As Canada’s last wild spotted owl goes missing, a legal case that could change Ottawa’s approach to critically endangered species is poised to begin today on the seventh floor of a Vancouver courtroom. The case sets the environmental group Wilderness Committee against the federal government, in a showdown that tests the urgency with which Canada’s Species at Risk Act must be applied to protect wildlife at risk of extinction. Watching closely from the sidelines is the BC NDP government, which for months has lobbied Ottawa to stay out of provincial affairs while it continues to approve industrial logging in the spotted owl’s old-growth habitat.

The environmental law charity Ecojustice, acting for the Wilderness Committee, will ask a federal court judge to consider the question: did Canada’s Environment Minister Steven Guilbeault act unlawfully when he delayed — for eight months — asking the federal cabinet to issue an emergency order to prevent the extinction of the spotted owl from Canada? 

“That is too, too long to wait for anything that you would call an emergency,” Joe Foy, protected areas campaigner for the Wilderness Committee, told The Narwhal. “And when you’re down to one last wild-born spotted owl, I don’t know how else you could define it but an emergency.”

“Can the minister delay for so long on such a critically endangered species?” Foy asked. “The answer that we get will affect many species going down the road, as we try to get better species protection laws.”

The spotted owl has been in the limelight off and on for decades, as efforts to protect it clash with plans to log the commercially valuable old-growth forests where the owl nests in large trees and preys mainly on flying squirrels and bushy-tailed woodrats. In 2003, the spotted owl was listed as endangered under Canada’s newly minted Species at Risk Act. Two decades later, a recovery plan for the species has still not been finalized. About 30 spotted owls, including wild owls captured by B.C. government biologists, live in outdoor aviaries at a captive breeding centre in Langley, east of Vancouver, where staff hatch eggs in incubators in the hopes of one day returning the raptor to Canada’s wild. 

In October 2022, with only one wild-born spotted owl left in B.C.’s forests, Ecojustice petitioned Guilbeault demanding an emergency order be issued under Canada’s Species at Risk Act to save spotted owls. An emergency order would give Ottawa the power to step in and make decisions which normally fall to B.C., such as whether to grant logging approvals in critical habitat for the spotted owl, a chocolate brown bird with distinctive white flecks. 

It’s not the first time Ecojustice, acting for the Wilderness Committee, has petitioned the federal environment minister for an emergency order to protect spotted owls. The law charity’s October 2020 petition for an emergency order was stymied after B.C. and Ottawa struck a deal to defer logging in two Fraser Canyon valleys that, at the time, were home to the country’s last three wild-born spotted owls — the first step in a nature agreement aimed at strengthening conservation efforts in B.C. The two governments said the nature agreement would feature pilot projects deploying new approaches “to protecting species at risk and enhancing biodiversity,” starting with immediate action to support efforts to recover the spotted owl.

Since then, things have gone from bad to worse for the spotted owl, while the long-promised nature agreement has not yet materialized. Two of the three spotted owls — males in the Spuzzum and Utzlius valleys — subsequently disappeared and were presumed dead, leaving just one wild-born female. The Spuzzum male was the mate of the lone female; the pair made history after they hatched the last three wild spotted owl chicks in Canada. The three juveniles were captured by provincial government biologists, who took them to the government-funded captive breeding centre. 

In an emailed response to questions from The Narwhal, after turning down an interview request, the B.C. Ministry of Water, Land and Resource Stewardship confirmed provincial biologists failed to detect the female during routine acoustic surveys this year, saying the owl was last detected a year ago. “Field crews consider the wild female to be alive at this time and continue to monitor for a detection,” the ministry optimistically stated. It also said two spotted owls from the breeding centre that were released this summer are still alive. Last year, for the first time, three breeding centre owls were released near the Fraser Canyon. One owl was found injured and returned to the centre, while the other two died over the winter. 

New clear-cutting documented in B.C.’s spotted owl critical habitat 

Following the 2022 Ecojustice petition, Guilbeault said in January he would recommend the federal cabinet issue an emergency order to protect spotted owl habitat from imminent logging. But Guilbeault didn’t follow through until late September, when the cabinet rejected the order. The federal cabinet is not required to provide reasons for its decision and none were given. 

