BC Report: “Triage” by Rule of Law and Common Sense Scientific Obligations

Oct 1, 2018 | Loys Maingon | 0 comments

Why should we accept an under-performing environment, when governments tremble at under-performing economies that ultimately depend on the state of the environment?

BC experienced a summer marked by the worst fire season on record.[i] Smoke and ash blanketed the entire country, just as scientific reports continued to mount that climate change is changing ecosystems irreversibly.[ii]  While there is much talk about the new extremes being “the new normal,” there is also an increasing realization that “normal” is a misleading term because there is nothing normal about a deregulated environment characterized by extreme events of expanding magnitude.[iii] When the environmental framework goes, so do the ideological and economic assumptions that have until now sustained our interpretation of “normality.”

We are now in a world in which the reality of a global mass extinction event without precedent for the last 65 million years, currently threatens more than 26,000 species.  Economic considerations now obscenely determine the “triage” between what species may be selected for conservation and what is willingly driven to extinction.[iv]  While some will say that conservation triage is a “painful question,”  they do so without questioning the economic assumptions that drive the current extinction.  The economy is a choice consumers and electors  make.   It is not a given.  Thus while in a recent article in Science Warren Cornwall correctly attributes the demise of smaller mountain caribou herds such as the Kootenay herd and the Selkirk herd[v] to logging and oil and gas development, he tacitly makes the false logical assumption that this is inevitable, because as he innocently and disconcertingly implies, extinction comes when“humans move in”:

Canada’s Woodland caribou are a symbol of Canadian culture and a keystone for many First Nation peoples. But when humans move in, things don’t go well for the animals. Forests cleared for logging, drilling, mining, or roads draw deer and moose that feed on the brush that grows back. The prey, in turn, attracts wolves and mountain lions. Caribou become collateral damage. [vi]

Contrary to this logical cultural semantic  blunder, in the Kootenays humans did move “back-in”  at least 6,000 years ago after the last Ice Age.  Things went relatively well for both humans and most of their genetic relatives until about1850 when North America experienced the first big game crisis that gave rise to the first conservation movement, and things definitely worsened after 1945, when the area was subjected to industrial-scale resource extraction for the well-being of the global market and endless needs.  Since then, things have not gone so well for plants, animals, or the original First Nations neighbours, who incidentally also happen to be very human.  In other words, before we introduced a consumer economy of endless needs, for thousands of years  circular economies maintained relatively high biodiversity values in a sustainable environment.

The rarely-asked question is whether the unsustainable economic system that currently drives the ongoing mass extinction should also continue to be the unquestioned framework within which its implacable logic acts as plaintiff, judge and executioner of this planet’s species.  Sometimes, a spectacular logical legal luddite monkey wrench is thrown into the works to help us all question what politicians tell us is the unquestionable “norm”, or “national interest.”  If nothing else, at a time of a growing loss of cultural sophistication, recent events serve to remind us of the value of Reason, and of the sophistication of our Western cultural heritage rooted in the principles of rule of law and science. Our long Western legal and scientific traditions serve us well when they are respected and applied as they are intended to be, as demonstrated in the recent Trans Mountain decision of the Federal Court of Appeal.[vii]

Of note in this regard is the resignation of Nicolas Hulot, the French minister of Ecological Transition and Sustainability.  He handed in his resignation at about the same time as the Trans Mountain decision and it reflects the same much-needed logical integrity.[viii]  Hulot’s expressed his frustration at a similar global betrayal of trust by the liberal-minded governments he belonged to.  In his view, the Macron government claims to uphold environmental priorities, but in fact continues to promote an economic agenda that perpetuates a status quo adverse to the planet’s environmental interests. His resignation simply expressed that at a time when scientists point out that we are moving into a hothouse climatic tipping point, and that we are experiencing the early beginnings of an unprecedented global biodiversity collapse, his role was simply that of a patsy to make  a government bent on maintaining the status quo of a failed economic model seem respectable.  It comes as no surprise that in Toronto, The Globe and Mail immediately carried a special editorial condemning Hulot’s resignation, as “climate defeatism”,[ix] on very false grounds.  Contrary to fact, The Globe and Mail claims that that he quit because France failed to meet climate targets, -see the interview in Le Monde-, speciously it also claims that bee populations are recovering – contrary to research and insect collapse data – and it goes on to paint a very rosy picture of tree planting in Pakistan, and the claimed 15% global conservation areas as great sucesses- when the need is 50%.  And the list goes on.)

