University of Victoria’s Environmental Law Centre for a judicial inquiry into mining regulation.

“Given the significant changes this government has made to how mining is undertaken and overseen in British Columbia, including changes to law and policy, additional resources to improve permitting processes and significantly strengthened compliance and enforcement, Government categorically disagrees that a Commission of Public Enquiry (sic) into the Province’s mining industry serves the taxpayers of B.C. Such a process would be demonstrably redundant,” Bennett wrote in a letter to the ELC.

The response has exasperated Calvin Sandborn, ELC legal director, who said the rejection is likely to cost B.C. taxpayers dearly because of immense costs of mine reclamation where environmental damage has been caused by poor government oversight and minimal enforcement of the polluter-pay principle.

“You can pay for an awful lot of public inquiries if you avoid just one disaster,” said Sandborn, who points to how previous public inquiries have improved regulatory systems and helped restore public confidence.

An ELC report, commissioned by the Fair Mining Collaborative, said the regulatory system governing B.C.’s mining industry is profoundly dysfunctional and the public has lost confidence in the province’s ability to protect the environment and communities from poor mining practices.

A Commission of Public Inquiry is needed because mining is an industry that can create “catastrophic and long-lasting threats to entire watersheds and to critical public assets such as fish, clean water, wildlife and public health,” says the report.

In the aftermath of the Mount Polley tailings dam collapse, the spotlight has been on B.C.’s mining regulations and enforcement, drawing highly critical analyses from Auditor General Carol Bellringer, Alaskan politicians and environmental groups, First Nations, Canadian not-for-profit groups such as Mining Watch Canada and communities worried about the safety of tailings ponds in their region.

In addition to the Mount Polley disaster, that saw 25-million cubic metres of sludge and toxic waste water surge into nearby lakes and rivers, public confidence has been shaken by the toxic legacy of old mines, such as Tulsequah Chief, which has leached acid mine waste into Alaska watersheds for six decades and the Sunro Mine at Jordan River where reclamation and cleanup efforts were not enforced.

Simultaneously, there is increasing public discomfort with proof that taxpayers are likely to be on the hook for more than a billion dollars in mine clean-ups because of historical problems and B.C.’s lack of financial enforcement, including the practice of allowing the Chief Inspector of Mines to unilaterally set the amount of reclamation bonds and then not demanding the full amount be paid up-front.

Unlike neighbouring Alaska, B.C. will also accept guarantees, rather than demanding cash or bonds.

B.C. Rejects Request for Inquiry into Mining Practices https://t.co/J3MaLhT2Sw #bcpoli #cdnpoli #Alaska #bcelxn17 @LavoieJudith @MiningWatch pic.twitter.com/sry5MUqZ1J

— DeSmog Canada (@DeSmogCanada) April 11, 2017

Independent economist Robyn Allan, in a brief presented to an Alaska State Legislature committee, underlined the difference in bonds paid by mining giant Teck Resources Ltd. in B.C. and Alaska.

Teck has posted a bond of $558-million with Alaska to fully cover reclamation costs at the Red Dog Mine, which is expected to require water treatment in perpetuity.

In contrast, just across the B.C. border, Teck is responsible for 13 mines — six operating and seven closed — and the province has estimated reclamation liability at $1.4-billion, but has required only $510-million in bonding, Allan wrote in her brief.

Teck is the largest donor to the B.C. Liberals contributing $1,502,444 to the party since 2008.

However, Bennett, in his letter to the ELC, said that, following the release of the Auditor General’s report last May, government commissioned Ernst and Young to undertake an in-depth examination of reclamation securities practice.

“Ernst and Young found that (the Ministry of Energy and Mines) has established a carefully-considered and systematic financial security approach for mine reclamation that includes elements of a risk-based approach,” he wrote.

The review suggests ways of moving forward and an amended “reclamation securities approach” will be completed in 2018, according to Bennett, who is not running for re-election in May.

Bennett wrote in the letter that government has accepted all recommendations of the Expert Panel that looked into the Mount Polley disaster and recommendations made by the Auditor General.

Sandborn disagrees.

“As our submission demonstrated, government has clearly failed to implement the prime recommendations of both the panel and the Auditor General — to move towards elimination of water impoundments and to get the Ministry of Energy and Mines out of the enforcement business,” he said.

Sandborn also dismissed Bennett’s claims that B.C.’s mining regulations are equal to, or more stringent than Montana or Alaska.

“This is demonstrably inaccurate,” he said.

“Alaska requires mine securities of 100 per cent of reclamation costs, while B.C. allows companies to fall far short of that figure. Teck Resources alone has been allowed to fall more than $700-million short in B.C.”