The decision was immediately slammed by Spuzzum First Nation Chief James Hobart, who said he was extremely disappointed. “How can Canada delay and then walk away from an emergency order to protect the spotted owl, a species in such a dire state of emergency?” the chief asked in a statement released today in support of the legal case. 

A cabinet minister briefing document obtained by The Narwhal showed the B.C. government lobbied intently behind the scenes to dissuade the federal cabinet from issuing an emergency order. The briefing document cited socio-economic impacts and B.C.’s “significant protections” for spotted owls as reasons why Ottawa should back away. 

During the eight months Guilbeault delayed making the recommendation to cabinet, the Wilderness Committee documented new clearcutting and B.C. government logging approvals in spotted owl critical habitat, including in a wildlife habitat area in the Fraser Valley the provincial government had set aside for spotted owl recovery.

Ecojustice lawyer Andhra Azevedo said B.C. and Canada have taken a “talk and log” approach since Guilbeault determined plans for imminent logging jeopardized the recovery of the species. “If you act after the logging has already occurred, you haven’t obviously done anything to prevent the emergency you’ve identified from happening,” Azevedo said in an interview. 

Instead of taking emergency action to step in as B.C. failed to protect the spotted owl’s habitat, Azevedo said Guilbeault’s delay allowed the province to further threaten the owl’s recovery through further logging. “The eight-month delay to recommend an emergency order, followed by cabinet’s denial of the order, makes a mockery of emergency orders under the Species at Risk Act.” 

Emergency orders generally rely on environmental organizations to do the groundwork to determine imminent threats to a species at risk of extinction, Azevedo said. Once lawyers acting for an environmental organization petition the environment minister for an emergency order, the federal environment ministry conducts its own threat assessment. 

“And so, in this case, we know that in January, Environment Canada determined that there was 2,500 hectares of spotted owl habitat that was not just generally at risk of logging, but a very high potential of being logged in 2023.” The logging season in B.C. is roughly from March or April to November, Azevedo pointed out. “And so that puts a pretty clear timeline on what the emergency was.” 

Court docs offer a glimpse of B.C. government’s mindset on spotted owl

Andrea Olive, a University of Toronto professor whose research focuses on biodiversity and conservation policy, is among those watching the legal case closely. “If this court case rules on the side of the spotted owl, it may open the door for other species, or at least make the government pretty nervous that that could happen,” Olive said in an interview. Although no one wants to see a situation in which Ecojustice must repeatedly petition the federal government for emergency orders to protect critically endangered species, Olive said the “precedent-setting” case could prod the federal government into taking timelier action under the Species at Risk Act. 

The federal government is “very much in a difficult spot” when it comes to recovering spotted owls and other at-risk species in British Columbia, Olive pointed out. Unlike other provinces, B.C. lacks a stand-alone law to protect close to 2,000 species officially at risk of extinction, despite a 2017 promise from the BC NDP government to enact such legislation. 

Olive said “we’re not really supposed to get to that place” where emergency provisions in the Species at Risk Act are used to compel a province to take action. “It’s still putting a burden on the federal government to do something that’s really in the province’s jurisdiction … British Columbia should have done something. It’s their failure.”

In its emailed statement, the B.C. Ministry of Water, Land and Resource Stewardship said it can’t comment on a matter before the courts. “B.C. remains confident that through the combined efforts of a team of dedicated provincial staff at the breeding centre and our First Nations partners, we will continue moving towards the right path to spotted owl recovery,” the ministry said.

Documents submitted for the legal case offer a glimpse of the B.C. government’s mindset and priorities. In an Aug. 8 letter to Guilbeault, B.C. Minister of Water, Land and Resource Stewardship Nathan Cullen discussed the captive breeding and release program at length, calling it the “best chance for spotted owl survival and recovery in B.C.” when coupled with the removal of barred owls, a bigger and more aggressive species that has moved into spotted owl territory. More than 200 barred owls have been relocated or “removed” — a euphemism for killed — from spotted owl territory since 2007, Cullen noted. 

