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  • Journalism: The need to reform BC forest legislation

    Yves Mayrand
    ON WEDNESDAY, October 20, 2021, the government of British Columbia tabled Bill 23 – Forests Statutes Amendment Act, 2021 (Bill 23) for first reading in the Legislative Assembly of British Columbia and issued a press release under the title: “Revamped forest policy puts environment, people first”. Bill 23 was passed in third reading by the Legislative Assembly of British Columbia on November 23, 2021.
    It is quite difficult and tedious to go through the 59 pages of legalese in Bill 23 and to understand not only what it does, but also what it actually avoids doing. The reading of this government bill is further complicated by the fact that it contains a second layer of amendments to some of the amendments proposed within the text of the same bill.
    All people who are involved in advocating fundamental reform of the forestry framework in BC should be asking themselves whether Bill 23 truly amounts to a revamped forest policy that puts environment and people first. They, as well as First Nations of British Columbia and their respective members, should also ask themselves whether Bill 23 implements British Columbia’s Declaration on the Rights of Indigenous Peoples Act (DRIP Act) in relation to forest laws in a meaningful and definitive way. Finally, but not least, all citizens of British Columbia and members of the press should ask themselves whether Bill 23 has far-reaching consequences on the exercise of their constitutional rights in relation to access to forest roads, peaceful protests in forested areas of provincial Crown land in the province, and the monitoring and reporting of resource extraction, infrastructure building and operations, and police enforcement activities in these forested areas. This analysis and comments will hopefully be useful in finding one’s answer to these questions, or at least help to have a more informed public discussion on the effects of this government bill.
    Bill 23 contains various amendments to the Forest Act, R.S.B.C. 1996, c. 157 (FA) in its Part 1, to the Forest and Range Practices Act, S.B.C. 2002, c. 69 (FRPA) in its Part 2, to the Forest Practices Code of British Columbia Act, R.S.B.C 1996, c.159 in its Part 3, to the Special Accounts Appropriation and Control Act, R.S.B.C. 1996, c. 436 in its Part 4, and various transitional provisions and consequential and related amendments to certain other acts in its Part 5. Most of the proposed amendments are however to the FRPA.
    Bill 23 does not contain proposals or amendments respecting several other acts or sections of acts in the current portfolio of the minister of Forests, Lands, Natural Resource Operations and Rural Development (FLNRORD). These unaffected acts include the Land Act, the Ministry of Forests and Range Act, the Private Managed Forest Land Act, the Riparian Areas Protection Act, the Water Protection Act, the Wildfire Act, the Wildlife Act and the Zero Net Deforestation Act. Bill 23 neither updates nor consolidates the current patchwork of BC forestry laws in the FLNRORD portfolio, nor does it bring about a comprehensive, clear, consistent and effective statutory forest policy statement in furtherance of the public interest.
     
    What Are the Proposed Amendments to Forest Statutes in Bill 23?
    The amendments to the FRPA focus essentially on the following:
    (1) A layered executive and administrative system comprising:
    forest landscape plans (FLPs) established by way of orders of the chief forester in relation to forest landscape areas (FLAs), with a view to replacing forest stewardship plans (FSPs) over the next 8 to 10 years; FLAs, their location, extent and characteristics will be determined by the chief forester on a case-by-case basis; FLPs will not apply to woodlot licences, FLPs will be for a term of 10 years, and they may be extended for one or more successive periods of 5 years also by order of the chief forester;
    forest operations plans (FOPs) by forest tenure agreement holders that are subject to approval by the minister; FOPs will be for a term of up to 5 years, may be extended for a period of up to 1 year, or for a period of up to 2 years on one or more occasions if the minister considers that government is unlikely to complete consultations with Indigenous Nations in relation to a replacement forest operation plan, with such extensions being before or even after a FOP expires; the minister may approve a FOP if satisfied that the person submitting the plan has given “sufficient consideration” to matters raised by Indigenous nations during the “engagement period” and to comments received from the public, or even when a FOP is “inconsistent” with a FLP;
    the filing of annual forest development schedules by holders of a FOP;
    site level plans (SLPs) by holders of a FOP for cutblocks or roads before timber harvesting in the cutblocks and road construction actually take place; a SLP must be “consistent” with the FOP that applies to the plan area, may apply to more than one forest operations area and is not subject to chief forester or ministerial approval;
    the conclusion of decision-making agreements with individual Indigenous governing bodies respecting the decision-making powers of the chief forester and/or the minister under a. or b. above within the FLP area; there is however no obligation or timetable for the conclusion by the chief forester or the minister of such decision-making agreements with Indigenous governing bodies;
    (2)  the use, maintenance and deactivation of forest resource roads, and government funding for road deactivation to be granted at the discretion of the minister (a more detailed review of the proposed amendments in relation to forest roads is provided in Appendix 1 of the attachment below).
