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  • Portal: The need to reform BC forest legislation

    Anthony Britneff
    It’s time to reverse the regulatory capture of the forests ministry by the forest industry.
     

    A Canadian Biomass Magazine article on the bioenergy industry promoting its priorities featured this photograph of a wood pellet trade show. BC’s Chief Forester Diane Nicholls is third from right. (Photograph by Fiona Pun)
     
    WHEN I JOINED THE BC FOREST SERVICE in the late 1960s and later as a forester, I was struck by the obvious leadership from the top that permeated throughout the organization to its lowest rungs. The organization was defined by a strong culture of unity of purpose and belonging (1). In those days, the chief forester had direct line authority over operations from Victoria through five Forest Regions to the Ranger Stations. The chief forester had a degree in forestry, had been initiated into the Forest Service with the same basic training as all other foresters, and had risen to the top through merit as a career public servant.
    Since the 1950s, the common training at initiation into the service had consisted of a compulsory first two years working in forest inventory: the collection of forest information; the mapping of provincial forests; the management of forest data; and the reporting of forest descriptive statistics. So, it was inevitable that any chief forester understood the critical importance of forest inventory in its application to forest management, to forest planning and especially to the setting of an allowable annual cut (AAC).
    That all began to change in 1978 with the introduction of a new Forest Act and a major reorganization of the Ministry of Forests, which centralized forest administration. For example, over 103 Ranger Stations and Field Offices were replaced by 36 District Offices. Eighty-one management areas (known as Public Sustained Yield Units) were merged into 36 management areas (known as Timber Supply Areas) largely to rationalize over-cutting.
    1978 was the year in which the forest industry began the regulatory capture of the forests ministry, the organization trusted with the management of the public’s provincial forests. By “regulatory capture,” I mean the co-option of a public regulator for the benefit of private companies. Mike Apsey, who had previously worked for the Council of Forest Industries, became the deputy minister.
    During his tenure as deputy minister, Apsey instituted a policy dubbed as “sympathetic administration” toward the forest industry. Previously, the role of the Forest Service had been strictly to regulate the industry. Not from then on.
    Apsey also initiated the Ministry of Forests and Range Act, which is still in force today. That legislation clearly spells out five purposes and functions of the forests ministry, which are, for the most part, timber-centric and industry-focused. In this Act Apsey introduced a new notion of “multiple use” of forests. 
    In retrospect, one purpose—“Encourage a vigorous, efficient and world competitive timber processing industry and ranching sector in British Columbia”—coupled with the policy of “sympathetic administration”, set the course for eventual regulatory capture of the forests ministry by the industry.
    As matters stand today, the forests ministry not only fails in this statutory charge but gives superordinate emphasis to it over the other four purposes. This is accomplished through massive subsidies to the forest industry—to the detriment of biodiversity, soil, water and carbon. Today these subsidies have rendered futile the fifth purpose of the ministry, which is to “assert the financial interest of the government in its forest and range resources in a systematic and equitable manner”. BC’s forest sector is now a sink for subsidies and a source for carbon.
    In 1984, Apsey left the BC Forest Service and returned to the Council of Forest Industries as its president and chief executive officer. Throughout the remaining years of the 1980s BC’s public service underwent significant privatization and contracting out of its activities. The forests ministry was a prime target for both, an example being the privatization of the seedling nurseries.
    In 1992, Mike Harcourt was elected premier and the direction set by Apsey and successive Social Credit governments shifted. Larry Pedersen rose to the position of chief forester in 1994 based on merit as a career public servant with the BC Forest Service. He was the last chief forester whose position needed mastery of forest inventory, growth-and-yield modelling and the process of AAC determination.
    The Forest Practices Code of British Columbia Act (the Code) was enacted in 1995 under the progressive leadership of Harcourt’s government. Andrew Petter was the minister responsible for the Code and a province-wide program of land-use planning. The government initiated the Code in large part at the behest of the forest industry to calm international export markets for BC’s forest products, which had experienced boycotts because of the province’s poor forest practices. BC had become known as the “Brazil of the North.” The drafting of the Code infused enthusiasm in ministry staff and restored faith in the BC Forest Service as a regulatory body. Stakeholders and the public were engaged in land-use planning and in reviewing draft legislation.
    After his election as premier in 2001, Gordon Campbell ransacked the public service, including the BC Forest Service. Prior to 2002, the office of the chief forester was also the main policy arm of the forests ministry. Much forest policy was based in science thanks to a long-established, internationally renowned research branch reporting to the chief forester. The chief forester’s position was also responsible for the inventory, silviculture, tree-seed improvement and forest health programs as well as for land-use planning, timber supply analysis and AAC determinations. But in 2002, Campbell’s government began to dismantle the BC Forest Service including the chief forester’s division.
    Campbell’s purge scrapped detailed annual and periodic reporting; eliminated the research branch (2); removed the inventory (3) and forest health (4) programs from the forests ministry; and reduced by 94 per cent the silviculture budget (5) for the reforestation of forests destroyed by wildfire and by the mountain pine beetle. The chief forester’s only remaining statutory responsibility was for AAC determinations.
    Campbell enabled the complete regulatory capture of the forests ministry by giving industry a prominent role in the writing of forest legislation. Just a few metres down the hall from my office, lawyers from the Council of Forest Industries were actively engaged in the drafting of the Forest and Range Practices Act to replace the Code. I mean drafting, not reviewing. This was unheard of in government and possibly illegal.
