This is the second part of a two-part series on the impacts of the Mount Polley mine spill, four years later. Read part one of this investigation.

Kim Goldforth and I are standing on the shore of Quesnel Lake, at the very spot where the 2014 tailings spill ripped a new confluence into the side of this great fjord, when two men approach us from the land side.

We were just about to get back on Goforth’s fishing boat anchored at the outflow of Hazeltine Creek, but turn to face them instead. “Don’t take any shit from these guys,” said Goforth beneath his breath.

The two men are not Mount Polley staff as we expected, but a fisheries team from the Northern Shuswap Tribal Council, which represents four nearby First Nations communities. Four years after 25 million cubic metres of metal-rich tailings spilled into the lake, they are here to assess and observe fish, or in the case of Hazeltine creek in front of us, the lack thereof.

Kim Goforth, resident of Quesnel Lakes’s Mitchell Bay, aboard his boat at the mouth of Hazeltine Creek. Photo: Louis Bockner / The Narwhal

A sign posted by the Mount Polley Mining Corporation notifies the public of game cameras posted around the mouth of Hazeltine Creek. Photo: Louis Bockner / The Narwhal

While these signs stating ‘no public access’ can be found all around the Hazeltine Creek, locals say the land is crown land and therefore accessible by the public. Photo: Louis Bockner / The Narwhal

Fisheries coordinator Dave Feil is unimpressed by the millions of dollars the company has spent on landscaping and rebuilding the Hazeltine streambed. He is interested in the health of salmon that migrate up the Fraser and end up here, because these fish are intercepted all along the way by many First Nations.

Concerns about metal accumulations in the fish, which is subsistence food for so many, is top of mind. Unlike the nearby Gibraltar mine, owned and operated by Taseko Mines Ltd., he tells us, Mount Polley, owned by Imperial Metals, won’t pay for them to test and measure metal accumulations in the fish that live and rear in Quesnel Lake.

What about the return of more than 800,000 sockeye to the Quesnel Lake system this year? Isn’t that good news?

Feil laughed, “that’s the running joke right now: ‘Mount Polley has made everything so much better!’ ”

Anger over continued dumping

When I meet Doug Watt at the Likely Pub late later that night, there are points when he speaks in a low voice, so as not to be overheard by the owners, who support the mine. He estimates there are 25 to 30 families in the area that rely on Mount Polley for income, so his advocacy has come at a personal cost.

He worked for six years at Mount Polley as a metallurgist, preceded by stints at Gibraltar, Equity Silver and the Snip mine up in the Stikine. Now he is channeling 45 years of mining knowledge into his work for the Concerned Citizens of Quesnel Lake.

There are two things that rile Watt about the four-year anniversary of the Mount Polley disaster: mine owner Imperial Metals has not paid a cent in fines, and the province continues to allow the company to dump tailings effluent into the lake.

This disposal goes back to at least 2015 — occurring by direct releases into Hazeltine Creek, and through a pipeline that drains deep into the lake offshore of Hazeltine creek.

Watt says the company broke the terms of its April 2017 discharge permit almost immediately after it was issued. The B.C. Ministry of Environment confirmed that in a single month, the company was caught three separate times — exceeding maximum levels for dissolved aluminum, total copper and dissolved cadmium.

The lower portion of the remediated Hazeltine Creek, which now contains a series of contained settling ponds.

An aerial view of the lower portion of Hazeltine Creek. The discharge pipeline right of way can be seen trailing alongside Hazeltine Creek, centre left, tracing a line to the tailings pond and the Mount Polley mine.

A sign posted by the Mount Polley mine at the mouth of Hazeltine Creek warns visitors of the buried pipelines entering Quesnel Lake. Photo: Louis Bockner / The Narwhal

A stake marks the pipeline that runs from Mount Polley mine’s tailings pond to the mouth of Hazeltine Creek. Photo: Louis Bockner / The Narwhal

Upturned trees, placed in the ground in an effort to provide perches for birds of prey as part of remediation work at the mouth of Hazeltine Creek. Photo: Louis Bockner / The Narwhal

And since 2017, the province has issued the company six advisories and two warnings for various infractions, all in the form of written notices.

The permit clearly states that breaking the terms is a violation of the Environmental Management Act and “may lead to prosecution.” Under Section 120(6) of the Act, a permit holder breaking the rules is liable on conviction to a fine up to $1 million or imprisonment for up to six months, or both.  

Meanwhile, the Administrative Penalties Regulation also specifies fines up to $40,000 per incident per day for failure to comply with a requirement of a permit.

But somehow, as with the spill itself, the company continues to break rules that on paper have strong deterrent penalties, but in practice have no teeth. At least so far.

Quashing the permit?

A major preoccupation of the Concerned Citizens group is to get Mount Polley’s 2017 discharge permit revoked. One of the members, Christine McLean, has taken the fight to the Ministry of Environment’s Environmental Appeals Board. (She has a hearing in May 2019).

It was through this process that she learned Mount Polley has requested a relaxation of the permit rules for dumping effluent into the lake.

Mount Polley mine’s owner Imperial Metals did not respond to an interview request. The B.C. Ministry of Environment confirmed the company “contends the [existing] permit is too restrictive,” including how water is tested in the lake.

“It’s so demoralizing when the government allows the same company that let this disaster happen, to lay a pipe into the lake and discharge directly,” McLean told me later. “It’s adding insult to injury.”

Daniel Selbie, who heads up the lakes research program for the Department of Fisheries and Oceans, has been studying metal accumulations in Quesnel Lake fish. He says the 2017 decision to allow the discharge has made the task of determining the impacts of the 2014 spill on the wider ecosystem that much harder.

“Now there is water that’s been discharged into the west basin, which is coming from the mine, which has higher levels of metals,” he said. “It complicates the picture.”

He added that the decision to approve the discharges was made by the provincial government. “I can tell you many, I won’t say who, were opposed to it.”

Mist clings to the forested slopes above Horsefly Bay on Quesnel Lake. Photo: Louis Bockner / The Narwhal

A dead, spawned salmon floats in the shallow waters of Quesnel Lake near the start of the Horsefly River. Photo: Louis Bockner / The Narwhal

A lone loon rests on Quesnel Lake’s Horsefly Bay. Photo: Louis Bockner / The Narwhal

They can’t catch Lionel

The next morning, photographer Louis Bockner and I tour the disaster site and surrounding wilderness by road. At 10 a.m. our guide Lionel Guiltner pulls up to the Hazeltine Creek bridge crossing, riding a battered quad with a chainsaw strapped to the back.

It’s hard to imagine anyone knows the unmarked dirt roads and game trails that snake through this area like Guiltner, a former school teacher who lives nearby. Not even giant wind-blown trees across the trail stop him — he just fires up the chainsaw and moves on.

During the first months after the spill, Mount Polley staffers regularly stopped and threatened him as he rode through Crown land in this area. It never got violent, but their policy was to keep all eyes off the disaster site. This in turn earned Guiltner’s scorn. (Years later, he’s still indignant — “I have been wandering this area for 40 years!”)

None of the staffers in their giant pickups could chase him through the labyrinth system of trails he knows so well — if they turned him back at one spot, he would reappear somewhere else nearby, moments later.

“I’m not against mining…” he begins. This is a common preface in this area, but it’s not intended to mask environmentalist sympathies.

Mining is in the blood here: back before the B.C. mainland was a British colony, there were 5,000 people in nearby Quesnel Forks.

The two communities closest to the spill — Likely and Horsefly — wouldn’t exist if it wasn’t for the influx of mostly placer miners that began after 1860, when gold was found on the Horsefly River. In turn, fishing, ranching and forestry followed as sustaining industries, but mining continues to be the bread and butter.