    (3)  the eventual disclosure under the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 (FOIPPA) of information on administrative penalties, fines and sanctions for violations to the Acts, at the discretion of the minister;
    (4)  relief granted by the minister from obligations under the FRPA or an operational plan, a free growing stand obligation, a road deactivation obligation, or the provision of government funding to fund a free growing stand obligation or road deactivation;
    (5)  relief from obligations, or government funding, for catastrophic damage resulting from wildfire or a prescribed natural event, at the discretion of the minister; and
    (6)  a string of new executive government powers to make regulations on:
    the resolution of disputes relating to the preparation and establishment of FLPs; with respect to a forest service road or forest resource road, requirements for a person who uses a forest service road to provide notice to the minister or a prescribed person in relation to the person’s use of the forest service road, authorizing a person to close a road, restrict the use of a road, and/or remove property from a road, including but not limited to removing vehicles or animals, and/or requirements for the owner of property removed from a road to pay a person who removed the property the costs of the removal (a more detailed review of the amendments to section 155 of the FRPA is provided in Appendix 1 of the attachment below, and an unofficial consolidation of section 155 of the FRPA, as amended, is provided in Appendix 2 of the attachment below); forest practices generally; and relief and government funding for road deactivation and areas of catastrophic damage.  
    What Are the Fundamental Issues that Bill 23 Fails to Address?
    With Bill 23, government continues to avoid dealing with the following fundamental issues:
    (1) meaningful process for prior and informed input by all BC citizens and communities before executive and administrative decisions are actually made (no public hearings, no right of revision or appeal, significant expansion of executive powers with no opportunity to comment on new regulations or orders before they are issued);
    (2)  land use reform;
    (3)  forest tenure reform;
    (4)  FLNRORD reform;
    (5)  removing the primacy of FLNRORD’s statutory mandate to encourage maximum productivity of the forest and range resources, the immediate and long-term economic benefits of these resources, and a vigorous, efficient and world competitive timber processing industry in section 4 of the Ministry of Forests and Range Act, R.S.B.C. 1996, c. 300;
    (6)  actual protection of old growth from further logging and from BCTS timber sales affecting old growth areas;
    (7)  clearcutting, monoculture and chemical spraying as the prevailing BC forestry practices, as opposed to ecoforestry-based practices;
    (8) protection of watersheds from flooding, drought, soil erosion and water pollution caused by these prevailing forestry practices;
    (9)  protection of species at risk under BC law from loss of habitat caused by these prevailing forestry practices;
    (10)  raw log exports;
    (11)  allowable annual cut determinations and the sustainability of forest resources;
    (12)  actual and meaningful implementation of the United Nations Declaration on the Rights of Indigenous Peoples pursuant to the Declaration on the Rights of Indigenous Peoples Act of British Columbia, particularly with respect to free, informed and prior consent for industrial resource extraction on unceded traditional territories, and the phasing out of oppressive Forest Consultation and Revenue Sharing Agreements (FCRSAs); and
    (13)  actual carbon balance sheet metrics and obligations for the forest sector in British Columbia, and the required contribution of the forest sector to climate change mitigation, decarbonization, zero net deforestation, afforestation and reforestation.
     
    Conclusion
    It is my personal view that Bill 23:
    (1) is clearly not a revamped forest policy;
    (2) does not put the environment and the people of BC first, but rather puts private industry first;
    (3) is a bureaucratic and disingenuous scheme to significantly expand discretionary and even arbitrary forest-related decision-making without challenge, revision or appeal;
    (4) entrenches the status quo for the industrial extraction of BC forest resources by industrial forest tenure agreement holders for the current decade and beyond;
    (5) prolongs the actual circumvention of the rights and interests of Aboriginal peoples with respect to forest resources on unceded traditional territories; and
    (6) gives more and broader powers to government to impinge upon the fundamental rights of all BC citizens, First Nations and members of the press to freely circulate on forest roads located within forested provincial Crown land so as to monitor the activities and practices of:
    forest tenure agreement holders;
    other resource extraction industries;
    builders and operators of pipelines, energy transmission lines and other large infrastructures;
    builders or operators of forest roads; and
    law enforcement operations by police.
    Yves Mayrand is a retired lawyer, with a civil law degree from a Québec university. He notes that he has not practiced law in British Columbia and is not qualified to provide any legal opinion.  His analysis and comments are his alone, from his own reading of the Forest Act, the Forest and Range Practices Act and Bill 23.
    Analysis of Amendments in Bill 23 - YM 8 December 2021.pdf
    Briony Penn
    Can we undo, or fix, the 17-year-old Professional Reliance Model used to regulate BC’s resource industries?

     
    AN AUGUST ROUNDTABLE MEETING to discuss the future of BC’s public forests is held in the Cedar Room of the Legislature. It seems appropriate, as the threatened western red cedar is one of the victims of 17 years of a failed regulatory model for our public forests—at least according to most of the people seated around the table. It is also the first time in 17 years that this type of citizen engagement about the future of public forests has been convened in the Legislature.
    The person responsible for spearheading this conversation is Sonia Furstenau, Green MLA. She introduced one of the four conditions in the NDP/Green Supply and Confidence Agreement: a commitment to review the professional reliance model (PRM) of forest management in British Columbia.
     The seemingly innocuous request “to ensure the legal rights of First Nations are respected, and the public’s expectations of a strong, transparent process is met,” understates the huge significance of PRM in the lives of British Columbians. It has affected the security of our drinking water, the viability of wildlife populations, the exacerbation of forest fires, the occurrence of disasters like Mount Polley, and the failure to uphold indigenous rights.
    PRM, put in place by the provincial Liberals, is at the heart of how 95 percent of British Columbia is managed and regulated. Fifty-four million hectares are in public ownership; half of that is under forest management agreements. Most British Columbians had never heard of PRM—before the last provincial election sent everyone scurrying to look it up. But that is all changing.