    The Forest and Range Practices Act was assented to in late 2002 and most of the Code was rescinded in 2004. This meant that the only remaining standards for forest practices were tree-seed standards and stocking standards. Other operating standards were embodied in Government Action Regulations (GAR) and are not legally binding. The Forest and Range Practices Act pays lip service to what are described as ten “non-timber resource values” such as biodiversity, soil and water. Timber is the eleventh value. Objectives for some of these 11 resource values are found in the Forest Planning and Practices Regulation, most of which are meaningless without benchmarks against which to measure results. The industry’s influence can be seen in the wording in that regulation of the extent to which the non-timber values could be protected. Such protection could not “unduly reduce the supply of timber,”(6) which meant in policy not more than 6 per cent for a management unit, an arbitrary and meaningless level of protection. From now on, timber was king in law; land-use plans were allowed to become outdated; and the forests ministry only needed to pretend it was managing public forests for multiple uses and for ecosystem and cultural values other than timber.
    This Act, its attendant regulations and an ingenious policy of “professional reliance” were the passport to industry self-regulation, and they remain so today. Professional reliance replaced government regulation with professional opinion. Essentially, the Campbell government devolved regulatory responsibility to industry, which abnegated its responsibility to professional reliance. The BC Forest Service had become an extension of the forest industry. In 2003, with the morphing of Mike Apsey’s small business program into BC Timber Sales—a logging giant responsible for 20 per cent of the allowable annual cut—government became industry.
    In his political allegory, Animal Farm,  George Orwell concluded: “The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.” (7) So it is now with the industry and the ministry: the “mindustry.” The forest industry operates through the forests ministry and the ministry effects its policy through the industry.
    Since the forest industry’s coup d’état du ministère, the Council of Forest Industries even approves senior management positions in the ministry of forests. The critical qualification appears to be the right response to the question: “How useful are you going to be to us?” I remember asking a ministry staff member if he had been successful in winning a junior management position in the ministry. He told me, without a hint of irony, that his appointment was awaiting final approval from the Council of Forest Industries.
    Starting in 2009, the forests ministry executive dabbled in social engineering by actively setting about “changing the culture” of the organization to have staff view their work through “an industry lens” (as opposed to a public-interest lens) and to instil a “can-do” attitude where the past is expunged and questioning discouraged. Among other initiatives, this included purging the ministry of the last vestiges of the old public service ethic of the BC Forest Service. This was achieved through downsizing. Finally, the BC Forest Service was officially dissolved in 2012 marking its centennial, 1912 to 2012.
    The importance of ethics as a part of corporate culture has been, and is, little understood by forests ministry management. The ministry has never had a land ethic. The ethical tone of the ministry is set by its executive ranks and senior managers and is best described by Margaret Somerville’s term “situational ethics,” which enable the worst excesses of the “can-do culture” that we see today, such as concealment, obfuscation, stonewalling and active disinformation.
    Once instructed to be independent of industry, forests ministry staff under the “can-do culture” and the Forest and Range Practices Act no longer have to put on a false front. In this regard, the present chief forester’s position sets the tone. Instead of formulating policy within government, the chief forester obtains advice from a leadership team comprised of only industry chief foresters. The government has no qualms about inventing a role for the chief forester as a trade envoy shilling for industry and promoting the pellet industry. What next? The chief forester’s face on the back of BC Transit buses promoting laminated lumber in front of twin logos for the Council of Forest Industries and the forests ministry?
    The point here is that through deregulation, through the steady demise of a regulatory role for the forests ministry and through the decline of a meaningful role for the province’s chief forester, we are left with a forests ministry bereft of laws, of forest policy formulation and of any semblance of independence from the industry it should regulate. The events of the last two decades have rendered the forests ministry unfit to continue as the trustee responsible for the care of the public’s provincial forests and the web of life therein.
    Change matters. The history of forest governance since 1912 is about change, both good and bad. But since the turn of the century, the forests ministry has completely lost its way, and you, the public, need to reorient it or replace it under new legislation with regulatory purpose that defines a sustainable relationship between the conservation of the natural world and the use of all natural resources.
    That is my story. Through this portal, we want to hear your story or examples of how the forests ministry has been captured by the forest industry and/or your ideas for renewed public-interest governance of publicly owned forests. 
    Anthony Britneff worked for the B.C. Forest Service for 40 years holding senior professional positions in inventory, silviculture and forest health. He has a masters degree in public administration.
    Footnotes:
    (1) For those readers interested in the culture of the BC Forest Service between the end of the Second World War and the 1960’s, they might enjoy Herbert Kaufman’s book “The Forest Ranger: A Study in Administrative Behaviour,” published in 1960 and still in print. Although this study is about the US Forest Service, many of the elements that define the US Forest Service as a successful organization and an efficient bureaucracy applied to the BC Forest Service.
    (2) Although the research branch was disbanded, the government did not fire all the scientists. Some scientists were transferred to the environment ministry. So, forest research continues to this day but without cohesive direction, policy and administration. Prior to Gordon Campbell, in 1998, the BC NDP under Glen Clark terminated the research branch; but Andrew Petter in his last task as finance minister restored the funding for the branch allowing it to survive for another decade.
    (3) The forest inventory program moved to a short-lived ministry called the Ministry of Sustainable Resource Management before being returned to the forests ministry with far less staff and reduced budget.
    (4) The forest health program was devolved to the forest industry under an ill-conceived initiative known as defined forest area management. Predictably the industry was not interested in adding one cent to its costs; so, the program was eventually returned to the forests ministry at less than half its original budget.
    (5) Although the Campbell government repealed legislation requiring the forests ministry to reforest lands denuded of forest cover by wind, disease, insects and wildfire, the curtailing of reforestation of these lands was politically unacceptable. So, the reforestation budget was returned to the ministry at less than half the pre-Campbell amount.
    (6) The actual clause repeated for each objective reads “without unduly reducing the supply of timber from British Columbia's forests”.
    (7) Orwell, George. 1945. Animal Farm. LC Class: PR6029.R8 A63 2003b

