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  • Where are Nature's and Biodiversity's rights?

    Loys Maingon

    Has the draft Biodiversity and Ecosystem Health Framework been floated just to draw our attention away from the fact that the NDP government has failed to produce a long-promised Species at Risk Act?



    There’s only one wild Northern Spotted Owl remaining in BC. Hundreds of other species are also at risk of extinction or extirpation in BC. But there is still no Species at Risk Act.


    SEVEN YEARS (two elections) after promising a “Species at Risk Act,” only domestic dogs are now legally considerate in BC. That is a legislative breakthrough. Just another 2 to 5 million species to go, most of which are seriously endangered by the economy.

    The winds of elections—federal, provincial and municipal—are blowing hard again for fall 2024. Politicians are playing the old saws of past broken promises made new again. Premier David Eby, KC, demonstrated his silken sensitivity for the rights of other species by passing a law that requires that pets be treated more like children in divorce proceedings. For, as only Al Purdy could have countenanced, Eby too is “a sensitive man.” (Rumpole would smile at “the old darling.”) Dogs matter as BC’s long-awaited “Species at Risk” Act, promised as an NDP electoral commitment since 2015, matters less so and waits in line far behind old-growth protection, fish farms, pipelines that have broken all the ‘stringent’ environmental regulations and contaminated rivers, mining impacts and water sustainability chatter in times of a looming drought. All of which sustainably generates appropriate electoral promises every four years ad nauseam.

    BC isn’t talking about a Species at Risk Act anymore. To be fair, it isn’t just BC that has this particular problem. It is a mari usque ad mare (or as they say in Quebec “C’est juste de la marde.”). Species at Risk Acts and environmental assessments don’t seem to mean very much in Canada when business interests are at stake. The Northvolt case in Montreal provides an edifying insight into the environmental priorities of federal, provincial and municipal governments. If this does not have a telling representative bad smell, nothing does, and it is instructive for every province.

    In spite of public outcry from residents, naturalists, scientists and First Nations over the development of the Swedish “Northvolt” electric car battery mega-plant on the outskirts of Montreal, federal and provincial governments have granted permits. Courts have overruled the provisions of the federal and provincial Species at Risk Acts, because electric car batteries are green and this is in “the public interest,” probably proving Dickens’ Mr. Bumble to have had a profound insight into the wisdom of courts.

    The development site is on environmentally sensitive wetlands which are home to 21 listed species-at-risk. What “public interest” means to the courts and Justice Collier is the antithesis of what it means for Chief Ross Montour of the Mohawk Council: “The site contains some of the highest quality wetlands in the region. Wetlands are essential ecosystems, serving as critical habitat for fauna and flora, and providing multiple ecosystem services such as cleaning water, storing carbon, and retaining and redistributing water during major storm events, helping to prevent flooding”. However, unlike dogs in BC, species at risk in Canada are not legally considerate, particularly when business comes calling.



    Endangered Western Screech Owl


    A year ago a housing development permit for the same site was denied on the grounds that the site was extremely environmentally sensitive and too valuable ecologically to ever be developed. Notwithstanding this precedent determination, the federal and provincial government have approved and fast-tracked Northvolt’s application, which promises 3,000 jobs. The Legault government avoided a repeat of a rigorous environmental assessment by modifying Quebec’s environmental assessment Act to exclude properties of the size of the Northvolt site. The same civil servant who signed the letter denying the previous application, signed the approval letter for Northvolt, reversing all previous reasons. Facts seemed to have been reversed in a mere six months. This raises serious questions about the objectivity of the science behind environmental assessments.

    When the Canadian Press asked to see the environmental assessment report it was told to apply for it under Freedom of Information. This means CP cannot get that report for another six months, after delays and censorship. Following court authorization Northvolt has already proceeded with the removal of 170 trees. Northvolt claims to be committed to restore the site and its biodiversity values after the project is completed. Wetlands and their biodiversity can apparently be restored and created at will. Local First Nations (Mohawk Council of Kanawake) have initiated court action based on provincial and federal failure to consult meaningfully, noting that riparian wetlands are lost forever, but battery plants can be built anywhere else.

    There are four important simple lessons to be learnt from the Northvolt affair for BC and the rest of Canada: First, if environmental assessment findings can be reversed within a six month period to suit different affluent clients, then they are not even worth preparing. They are just a sinecure, not science.

    Second, a Species at Risk Act that can be set aside at will to facilitate business interests is not even worth writing, because it does not protect species at risk.