    No one is better qualified for the task of defining the slippery term than the publicly-appointed reviewer, lawyer Mark Haddock, whose experience with an independent review in 2015 made him the obvious candidate to lead this huge task. PRM is “the regulatory model in which government sets the natural resource management objectives or results to be achieved, professionals hired by proponents [e.g. forest companies, mining companies] decide how those objectives or results will be met, and government checks to ensure objectives have been achieved through compliance and enforcement.” At least that’s how it is supposed to work.
    One of the attendees at the August conference, John Irving, CFO of the SIMS Group, a construction firm in Prince George—and no fan of PRM—refers to it as “the fox guarding the chicken coop.”
    Haddock’s review, which came out at the end of June, contains 121 recommendations stemming from the 4,600 submissions. Those submissions lined up along citizen vs corporate interests “with fully 88 percent [of citizens] believing that the PRM does not strike a good balance between environmental protection and resource management,” Haddock reported.
    The two roundtables convened by Furstenau this August to gauge response to Haddock’s recommendations roughly reflect the same citizen vs corporate split. The citizens opposed come from every corner of British Columbia, whether rural or urban, white or First Nation communities, resource or tourist towns, Mackenzie or Metchosin.
    Alan Martin of the BC Wildlife Federation, a 40,000-member organization of hunters, fishers and trappers, and Torrance Coste of Western Canada Wilderness Committee, both call the model “an abject failure.” Pat Crook, mayor of Mackenzie, representing a northern resource town that wouldn’t normally sing from the same song sheet as southern environmental groups, describes the current forest management in the north as “sloppy and poor. There is little regard for other users on the land, or for the other values such as water and other riparian features.”
    Irving, who routinely works on public projects under PRM, argues that the public are not getting value from the model. “The economics are not better under professional reliance.” Also invited to the roundtable were emerging alliances like the Coalition of Forestry Reform that includes 16 (so far) small communities like Clearwater, Shuswap, Clinton, Juan de Fuca, etc; and the Professional Reliance Working Group of Concerned Citizens, a coalition of the Professional Employees Association, Ecojustice, Organizing for Change, BC Wildlife Federation, BC Government Employees Union, Fraser Watershed Initiative, Evidence for Democracy, and others.
    With smoke from forest fires permeating the Cedar room at the August 21 meeting, stakeholder groups express the urgency for action. Stories are shared of corporate mismanagement under the regulatory watch, or lack thereof, of PRM. Examples include the accumulation of burn piles on cutblocks exacerbating already critical fire conditions; exceeding 400 percent of the recommended cut level in the largest Timber Supply Area; playing “stumpage bingo,” a type of fraud through stumpage in an unmonitored environment; ignoring guidelines on the movement of spruce beetle-infested wood and thereby spreading the beetle through the region; and failing to take into account the increasing effects of climate change and other cumulative impacts.
    Attendees share their frustration that district managers have no legal authority to protect local communities’ drinking water—or habitat for moose, mountain caribou and other threatened wildlife. Citizens have no ability to review roads or cutblocks, or protect culturally important sites, old-growth forests, or recreational and tourism opportunities. Union representatives attribute this to the loss of 1,700 public employees who were the boots on the ground providing the science, inventory and oversight—but were laid off since PRM came into effect.
    Furstenau had invited all stakeholders to provide feedback to guide the next steps by government, but there are two noticeable absences. Corporate and professional associations, like the Association of BC Forest Professionals and the BC Council of Forest Industries, haven’t turned up, even though it is billed as a collaborative opportunity. Instead, the Forest Professionals are expressing concern that the principle of self-regulation is “undermined” in Haddock’s recommendations. The Council of Forest Industries writes in a press release that they are disappointed with the report “drifting well beyond [Haddock’s] terms of reference to propose unjustified changes to the forestry regulatory regime unrelated to professional reliance.”
    The top two recommendations in Haddock’s report are on governance, due to be implemented by the government in the fall sitting of the legislature. The first recommendation calls for the creation of an Office of Professional Regulation and Oversight that would monitor and direct forest (and other) professionals. The second calls for the passing of legislation to make this work. There was a clear mandate from the roundtable to proceed with this as an essential and urgent first step, but the 119 other recommendations must not slip through the cracks.
    The lone logging company at the roundtable, Timberwest, offered an opening gambit to government: If it wants the companies to protect values other than timber, government has to set those objectives clearly.
    Independent forest professional Martin Watts has been calling for clear forest policy that includes management objectives with measurable performance benchmarks that can be monitored over time, along with strengthened forest legislation. “These are public forests, not private. We need to return accountability and transparency to the public sector and hold government accountable for their work,” Watts says. He has filed a lawsuit against the government on this issue, and the pending case has highlighted the critical importance of governance recommendations that enable professional organizations to regulate firms, and provide whistleblower protection and competency requirements. “If these had been in place, I probably would not have had to resort to the courts,” Watts observes. Mackenzie’s Mayor Crook went further: “We need regulations to save the resource industry in the north.” The need for modernized land use planning was a stipulation by all.
