Environmental advocate urges scrapping professional reliance system

Forestry, mining and business groups were quick off the mark with strong criticisms of a British Columbia review calling for a costly overhaul of how foresters, geoscientists, engineers and other professionals are governed. Stewart Muir looks at the issue. 

post-image.jpgThe province of British Columbia’s review of professional reliance in natural resource decision-making was released last week with 121 recommendations aimed at 51,000 professionals in engineering, geoscience, forestry, biology, agrology and applied science.

If implemented, the changes mean a generational shift with profound implications for the general prosperity of British Columbians.

The review findings immediately provoked strong criticism from mining, forestry and business groups. Little wonder. In the first place, the process was spearheaded by environmental lobbyist Mark Haddock, a UVic academic with strong ties to the environment minister, George Heyman. Haddock is employed at UVic’s faculty of law and has previously advocated for an environmental tribunal system to add an additional layer of oversight to mining, logging, and oil and gas development in BC. He is tied to West Coast Environmental Law, which is concurrently advocating for "a complete overhaul of BC’s environmental assessment law” as the only way to ensure that Heyman can deliver on his mandate-letter instruction to "ensure the legal rights of First Nations are respected, and the public’s expectation of a strong, transparent process is met.”

Haddock’s 2015 paper for the UVic Environmental Law Centre, Professional Reliance and Environmental Regulation in British Columbia, foreshadowed his current project and its conclusions. The province of BC could not possibly have believed that, with his appointment, a neutral arbitrator was being put in charge of the review process. In effect, the Haddock review was already written before Mark Haddock set to work. 

If that obvious conflict of interest is not compelling enough, consider that Haddock is also an alumnus of Ecojustice, an advocacy group that is in the business of suing Canadian governments on environmental issues. The group is currently in court trying to compel the federal government to require the Minister of Fisheries and Oceans to test for piscine reovirus before issuing a transfer licence for farm fish heading to net pens in the ocean. Ecojustice is suing for the National Energy Board to be required to consider and assess Kinder Morgan’s project impacts on marine species and require the regulatory body to mitigate or avoid harm to the southern resident killer whales’ survival, and it has been credited with stopping the Northern Gateway pipeline project. The group's lawyers have launched a Federal Court case on behalf of local residents in an effort to quash a Port Authority-issued permit allowing the construction of a new coal transfer facility on the Fraser River.

All of these measures are characteristic of Ecojustice's general aim of using whatever legal avenues come to hand to thwart the resource economy. Ironically, perhaps, the methodology of Ecojustice and its parent the Sierra Club of BC (which Heyman used to head) is the polar opposite of what professionals stand for. In contrast to its use of legal professionals for courtroom work, Ecojustice employs a fundraising-oriented activist toolbox reliant on outrage and entitlement, whereas professionals must by law exercise care and caution in all that they do. It's quite a contrast. (Several years ago, I wrote about the Ecojustice approach to water management in BC's north east.)

Background of professional reliance

A decade and a half ago, the British Columbia government embarked on a significant regulatory overhaul. 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. Knowing that many British Columbians care deeply about the environment, former premier Gordon Campbell sought to assure the public that environmental standards would not diminish; instead, they would be overseen by professionals in the private sector, rather than government bureaucrats. To bolster this claim, the government revised legislation for self-governing professions, such as foresters and agrologists, and passed legislation establishing a new college for biologists. Professional accountability would be maintained primarily through the enforcement of codes of ethics and the disciplinary processes of professional associations, rather than through the approval of plans, permits and licences by government agencies. This was the “new era of professional reliance.”

Prince George North MLA Pat Bell commented on the changes in 2003 as they were implemented. “We allow engineers to stamp a bridge that millions of people drive across," he told the Prince George Citizen, "yet a registered professional forester with a similar amount of education isn’t allowed to stamp a cut permit to harvest one tree without having it double-checked. We think it makes good sense to move to professional reliance.”  

Haddock argued in his 2015 paper that “much of BC’s deregulation goes too far in handing over what are essentially matters of public interest to those employed by industry. Proponents should not be decision makers for matters involving the weighing and balancing of multiple, often competing, environmental and societal values.”

His recommendations at that time included “plugging loopholes, addressing conflicts of interest, incorporating better checks and balances, improving environmental performance, restoring government approvals where needed, and thereby increasing public confidence.”