    Third, following Justice David Collier, the courts are not here to protect concerned citizens, the environment or uphold laws written to protect the environment. The law is here to protect “the public interest” which is synonymous with the business interest of corporate citizens and the politicians that support them. In essence, that is another case of: “What is good for GM is good for America,” or in this case: “What is good for Northvolt is good for Quebec”, particularly, Quebec’s economy.

    Fourth, for all the pious talk of provincial and federal commitment to UNDRIP, (United Nations Declaration on the Rights of Indigenous Peoples), the only First Nations that provincial and federal governments are interested in consulting and working with are those First Nations who become shareholders in and promoters of corporations developing projects on their territories. As witnessed by all at Wetsuwet’en, the rights of First Nations hereditary chiefs and followers who are at odds with corporate interests are deemed not to be “in the public interest” and of little interest to governments. The economy is in the public interest, the environment and UNDRIP are not.



    Blue-listed Northern Pygmy Owl (Photo by TJ Watt)


    These principles apply in BC, as they do in Quebec and throughout Canada. For the past fifty years concerns about climate change have been consistently substantiated and are plain to see for the vast majority of people across the planet. At a time when scientists agree that the climate crisis is intimately linked to the state of biodiversity, government priorities remain development and the economy. Nature has no effective legal status or protection. Nature and biodiversity are an afterthought, when it is more urgent than ever that they be treated as the priority.

    Rather than deal with the spectre of its broken environmental promises that could haunt campaigning politicians, the BC government has decided to distract the public with the release of another aspirational framework: the Draft BC Biodiversity and Ecosystem Health Framework. This is really a set of electoral mirages, promises of broad nebulous “good intentions,” none of which is framed as deliverables or implementation targets by a set date. It reads like siren calls in the fog of memory. It is hard not to remember that these are promises from a government that began by betraying its voters on Site C and has continued to break its environmental promises ever since.

    To understand this document one has to be familiar with the April 2020 Merkel-Gorley report on an old growth strategy, A New Future for Old Forests, and the Price, Holt and Daust report BC’s Old-growth Forest: A Last Stand for Biodiversity, as well as their predecesssors from the 1990’s. The eloquent “Message from the Minister” which sets the tone, is in fact a re-phrasing of key recommendations of the Merkel and Gorley report. Most notably, the Draft B.C Biodiversity and Ecosystem Health Framework, talks about “ecosystem health” without ever really defining it. To do so would be self-incriminating. “Ecosystem Health” was defined in the 1992 An Old Growth Strategy for British Columbia as the percentage of intact forest needed to protect BC’s biodiversity and ecological function. As Merkel noted in an interview, some 30 years ago the government’s own scientific review established a series of “risk levels” that defined ecosystem health and biodiversity. The findings stipulated that a healthy forest maintained biodiversity at 70% intact forest, risk was passable at 50% and imperilled at 30%. After political shenanigans, however, BC set the bar around 17%. To address this problem would have required an immediate moratorium on old-growth and the logging of intact forests. Instead, this government and the courts protected the industry and prosecuted people who called for this ban, at Fairy Creek for one example. The current government has failed to take and implement immediate steps recommended by its own Old Growth Strategic Review for the last 30 years.

    It is no wonder that BC has seen a collapse of the timber supply which has led the premier to declare that “BC forests are exhausted.” Prince George mills closed this summer and more recently we saw the closure of the West Fraser sawmill at Fraser Lake. This problem is not unique to BC. It is a national industry-wide systemic problem of failed industrial forestry which governments continue to protect at public expense. A recent study of the state of the boreal forest in Ontario and Quebec after decades of “sustainable management” concludes that, much of the boreal has been severely degraded causing long-term ecological damage that will make restoration difficult: “Major changes are needed in boreal forest management in Ontario and Quebec for it to be ecologically sustainable, including a greater emphasis on protection and restoration for older forests...”



    Threatened Woodland Caribou (Photo by Conservation North)


    The same can be found throughout BC because for the last twenty years the rate of deforestation has continued unabated, with the protection of forest corporations by the government and the law courts. The Draft BC Biodiversity and Ecosystem Health Framework comes 30 years too late. It is a political promise to implement old growth deferments, which were not implemented four years ago, as promised in the last election (2020).