    Van Andruss from the Coalition for Forestry Reform tells Focus, “This is just the beginning and we won’t go away until drinking water is safe in every community. We are in this for the long term.” Bob Peart, representing the PR Working Group, states: “I had no idea how bad it was out there. Forest practices are terrible and we will push for every recommendation to be implemented.” Watts sees the restoration of science and funding for wildlife management as the top priority to return a level of public trust to government. Megan Scott, representing the BCGEU, is calling for the restoration of professionals in the ministries as key to public health, safety and trust. She points to the loss of 25 percent of staff in compliance and monitoring as the cause of much of the failure of the system.
    The key question for everyone attending is: How far will Furstenau and the Greens push the NDP if they don’t implement the recommendations? If the NDP cave to industry, will the Greens use the Agreement to push back? As Peart states: “Horgan has been given a silver platter by Haddock’s report. He should take it.”
    Furstenau is adamant that she is not going away either. This is the issue, as played out at Shawnigan Lake, that drove her into politics and got a review of PRM on the agenda in the first place. With the majority of BC citizens supporting reform of public land management in some form, it seems impossible for Horgan not to run with it, especially with the smoke from forest fires still lingering in our lungs.
    Briony Penn is currently working with Xenaksiala elder, Cecil Paul, Wa’xaid on Following the Good River, due out in 2019. She is also the author of (the prize-winning) The Real Thing: The Natural History of Ian McTaggart Cowan.
    Briony Penn
    Management of public forests by the forest industry isn’t in the public interest.
    Originally published in Focus Magazine, May 2017
     

    BC’s forests have become a vast patchwork of roads, clearcuts and mainly young trees. Of the latter, critics say, there has been no reliable inventory. As well, the Province has relied less on its own scientists and more on forest industry professionals to conduct management of public forests, blurring the distinction between public and private interest.
     
    FORMER GOVERNMENT FOREST SCIENTIST Andy MacKinnon’s battle cry, as he knocks on doors as a Green Party candidate in the upcomming provincial election, is: “Wake up British Columbians!” He’s one of an increasing number of scientists who are getting into politics to raise the alarm about what happens when proper government oversight is put at risk through budget cuts and political interference.
    MacKinnon believes the threat to BC’s greatest public asset—tens of millions of hectares of forests—should be one of the election’s foremost issues. “We have rapidly disposed of it for too few jobs and too little money,” MacKinnon says, “and this is all happening within our provincial model of ‘professional reliance,’ as the BC government sheds scientists of all sorts—professional foresters, biologists, engineers—and hands responsibility to professionals employed by the forest companies. Some have called this ‘the fox guarding the henhouse’ model.”
    This apparent loss of ability to properly manage BC’s forests isn’t just Green Party rhetoric. “We were hearing this from scientist after scientist,” says Katie Gibbs, one of the co-authors of an April 2017 report, Oversight at Risk: The State of Government Science in British Columbia. The report, commissioned by Evidence for Democracy, an Ottawa-based watchdog for promoting the transparent use of evidence in government decision-making, interviewed scientists across BC ministries. The aim was to assess their independence and capacity to produce and communicate reliable data. Highlighted in this review was the scientists’ response to the BC Liberals’ Orwellian term “professional reliance,” which is described in the report as “outsourcing both research oversight and decision-making activities that were formerly done by government.”
    Evidence for Democracy chose the BC situation for its first provincial review, says Gibbs, “because there had been lots of rumours that BC’s public sector was particularly dysfunctional in Canada and badly in need of an independent review.” When she and her co-author started interviewing, she says, “I couldn’t believe what I was hearing from these scientists: That monitoring was outsourced to the professionals who were contracted by the very companies that they were monitoring? Was this for real?”
    It appears to be. The 64-question survey was circulated to 1159 government scientists this past November, with most of the responses coming from the Ministry of Forests, Lands and Natural Resource Operations (FLNRO). The report provides the historical context for the survey, which includes the dramatic reduction of provincial staff-scientists starting in 2001. BC now has the smallest public sector per capita of all Canadian provinces, despite its wealth of natural resources.
    Of those government scientists still working for the Province who were allowed to participate in the survey (and not all were), around half “believe that political interference is compromising their ministry’s ability to develop laws, policies and programs based on scientific evidence.” One FLNRO scientist wrote, “The reduction in staff and financial resources has caused us to not be able to conduct the scientific work that would best support changes in policy. Instead, policy is most often developed as a result of political pressure from select interest groups, in particular forest industry stakeholders.”
    The survey didn’t include scientists who are members of the BC Government Employees Union which, according to Gibbs, denied a request to distribute the survey to their members because “it was not in line with their priorities at the time.”
     
    IN A BRISTLING REPORT delivered to the Coastal Silviculture Committee this spring, authors Anthony Britneff and Martin Watts, non-partisan forest professionals, dug deep into the structural details of how “professional reliance” without independent third-party oversight has set off a domino effect of poor policy decisions affecting everything from stumpage rates, tree planting and water quality to the health of moose and grizzly populations. Britneff describes the resulting and ongoing grab of timber as “the rape of the land.” A 40-year career forester with the provincial government, Britneff says that during his last ten years in government, “[I experienced] radical budget cuts and changes in policy that I saw as being detrimental to the forests and to the life within them.”
     
                 
          Katie Gibbs                            Anthony Britneff                    Diane Nicholls                     Andy MacKinnon
     
    The biggest problem, according to Britneff, is the corrupt data and unreliable models for determining the inventory of the forests—known as the “Timber Supply Review”—that’s used by the Chief Forester to determine how much forest can be cut each year, the “Annual Allowable Cut” (AAC).