Bennett’s response is similar to his denials after the Mount Polley breach that there had been significant cuts in regulatory staff, Sandborn said,

“The Auditor General’s report showed that we were right and the minister was wrong about that,” he said.

Image: Energy and Mines Minister Bill Bennett. Photo: Province of B.C. via Flickr

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The ramshackle regulatory system governing B.C.’s mining industry is profoundly dysfunctional and the public has lost confidence in the province’s ability to protect the environment and communities from poor mining activities, says a new report from the University of Victoria’s Environmental Law Centre.

The wide-ranging report, released Wednesday, was commissioned for the Fair Mining Collaborative — a non-profit group that helps First Nations communities assess mining activities — and recommends that the provincial government establish a Commission of Public Inquiry to investigate B.C.’s regulation of the mining industry.

A judicial inquiry is needed because mining is a multi-billion dollar industry that can create jobs and great wealth, but can also create “catastrophic and long-lasting threats to entire watersheds and to critical public assets such as fish, clean water, wildlife and public health,” according to the report, which is signed by ELC legal director Calvin Sandborn and law student Kirsty Broadhead.

The Mount Polley tailings dam disaster, plus the toxic aftermath at old mines such as Sunro at Jordan River and the Tulsequah Chief in northeast B.C., where reclamation and cleanup regulations were not enforced, have created a profound crisis in public confidence, it says.

The mine at Jordan River operated from 1950 to 1974 and is suspected of wiping out salmon runs. The site was never adequately remediated and pollution can still be seen seeping into the Jordan River.

The Tulsequah Chief has been leaking acid mine drainage into a tributary of Alaska’s salmon-rich Taku River for 60 years and, although Energy and Mines Minister Bill Bennett has promised action and said the leakage is not harming fish, it is a constant source of worry and frustration for Alaskans.

With those types of examples, it is not surprising that public confidence is at a low ebb and a full-scale public inquiry could help set minds at ease, the ELC concludes.

“In the past, public inquiries have been established when the public had lost confidence in the regulation of an important B.C. industry — and those public inquiries have helped to improve regulatory systems and restore public confidence,” says the report, submitted Wednesday to Premier Christy Clark and cabinet.

The ELC is not the only organization to document problems with B.C.’s mining regulatory regime.

Auditor General Carol Bellringer issued a stinging audit of enforcement of mining industry regulations last year and concluded that government’s enforcement efforts were inadequate.

“Almost all of our expectations for a robust compliance and enforcement program were not met,” Bellringer said in her audit.

“The compliance and enforcement activities of both the Ministry of Energy and Mines and Ministry of Environment are not set up to protect the province from environmental risks.”

Although the government has acted on some of Bellringer’s recommendations, it has ignored the central recommendation that enforcement should be moved to an independent agency. The audit concluded that the Ministry of Energy and Mines is in a conflict of interest because it promotes mining at the same time as regulating the industry.

The ELC report points out that government has also failed to address the most important recommendation from the Mount Polley Expert Panel, which was to eliminate tailings lakes that, the Panel concluded, pose an unacceptable danger to B.C.’s environment.

“The rules on tailings facilities — and many other mining rules — remain archaic and ineffective,” the report says.

However, Sandborn remains optimistic that the government will establish a public inquiry

“I believe in facts, not alternative facts, and these facts speak for themselves,” he said.

The Energy and Mines Ministry did not return emailed questions from DeSmog Canada.

NDP leader John Horgan said in an interview that, although he is not prepared to commit to a public inquiry before seeing the ELC report, regaining public confidence in mining oversight will be near the top of his agenda if an NDP government is elected in May.

“I am going to look at this area with more intensity than others might because I was the critic for a decade and I know these issues and the players pretty well,” said Horgan who emphasized that he wants to see a robust mining industry in B.C., but that requires public confidence and social licence.

Enforcement, rather than regulation, is the biggest problem and an NDP government would separate promotion of the industry from enforcement, as recommended by the Auditor General, Horgan said.

Government’s decision to allow companies to use their own professionals, rather than government employees, to assess situations, also came under fire by Horgan.

“The move to professional reliance, rather than having independent public servants protecting and enforcing regulations, is the biggest failing of the BC Liberals,” he said.

“The public interest is always protected when you have independent public servants discharging their responsibility on behalf of all British Columbians, not just those that are promoting an economic activity.”

Public confidence and public trust was eroded following the Mount Polley disaster and government’s inaction has made the situation worse, Horgan said.

“We are three years on and there have been no consequences for anybody,” he said.