Cullen said the province’s spotted owl recovery program is “scaling rapidly” following extensive investments in spotted owls over the past 16 years, including about $1 million a year for the breeding centre. But “significant additional immediate capital investments and land acquisitions are required,” Cullen said, asking the federal government to help with funding.  

In the letter, Cullen claimed the federal government’s Trans Mountain pipeline expansion project “exposed the captive breeding population to avoidable risk,” contrary to the precautionary principle in the Species at Risk Act and contrary to expert advice. Cullen noted the project was allowed to proceed directly adjacent to the captive breeding centre in Langley “during this year’s critical breeding window,” despite B.C.’s concerns. 

He then dove into minute details, saying two breeding females died and the average egg fertility for the first clutch of eggs was significantly reduced this year. Reduced breeding outcomes in 2023 could be significant for the spotted owl’s survival and recovery, potentially impacting the population growth trend, Cullen continued. “With such a low population size and limited number of breeding years per female, the consequences of these impacts are amplified and potentially dire.” 

B.C. believes there was a lack of regulatory oversight and has filed a complaint with the Canadian Energy Regulator, Cullen noted. 

The Narwhal earlier reported the B.C. government approved 24 new cutblocks for the Trans Mountain pipeline in spotted owl critical habitat, including in old-growth forests. 

Cullen also outlined in detail how the B.C. government has set aside enough habitat to support 250 paired mature owls in the wild. But Foy scoffed at that notion, asking: “So how come we’re down to one? If everything’s all peachy keen, what’s going on there?” 

The answer, Foy said, is that the spotted owl’s habitat is so fragmented the species can no longer replicate in the wild. Juvenile spotted owls can’t safely disperse to new territories in search of food, shelter and mates. 

In an emailed response to questions, Environment and Climate Change Canada media relations spokesperson Eleni Armenakis said the federal government recognizes more needs to be done to support the recovery of the spotted owl. “Collaboration with British Columbia and First Nations is the preferred approach for achieving the species’ recovery,” she said. “The government of Canada will not be making an emergency order at this time.”

Building off current negotiations towards a tripartite agreement on nature conservation, the federal government is working closely with its partners to ensure “a suite of measures to support spotted owl recovery are implemented,” Armenakis said. “This includes captive breeding and release and habitat protection.”

Armenakis said Guilbeault has fulfilled his obligation under the Species at Risk Act and recommended an emergency order to protect the species to the federal cabinet, “having previously concluded the species was facing imminent threat to its recovery.”

Foy said the Wilderness Committee is motivated to take legal action because so many species are struggling. “We need to stop and realize that, only a decade ago, we weren’t talking about things like the last wild spotted owl, or entire herds of mountain caribou disappeared, wiped off the map,” he said. “And today, we are talking about those things … All of this means every little finger hold we get, every opportunity we get to put this fastly deteriorating environmental situation in front of one of our courts, in front of our politicians, I believe we should take every opportunity we can.”

“It’s never too late to help the spotted owl,” Foy said. “I’m caught between painting a rosier picture than it is, but also in not giving up while there is still a chance at life.” 

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Ancient cedars weren’t the mystery Doug Larson was seeking to unravel when he first rappelled down from the edge of the Niagara Escarpment in search of cliffside forests. 

He wanted to know how these hardy trees prospered, clinging to the side of the rock face — he never expected they’d been doing it for a really, really long time.

Larson, an ecologist, had been dissuaded from continuing his previous work studying lichens: “It’s just rock scum, nobody cares,” one critic told him. So, he was out on the rocky ridge of the escarpment, in Halton Region west of Toronto, to instead study cedars he saw as “basically like big lichens.” 

“What we thought and what we expected was that European colonists had literally nuked the forest vegetation of Southern Ontario,” he said. “We thought that everything on a cliff face as well as everything on the cliff edge was all new growth, secondary forest. Well, why would we think otherwise?”

The team had taken climbing lessons and learned to use fixed ropes to dangle close to the gnarly trees. The biggest among them were a few metres tall, while the smallest were hardly larger than a dinner plate. Larson and his team started taking core samples from the wizened cedars in 1988, drilling into their centres to take pencil-sized cross-sections without killing the trees. When they began counting the trees’ miniscule rings under a microscope, the researchers realized they had found something considerably more long in the tooth. Verification from another lab confirmed what they saw: the oldest among those early finds had been alive for about 700 years, far predating the invention of the printing press.

