Eleven of Canada’s largest oil and gas companies have dozens of subsidiaries and related companies in known tax haven jurisdictions, according to a new report from the Ottawa-based non-profit Canadians for Tax Fairness.

Those companies include Suncor, Enbridge, CNRL, TransCanada, Imperial Oil, Cenovus and Husky.

The report, titled “Bay Street and Tax Havens: Curbing Corporate Canada’s Addiction,” examined the largest 60 companies listed on the Toronto Stock Exchange and found that just four didn’t have a publicly listed subsidiary in a known low-tax or no-tax haven.

“If you can afford the lawyers and accountants and it’s legal to do, you’ll do it,” report author Diana Gibson, told DeSmog Canada.

“Maximizing shareholder returns is the job of the CEOs and if it’s legal to avoid taxes then they will.”

Knowing how pervasive the issue is among oil and gas companies in Canada is important in order to pressure lawmakers to act, Gibson added.

“We’re not talking about slapping the hands of a couple of folks — we’re talking about a problem that needs to be fixed in the legislation.”

The new report shows companies like Enbridge and TransCanada are in line with global oil and gas industry practices. In 2015, a federal parliamentary inquiry in Australia found ExxonMobil and Chevron hold a combined $87 billion USD in tax havens.

Canadian Oil and Gas Companies Own a Combined 46 Entities in Tax Haven Countries

The report arrives on the heels of the explosive Paradise Papers, which contained 13.4 million confidential documents implicating many renowned figures — including the Queen, Bono and three former Canadian prime ministers — in the legal but ethically dubious practice of storing money in offshore tax havens.

The revelations also come as many oil and gas companies claim government policies such as methane regulations, carbon pricing or higher royalty rates create undue financial burdens and could cripple their business case.

“We constantly hear these stories about these large corporations — particularly oil and gas corporations in Alberta — operating on the margins: that they can barely make ends meet; that any shift will ultimately affect their bottom line and cost jobs and all of those things,” Ricardo Acuña, executive director of the Parkland Institute, told DeSmog Canada.

Those common talking points paint of picture of an industry without profits to hide, Acuña said.

The new report contradicts that, he said.

In total, the report calculated that oil and gas companies own a combined 21 listed subsidiaries and 25 companies inferred to be related.

These were identified by using information from corporate filings and company registries.

There could be more: Gibson from Canadians for Tax Fairness said the figures in the report are likely incomplete due to a lack of transparency required from companies.

Enbridge, TransCanada Among 11 Canadian Oil and Gas Firms Using Tax Havens https://t.co/iDlneUBXEv #cdnpoli @CdnTaxFairness @ParklandInst #oilsands

— DeSmog Canada (@DeSmogCanada) November 16, 2017

Canadian Direct Investment in Tax Havens Grew A Hundredfold in 20 Years

The report’s definition of a “tax haven” provided by the Organisation for Economic Co-operation and Development (OECD), has four simple components: an extremely low or non-existent tax rate, a separation of tax rates from the country’s regular economy, a lack of regulatory supervision and an absence of information exchange.

In other words, a region where money is kept solely to house excess profits that people or corporations wish to remain untaxed.

The best known tax havens are based in Caribbean countries, including Barbados, Bermuda, the Cayman Islands and the Bahamas. The U.S. state of Delaware actually served as the most popular location for Canadian companies to house their money, sporting 472 subsidiaries from only 60 companies.

It’s virtually impossible to know how much companies actually store in these jurisdictions.

But as noted in the report, Canadian foreign direct investment (FDI) into the top 10 tax haven jurisdictions has increased from $2.1 billion in 1994 to more than $284 billion in 2016.

While companies might claim that such a spike is associated with productive investments, there’s a complete disconnect from local employment: in Bermuda, there’s only one person hired for every billion dollars in assets, increasing to a mere 16 people per billion in Barbados.

Dozens of notorious tax treaties and tax information exchange agreements (TIEAs) allow for the easy transfers of money between jurisdictions.

“We don’t know how much of this money is being hidden, how much of it’s being legitimately invested,” Acuña said.

“We’re trying to piece this together from information we don’t have. The government needs to crack down on what companies have to report out when they’re moving money around and in terms of their foreign direct investment.”

Canada Losing Estimated $10 Billion to $15 Billion Per Year

The report found Canada was missing out on an estimated $10 billion to $15 billion in taxes per year from the 60 companies listed.

Four of the oil and gas companies identified in the report were also listed in Canadian Business magazine’s 2014 investigation into corporations that were paying “unbelievably low tax rates.”

That investigation reported that over the course of a decade, CNRL, Enbridge, TransCanada and Suncor only paid between 13.6 per cent and 15.6 per cent of their income in taxes.

While companies like CNRL and Suncor receive significant deductions due to capital costs and royalty payments, such percentages are still extremely low when compared to the average Canadian’s tax rate of 42 per cent.

As noted by Acuña, it’s not enough to just increase corporate income rate rates or revamp the nonrenewable resource royalty framework if companies can continue to move their profits to low-tax jurisdictions. Such a move would have to be paired with a serious clampdown on rules about tax havens.

“The issue is that the law needs to change,” Gibson said. “You can’t crack down on legal tax avoidance.”

Billions Likely Needed in Coming Decades to Cover Environmental Costs

Gibson pointed to NDP MP Murray Rankin’s recently proposed private member’s bill as a good first step.

Bill C-362 would amend the Income Tax Act to deny tax breaks to financial transactions that “lack real economic substance.” That would ensure that earnings are taxed properly in the jurisdiction in which they’re made.

The report made several other recommendations. Those include requiring the Canada Revenue Agency to compile actual information and data on tax havens, renegotiating tax treaties to set a minimum threshold for tax rates, and taking a much stronger international leadership role.

Such conversations may take on additional urgency in coming years as costs of environmental and climate liabilities continue to mount for various levels of government, although Acuña expressed some skepticism about the federal government acting given Finance Minister Bill Morneau’s recent run-ins with similar issues.

“It sure looks like oil and gas companies are raking in the profits and stashing them away in tax havens, while Canadians are stuck with the mess they leave behind, including toxic tailings ponds, oil spills, and climate damages,” Patrick DeRochie, climate and energy program manager at Environmental Defence, told DeSmog Canada.

“Once you take away all the oil and gas subsidies and the money stowed away in tax havens, and start accounting for the massive costs to the environment and public health, you get an industry that is no longer economical.”

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The federal government received a failing grade in a new national audit of freedom of information regimes across Canada.

The vast majority of federal departments under the Liberal government, which campaigned on a promise to increase information disclosure and transparency in Canada, failed to fulfill requests within the legal timeframe, the audit found.

“I was surprised at the depth of the how poor the federal performance in the audit was,” Fred Vallance-Jones, audit lead author and associate professor at University of King’s College, told DeSmog Canada. “That wasn’t expected.”

The report states, “this year, the audit has a special focus on the performance of the federal government led by Prime Minister Justin Trudeau, and performance was even worse than in the latter years of the former Stephen Harper government.”

The national audit, which looks at freedom of information regimes federally, provincially and municipally, was conducted Vallance-Jones and freelance journalist Emily Kitagawa. The audit was prepared for and funded by News Media Canada and is the seventh report of its kind since 2008.

To avoid relying on government reporting and statistics, a team of researchers submitted a total of 428 requests to 24 federal departments, agencies and crown corporations as well as provincial and municipal offices over a period of four months.

At the federal level only a quarter of request were answered within the legal 30-day time limit and one-third of responses were still not fulfilled at the end of the audit timeframe. Two federal departments, the RCMP and the Departmetn of National Defense, provided no response to the requests whatsoever.

“When we were looking at the results, we were so surprised we actually sent emails to a bunch of departments asking, ‘what’s the status of the request,’ expecting them to say, ‘well, we sent our response to you, didn’t you get it?’ ”

Vallance-Jones said the requests, which are made available in the report, were standard and should not have led to delays in response.

Governments in Opposition, Not Power, Champion Access to Information Improvements

Vallance-Jones said he has seen many governments promise to improve the public’s access to information, but few deliver.

“Governments aren’t as enamoured with the idea of freeing information when they’re no longer the opposition,” he said.

“It’s not so shocking from that perspective. But it’s quite a contrast with the promises of government for sunny ways, greater transparency and accountability.”

Vallance-Jones added it’s worth noting the Harper government rode into power on a similar set of promises.

“They promised to change the system after the whole sponsorship scandal and did succeed in adding new crown corporations to the Act.”

“But the Conservatives back off most of the things they promised to do.”

The federal Liberals too have largely failed to move forward on their promised of open, transparent government, Vallance-Jones added.

Bill C-58, introduced by the Liberals in June proposes to amend the current Access to Information Act and Privacy Act, but has been called a step backwards by Canada’s Information Commissioner, Suzanne Legault.

The bill notably stops short of extending much-needed order-making powers to the commissioner.

Currently, the commissioner can review complaints filed under the federal system, but does not have the authority to order federal departments to release withheld information.

Several agencies with ties to the federal government are also left outside Access to Information legislation, meaning they have no obligation to release information to the public.

