The BC Court of Appeal has reversed earlier decisions and cleared the way for a civil action brought by professional forester Martin Watts against the Provincial government.
Martin Watts alleges that his criticism of ministry of forests’ growth and yield models and data resulted in ministry employees limiting his access to ministry contracts and data necessary to conduct his forestry consultation business. (Photo by David Broadland)
WITH FOREST FIRES, stifling heat, floods and landslides focussing public attention on BC’s forestry practices, consultant Martin Watts is hoping his lawsuit will push the province to ensure vital forestry decisions, such as establishing cut rates, are based on accurate data and scientific information.
That has not been the case for at least the previous two decades, according to Watts, who says that, during his years of undertaking contracts for the ministry of forests, he found inaccurate data and faulty modelling and monitoring methods were being used to estimate forest growth rates and that faulty information was informing the rate of cut in provincial forests.
However, efforts to point out gaping holes and inaccuracies in data and models used by the Forest Analysis and Inventory Branch did not go down well in the ministry and eventually cost him his livelihood as his company, FORCOMP Forestry Consulting Ltd, was then cut out of contracts, he said.
It has been five long and expensive years since Watts launched a civil suit against the Province and four ministry of forests employees and, after facing appeals, delays and setbacks—all of which came on the heels of more than a decade of presenting his case to various government boards—the BC Court of Appeal has cleared the road for the case to proceed.
A ruling by three judges, with written reasons by Justice Peter Voith, overturns a previous ruling that struck the claims and were described by a judge as “unnecessary, frivolous and an abuse of process.” The new judgement will allow claims of misfeasance in public office, conspiracy and breach of the Charter to proceed, but not Watts’ claim of blacklisting.
Before the case is heard, Watts, who is using his retirement savings to fund the case, must deposit $20,000, as security for costs, within the next two months.
The province has 20 days to deliver their response to the civil claim, said lawyer Peter Waldman, who is acting for Watts.
“But, it has taken over five years and they haven’t delivered their defense yet,” he said.
“What we are out to prove is that they didn’t like being criticized and so they did all kinds of things (to Watts) and what we are putting forward is that’s not how government officials are supposed to behave,” Waldman said.
Governments, whether in the form of politicians or bureaucrats, are not supposed to use their positions to attack people—a concept that is a cornerstone of democratic government, Waldman said.
Watts’ complaints started under the Liberal government and, since then, there have been two NDP governments, but nothing has changed, Waldman pointed out.
“All three of these versions of BC provincial governments are perfectly ready to try and stop Martin Watts from getting a remedy,” and that begs the question of whether politicians or bureaucrats are in charge, he said.
A ministry of forests spokesman said that, as the issue is being appealed “we cannot speak to an ongoing court proceeding.”
Prior to 2003, Watts, who specializes in tree growth and yield, was given frequent contracts by the Forest Analysis and Inventory Branch, but, after pointing out that information being used as the basis for setting BC’s annual allowable cut was corrupted, monitoring programs were not working and unvalidated computer models were being used in the timber supply review process, the work disappeared.
Government contracts were written in ways that excluded his company and he was blocked from accessing data that was essential for private sector contracts.
Statements to the court say problems between Watts and FAIB started after the Gordon Campbell Liberal government cut the ministry’s budget and staff in 2002.
During the previous decade, FORCOMP’s provincial contracts earned the company about $132,000 a year, but, by 2003, the contracts disappeared and Watts was unable to access provincial data he needed to bid on private sector consulting contracts.
The four people named in the lawsuit are Albert Nussbaum, Jon Vivian, Patrick Martin and Sam Otukol, two of whom still work for the ministry. In statements to the court, Watts alleges they conspired to exclude his company from obtaining contracts.
For example, FORCOMP was excluded from the 2011-2014 qualified contractors list, even though the company had been included on previous lists.
As Watts’ company foundered, he began a battle to try and regain his career and to bring attention to problems which he believes inevitably led to over-harvesting.
“The bad modelling is over-predicting the growth of the forest. There’s a lot of uncertainty and they don’t consider that uncertainty,” said Watts, adding that, especially as the province is facing extreme weather from climate change, it is essential that basic information is accurate.