    Ben Barclay
    Forest Reconciliation Act
    “You never change things by fighting the existing reality. To change something, build a new model that makes the existing model obsolete.”—Buckminster Fuller
    Passing this legislation would transform BC’s practice of exploitive deforestation, into protective and productive forestry, at the stroke of a pen. Compared to current legislation, this would:
    1. Double our forestry jobs and Provincial forestry income.
    2. Sequester 40 million more tonnes of carbon annually, and preserve more than 50% of the province’s land mass as an effective “wilderness” biodiversity buffer.
    3. Effect reconciliation with First Nations by restoring their rights of land stewardship and cultural connection, and create sustainable local income and jobs.
    4. Preserve the 3% of old growth we have left as an ecological treasury, and repair the 97% of devastated clearcuts back into old growth.
    Significantly decrease the occurrence and severity of wildfires.
    Proven in an accompanying cost/benefit analysis compared to existing legislation, these goals should be monitored and refined over the next few centuries by a comprehensive science project.
    The legislation will re-define the relationships between forest ecosystems, communities, governments, First Nations, and corporations, by balancing their rights, and clarifying their responsibilities. It will:
    • Supersede all existing legislation, require a plebiscite result of 66% to change.
    • Set out significant penalties and consequences, and be systemically resilient, to ensure compliance and results.
    Part 1 contains five independent “emergency statutes” to achieve the goals.
    Part 2 forms the core of truly sustainable forest policy legislation detailing proper harvesting techniques, forest healing strategies, and supply chain management.