Hulot was not expressing “climate defeatism,” but an actual need to stop posturing and renew a public engagement against the unsustainable status quo which is structurally part of current government constraints.  The public question is not how we transition within the current failed status quo at some nebulous future point, but how we shift towards a new economy and adapt to an evolving deteriorating situation, now.  Hulot stands as one of the few politicians actually honest enough to publicly admit to the unsustainability of  the illusion of  “the new normal” in a way consistent with climate science, rather than market economics.

The summer of 2018 will undoubtedly be remembered as an important turning point in the province’s, and Canada’s, environmental history.  BC drew world attention in a number of ways which the casual observer may think are independent of one another, but which in fact, are closely related to one another.  The salient points were, in chronological order, the release of Mark Haddock’s report on professional reliance,[x] the crisis in the health and viability of J-pod orcas[xi], and the Trans Mountain decision.[xii]  All three events are products of the general mismanagement of the environment by a succession of goverments who espoused the mantra of “deregulation” and prioritized short-term economic growth at the expense of the environment.  All three reflect the way in which, in spite of all the lip-service, the environment continues to be taken for granted as a playground and held as an after-thought by a majority of the electorate.

The Trans-Mountain, or Kinder-Morgan, decision (Tsleil-Waututh Nation v. Canada (Attorney General) is possibly a high-water mark for an all-too-often passively accepted practice of corporate and government bullying. It re-asserts the principle that being in power does not exonerate one from the rule of law and the force of of facts inherent in scientific rigour. Merely going through procedural moves does not grant validity.   Just as one is obliged not just to consult, but to consult meaningfully, with First Nations, one is also obliged to assess impacts comprehensively, and not set abitrary limits and exclusions.

One may rig a process in the hope of by-passing legal obligations, but ultimately on closer scrutiny the subterfuge is likely to be outed.  Justices Dawson, De Montigny and Woods found that in approving the Trans Mountain pipeline the federal government had violated its own laws and knowingly endorsed the National Energy Board’s report which contained serious flaws and illegalities.  Much of the judgement goes back to paragraph 125 of Gitxaala Nation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418.  Gitxaala Nation overturned the Northern Gateway project on the basis of lack of meaningful consultation.  It also made determinations concerning  approval standards for the NEB process.[xiii]

Justice Dawson notes that because of the arbitrary restrictions placed by the NEB in the Kinder Morgan consultative process, the report is seriously flawed and does not meet legal standards.  It is important to note that Dawson does not impugn the science itself, but the limits that were placed on scientific inquiry by NEB scientific staff acting with political motives which restricted the findings that could be considered and drawn from the process:

[201]  I respectfully disagree. As this Court noted in Gitxaala at paragraph 125, the Governor in Council is required to consider any deficiency in the report submitted to it. The decision of the Governor in Council is then subject to review by this Court under section 55 of the National Energy Board Act. The Court must be satisfied that the decision of the Governor in Council is lawful, reasonable and constitutionally valid. If the decision of the Governor in Council is based upon a materially flawed report the decision may be set aside on that basis. Put another way, under the legislation the Governor in Council can act only if it has a ““report”” before it; a materially deficient report, such as one that falls short of legislative standards, is not such a report.

 This judgement therefore rejected the decision on the same grounds as Gitxaala Nation, for failing to meet its constitutional obligations to consult meaningfully with First Nations, but it additionally re-affirmed the obligation not to unduly restrict the public and scientific understanding of the scope of the project.

By excluding, and prohibiting presentations on the potentially adverse impacts of increased tanker traffic, as a logical outcome of the pipeline construction, on the marine environment, and thereby overlooking law related to The Species at Risk Act,  the NEB illegally biased the findings of the report.  As Andrew Weaver has pointed out:

The Board unjustifiably defined the scope of the project under review not to include project-related tanker traffic. This exclusion permitted the Board to conclude that, notwithstanding its conclusion that the operation of project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale, the project was not likely to cause significant adverse environmental effects. The unjustified exclusion of project-related marine shipping from the definition of the project rendered the Board’s report impermissibly flawed: the report did not give the Governor in Council the information and assessments it needed in order to properly assess the public interest, including the project’s environmental effects—matters it was legally obligated to assess. [xiv]

The implications of this judgement set a precedent.  The judgement effectively rules that political and economic interests cannot automatically be put ahead of scientific environmental evidence.  The key here is “automatically.”  As history shows, one can always legislate unjust laws.  However, this opens the door for free and open discussion of facts not necessarily restricted to narrow definitions, which are open the proper functioning of an open society. It opens the door to consideration of broad social and environmental implications of a project in time and space. Open discussion goes hand in hand with the free flow of information and inquiry which is the cornerstone of science.