A zero-sum political game

Despite his having long arrived at those conclusions, Haddock’s report issued June 28 starts out by framing the exercise as an exploratory process, as if he had not already made up his mind before starting the job. Haddock writes: "It is a higher-level examination of professional governance and regulatory systems in the spirit of continuous improvement. Considering the iterative four-step management method of 'plan-do-check-adjust,' British Columbia has about 15 years of recent experience with the planning and doing steps of professional reliance, and this review is about checking and recommending adjustments where needed."

That sounds sensible enough. Yet the 2018 review process was never anything but a zero-sum political game, its outcome decided long before it ever began.

Haddock does not fail to point out that when the NDP came to power and formed a minority government in 2017, a Confidence and Supply Agreement (CASA) was made with the BC Green Party Caucus. In this agreement, a commitment was made to “review and address failures in the professional reliance model in BC so that British Columbians’ faith in resource development can be restored.”

What do British Columbians think?

The idea that BC residents had lost faith in the benefits of resource development may certainly be true of a segment of the population, but not a large segment. A poll by Resource Works in February 2017 showed that 84 per cent of residents believe it is possible to create green jobs and grow the green economy within the province's natural resource sector. Only 11 per cent of residents do not believe that resource development is good for BC.

Fifty nine per cent saw BC as a world leader in sustainable natural resource development, a statement that only five per cent strongly disagreed with. Eighty seven per cent felt that, with real discussion and debate, we can figure out how to make natural resource development work for BC. And a majority of residents felt resource development was based on facts and science.

It is on less objective issues where we discovered the problem lay. A sense that openness and inclusiveness govern natural resources was missing in action. Even worse was transparency: only 37 per cent of residents felt the debate and discussion about natural resource development could be described that way.

Perhaps as a result, residents are almost evenly divided on whether the resource conversation is open, respectful, and moving toward consensus.

Facing this nuanced reality, the BC NDP might have thought twice about handing over a professional reliance to the BC Greens. There is clearly room for improvement, particularly in building trust. But does that really require tearing down the entire edifice? BC Green MLA Adam Olsen recently described Canada and British Columbia with the contemptuous term of “resource colonies.” The party’s blinkered – and deeply flawed – view of the natural resource economy is that it is all about sending the benefits of industries like mining, forestry, oil & gas, and aquaculture to foreign places, leaving no benefits for locals. Nothing could be further than the truth, as our research at Resource Works has been showing for years. The Greens represent a share of public opinion, but not a large one.

It shouldn’t have been a surprise to see Ecojustice be ready June 28 to shower praise on the Haddock report. “We want to see recommendations in the report implemented immediately,” said Ecojustice executive director Devon Page in a statement from Evidence for Democracy, a coalition of environmental groups and trade unions led by Ecojustice. To this group, the professional reliance recommendation is but one milestone. Next stops: Land use planning, “updated” mining laws, and restrictions on forestry, to name just a few.

It seems fair to surmise, based on Haddock’s own statements, that his deeper purpose is nothing less to end the province’s reliance on its resource economy, and the reliance review is but one of the ways to bring that about. Actions on land-use planning, forest practices, water, and First Nations engagement  are coming next. More than an administrative change, Haddock’s mission is a philosophical sea change to the operations (and costs) of government. It syncs rather well with the BC Greens agenda. His recommendations, if adopted, will result in a deep, lasting and potentially very costly impact.

Since 2005, the BC Oil & Commission has employed a professional reliance model based on results-based regulation, and it has harmonized its procedures with those of the Province of Alberta, where the Alberta Energy Regulator operates a widely admired system. Changes would affect how LNG projects important to the NDP government are developed, in what is already an intensely regulated industry.

Two sides to the story

There are definitely two sides to the story. There is no reason to blindly defend the status quo, reducing public policy development to a dogfight between competing ideologies. Regulated professionals are nothing if not practical problem solvers. In one submission the review process received, registered professional forester Stirling Angus stated that professional reliance “works well to encourage different professionals to respectfully cooperate and coordinate in order to develop good, practical solutions.”  Lawyer Sean Hern, an observer, acknowledged some notable lapses, and was able to provide a number of practical fixes to address perceived problems that would not have required Haddock’s wholesale house cleaning.