    “If this information is wrong, which it is,” Britneff says, “then we put whole communities at risk. Job losses, mill closures, community hardships, very little stumpage [royalties] flowing back to the community, have all resulted because there is no reliable inventory or analysis to determine [appropriate] rates of cut.”
    One of the clearest indicators that there is a problem is the discrepancy between the allocation of timber in the AAC and what is actually cut. As Britneff puts it, “Industry can’t even find the wood allocated to them for the cut because the Timber Supply Review is an economic fiction, supported and informed by unvalidated computer models. Companies are pushing further and further into previously protected areas like the wildlife habitat areas and right up to the edge of provincial parks. They are making no provisions for climate change, and have used beetle kill to escalate the cut. To add insult to injury they are giving it away at 25 cents for a telephone pole.”
    In response to Britneff’s allegations, Chief Forester Diane Nicholls told Focus: “The people of BC can have complete confidence in Allowable Annual Cut (AAC) determinations as they are based on robust complex analysis of many factors that pertain to timber supply and other forest values. The process that supports my AAC determinations is open to public and First Nations for review and comment. All documents generated, including a detailed description of how I arrived at my decision, are available online.”
    Nicholls also noted, “The uncertainties in the analysis and data are managed through sensitivity analyses that allow me to assess the impact of these uncertainties on my decision. We continuously improve and update our data and analysis based on field audits and assessments and new or additional information.”
    But Britneff takes issue with Nicholls’ defence. He notes that “uncertainty” is a technical term used in the international accounting world when measurements “are based on estimates, judgments, and models rather than on exact depictions.” The absence of independent auditors to verify the data means there is no sound basis upon which to trust Nicholls’ numbers. Britneff and Watts also believe that the sensitivity analyses to which Nicholls refers are incorrectly applied.
    Remarkably, there is no legal requirement for Nicholls to conduct an actual inventory of provincial forests. That used to be a statutory responsibility of the chief forester, but changes to the Forest Act in 2002 transferred the inventory function to what was then called the Ministry of Sustainable Resource Management. When that ministry was disbanded, inventory staff returned to the Ministry of Forests and Range but the legal requirement to conduct inventories didn’t. It simply disappeared.
    Both Oversight at Risk and Britneff point to problems beyond the uncertain timber supply, including insufficient capacity and budget within the Ministry to do an inventory. There is also no legal requirement for foresters working outside of government to maintain their data and records.
    There is also evidence that a political agenda at least partially determines the Annual Allowable Cut. This is perhaps best illustrated by an historic directive issued in 2006 by then Minister of Forests Rich Coleman to “maintain and enhance” the timber supply. This directive is still in force and, in effect, means that the AAC would never go down. This approach has left towns like Merritt with no timber and a long wait until the trees grow back.
    As Britneff notes: “It isn’t AAC that’s ‘maintained and enhanced,’ it is forests!” Foresters on the ground are the only ones who can determine whether what grows—or doesn’t grow—lines up with what the models predict. As Britneff argues, “When one has a centralized high priesthood of timber supply analysts, inventory gatekeepers and ivory-tower computer modellers, most of whom are out of touch with what the forestry staff on the ground are observing, then, by convenient omission, timber supply estimates and AAC determinations become economic fiction and AACs are maintained fraudulently high to align with Coleman’s directive—to keep raising the cut.”
    While Gibbs and her co-authors don’t use the word “fraud” to describe what they found, they do note, “The results from our survey show that around half (49 percent) of government scientists surveyed across ministries believe that political interference is compromising their ministry’s ability to develop laws, policies and programs based on scientific evidence.”
    As Gibbs states, “This ‘professional reliance’ system is a huge public interest issue but it hasn’t received the attention it should because it is a difficult thing to communicate precisely. It sounds all fine, and people think that qualified professionals are looking after their interests.”
    But the growing record of scrutiny of professional reliance—by bodies including the Centre for Public Policy Alternatives, the Environmental Law Centre, and the Auditor General in his scathing 2016 report—suggests otherwise. Professionals aren’t able to look after the public’s interests when they have no legal requirement to do so; they are employed by the companies they are expected to monitor; and their professional organizations are not at arm’s length from the forest companies that employ them. Last year, only one disciplinary case was brought to the Association of BC Forest Professionals—and it was thrown out. The year before, five cases were brought forward; three were thrown out and two are still in play.
    The findings of Oversight at Risk suggest that the professional reliance experiment has not only failed but should be scrutinized for fraud. Industry and government remain complicit and unaccountable to the public. Fifty-seven percent of BC government scientists are concerned that government’s reliance on external professionals compromises the ability of their Ministry to use the best evidence or information in decision-making. One forester wrote: “Decisions and objectives are fettered to the industry interests due to government/industry working groups. The industry-sympathetic administration does not always permit us to assess evidence, and even when we have evidence it does not easily accommodate providing direction to industry or changes in policy that may negatively impact (even in a small way) existing mainstream industry and their interests.” Another scientist working in FLNRO reported, “government rarely or perhaps never suppresses scientific findings. They do, however, by way of lack of funding, suppress research and data collection which are necessary for proper science based management.”
    Cases like the Mount Polley disaster, the green-lighting of the Site C project through exemptions of the Wildlife Act, and Elk River selenium risks are cited in the report as the most egregious examples of the failure of professional reliance, so the problem extends well beyond forest management.
