The Meaning of GAR. February / March 2008

Transcription

1 The Meaning of GAR February / March 2008

2 Topics Overview Key Messages GAR at a Glance Making GAR Work Well Why GAR? Why Needed Why Desired Why it Differs from FPC About GAR What GAR Enables What GAR Requires What GAR Does Not Expressly Address Summary

3 Key Messages Why GAR? 1. GAR needed by government to enable it to take listed actions 2. GAR desired by government to provide base-line direction to decision makers regarding process and criteria (tests) for decisions 3. GAR neither new, nor perfect, but improves on FPC About GAR 4. GAR enables 3 types of decisions: species designations, land use designations & related objectives & practices designations 5. Government has discretion as to whether or not to take action under GAR 6. But, if government decides to take GAR action, it must follow mandatory process & meet mandatory tests to take that action Making GAR Work Well 7. Although GAR sets out process & tests, some key issues left for interpretation 8. Law can help with some of these issues, but does not fill in all of the blanks 9. Stages before and after process & tests can be equally important, but GAR does not expressly address these 10. Government has already taken steps to provide guidance on some of these issues, so question now is what, if anything, more or different is required to achieve common understanding & make GAR work well?

4 GAR at a Glance Regulation in effect under FRPA since January 31, 2004 Two primary functions: Enables government to make specified decisions that affect forest and range practices Requires government when making such decisions to: follow specified process meet specified tests Third function is to provide transition rules Continues some FPC decisions as GAR decisions Applies GAR decisions to FPC based operations This presentation focuses on the two primary functions

5 Making GAR Work Well This presentation explains how GAR works But, critical to you is making GAR work well Requires: Getting the most out of what GAR expressly addresses Dealing effectively with issues relevant to GAR decisions but which GAR does not expressly address

6 Making GAR Work Well (cont d) 5 issues to think about today: 1. Using GAR: to GAR or not to GAR? 2. GAR Process: what would be the most helpful improvement in applying GAR process? 3. GAR Tests: what would be the most helpful improvement in applying GAR tests? 4. GAR Order Options: what options exist for writing GAR orders that achieve desired benefit to value at risk while maximizing agreement holder flexibility? 5. GAR Order Implementation: what approaches exist for writing GAR orders that avoid difficulties implementing the order in plans or in the field?

7 Making GAR Work Well What GAR Does Expressly Address 5 issues to think about today: 1. Using GAR: to GAR or not to GAR? 2. GAR Process: what would be the most helpful improvement in applying GAR process? 3. GAR Tests: what would be the most helpful improvement in applying GAR tests? 4. GAR Order Options: what options exist for writing GAR orders that achieve desired benefit to value at risk while maximizing agreement holder flexibility? 5. GAR Order Implementation: what approaches exist for writing GAR orders that avoid difficulties implementing the order in plans or in the field?

8 Making GAR Work Well What GAR Does Expressly Address -GAR Process 5 issues to think about today: 1. Using GAR: to GAR or not to GAR? 2. GAR Process: what would be the most helpful improvement in applying GAR process? 3. GAR Tests: what would be the most helpful improvement in applying GAR tests? 4. GAR Order Options: what options exist for writing GAR orders that achieve desired benefit to value at risk while maximizing agreement holder flexibility? 5. GAR Order Implementation: what approaches exist for writing GAR orders that avoid difficulties implementing the order in plans or in the field?

9 Making GAR Work Well What GAR Does Expressly Address -GAR Process -GAR Tests 5 issues to think about today: 1. Using GAR: to GAR or not to GAR? 2. GAR Process: what would be the most helpful improvement in applying GAR process? 3. GAR Tests: what would be the most helpful improvement in applying GAR tests? 4. GAR Order Options: what options exist for writing GAR orders that achieve desired benefit to value at risk while maximizing agreement holder flexibility? 5. GAR Order Implementation: what approaches exist for writing GAR orders that avoid difficulties implementing the order in plans or in the field?

10 Making GAR Work Well What GAR Does Expressly Address -GAR Process -GAR Tests 5 issues to think about today: 1. Using GAR: to GAR or not to GAR? 2. GAR Process: what would be the most helpful improvement in applying GAR process? 3. GAR Tests: what would be the most helpful improvement in applying GAR tests? 4. GAR Order Options: what options exist for writing GAR orders that achieve desired benefit to value at risk while maximizing agreement holder flexibility? 5. GAR Order Implementation: what approaches exist for writing GAR orders that avoid difficulties implementing the order in plans or in the field?