The broad implication of Tsleil-Waututh Nation v. Canada (Attorney General), lies in what it logically means for the future consideration of the climate change impact of fossil fuel projects on the health of the planet and biodiversity.  There are already serious legal challenges being mounted against fossil fuel companies for their contribution to climate change.[xv]  BC is currently drafting legislation related to fossil fuel harm to the environment in preparation for legal action against Big Oil, much as it did against Big Tobacco.[xvi]    In the case of the Energy East NEB process, the NEB barred presentations and consideration of the impacts of the carbon footprint of pipelines.  In the light of this decision, were the draconian limits placed by the NEB on the Energy East process  an undue exclusion of all the scientific evidence necessary to make a scientifically-informed objective report?

Again, the answer to this question will lie in the intellectual and economic framework within which decision-makers operate. If politicians can show leadership, and political and economic interests are not given precedence over the environment, then objective science encompassing holistic implications, may change how we relate to the planet’s health.

Much depends on the role that environmental scientists play.  The uncritical acceptance of the flawed NEB report by the government of Canada, unfortunately reflects poorly on the role that at least one segment of the scientific community played in the NEB process. The biases identified in court re-enforce the public perception of environmental scientists in the pocket of corporate interests.  In point of fact, the report’s failure to cover marine impacts, which were a logical part of the environmental assessment, goes against the obligations of environmental professionals, listed in the “Stewardship Principles” which are an inherent practical application of the “Code of Conduct,” of BC’s College of Applied Biology.

The Stewardship Principles clearly lay out a professional biologist’s obligations to take a holistic approach, maintain resilience and minimize ecosystem harm:

1. Take a comprehensive, holistic view. Ecosystems are considered as a whole, and terrestrial or aquatic ecosystem management is based on a comprehensive view of the ecological systems and their components 2. Maintain resilient ecosystems. Ecosystem structure, composition and function are maintained within a range of biological diversity and complexity that enables resilience in the face of the combined incremental effects of environmental change or disturbance. 3. Minimize harm, improve and enhance. Harm to the ecosystem is minimized while opportunities are sought to maintain, improve or enhance ecosystem function[xvii]

The NEB report did not uphold any of these 3 professional obligations.  Professionals working for industry or government have an overriding obligation to the public and to objective science.  The legal axiom “Silence is approbation,” applies. While discretion is the hallmark  professionalism, silence is not, because it can have criminal implications contrary to professional probity.  Professionals who remain silent in the preparation of flawed reports promoting illegalities, or who actively  participate in the destruction of ecosystems, violate the fundamentals of the Code of Conduct .   Professionals have an obligation to raise questions that may not be in the interests of their clients, and provide as comprehensive and unbiased scientific information as possible

 Tsleil-Waututh Nation v. Canada (Attorney General)  is yet another challenge to the practice of “professional reliance” which is effectively a form of de-regulation that has been favoured by resource industries.  De-regulation has led to abuses which have resulted in to public dis-satisfaction.[xviii] Professional reliance still depends on obtaining social license, excessive fealty to corporate or government interests loses intellectual independence and, as a result,  social license.   Tsleil-Waututh Nation poses overriding questions on the integrity of the whole approach, which seems to be primarily focused on the well-being of the market economy rather than on the environment, in spite of the best intentions of professional soiceties, as noted above in the “Stewardship Principles.”   Tsleil-Waututh Nation   re-enforces the need for mechanisms that regulate actual professional obligations to the public.  In that respect, this ruling substantiates and re-enforces the findings of the Haddock Report which recommends mechanisms for the re-organization and oversight over self-regulating professions.[xix]

It needs to be noted that there is a political weakness in the Haddock report.  It is not clear that the review was entirely independent since the author was a civil servant prior to his current employment at the University of Victoria, and therefore a member of the British Columbia Government and Service Employees’ Union (BCGEU).  The BCGEU which lost members to the 2010 cutbacks in the Ministry of Environment with the introduction of the professional reliance model, has been a driving force behind this report.[xx]   While the Haddock report was tabled in March, it is as yet unclear what future directions these recommendations will take, but what emerges is a realization that the the top-down model that governed the profession before 2010 had its own inefficiencies, and one cannot turn the clock back.  Given the environmental history of the province’s resource management and the current state of the environment, BC’s environment and the public interest, have not been well served by either model.  There is very little difference in outcomes when either government or corporate interests are subsumed to market interests that relegate interests of the environment to an afterthought.