    This document misleads. It is simply fodder to re-build confidence in the NDP’s “green vote” which has been betrayed by, and lost to, the past seven years of dismal government performance on the environment. While it talks about the importance of nature and biodiversity, a careful reading should reveal that nature and biodiversity are an afterthought when they should be a priority. The only real priority in this document is, and remains “the economy.” While it abuses cherished terms like “resilience”, “adaptive management” and “ecosystem-based management”, nowhere is there any real protection for nature. Far from being the “transformational” vision that it claims to be, this framework is just a re-working of the same economic objective to make “business-as-usual” resilient. That is explicit in the section “Designing for Economic Resilience” (page 13) in which biodiversity is reduced to “diversified revenue streams,” and “food security through changes in soil health.” And other species become just “assets.”

    There are some prize paragraphs that deserve quoting to highlight the meaninglessness of this public electoral exercise. Under the headline of “Meaning of prioritization of ecosystem health and resilience” (paragraph 2 page 12) is one of many jewels of vacuous tropes and formulas repeated like mantras throughout the text: “Conservation and management of biodiversity and ecosystem health is proposed to be based an ecosystem approach, which includes ecosystem-based management. In some cases where an ecosystem is severely degraded or at risk: that ecosystem may need protection restoration, or enhancement efforts.”

    What does this gobbledygook mean? Management of ecosystem biodiversity is going to be “ecosystem-based.” The reality of what ecosystem-based management (EBM) means in practice is clearly illustrated by Tavish Campbell in an aerial photograph of Timberwest’s ecosystem-based forest management of the Thurlow Landscape unit in The Great Bear Rainforest . It looks just like devastation-as-usual, but bigger at the ecosystem scale.



    Eco-system based forest managment in the Thurlow Landscape Unit (Photo by Tavish Campbell)


    The EBM concept rests on a huge false assumption. It assumes that foresters and forest operators have a sufficient a priori knowledge of the biodiversity of a site or ecosystem to be impacted by forest operations. Nothing could be further from the truth. Forest operations do not require that a biological assessment of site biodiversity be carried out before clearcutting. As a result we have little or no idea of what species are being impacted or exterminated. Biodiversity is taken for granted, there is no account of what species are present. All that is accounted for is the timber volume and value.

    A case in point was the elimination of BC’s biggest population of the endangered Old-growth Specklebelly (Pseudocyphellaria rainierensis) at Fairy Creek. There was no previous record of the presence of this species in the cutblock, and in spite of the discovery being documented and reported to the Ministry of Forests, the Ministry of Environment and Pacheedaht Nation, no effort was made to protect this listed species or consider the biodiversity impact of forest operations.



    Natasha Lavdovsky inspects endangered Old-growth Specklebelly lichen near Fairy Creek 


    EBM is really an economic forestry strategy that tries to bridge human cultural and economic demands and very general ecological impacts. EBM is defined by its originators as an “adaptive approach to managing human activities that seeks to ensure the coexistence of healthy, fully functioning ecosystems and human communities. The intent is to maintain those spatial and temporal characteristics of ecosystems such that component species and ecological processes can be sustained, and human well-being supported and improved.”

    Crucially, EBM relies on general broad scale information at the ecosystem scale and does not include a local site survey and analysis. Under those circumstances it is not clear what information will guide “adaptive management” to protect biodiversity since the biodiversity is not actually measured and quantified.

    That is particularly disturbing given that as indicated by Neilson, Maingon and Lavdovsky, a biological survey is not required prior to forest operations on a site; therefore it is not clear what biodiversity is protected at an ecosystem scale if there has been no detailed biodiversity survey of sites to be clearcut. The point is that work done in protected areas shows that scientists are still discovering species new to science, to the Americas and to British Columbia. Based on that, we have very little idea of what species have either yet to be discovered or have already been lost in the unprotected areas to forest management practices. Significantly, the Draft BC Biodiversity and Ecosystem Health Framework does not propose that any requirement for a biological survey of forestry operations sites be mandated.

    So this begs the question: “What biodiversity is actually being protected, if the proponents are just proceeding on a nebulous large-scale idea of general biodiversity and the actual biodiversity of an ecosystem is not first determined at all scales?”



    Endangered Marbled Murrelets in flight


    The fine logic at work is further illustrated by the second part of this paragraph: “....where an ecosystem is severely degraded or at risk: that ecosystem may need protection, restoration, or enhancement efforts.” This is tautological. It is “destroy to protect.” This says that once we have destroyed an ecosystem perhaps we should protect it or restore it. That is the Northvolt logic of environmental reversibility in the name of “resilience and sustainability.”