Much of the area around Quesnel Lake and the Horsefly river has been worked over by miners over the last 150 years.

At one point the mainstem of the Quesnel river itself was dammed to excavate the riverbed for gold (salmon be damned), and just above Likely, the Bullion gold mine used pressurized water to erase entire mountainsides along the same river.

The Mount Polley gold and copper mine was built in 1997, filling an economic vacuum left by the decline of forestry. In the ’70s and ’80s there were three sawmills around Likely, but they are long gone. Guiltner, a retired school teacher, says there were 125 kids going to school in Likely in the 1980s; today there are 12.

So Mount Polley is a necessary neighbour to many, but locals like Guiltner also consider them a lousy neighbor. “They get away with too much,” he spits.

Inexplicably, our guide “cannot walk and talk at the same time,” which means we spend much of our tour standing around, but I’m surprised how much we get to see. First we visit the banks of Polley Lake, a large kidney-shaped lake directly west of the tailings dam.

A reflection along the muddy road that leads to the mouth of Hazeltine Creek. Photo: Louis Bockner/ The Narwhal

Sunrise on Quesnel Lake near the mouth of Hazeltine Creek.

Sunrise light on Quesnel Lake. Photo: Louis Bockner / The Narwhal

When we’re confronted by pick-up trucks driven by Mount Polley staff, Guiltner announces his intention to go on through. They wave us through.

Eventually we’re standing at the base of the new tailings dam, a mountain of rock and earth, near the very point that breached in 2014. Back in late 2015, an investigation led by B.C.’s Chief inspector of Mines concluded that the dam failed because the strength and location of a layer of clay underneath our very feet was not taken into account in the design.

Guiltner shares a hopeful theory. Mount Polley has given the entire B.C. mining industry a black eye and it’s the peers of Imperial Metals that are most likely to influence the company behind the scenes, forcing them to do a better job of running their mine.

“If anybody is going to have an impact, it’s the mining fraternity,” he says, motioning up at the colossal tailings dam. “They are all watching this.”

Water woes separate friends and family

We drive back to Likely along an old logging road that skirts Quesnel lake, just in time to make our meeting with a retired insurance executive and part-time placer miner named Craig Ritson.

He’s bought up all the placer mining claims closest to his home, for the fun of and profit of finding gold, but also to ensure no yahoos come in and mess the place up.

His huge, beautiful home is located on a street that runs right along Quesnel lake — this line of well-kept, water-front lots is the closest thing this area has to suburbia.

There was one reason Ritson chose this place to live back in 2002, he tells us: “It had the best water in the world.” Four years after the disaster, he continues to drink water from the lake, although doing this entails a lot more effort now.

Down in the basement Ritson shows us the mini water treatment plant he devised after the 2014 breach. Lake water flows into a pressure tank and through two filters, which trap particles 50 and two microns in size respectively. Then it goes through an ultraviolet treatment system to kill bacteria like fecal coliform.

Craig Ritson sits in his home on the banks of Quesnel River in Likely, B.C. Ritson installed a UV filtration system for his drinking water in an effort to mitigate the pollution in Quesnel Lake following the Mount Polley Mine spill. Photo: Louis Bockner / The Narwhal

Craig Ritson shows the $52 filter that provides the main filtration for his home’s water. Depending on the time of year he may replace the two filters once a month. Photo: Louis Bockner / The Narwhal

All in, the system costs about $400 a month to run. The filters last anywhere from 17 days to 1.5 months depending on usage, before clogging up with fine gray silt.

While Ritson has stayed, his former neighbour and mining partner Doug Brassington, who was visiting during our interview, has moved to Salmon Arm. Water was the reason. After the spill, he felt it was impossible to trust the safety of the water. The only source of information was the company, he says, and by that point, he didn’t trust them.

Brassington misses life here immensely, but doesn’t regret leaving, especially since they started dumping effluent back into the lake.

“I know people all along this street who drink water from the lake. People still eat the fish. Who’s protecting those people? Nobody.”

Though retired, Ritson maintains the air of an executive, chairing a board meeting around a great dining table with panoramic views of the water and sprawling lakeside property.

“First Doug moved his family, then my son Brett…” he chokes up with emotion and can’t speak for a moment. “…now my son has moved his family away as well.”

He recovers quickly and becomes the executive again.

Jacinda on the Horsefly

Running right through Horsefly, B.C., population 150, is the river of the same name, which in early September is packed with crimson sockeye.

As we watch from a bridge in town, a hyper-aggressive female chases off other fish, defending her egg nest (called a “redd”) to the end. The humpbacked males meanwhile will fertilize as many redds as they can until they die.

Jacinda Mack. Photo: Taylor Roades / The Narwhal

On the day I arrived here, Jacinda Mack was here too, to see the returning sockeye. Born and raised in her mother’s home community at Xat’sull near Williams Lake, Mack is one of the women behind Stand For Water — a project of First Nations Women Advocating Responsible Mining, a movement to raise awareness of the threats mining poses to water in the Pacific northwest.

Her mother, former Xat’sull Chief Bev Sellars, launched a private prosecution against the Mount Polley owners, a case that was killed by the province in January 2018. But that’s not the end of it: Mack tells me the Xat’sull First Nation and others from the Secwepemc, as well as Tsilhqot’in and St’at’imc First Nations have all filed suits against the company.

“All are waiting on the ongoing [federal government] criminal investigation to see if any culpability or evidence will be disclosed that may impact their legal actions against the company.”

The Mount Polley disaster had one notable positive effect on the world, according to Mack.

“Before the disaster people were largely unaware about anything to do with mining. It was out of sight and out of mind,” she says. “But there’s been more scrutiny of British Columbia mining in the last four years than since the goldrush.”

She says B.C.’s outdated mining laws have to change, and points to lawyer Mark Haddock’s recent recommendations to the province, which call for changes to the current system of “professional reliance” employed by resource companies like Imperial Metals.

It’s a system of relying on industry-hired specialists — like consultant biologists that test water quality — to produce science that government itself used to do. An underlying problem with this, is that when a company pays the wages of consultants (and the consultants rely on continuing work), there is undeniable pressure for science to conform to the interests of the company. The B.C. government announced reforms to the “professional reliance” system on Monday.

This issue is highly relevant to the Mount Polley disaster. In late September 2018, the regulatory body that oversees B.C.’s engineers accused three engineers — former Mount Polley contractors who worked on the dam — of  “negligence and/or unprofessional conduct in the course of their professional activities.” Meanwhile the company, by this reliance on consulting experts, appears to have escaped direct responsibility for the tailings breach.

“You can view the Mount Polley disaster as a failure of government in terms of their approach of self-regulation,” says federal NDP Fisheries Critic and B.C. MP Fin Donnelly, who before politics, swam the 1,375 kilometre length of the Fraser twice, to draw attention to salmon and the wider ecosystem. “This has to change.”

A dead Sockeye Salmon on the banks of the Horsefly River near Quesnel Lake. Photo: Louis Bockner / The Narwhal

Donnelly says two positive outcomes are still possible four years after the disaster. One is to change the system of professional reliance brought in by the BC Liberals, and second, for the federal government to hold the company accountable for the spill.

“It’s an outrage that there have been no charges laid for the breach.”

Fines and the captains of industry

Over breakfast on my last day in Likely, a biologist named Richard Holmes tells me the company could be on the hook for anywhere between $150,000 and $8 million if convicted under the Fisheries Act — which deems it a serious offence to release a substance “deleterious” to fish.

The 2014 dam breach was already Mount Polley’s second offence under this legislation — the first happened when the company damaged a rainbow trout spawning creek that flows into nearby Bootjack Lake.