     
    Precursor Legislation
    To address the limitations most democratic jurisdictions face in passing transformative change legislation, these two pieces of “precursor legislation” would help create conditions for passing the Act:
    • Binding plebiscite legislation where voters could get bills presented to the public for direct voting, by simply raising a number of signatures, without waiting on cabinet approval.
    • Proportional representation, which would limit potential excesses of power such as the RCMP civil rights abuses at Fairy Creek, and lack of follow through on the Old Growth recommendations, while enabling innovative legislation without needing plebiscites.
     
    Part 1 - Emergency Statutes
    Statute 1: Complete ban on any Old Growth harvesting.
    100 year moratorium on old growth harvesting in contiguous watersheds, 50 year moratorium on harvesting smaller connective areas around current cut blocks.
    Year One of the moratoriums is the year that sees passage of Statutes 2,3,4. Restarts conditional on achieving metrics in 2.
    50 year moratorium on any “truck” road building, over the size of small skidder trails linked to existing roads. Especially no roads into new watersheds, especially old growth.
    All supervision must be done by BC Forest Service. Penalties and consequences are twice the retail timber, carbon, water, and biodiversity prices.
    Provision for a limited number of single tree selective harvested trees to be extracted for traditional cultural FN use.
    Statute 2: No more clearcutting. All forestry/harvesting must conserve annual biomass, biodiversity, and ecosystem services, (especially water quality and aquifer levels), in a watershed.
    Enshrine the principle that we don't draw down from the forest’s “principal” only “live off the interest”, and require biomass increases for areas under their traditional baseline like fire areas and previous clearcuts.
    Harvesting of fully stocked areas can only be up to 75% of measured annual growth, in 5 year cycles.
    In depleted areas, harvesting can only be 20%-40% of measured annual growth.
    Limit harvesting after large disturbances to conserve biological legacies and mitigate rapid carbon release from the landscape.
    All supervision to be done directly by the BC Forest Service. Penalties and consequences are twice the retail timber, carbon, water, and biodiversity prices.
    Statute 3: All forestry agreements/contracts must include citizens of local First Nations and communities as signatories, with veto power, and offer first dibs on jobs and economic opportunities in their territories and communities, via a 66% referendum.
    Statute 4: Illegal to export raw logs from BC. Bringing BC in line with international leaders banning raw log exports such as Russia.
    Statute 5: No new Tenure agreements or TFLs allowed. New harvesting contracts must comply with Statutes 1-4.
     