In the view one company that heavily relies on regulated professionals, there is lack of awarness of how those accountability is maintained and enforced in those professions. Doug Stout of FortisBC wrote to the Haddock process to say that an improved understanding of the role, responsibilities, legislation and work of the professional bodies would do much to enhance public understanding and confidence. (A complete list of submissions can be found here.) This was a fairly typical theme that surfaced in submissions received, yet it appears to have been entirely ignored.

According to the BC Institute of Agrologists, one of the professional bodies affected by the report, legislative changes will be introduced in the 2018 fall session to implement recommendations #1 & #2:

R1. Establish an independent Office of Professional Regulation and Oversight:

R2. Legislate critical elements of professional governance

Once those foundational pieces are in place, the stage is set for the remaining 119 recommendations to be implemented.

And what will all this solve? Haddock’s report provides some anecdotal evidence that there are cases where some members of the public believed there was a connection between professional reliance and specific situations. Two well-known examples: the Mt Polley disaster, and a controversy involving a soil dump at Shawnigan Lake.  

Haddock couches his critique within some passionate arguments that pull on emotional heartstrings, invoking the shared values of environmental respect that every thinking citizen ought to subscribe to.

He also draws heavily on aggrieved parties who felt their influence diminished over the past decade and a half.

Yet there is no actual evidence provided anywhere in the report to show that the professional reliance model has resulted in broad outcomes that are worse than would have been achieved if those changes had not taken place. During the 15 years of professional reliance under the BC Liberals, numerous resource projects were rejected that did not clear the regulatory bar. LNG has been slow to develop, in part because of regulatory congestion at the provincial level. The Fraser Institute in 2017 ranked BC in 7th place among Canadian provinces as a place for mining investment, while the province declined in mining attractiveness over the previous five years.

An ambitious government might seek to solve those issues rather than increase the cost and complexity of doing business.

Will BCGEU get its wish?

Where are we headed now? The advised direction is, definitively, back towards a big government approach.

According to the submission from the B.C. Government Employees and Service Union (BCGEU), there is no problem, even a global one, that can’t be solved through a bigger bureaucracy (i.e., an increase in its membership): “In the context of climate change and increasing pressures on the provincial land base, more staff and resources are needed to effectively manage our environment and resources for British Columbians.”

With their one-time president George Heyman now in the role of environment minister, it seems the BCGEU has realistic expectations that the coming pendulum swing will benefit them. It probably can’t hurt that the BCGEU gave the BC NDP over $2 million in partisan funding between 2005 and 2016. Haddock’s recommendation #34 is to identify “opportunities” to improve civil service staffing levels and resources to enhance government oversight. It’s hard not to read this as spending money to take professionals out of private practice and put them onto the public payroll.

Industry "disappointed" at recommendations

The choice of a strongly biased activist to lead the professional reliance review may be its central weakness. Who can now dispute that a neutral, qualified and judicious expert in Haddock’s place would have delivered a more measured and practical set of recommendations? Releasing the report on the Thursday afternoon before the Canada Day long weekend leaves the distinct impression the government would have preferred to keep the coverage low key. Nothwithstanding this timing, the reaction of business interests to the Haddock report was swift and strong.

The various resource industry associations have been working hard over the past year to maintain positive working relationships with the new government, even as potentially difficult policies arose. On this issue, however, three industry associations representing mining and forestry were quick to send strong signals. 

The Mining Association of BC found “the report strays beyond the terms of reference, proposing significant changes to the system without the necessary justification, investigation or reference to British Columbia’s best practices to support them.” The Association of Mineral Exploration of BC stated that “the recommendations are largely focused on broad-sweeping changes to 28 regulatory regimes that go well beyond governance improvements, which we believed to be the focus of the engagement.”

The Council of Forest Industries was “disappointed”, saying that the “intent of this review was to identify and recommend good governance practices that could be applied by the resource professions’ governing bodies. Instead the report recommends a new ‘regulator of regulators’ be established. This would duplicate process, add unnecessary costs and create uncertainty, without any clear indication of how public interest will be served.”

The College of Applied Biology, whose operations along with four other professional bodies were audited to make the report, commented that the Haddock report “does not address the financial implications of the recommendations.”  

To the head of the Business Council of BC Greg D’Avignon, the review findings represent “a solution in search of a problem”.

