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Can Horgan Fix BC’s Broken Environmental Protection System?

Shawnigan Lake, Mount Polley show culture that reflects BC Liberals’ contempt for regulation, enforcement.

Paul Willcocks 14 Aug

Paul Willcocks is a journalist and former publisher of newspapers, and now an editor with The Tyee.

Two cases barely days apart highlight a crisis in environmental protection in B.C.

Fixing it should be a top priority for the new government.

The Tyee’s Andrew Nikiforuk broke the story exposing deep flaws in the approval process for a contaminated soil dump near Shawnigan Lake on Vancouver Island.

Plans for the giant dump in a former quarry sparked protests from residents who feared permanent damage to the lake and nearby watersheds.

Yet the provincial Environment Ministry gave its approval. When residents challenged the decision, the Environmental Appeal Board upheld it.

Both approvals relied on a ministry-mandated Technical Assessment Report prepared by a supposedly independent professional engineering firm, Active Earth Engineering, and paid for by the company.

That reflected the former Liberal government’s approach to environmental assessments for development proposals. Instead of reviews by ministry employees working for the public, the Liberals opted for “professional reliance.” Companies hire private sector geologists and biologists and engineers to do the reviews that determine whether projects will go ahead.

It’s an obviously flawed approach. Biologists doing a review for a proposed mine tailings dump, for example, might want to do an independent, science-based job. But they also know that if they deliver a string of reports that result in projects being rejected, they aren’t likely to get hired by companies in the future. Even if the professionals believe they act independently, the assessments are compromised and public trust eroded.

But in the case of Shawnigan Lake, the process was even more profoundly broken.

At the same time Active Earth was preparing the reports saying the project could safely go ahead, it was negotiating with developers Cobble Hill Holdings and South Island Aggregates to take an ownership stake in the landfill and share in the profits.

That fact was never disclosed to the public or to the Environmental Appeal Board. “I am satisfied that the Board was misled about the true nature of the relationship between Active Earth and CHH,” B.C. Supreme Court Justice Robert Sewell said in a blistering judgment overturning the approval.

You could argue that this case is an aberration, the result of bad judgment or worse, not a flawed system.

But you would be wrong. When Sewell’s judgment was released in January, the Environment Ministry said it was “concerned around Justice Sewell’s findings with respect to the way evidence was presented to the Environmental Appeal Board.”

And when residents raised the allegations of conflict in 2015, says Sonia Furstenau, now a Green MLA, the ministry claimed to know nothing about the relationship between Active Earth and the dump’s developers.

But this month, the Association of Professional Engineers and Geoscientists of BC released results of its investigation into complaints about Active Earth’s role.

It cleared the company, largely because the ministry staffer legally responsible for the approval process had been told of Active Earth’s dual role and said the ministry “was not concerned that it would be improper.” (Furstenau told Nikiforuk that’s not what the Environment Ministry told residents in 2015. “Either the ministry lied to us or someone has misrepresented the facts to APEG,” she said.)

If true, the ministry’s decision to ignore what seems an obvious conflict — and to keep that information from the public and the Environmental Appeal Board — shows a cozy approach that puts the interests of consultants and companies ahead of environmental protection.

Which leads to the much simpler, sharper example of Imperial Metals’ Mount Polley mine disaster.

From the time the tailings pond dam burst on Oct. 4, 2014, sending more than 25 million cubic metres of water and mine waste into rivers and Quesnel Lake, the clock began ticking on the three-year deadline to lay provincial environmental charges.

Yet on this month, the deadline passed and the provincial government’s investigation remained incomplete. (A private citizen filed charges, but private prosecutions are almost never successful. Federal charges are still possible.)

That’s simply outrageous. The Environment Ministry has known of the deadline and the public interest in answers and justice. Yet the government has failed.

There is no plausible excuse for the failure except lack of will and adequate resources. Sure, the investigation is complex. But when the Space Shuttle Columbia burned up on re-entry in 2003 — also complex — the investigation was completed and report delivered in less than six months. The U.S. national commission on the Deepwater Horizon drilling rig disaster in the Gulf of Mexico also reported in less than six months.

Part of the answer lies in the budget for the Conservation Officer Service, responsible for the investigation. Since 2014, its funding has been cut by 7.5 per cent even as it struggled to complete this investigation and hundreds of others.

None of this is new. Environmental groups, citizens and even the province’s auditor general have warned of the broken regulatory system in the province. In 2014, the auditor general’s office delivered a scathing report on environmental enforcement in the mining sector.

“We found almost every one of our expectations for a robust compliance and enforcement program within the MEM [Ministry of Energy and Mines] and the MoE [Ministry of Environment] were not met,” it reported. “We found major gaps in resources, planning and tools. As a result, monitoring and inspections of mines were inadequate to ensure mine operators complied with requirements.”

And West Coast Environmental Law reviewed enforcement actions under six environmental protection laws and found that the average number of tickets issued from 2010 to 2013 was less than half the number from 1995 to 1999.

Premier John Horgan has promised to find out what went wrong with the Mount Polley investigation. And on Friday, Environment Minister George Heyman said the government would review the professional reliance approach.

But as the Shawnigan Lake and Mount Polley debacles and a string of reports show, the problems go deeper. The balance between environmental protection and resource development has been tipped heavily in favour of industry. For 16 years, environmental protection was brushed off as “red tape.”

Christy Clark set out that position in her first year as leader.

“We need to be examining — and we are — what government does to get in the way of the creation of jobs,” Clark said. “The private sector creates jobs so we need to get out of their way when they are trying to do that.”

And that’s what the government did at Shawnigan Lake and Mount Polley.

Tinkering with government review and enforcement processes isn’t enough. The problems reflect a government culture that has seen regulation and enforcement — whether in terms of the environment, or employee rights, or safety — as something that “gets in the way.”

Changing that should be the government’s main priority.  [Tyee]

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