In addition to the environmental threats, the ELC report urges government to look at economic threats presented by a badly regulated industry and taxpayer liability, which is climbing because government is not demanding bonds that fully cover the cost of mine clean-ups.

Bellringer warned that unfunded taxpayer liability for mine clean-ups now exceeds $1.2 billion and other experts estimate liability at more than $3-billion.

“While some jurisdictions ban any mine that would require long-term water treatment B.C. doesn’t just allow such high-risk mines, B.C. routinely allows them to operate without full security — there’s a $730-million shortfall for these high risk operations alone,” says the report.

“By setting securities at artificially low levels, government has encouraged companies to not spend realistic amounts on environmental protection measures. Higher securities would lead to better mining practices,” it says.

Questions that the report recommends should be addressed by a public inquiry include:

*Do current standards for tailings storage facilities fall short of recommendations by the Mount Polley Expert Panel?

*Do B.C’s mining rules meet global standards for public safety and environmental protection?

*Are environmental assessment requirements adequate?

*Is enforcement of mining laws adequate?

*Should government remove enforcement of mining laws from the Ministry of Energy and Mines?

*Are closed mines being adequately monitored and reclaimed?

*Are mining companies cleaning up their own mess?

*How can the province ensure that mining companies, not taxpayers, pay to reclaim mines?

*Is placer mining being adequately regulated?

*Should the free entry mineral tenure system be reformed to protect private landowners, First Nations and the environment?

BC ramshackle regulatory system governing #BCmining is profoundly dysfunctional https://t.co/hRPrRkumWu @UVicLaw @MiningWatch @LavoieJudith pic.twitter.com/wZQdhzJNdS

— DeSmog Canada (@DeSmogCanada) March 13, 2017

The call for a public inquiry is being supported by many First Nations and community groups.

Ugo Lapointe, Canada program coordinator for Mining Watch Canada, in a letter of support, said “B.C.’s mining regulatory regime remains, in fact, one of the most problematic — if not the worst — in Canada when it comes to protecting the environment, communities, indigenous peoples and taxpayers.”

B.C. ranks worst in Canada for unsecured environmental liability of contaminated mine site clean-up costs and is the only large jurisdiction that has not modernized its mineral tenure system, Lapointe wrote.

The Mount Polley disaster was the worst mining spill in Canada’s history and can be attributed not only to poor technical and corporate practices, but also to poor regulatory oversight, Lapointe said.

And, with mining companies regularly showing up as generous donors to the B.C. Liberals, there is a fear of undue influence.

“B.C.’s system is subject to severe regulatory capture by the industry, a situation exacerbated by the fact that B.C. remains the only large province in Canada where there are no limits on political donations from corporate interests,” Lapointe wrote.

A letter from Bev Sellars, chair of First Nation Women Advocating Responsible Mining, says many of the group’s members have learned how promises of riches can turn into destroyed lands and limited low-paying jobs.

“It’s past time for B.C. to objectively and fully evaluate their outdated and biased mining laws and policies. We will accept nothing less,” Sellars wrote.

Image: Christy Clark at Copper Mountain mine. Photo: Province of B.C. via Flickr

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The review of the Kinder Morgan Trans Mountain pipeline expansion has been plagued by a critical lack of evidence, members of a National Energy Board panel heard in Burnaby last week.

Chris Tollefson, lawyer from the Environmental Law Centre representing intervenors BC Nature and Nature Canada, said the evidence presented in the hearings is insufficient to prevent the panel from discharging its duty under the Canadian Environmental Assessment Act.

“Fundamentally we say there is a lack of evidence for you to do your job,” he said.

On Wednesday, the federal government announced it will consider the upstream greenhouse gas implications of pipelines, but no project reviews will start over. 

The changes are too little, too late, according to Ecojustice lawyer Karen Campbell.

“These interim measures are a welcome band-aid, but they are not enough to inject science and evidence-based decision-making into the Kinder Morgan review process,” Campbell said. “The outcome of the National Energy Board review must still be to reject this project, until the flaws in the application are remedied, and the full regional impacts of the project are fully considered.”

At the hearing last week, Tollefson also told the panel the lack of cross-examination “has vexed the process from the outset.”

On April 2, 2014 the NEB released a “hearing order” instructing all intervenors to raise concerns by way of written “information requests.”

The order reduced the NEB review of the pipeline to a “mere paperwork exercise,” according to Gregory McDade, a lawyer representing the City of Burnaby.

At the NEB hearings for the Enbridge Northern Gateway pipeline, Tollefson, again as council for BC Nature and Nature Canada, spent 26 hours cross-examining witnesses testifying for Enbridge. There were more than 90 days of cross-examination.