The Liberal government has stopped charging fees for fulfilling access to information requests, aside from a baseline five-dollar processing fee but the bill reintroduces the possibility of new fees as well as the right to deny requests deemed too large.

The audit found feed highly problematic in other Canadian jurisdictions. The City of Windsor provided the auditors with a $1872.60 fee estimate for a routine request, while the Ontario Ministry of Health cashed a cheque for a request but failed to provide the information paid for.

Overall the audit found the federal government’s proposed “watered-down” reforms  saying the Bill actually provides new avenues for agencies to deny the release of information.

Federal Freedom of Information in #Canada Worse Now Than Under #Harper: New Report https://t.co/B7waLPEspS #cdnpoli #cdnfoi @carollinnitt

— DeSmog Canada (@DeSmogCanada) September 29, 2017

Electronic Data. Because It’s 2017

The audit found the feds consistently failed to provide electronic, machine-readable documents.

The release of paper files or static PDFs that cannot be searched for keywords or data creates an “error-prone, complex process that many would not even attempt and which often yields poor results,” the audit found.

Despite requesting machine-readable records, the auditors found several federal departments did not comply.

“This is an ongoing problem,” Vallance-Jones said.

“Many places did a good job of this, but the feds did a particularly poor job of releasing machine-readable records.”

“This is the 21st century,” he said. “Journalists and the public need access to government data to do their jobs. But there is still a reluctance.”

Vallance-Jones added the audit found information released in electronic format is less likely to be released in full.

“Am I surprised? No. Am I disappointed that we’ve still not moved to a day where information is released electronically? Yes,” he said.

Systemic Problems of Secrecy Left Unaddressed

Not enough has been done to address the level of secrecy baked into the system, Vallance-Jones said.

“The federal government has done something but they haven’t addressed the systemic problems of exemptions, a lack of access to ministers’ offices and that kind of thing.”

“In a sense it’s an old baseline — we have a Westminster Parliamentary system which has always been founded on idea of cabinet secrecy and a civil service that is not heard from, that is silent.”

That lands Canadians in a situation where what is public is what the Minister says is public, Vallance-Jones said.

In addition, over the last several decades governments have become more sophisticated in how they restrict information.

“In general they have become better at turning the apparatus of government to private ends,” Vallane-Jones said, adding this was prevalent in the Harper government’s muzzling, reliance on spokespeople and long communications delays.

“You add that up, and it results in a lot of government secrecy.”

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Reconcile with Indigenous peoples. Make elections fairer. Invest many more billions in public transit and green infrastructure. Take climate change seriously.

Those are just a few of the things that Prime Minister Justin Trudeau and his Liberal Party committed to in the lead-up to the 2015 election, offering up a fairly stark contrast to the decade of reign by Stephen Harper’s Conservatives. And on Oct. 19, 2015, almost seven million Canadians voted for that Liberal platform. In his victory speech, Trudeau spoke of “real change” and “sunny ways” and “positive politics.”

Fast forward almost 500 days.

Many major promises have been broken, and sentiments seemingly abandoned. Frankly, it’s getting rather difficult to keep up with the amount of backtracking and shapeshifting happening in Ottawa.

Most recently, Trudeau formally abandoned his repeated commitment that “2015 will be the last federal election conducted under the first-past-the-post voting system” by issuing a mandate letter to the new minister of democratic reform that included the statement that “changing the electoral system will not be in your mandate."

What follows is a breakdown of some of the other stunning reversals made by Trudeau and the Liberals in recent months, with a specific focus on commitments made to climate change, environment and Indigenous rights.

Modernizing Environment Assessment Processes Prior to Approving New Pipelines

In 2012, Harper and the Conservatives overhauled the way that major resource projects are assessed in Canada, gutting the Canadian Environmental Assessment Act, Fisheries Act and Navigable Waters Protection Act.

Among many other things, those changes resulted in the National Energy Board (NEB) being assigned exclusive responsibility to conduct federal environmental assessments for major pipeline projects.

It’s something that many voiced serious concern about: the NEB has been often accused of being a “captured regulator,” with a high concentration of staff members having worked in the oil and gas industry due to its head office being located in Calgary and legislation from the early 1990s requiring all permanent members to live in the area.

The Liberals pledged in its platform to “make environmental assessments credible again” and “ensure that decisions are based on science, facts, and evidence, and serve the public’s interest.”

And in August 2015, during a campaign stop in Esquimalt, Trudeau specifically stated the Kinder Morgan Trans-Mountain project wouldn’t proceed under existing processes.

The list of criticisms of the NEB review of the Kinder Morgan project is long: there was an absence of oral cross-examination of evidence, many people were arbitrarily denied intervenor status and potential climate impacts of the project weren’t considered.

Dozens of municipalities and Indigenous communities voiced serious opposition to the project.

But the Liberals didn’t call the review off. Instead, it created an ad-hoc environmental review panel, which was explicitly intended “to ‘complement’ rather than review or redo the NEB process.” Despite allegations of serious conflict of interest in its members, the panel produced a report posing six major questions about the proposed project that should be answered before making a verdict.

But none of those questions were answered.

As a result, the cabinet decision made on Dec. 29 to approve Trans Mountain and Enbridge’s Line 3 was ultimately based on an NEB recommendation made under Harper-era processes (the B.C. government also oddly accepted the flawed environmental assessment as its own, despite having the opportunity to order its own).

The path forward was clear: modernize the NEB, and repair the trio of acts that were gutted by Harper in 2012 prior to proceeding with new projects that will have major impacts on climate and local environment. Maybe that would have been just too “positive.”

Phasing Out Fossil Fuel Subsidies

Between 2013 and 2015, oil and gas producers in Canada received an annual average of $3.31 billion in subsidies, with $1 billion via the Canadian Development Expense and $1.2 billion from Alberta's Crown Royalty Reductions. This arguably makes the impacts of climate policies less effective.

That’s possibly why the Liberals pledged: “We will fulfill our G20 commitment and phase out subsidies for the fossil fuel industry over the medium-term.”

No further details were given about what “medium-term” means in the context of a four-year mandate.

In November 2015, B.C. Premier Christy Clark announced that the Liberals had assured they would be maintaining Harper’s tax breaks of $50-million over five years to the province’s struggling liquified natural gas (LNG) sector. In March 2016, Carr said it’s “not the moment” to phase out subsidies.

An August 2016 report by the International Institute for Sustainable Development noted: “So far, the government has been quiet about the details of its plan. As part of its G20 commitment, Canada has said that it will eliminate “inefficient” subsidies. But that hasn’t been clarified—nobody knows which subsidies will or won’t be considered inefficient.”

That’s still the case.

Grant Indigenous Nations “Veto” Power Over Resource Projects

One of the most compelling elements of Trudeau’s pre-election rhetoric was his repeated emphasis on establishing a “nation-to-nation” relationship with Indigenous peoples, and working towards the lofty goal of “reconciliation.”

Specifically, the Liberals pledged to "enact the recommendations of the Truth and Reconciliation Commission, starting with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples."

It was also a significant pledge, given that Article 32 of the UN Declaration (which is commonly referred to as UNDRIP) stated “Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources” and require states to obtain “free, prior and informed consent” from Indigenous peoples “prior to the approval of any project affecting their lands or territories.”

Many people interpret that article as acknowledging the “veto” power of Indigenous nations, meaning they could refuse projects including pipelines, oil and gas extraction and mineral mining. And when asked on the campaign trail if “no means no” in reference to veto power, Trudeau said “absolutely.”

After winning the election, Trudeau emphasized in mandate letters to ministers that “no relationship is more important to me and to Canada than the one with Indigenous Peoples.” In May 2016, Canada formally removed its objector status to UNDRIP, with Indigenous Affairs Minister Carolyn Bennett stating: “We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.”

That was about as clear as you could get. Or so you would think.

Less than two months later, Bennett said the Liberals “do not believe this is an outright veto.” Then Justice Minister Jody Wilson-Raybould stated that implementing UNDRIP was “unworkable.” Trudeau rounded out the betrayals by stating in December 2016 that “no, they don’t have a veto” in reference to three Indigenous nations who vehemently oppose the Kinder Morgan project.

The Liberals have also been criticized for approving the Pacific Northwest LNG export terminal, Site C dam and the Enbridge Line 3 pipeline without the free, prior and informed consent of Indigenous peoples. In a recent video for CBC News, Mi'kmaq lawyer and professor Pam Palmater told Trudeau that "you betrayed us."

It would be difficult to draw much of a different conclusion.

Justin Trudeau participates in a town hall meeting in New Brunswick. Image: Prime Minister's Photo Gallery

Repeal ‘Problematic Elements’ of Surveillance Bill C-51

Remember Bill C-51? That controversial “anti-terrorism” legislation that resulted in massive protests, petitions and condemnation from academics?

Well, it’s still very much law.

That includes the powers to arrest people without a warrant if someone "may" commit a terrorist attack, increases data sharing among government departments, grants significant powers to the Canadian Security Intelligence Service (CSIS) and expands the definition of “security” to include anything that undermines “the economic or financial stability of Canada.”