Holmes says that in addition to not pressing charges, the province rejected the B.C. Auditor General’s 2016 recommendation that called for a separation between the B.C. Ministry of Mines and Energy’s dual role as promoter and regulator of mining.

Biologist Richard Holmes on the banks of the Quesnel River. Photo: Christopher Pollon / The Narwhal

But that was then.

Will the NDP government do a better job of regulating resource extraction?

Holmes is a good person to ask.

The independent biologist, who works mostly with First Nations on fisheries issues, was in a boat with then-NDP opposition leader John Horgan in the days following the disaster. (At the time, Horgan suggested the BC Liberals were involved in a “cover-up.”) He recalls the experience left Horgan visibly shaken.

“The regulatory base we have to work with has not changed,” says Holmes of the transition of political leadership. “Mining, forestry, aquaculture — it hasn’t changed. Power is entrenched with the businesses operating in the province which stand to make money.”

Holmes thinks the real power in B.C. lies with captains of industry like Jimmy Pattison, or even oilsands billionaire Murray Edwards, who owns 40 per cent of Imperial Metals and threw the now-infamous million-dollar Calgary fundraiser for B.C. Premier Christy Clark in 2013.

“It will be tough to change that.”

After breakfast we walk across the road to the Quesnel River, where I take a few clumsy photos of Holmes on the bank before I depart for good. His eyes are shut for most of them, squinting at the blazing sun, which illuminates the backs of a few sockeye struggling against the powerful river. Two bald eagles circle above us through the morning mist, completing the near postcard perfection of the scene.

If you didn’t know Mount Polley’s new tailings dam was perched high above all of this, you would never suspect anything was wrong.

Update, November 7, 2018 11:35am pst: The word slurry has been replaced with effluent in this piece to more accurately reflect the nature of the tailings being deposited into Quesnel Lake.

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It’s no secret British Columbians have little faith in the province’s system of ‘professional reliance’ — an arrangement that essentially outsources government’s responsibility to  enforce environmental regulations to industry.

It is enough of a concern in the province that the B.C. NDP campaigned on a promise to review the system designed by the former BC Liberal government, which allowed industry-hired professionals to do work that was previously conducted by government employees.

Now the province is taking steps to regain control of environmental monitoring — after 16 years of professional reliance — with a bill introduced in the B.C. legislature Monday.

But already critics have come forward to say the new rules only superficially deal with B.C.’s broken system and that more will have to be done to correct the imbalance created during nearly two decades of industry self-regulation.

“Until they do both the form, which is how the professions regulate themselves, and substance which is laws, statutes, control of the use of natural resources, it is almost meaningless,” Devon Page, director of Ecojustice, told The Narwhal, adding that a coalition of groups will be pushing government to take further steps.

The proposed legislation aims to tighten ethical and technical standards for industry-hired professionals.

“The changes we’re proposing will help restore public confidence in the professional reliance model and give certainty to resource companies that rely on qualified professionals,” B.C. environment minister George Heyman said in a statement.

The fox guarding the henhouse

In previous reporting in The Narwhal professionals have come forward to admit their work has been manipulated, altered and suppressed by companies.

B.C.’s new rules will create an office of the superintendent of professional governance in an effort to ensure “accountability, transparency and the highest levels of professionalism.”

The professional reliance system was based on government setting out expectations and industry hiring professionals such as engineers, biologists and foresters to decide how those objectives would be met.

That regime was supposed to be safeguarded by professional standards, entrenched in government’s compliance and enforcement regulations, but after disasters such as the Mount Polley tailings dam breach and contamination of the Hullcar Aquifer, public skepticism grew along with increasing evidence that the system was rife with problems.

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

Whistle-blower protection

In June, environmental lawyer Mark Haddock released a report, written for the B.C. government, which set out 121 recommendations to pull environmental monitoring back on track.

The legislation addresses his first two recommendations by establishing the new office and bringing government oversight to five professional bodies — the B.C. Institute of Agrologists, Applied Science Technologists and Technicians of B.C., College of Applied Biology, Engineers and Geoscientists B.C. and the Association of B.C. Forest Professionals.

Haddock was especially critical of the failure of professional reliance in management of B.C.’s forests.

“Given the breadth of professional expertise required for forest management, government should consider whether the current laissez faire approach to the use of professionals is adequate,” he said.

The new office will set consistent standards and ensure professional regulatory groups are acting in the public interest.

New rules will require competency and conflict of interest declarations from professionals, whistle-blower protection and emphasis on the duty to report unethical conduct of other professionals.

Minister Heyman said the legislation “symbolizes a recommitment to putting the public interest first when it comes to managing our natural resources.”

Questions remain about on-the-ground industry regulation

However, for many the new rules do not go far enough.

“The meat of why professional reliance has not been working for the public includes a lot more than how we regulate professions. Are government regulations written in a way professionals understand and are they enforceable? None of the more on-the-ground questions are being implemented with this legislation,” said Andrew Gage, a staff lawyer with West Coast Environmental Law.

“This is an important part of the pie, but it’s not the main course. “

The big question now is how oil and gas, forestry and mining operations will be regulated in a way that protects the public and the environment, Gage said.

“The devil will very much be in the details,” he said.

Page from Ecojustice said most of Haddock’s recommendations deal with inconsistent, weak government regulations and, although the province has made a good start, more must be done to address that problem.

Between 2002 and 2005 the former BC Liberal government gutted the province’s resource laws and handed control of natural resources to tenure holders, especially in the forest industry, Page said.

“Until they restore those laws this is just window dressing,” he said.

Bob Peart, coordinator of the Professional Reliance Working Group of Concerned Citizens, agrees that regulatory reform around forests and riparian areas must be addressed.

“And they’ve got to sort out the conflict of interest problem with biologists serving [both] nature and the industry that’s paying them,” Peart said.

“We strongly encourage the government to implement the (Haddock) report’s recommendations in their entirety, in a clear and transparent manner, and now await the next steps in the process,” he said.

More legislation to come

For Green MLA Sonia Furstenau, introduction of the legislation represents a promise made when she first decided to run for election in Cowichan Valley, and she is confident that the necessary regulations and rule changes are on their way.

“The minister has been clear that there will be regulations that need to be filled into this legislation and I want to ensure those regulations start coming as effectively and efficiently as possible,” she said, predicting that they will be introduced next year.

Furstenau’s interest in professional reliance stems from when she was actively involved in fighting a contaminated waste dump in Shawnigan Lake, situated above the watershed that provides drinking water for 12,000 people.

During the intense fight between the community and owners of the dump, it was found that the engineering firm Active Earth, which assured government that the site was structurally sound and would not contaminate aquifers, had signed a profit-sharing deal with the owners of the quarry.

“Then to learn that, under professional reliance, these kinds of agreements are legal, that was the moment when I recognized that what had happened in Shawnigan was a symptom of something much bigger,” Furstenau said.

“The loss of trust we had in our community was happening all over the province in various communities and I didn’t want this to happen in any other communities. I wanted to get to the root of the issue,” she said.

A government news release said work is already underway to modernize land use planning and the ministry is looking at increasing staffing levels in monitoring, compliance and enforcement.

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When a dam holding back a massive amount of highly toxic water gave way at the Mount Polley mine in August 2014, it triggered more than one of the worst environmental disasters in Canadian history.

It exposed the dark underside of the B.C. government’s policy of drumming large numbers of public servants out of the business of protecting our environment and turning much of that work over, instead, to the private sector.

The Mount Polley spill unleashed 24 million cubic metres of contaminated water and sludge into a once quiet two-metre-wide stream, which created a raging torrent of mud 50 metres wide that sent toxins flowing unchecked into Quesnel Lake for days on end and polluted one of the deepest and cleanest lakes in the world.