Tollefson told the panel that without cross-examination “the process had basically allowed the proponent to introduce into the record unsubstantiated, unidentified expert testimony that could mislead the panel.”

The panel has the authority to reopen the process to cross-examination or recommend the application not be approved by the federal cabinet.

Tollefson urged the panel to consider acknowledging the process is inadequate.

“It’s your duty in terms of information gathering, it’s your duty to press pause at this point to allow for us to get to the truth of these matters in order that the public interest be served.”

He added that there are areas where the “record is plainly in conflict” and where the panel has been “left with a completely untenable task of making a recommendation on a record that is wholly inadequate.”

“We believe — in our submission, it is important to get to the truth of the matter, for the science issues to be fought out on a level playing field where there is no closure, where the proponent can't rag the puck till the clock is run down.”

The hearings continue this week in Burnaby and will continue in Calgary for one week from February 2-5.

Photo: Burnaby Mayor Derek Corrigan being interviewed about Kinder Morgan's Trans Mountain pipeline. Photo by Mark Klotz.

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The release of a University of Victoria study calling for updates to Canadian charitable law created quite a stir last week.

The study, prepared for DeSmog Canada, was covered by the Toronto Star, Vancouver Sun, Victoria Times Colonist, Canadian Press, Macleans, The Tyee, Yahoo! News and CFAX.

The report called for the Canada Revenue Agency (CRA) to clarify rules around “political activities” — defined as any activity that seeks to change, oppose or retain laws or policies — and to provide a more generous limit on allowable policy advocacy in line with other common law jurisdictions such as Australia and New Zealand. It also called for the creation of a politically independent charities commission to remove the potential for political interference in audits.

The findings were raised in the House of Commons by Victoria NDP MP Murray Rankin, who stated the report “analyzes the alarming lack of clarity in the rules governing political activities for charities.”

Tim Gray, executive director of Environmental Defence, said the recommendations put “what’s going on in Canada in the context of what’s going on in other common law and western countries … It gives a sense of how far Canada is behind on these things.”

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Environmental Defence was one of 18 Canadian charities that called on the country’s politicians to enhance the ability for charities to engage in public policy debates earlier this month.

“The lack of a level playing field between business and citizens around public policy is particularly evident in the debate around climate and tar sands,” Gray told DeSmog Canada. “There’s massive spending going on by the oil sector to influence public policy and every dollar they spend on lobbyists in Ottawa or on television ads, they deduct from their gross income and therefore reduce the income tax that they pay to build roads and run hospitals.”[view:in_this_series=block_1]

Citizens who donate money to a charity only receive a 17 per cent tax benefit and charities are limited to spending 10 per cent of their resources on policy advocacy work, described as “political activity” by the CRA.

Fifity-two charities have been audited for their “political activities” under a $13.4 million audit program launched by the federal government in the 2012 budget.

“It’s already unfair and the rhetoric that’s out there right now is to say that that level of unfairness should be enhanced,” Gray said. “It would be a huge move to favouring involvement by corporations in public policy at the expense of citizens.”

Gray also said citizens are confused by the current talk around “political activities,” which many assume to mean “partisan activities,” which charities are banned from taking part in.

Bill Schaper, director of public policy and community engagement for Imagine Canada — which advocates for the charitable sector — said his group has been hearing more and more about re-thinking how we define charity over the last couple of years.

“It’s something that’s been percolating,” Schaper told DeSmog Canada.

But he also noted that there are risks associated with opening up charitable law for major changes. National Post columnist Andrew Coyne, for instance, has argued that we should get rid of charitable status altogether.

“As much as the grey zones are causing issues right now, sometimes grey zones are better than too much clarity because you might not like the clarity you get,” Schaper said.  

He noted that the charitable sector can do a better job of educating itself in terms of what constitutes “political activity” and said there would need to be much more discussion before Imagine Canada would push for specific changes to the law.

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A report released today by the University of Victoria’s Environmental Law Centre calls for sweeping reform of Canadian charitable law in line with other jurisdictions such as the U.S., Australia, New Zealand and England.

Current rules around “political activity” — defined by the Canada Revenue Agency (CRA) as any activity that seeks to change, oppose or retain laws or policies — are confusing and create an “intolerable state of uncertainty,” the report says.

“This has created a confused and anxious charitable sector and detracts from them carrying out their important work,” Calvin Sandborn, legal director of the Environmental Law Centre, said.

The report — prepared for DeSmog Canada — comes as 52 charities are being targeted in a $13.4 million audit program launched by the federal government in 2012 to determine whether any are violating a rule that limits spending on political activities to 10 per cent of resources. Those charities include Environmental Defence, the David Suzuki Foundation, Canada Without Poverty, Ecology Action Centre and Equiterre.