The latter point led especially to fears among environmental activists and Indigenous defenders, given the potential arbitrary use of state power to suppress protesting.

The Liberals unanimously voted for C-51. During the election, they promised to “repeal the problematic elements of Bill C-51, and introduce new legislation that better balances our collective security with our rights and freedoms.” The new legislation would “guarantee that all Canadian Security Intelligence Service warrants respect the Charter of Rights and Freedoms” and “ensure that Canadians are not limited from lawful protests and advocacy.”

Maybe you can guess what happened next.

Trudeau and the Liberals haven’t kept their promise.

The proposed bill to establish an all-party National Security and Intelligence Committee is still only in the report stage. CSIS is under serious fire for a decade-long storage of illegal metadata. Natural Resources Minister Jim Carr was recently slammed for implying that pipeline protesters would face the “rule of law,” which was interpreted by some as a veiled threat to use police and military against protesters in a similar way to the Oka Crisis.

Take Climate Targets Seriously

Credit where it’s due: the Liberals did manage to pull off the Pan-Canadian Framework.

That included national $50/tonne carbon pricing by 2022, regulations to cut methane and HFC emissions, a phase-out of coal-fired power by 2030, new building codes and the "intention to develop a zero emissions vehicle strategy and a Clean Fuels Standard."

But the federal approvals of the Pacific Northwest LNG export terminal, Enbridge Line 3 pipeline and Kinder Morgan Trans Mountain pipeline seriously undermine the already underwhelming federal commitments to cut emissions by 30 per cent below 2005 levels by 2030, and 80 per cent below 2005 levels by 2050.

Sure, commodity prices may never rebound thanks to President Donald Trump’s plan to massively expand domestic oil and gas development. But everything could also change if he decides to start dropping bombs on Iran and takes four million barrels of oil production off the table. Either way, it’s a big gamble.

But one thing is known for sure: if the newly approved projects are indeed constructed, they will result in “carbon lock-in” for decades to come that will make it extremely difficult for Canada to meet its climate targets due to increased political pressures on future governments to avoid introducing legislation that seriously impacts profit-making abilities.

There’s a quiet push by the federal government to use international emissions trading to help it reach its 2030 target. Solid economic arguments accompany this option. However, some fear the required capital outflow associated with the mechanism will make it more difficult for Canada to reach its 2050 target, to say nothing of the lofty goal of phasing out all fossil fuels by 2100 (both of which will require fairly radical transformations in transportation, industry, electricity, agriculture and buildings).

There’s also little evidence for the math behind the government’s plan to reduce a massive 44 megatonnes of emissions reductions (which represents more than half of all the emissions from oilsands extraction and refining in 2015) from “public transit, green infrastructure, technology and innovation and stored carbon.”

The Pembina Institute’s Erin Flanagan kindly put it that “additional policy work is required to close [that gap].”

Trudeau’s got his rhetoric down when it comes to this subject, often referencing the need to “balance” the economy and environment. Frankly, there’s little evidence that his government is taking 2030, 2050 and 2100 climate targets seriously.

Can’t Stop, Won’t Stop: 500 Days of Trudeau’s Broken Promises https://t.co/j4yt4xabv5 #cdnpoli #bcpoli @ClimateVoters @dogwoodbc @350Canada pic.twitter.com/o9wQXMrmBX

— DeSmog Canada (@DeSmogCanada) February 11, 2017

Big-League Investments in Public Transit and Green Infrastructure

It was supposed to be the “largest new infrastructure investment in Canadian history.”

Specifically, the Liberals pledged $125 billion in public transit, climate change mitigation and adaptation projects, social housing and water and wastewater infrastructure. The big problem?

That $125 billion would be invested over the course of a decade, well beyond the four-year mandate the Liberals won in 2015. Between 2016/17 and 2019/20 — you know, the party’s actual mandate — the Liberals only pledged a total of $17 billion. That was broken down into $5.65 billion for each of the three categories: 1) green infrastructure; 2) social infrastructure; and 3) public transit.

It might sound like a lot.

But the infrastructure deficit in Canada is staggeringly large — one estimate pegs it as high as $570 billion — which is the symptom of decades of serious underinvestment by the federal government in its cities. So how have the Liberals lived up to their measly platform pledge?

They didn’t even meet it.

The funding commitment to public transit is $1.1 billion less than what was promised ($3.4 billion over three years, instead of $4.5 billion). Meanwhile, the commitment to green infrastructure is short, with the budget allocating $5 billion over five years (instead of $5.65 billion over four years). It’s only in 2021/22 that investments are predicted to increase to levels promised in 2015/16.

There’s been no explanation for this.

Instead, the government pitched a private infrastructure bank, which will attempt to “leverage” four to five dollars from the private sector for every single dollar invested by the government. The $15 billion for the latter will be “sourced from the announced funding” for infrastructure, so subtract that amount from the original total.

Sure, the Liberal platform did outline the idea of a Canada Infrastructure Bank “to provide low-cost financing for new infrastructure projects.” But there was no mention of privatizing it.

This fact has resulted in serious concern voiced by some economists given the possibility of privatization doubling the cost of projects over 30 years than if built and operated by the government.

In addition, Finance Minister Bill Morneau has indicated that private investors won’t be interested in investing in smaller municipalities given their desire for high returns. All this led Laurentian University’s Louis-Philippe Rochon to recently dub Trudeau a “privatization czar” and note that he “has gone places even Mr. Harper never dared to go.”

Given the Liberal pledge to reduce the federal debt-to-GDP ratio to 27 per cent by 2019-20 — and the fact it’s currently predicted to hit almost 32 per cent by that time — it seems doubtful the Liberals will even pretend to meet this promise.

Sunny, sunny ways.

Image: Prime Minister Justin Trudeau enters a town hall meeting. Image: Prime Minister's Photo Gallery

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The federal government is seeking to stay a private lawsuit brought against Mount Polley Mining Corporation and the B.C. government in October 2016, nearly 30 months after the collapse of the Mount Polley tailings pond spilled 25-million cubic metres of contaminated mining waste into Quesnel Lake, a source of drinking water for residents of Likely, B.C.

Now the federal government is seeking a withdrawal of the criminal charges before MiningWatch Canada — the organization that first brought the charges, which claim the company and the province violated the federal Fisheries Act — has been given the opportunity to present evidence.

“We were stunned that the federal Crown does not even want us to show the court that there was enough evidence to justify proceeding with a prosecution against both the B.C. government and [the Mount Polley Mining Corporation] for the worst mining spill in Canadian history,” Ugo Lapointe, Canada Program Coordinator for MiningWatch, said.

“To add insult to injury, the Federal Crown did not even provide an explanation for why it is doing this now, with such short notice before the Court date which was set for the last two month,” Lapointe told DeSmog Canada.

Lapointe said under normal circumstances a process hearing would take place during which evidence would be presented and after which the court would emit a summons and set a trial date. Or, if the court decided to stay the proceedings, it would do so with an explanation based on the evidence and provided to the court and thus the public.

The B.C. court will take up to several weeks to decide if the Crown is warranted in entering a stay of charges.

Cancelling the proceedings without strong justification sends a dangerous signal to the mining industry in Canada, Lapointe said, adding it could further erode public confidence in Canada’s regulatory system.

“We initiated this private prosecution out of concern that it has now been over two and a half years since the Mount Polly disaster happened and yet, despite clear evidence of violations of Canadian laws, no charges have been brought forward by any level of government,” he said.

No charges and no fines have been laid against Mount Polley, owned and operated by Vancouver-based Imperial Metals. The collapse of the tailings pond released mining waste containing copper, lead, iron, arsenic and selenium into fish-bearing waters.

Quesnel Lake, where the vast majority of the spilled waste still resides, is home to one of the province’s most abundant sockeye salmon runs.

A 2015 investigation by Chief Inspector of Mines Al Hoffman, did not result in charges against Mount Polley. Hoffman’s report found the company engaged in poor practices but he stopped short of citing Mount Polley for non-compliance.

A subsequent report released by B.C. Auditor General Carol Bellringer found B.C. suffered from inadequate monitoring and inspection of mines and as a result was unable to ensure mine operators were following provincial rules.

An investigation into the incident by B.C.’s Conservation Officer Service is ongoing.

Imperial Metals is owner and operator of the Red Chris mine in northern B.C. and is exploring options for two more mines on Vancouver Island.

The MiningWatch lawsuit was filed under a citizen’s provision of the Criminal Code that allows for private prosecution of offenses, such as a violation of the Fisheries Act.

According to the Public Prosecution Service of Canada, private charges like those brought by MiningWatch are a “valuable constitutional safeguard against inertia or partiality on the part of authorities.”

Lilina Lysenka, lawyer for MiningWatch, said the court should be cautious about dismissing a case without reviewing the evidence.

“Staying the charges prior to having the opportunity to determine whether or not there is enough evidence to proceed could undermine this constitutional safeguard if it is done without good reason,” Lysenka said.

Bev Sellars, chair of First Nations Women Advocating for Responsible Mining which supports the MiningWatch prosecution, said the impacts of the Mount Polley mine spill are far from over.

