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Citizen scientist tracking threatened birds near Fairy Creek denied court intervention

In an attempt to monitor threatened bird populations, a UBC professor and 'avid birder' sought a judicial review over the province's approval to build gates meant to block access to a controversial logging tenure surrounding Fairy Creek.
marbled murrelet
Marbled murrelet in the care of the Wildlife Rescue Association of BC. The marine bird is among at least two threatened species that have been spotted in the temperate rainforests of Tree Farm Licence 46 on Vancouver Island.

A scientist documenting threatened birds in a swath of temperate rainforest on Vancouver Island has lost her bid to have a court review provincial authorizations that allowed a logging company to construct several gates into the territory. 

In an application for judicial review, Royann Petrell, an associate professor emerita of chemical and biological engineering at UBC, claimed the forest minister's decision to allow Teal Cedar Products Ltd. to build 10 gates blocking access to the forest made her work impossible.

“The B.C. government doesn’t generally know where endangered birds and other wildlife are located,” said Petrell in a statement leading up to the court case. “Citizen scientists like me are trying to fill that gap before the province’s few remaining areas of old-growth forest are logged.”

The case centred on Tree Farm Licence 46, a 60,000-hectare forest tenure that overlaps with Pacheedaht and Ditidaht First Nations territory and has been the site of the Fairy Creek blockades — one of the largest instances of direct action against logging in the province’s history. 

The protests escalated in August 2020, when land defenders began to deploy a number of tactics to block the logging of the old-growth forests, including digging ditches across the road, chaining themselves to concrete-filled structures known as “sleeping dragons,” and tying themselves to tripods and cantilevers — at times covered in urine and feces.

“...and sometimes they put nooses around their necks,” added Justice John Steeves.  

RCMP officers called in to enforce a court-ordered injunction have arrested over 1,000 people.

As a result, in 2021, the minister authorized Teal Cedar to install a number of gates across the road to restrict vehicle access and deter protesters. 

Five of those have expired and another five are set to expire in June 2022. Whether the gate authorizations are renewed will likely depend on the level of protest going forward, noted the justice.

‘What the B.C. government should have done years ago’

At the same time, and separate from the protesters, Petrell had been travelling to the tract of ancient forest along with other citizen scientists to document a number of threatened bird species. 

Petrell and her colleagues have documented the presence of western screech owls and the marbled murrelet, a seabird that nests in the coastal old-growth forests of British Columbia. Both birds are listed as threatened under the federal Species at Risk Act. 

On at least one occasion, Petrell’s observations forced Teal Cedar to delay logging as the Ministry of Forests sent in staff to conduct follow-up studies, noted Justice Steeves. 

Teal Cedar said in an affidavit it gave and would continue to give Petrell and two other people vehicle access beyond the gates.

But the scientist countered that once the habitat of a species has been identified, large groups of observers would be required to identify and count the birds. 

“The gates in TFL 46 prevent citizen scientists from identifying and protecting at-risk species in areas where logging is imminent — and prevent us from doing what the B.C. government should have done years ago, before it approved logging in those areas,” said Petrell in a statement before the decision was handed down.

Neither Petrell nor the Ministry of Forests was immediately available for comment.

Minister to have final say on his own policies

In her petition, Petrell claimed the minister breached procedural fairness by not notifying her of the gate authorizations in advance. The obstructions, she further alleged, were “unreasonable” because they didn’t include any conditions to maintain public access. 

“According to the petitioner,” wrote Justice Steeves, “[the ministry has] effectively granted Teal Cedar private property rights over public lands...”

Teal Cedar said the barricades were lawful and should remain. The company applied to have Petrell's petition struck and sent to the Forest Practices Board where the problem could be solved out of court. 

Petrell, for her part, said the Forest Practices Board complaint procedures require a lengthy process and that after a year, the minister “has not generally followed” its recommendations. 

Citing case precedent, the justice said the court has the discretion to refuse to undertake judicial review if there is an “adequate alternative.” 

The Forest Practices Board could recommend to the minister that the gate authorizations be cancelled or varied. But that recommendation falls short of action, argued Petrell, and the forestry minister may or may not act on the advice.

The justice acknowledged the minister would have a final say on his own policies.

“But, in my view,” added Steeves, “in this case the board knows logging roads (including closing them) better than the courts and, in my view, this is not a case where the court should take jurisdiction.”

Feds sued over birds nesting in old-growth trees

Petrell’s case against Teal Cedar is not the only court bid to protect threatened bird habitat in B.C.’s temperate rainforests. 

Last month, lawyers from Ecojustice — the same firm that represented Petrell — sued the federal government on behalf of Sierra Club BC and the Wilderness Committee over claims the minister of environment and climate change failed in his duty to protect the habitat of over two dozen migratory bird species.

The court action represents an escalation of the two groups' efforts to protect critical marbled murrelet habitat — for the past two years, they have been sending petitions and letters calling on the federal and B.C. governments to take action.

As few as 263,000 birds are left, including at least 50,000 in B.C., where the species has lost an estimated 20 per cent of its habitat over the past three generations, according to the Committee on the Status of Endangered Wildlife in Canada (COSEWIC).

The species breeds multiple times throughout its life, and low reproductive rates mean keeping paired birds alive for a long time is key to the health of the species. 

The marbled murrelet is threatened by oil contamination, entanglement in gill nets when foraging at sea, and proposed shipping routes through its range. That’s all expected to lead to a more than 30 per cent projected decline in its population over the next three generations.

Habitat loss, however, remains the largest threat, says COSEWIC.

Since 2016, nesting habitat for the bird has declined in the eastern reaches of Vancouver Island, “primarily because of industrial logging,” according to court documents. 

Over the next five to eight years, Vancouver Island’s remaining 8,500 hectares of nesting habitat are projected to be increasingly at risk due to logging.