“You know how your guts get all squirrely when you’re afraid of something, or when you’re excited?” said Larson, who is now retired. 

“​​What you’ve got is an undisturbed habitat that people didn’t know was there, even though you can see it from (Highway 401). And for three days, I couldn’t sleep. Because nobody else knew this.” 

The cliffs of the escarpment, a ridge formed by glaciers, are a harsh place to live. These bizarre vertical forests are exposed to the elements, rooted in scant gaps in the limestone. In their efforts to survive the rockfall and unrelenting weather, many eastern white cedars have twisted themselves into strange shapes, some growing upside down. It’s weird, but it works. The cliffs were ideal for helping cedars avoid the widespread deforestation that felled most of their relatives, along with the wildfires that are natural to the ecosystem. 

Eventually, Larson and the team would go on to find cedars over 1,000 years old. The oldest one found alive is over 1,300 years old, beginning its life in AD 688. Some dead ones had once lived even longer: one found preserved under a rock overhang had lived over 1,800 years, once.

“As far as the trees are concerned, it’s paradise,” Larson said.

No one knows exactly how many old-growth trees are left in Ontario. Some, like the ancient cedars along the escarpment, may be hiding in plain sight. Others stand in mighty tracts of forest. What’s certain is that there are far fewer of them than there used to be before the 1800s, when settlers logged much of what is now the province, dramatically altering the natural environment in service of agriculture and a timber trade that produced enormous wealth. 

The question now is how to protect what we have left, something critics say is more urgent amid threats from the climate crisis, invasive species and human encroachment. Most of the cedars on the escarpment grow in conservation areas in Ontario’s Greenbelt, but many old-growth forests in Ontario don’t enjoy the same level of protection. Long-lived forests sequester carbon, of course. And the most ancient trees, like the cliffside cedars, also contain a treasure trove of information about the history of the world in their lifetimes.

“From a climate change standpoint, studying how these trees continue to grow, it’s an active area of research,” said Hassaan Basit, the CEO of Conservation Halton, which is responsible for protecting lands along the escarpment that are home to many of the ancient cliffside cedars.

“They’re living labs. So it’s very, very important from a scientific standpoint to preserve them.”

Few things in our world persist for so long, said Peter Kelly, an ecologist and expert in aging trees via their rings. He worked with Larson’s team and co-authored a book with him about the ancient cedars.

“All of the urban infrastructure and the roads and everything, none of that was here,” he said. “There’s not a lot out there that was here 1,000 years ago, other than literally the rock face, right?” 

Defining old-growth forests in Ontario is ‘always going to be messy’

Old-growth trees in Ontario haven’t made as many headlines lately as their towering counterparts on the West Coast. Throughout 2021, attempts to log old-growth forests in B.C. sparked blockades, leading to over 1,100 arrests.

But it wasn’t so long ago that eastern old-growth was at the centre of a similar battle in Temagami, about two hours’ drive northeast of Sudbury. In the late 1980s, as Larson and his crew were determining the ages of the escarpment’s ancient cedars further south, the Teme-Augama Anishnabai — whose territory encompasses Temagami — and environmentalists had begun blockading logging roads there in efforts to save towering white and red pines over 300 years old. Then-Ontario NDP leader Bob Rae, who would later go on to be premier, was one of those arrested at the protests.

“If we don’t protect the old forest now, it’s clear that it’s going to go,” Rae said at the time.

As public concern mounted, the Ontario government did protect some of the old-growth in Temagami, conserving just under half by 1996. It also formed an advisory committee of experts, who helped write a 2003 policy to guide protection of Ontario’s old-growth forests. That policy led to the development of forest management guides and plans for Crown forests, the Ontario Ministry of Northern Development, Mines, Natural Resources and Forestry said in an email. The guides lay out how to evaluate old-growth conditions, while the plans include targets for how much old-growth industry should maintain in any given forest.