“The disaster that was the Mount Polley tailings pond collapse is not over for those of us who live and depend on the lands and waters and particularly on the salmon that have always sustained us,” she said at the time of the proceeding’s launch.

“Nor is it over for those living in the shadows of other existing and planned mines across B.C. who are acutely aware of the government’s own panel of experts who reported we can expect to see two more such failures every decade,” she said.

MiningWatch hopes the case will be cleared for trial and will be eventually taken up by the Federal Crown.

Although supported by an impressive coalition of environmental, social justice and First Nations organizations that includes West Coast Environmental Law, Amnesty International Canada, Sierra Club BC, the Wilderness Committee, Concerned Citizens of Quesnel Lake and many others, MiningWatch recognizes “the cost and expense associated with prosecuting a case against a mining corporation and the Provincial government can be immense.”

“If Canada’s unique environmental values and waters are to be fully protected, it can only occur if the government stands against violations of its own laws and uses all the means and resources it has at its disposal to do so,” the group states.

Image: Screenshot of the August 4th tailings pond collapse at the Mount Polley mine. Credit: Cariboo Regional District via Youtube

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It describes a framework but could just as easily be read as a request: open science.

And it’s something top of mind for Canadian scientists right now as the federal government is considering changes to the very way science is used to make major decisions about things like pipelines, oil and gas development and mines.

The ongoing federal review of the Canadian Environmental Assessment Act is a huge opportunity to restore scientific integrity to decision-making, scientist Aerin Jacob told DeSmog Canada.

“I really can’t underscore how big an opportunity this is,” Jacob, Liber Ero postdoctoral scholar at the University of Victoria, said, adding Canada could transform the very way science feeds into the environmental assessment and decision-making process.

“One of the challenges being a scientist in wanting to evaluate government’s decisions is that we can’t see the evidence. We can’t see how decisions are being made.”

“It’s like a black box of decision-making. That’s not scientifically rigorous.”

In a conference meeting room in Nanaimo recently, Jacob had the chance to tell the federally appointed review panel how an environmental assessment could be improved by opening up science, not just to the greater scientific community, but to the public.

“All the information from an environmental assessment should be permanently and publicly available,” she said.

“This is more than having binders physically in a library or documents on a server.”

Other participants who presented to the federal review panel pointed to specific examples of when a lack of transparency was detrimental to the environmental review process.

Patrick McLaren, a geologist and expert sediment analyst, participated in the environmental assessment process for the controversial Pacific Northwest LNG terminal proposed for the coast of British Columbia. The project received federal approval in September.

McLaren, who was hired by local First Nations to provide scientific analysis of Flora Bank, a unique eelgrass estuary which provides resting grounds for juvenile salmon in the Skeena watershed, said he was consistently prevented from knowing what specific information the project’s proponent Petronas, and their private consultants, were using to determine no impacts would be made to salmon as a result of the project.

“In my research I came to the conclusion that the design of the terminal would probably result in Flora Bank being totally lost,” McLaren told the panel.

But when McLaren asked what information Petronas used to make the assertion no harm would be done to salmon, he was boxed out.

“I was precluded from asking the modelers questions,” he told the panel, adding that the data that challenged Petronas’ conclusions was not used in the decision-making process nor made public.

“The Canadian Environmental Assessment Agency and the Department of Fisheries and Oceans kept the data that did not support their conclusions secret…it was not put into the public domain because it was contrary to the ‘no harm’ mantra that was coming out of the modeling work.”

The Pacific Northwest LNG environmental assessment process, which scientists have called flawed and inadequate, is currently being legally challenged through multiple court cases.

Open Science: Can Canada Turn the Tide on Transparency in Decision-Making? https://t.co/mpZFb6dwUb #cdnpoli #environmental #assessments

— DeSmog Canada (@DeSmogCanada) December 21, 2016

Adam Ford, Canadian chair of wildlife ecology and assistant professor at the University of British Columbia, worked as a consultant on numerous environmental assessments in Alberta and British Columbia and said the lack of transparency around data plagues the environmental review process.

“I have created something of a wish list for the environmental assessment panel after years of being involved in these reviews and seeing the same problems come up over and over again,” Ford said.

One of the requests submitted to the panel is to increase transparency and reproducibility of findings in environmental impacts assessments.

“In this process they collect data, but it’s tricky because it’s collected by private companies that keep their data and methods secret,” Ford told DeSmog Canada.

“It would be good to see more meta-data on how they collected this data.”

Ford said if all participants in the process were to make their methodologies and findings public it would help standardize the research being done in these ecosystems and landscapes.

It would also help increase accountability by allowing other scientists to understand and retest any conclusions made.

“In other scientsits’ sampling efforts, for example, we could go to those same places and look at the data they collected, ask them ‘how did you choose these samples, when and why?’ We could try to reproduce their findings.”

“But those standards aren’t there and this research is treated as proprietary.”

Ford said from a scientific and peer-review perspective this lack of transparency undermines the integrity of public environmental assessments by not standing up to the expectations of scientific rigour.

Furthermore, he said, not sharing research is simply inefficient. Scientists end up having to do the exact same research over again for environmental assessments because they can’t access the basic information that went into prior reviews.

“If they just shared the data it would help scientists.”

“There are efficiencies to be had throughout this transparency initiative — that’s where Western science is headed. Science is moving us to a more transparent process.”

When thinking about where Western science is headed, Jacob said Canada now has the opportunity to not only modernize its review process but become a world leader in forward-thinking environmental assessments.

“Beyond the raw data we want to see the reproducible code used to analyze it,” Jacob told the review panel.

“This is the recipe we use to come up with conclusions,” Jacob said, showing a chart with raw spreadsheet data on the left and reproducible code for analyzing data on the right.

“It’s not good enough to say ‘I pressed 10 buttons, this is the result I got.’ You need to have other people be able to plug that into their own computer and get the same result.”

It might look complex, Jacob said, “But now kids in High School are learning how to do this.”

Opening up the science to review by other scientists, opening up methods and raw data to the public — all of this is “done in a spirit of making the process stronger,” Jacob said.

“It blows my mind this is not already part of environmental assessments. This would be so easy to implement.”

She added the default for scientists and officials involved in the review process “ought to be sharing information.”

“This is the standard,” Jacob said. “This is a part of a next generation environmental assessment.”

Image: Prime Minister Justin Trudeau. Photo: Prime Minister’s Photo Gallery

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Enough isn’t being done to ensure companies are following Canada’s weak lobbying and disclosure rules, according to democracy expert Duff Conacher.

Conacher, founder and long-time coordinator of Democracy Watch, told DeSmog Canada there are numerous ways to evade lobby rules.

“Overall, secret lobbying is legal,” he says. “You just have to exploit the loopholes.”

Conacher says the Lobbying Act is rife with loopholes, making it very difficult for citizens to keep track of when and with whom corporations and organizations are meeting.

For one, if a meeting concerns the “enforcement, interpretation or application” of a law or regulation that applies to a company, they don’t have to log it. The Lobbying Act also only requires paid personnel to log lobbying efforts, which can lead to a “hired gun” billing a company for “strategic advice” and the conducting the lobbying for ‘free.’

Also, only the “responsible officer” of a company or organization — usually the president or CEO — is required to list themselves in a lobbying effort. As a result, it’s impossible to know who actually lobbied the government in a meeting.

For instance, on January 11 (improperly listed as January 12 in the registry), the Petroleum Services Association of Canada met with international trade minister Chrystia Freeland about the Trans-Pacific Partnership (TPP).

Mark Salkeld, the president and CEO of the association, is the only person listed in the communication. But seven other people involved in the oil and gas industry also participated in the meeting (as well as two chiefs of staff and a deputy minister from the government of Alberta.)

On paper, it looks like it was a meeting between Freeland and Salkeld. But it actually included a dozen people.

How Secret Lobbying Occurs

But perhaps the biggest loophole of them all is that only “oral, prearranged” communications need to be logged.

That means that any lobbying that occurs via writing doesn’t qualify. Nor does “accidentally” bumping into someone at a fundraiser or in a hallway.

Conacher says such tactics could be used for “any emails or any meeting where both the minister or their staff or any government official and Lone Pine themselves want to get around a disclosure they communicated. And if the person inside government was also wanting that not to be registered, what they would do is have the person call them at a non-prearranged time.”

In 2008, the Conservatives introduced the revamped Lobbying Act, requiring the monthly logging of communications between lobbyists and “designated public officer holders.” In 2010, MPs and senators were added to the list of designated public office holders, meaning a company or organizations would have to log a report if they made a communication with them.

But the aforementioned loopholes were never closed.

Lone Pine Lobbied Without Registering Report

On January 15, Jeff Smith — a lobbyist representing Lone Pine Resources, the company suing Canada for $118.9 million over the Quebec fracking ban — met with Brian Clow, the chief of staff for the ministry of international trade.

We know this because Lone Pine, like with any company or organization that participates in lobbying of high-ranking public officials including MPs, senators, ministers and staff, must register such a communication in the federal lobbying registry.

You can see the report of Smith’s meeting with Clow here.