    On the issue of being free to communicate their concerns to media, only 3 percent of scientists stated they could do so without approval from their bosses; 32 percent said that they were not able to communicate at all with media; 42 percent had to seek approval; the rest didn’t know. During my own 16 years of writing on the subject, no permissions have ever been granted to speak to a government scientist without public relations approval, even for data as seemingly apolitical as the population of black bears.

    COURT CHALLENGES—at both federal and provincial levels—are tackling the issue of scientific muzzling. A recent court case initiated by Martin Watts against the Province of BC is over “blacklisting” professional foresters for raising concerns with the Ministry of Forests, Lands and Natural Resource Operations over the quality of inventory data, and being excluded from contract opportunities and given only limited access to information. On May 11, a judge in the Supreme Court of BC will decide if the civil claim will proceed. As Britneff states: “Couple this apparent negligence with the fact that the chief forester is operating without a statutory mandate to maintain an inventory of the lands of the province, and one has a pernicious boondoggle of proportions sufficient in seriousness to cut rural jobs, close mills and harm forest-dependent communities, which is exactly what has been happening over the last 15 years.”
    Another insider scientist, who spoke to Focus on condition of anonymity due to fear of being fired or blacklisted, makes even stronger allegations: “Industry and government are inextricably bound, providing the conditions and potential for monkey business at every level. This failure has gone unseen for 16 years by bullying the civil servants who found problems with this model. Untouchable teams moved, fired and ignored people who did not support this model. Some districts simply suspended all staff meetings for years to hide this fact. One need only look as far as the way that volumes used for cutting permits are calculated. The Province uses outdated tables, ‘Loss Factors,’ which date back to the sixties. The more precise ‘Call Grade Net Factor’ volumes are also collected, but not used to assess stumpage volumes because business prefers lower taxes. This speaks to the influence that business has over government policy.”

    WITH LITTLE ABILITY TO GET EVIDENCE, no jurisdictional oversight to even enforce against fraudulent activity, and little confidence that the current government wants to change the status quo, some scientists like Andy MacKinnon are turning to the political sphere.
    Yet, strangely, the management of public lands (94 percent of this province) is not a big election issue. Raw log exports have grabbed more attention, but their revenue impacts are small compared to the scale of the economic problems created by the diminishment of proper government oversight.
    NDP leader John Horgan, who comes from a forestry background on the island, released his party’s forestry platform in April. Aimed more at top-of-mind issues like curbing log exports and job creation, it doesn’t mention reforming the professional reliance system, raising stumpage, or bringing back the scientific research branch—not surprising because it is hard policy to explain.
    MacKinnon admits the communications challenge of this issue. “What I have found works, though, is that if you tell someone that our vast provincial forests and wildlife are being looked after by just a handful of foresters who work for the companies that cut them down, they get that there is a problem.”
    Katie Gibbs, a scientist herself, feels a better job needs to be done in connecting the dots for people. “Public science affects all of us—from clean drinking water to making sure bridges and roads are safe—it’s in all of our best interest to ensure that government science is independent, robust and openly communicated.”
     
    Briony Penn’s most recent book, The Real Thing: The Natural History of Ian McTaggart Cowan, won the Roderick Haig-Brown Regional Prize and the inaugural Mack Laing Literary Prize.
    Briony Penn
    Tourism operators on the coast have been forced to watchdog forestry operations since government introduced self-monitoring.
    Originally published in the September 2016 edition of Focus Magazine.
     
    JOHNSTONE STRAIT, around Robson Bight, is one of the most scenic and busy sections of the Inside Passage for Vancouver Island tourism in general, and for whale watching in particular. Across the water from the Bight, in Boat Bay on West Cracroft Island, is Spirit of the West Adventures’ base camp. There owner Breanne Quesnel is juggling her busiest time of year for kayak guiding, looking after her two under-two-year-olds, and fielding my questions on an issue she has been watchdogging for the last five years. Quesnel has been monitoring harvesting operations by TimberWest, the company that holds the Tree Farm Licence in the area.
    It all started in June of 2011 when she found cutblock boundary marker ribbons near her licenced camp. Since then she has been researching, meeting with government and TimberWest, and offering recommendations on how best to conserve local viewscapes.
    Managing viewscapes is a legal requirement of BC’s forest practices that has been around for a long time. WAC Bennett popularized the concept because he knew that visitors to Beautiful BC actually came to see trees—not stumps. Since those days, it has become a more exacting science than just keeping a strip of trees between the highway and the clearcut—and an increasingly contentious issue. Quesnel and others involved in tourism in the area know that clients choose other destinations when they start seeing too many big, ugly clear-cuts.
    Focus spoke with Quesnel back in 2013 when she went public about concerns not being addressed by TimberWest or the district manager of the North Island-Central Coast Forest District—concerns also voiced by the Sea Kayak Guide Alliance of BC, the Wilderness Tourism Association, the North Island Marine Mammal Association and others.
    Three long years later, triggered by TimberWest’s submission of a cutting permit application, Quesnel filed a complaint with the Forest Practices Board (FPB). She argued the concessions to visual quality were inadequate, the process flawed, and government wasn’t acting in a timely manner. The FPB is an independent board that investigates complaints with forest practices and makes recommendations to the regulator, the Ministry of Forest, Lands and Natural Resource Operations, and companies holding licences to log Crown land.