    Contrary to the practice of this government, the time to protect ecosystems is not when they are severely degraded. As I pointed out in the Canadian Scientists of Environmental Biology Bulletin (80:4:2023, p. 5-9), conservation biologists have known for at least ninety years what Rosalie Edge noted in 1934: “The time to protect a species is while it is still common.” In point of fact, the time to protect old-growth or intact forests and biodiversity in British Columbia is not in a nebulous future after they have been extirpated, but now. That urgency was clearly pointed out in 2020 in the Price, Holt and Daust report and The Merkel-Gorley report, both of which called for an immediate deferment or moratorium on old-growth logging. While there has been some progress, four long years on that simple first step has yet to be implemented.

    This raises the simple question: Where is the long-promised species-at-risk legislation that is essential for biodiversity protection? Unless species are protected, biodiversity cannot be protected. This document protects the economy, not biodiversity. While the broad scale and generality of EBM seems targeted mainly at the fate of large animals of cultural and economic interest, surely domestic dogs are not the only species eligible for legal considerateness? If, as in its “Statement of Intent”, the government of British Columbia “commits to the conservation and management of ecosystem health and biodiversity as an over-arching priority and will formalize this priority through legislation...” (page 1), then where is there legislation that gives species at risk and biodiversity legal consideration? “The Statement of Intent” goes on to lay out its actual priorities “to advance sustainable communities and economies.”

    The reality beyond this electoral fog is that nature is only protected from human impacts where it either is in a designated enforced protected area free from exploitation, or where it is protected by enforceable legal rights of nature. In many places around the world, particularly at the request of indigenous peoples, legal rights of places and rivers have been legislated. BC needs to follow suit.

    BC has just gone through a disastrous cycle of oil and natural gas pipeline development, which has left many streams and rivers and the salmon they are home to, impaired, some seriously so according to all reports. Transmountain and Coastal Gaslink, which were opposed by hereditary chiefs, but supported by local municipal chiefs have provided a litany of environmental violations, some irreversible. The concern now should be that as the world pivots away from fossil fuel energy, the government of BC and the mining industry are already planning for a critical mineral mining boom, at a scale unprecedented since the Gold Rush of 1858. As with Northvolt in Quebec, this will be sold to the public as climate-busting “green energy” for electric vehicles that reduce your carbon footprint. The map distributed by the Mining Association of BC (see below) shows that fourteen new mines are expected to open and be fast-tracked in the near future. In addition two existing mines are to be extended. Of these two “Red Chris,” has a notorious environmental history. All are on First Nations territories.



    Image by Mining Association of BC


    Here again it is the government and industry’s use of UNDRIP and DRIPA (Declaration on the Rights of Indigenous Peoples Act) that should be a point of concern. While there is no doubt that First Nations are entitled to economic well-being and consultation on their territories, the economic and social reality is that because there is no substantial compensation for conservation, they are compelled to enter in minority partnerships with forest and mining corporations in order to make ends meet. Unfortunately that provides forestry and mining with a social license to continue “business-as-usual.” To address problems posed by this abuse it is necessary to implement two mechanisms: 1) provide fair compensation for conservation, and 2) curtail damage to species at risk and biodiversity by providing prior legal protection in the form of enforceable and robust Species at Risk and Biodiversity Acts that would guarantee nature legal rights, and not be subject to political and ministerial tampering. Neither of these mechanisms forms part of the Draft BC Biodiversity and Ecosystem Health Framework.

    The implications of not implementing legal protection are clear in two recent examples of the handicaps and pressures that First Nations’ ecosystem management faces. The provincial model for EBM is the Great Bear Forest where BC and Canada have supported the First Nations Guardian programme to guide and support indigenous-led management. The programme is supposed to be financed by the sale of carbon offsets. However it turns out that the sale of carbon offsets has not been successful. The sale of carbon offsets faces a 50% shortfall and does not provide sustainable financing for the First Nations Guardians. As a result three contradictions arise out of this situation. First, contrary to public expectations old-growth logging continues as a necessity to pay for the guardian programme:

    “One of the criticisms of the Great Bear Rainforest carbon offset project is that old-growth logging has continued despite the protection of more forested areas. There’s less logging, but it’s the biggest, oldest trees that are now being essentially targeted, because they’re the most valuable,” said Jody Holmes, director of the Rainforest Solutions Project and one of the architects of the Great Bear agreement. Holmes says the value of carbon offsets is enough to slow second-growth logging, but not enough yet to save old-growth.” Second, if old-growth logging is needed to pay for the carbon offsets, then the trees that are supposed to store carbon are being removed. That defeats the purpose of the offset market. The offset market is not consistent with its public representations. In other words, the same programme that was created to capture carbon and protect old-growth which is a key reservoir of the region’s biodiversity and species at risk, has to be financed by the destruction of old growth, out of fiscal necessity. The soft revenue target is exactly what was supposed to be protected. Third, this is happening because the absence of legal protections for old growth and biodiversity in forestry regulations encourages biodiversity destruction. The key deterrents to this are: a) a rigorous biological determination of species present, and b) enforced legal protection of old-growth and species at risk.



    Endangered Northern Goshawk (Photo by Deborah Freeman)


    That forestry regulations encourage old-growth and biodiversity destruction is evident in the practice of “co-location”. Under the Forest Planning and Practices Regulation forest operations are required to set aside and retain at least 7% of the total area of the sum of all cutblocks harvested in a year as “Wildlife Tree Retention Areas” (WTRA). No less than 3.5% of any single cutblock must be retained as WTRA. Co-location is the practice of increasing the harvest volume and area clearcut by incorporating WTRA’s into Wildlife Habitat Areas (WHA). That means, according to the Forest Practices Board, that: “an area reserved from harvest can serve more than one purpose, and this reduces the amount of habitat that is actually reserved from harvest.” This is a form of over-cutting within a cutblock which increases the take of old-growth. It is therefore a considerable impact on biodiversity. As noted by the Forestry Practices Board, this is encouraged by the government and by the forest regulations: “Since 1996, government has encouraged licensees to colocate WTRA and areas reserved from harvest to reduce the impact on timber supply. The most current guidance regarding the practice is the 2006 Wildlife Tree Retention - Management and Guidance. The practice of colocation is not prohibited by the Forest and Range Practices Act.”

    The co-location complaint to the Forest Practices Board brought to the public eye the contradictions inherent in the Ministry of Forests’ responsibility for the management of species at risk. It is part of practices more interested in economics which contradict the Ministry of Forests’ stated mandate to protect biodiversity. These practices are, by any measure, poor stewardship of the land. That has particular relevance concerning what happens when First Nations have to enter into a business relationship that violates the social contract that underlies Delgamuukw vs British Columbia, which is the foundation for aboriginal rights and reconciliation. Delgamuukw does not just establish rights, it also sets out obligations. Aboriginal rights rest on a cultural understanding of ownership as stewardship which the Supreme Court of Canada found to be distinct from the colonial concept of ownership as “the right to destroy.” Reconciliation depends on the contractual nature of aboriginal stewardship. First Nations cannot be asked to follow different forestry regulations than those that are set out in the Forest Planning and Practices Regulation and followed by industry. Yet, that necessary business relationship sets them at odds with their obligations. It is therefore necessary to constrain industry by codifying the rights of biodiversity and species at risk.

    In this instance, the colocation occurred on Huu-ay-aht territory, and was amply reported by the CBC. In 2019, Huu-ay-aht Nation bought a 35% share of TFL 44 from Western Forest Products. This, after decades of social marginalization in their own home at last gave them a limited say on what happens on their territory, as well as much needed revenues. The problem that arises in these relationships is that the minority shareholders provide a social license for the companies to continue business as usual. To prevent these abuses which place an undue burden on First Nations, and elicit potential hostility to reconciliation which comes to be perceived as an abuse of the public trust inherent in stewardship obligations, the government has an obligation to reframe the limits of industrial activity in legislation that establishes rights of nature in a Species at Risk Act and a Biodiversity Protection Act.

    If, as the BC government claims in the Draft Biodiversity and Ecosystem Health Framework, it “commits to conservation and management of ecosystem health and biodiversity as an overarching priority...” it needs to begin by recognizing the rights of nature, with two essential pieces of legislation. To be “transformational”, as it claims to want to be, it must cease to prioritize the economy and make biodiversity the real priority, not a means to unsustainable affluence. It must do so by fulfilling its long-standing and repeatedly broken promise to deliver a robust and enforceable Species at Risk Act. Additionally it must protect the intact spaces and intact forests that are essential to species with a Biodiversity Protection Act. It should deliver on its commitments before the next election, not in the hereafter.

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