The nature of the communication was peculiar for a few reasons: If the company is attempting to negotiate a settlement, it’s safe to assume that such conversations would happen between lawyers, not politicians and civil servants (although Lone Pine may be attempting to put internal pressure on the government to settle.)

But stranger still were the results of an access to information and privacy (ATIP) request that DeSmog Canada made in regards to the meeting.

As it turns out, the meeting on January 15 wasn’t the first time that Lone Pine had lobbied Clow: an email exchange from four days earlier referenced a “discussion they had before Christmas.”

According to another email, Nadia Theodore — then a director of trade negotiations with the foreign affairs department — attended the January 15 meeting with Clow (an email noted that her “policy perspective would be appreciated.”)

Neither of these occurrences were logged in the lobbying registry.

Milos Barutciski, partner and co-chair of international trade and investment at Bennett Jones LLP (the firm that’s serving as counsel for Lone Pine in the suit against Canada), replied to a request made to Lone Pine’s CEO: “I can confirm that our client's government relations advisors understand and comply with their Lobbying Act registration obligations.”

“Note that only oral communications described in the regulations are required to be disclosed in monthly filings. The communications you reference are not within the scope of the regulations.”

The “discussion” prior to Christmas could have occurred via email, meaning it would not have to be logged in the database. And while Theodore’s presence at previous meetings with other lobbyists had been logged 22 times, she didn’t occupy a high-ranking enough position to legally require it.

This reality is a very major problem, and one that points to fundamental flaws in the way that lobbying is tracked and publicized.

‘Secret Lobbying is Legal’ if You Know Which Loopholes to Exploit, Says Democracy Watchdog https://t.co/dGh5LKGbWr pic.twitter.com/J8y1VO2CeO

— DeSmog Canada (@DeSmogCanada) July 8, 2016

Only Two Lobbyists Found Guilty of Breaking Rules Since 1988

The Liberals didn’t mention lobbying in their 2015 platform, although the party pledged to “amend the Access to Information Act so that all government data and information is made open by default in machine-readable, digital formats,” as well as extending the reach of the act to the Prime Minister’s Office.

Conacher says the government has shown no interest in increasing the responsibilities and scope of the lobbying commissioner, meaning many infractions are likely going unnoticed and unpunished.

The current commissioner, Karen Shepherd, doesn’t audit government departments. Since 2004, only 67 lobbyists have been caught violating the Lobbying Act. Almost all have been let off the hook without punishment or public scrutiny.

Only two lobbyists have been found guilty of illegal lobbying since 1988.

Bruce Carson, a former top aide to Stephen Harper, will be receiving a ruling on his alleged prohibited lobbying in the next few months.

Estimated 1,600 Lobbyists Broke Rules Over Past Two Decades

Conacher says there are some 5,000 active lobbyists working at any given time, and that around 25,000 that have registered since 1988. The number of lobbyists over the course of a year — many will deregister as soon as they’ve finished work for a company or organization — has increased in recent years as well.

In 2014-15, Shepherd only conducted 20 administrative reviews, finding one worthy of referring to the RCMP. The identities of lobbyists who violate the code, but aren’t charged, are kept hidden.

“The percentages are so small that our conclusion is only five per cent have been caught,” Conacher says. “And that 1,600 lobbyists have likely violated the code or the act since 2007. But only three have been charged.”

Conacher suggests the lobbying commissioner should be conducting random samples of every government institution: for example, obtaining all communications with ten companies for the last three months, including phone logs for the minister and staff.

Feds Not Interested in Changing Rules

Shepherd’s seven-year term just finished. She’s expressed interest in being reappointed, something that Conacher says “would be a tragedy and continue to undermine transparency in lobbying.”

There’s also talk about merging the responsibilities of the ethics commissioner and lobbying commissioner into one, which could potentially impact the overall effectiveness of the role.

Prime Minister Justin Trudeau has already been accused of getting too cozy with lobbyists (during the campaign, the party’s co-chair had to step down for providing recommendations to TransCanada on how to lobby a Liberal government.)

All up, there’s clearly plenty of work to be done in improving the communication and monitoring of lobbying activities. What’s less obvious if anyone’s going to take such opportunities seriously.

Image: Danny Huizinga/Flickr

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When the Alberta government released its draft plan to save the province’s dwindling caribou populations from local extinction earlier this month, it was heralded as a major step forward — but big questions remain.

The biggest one: after years of failing to intervene in the caribou crisis, will the new plan be enough to bring them back from the brink of extinction?

“It was great news for northwest populations where big protected areas are needed and there’s still time there to ensure caribou recovery,” conservation specialist Carolyn Campbell from the Alberta Wilderness Association told DeSmog Canada.

But when it comes to the Little Smoky range, it’s still not enough, Campbell said.

“The problem is the underlying causes of predation are still allowed to worsen in the next five years by restarting logging and by implying energy infrastructure can still go ahead,” she said. “We can’t support the plan continuing to destroy habitat.”

Woodland caribou are a threatened species both provincially and federally. According to provincial estimates, caribou are disappearing at a rate of about eight per cent per year due to habitat loss from energy and forestry development, which in turn increases wolves’ reach into caribou habitat.

Under the federal Species At Risk Act, the province must preserve 65 per cent of critical caribou habitat by October 2017.

“We inherited a bit of a policy logjam on this,” Environment Minister Shannon Phillips told the Calgary Herald. “Certainly, there were a number of jobs at risk both in the energy and the forestry sector, and we have a looming federal deadline for us to file our range plans for this particular species at risk. It made for a number of tough choices.”

Biggest Caribou Announcement in Decades

“This is the biggest caribou conservation announcement — in a real concrete way based on habitat — that’s come out of Alberta arguably for the last 30 or 40 years,” Mark Hebblewhite, associate professor of ungulate habitat biology at the University of Montana, told DeSmog Canada.

In 2011, after a lawsuit launched by the Alberta Wilderness Association forced both the Alberta and Canadian governments to address the problem, Alberta proposed a province-wide wolf cull, to the dismay of the general public and the scientific community.

For Hebblewhite, the current proposed plan is exciting because for the first time it puts emphasis on habitat protection and reclamation especially, but not exclusively, in those areas least impacted by industrial development.

“This plan really recognizes the important role of habitat in recovering caribou and that you can’t kill wolves forever and continue to not protect habitat,” he said.

Plan Goes Soft on Oil and Gas Industry

In addition to the protection of 18,000 square kilometres of caribou habitat in the northern part of the province, the plan addresses Alberta’s most at-risk caribou populations: the Little Smoky and A la Peche herds.

For those herds, which are located in prime forestry and oil and gas resource areas, the province proposed strict restrictions on timber harvest and recommends oil and gas limit their activity in those zones.

The proposal, Hebblewhite admits, could have been harder on the oil and gas industry.

“It’s a little softer on oil and gas than I think ultimately may be required to recover habitat,” Hebblewhite said.

That arrangement may mean any benefits for caribou coming at the expense of forestry might be outdone by oil and gas drilling in those ranges, Hebblewhite said.

Since 2012, when the federal draft caribou recovery strategy was released, 667 new wells were drilled in core critical caribou habitat in the Little Smoky range alone. A total of 96 per cent of that caribou range is within 500 metres of human development, Hebblewhite said.

“It’s the most heavily destroyed caribou habitat in the country.”

Campbell agrees the recovery strategy trends in the right direction by encouraging the energy industry to limit its impact in caribou ranges and it also rolls back the “perverse requirement” for leaseholders to develop their resource within five years of purchase — whether or not it makes economic sense.

“But,” Campbell said, “we don’t have limits on land disturbance.”

Reclamation Strategy Gets Industry On Side

Hebblewhite emphasized an important aspect of the current strategy is that it doesn’t pit industry against caribou recovery aims. Reclamation plans are being used as an opportunity to put oil and gas workers back on the job.

“There’s a huge investment in the restoration of seismic lines that wolves and other predators zoom up and down on and renders all these caribou vulnerable to predation,” he said.

That kind of innovative and inclusive thinking has brought industry on board with the plan, he said.

“It’s another strength of this plan, that it’s not being sniped and groused on by forestry and oil and gas.”

The province engaged a mediator who consulted with Aboriginal, environmental and industry groups.

Continued Habitat Destruction Means ‘Caribou Zoos’

Campbell said although the general sentiment is that oil and gas activity has ground to a halt in Alberta, there is still plenty of activity in natural gas plays like Fox Creek within the Little Smoky caribou range.

“It’s booming with activity. There are many big companies operating in there like Shell, CNRL and Encana that know very well they’re operating in endangered caribou habitat.”

Campbell said without specific and strict land disturbance limits, there is no way to guarantee caribou will get the habitat protections they need.

“With no limits set we are concerned that when this issue falls out of the public eye, conversations between companies and the regulator will lead to more disturbance.”

That leads to a prolonged reliance on the wolf kill, Campbell said.

And it has also led to the introduction of “caribou zoos” to fence in caribou, which Campbell calls “a step backwards.”

“Caribou and species at risk generally are valuable because of what they say about the habitat that they’re in,” she said.

“They’re not just little bizarre ornaments on the landscape that we should be keeping alive by all sorts of methods that don’t respect the ecology they need to thrive.”

