Simushir: Lessons Learned?

By Karen Wristen

I was glued to the computer all weekend, watching the agonizingly slow progress of the tugs steaming out to the west coast of Haida Gwaii, to rescue the disabled container ship Simushir. Early Friday, it was reported that the ship had lost power only 19 nautical miles off the coast of Gwaii Haanas National Park Reserve and Haida Cultural Area, in heavy seas with winds gusting up to 75 kph.

The National Park Reserve is one of this coast’s treasures. From an ecological perspective, it is an area of incredible biodiversity. Off the west coast, the ocean floor drops away sharply to depths of over 760 meters, while near shore, the continental shelf is home to rich kelp forests and eelgrass beds. These two, quite different ecosystems existing in such proximity mean the region is home to creatures from the deepest ocean right through to the skies—millions of seabirds either live there or use it as a rest stop in their long migrations.

Map of Haida Gwaii habitats at risk

The sad legacy of past oil spills is that we’re learning more every day about how oil affects different species and the news is not good. The iconic oiled seabird is just the tip of the iceberg: long term and genetic damage has now been linked to oil exposures for species as diverse as birds, otters and whales. There was a lot riding on the wind and waves this weekend; and on the progress of the several tugs headed for the Simushir.

The Simushir was carrying about 400 tonnes of bunker C fuel as well as some diesel. That’s not much, compared with the supertankers that are proposed for this coast; but it was still enough to lay waste to the west coast of Haida Gwaii. Carried along on the Alaska current, the oil would have worked its way northward, oiling steep rocky shores and the innumerable inlets and bays along this rugged coast.

Russian-flagged container ship Simushir was first reported adrift 19 km off Gowgaia Bay, South Moresby Island (Gwaii Haanas). Photo: DND Pacific Maritime Command

“Cleanup” would have been impossible in these conditions—with 4-6 meter seas and high winds, none of the conventional oil spill response equipment could have been deployed effectively. Booms would have been useless against the waves crashing ashore. Most of the oil would come ashore, fouling habitat before anything could be done. The area is far too remote and rugged to contemplate deploying crews to attempt to remove oil from the rocks and beaches.

Against this scenario, the Simushir was helpless. The nearest tug proved, happily, to be just 17 hours away and that was the Coast Guard’s Gordon Reid—a patrol vessel underpowered to tow a vessel the size of Simushir. And remember, Simushir is less than a third the size of a supertanker. The Gordon Reid might have been anywhere on the coast that day; it is pure luck that it was in Hartley Bay.

The Gordon Reid

I have nothing but respect and gratitude for what the crew of the Gordon Reid accomplished, with an underpowered boat and tow lines too light for the job. In that awful weather, they managed to get tow lines aboard the Simushir on three separate occasions, only to see them snap under the enormous strain of wind and waves. Nevertheless, they managed to put a little more sea room between the ship and shore, giving the crew some respite from an experience that was surely harrowing.

Still, the Canadian boats were forced to stand by and watch, waiting for an American commercial tug to put the vessel under tow. It was again pure luck that the tug Barbara Foss was heading into Prince Rupert when the emergency unfolded: the tug is usually stationed in Juan de Fuca Strait. Had it not been for this good fortune, the Simushir would have had to await a rescue tug from Alaska.

The Barbara Foss

Leaving Rupert by mid-day Friday, the Barbara Foss encountered Hecate Strait on one of its bad days: 6-8 meter waves and a southeast wind that blew fitfully in the 30-40 knot range, according to Environment Canada. It took the high-powered tug until Sunday to reach the drifting vessel and during all of that time, the Simushir remained at risk from a change in the wind.

A south or southeast wind was keeping the Simushir offshore for most of Friday, but when storms of this intensity blow through they generally bring changing wind patterns. A shift to westerly was predicted and that would have driven the ship toward shore. Depending on wind speed, the Gordon Reid might, or might not, have been able to keep her off the rocks. The best they’d been able to do when towing with the wind was 1.5-2 knots. It’s unlikely that they’d have made any headway at all towing against the wind.

Tugs like the Barbara Foss are expensive and the crew’s training is highly specialized for ocean rescue and ship salvage. In years past, it may have been good sense for Canada to rely on our neighbour to provide rescue services—they were the ones with the commercial vessel traffic that needed the rescue capacity and so why not let them pay for it, and borrow it when needed? But the volume of shipping passing through Canadian waters has increased dramatically over the past decade and capacity to respond to it has not. If anything, capacity has been decreased by federal cuts to Coast Guard.

To be clear, we have never had towing capacity for ships of the size that now regularly ply our waters. Response times being what they are from the U.S., it is now clear that we need that capacity. It’s also clear that we need some public dialogue on where to locate any new tug. I would vote for Haida Gwaii—it’s right on the shipping route and closest to the worst waters on our coast.

In addition to a salvage tug, we need:

• Agreement on “places of refuge”—protected areas where ships in distress can shelter, potentially putting those areas at risk of a spill;
• A legislated zone of protection, through which ships do not pass—wide enough to ensure that if they lose power like the Simushir did, they cannot drift into shore before a tug can get to them;
• Investment in recruitment and training for coast guard rescue capacity; and
• A ban on oil tankers on the North Coast.

New ways to pay for MPAs

Marine Protected Areas (MPAs) are ocean places that are set aside like parks and are one of the most effective methods to conserve and protect the ocean. MPAs provide sanctuary for sea life so that food-webs can recover and thrive. When planned and managed effectively, MPAs shield ecosystems from harmful human practices such as destructive fishing practices, offshore oil and gas drilling and other industrial activities; coastal and estuarine areas serve as carbon sinks that can mitigate the impacts of climate change; they benefit the economies of coastal communities through businesses such as marine tourism and sustainable fisheries.

