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4th April 2018
BC Government Withheld Information on Dangers of Unregulated Fracking Dams

Despite risks, managers refused to provide information as election loomed.

By Ben Parfitt Today

Early last spring, provincial civil servants cut off virtually all communication about what the government knew about a sprawling network of potentially dangerous and unregulated dams in northeast B.C. on the pretext they could not comment because of the impending election.

The co-ordinated effort meant there was virtually no comment until months after voting day from frontline agencies on how 92 unlicensed dams were built on the BC Liberal government’s watch.

Details about muzzling government communication on the dams — which were built to trap freshwater used in natural gas industry fracking operations — are contained in some of the 8,000 pages of documents released by the BC Oil and Gas Commission in response to Freedom of Information requests by the Canadian Centre for Policy Alternatives, which was the first to report on the dams early last May.

The initial CCPA report, published one week before the election and widely covered by media outlets, exposed how fossil fuel companies had built “dozens” of unlicensed fracking dams.

The FOI documents include internal emails between senior OGC staff and the Ministry of Natural Gas Development, in which the two organizations agree to refuse to release information on the dams on the grounds that doing so would violate rules on managing government records during the “interregnum” (the time between the call of the election and the swearing in of a new government).

But this assertion is flatly rejected by an expert on privacy policy.

“Guidelines on ‘managing records during an election’ cannot trump the law,” said Colin Bennett, a University of Victoria political scientist. “If there is a public interest in disclosure, then the election period is irrelevant.”

Bennett added that B.C.’s Freedom of Information and Protection of Privacy Act clearly states that government officials should proactively release information that is in the public interest without delay. That did not happen in this case.

Not only did it not happen, but the OGC insisted on formal FOI requests being filed to obtain the information. By doing so, the commission — with the knowledge of the Ministry of Natural Gas Development — ensured that documents on the troubling dams would not be released until long after the election.

The suppressed information included documents about unlicensed dams built by Progress Energy, a subsidiary of the giant Malaysian state-owned company Petronas. At the time of last spring’s election, Petronas was still weighing whether or not to invest in a proposed liquefied natural gas plant at the mouth of the Skeena River near Prince Rupert. The project was enthusiastically backed by then-premier Christy Clark and Rich Coleman, minister of natural gas development. Clark went so far as to call opponents of the project “the forces of no.”

Averting a potential disaster

Early in our investigation, the CCPA learned that at least one unauthorized Progress Energy dam was so poorly built that the OGC had quietly ordered the company in spring 2016 to empty the dam’s reservoir in order to avert a potential disaster. (A gas compressor station was downhill of the dam.) The OGC even posted a very short summary of the order on one of its webpages, a low-key public acknowledgement that a more comprehensive document existed.

The CCPA’s request for a copy of the full order was initially denied.

An April 18, 2017 email exchange between the OGC’s executive director of corporate affairs, Graham Currie, and the Ministry of Natural Gas Development’s communications director, Paul Woolley, refers to the full order and related documents as materials that both organizations agree not to release or to answer questions about.

“FYI — spoke with [CCPA policy analyst] Ben Parfitt today and advised him we could not release the order he was asking for and that he should submit an FOI. He said he has to report on this — and will put a line in to the effect:

‘I asked to receive a copy of the order and Graham Currie told me, due to the interregnum, it was not available and I should submit an FOI.’

I suspect we’ll see his editorial coming in the next day or two, based on this conversation,” Curry wrote in the email.

A half hour later, Woolley responded.

“Thx. This is [sic] the lines we are working with:

During the interregnum period, it is public service’s duty to remain impartial during this time both in action and perception.
Government communication practices are the same as they have always been for this election which is to not offer media relations support beyond pointing to already publicly available data or information.
There are exceptions to these practices which are immediate public health matters, environmental health and emergencies.
Further, during this time government staff do not provide analysis or comment on campaign promises of any political party, or any general comments they may make about government programs, policies and services.
Release of the order would not be an immediate concern related to public health and safety or an emergency in my opinion.”

Vincent Gogolek, former executive director of the BC Freedom of Information and Privacy Association, said the email exchange is troubling, particularly in light of a complaint made by the University of Victoria’s Environmental Law Centre on behalf of the association in 2012.

That complaint, to B.C.’s Information and Privacy Commissioner, outlined several instances where the association felt that government officials had acted incorrectly by withholding information that should have been released because it was clearly in the public interest.

One notable example was the government’s failure to notify the public about possible safety concerns at the small Testalinden dam in southern B.C. near the community of Oliver. A portion of the dam’s wall gave way in 2010, releasing 20,000 cubic metres of water. Miraculously, no one was killed when the dam’s reservoir triggered a mudslide that wiped out five houses and blocked a portion of Highway 97 for five days.

After reviewing the law centre’s complaint, then-information and privacy commissioner Elizabeth Denham wrote a report in which she found that provincial civil servants knew from government inspection reports that the Testalinden dam was near the end of its lifespan and that it posed “a hazard.”

Denham concluded that the government “failed to meet its obligation” by not alerting the public to the “compromised state of the dam.”

Denham was particularly concerned that when it came to the troubled dam, civil servants appeared to ignore one of the Freedom of Information and Protection of Privacy Act’s most important provisions, Section 25, which stipulates that the head of any public body “must, without delay” disclose any information “about a risk of significant harm to the environment or to the health or safety of the public or a group of people.”

In light of Denham’s report, Gogolek wonders how the OGC and Ministry of Natural Gas Development concluded four years later that it was not in the public interest to proactively release information on the dozens of unauthorized earthen dams built by fossil fuel companies.

Some of those earthen dams held back seven times more water than what escaped during the catastrophic Testalinden failure. And in each case, those dams were not vetted by provincial dam safety officials before they were built, meaning it was anybody’s guess whether or not the structures were designed and built to even minimally acceptable engineering specifications.

“How did they interpret that these dams were so radically different than the Testalinden dam? That’s the critical question in my mind,” Gogolek said.

Gogolek’s concern has added significance in light of other documents released in response to the CCPA’s FOI requests. Those documents show that OGC personnel knew as far back as June 2015 that there was a significant problem at another unauthorized Progress Energy dam, yet the commission took no significant action until May 2016. And it remained virtually silent on the matter for almost another year until it was forced to respond because of the CCPA investigation.

...Continued in Part Two