However, for Stan Boutin, the University of Calgary conservation biologist that introduced the idea of caribou pens, it is going to take every sort of strategy possible to save the caribou herds most at risk of disappearing.

“I was keen to see this, this incorporation of this caribou rearing facility — or a pen, or zoo or whatever you want to call it — into the recovery strategy,” Boutin told DeSmog Canada.

“People are so eager to get back to a natural system that they think anything that’s artificial is not right to do,” Boutin said. “Those herds, particularly Little Smoky and A la Peche are never going to go back to being natural for many, many, many years.”

Boutin added the scientific and conservation communities seem to be able to stomach some amount of predator control but balk at a fence designed to achieve the same end.

“Apart from predator control, it’s the only other option. Everything else will do nothing in the short term to save the Little Smoky and A la Peche herds.”

“Let’s not forget that this is a compromise strategy for everyone,” Boutin said. “Everyone had to pay the piper.”

He congratulated the Notley government for working so hard behind the scenes to bring it together.

Climate Change Threatens Caribou Habitat

He added that regardless of the efforts made to save these critically endangered herds, climate change may so drastically alter their range in southern Alberta that it becomes no longer suitable for the species.

“That’s another hidden twist in all of this,” he said. “There’s a very real possibility that the changing climate for the southern distribution of caribou in Alberta has created a situation where we have deer now being a full-fledged part of the system, which means higher numbers of wolves, which in turn means caribou can‘t coexist there.”

The Little Smoky herd is an example of a population that is on the “trailing edge of their climate envelope,” Boutin said.

That could mean caribou in that region need permanent human intervention to survive in that region, he said.

Boutin said these shifting climate envelopes are going to become a more common conservation phenomena in coming years.

“We as a society have not grappled with how we are going to deal with those populations that are in that really tough circumstance where the only way you keep them is by very strong artificial management all the way through.”

Photo by John E Marriott Photography

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The B.C. Ministry of Forests, Lands and Natural Resource Operations (FLNRO) granted BC Hydro several exemptions from the B.C. Wildlife Act to keep Site C dam construction from falling behind expected timelines, DeSmog Canada has learned.

The exemptions have some local First Nations and legal experts concerned Premier Christy Clark’s promise to “push the project past the point of no return” is occurring at the cost of B.C.’s own permitting rules and wildlife management.

“BC Hydro has gone rogue,” Chief Roland Willson of the West Moberly First Nation told DeSmog Canada. “Worse yet, the province is aware of the situation and chooses to look the other way. What’s the point of having a regulator if it refuses to regulate?”

E-mail correspondence obtained by DeSmog Canada show BC Hydro requested last-minute permission from the Ministry of Forests to undertake “emergency amphibian salvage” along the banks of the Peace River. The ministry granted BC Hydro several exemptions from the Wildlife Act to conduct the work — something legal experts say is against the law.

“The Wildlife Act and its regulations do not allow for exemptions from the ordinary permitting process,” Jocelyn Stacey, assistant professor at the UBC Allard School of Law and expert in environmental and administrative law, told DeSmog Canada. “This means that FLNRO acted without legal authority when it issued the exemption to BC Hydro.”

Ignoring B.C.’s established permitting process “raises the specific concern that BC Hydro is carrying out its Site C dam construction operations without the oversight by public officials that should be guaranteed by the ordinary permitting process,” Stacey added.

On May 13, BC Hydro sought permission to capture and relocate amphibian species including Boreal chorus frogs, Columbia spotted frogs, long-toed salamanders, wood frogs and western toads, all of which are protected under the B.C. Wildlife Act. 

Province Acting “With Impunity” in Granting Exemptions

BC Hydro proposed to begin the salvage work on May 17, only four days after permission was requested. In a letter addressed to Chris Addison, director of resource development with the Ministry of Forests, BC Hydro noted a preliminary field visit to the capture sites was conducted on May 12 — just one day before the request was submitted.

BC Hydro also noted that delaying permission to perform amphibian salvage — which the crown corporation claimed was crucial to the creation of three dikes along the south bank of the Peace River side channel — “risks significant schedule delays.”

In an e-mail dated May 25, FLNRO official Golnoush Hassanpour notified members of the Prophet River and West Moberly First Nations that several exemptions to the Wildlife Act were granted to BC Hydro. In a follow-up e-mail, Addison noted there is no provision in the Wildlife Act to grant such exemptions.

“There is no provision in the Wildlife Act for this specifically,” Addison wrote in the e-mail. “Rather it is an administrative law principle that functionally amounts to inducing error.”

UBC’s Stacey said the acknowledged lack of legal authority to grant such exemptions is troubling.

“I am most troubled…by the fact that the FLNRO official admitted he did not have the legal authority to issue such an exemption and suggested that he acted with impunity in doing so,” Stacey told DeSmog Canada.

“This kind of action goes against our most fundamental understanding of the rule of law: that public officials act according to law, and not based on their personal opinions or what they view as expedient under the circumstances.”

Stacey said this instance raises a much broader concern that unauthorized “exemptions” may be issued routinely, but added that because of a “general lack of transparency with the permitting process, the public is not aware that this is happening and cannot seek recourse from the courts in the form of judicial review.”

The Ministry of Forests, Lands and Natural Resource Operations did not provide comment by time of publication.

BC Hydro: Site C “Construction Schedule At Risk”

The management of amphibian species falls under the auspice of the Wildlife Act and while BC Hydro submitted an application for an official salvage permit to the ministry in September 2015, it didn’t expect a permit to be issued until mid to late June 2016.

In its request letter, BC Hydro stated, “The salvage works cannot wait until the permit is issued; as noted, the delay in construction of the dikes puts the main civil works construction schedule at risk.”

Chief Lynette Tsakoza of the Prophet River First Nation said the province’s willingness to exempt BC Hydro from the rules is part of a “pattern.”

“Every other company would face charges, but not BC Hydro.”

Both the Prophet River and West Moberly First Nation are currently fighting the approval of the Site C dam in a legal challenge.

Last month, 250 top-level scientists and academics from across Canada called on the federal government to put the brakes on construction of the Site C dam — a move supported by the Royal Society of Canada.

Gordon Christie, associate professor at the UBC Allard School of Law, said the exemptions are emblematic of the province’s determination to advance the project — something that puts First Nations fighting the project in court at a disadvantage.

“What this particular episode tells you is how the province approaches things,” Christie told DeSmog Canada. “Their strategy is clearly just get this to a point where it can’t be stopped.”

Christie said the further BC Hydro gets the Site C project down the development path, the more difficult it will be for First Nations legal challenges to stand up in court.

“That’s the sickening part of all of this,” he said. “It takes so long for these kinds of challenges to get through the courts…and at the end of all that time passing you’re going to have the dam already built. That’s the strategy of the government.”

Christie added any compensation owed to Treaty 8 First Nations will be borne by the taxpayer, not the provincial government.

“They don’t lose at all,” he said. “Really it’s about the big issue: this is clearly a proposal that is being pushed through regardless of whether it’s infringing on treaty rights.”

Chief Willson said by granting BC Hydro exemptions from provincial rules like the Wildlife Act, the province is placing BC Hydro’s needs above those of First Nations and the general public.

“Forget environmental laws. Forget constitutional rights,” he said. “Forget everything that holds our society together. That’s what BC Hydro is demanding we all do.”

He added, “What infuriates me is that the province has agreed to ignore the laws and instead protect the selfish interests of BC Hydro.”

Clarence Willson, councillor with the West Moberly First Nation, told DeSmog Canada he sees these exemptions as emblematic of the government’s rush to advance the project.

“This in particular is a very good example of how our concerns seem to be pushed aside to expedite this project and we see this in all kinds of consultation we have with government,” he said.

“They’re doing everything they need to do grease the skids to move this project forward.” 

BC Hydro Letter to FLNRO Chris Addison re: Amphibian Salvage Permit Exemptions by DeSmog Canada

Image: Land is cleared along the banks of the Peace River to make way for Site C construction. Photo: Jayce Hawkins

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A drive along Iceland’s ‘ring road,’ a winding narrow highway that encircles the isolated island’s 1,332 kilometre circumference, will take you from the sublime to the beautifully desolate in quick succession as views of snow spotted mountains give way lava fields, relatively young in geologic time at 800 years, covered in the country’s signature muted green moss.   But perhaps no natural feature is so stunningly otherworldly than Iceland’s geothermal activity.   The remote island is the outcome of upwelling forces, emerging in the volcanic seam between the Eurasian and North American tectonic plates. The result is a remarkably active geologic landscape, one pitted with boiling mud pots, meandering hot rivers and steaming caverns that open up out of a serene landscape like gaping mouths of Hades.   One of my first day trips, along Iceland’s famous Golden Circle route, I stop at the Geysir geothermal valley, a popular tourist hot spot (the English word geyser is a derivative of the Icelandic word geysir, which means gusher). The Strokkur Geysir, like Old Faithful, is a pressurized water column that superheats and erupts at regular intervals, blasting 25 to 30 metres into the air above a crowd of camera-ready spectators.   Both laconic hot pools and violently boiling cauldrons of water surround the Geysir, all of which can be seen from a vantage point just a short hike up the hill. Small-scale geothermal stations, used in a domestic capacity at houses and farms, dot the landscape, easily identifiable with their consistent plumes of steam rising into the mid-day sky, which at this latitude, above 64 degrees north, seems a bluer blue.