The graph above is from the 2004 Ministry of Forests “State of the Forests” report signed by then BC Chief Forester Jim Snetsinger (the “Actual cut in 2020” reference has been added by Evergreen Alliance). The ministry’s prediction of future timber supply, which helped to determine the allowable annual cut, was based on data from computer models created by the Forest Analysis and Inventory Branch (FAIB). This prediction was made at a time when the ministry expected the impact of the Mountain Pine Beetle to be greater than it turned out to be. Even so, the ministry greatly over-estimated future timber supply. Martin Watts alleges that after he pointed out errors in the data used by the models, and problems with the models themselves, employees of FAIB conspired to prevent him from receiving further contracts or access to the data.
Some of the recent floods and landslides in BC have been linked to road-building and clearcuts on steep slopes, while researchers have said that removing the forest canopy and cutting old-growth forests results in increased local temperatures.
Climate change means that uncertainties about how a managed forest will grow, are magnified, Watts said. “When you have a lot of uncertainty you take a precautionary approach and they are not doing that and it’s leading to over-harvesting,” he said.
The culture within the Forest Analysis and Inventory Branch means they are continuing to work in the same way, so problems identified almost two decades ago still exist today, Watts said.
“The information is not good enough, but they keep trying to use it and they use it incorrectly,” said Watts.
“The worst kind of sampling you can have is what you can afford to do. What you end up with is not enough information, but you are obligated to try and use it because you have spent the money,” he said.
There are also questions about the timeframe used to determine the annual allowable cut in each of the province’s 37 timber supply areas and 34 tree farm licences, Watts said.
Under the Forest Act the chief forester must determine the cut at least every 10 years.
“It was supposed to be 5 years and then they moved it to 10 and, a lot of times, the chief forester can defer it,” Watts said.
But, as the last year has proved, many changes can happen in 10 years and, by the time the cut is reviewed, it might be too late to correct any errors.
Former professional forester Anthony Britneff, who worked in the BC Forest Service for 40 years, agrees that there is a reluctance within the ministry to change methods or to accept criticism from outsiders.
“We are talking about arrogance,” said Britneff, who has supported Watts in his battle to restore his career.
“The concern here is not so much about inaccuracy—there will always be inaccuracy. The problem is not acknowledging inaccuracy and in not taking a more precautionary approach,” he said.
Retired forester Fred Marshall, a woodlot owner and forestry consultant, believes faulty data is at the root of over-cutting in some regions of the province, and, despite numerous letters sent to provincial staff and politicians, he has not received satisfactory answers.
“I’ve written many times to (Chief Forester) Diane Nicholls and her staff and have also talked to them and have always received answers that proclaim that everything they do associated with the timber supply review process is perfectly correct. They are dogmatically adamant in this belief,” said Marshall, who has asked for a formal review of the process.
“Such a review is desperately needed and certainly in the best interests of the people of BC,” he said.
Jens Wieting, Sierra Club BC senior forest and climate campaigner, said the myopic view taken by the Province is that forests can be clearcut and they will grow back like a corn field.
Provincial modelling does not take into account the complexity of the forest ecosystem and the intricate web of life supported by intact forests, Wieting said.
“Even before climate change became a major issue, there were many surprises for foresters as forests would not grow back as expected,” he said.
“We will never have the same volume or quality of timber again in this province, based on the fact that we have continued with this industrial model, replacing volume-rich old growth with young forests and then clearcutting the younger second growth in short rotation,” he said.
Now, on top of over-cutting, there is a climate crisis that is threatening not only forestry and entire ecosystems, but the entire economy, Wieting said.
Meanwhile, Watts is relieved his claims and concerns will finally be aired in court, although no date has yet been set.
Although he launched the case as a matter of principle, it now also has a financial imperative as work as a forestry consultant continues to be scarce and the legal fight is extremely expensive, Watts said.
“I ended up in the courts as a kind of last resort… This is good news. It’s great actually, but it is frustrating that I had to appeal it twice to get here,” he said.
Judith Lavoie is a freelance journalist who enjoys exploring stories about the natural world.