    Part 2 - Sustainable Forestry Policy
    Current forest management legislation shall be terminated by five years, to be replaced with forest management (growing and harvesting) policies and procedures that must:
    Terminate or buy out all existing Tenure Agreements and Tree Farm Licence within five years from Act passage.
    Ensure that all policies and procedures must be:
    Directly supervised by the Province, no outsourcing.
    Written by the province, with scientists, with no corporate interference, based on scientific knowledge and evidence, including Indigenous traditional science.
    Prioritize ecosystem benefits (services), including:
    Topsoil creation, carbon sequestration, biodiversity, water retention.
    Connectivity in landscapes to promote gene flow, dispersal and migration.
    Balance recreation, tourism, timber and wilderness, human and non-human uses to:
    encourage greater understanding and reconnection of people with forests
    respect the rights of all life, fungi, plants and animals, that makes up forest ecosystems.
    Recognize salmon as forest animals.
    Criminalize the killing of apex predators including wolves.
    Protect habitat for species like deep snow caribou, and salmon.
    Map, measure and manage forests in scalable nested watersheds, and in islands. Within those watersheds and islands:
    Ensure that full sized and full cycle trees are well distributed spatially in scalable 100 sq. m and 1,000 sq. m plots.
    Canopy cover is complete.
    Maximize income for the Province and Indigenous peoples, and
    Require ownership of the trees to be retained by the Province at least until they leave the sawmill, or secondary processing, such as flooring.
    Require marketing and product innovation to be driven by utilising species that are natural to the ecosystem. Diverse product lines will lead to forest diversity.
    Monetize carbon, water, and biodiversity costs/benefits, and include in GDP,
    Fully report all carbon emissions and capture.
    Be publicly and transparently audited, with independent oversight, including FSC.
    Return 25% of profits to healing the damage of previous bad management, and infrastructure.

    Saul Arbess
    With much of BC Timber Sales' old-growth logging on pause, the Province could direct the publicly-owned agency to focus its logging program on second-growth forests using ecosystem-based management.
     
    Background
    BC Timber Sales (BCTS) was established on June 20, 2003 with a mandate to support a market-based pricing system for the province’s forest resources, by setting cost and price benchmarks for timber harvested from public land in British Columbia. Its creation was a response to US challenges that royalties (stumpage fees) were so low that they were, in fact, an illegal subsidy of the BC forest industry providing an unfair advantage in the softwood lumber trade with the US. Environmental NGOs agreed with the US assessment that resource rents were far too low.
    One of its primary goals is to generate provincial revenue through the development and open competitive auction of Crown forest, which in turn creates employment opportunities for British Columbians. BCTS manages 21 percent of the allowable annual cut (AAC) and holds the largest percentage of the AAC among tenure and licence holders.
    BCTS provides seedlings and manages planting contracts for the Forests for Tomorrow program, creating efficiencies that allow the program to deliver more benefits with the same funding. The organization’s forest stewardship plans identify how various forest values will be managed, and its operating plans clearly identify proposed cut blocks and road-building projects.
    Despite its claims of sustainable forestry, BCTS was cited by the ministry of forest’s own internal Compliance and Enforcement Branch and the Forest Practices Board to be in violation of its own rules for managing old growth. Here is a readable summary of those findings: thenarwhal.ca/indicative-of-a-truly-corrupt-system-government-investigation-reveals-bc-timber-sales-violating-old-growth-logging-rules/. It is interesting to note that neither the branch, nor the Forest Practices Board, have enforcement powers, indicating again the failure to mandate changes in the management of forest practices.
     
    Current Status of BCTS
    On November 2, 2021, the BC government suspended all old-growth logging by BCTS in the areas affected by new deferral recommendations, for an unspecified period. This provides an opportunity, in the pause, to consider the future of BCTS and to move it in a different direction.
    Investigations by MoF’s Compliance and Enforcement Branch and the Forest Practices Board in the Nahmint Watershed on Vancouver Island have shown BCTS has been in violation of the Vancouver Island Land Use Plan, Higher Level Plan Orders (HLPO) and its own regulations in the management of old growth. BCTS has been entirely committed to the industrial, clearcut model of forestry, despite what is stated on its website. Often, BCTS fails to inform, negotiate or consider modifications to its plans with affected parties, operating like an occupying army on public lands.
     