If we hope to keep benefiting from the ocean and its resources then we need to come up with ways to pay for the cost of establishing and managing MPAs over the long term.

Canada falls short

Canada maintains an international commitment through the Convention on Biological Diversity to protect ten percent of our national waters. Yet nationally, only one percent of our oceans and Great Lakes fall within a federally designated MPAs; on Canada’s Pacific coast, slightly more than three percent of the ocean is protected by MPAs.

In 2013 the Green Budget coalition estimated that the Government of Canada needed to invest a minimum of $35 million every year for three years in order to establish MPAs in five percent of Canada’s oceans. In June 2014 the government countered with a one-time investment of $37m to establish MPAs on all three coasts. Clearly there is a significant gap between the funds the federal government is willing to invest in MPAs and what is required to keep our oceans healthy and coastal communities prosperous.

Financing options for MPAs

Without government funding for MPAs, where will the money come from to support and maintain health oceans? Other countries have experimented with innovative financing mechanisms in support of marine protected areas and with enormous potential benefits at stake, Canada should be open to evaluating alternate financing models too.

Living Oceans evaluated a handful of supplementary or alternate financing options. These alternate models include:
•    public private partnerships
•    private donations
•    user fees
•    payments for ecosystem services
•    community-based management
•    selling offsets

All of these alternate funding strategies have potential to contribute to the protection of Canada’s oceans—but many of them have significant costs too. All of them require a comprehensive cost-benefit analysis before being proposed or adopted as financing tools for specific MPAs in Canada.

To find out more about the MPA funding options please download our new report: Sustainable Financing Options for a Marine Protected Area Network in British Columbia.

Another Swipe at Charities

This time it’s the Province of B.C. trying to gag us, with a new “Societies Act” containing a section that invites anyone to sue us if they think we’re not acting in the public interest.

Acting in the public interest is not actually my job. Mine is to advocate for protection for the ocean and for communities that depend on ocean resources. I happen to think that this is in the broader public interest as well; but the folks who want to send oil tankers through the 4^th most dangerous body of water in the world probably don’t agree. Prime Minister Harper certainly doesn’t agree. And like it or not, for the moment, he’s the guy who actually does get to say what the public interest in oil tankers is. Come election time, we all get to tell him if he was right or not.

 

The people who definitely don’t get to say what the public interest is are the ones who are looking to profit from endangering public resources, like the ocean. But they are the ones most likely to take up this new invitation to sue.

When I worked as an environmental lawyer, I reviewed dozens of lawsuits against everyday citizens and non-profit societies who were speaking out effectively against development proposals or in favour of regulation of industry. Many of these were clearly what are called “SLAPP suits”: strategic lawsuits against public participation.  Advocacy chill is their purpose; they achieve this by grinding meritless cases through the courts, costing valuable charitable dollars and time and usually, along the way, getting a court order preventing the defendant from continuing to speak out.

One thing that SLAPP suits always suffer from is a shortage of really good law to hang their hats on—it’s hard to accuse someone of a civil wrong when all they’re doing is exercising the right of free speech. Most of the suits allege some kind of slander or libel; some use more complex and arcane law. This proposed provision of the new Societies Act is like a gift: here’s your civil wrong and it’s so vaguely worded that you can be in court for years, grinding away at those nasty activists.

The worst thing about the new section, though, is that it seeks to take the determination of what is in the public interest out of the public domain, where it belongs. Governments are supposed to make that determination, based on what they hear from the many voices advocating their own views of public interest. They are accountable to the electorate for whatever they deem to be in the public interest. Under this new proposal, a judge would be asked to decide what is in the public interest, based on whatever evidence the person who sues chooses to bring forward, and whatever evidence the non-profit being sued can gather to respond to it.

Let’s just sketch that out. Say, for example, Enbridge decides to sue Living Oceans, saying that its Northern Gateway pipeline is in the public interest and our advocacy against it offends this new rule.  Enbridge gives the court its deeply flawed economic analysis and magic job numbers, says “health care and education” about a thousand times, points out that I drive a car and rests its case. Living Oceans can’t actually afford to hire an economist to counter the economic evidence, so we respond with what we have: the scientific evidence that ocean ecosystems do not recover from oil spills in places where highly toxic oil continues to enter the environment, as it would do if the weathered, diluted bitumen were to sink to the ocean floor.

Now how is a judge to determine whether or not we were acting in the public interest based on that evidence? What of the First Nations’ rights and title, the opposition of the labour movement, the views of local communities, farmers and ranchers; or for that matter, the health care and education administrators who are apparently going to see all that Enbridge tax revenue pouring into their coffers? Do we invite them all into the courtroom to say their piece, or do we just ask the government to say what they deem the public interest to be in this case?

If we just ask the government to tell the court what’s in the public interest, then free speech just came to a screaming halt in the Province of B.C. and no non-profit can ever criticize the government again. If instead, we invite into the courtroom all of the many players whose rights and interests must be considered in order to determine what the public interest is, then we’ve just asked a judge to do the government’s job. The judge is an appointee, who is not accountable to voters. Either way, it's wrong.

The proposed section 99 of the new Societies Act attacks one of the fundamental freedoms of democracy, the right of free speech. I expect that, if tested, it would prove unconstitutional for that reason. The Province’s rationale for the proposal—that the public needs to be able to hold non-profits to account for failing to act in the public interest—confuses entirely whose job is whose. The public needs to be able to hold its governments to account for failing to act in the public interest. Non-profits are supposed to help articulate aspects of the public interest that often get overlooked. The public can listen and support the non-profit, or not. Neither they, nor the government, need the right to stop us from speaking.

The government will accept comments on the proposed bill until October 15.