Australia and New Zealand, also common law jurisdictions, have modernized their laws in recent years to allow charities to conduct more policy advocacy in carrying out their missions.

The report, Tax Audits of Environmental Groups: The Pressing Need for Law Reform, calls for Canada to establish clearer rules about what constitutes “political activity” and provide a more generous limit on allowable “political activity.”

Canada’s Charities Law Urgently Needs Update: New @ELC_UVic report http://t.co/EUj828Va94 #UpdateCharitiesLaw #cdnpoli

— DeSmog Canada (@DeSmogCanada) March 25, 2015

“U.S. charity regulation is superior to current Canadian law because it is less vague and more respectful of the value that charities bring to public policy debates,” the report states.

Many European countries place no limit at all on a charity’s political activities.

Earlier this month, 18 Canadian charities called on the country’s politicians to enhance the ability for charities to engage in public policy debates.

“Our society has evolved and our legislation hasn’t,” said Eric Hebert Daly, executive director of the Canadian Parks and Wilderness Society, a group that signed on to the letter.

The new University of Victoria report calls on Canada to modernize the definition of what qualifies as charitable to rectify instances such as the CRA’s ruling that Oxfam can not have a charitable goal of “prevention of poverty.”

“In modern society the law should recognize that a poverty-relief organization can often relieve poverty more effectively by lobbying for affordable housing laws than by operating a soup kitchen,” the report says.

In October 2014, the Broadbent Institute released a report, which raised questions about whether the recent audits have been targeted at charities critical of the Harper government. The report said several right-leaning charities are reporting zero “political” activity while engaging in work that appears to meet the CRA’s definition.

There is a direct structural chain of command from the Minister of National Revenue to the charities directorate (which audits charities), the University of Victoria report notes before calling for the removal of any potential for political interference by establishing a politically independent Charities Commission like the one in England and Wales.

“Regardless of whether the audits are targeted or not, an obvious way to address this issue would be to reform the law to eliminate the potential for political control over CRA audits,” the report reads.  “This has been done in other jurisdictions.”

“The perception that audits may be targeted at charities critical of government policies creates a chilling effect,” the report says — adding that with such vague rules, charities can end up spending an “inordinate amount of energy and resources protecting themselves from an audit.”

The report also notes the contrasting treatment of business and charities under the Income Tax Act:

Since businesses can deduct advertising expenses from their income, they can lobby the public through advertising without any imposed statutory restrictions. A recent example has been the omnipresence of the multimillion-dollar [Enbridge] Northern Gateway radio, television, internet and newspaper ad campaign favouring the project. All of these advertisements would presumably be tax deductible and therefore subsidized by general taxpayers.

In contrast to companies’ tax-deductible political advertising campaigns, charities must carefully ensure that all activities of a political nature are kept within the 10 per cent limit. This contrasting treatment of business and charities under the Income Tax Act has the effect of encouraging businesses to take political action in support of commercial and private interests — while hindering the counterbalancing efforts of charities working to protect public interests.

The report provides the example of cigarette companies fighting smoking laws to defend profits while cancer societies advocated smoking laws for the public good (to prevent cancer). The “political activities” of the cigarette companies would have been tax deductible, whereas the charities advocating tougher smoking laws would have had to follow the ten per cent rule.

“This impairment of charities’ pursuit of the public interest has been magnified by the recent spate of audits and their repercussions on the charitable sector,” the report says.

Policy advocacy by Canadian charities has resulted in measures addressing acid rain, regulations on smoking, laws against drunk driving and regulations on toxic chemicals.

Canadian charities and non-profit organizations account for more than eight per cent of Canada’s GDP. As of the end of 2013, there were more than 86,000 registered charities in Canada.

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The National Energy Board ruled in favour of Kinder Morgan Friday, allowing the company to keep its emergency response plans for the expanded Trans Mountain pipeline secret.

Kinder Morgan fought the province of British Columbia’s demands to disclose its emergency response plans for the $6.5 billion pipeline expansion that will triple the amount of oilsands crude moving from Alberta to the Burrard Inlet, arguing the information is too “sensitive.”

In a statement Kinder Morgan argued “it is not appropriate to file security sensitive information about facility operations and countermeasures.”

Eoin Madden with the Wilderness Committee, an intervenor in the Trans Mountain hearing process, said he wished this ruling came as more of a surprise.

“I’d love for it to be news, but basically for the last year or so we’ve watched more and more information be denied to us intervenors in the National Energy Board process.”

Madden said the entire project review process has been threatened by regulatory capture, a concern he said was confirmed at the highest level with the outspoken disavowal of the proceedings by former BC Hydro CEO Mark Eliesen.