    Quesnel’s chief frustration lay in the lack of opportunity for the public to review and comment, specifically on cutblock layouts. The mechanism by which a company can legally get away with no input from the public is by requesting an “extension” or renewal of an existing Forest Stewardship Plan (in this case a plan developed more than a decade ago). There is no legal requirement for public input on an extension.
    A Forest Stewardship Plan is a regional plan that describes how the area will be managed for a variety of values. It is the only legally-binding planning document under the Forest and Range Practices Act (FRPA). Quesnel describes it as “so vague, it allows forestry companies the ability to push through cuts just about anywhere once it is approved or extended.” The public has no recourse except a cumbersome legal appeal process in which they need to prove that stopping the logging plans would not unduly impact the supply of timber on the coast or the economics of the logging company, and that the public benefits outweigh any constraints or impacts on the licencee. As Quesnel asks, “How does a member of the public prove these tests?”
    The answer is they aren’t supposed to. The onus is on the professionals to weigh up the varying priorities of serving the interests of the company, the government and the public.
    This is called “professional reliance” and it finds its way into much of our legislation these days. The Province recently rescinded it for the real estate industry, but it’s alive and kicking in the Forest Range and Practices Act. In theory, it allows government to cut costs and “get out of the way” of business.
    In his previous employment with UVic Environmental Law Centre, lawyer Mark Haddock, now a lawyer for the Forest Practices Board, wrote in a 2015 paper: “Just over a decade ago, the British Columbia government embarked on a significant regulatory experiment. It adopted an ambitious goal of cutting or deregulating one-third of the regulations, coupled with an equivalent reduction in the size of the public service. Natural resource management and environmental protection laws and agencies were a prime focus for this initiative as government believed resource companies were significantly over-regulated.”
    To assure the public that standards wouldn’t diminish, the responsibility of managing our forests for aspects such as wildlife, tourism and water—as well as timber—was to be put in the hands of the professionals instead of government. Professional reliance is preferred by business for its flexibility and lack of regulatory controls, but it has been characterized by many as the fox guarding the chicken coop.
    Government’s role was converted to reviewing the “results.” Results are what you see once the harvesting is done; they provide evidence of whether the professionals did their job—or not.
    Under this deregulated system, the responses of the FPB to Quesnel’s concerns were predictable: 1) that there was little more that the district manager could do other than encourage her to continue to discuss concerns with TimberWest and, 2) that TimberWest did voluntarily reduce some of the visual impact of the cutblocks to accommodate non-forestry business interests.
    Is Quesnel assured that the experiment is working? As she points out, “Well you can’t stand the trees back up!”
    The Ministry’s own study on the effectiveness of managing visual quality objectives (VQOs) found they were only achieved, across the province, an average of 61 percent of the time. The most stringent category of visual quality (which represents 13 percent of scenic areas) was effective less than half the time.
    After five long years of gathering a large body of evidence in a field she’s worked hard to learn, Quesnel now wonders: “Why do members of the public have to do all of this? And where are all the foresters on this issue? I can’t even dig a pit toilet here without getting an archaeological impact assessment and they are blasting a road behind us?”
    Mike Larock of the Association of BC Forest Professionals supports the professional reliance system, pointing to 90 percent compliance in terms of government monitoring. He sees the Association’s key priority as educational, working closely with government advisory and appeal boards, watchdogs and members of the public. He notes that every allegation raised by any of these groups is investigated. Around 10 complaints are reviewed annually. He says there have been some suspensions of licences (unconfirmed at time of press). In the online case digests, it is evident that in the majority of cases offending firms didn’t end up with fines. And the number of citations in 2014, listed in the Association’s annual report, was zero.
    A minimalist approach to penalties also appears to be the policy of the Ministry. With a results-based system, if a district manager is alerted that legislated standards might not have been met, he or she informs the Compliance and Enforcement (C & E) branch who monitor “the results.”
    West Coast Environmental Law did an analysis of the Ministry’s C & E branch, called Few Inspections—Low Consequences. Since 1999/2000 the number of inspections has dropped from 34,046 to 7,976. Despite so few inspections, inspectors are finding the same number of non-compliance actions. However, the amount of fines collected has plummeted from $561,511 to $72,585.
    Tim Ryan, chair of the Forest Practices Board, has concerns similar to those of Quesnel’s. “I have heard many of these issues myself and have seen the efforts [members of the public] make to gather the information, and I agree, they shouldn’t be in that position.” The FPB has reviewed numerous complaints about impacted viewscapes. In a 2014 complaint brought forward by the Council of Haida Nations, for instance, the FPB found that the results on the ground for visual quality were not in compliance and, more importantly, that the Ministry’s C & E branch itself “did not provide an adequate rationale or a reasoned decision for stop- ping the investigation, nor was the pace of the investigation satisfactory. Government’s enforcement of Forest Range and Practices Act was not appropriate.”
    To that end, the FPB has made various recommendations over the years to the Ministry to improve the process. Chief amongst them was stopping the practice of approving “extensions” of Forest Stewardship Plans that preclude any public review, and increasing the discretionary powers of district managers so that if they see the runaway train coming they can do something about it. As the FPB wrote in a December 2015 report, “In recent years, the Forest Practices Board has seen situations arise where forestry development was putting local environmental and community values at risk, yet district managers could do little to affect the development and protect the public interest.” The FPB has also prepared reports on contentious issues like visual quality, endangered ecosystems and professional reliance. It cites the Haida Gwaii visual quality complaint report, and the Mount Polley mine disaster report as examples that “point to the need for a review of all parties’ roles and responsibilities in supporting professional reliance, including effective- ness and monitoring.”