Essentially, professionals employed by the mine’s owner, Imperial Metals, made decisions that triggered an unmitigated disaster, one that dramatically underscored the pitfalls of the province’s “professional reliance” model.

On a daily basis, professionals working in natural resource industries across B.C. make all kinds of decisions. When things function properly, those decisions are effectively scrutinized by professional associations and by registered professionals working for the government, both there to protect the public interest.

The Mount Polley disaster underscored that such oversight was not happening. In fact, as the government relied increasingly on outside professionals, it gutted the ranks of public servants whose primary jobs were to ensure that outside professionals properly discharged their duties.

I saw this gutting of the public service firsthand, especially in my latter years with B.C.’s Forest Service. But something else also happened during those years that concerned me equally as much. And that is how the agency I worked for fired whistleblowers and effectively drummed a contractor out of business — an expert who saw that the government itself had mismanaged and corrupted the information it needed to properly manage publicly-owned forests.

Because the government lacked credible information, it had no real ability to assess whether professionals inside or outside government were properly discharging their duties.

That contractor was Martin Watts. Watts ran a consulting company that specialized in modeling forest growth and carbon. When he told the government that the models it relied on were deeply flawed, he soon found himself excluded from government business opportunities. Government simply did not want to hear that the fundamentally important decisions it was making — such as the rate at which our forests were logged and its purchase of forest carbon offsets — were based on faulty data.

It is no coincidence that the government recently introduced legislation on public-interest disclosure, commissioned a review of professional reliance and initiated a review of forest inventory and growth models.

Denied his livelihood, Watts eventually, and at great personal expense, launched a civil suit against the province for essentially blacklisting him. The case, before the B.C. Supreme Court, resumes on Monday in Victoria. It is being closely watched by senior civil servants.

The Watts case highlights another disturbing aspect of the “professional reliance” model, and that’s the degree to which senior public servants and professional associations may squelch the views of an outside expert or professional if those views cast doubt on how other professionals conduct themselves.

At the core of Watts’ criticisms is that, for years, experts and professionals inside and outside government used corrupt, out-of-date and incorrectly compiled data for modeling purposes, an allegation that raises countless questions about how sustainably our forests are being managed.

Government now has before it the report it commissioned from an independent expert on professional reliance. Disasters like Mount Polley, and the disdain with which past governments dealt with people who spoke uncomfortable truths to power, both highlight why such a review is long overdue.

Now we must await action — action that restores adequate public oversight and values all expert opinions, not just those that conform to what the powers that be want to hear.

Anthony Britneff worked for the B.C. Forest Service for 40 years, holding senior professional positions in inventory, silviculture and forest health.

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The B.C. government has released its review of the professional reliance system, which was implemented in the early 2000s and relinquished much of the provincial government’s responsibility for environmental monitoring to private companies hired by industry.

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

The new report makes 121 recommendations on how to improve the system, calling on the government to restore environmental legislation and capacity and create new governing bodies to monitor professionals.

“It’s really comprehensive,” said Devon Page, director of Ecojustice, calling the report “thoughtful” and “thorough.”

Author Mark Haddock describes in detail the failings of professional reliance over the 130-page report — especially in forestry.

“Most problematic are the Forest and Range Practices Act and Riparian Areas Protection Act due to the extent to which they restrict government’s authority,” he wrote.

“Given the breadth of professional expertise required for forest management, government should consider whether the current laissez faire approach to the use of professionals is adequate.”

Translated from government-safe language, this is a damning assertion: Haddock spends more than 10 pages detailing the ways government has abdicated its own responsibility for managing forests, putting that authority instead in the hands of industry.

“It’s kind of been the Wild West,” said Page, who has previously described the province’s resource management as “gold rush-era laws.”

“That was kind of epitomized by professional reliance.”

New body for regulation and oversight recommended

One central recommendation in the report is the creation of an overarching body, an Office of Professional Regulation and Oversight.

That office would bring together the five professional associations, currently independent of one another, that regulate their respective professions, including foresters, geoscientists and engineers, technicians, agrologists and biologists. Together they represent more than 40,000 professionals.

“That’s similar to the health professions,” Page says.

It goes on to recommend that some “critical elements” of professional governance be legislated, standardizing the ways the associations appoint members and handle complaints and discipline.

The office would be responsible for setting processes for investigations, incompetence, negligence and sanctions.

It also recommends whistleblower protections for professionals who speak up about unprofessional or negligent conduct.

Need for professional independence

A major drawback of the professional reliance system was that it often forced professionals into situations in which they were essentially asked to be “cheerleaders,” as one consultant put it in an interview, for the projects they were meant to be reviewing.

“In recent years, professional reliance has played a significant role in the loss of public trust in decision making around industrial activity,” said MLA Sonia Furstenau in a press release.

The report agreed.

“Ministry personnel interviewed noted that it is sometimes difficult to distinguish between professional opinion and proponent opinion, as professionals frequently act as advocates for their clients or employer in some sectors,” Haddock wrote

He recommended that the government identify ways to preserve professional independence.

This would be reinforced by a set of triggers that would limit the proponent from being able to choose its own experts. Those would come into effect in situations where there is a high risk to safety or the environment, where a professional is likely to have a conflict of interest and in several other situations.

The government has already committed to implementing some of the recommendations by the fall.

”We will immediately engage with the various professional associations covered in the report, with a goal of making tangible changes this fall to improve government oversight of qualified professionals to enhance public confidence in natural resource decision making,” said Environment Minister George Heyman in a press release.

There are powerful forces set against the implementation of the report’s recommendations, says former Sierra Club executive director Bob Peart: primarily the industries that have had an easy go of things since the government handed over the reins on much of its decision making.

“Industry likes what they’ve got,” Peart said.

The B.C. NDP has made commitments to looking at a broad swath of environmental issues, from forestry to LNG to fish farming throughout its mandate.

But, Peart says, “if professional reliance isn’t fixed, none of that will really matter.”

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

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

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

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

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

Frequency, quality of industry inspections decline under professional reliance

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

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

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

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

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

Contractors altered report results under professional reliance system

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

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

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

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

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

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

Professional reliance ‘creates bias’: lawyer

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

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

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

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

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

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

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

How to fix the professional reliance system

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

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

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

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

But Page says the result was an overreaction.

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

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

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

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

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

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

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

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

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

Whistleblower protections, transparency needed

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

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

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

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

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

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

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

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

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

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

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When 12,000 people showed up on the remote coast of Vancouver Island in the summer of 1993 for the Clayoquot Sound blockades, history was in the making.

It was one of the largest acts of mass civil disobedience in Canadian history, with almost 1,000 people arrested in what would become known as the War in the Woods. The arrests of youth and elders were seen on television screens and in newspapers around the world.

“We needed to put Clayoquot Sound on the map,” recalls Valerie Langer, who was a young literacy teacher at the time. Langer, who had travelled to Vancouver Island on a tree-planting contract, would become one of the core organizers of the Clayoquot Sound blockades and helped found the group that later became ForestEthics, now Stand.earth.

“Nobody could pronounce the word Clayoquot, let alone knew that it was an area of temperate rainforest. Nobody knew there were rainforests in Canada, rainforests were a tropical thing.”

The Nuu-chah-nulth First Nations — who had stewarded the natural abundance of Clayoquot Sound since at least the last ice age — were opposed to the industrial-scale forestry being practiced and the complete lack of consultation around land-use planning in their territories.

Langer set about strategizing with her allies in the Friends of Clayoquot Sound on how to support the Nuu-chah-nulth efforts to protect these intact old-growth watersheds from logging by timber giant Macmillan-Bloedel.

“We wanted to gain power with the company,” Langer says. “Rather than standing literally in the wilderness shouting about how wrong they were, we were going to go where their customers were.”