Last fall Eliesen became a vocal critic of the Trans Mountain review, criticizing the National Energy Board’s activity as “fraudulent” and a “public deception.”

Madden said the NEB’s recent ruling falls into a trend of information being withheld from participants in the public hearings. “You’ve got to look at the trend. The trend started in 2012 where, through increased lobbying, the federal government changed the laws on how we engage in processes like this. They made it less democratic.”

“At this point you have to wonder whether the process should proceed at all,” he said, adding many participants lack a fundamental faith in the hearings.

“Breach of due process”

“I’m disappointed in the ruling,” Chris Tollefson, legal counsel with the Environmental Law Centre at the University of Victoria, said. “I think the tribunal made an error when it concluded it didn’t need the documents at this stage.”

Tollefson said the tribunal should have considered not whether it needed the information, but whether the information was necessary for the process and “necessary for procedural fairness to be ensured for the intervenors.”

Tollefson said intervenors needed to see Kinder Morgan’s emergency plan to prepare questions for the second and final round of 'information requests' or questioning.

“Without those documents in my view they’ve been denied the ability to make their case and that amounts to a breach of due process.” He added that there was a marked drop in participation during the final round of questioning.

“Certainly you hear – loudly – frustration being voiced by lawyers, by clients who are involved in this process,” he said.

Tollefson said his clients, BC Nature and Nature Canada, are committed to carrying through with the NEB process “despite the failings we see,” but adds a separate province-led environmental review could address some of the growing concerns with the adequacy of the current review.

“The notion of having a parallel provincial process at this point makes a lot of sense. There are many issues and questions that are not being dealt with in this process that British Columbians want and need to be addressed.”

Intervenors involved in the process have found themselves without the necessary information needed to present their case, they’ve been denied the opportunity to question officials outside a written ‘information request’ process, and are prevented from discussing issues – like climate change – that the NEB finds outside the scope of the hearings.

“I think British Columbians also want to cross-examine company officials and experts to get answers to these questions and that could happen through a parallel provincial process,” Tollefson said.

“That doesn’t mean this federal process will come to an end. It will carry on. But together hopefully the two processes will provide us with a basis for making a wise decision about the future of this project.”

Made-in-B.C. environmental review the answer?

Other on-lookers, however, are less convinced the process should continue.

Spencer Chandra Herbert, NDP MLA and environment critic, said the NEB ruling strongly supports the argument for a separate province-led environmental review.

“I think the NEB’s ruling that Kinder Morgan doesn’t have to provide their full emergency management plan, the plan to deal with oil spills and fires and the like, is wrong. It’s outrageous.”

Chandra said the NEB review process has “been so drastically altered by the Harper Government” that it has become “a fraud and a sham.”

“What it means for B.C. – the province that moved the motion to ask for this information – is that this process is a sham and B.C. should get out of it. B.C. should withdraw.”

Chandra argued a review process tailored to B.C.’s specific concerns is the only thing that makes sense in light of the project and failed federal review.

“We should have a made-in-B.C. process where we can demand the answers that we want whether they are about oil spills or climate change. It’s our coast.”

“What other recourse do we have? I’m not willing to roll over and trust Kinder Morgan as B.C. seems willing to do,” he said.

In November the Green Party of B.C. launched a petition to call for a “made-in-B.C. review” of the pipeline project.

“The B.C. Government has the option to pull out of the existing process and launch its own separate environmental assessment by giving the National Energy Board 30 days notice,” the petition page states.

Around the launch of the petition Green Party MLA and climate scientist Andrew Weaver said, “enough is enough.”

“For months now we’ve seen mounting evidence that the National Energy Board hearings on the Trans Mountain pipeline are seriously flawed.”

“Our provincial government must reclaim British Columbia’s right to have our own, made-in-B.C., hearing process,” he added. “It’s time for the government to step up and protect our interests for it’s clear that the National Energy Board is not doing so.”

Last week Weaver submitted nearly 100 additional questions to Kinder Morgan in the second and final round of the NEB hearings.

“I continue to engage in the this process because I believe it’s important to give a voice to my constituents and to British Columbians who worry that their concerns are being ignored,” he said in a statement.

Around 400 intervenors submitted 10,000 questions to Kinder Morgan and 2000 of the company’s answers were challenged as inadequate. The NEB provided support for those challenges less than 5 per cent of the time.

According to Metro News, the B.C. Ministry of Environment submitted requests for additional information to “seek more information about the Emergency Management Plan.”

Christy Clark has outlined seven conditions for the pipeline to go forward, one of which is a comprehensive spill plan.