Ironically, the outcome of decades of mismanagement provides its own form of “triage,” at all levels. The law points to the necessity to make serious changes.  It is a form of natural selection.

Nothing speaks quite as loudly of the actual quality of BC’s marine environment, as the current problems that beset “The Salish Sea”, better known to most Canadians as “Georgia Strait,” and the fate of its 75 iconic orcas that make up J-pod.  It has been common knowledge for decades (since this author took his first university biology class in 1970) that the bio-accumulation of toxicants concentrated in the flesh of members of this pod is akin to the contaminant concentrations found in some of this planet’s worst “toxic dumps”.  The waters which they ply are not just known to be contaminated, but are increasingly contaminated and polluted.  In spite of common knowledge that came in the commonsense messages in those courses I took five decades ago, on the impacts of hard shoring, agricultural drainage, hydro development, septic treatment and industrial waste disposal, increased development has gone on unabated, and the magnitude of these problems has grown exponentially, as though the risks implicit in these problems never existed, with the increased population density and unbridled economic demands.

In BC we admire the recreational landscape and normally avoid considering the health of its inhabitants.  This summer it took the unusual grotesque spectacles of  the death of a newborn orca calf kept afloat by mother and pod for 17 consecutive days,[xxi] as well as the attempts to rescue an emaciated juvenile known as J50, by shooting antibiotics and feeding it fish farm salmon – to bring some public attention to the actual state of the Salish Sea.[xxii] Ironically the feeding of J50 took place at a time when fish farms are being closed in Washington state, the ‘Namgis First Nations is preparing a lawsuit to remove fish farms from Kingcome Inlet, and Alexandra Morton is in court to force the federal government to uphold its own laws.[xxiii]

Minister Wilkinson’s  reaction to Tsleil-Waututh Nation  was indeed quite correct when he pointed out that the problem is not just the potential tankers but the thousands of boats that turn the Salish Sea into an acoustic pollution nightmare:

 “If we are going to recover the southern resident killer whale, we need to take action that will mitigate noise from all of those sources, not simply six or seven tankers coming out of the terminal every week.”[xxiv]

The defense that Wilkinson is using to justify the government support for Kinder Morgan boils down to “everybody’s at it,” the most mendacious legal defense, which as I pointed out in the spring 2018 report, depends on the Ghosh test.[xxv]It is in effect a “bankrupt” argument that tacitly admits the unsustainability of the entire project and of the underlying economic model.  We perpetuate it because everybody is participating in it – and apparently even the leadership does not know any better.   The entire way of life that depends on fossil fuel energy model continues to endanger the province’s biodiversity, as it does that of the planet.

In a sense these events home the point made by Nicolas Hulot – we can’t continue with window-dressing, and talk of “transitions” that merely compound our problems.  We need real change and action. It is time for a major shift in the economy and the energy that powers it that would at last prioritize the planet’s well-being.  Tsleil-Waututh Nation  may be a very significant part of our “triage.”  We can’t bear the full costs of an unsustainable economy. AND full environmental accounting is needed.  This ruling may just provide the catalyst that forces us to re-assess the situation at a time when  the United Nations is launching a final effort to force nations to take the challenge of climate change seriously.[xxvi]

The good news is that some politicians are beginning to acknowledge the bad news. The question is whether enough political leaders will rise to Hulot’s standards of political leadership.  To quote Secretary-General Guterres:

If we do not change course by 2020, we risk missing the point where we can avoid runaway climate change. Climate change is the defining issue of our time, and we are at a defining moment.  Scientists have been telling us for decades. Over and over again. Far too many leaders have refused to listen.”

 It is time to keep oil in the ground and start a political and economic triage to limit the species triage.


(First written for and published by the Canadian Society of Environmental Biologists Bulletin)


[ii]  Steffen et al “Trajectories of the Earth System in the Anthropocene.” ;;


[iv] Warren Cornwall (2018). “Should it be Saved”. Science 7 361 ISSUE 6406 962-965.


[vi]  Cornwall, 963.





[xi]  ;


















Loys Maingon

BC Director , Canadian Society of Environmental Biologists

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