Within the next two years, Macmillan-Bloedel had lost at least $200 million in pulp, paper and wood contracts, Langer says.

This forced the company and the government to the table.

In 1993 protesters blocked an access road, preventing MacMillan Bloedel from continuing its Clayoquot Sound logging operations. Police arrived to read a court injunction, demanding the road be cleared. The order was summarily ignored by protesters. Photos: Ademoor

Macmillan-Bloedel gradually extricated itself from Clayoquot Sound and turned over control of the tree farm licence to the Nuu-chah-nulth First Nations.

It was a big victory. And after sweeping changes to B.C. forest policy that came in its wake, a lot of people thought this issue had been dealt with. But 25 years later, B.C. forests are in crisis.

The province is currently facing a crash in harvest volumes, the closure of mills and widespread layoffs, not to mention the continued loss of old-growth forests.

Old-growth forests on the brink

Longtime environmental activist and Order of Canada recipient Vicky Husband talks about Vancouver Island’s ancient temperate rainforests with deep reverence and great sadness.

“You know, I’ve travelled the whole world,” she says. “We have some of the rarest forests on Earth — and we’re throwing them away.”

Husband has been fighting for ancient forests on the West Coast for more than 40 years. She has been on the front lines of the epic fights for Clayoquot Sound, Gwaii Haanas and many other historic wins for the ancient forest movement.

“We got some really important watersheds, with great battles,” she recalls. “But it was just not nearly enough.”

On Vancouver Island, the most productive old-growth forests in the valley-bottoms, those most cherished by environmentalists for their ecological, carbon and cultural values — and prized by the timber industry for their timber value — have reached crisis levels.

A clearcut on Vancouver Island, B.C., shows Big Lonely Doug exposed, centre left. Big Lonely Doug is the second-largest douglas fir in Canada. Photo: TJ Watt

According to Sierra Club BC, Vancouver Island has lost 30 per cent of its original forests over the past 25 years, leaving less than seven per cent of the island’s most productive and endangered old growth. On average, nearly 9,000 hectares of old growth were logged annually from 2011 to 2015. And old-growth logging is speeding up. In 2016, that annual amount jumped to nearly 11,000 hectares, the equivalent of 26 Stanley Parks.

Critics, policy analysts and environmentalists all agree that to understand the escalating loss of old growth, as well as the overall decline of forest health and industry employment, one must look back to how B.C.’s public forests became virtually privatized.

An aerial view of Flores Island in Clayoquot Sound. Photo: TJ Watt

The privatization of B.C.’s forests

After the Clayoquot Sound protests, the NDP government of the day set aside dozens of intact valleys and set about reforming forestry across the province. It introduced the Forest Practices Code in 1994, which had more stringent forestry regulations than ever before, and created the Forest Practices Board, an independent oversight body with real teeth for those who broke the law.

But in 2003, the BC Liberals came to power with a sizable majority, ushering in the dark years for B.C.’s forests. As environmental groups turned their focus to other issues, such as climate change, the Liberal government set about deregulating the forest industry.

Ken Wu of the Ancient Forest Alliance — who was 19 during the summer of 1993 and has not stopped fighting for old-growth forests since — says that while the ’90s saw significant progress in forestry, “under the BC Liberals it became a full-scale attempt at rollback.”

In 2004, the Forest Practices Code was replaced with a watered down Forest and Range Practices Act; the Forest Practices Board, the independent watchdog for the industry, was de-fanged; and industry oversight was outsourced from the public service to professionals paid by industry (a system known as “professional reliance,” which is currently under review).

Herb Hammond, a forest ecologist and veteran eco-forester from the Slocan Valley, sees it this way: “Professional reliance, coupled with getting rid of the forest service and legislated standards for forestry, simply privatized the forest.”

One of the most significant changes to forest legislation under the Liberals was the removal of appurtenancy — the longstanding requirement that to log public timber, companies had to operate local mills.

According to Arnie Bercov of the Public and Private Workers Union (formerly the Pulp and Paper Workers Union), which represents mill-workers and value-added producers, the elimination of appurtenancy, “was a complete betrayal of our social contract.”

Corporate consolidation of public forests

Deregulation was compounded by the vast majority of timber licences being consolidated into the hands of very few companies, which freely traded tenures to create regional monopolies.

The result is that the majority of public timber goes to large, centralized mega-mills cranking out cheap commodity lumber, while independent wood producers struggle to access the right logs for their mills.

According to the Interior Lumber Manufacturers Association, “Independents and specialty manufacturers will have increasing difficulties accessing enough of the right logs to remain competitive, so these sectors will continue to shrink.”  

From 2000 to 2016, 26 sawmills shut their doors in the Interior. On the coast, 18 mills closed up shop — a combined loss of 44 sawmills across the province.

The export of unprocessed logs from the coast also doubled under the BC Liberals, from less than 3 million cubic metres in 2001 to more than 6 million cubic metres in 2016. At the same time, employment in the forest industry declined by 32,000 jobs.

Old-growth cedar logs. Photo: TJ Watt

Truck Loggers Association executive director David Elstone refutes that there is any causal link between plummeting employment and skyrocketing log exports, attributing the loss of forestry jobs to “technological innovation” and “constant erosion of the working forest.”

By “constant erosion of the working forest,” Elstone is referring to areas that have been taken off the menu for timber companies to log, due to environmental protections, beetles or wildfire.

The technological innovations Elstone is talking about are technologies such as LIDAR, a surveying method which allows industry to plan operations and assess timber supply with far less boots on the ground. He is also talking about feller-bunchers, nightmarish machines that have made it possible for two people to take down an entire forest in a matter of days.

But even Elstone — who generally defends the status quo of volume-based industrial forestry — agrees with the idea that the forest industry has become overly consolidated: “We feel there is too much of the timber tenure in too few hands,” he says.

Mountain pine beetle and the interior timber supply crisis

The ancient forests of the coast are not the only forests that environmentalists and foresters are concerned about. B.C.’s interior forests have been ravaged by catastrophic beetle outbreaks, wildfires and unsustainable “salvage” operations by industry.

Now interior B.C. is facing a midterm timber supply crisis and a sharp reduction in Annual Allowable Cut. This may not come as a surprise as the mountain pine beetle wiped out more than 50 per cent of the merchantable pine forests across the province.

But according to ecologist and eco-forester Hammond, the pine beetle was far from being a natural disaster. “We created that problem,” he says.

First, we created global warming, “which removed the biggest control factor for the mountain pine beetle — cold winters,” Hammond says.

Second, we were so successful in suppressing forest fires that we stockpiled vast stands of mature pine, thus creating a buffet for beetles.

Third, we logged old-growth forests. Old growth scattered about the Interior once provided habitat for birds and other predators of the beetle, helping to regulate populations. With most of those forests now gone, beetles face less predation.

And fourth, “clear-cutting large areas dried out the landscape, stressed the ecosystems, and set forests up for successful attacks by the mountain pine beetle,” Hammond says.

But it didn’t stop there. With so much standing dead wood and a limited time frame in which to cash it in, the B.C. government increased the Annual Allowable Cut to vastly unsustainable levels and allowed the industry to recover what value they could from the dead pine.

“What the timber industry saw here,” Hammond says, “was a short-term gold mine to salvage pine.” He explains that if a stand contained 30 per cent pine, they were able to log the entire stand — including high value non-pine species — at a deep discount.

The result was years of over-harvesting, way beyond any notion of a sustainable yield, under the guise of a so-called salvage operation for dead pine, in which vast quantities of perfectly healthy non-pine were also being logged out of the landscape.

Potential for a breakthrough in old growth protection

Despite this bleak picture, there is actually some hope amongst environmentalists and some more ecologically minded foresters about the moment in which we now find ourselves, with the NDP once again in power.