Image Credit: Chamber of Shipping

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A push to prioritize economic gains over basic research is endangering science and academic freedom in countries around the world, according to a new report published by a leading researchers union, the French National Trade Union of Scientific Researchers (SNCS-FSU).

The group surveyed higher education and research unions in 12 countries including France, Argentina, Canada, Denmark, Italy, Portugal, Russia, Senegal, Serbia, Spain, the U.K. and the U.S.

The research union found governments internationally are pushing for policies “geared towards innovation in order to spur consumption and competitiveness,” according to Patrick Monfort, secretary-general of the SNCS-FSU. “Budget cuts are often blamed for our problems,” he said, “but they are only part of the picture.”

Monfort told the prestigious journal Nature that scientists in Canada have been particularly hard hit, not only by broad funding cuts, but contentious communications protocols that prevent their freedom of expression.

The new French-language report mentions Environment Canada scientist David Tarasick, who was prevented from speaking about his research on the ozone layer as well as Department of Fisheries and Oceans scientist Kristi Miller, who was prevented from speaking with the media about her research into declining salmon stocks.

The report also notes Natural Resources Canada scientist Scott Dallimore who was not allowed to speak with media about a flood that occurred 13,000 years ago without receiving ministerial approval.

The turn to applied research and science that directly benefits the economy threatens the job security of professional scientists, concludes the new report. The problem is affecting the international scientific community to such an extent the group will call for an international science campaign at their upcoming Higher Education and Research Conference this November.

Canada’s so-called “War on Science” has made international headlines, especially after deep funding cuts led to the closure of some of Canada’s most important research centres. Thousands of federal scientists from the Department of Fisheries and Oceans as well as Environment Canada have lost their jobs as a result of the cuts.

Since 2006 the Harper government has introduced strict communications procedures that prevent scientists from speaking freely about – and at times even publishing – their research. Federal scientists are required to gain upper-level bureaucratic approval before they speak with journalists about their work, leading the international scientific community to call for the 'unmuzzling' of Canada’s scientists.

A report last year from the University of Victoria’s Environmental Law Centre catalogued numerous instances of muzzling and led to an investigation by Canada’s information commissioner Suzanne Legault. That investigation is on-going.

Another report, released by the Professional Institute for the Public Service of Canada (PIPSC), released in October 2013 found 37 per cent of federal researchers and scientists felt that within the last five years they were directly prevented from sharing their expertise with the public or media.

Nearly 25 per cent said they were forced to by government officials to modify their research for non-scientific reasons.

PIPSC president Gary Corbett told DeSmog Canada he found the level of political interference in federal science “very surprising.”

“The findings should be very concerning to the public,” he said, adding a full 50 per cent of scientists said they were aware of cases of political interference in the communication of scientific research.

The PIPSC survey came on the heels of a fundraising letter from the president of the Kenora Electoral District Association that referred to a group of Canadian scientists as “radical ideologues.”*

The letter was mentioned in the recent SNCS-FSU report, noting the phrase “radical ideologues” is “a term normally reserved for terrorists.”

Excerpt from the French National Trade Union of Scientific Researchers report.

The muzzling of scientists in Canada – and its political implications – is well documented in DeSmog Canada contributor Chris Turner’s book “The War on Science: Muzzled Scientists and Willful Blindness in Stephen Harper's Canada” and has gained celebrity attention from the likes of actress Evangeline Lilly.

In an interview with DeSmog Canada, Lilly recently said she was “terrified” to hear about the muzzling of Canadian scientists.

“All over Canada right now scientists are having their funding pulled,” she said, “especially scientists who are speaking about climate change.”

“I rely on the experts in this world, experts like scientists and journalists, to give me the information to help guide me, to help me guide the government and I think that circle is the way democracy is supposed to work,” she said.

* An earlier version of this article stated the letter calling Canadian scientists "radical ideologues" was sent by Minister Greg Rickford. It was sent by the president of the Kenora Electoral District Association. 09/09/2014

Image Credit: Stand Up for Science rally in Vancouver. Photo by Zack Embree.

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Canada's National Energy Board (NEB) announced today that it is stopping the clock on the review of Kinder Morgan’s Trans Mountain oil pipeline expansion due to the company’s new proposed corridor through Burnaby, B.C. — which will push a decision on the project back to after the 2015 federal election.

The board will take a seven-month timeout from its 15-month timeline between July 11, 2014, and Februrary 3, 2015, to allow Kinder Morgan time to file studies for its new corridor through Burnaby Mountain, according to a letter to intervenors sent today.

That pushes the board’s deadline to file its report on the project with cabinet back seven months from July 2, 2015, to Jan. 25, 2016.