Some of Temagami’s unprotected old-growth has been logged since, and tension remains. Last year, the provincial government established the Temagami Forest Management Corporation, meant to bring Teme-Augama Anishnabai, settler communities and logging companies together to jointly manage the area’s forests. Municipal officials have praised it, but Temagami First Nation Chief Shelly Moore-Frappier told CBC last January that she isn’t so sure it’s going to fix decades of disagreement: “It’s kind of hard to comment on those relationships and that time and comparing it to now.” (Neither representatives of the First Nation or the larger Teme-Augama Anishnabai community were able to speak to The Narwhal by deadline.) 

Part of the trouble is, old-growth is a thorny issue. As a baseline, it’s tricky to define. Some people think of old-growth as anything that predates European settlement, but even some regrowth is now hundreds of years old. Others think the word should refer to entirely untouched forest, which is increasingly rare in Ontario, and gets complicated when looking at tracts that have been selectively logged with older trees left intact. The province’s definition of old-growth includes 59 sub-definitions of the term for various different types of trees. Its policy, which dates back to 2003, takes a two-pronged approach, calling for the government to maintain functional old-growth ecosystems while also allowing a “sustainable harvest.” For certain species, for example, this means logging can’t deplete the old-growth forest beyond its 1995 levels.

“The problem is, it’s always going to be messy because you’re trying to define something that isn’t really definable,” said Michael Henry, a Peterborough, Ont.-based forest ecologist who, among other work, keeps a running list of the oldest trees in the province and wrote the book Ontario’s Old -Growth Forests.

The uncertainty has left room for disagreements to continue. One is playing out in the woods by Catchacoma Lake in the Kawartha Highlands north of Peterborough, where a hemlock forest with some trees as old as 350 years is slated for logging. 

“New research is showing that this is potentially a very significant forest,” said Katie Krelove of the non-profit Wilderness Committee, which is pushing the province to turn the area into a conservation reserve. “Maybe it should not be logged.” 

Hemlock forests are on the decline in Ontario, and this one is particularly large. Krelove said that research suggests that it’s home to species-at-risk like the cerulean warbler, a tiny blue songbird, and the hognose snake, which has a distinctive, upturned snout.

The Bancroft Minden Forest Company, which holds logging rights in the area, has countered that it doesn’t believe the area is untouched old-growth at all, as it was previously logged in 1988. As well,  selective harvesting allows the company to remove the less robust trees and leave healthy hemlocks that are hundreds of years old standing for the overall benefit of the forest, wrote the company’s general manager and professional forester, Svetlana Zetan, in a letter to the Peterborough Examiner in 2020. (Zetan did not respond to a request for an interview.) 

Ian Dunn, the president and CEO of the Ontario Forest Industries Association, said in an email that he doesn’t think it makes sense for forests like Catchacoma to stay untouched amid the climate crisis. He argued that since human activity is already contributing to invasive species and increased wildfires, forests need the active management that comes with logging. Though he said he agrees older forests are on the decline in Ontario, he also said establishing more old forests wouldn’t be a good thing.

“Forests depend on ecological succession and disturbance (natural or human) to maintain ecological integrity, reinforcing the need for more active management, not less,” he said. 

Maintaining the right balance is difficult, Henry said. He thinks logging still goes too far, and that old-growth should be left alone, but he’s not against forestry altogether. Though there’s room for compromise, he said humans need to stop acting like we’re the only species that matters.

“Everything’s complicated,” Henry said. “It’s hard to come up with a simple narrative.”

In its 10-year forest management plan released in 2021, the Bancroft Minden Forest Company labelled two blocks in the Catchacoma forest as “contingency,” which means they’re less likely to be logged. And in response to pressure from environmentalists, the Ontario government protected 19 hectares of old-growth from logging last year and placed a one-year moratorium on logging in all blocks of the forest, which expires in Sept. 2022, Krelove said.

But in a broader sense, protection remains a patchwork.

Even on lands within the bounds of Ontario provincial parks, questions around old-growth protection aren’t necessarily settled. In 2018, Henry and a group of other researchers found a 408-year-old hemlock in an old-growth tract of Algonquin Provincial Park that remains open for logging, though it hasn’t been allocated for harvest yet. 