While Wu was disappointed by the NDP’s approval of the Site C dam, he remains hopeful: “This is the first social democratic government supported by Greens in North American history, so right now we have the greatest potential for a breakthrough in the protection of old growth.”

While the NDP have thus far continued with the status quo forest policies of the previous government, their platform states: “In partnership with First Nations and communities, we will modernize land-use planning to effectively and sustainably manage B.C.’s ecosystems, rivers, lakes, watersheds, forests and old growth, while accounting for cumulative effects. We will take an evidence-based scientific approach and use the ecosystem-based management of the Great Bear Rainforest as a model.”

Premier John Horgan also dropped a few hints in his throne speech and in the following press scrum that changes are coming to B.C. forest policy.

B.C. Premier John Horgan visits Structurlam, in Penticton B.C. Photo: B.C. Government via Flickr

“The government will revitalize the forest industry’s social contract with British Columbians,” Horgan said. He also promised to, “make sure that every log that is taken from a public forest, the benefit is maximized to the people in the community.”

When pressed by the Vancouver Sun on whether he was proposing further restrictions on log exports and bringing back appurtenancy (that old requirement to log public timber near the area where it was harvested), Horgan confirmed that he was.

Bercov of the Public and Private Workers Union is encouraged by the prospect of reinstating appurtenancy, but is not satisfied with words.

“We expect action,” he says. “They campaigned on bringing forestry back to the communities and the only way they’re going to do that is through appurtenancy.”

‘The real problem is corporate control of public forests’

But Hammond says that appurtenancy does not get to the heart of the matter: “If you just add appurtenancy to the existing tenure system, you’re not dealing with the real problem. The real problem is corporate control of public forests.”

Bercov agrees that banning log exports or reinstating appurtenancy will not save the industry.

“The solution, quite honestly, is we have to build more mills,” Bercov says. “And the only way we are going to attract investment is to work with First Nations.”

Becov continues, “I would like to see every single log that’s cut here manufactured here, not because it’s mandated, but because we create the conditions. We create opportunities for First Nations to control their own destiny.”

“And that means real co-management, shared jurisdiction and decision-making authority,” Hammond says. “Then I think we will see some really good Indigenous models.”

Coastal temperate rainforest. Photo: TJ Watt

The Great Bear Rainforest agreements

When Langer looks back on the Clayoquot Sound campaign, she sees it this way: “It wasn’t an event. It was a process, in which First Nations increasingly gained decision-making authority over what was going to happen to the forests in their territories.”

If we pull on the thread from Clayoquot Sound to today it leads directly to the Great Bear Rainforest Agreements, a set of science-based rules for logging in the central and north coast forests established in 2016 and negotiated over a decade.

Langer was at the table for those tense and often fraught negotiations, which she describes as, “probably the most comprehensive forestry and human well-being framework that exists in the world. It has the most stringent commercial forestry laws in North America.”

The agreement protected 85 per cent of the Great Bear Rainforest from any kind of resource extraction, placed strict ecosystem-based forestry regulations on the logging that happens in the remaining 15 per cent and put First Nations into a co-management role with the B.C. government.

It also provided financing for First Nations to be able to seed economic development initiatives, such as clean energy projects, tourism and other alternatives to old-growth logging.

While some more strident environmentalists see the Great Bear agreement as less than ideal, with problematic loopholes, proponents argue that more intact forest was protected under this agreement than in any other environmental deal in history — and was done in a way that put First Nations in a leadership role.

While organizations like the Truck Loggers Association may decry the agreement as the “further erosion of the working forest,” the rest of B.C. does not come close to meeting the rigorous standards of ecosystem-based management set out in the Great Bear Rainforest.

Decolonizing forestry in B.C.

“I’m just going to say it: we have a colonial mentality in this province,” Adam Olsen, Green MLA from Saanich North and the Islands, told DeSmog Canada on the phone. Olsen,  a member of the Tsartlip First Nation, said, “It’s the same as it was 200 years ago.”

“We need to start being informed by my Saanich elders,” Olsen said. “So ecosystem-based management for me is about understanding what our place is in all this.”

Hammond has studied ecosystem-based conservation planning for decades and has worked with communities and First Nations across B.C. on managing their local forestlands.

For him, the current model of industrial logging that prioritizes timber value above all else is backwards.

“Protecting and restoring ecological integrity of forests needs to be the focus of forestry, not timber extraction,” Hammond says. “In the absence of that, we are only contributing to our own demise.”

Klanawa Valley on Vancouver Island. Photo: TJ Watt

This means prioritizing ecosystem services such as hydrology, biodiversity and carbon sequestration. Timber harvesting can still happen under this model, but in a much smaller and more strategic way than it is today.

Indigenous-led, ecosystem-based approaches to conservation planning are gaining ground across the province, which leads us right back to Clayoquot Sound.

The Ahousaht First Nation — one of the Nuu-chah-nulth Nations in Clayoquot Sound — recently revealed its new land-use vision, in which 80 per cent of the old-growth in Ahousaht territory will be off limits to logging, while tourism, fishing, selective forestry, ecology and cultural use will be prioritized on the remaining land-base.

Most importantly, the Ahousaht have asserted their right to manage all aspects of their unceded lands, waters, resources and economy for the benefit of their people and ecosystems. And the other nations in Clayoquot Sound are not far behind in their own land-use planning processes.

“The forest industry is not just about cutting trees anymore,” Bercov says. “It’s about climate change, it’s about First Nations rights and title, it’s about ecosystems.”

“That means a significant portion of the forest land base that might have commercially valuable timber on will not be logged,” Hammond says. “It’s going to be for water, for biodiversity.”

“We have to start doing more with less,” Bercov says. “We have to start getting maximum value out of the trees that we cut. We’re not doing that.”

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If you look closely at almost any major environmental controversy in B.C. in the past decade, you’ll find one common denominator: industry-paid “professionals” were trusted with our province’s environmental protection.

This, folks, is what is often called leaving the fox to watch the hen house. But, if you’re the B.C. government, you come up with one of the greatest euphemisms of our age for it: “professional reliance.”

This system, implemented under the BC Liberals in the early 2000s, means “professionals” hired and paid for by mining, logging, natural gas and other industries, have been trusted with B.C.’s environmental protection.

Most people would call that a conflict of interest. But in B.C. this is called business as usual.

Until now … maybe.

The B.C. government is currently conducting a review of this system and is giving citizens an opportunity to weigh in until Friday Jan. 19.

Before getting super geeky about the review, let’s look at a few quagmires caused by outsourcing environmental protection to people paid by industry.

‘This is what is often called leaving the fox to watch the hen house. But, if you’re the B.C. government, you come up with one of the greatest euphemisms of our age for it: ‘professional reliance.’ ” https://t.co/4XyajCyqTk pic.twitter.com/pskySaOpEW

— DeSmog Canada (@DeSmogCanada) January 19, 2018

Shawnigan Lake waste dump fiasco

Take the case of Shawnigan Lake. The permit for a contaminated waste dump in that community was revoked after a a judicial review found extensive misrepresentation during the approval process.

It turned out that Active Earth Engineering, the firm hired by the proponents, Cobble Hill Holdings, had also signed a secret agreement giving them a share of profits from the facility.

The judge found that the permit was approved after relying on a technical report that “was prepared by engineers who were not independent and who stood to profit from the continued operation of the facility.”

“An important element in assessing any technical or scientific opinion is knowing whether the professional producing the opinion has any reason to be biased. The existence of a financial benefit to the Qualified Professional from a particular outcome is a clear example of a reasonable apprehension of bias in the person preparing the opinion,” wrote Justice Robert Sewell.