“The significant thing is that this decision now won’t be made until after the next federal election. It’ll be up to the next Prime Minister to make that call,” says Karen Campbell, staff lawyer with Ecojustice.

“From a campaign perspective, it certainly gives some wind in the sails of those who want to make sure this isn’t a fait accompli before the next election,” she says.

But Campbell also cautioned that there are still a lot of shortcomings in the process that the energy board has not addressed.  

That’s a concern echoed by Gregory McDade, legal counsel for the City of Burnaby.

“There are so many other incomplete items that need work,” McDade says. “We’ve been pushing all along for a proper public hearing with cross-examination and evidence and the NEB said they couldn’t do that because of the tight timeline. Now that we have the time, why aren’t we doing a proper public hearing?”

McDade says that without cross-examination, the energy board’s review is not legitimate. He noted how Kinder Morgan failed to answer many of the questions put to them through the “information request” process, which he described as a “colossal joke.”

“Stalling it seven months doesn’t help at all if you’re not going to properly examine the evidence,” he said. “It just puts the decision off.”

Chris Tollefson, executive director of the Environmental Law Centre at the University of Victoria, says this ruling is just a small step toward fixing the problem and that the entire process needs to be put on hold until Kinder Morgan’s application is complete.

As of right now, the rest of the hearings are scheduled to move forward more or less as per the previous schedule.

“The board has now recognized that this process was not working and that the timelines were unrealistic,” Tollefson says. “What we would call upon the board now to do is to revisit its decision to eliminate cross-examination from this process.”

Any which way, the Conservatives will be in the limelight over their support for heavy oil projects on B.C.'s coast in the 2015 election, according to Kai Nagata, energy and democracy director at Dogwood Initiative, a B.C. democracy group.

"It'll be a live issue for sure," Nagata says. "The way Kinder Morgan is going, the more time the NEB gives them to alienate landowners and First Nations, the more likely they are to remind people of Enbridge."

Kinder Morgan’s proposed expansion would ship 590,000 barrels of oilsands bitumen to Burnaby each day, where it would be loaded onto 400 oil tankers each year.

— With files from Carol Linnitt

Photo: Rod Raglin via Flickr

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A new lawsuit filed Monday challenges the federal Cabinet's decision to approve the Enbridge Northern Gateway pipeline. The suit, launched by the Federation of BC Naturalists, or BC Nature, asks the Federal Court of Appeal to allow an application that declares the pipeline’s June 17, 2014 approval invalid. Today is the last day parties may apply to the Federal Court to initiate a judicial review of the project's approval.

BC Nature filed a previous lawsuit in January 2014 against the Joint Review Panel’s (JRP) recommendation the federal government approve the pipeline. That suit, filed by the University of Victoria’s Environmental Law Centre (ELC), is still ongoing and challenges the JRP’s justification of “serious harm” to caribou and grizzly bears as well as findings regarding the consequences of a potential major oil spill.

“In the lawsuit filed today, we argue that due to fundamental flaws in the JRP’s report, Cabinet was deprived of the legal authority to make a final decision on the pipeline,” Chris Tollefson, ELC Executive Director and lawyer for BC Nature, said.

“Cabinet was also legally required to give reasons for its approval, which it utterly failed to do,” he added. “For these and other reasons, Cabinet’s decision lacks a tenable legal foundation.”

The Enbridge Northern Gateway pipeline was approved by Cabinet in June, six months after the JRP recommended the pipeline be built subject to 209 conditions.

Natural Resources Minister Greg Rickford said the federal approval of the pipeline took into consideration the JRP’s claim the project is “in the public interest.”

Five legal challenges were filed against the JRP's recommendation to approve the pipeline and at least two have now been launched against Cabinet's approval. Last week the Gitxaala First Nation filed a suit with the Federal Courts, arguing the project would infringe on their Aboriginal rights and title and that the Nation was not properly consulted before the project was approved.

If the Federal Court of Appeals approves BC Nature’s challenge, the group will have five days to file a request for judicial review of Cabinet’s decision to approve the project.

“BC Nature is one of British Columbia’s oldest conservation organizations. Yet in our long history, we have never before felt compelled to go to court to defend our mission and the work we do to protect wildlife across the province,” Dr. Kees Visser, BC Nature President, said. “But with this potentially catastrophic project, we had to take a stand.”

Visser, a former oil and gas exploration geologist, added: “BC Nature is confident in the merits of both of its lawsuits challenging the approval of this ill-conceived project and looks forward to presenting them at the Federal Court of Appeal.”

Image Credit: Dogwood Initiative via Flick.

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