    Key to effectiveness is a genuine penalty for the non-compliers. In one of the first cases of its kind for visual quality, the Ministry’s C & E branch successfully brought a non- compliance case against Interfor. It concerns the visual quality objectives of Stuart Island, one of the Discovery Islands, another high- profile tourism area south of Johnstone Strait that Focus reported on in 2013, alerted by another tireless tourism operator, Ralph Keller of Coast Mountain Expeditions. Keller’s experience was similar to Quesnel’s with no real opportunity for input and huge investments of his limited time. After investigation of the complaint by the FPB, the case was heard and it was found that “Interfor had erred on the side of risk instead of on the side of caution” and that the company “had failed to take all reasonable care to avoid a contravention.” A penalty of $20,000 was levied.
    When Interfor appealed to the Forest Appeals Commission, the FPB provided its evidence and Keller and others were invited as witnesses. Interfor’s appeal was turned down this summer. (Legal costs assuredly exceed the $20,000 penalty.)
    One of the findings in the Interfor case was that a forester involved failed to do a “proper peer review because of his earlier involvement with Interfor in the design of the cutblock” and was found not to be independent.
    Independence lies at the heart of concern over professional reliance. How can foresters whose work is controlled by so few companies be independent of them? Haddock put it this way in his report: “In some cases the same individual can be the evaluator, planner, approving professional and the supplier of goods and services. In many cases that professional may be an employee or contractor of the proponent, with duties of loyalty that may conflict with optimal environmental outcomes.”
    And then there’s the matter of discipline and penalties. The Association of BC Forest Professionals’ Mike Larock could not comment on any disciplinary action for the foresters named. He said they would be looking at the case and that they take objectivity very seriously under their professional legislation, the Foresters Act.
    The FPB’s Tim Ryan feels the economics make it challenging to ensure consistent stan- dards and practices across a big landscape where there are lots of complicated technical problems. The Association of BC Forest Professionals operates on a budget of $2.3 million to cover the education, monitoring and disciplining of 5000 members over the entire province. Larock admits, “We are stretched pretty thin.” Ryan’s own agency has not had any increase in funding for 10 years and operates on $3.8 million. Is this enough to provide independent education, monitoring, investigation and enforcement for a profession overseeing an industry generating $15.7 billion dollars in sales?
    Keller feels the Interfor/Stuart Island case may make a positive difference. Interfor had already had a case brought against them earlier for another infraction in Pryce Channel and so a second strike against them could be more damaging. In 2015, the Forest Practices Board made a recommendation that the cases of non-compliance should be made more public on an easily accessible website to act as a deterrent. Keller couldn’t agree more. “The professional reliance around how well the companies do is hollow since monitoring and enforcement is underfunded, understaffed and under-publicized. Most members of public are so cynical they don’t even bother writing complaints any more,” he said.
    The Association of BC Forest Professionals’ Mike Larock says the decision on Interfor’s performance on Stuart Island was welcome and “will shape the management of visual quality objectives.”
    When Focus asked Interfor about its next steps in light of the case, its Director of Economic Partnerships & Sustainability Karen Brandt responded: “Before the Tribunal’s decision, Interfor and tourism groups had already begun to work together to improve communications and collaboration. Interfor is now a member of the Discovery Island Tourism-Forestry Group, shared its 10-year harvesting plans with tourism operators, hosted open houses and developed new operating procedures and training for staff to guide visual management. The recent Tribunal decision provides further learnings to improve independent peer reviews.”
    Quesnel does feel things might be improving, citing the forester from Interfor for finally bringing maps to the table for their Tourism Forestry Group. Still, she cautions, “While all of this is going on, logging is actively taking place. None of the companies have agreed to halt plans until agreements can be reached with the tourism sector.”
    And what of the Ministry of Forest, Lands and Natural Resource Operations? Is it listening to the Forest Practices Board? In a letter addressed to its chair, Deputy Minister Tim Sheldan wrote, “Now that FRPA has been in effect for over a decade it is appropriate to acknowledge and address areas of learning and longstanding concerns. And begin integrating them into our administration and implementation of the Act and framework.” The Forest Practices Board chair Ryan believes the government is beginning to take a more “aggressive” stand on the over 270 Forest Stewardship Plans up for renewal. “We will see some improvements,” he predicts. Sheldan stated that “province-wide expectations are also being set for the submission of new plans that will be subject to full review and comment by the public and stakeholders. Achieving a new standard will take time and collaboration.”
    Quesnel, Keller and many others frustrated with the system will be watching with sharp eyes as to whether genuine change is afoot or simply more delaying tactics. Meanwhile the two tourist operators are confident that the business case for logging is losing out to tourism values in their regions. Quesnel calculates “our one business generated more income in less than four years than [forestry generated] from the entire cut—which can only be done every 60 years or so.”
    Briony Penn is the author of the new book, The Real Thing: The Natural History of Ian McTaggart Cowan. She recommends Daniel Pierce’s Heartwood videos on forestry issues on the Island.
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