Mount Polley mine disaster

Moving right along to another fiasco. In her report on the causes of the Mount Polley mine disaster, the auditor general flagged “professional reliance” as a key issue.

The ministries’ “compliance and enforcement activities of the mining sector are inadequate to protect the province from significant environmental risks,” the report read.

The Ministry of Energy and Mines “allowed inconsistencies within the intended dam design to persist” and relied too heavily on “qualified professionals.”

Put simply: the ministry didn’t even carry out its own inspection to ensure the tailings dam was built in accordance with the approved design. Hint: it wasn’t.

Instead, British Columbians’ safety was outsourced to someone hired by the mining company itself. And, well, we’ve all seen how that one turned out.

As Wildsight explains:

Suppose you’re opening a mine. Before professional reliance, you’d be subject to rules and regulations, enforced by professionals in government and designed to keep our environment safe from the potentially disastrous impacts of your mine. But now, you’d hire a bevy of consultants who’d prepare reports on how you’d keep the environment safe, aiming for the vague objectives outlined in our laws.

These consultants, though they are regulated through professional bodies, work for you. If you suggest measures that are a little cheaper, but might have a higher environmental risk, your consultants have to make a decision about how much risk is acceptable. These decisions are tricky. These are often grey areas.

But there’s always a bias because you’re paying these professionals. They know that if you aren’t happy with their decision, you can always hire someone else. Word gets around about which firms make life easier for a mining company. There’s a bit of a race to the bottom. And the finish line in that race? Maybe things are a little bit worse — or maybe you end up with the Mount Polley disaster.

What’s the alternative?

A 2015 review of professional reliance by the University of Victoria’s Environmental Law Centre found that “professional reliance” was undermining the public interest.

The report concluded “that much of B.C.’s deregulation goes too far in handing over what are essentially matters of public interest to those employed by industry. Proponents should not be decision makers for matters involving the weighing and balancing of multiple, often competing, environmental and societal values.”

The solution is to actually staff the public service with professionals whose only job is to protect the public interest.

According to Wildsight, government capacity in this area has been cut by about 25 per cent since the early 2000s.

What can you do?

Until Friday January 19th, you can fill out the government’s survey on professional reliance (be warned: this might qualify as the least enticing-looking survey of all time).

If you’d like to some more detailed information before submitting, check out what the smart folks at West Coast Environmental Law or Wildsight have to say.

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.

From West Coast Environmental Law

When Randy Saugstad realized that clearcut logging by forestry giant Tolko was probably going to affect the water he uses to raise cattle on his ranch, he went to the B.C. Ministry of Forests, Lands and Natural Resource Operations.

“We know,” they told him. “But we don’t have the power to stop them logging.”

They explained that B.C.’s forestry laws turned over the final decision about whether to log upstream from his ranch to Tolko’s foresters. Randy’s fears were later realized and his stream wrecked, so he sued Tolko, ultimately forcing the company to settle for an undisclosed amount (although the company continues to deny responsibility).

The B.C. government is in the process of conducting a review of professional reliance, so we have a chance to change some provincial laws to make sure that decisions are made in the best interest of British Columbians, and not corporations. This review is being headed by Mark Haddock, a long-time environmental lawyer and former West Coast staff member, who has previously written critically of the professional reliance model.

Currently, government staff are interviewing representatives of organizations with experience in professional reliance. But public consultations started December 1, 2017 and will continue until January 19th, 2018.

Professional reliance v. conflict of interest

Broadly, the term “professional reliance” refers to any situation in which the government relies upon industry-paid professionals — such as biologists, archaeologists, engineers, geoscientists and environmental scientists — to conduct studies, monitor activities, and more.

However, in cases ranging from sewage management to pesticide regulation to forestry, B.C. laws often go further — turning government decisions over to those private professionals, and restricting the ability of the government to intervene when things go wrong.

B.C.’s Forest Practices Board, a government-created watchdog, warned in 2015 that:

In recent years, [we have] seen situations arise where forestry development was putting local environmental and community values at risk, yet district managers could do little to affect the development and protect the public interest. … [C]onflicts between resource-users could have been avoided if district managers had the authority to intervene to ensure operations would meet local management objectives and respect tenured interests.

Don’t get me wrong — generally professionals are educated, dedicated and highly competent people. As a lawyer, I am a professional. In most cases, professionals aim to use their skills in the service of their clients and with an eye to making the world a better place.

But although I respect my fellow lawyers, I wouldn’t want a lawyer hired by a mining company to have the last word on that company’s legal obligations to protect fish from toxins. That’s what we have judges for — to decide between different interpretations of the law. And yet, engineers and specialists hired by mining companies have final sign-off on how close the companies can build to a fish-bearing stream.

Professionals are important sources of expertise and information. But when they actually have free reign to make decisions about their employer’s use of public resources, this looks, to many people, like the fox guarding the hen house (or perhaps just paying for its security).

Proponents of professional reliance argue that professionals have training, oversight and accountability, so they can apply rules intended for the protection of human health or the environment just as well (and sometimes better) than government professionals.

They argue that government’s role is to set the standards and then monitor to make sure that those standards are met, ensuring that there are consequences if they aren’t.

Experience in B.C. has shown that there are a number of problems with that theory — from weak environmental standards that allow professionals to trade off environmental values against economic values, to documented cases of corporations cherry-picking their professionals, to the government’s failure to enforce when standards aren’t met.

This post focuses on just one fundamental flaw with corporate professionals taking over government approval functions: the assumption that professionals can be objective in applying legislative rules, especially when they do so for a client with a vested interest in a particular outcome.

Behaviour economics and professional reliance

In The (Honest) Truth about Dishonesty, behavioural economist Dan Ariely gives a firsthand account of his experience as a paid expert witness in a court hearing. Before doing so, he reviewed the transcripts of testimony given by some of his colleagues in past trials:

… I was surprised to discover how one-sided their use of the research findings was. I was also somewhat shocked to see how derogatory they were in their reports about the opinions and qualifications of the expert witnesses representing the other side — who in most cases were also respectable academics.

Ariely nonetheless agreed to testify and was “paid quite a bit to give my expert opinion.” He became aware that the lawyers were “trying to plant ideas in my mind that would buttress their case.”

He explains:

They did not do it forcefully or by saying that certain things would be good for their clients. Instead, they asked me to describe all the research that was relevant to the case. They suggested that some of the less favorable findings for their position might have some methodological flaws and that the research supporting their view was very important and well done. They also paid me warm compliments each time that I interpreted research in a way that was useful to them. After a few weeks, I discovered that I rather quickly adopted the viewpoint of those who were paying me. The whole experience made me doubt whether it’s at all possible to be objective when one is paid for his or her opinion.

Ariely’s candid account of his own experience is supported by the wide range of behavioural economic studies that demonstrate that such interactions are only human.

Ariely writes:

One other common cause of conflicts of interest is our inherent inclination to return favors. We humans are deeply social creatures, so when someone lends us a hand in some way or presents us with a gift, we tend to feel indebted. That feeling can in turn color our view, making us more inclined to help that person in the future.

Ariely recounts a study which attempted to measure the impact of a financial gift on appreciation of art. The participants were told that their payment for participating in the study was being sponsored by an art gallery (“Third Moon” or “Lone Wolfe”). They were then shown a series of sixty paintings and asked to rate how much they liked or disliked each, while they were hooked up to a brain imaging scanner (an fMRI). Each picture displayed a small logo of an art gallery — including some from Third Moon or Lone Wolfe galleries — as if the pictures had been provided by those galleries.