Geothermal pools in the Geysir valley. Photo: Carol Linnitt.

One of the more visibly active of Iceland’s geothermal areas, the Geysir is teeming with tourist busses. [view:in_this_series=block_1]

I gather myself and head for Hveragerdi, a small town about 40 kilometres outside of Reykjavik that tourist brochures have named ‘the geothermal village.’   The first thing you notice pulling into the small town off the highway are the rows and rows of greenhouses. On closer inspection you can see the glass structures are rimmed with thick pipes, drawing hot water from the ground into the houses to support a robust growing season all year round.   In July, Iceland’s hottest month, the temperature averages 11 degrees Celsius, so the added warmth is critical to the country’s success in growing plants year round.   On a Tuesday afternoon I stopped by Garðyrkjustöð Ingibjargar, the local garden centre, run by Ingibjorg Sigmundsdottir, that has been using geothermal heat in its greenhouses since the 1950s.   “I have been in this business for 35 years and have always used geothermal and my father before me,” Sigmundsdottir said. “Since this town began to build up, it always used geothermal.”

The geothermal greenhouses at Garðyrkjustöð Ingibjargar have been in operation since the 1930s. Photo: Carol Linnitt.      “In the middle of the town here we have a hot spring and we use steam to heat the houses,” she said, adding sustainability is something people in Iceland value highly.   “We have very beautiful nature in Iceland and everyone takes very good care of the nature.“   Although Iceland’s vast geothermal resources have been in use since the time of the Vikings, for bathing and washing, it was in the 1930s when the nation embarked on an expensive experiment, pumping hot water through city infrastructure as a source of direct heat. Building on that success, geothermal heated greenhouses quickly followed.   Geothermal horticulture is essential to produce production in Iceland. I recently walked into a restaurant in downtown Reykjavik asking for that restaurant that uses produce grown in geothermal greenhouses. “Do you know the one I’m talking about,” I asked a perplexed-looking hostess.   “Every restaurant in Reykjavik uses vegetables grown in geothermal greenhouses!” she replied.   Beyond plants and vegetables, Hvergardi also uses geothermal to manufacture the vast majority of Iceland’s ice cream and heat underground ovens for baking bread. A common tourist pastime in the city’s geothermal park is to consume an egg you’ve just boiled in a narrow nearby river.   Up beyond the small town centre, with a cup of coconut ice cream in hand (and after changing a flat tire — done before my ice cream melted I’ll have you know!), I arrive at the base of Reykjadalur, or Smoke Valley, named for the multiple steaming geothermal vents along the hillside.   I start the hour hike in to the hot rivers above around 7:00pm, during the late sun of the day. Luckily, because of the high latitude, it won’t be fully dark until around 11:00pm.   I climb the steep trail and round the shoulders of winding hills until I come to a wide open valley with a gentle, steaming river at its base. Jackpot.

The hot river of Reykjadalur. Photo: Carol Linnitt.   I lingered in the hot water until about 10:00pm, just in time for a twilight hike back to the trailhead.   The next day as part of an envoy from the Iceland Geothermal Convention in Reykjavik, I board a bus and head out to Hellisheidi, the world’s largest geothermal power station.   I had discovered the plant before on a previous excursion after noticing its immense steam release tracking through a mountain pass on the highway. I pulled off the road to take a closer look.   Although impressive from the outside, once inside the facility, where our group was welcomed by Pall Erland, the CEO of Orka Náttúrunnar (ON Power), Hellisheidi was a sight to behold.

Steam rises from the Hellisheidi station in Iceland, the world's largest geothermal power plant. Photo: Carol Linnitt.   The plant, which generates 300 megawatts of electricity and 133 megawatts of thermal power, provides all of Reykjavik with direct district heating. It supplies half the population of Iceland with power, Erland said.   According to Reykjavik Energy, Iceland’s power and utility company, the use of geothermal energy displaces 560 thousand tons of coal or 360 thousand tons of oil for heating the capital city each year. In the 100 years between 1914 and 2014, the use of geothermal and hydro power in Iceland prevented 250 million tons of carbon dioxide equivalent from entering the atmosphere, according to Orkustofnun, the country’s National Energy Authority.   Hot water from Hellisheidi travels over 20 kilometres by pipeline to Reykjavik. One of the tour guides at the plant told my group the “ridiculous pants” on the pipelines were insulation, designed to minimize heat lost in the water during its trip to the city.   “It’s around 83 degrees when it starts from this power plant and only looses one to two degrees on the way to the houses” in Reykjavik, Erland told me, “where it is used by half of the population of Iceland for heating houses, for industries, for swimming pools, even heated football fields.”   “That’s a new one,” I laughed.   “We are blessed with a lot of hot water,” Erland said. “So after being used in the houses the rest coming out around 35 degrees is an excellent hot water [source] to be used either to heat up streets, walkways, football or other sport fields. We even use the rest of it to go to a little beach in the summer where people can come and enjoy the sun and a little warmth from the seawater being heated up with geothermal.”   “So,” I replied, “I’m guessing Icelanders don’t like shoveling snow.”   “Well the modern Icelanders try to avoid it as possible and thanks to our renewable resources, we can easily use it for…making life easier,” Erland said with a smile.   DeSmog Canada is currently in Reykjavik for the Iceland Geothermal Conference. To learn more about geothermal potential in Canada, read Canada Has Enormous Geothermal Potential. Why Aren’t We Using it?

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Canada’s major ports handle more than 300 million tonnes of cargo every year. They’re how we import products like cars and TVs and how we export commodities like grain and oil. Yet many of us have likely never thought of how the country’s 18 Canada Port Authorities (CPAs) are run — until now.

The way that decisions are made at Canada’s ports are coming under increasing scrutiny from environmentalists, who take issue with ports operating as both a promoter and regulator of trade.

The boards of directors of Canada’s port authorities determine what terminals receive approval for construction, and thus what types of commodities end up leaving the harbour.

Take Port Metro Vancouver (officially known as the Vancouver Fraser Port Authority), for example. It’s the largest port authority by tonnage in the country: in 2015 it facilitated the exchange of 138 million tonnes of cargo.

In September 2012, Fraser Surrey Docks — one of 28 marine terminals located at Port Metro Vancouver — announced plans to export eight million tonnes of thermal coal mined in Montana and Wyoming to Asian markets every year.

Paula Williams co-founded the advocacy group Communities and Coal in May 2013 in response to potential health effects and climate impacts stemming from such exports.

While Port Metro Vancouver’s CEO has readily admitted the port authority has never encountered such considerable opposition to a proposal before, the terminal’s proposal is still slated to go ahead (there are multiple lawsuits filed against it over alleged lack of consultation).

“At times, I’ve felt powerless, even though I remained hopeful,” Williams says. “You really start to see the machine that you’re up against.”  

Port Users Nominate Board of Directors

That’s because seven of the 11 people who serve on the board of directors for Port Metro Vancouver are nominated by port users. In other words, the businesses that reap financial benefits from port-related transactions have a majority of the say in who gets recommended as a board member to the federal minister of transportation, who makes the final selection.

The other four spots are filled with selections by: 1) the 16 municipalities within Port Metro Vancouver’s jurisdiction; 2) the province of British Columbia; 3) the three prairie provinces; and 4) the federal transport minister (without recommendation from the port user group).

The selection process is spelled out by 1998’s Canada Marine Act, which established port authorities as federal not-for-profit corporations mandated with the three-pronged task of facilitating trade, consulting with communities and protecting the environment. Today, Canada Port Authorities serve as landlord, regulator and property developer.  

Fox Watching the Hen House

Kathryn Harrison, a political science professor at the University of British Columbia, expresses concern over the board nomination process, as there’s no requirement for the ports to seek representation from First Nations, environmental or public health groups.

“The nomination process really exemplifies for me the degree to which this port authority has been envisioned as an agency that pursues the interests of industry,” she says. “It has a coordinating role, so you’ve got to have all the industries represented. But think about it: now you have a board primarily made up of those industries overseeing regulation of themselves.”

Peter Hall, director and professor of urban studies at Simon Fraser University and expert on port institutions, says that while ports can introduce widespread consultation, it makes little difference if they don’t have “the right people” at the final decision-making point.

That said, Hall states that he doesn’t believe a locally appointed board should decide on what a port trades, as that should remain the responsibility of provincial and federal governments. But who’s represented at the table has to change, he says, as does the mandate that “all cargo is by definition good.”

“There is this presumption the [Canadian Port Authority] in your city or region should say yes to everything because it’s presumed to be in the interests of Canada,” he says. “In that sense, it’s more difficult for local interests of any type to say ‘no, we’d rather not have that.’”

Hall adds the port industry is made up of a series of oligopolies and the current board composition is “not at all good” at dealing with tough environmental and social questions. Rejigging the composition to allow for more regional municipal representation would help.