In its lifetime, Isaac Newton was born and discovered the laws of gravity. It predates European deforestation of Southern Ontario. It’s technically possible that selective harvesting would leave that particular old tree intact, if the area was ever logged. But although there’s no doubt about the tree’s age and significance, it’s still not protected, Henry said. Algonquin is the only provincial park to allow commercial logging. 

All the while, the climate crisis is changing the trees’ environment — old-growth forests may have a better chance of adapting because they have more genetic diversity. Invasive species also remain a significant threat to their survival, and governments must do more to stop them from entering the environment, he added. 

Giving old-growth trees a higher level of legal protection can present another set of challenges, Kelly, the tree-aging expert, said. Most policies are passed to protect entire species that are at risk. But take the eastern white cedar for example: because the species is common, it doesn’t qualify for existing species protections, even though its old-growth is rare.

“I think there’s an informal protection now, and that informal protection is that people have fallen in love with them,” Kelly said. 

In an email, the ​​Ministry of Northern Development, Mines, Natural Resources and Forestry said municipalities have the power to create their own by-laws to protect old-growth. The ministry also said it encourages private landowners to conserve forests on their land through tax incentives. 

Looking back at his years studying the ancient cedars on the escarpment, Kelly remembers a constant sense of wonder. No matter the hardships of hacking through dense brush, or enduring bout after bout of rashes from poison ivy, which often grows at the base of the escarpment — “Oh my god, I always had poison ivy,” Kelly said — it was worth it.

“I couldn’t help but anthropomorphize when I was looking at them,” he said. “Once one of the cedars gets to be over that age (of 300 to 400 years old) they’re all different. No two trees are the same. It’s just crazy. They’re so gnarled and twisted and shaped by the elements.”

The team would collect core samples in the warm months, then spend the winter analyzing. He still remembers the first chilly day in the lab where he counted over 1,000 rings on one of the cross-sections.

“I just kind of screamed,” he said. “I found it a really special time in my life … I feel extremely lucky that I got to spend time around these trees.” 

And although Kelly, Larson and their fellow researchers catalogued many, there are likely more. Their efforts in Ontario were concentrated along the escarpment, near where they worked at the University of Guelph. But there are trees everywhere in Ontario that haven’t been studied in the same level of depth. Though the boreal forest further north tends to burn more often, researchers have found pockets of older trees, Henry said.

To spot an ancient one in the wild, Henry suggested looking in places that are difficult to log: ravines, swamps and cliffs, for example. Other hotspots could be found on lands that used to be part of the estates of wealthy families, including, ironically, former lumber barons. It’s impossible to know a tree’s exact age without analyzing its rings, but sometimes their environment is a handy clue. It also helps to let go of the idea that the biggest trees are the oldest ones, he said.

“Size and age don’t always equate,” Henry said. “Sometimes the slower something grows, the longer lived it is …  You find these kinds of harsher growing conditions in the forest, you’ll often find the older trees there too.”

Though the fate of old-growth elsewhere in the province is uncertain, Basit said Conservation Halton has found a good path forward for protecting cliffside ancient cedars.

When Larson and his team found out the ages of the ancient cedars, some were already damaged. Rock climbers had for years secured ropes around them, unaware of their ecological significance. As it turns out, the area is home to 124 trees that are older than 500 years, and 10 trees that are older than 1,000.

Once Larson’s team determined their ages, Conservation Halton acted. It worked with the climbing community to install 400 bolts and anchors on the cliffs, establishing permanent routes so people could climb safely without disturbing the trees. 

“We could have just banned it, you know. Banned wrapping ropes, banned rock climbing,” Basit said. “But instead, we actually worked on installing all those bolts and anchors, right? So it becomes a solution that everybody can be a part of.”

Conservation Halton also altered hiking trails to protect the trees, where necessary. 

“We’re at a critical juncture to protect these,” Basit said. “Nobody’s being asked to make massive sacrifices to protect these species. We’re just being asked to be responsible.”

Updated on March 8, 2022 at 5:05 p.m. ET: This story was updated to correct the spelling of Katie Krelove’s name.

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