Such protestations will be brushed away by Haddock’s defenders as the predictable pushback of interest groups with something to lose. But what’s at stake is much bigger and it affects every BC resident. Wholesale changes to professional reliance are bound to be highly consequential when you consider that about one third of the provincial economy is tied to successful, environmentally responsible, resource activities, and 12 per cent of GDP is directly accounted for by resources. Just one week before Haddock’s report was released, Business in Vancouver released its annual Top 100 publicly traded British Columbia companies list. Fifty two of them were forestry and mining related.

Contrary to the BC Green party doctrine that the resource economy is out of date and irrelevant, the current state of things is pretty much the opposite of that. The vaunted tech boom is , to a great degree, a phenomenon of modern resource practices driven ever higher by some of the world’s stiffest environmental regulations. Much of the technology activity we see is directly related to enabling natural resource businesses meet their environmental and business challenges. The truth is that we are seeing economic evolution, but it’s not disruption. The resource economy is as important as ever, yet it continues to evolve.

Can we balance environment and economy?

If the Haddock recommendations are implemented, the cost and timeliness of doing business in British Columbia will almost certainly be affected. While the final review document uses the term “environmental” 105 times, the word “economic” appears just five times. At a time when many of us seek to balance out these sometimes competing values, the economy is barely a consideration at all for Haddock. Not surprisingly, as the biologists are saying, there is no evidence in the report that anyone has thought about the relevance of a cost-benefit analysis as part of the decision matrix.

While the costs of implementing Haddock’s measures are fairly easy to see, there is no compelling evidence to show that they would result in actual improvements to environmental performance.

Here’s a quick reminder of the benefits of resources. In 2018 in British Columbia, mining pays the best wages of any industry, followed closely by pulp, oil & gas, and forestry. These are all high-productivity industries that account for three-quarters of the province’s goods exports. Additionally, because most business inputs used in resource extraction and processing are sourced domestically (raw materials, energy, labour, transportation, business services), except for machinery and equipment we don’t have to pay to import the ingredients to create that benefit. Resource industries also important to urban areas, with many head offices in Vancouver where several billion dollars is spent annually on business inputs purchased from area suppliers.

Yet the BC Greens’ aspirational "post-resources" outlook, paired with a deep antipathy toward resource activities in general, is poised to be the one that drives provincial government policy. Meanwhile, the BCGEU vision is for a massive public hiring binge of the very professionals who are already performing their duties successfully in the private sector. Whether the nurses’ union gets to have a say in where it thinks new, taxpayer-funded jobs are needed is a question for others.

With both the major civil service union and the Greens making heavy demands, it's hard to see how this situation can turn out well for resource people.

An overabundance of caution

Despite the care that professionals pride themselves on when it comes to their expert niches, they are cautious to a fault when entering public conversations that they feel may lead them outside of their specialization. As a result, many public conversations on resources are instead dominated by those who entirely lack professional credentials in biology, engineering, geoscience, forestry and other fields.

In the view of investors, British Columbia already suffers from multiple uncertainties – disputed land claims, uncertainty over protected areas and environmental regulations, and regulatory duplication and inconsistencies. Add to all of that the predetermined outcome of a sham process by a close associate of the environment minister, and you have the makings of a slow-motion train wreck, since any changes will take months and years to slowly grind the regulatory process to a halt. Investors have already been given multiple reasons to take a pass on BC resource investments. Haddock’s legacy may be that they stay away for many years to come. If it's governance changes the province wants, it can actually achieve most, if not all, of them simply by amending existing legislation. The proposed "regulator of regulators" is simply a layering on of red tape, with little benefit but huge risk to the economy. And it's all to appease the BC Greens, who represent a very small share of the electorate.

As the government contemplates creating a new super-regulator to govern professionals, maybe it is time for the resource professionals affected by the Haddock report to reach beyond their specialist niches and ensure their voice is heard as one. And if the unions who build and operate resource projects also choose to speak up for their own interest, challenging the BCGEU’s large voice, that could also strengthen resistance to a worrisome policy direction. If the government hears from enough interests of this type, it may be able to reach balance on the professional reliance issue. A good outcome would be that any legitimate concerns with professional reliance are addressed, especially if it ensures that ideological warfare against the economic basis of British Columbia’s prosperity does not become the central purpose of government.  

Stewart Muir, an award-winning author and journalist, is executive director of the Resource Works Society based in Vancouver.


Photo: Government of British Columbia via Flickr

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