“In the long run, we shouldn’t worry so much about these very big, financially successful port authorities just being able to get as much business as they can,” he says.

“We should be worrying about their long-term social and environmental commitments because there is capacity to do that. I don’t think we’re in any danger of destroying the golden goose. I think we’re actually much more in danger of a crisis of political legitimacy.”  

Promoter or Regulator of Trade? Both.

Other port authorities have suffered from poor optics over the years: in 2011, the RCMP started investigations into an allegedly corrupt nomination process at Montreal’s port authority that involved the Prime Minister’s Office. Former Conservative cabinet minister Lisa Raitt came under fire in in 2009 for an expense scandal during her time as CEO of the Toronto Port Authority. Halifax’s port authority has faced criticism from a former port chairperson due to its loss of a major container customer. The list goes on.

While UBC’s Harrison agrees there’s an urgent need to reform the nomination process for the board of governors — which would require an Act of Parliament to amend the Canada Marine Act and the issuing of new letters patent to Canadian Port Authorities — she says port authorities also suffer from mixed mandates, in which they serve as both a promoter and regulator of trade. The goal of regulating business, she says, can come into conflict with the port’s reliance on income from projects to fund its operations.

Such a narrow focus on economic benefit, without fully considering environmental and social impacts, also concerns Andrew Gage, staff lawyer at West Coast Environmental Law.

“If you view coal as a normal and legal commodity, then you can’t understand how someone would limit its export,” he says via e-mail. “If you view coal as a product that, due to its central role in fossil fuel pollution and climate change, plays a crucial role in killing people and destroying property, then your answer may be different.”  

Bill C-43 Allowed Ports to Destroy Documents

Those tensions were exacerbated in 2014 with Bill C-43, the 475-page budget implementation omnibus bill that, among many other things, authorized the sale of federal land to port authorities. Such lands, now leasable to private industry, are no longer covered by the Canadian Environmental Assessment Act and Species at Risk Act. In the same section of the bill, port authorities were empowered to establish rules that would allow them to physically destroy documents.

Such an amendment carries extra weight given that the year prior, the Vancouver-based organization Voters Taking Action on Climate Change uncovered documents via an Access to Information request that showed an uncomfortably close relationship between Port Metro Vancouver and National Public Relations, the firm that also represents the Coal Alliance (which Fraser Surrey Docks is a member of).

Throw in the fact Port Metro Vancouver has been facing serious problems with organized crime — a Vancouver Sun investigation published in May 2015 revealed that over two dozen longshoremen are affiliated with the Hells Angels and associates — and Harrison suggests a serious overhaul is needed.

“If there are concerns being raised about organized crime operating in ports as a way to smuggle drugs, that’s not the time to be passing legislation authorizing the destruction of documents and reducing transparency,” she says.  

Lobbying Activity Flies Under the Radar

Topping it all off is that employees of Canada Port Authorities aren’t subject to the federal Lobbying Act, which means the public can’t find out which individuals or businesses are meeting with Port Metro Vancouver board directors. While Harrison doesn’t perceive any nefarious intent behind the omission, it’s yet another sign for her that the governance model hasn’t kept up with the changing times and expectations of transparency.

In 2010, the federal commissioner of lobbying issued an advisory opinion confirming that communication between shared governance organizations — a category that port authorities belong to — and “federal public office holders concerning its mandate, operation, funding and other related matters is not a registrable activity.”

Robyn Crisanti, director of public affairs at Port Metro Vancouver, notes the port authority has met with a number of federal ministers since the beginning of the year and there’s a lot of interest in the port’s activities.

“We’re very aware of what our marching orders are and we follow them,” she says.  

Grappling With the Long-Term Questions

One of the key tasks of the Canada Port Authorities, Crisanti says, is to do long-term planning: “It’s this thing of looking quite far into the future and trying to assess where Canada’s going to go in terms of trade and trade deals and things of that nature.”

For projects such as the G3 Terminal Vancouver — which if approved will annually transport eight million tonnes of grain — this can be a fairly straightforward task. While the economics may vary, there’s no doubt the world will require grain for the foreseeable future.

But it’s a different story when it comes to exports like coal and petroleum products. Canada has signed international agreements, notably the G7 commitment to phase out all fossil fuels by 2100 and the Paris Agreement to limit global warming to two degrees Celsius, both of which could seriously impact future investments in terminals that export energy products.

According to Gage of West Coast Environmental Law, Port Metro Vancouver “can consider whether fossil fuel specific infrastructure being built on port lands may become ‘stranded assets’ as the world moves away from a fossil fuel economy, as well as any potential liabilities that may be associated with fossil fuel infrastructure.”

This is where it all circles back to the board nomination process and underlying mandate.

Williams of Communities and Coal suggests that it’s currently not beneficial for the port authority to reject a project such as the Fraser Surrey Docks expansion given its modus operandi to facilitate trade, especially given that a majority of governors are commissioned under the “user pay-user say” principle.

However, Williams suggests the experience that Port Metro Vancouver went through with the controversial Fraser Surrey Docks proposal was a good learning opportunity, something Crisanti confirms (the Canada Port Authorities hired external consultants to review the permitting process and launched a new process last July). But there’s much more to be done, Williams says.

“If any change is going to come about, it’s got to be federally mandated,” she concludes. “It has to come from above.”

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Oilsands monitoring programs aren’t quite living up to expectations.

That was the conclusion presented by a six-person expert panel in Edmonton on February 22.

The two organizations that were examined — the Joint Canada-Alberta Plan for Oil Sands Monitoring (JOSM) and Alberta Environmental Monitoring, Evaluation and Reporting Agency (AEMERA) — have improved in performance in recent years, according to the review.

But the organizations have largely failed at actually conducting analysis of the data collected about the four component areas: air, water, wildlife contaminants and toxicology, and biodiversity and land disturbance.

In addition, both JOSM and AEMERA have lacked clear mandates, a fact that has “severely hampered” success.

“The work of the Panel was made more challenging by the absence of an overarching document that clearly articulates the policy and scientific goals of the Governments of Canada and Alberta for oil sands monitoring,” according to the report, which was commissioned by AEMERA and Environment and Climate Change Canada.

AEMERA Struggling to Fulfill Mandate

Such revelations didn’t come as much a shocker for Martin Olszynski, assistant professor in law at University of Calgary who specializes in environmental and natural resources law.

“As someone who’s tried to use the data that’s been generated, I wasn’t surprised at all,” he says. “It’s very hard for anyone without training in all of the metrics. It’s very technical data that someone like myself — and I’m not a total novice when it comes to this — couldn’t make heads or tails of.”

AEMERA was established after Bill 31 — also known as the Protecting Alberta’s Environment Act — received royal assent in December 2013. Prior to then the JOSM handled the monitoring, evaluation and reporting activities.

But the hand-off of responsibilities to AEMERA hasn’t been straight-forward. The new organization, which receives most funding from industry, works with a limited budget of $50 million and has gone through three chiefs executives since its inception.

The province’s auditor general also shamed the organization in his October 2014 report for a lack of clarity and failure to include key details in reporting.

Programs Receive ‘B’ Grade from Panel

To be sure, the panel’s review praised data collection by the two organizations. Clarkson University’s Philip Hopke, who served as chair of the panel, gave the programs a ‘B’ grade at the press conference. There have been increases in sampling sites, frequency of sampling and geographical coverage.

Olszynski says it’s “mostly a good news story.”

But the data collected between 2012 and 2015 still hasn’t been processed or published in a way that can be understood by the public. It’s a problem that was predicted back in a June 2011 report by the Alberta Environmental Monitoring Panel, which emphasized that “monitoring by itself is not sufficient.”

“The value that the environmental monitoring system brings to stakeholders will only be fully realized with appropriate information dissemination activities,” noted the authors of the report.

Results Could be Suppressed

It’s an issue that Olszynski has observed for a long while. He says the translation of information to something that laypeople can understand is imperative to the success of the program.

An associated problem is that AEMERA isn’t yet a “household name,” meaning reporting that carried politically negative news (say, as a hypothetical, increased air pollution in a certain site) could be more easily muffled.

“Unfortunately, because they haven’t done that work to transmit that information that average Albertans and other stakeholders can use, my fear is that if tomorrow Alberta said ‘yeah, we understand this but we’re just not prepared to go ahead with this,’ I don’t think there would be much of a fuss that they would kick up,” he says.

Funding Woes in Tough Economic Times

Fred Wrona, vice-president and chief scientist at AEMERA, noted earlier this month that the organization is preparing to present findings this fall. In addition, AEMERA will be increasing staff numbers from 85 to 130 in the coming years.

The panel noted the utility of the information portal could be boosted with additional funding. However, Olszynski’s skeptical of the likelihood of “significant investments and resources” being directed towards the organization given current economic circumstances.

“I’m not sure it’s going to happen in the next couple of years,” he says. “That’s maybe forgivable.”

“But at least stay the course, don’t abandon the thing entirely,” he advises. “Keep it working as it is. It would be nice to have that comprehensive analysis now, but it’s not the end of the world if we don’t, and other people can maybe step up. But don’t stop collecting that data or doing the actual work of monitoring.”

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