As you might suspect, when researchers examined the ratings they found that participants gave more favorable ratings to the paintings that came from their sponsoring gallery… You might think that this preference for the sponsoring gallery was due to a kind of politeness … [but] the brain scans showed the same effect; the presence of the sponsor’s logo increased the activity in the parts of the participants’ brains that are related to pleasure… This suggested that the favor from the sponsoring gallery had a deep effect on how people responded to the art.  And get this: when participants were asked if they thought that the sponsor’s logo had any effect on their art preferences, the universal answer was “No way, absolutely not.”

This study suggests that indebtedness actually changes the way that people perceive the world — and that they don’t realize it. It also found that increasing the amounts of payments to the participants increased this bias.

Of course, proponents of professional reliance might argue that the participants in the study were not professionals (art critics for example). And that’s true. But professionals are still human, and professionals can be very influenced by personal factors. For example, one well-publicized study showed that judges (highly trained professionals) are much more likely to grant parole to defendants at the beginning of the day, or after a snack, than those who appear before them when they are hungry.

Our legal system (with a few exceptions) has always required that a government decision-maker be unbiased and, in particular, not receive a financial benefit from his or her decision.

And yet under many B.C. environmental and public health laws, professionals who are paid by a party with a definite interest in the outcome are making key decisions. For example, in the controversial Shawnigan Lake contaminated soil debacle, neither the government nor the Association of Professional Engineers and Geoscientists of B.C. had any issue with the project’s engineers actually having an ownership interest in the project.

Where next?

Critics of professional reliance refer to professionals who do what their paying client wants as “biostitutes.” While there are undoubtedly professionals who are less than professional, I think the challenges of professional reliance are much broader and more difficult to counter than a few bad actors.

If government establishes a standard but leaves it to industry professionals to interpret it, then even well-intentioned professionals may start to interpret ambiguities in favour of clients, rather than the public interest. That’s not a slur on professionals — professionals are supposed to problem-solve for their clients within the bounds of the law.

At the same time, the B.C. government has spent almost two decades downsizing the departments responsible for regulation, monitoring and enforcement (a trend which actually began in the final years of the previous NDP government). As a result, it would be difficult to turn all environmental and public health decisions back over to government.

Mark Haddock’s challenge is to balance the fundamental difficulties of professional reliance (as implemented in B.C.) with the resources available to government. Fortunately, his past report includes some general principles — suggesting, for example, that government should retain legal authority for decisions with particularly important consequences for human health and the environment.

The behavioural economics research, as well as basic principles of unbiased decision-making, suggest that one important issue for the review to grapple with is whether professionals employed by industry players can ever be neutral — let alone pro-public health and pro-environment.

One possible solution is having industrial players pay the cost of evaluating their proposals, but having the professionals employed by and accountable to the government. This may not entirely remove the bias towards the company ultimately paying your bill, but it would create a competing legal and employment obligation to publicly elected officials.

At West Coast Environmental Law we propose that:

• Government (and not industry) select the professionals from a pre-approved list of qualified professionals. Professionals who deliver biased or poor quality work could be removed from the list. A similar system is already used for professionals working with contaminated sites.
• Except where specialized expertise is required, there’s a lot to be said for making the selection random, so that industry cannot influence government staff in the selection.
• The professional would sign a retainer agreement with the government, not the proponent, and government would have the ability to dismiss poorly performing professionals and/or remove them from the pre-approved roster. Conflict of interest rules would prevent the professional from working for the company whose project is under consideration (although the professional might well still do work for clients within the same industry).
• All documents prepared by the professional should be owned by the government – which then makes them available to the public under Freedom of Information laws (unlike the current professional reliance model, under which key documents are sometimes kept from the public).

What do you think? Would government-employed/industry-funded professionals help address concerns about the bias of industry-funded professionals? What do you think should be done to ensure that professionals protect the public interest, and not just the interests of industry? Tell us in the comments below.

Public consultations will continue until January 19, 2018.  Please let the government know what you think of professional reliance.  Click here to fill out a brief survey or here for information on sending detailed submissions.

Image: Premier John Horgan visits the Rio Tinto Alcan smelter in Kitimat. Photo: Government of B.C. via Flickr

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A controversial proposal for a gravel mine at the mouth of a salmon-bearing creek on Howe Sound is a graphic illustration of a broken environmental assessment process — one that relies on science paid for by the proponent, say opponents of the Burnco Aggregate Project on McNab Creek.

“This project is going to impact one of only three estuaries in Howe Sound and it’s critical for salmon spawning habitat, but there is no independent data even on how many salmon are in the creek,” Tracey Saxby, marine scientist and volunteer executive director of the environmental organization My Sea to Sky, told DeSmog Canada.

The company plans to extract up to 1.6 million tonnes of gravel a year for 16 years, which would be shipped from a marine barge loading facility to company operations in Burnaby and Langley.

But Saxby says that since estuaries are vital for wild salmon it makes no sense to consider such a project without independent data, pointing out that residents are also concerned about noise, dust and barges travelling to and from the facility every other day.

Saxby is spearheading a campaign that has bombard Environment Minister George Heyman and Energy and Mines Minister Michelle Mungall with more than 2,600 letters asking them to stop the Burnco gravel mine and to rethink the environmental assessment process.

The group is calling for the government to undertake a review of the environmental assessment process for the gravel mine and for a “robust and fully independent baseline assessment of wild salmon populations in McNab Creek.”

Industry-Funded Science at Heart of Brunco Controversy

The Burnco gravel mine, which has been wending its way through the system for six years, is a clear example of what is wrong with the professional reliance model, Saxby said.

B.C.’s professional reliance system allows private companies and project proponents to hire biologists, engineers, geoscientists and other experts to assess environmental risks, instead of the work being done by government professionals or independent contractors hired by government.

It is a controversial self-regulating model, used extensively by the former BC Liberal government after cuts to the civil service, and has come under increasing scrutiny since the 2014 collapse of the Mount Polley tailings pond and a community battle over government approval of a contaminated soil facility above Shawnigan Lake.

Last month, Heyman ordered a review of the province’s professional reliance system, with a final report expected next spring.

Green Party MLA Sonia Furstenau, who was at the centre of the Shawnigan Lake contaminated soil battle, has received 2,300 emails on the Burnco application in less than 24 hours.

That reaction to the proposal is an example of how professional reliance has undermined public trust, Furstenau said in an interview.

“This [gravel mine] is such a clearcut example,” she said.

A controversial gravel mine at the mouth of a #salmon-bearing creek in #HoweSound is an illustration of a broken environmental assessment process — one that relies on science paid for by the proponent, says @MySea2Sky https://t.co/gwHY0LZ91h #bcpoli @SoniaFurstenau

— DeSmog Canada (@DeSmogCanada) November 28, 2017

Review of B.C.’s Environmental Assessment Process Needed: Green Party MLA

“The review [of professional reliance] is necessary because, when people do not trust the government's process, it creates economic uncertainty and the impacts on the community are huge and sometimes devastating,” Furstenau told DeSmog Canada.

When the review recommendations are submitted, government must take them extremely seriously in an effort to address the profound lack of public trust, Furstenau said.

Saxby pointed out that the only information on salmon in McNab Creek came from a citizen scientist and, because of that, the Department of Fisheries and Oceans previously refused permits for a gravel mine.

“This is just one example of what happens and you have to question all the other decisions made by the Environmental Assessment Office,” Saxby said. “There’s a real lack of trust in the integrity of the process.”

“Public engagement is nothing more than a checkbox on a form and the process relies on science that is bought and paid for by the proponent,” she said. “It’s a clear conflict of interest.”

“There is no point engaging in this broken process so we decided to bypass the process and email the ministers directly…We need the province to press pause until it restores public trust in the process.”

A 30-day public comment period on the Burnco application ended this week and the Canadian Environmental Assessment Agency will release a report next month, followed by another public comment period.

Illustration: Carol Linnitt

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