    Controversial clearcut logging of old-growth forest near Schmidt Creek on Vancouver Island, authorized by BC Timber Sales (Photo by Mark Worthing)
     
    Proposal
    The pause in logging old growth on BCTS lands permits government to implement the Old Growth Strategic Review recommendations by committing BCTS to sustainably manage and log only second growth as an example of ecosystem-based management (EBM), operating as a model for progressive forest management, like an agriculture extension service. Second-growth plantations would no longer be considered as fiber mills and sacrifice areas for industry, but to be managed to allow, where possible, the regaining of a semblance of natural forest succession.
    It would model EBM in its call for bids, and those bids would be required to use this approach. Joint ventures with First Nations, would be given priority, as would at least secondary manufacturing for the approved bids. In this way, proxy bidders from Big Timber, would be excluded, given their present model. The rules would not exclude large industrial applicants, but, unless they transform, they could not meet the bidding criteria. That they would transform is extremely unlikely and the industrial approach would start to unwind, at least on these lands.
    The above approach would, given its focus on valued-added production, also significantly increase, the number of jobs per thousand cubic meters cut, improving the record that BC holds for the least number of jobs per unit cut of any jurisdiction in Canada and, perhaps, in the world. So let’s consider forest worker employment.
    On Nov.2, 2021, the government indicated its transition strategy for forest workers displaced by shrinking employment and changed forest practices.
    In a November 2, 2021 press release, here’s what the minister offered in the way of a transition:
    “The Province is also bringing together strategically co-ordinated and comprehensive supports to help forest workers, communities and First Nations with the necessary supports to offset job and economic impacts that may follow new harvest restrictions. Programs will include connecting workers with short-term employment opportunities, education and skills training or funds to bridge to retirement. The Province will also work in partnership with business and communities to develop new supports that will assist rural communities to create jobs through diversified economies, infrastructure projects and innovation in industry.”
    There is very little innovation in this policy, rather a restatement of failed policy from the past. We have to consider the profile of forest workers and options within the forest environment. Many current workers are older and may take enhanced retirement packages. Many younger workers, including those who wish to get into the industry, presently unemployed or laid off, might welcome: genuine silviculture work to increase the value of second growth plantations to mirror natural forest regeneration where possible and reduce forest fire risk; forest ecosystem restoration and opportunities in forest tourism to communicate as guides, through training, of forest values and biodiversity. I am referring here to indigenous and non-indigenous workers.
    There has historically been resistance to retrain away from forestry and failure of the programs that have taken that approach. I am suggesting programs that would stay within the scope of the industry where many new opportunities exist, especially if we are really moving to a new paradigm. We need to also remember that there is a strong tradition of multiple generations of families working in the industry. Here is an opportunity to get onside with forest workers and provide a sustainable path forward.
    An interesting model does exists for early retirement and retraining, funded by the province. After helping more than 1,000 forestry workers transition to retirement, the Bridging to Retirement Program has closed as of August 2021. The job placement program will continue to support affected forestry workers through an online platform and three offices in the Interior.
    Thus, the reform of BCTS, proposed above, plus innovative employment programs and worker retraining and supports, could increase sustainable forest employment, away from the bust or boom, heavily mechanized, unsustainable clearcutting model of the present, that consistently sheds jobs while laying bare the forests of British Columbia.
    Dr Saul Arbess has been active in the defence of old growth forests in the Fairy Creek area (TFL 46) and the Walbran Valley (TFL 44). In 1993-4, he was a spokesperson for the Conservation Sector at the Vancouver Island Land Use Table, whose recommendations informed the Vancouver Island Land Use Plan (VILUP) and recommended the establishment of new provincial parks on the island. He was also a member of the ENGO’s Forest Caucus at the World Trade Forum’s 1999 Seattle meeting, advocating for the planet’s primary forests.

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