11 Making GAR Work Well What GAR Does Not Expressly Address 5 issues to think about today: 1. Using GAR: to GAR or not to GAR? 2. GAR Process: what would be the most helpful improvement in applying GAR process? 3. GAR Tests: what would be the most helpful improvement in applying GAR tests? 4. GAR Order Options: what options exist for writing GAR orders that achieve desired benefit to value at risk while maximizing agreement holder flexibility? 5. GAR Order Implementation: what approaches exist for writing GAR orders that avoid difficulties implementing the order in plans or in the field?

12 Making GAR Work Well What GAR Does Not Expressly Address -Using GAR 5 issues to think about today: 1. Using GAR: to GAR or not to GAR? 2. GAR Process: what would be the most helpful improvement in applying GAR process? 3. GAR Tests: what would be the most helpful improvement in applying GAR tests? 4. GAR Order Options: what options exist for writing GAR orders that achieve desired benefit to value at risk while maximizing agreement holder flexibility? 5. GAR Order Implementation: what approaches exist for writing GAR orders that avoid difficulties implementing the order in plans or in the field?

13 Making GAR Work Well What GAR Does Not Expressly Address -Using GAR -GAR Order Options 5 issues to think about today: 1. Using GAR: to GAR or not to GAR? 2. GAR Process: what would be the most helpful improvement in applying GAR process? 3. GAR Tests: what would be the most helpful improvement in applying GAR tests? 4. GAR Order Options: what options exist for writing GAR orders that achieve desired benefit to value at risk while maximizing agreement holder flexibility? 5. GAR Order Implementation: what approaches exist for writing GAR orders that avoid difficulties implementing the order in plans or in the field?

14 Making GAR Work Well 5 issues to think about today: 1. Using GAR: to GAR or not to GAR? What GAR Does Not Expressly Address -Using GAR -GAR Order Options -GAR Order Implementation 2. GAR Process: what would be the most helpful improvement in applying GAR process? 3. GAR Tests: what would be the most helpful improvement in applying GAR tests? 4. GAR Order Options: what options exist for writing GAR orders that achieve desired benefit to value at risk while maximizing agreement holder flexibility? 5. GAR Order Implementation: what approaches exist for writing GAR orders that avoid difficulties implementing the order in plans or in the field?

15 Why GAR? Why GAR is Needed Why GAR is Desired Why GAR Differs from FPC

16 Why GAR Needed GAR is required to enable government to take the actions specified in it Fundamental principle of public law that government action must be supported by legal authority With two minor exceptions, that legal authority must come from a grant of statutory authority GAR is the statutory authority for the actions specified in it its first primary function

17 Why GAR Desired GAR also desired by Government After creating administrative authority to make decision, government can fall silent on process to be followed & substantive tests to be applied Leaves these issues to discretion of administrative decision maker Common approach in early days of creating administrative powers Downsides: Sometimes unreasonably imposed responsibility for Policy decisions on administrators Lacking statutory direction, the process, considerations & decisions sometimes inconsistent among administrators Courts stepped in with rules to enhance administrative fairness to those adversely affected by decisions Governments generally (increasingly?) reluctant to leave these issues entirely to administrators & courts, so often will set out in legislation at least some rules process & substance they want followed GAR does this its second primary function

18 Why GAR Differs from FPC Statutory authority for GAR decisions not invented with FRPA Much of this authority existed under FPC: e.g. species designations, creation of UWR s & WHA s and objectives & GWM s for them, all enabled by OPR/OSPR e.g. resource features & wildlife habitat features made known under OPR/OSPR But problems with FPC approach: enabling provisions scattered throughout FPC legislation process & criteria in legislation for making these decisions inconsistent & in some cases inadequate or uncertain in other cases, validity of authority questionable (when created only by definitions e.g. VQO s being established; various items being made known)

19 Why GAR Differs from FPC In move to FRPA, Government tried to address many of these issues through GAR: Goal: enhance ease of reference and understanding of decisions that can be taken and requirements that apply to doing so GAR does that by listing actions in a consolidated one-stop shopping regulation Goal: ensure proper legal authority given to take action GAR does that by granting authority in substantive provisions Goal: ensure minimum threshold for process and tests & enhance consistency in approach GAR does that by setting out process for taking action that is consistent for most actions GAR does that by setting out tests for taking action that are relatively consistent, where appropriate, among decisions

20 About GAR What GAR Enables What decisions What effect What GAR Requires Process Substantive tests What GAR Does Not Address

21 What GAR Enables GAR enables government to make 3 types of decisions

22 What GAR Enables GAR enables government to make 3 types of decisions - 3 Species Designations Species at Risk (GAR s.13(1)) Regionally Important Wildlife (GAR s.13(2)) Ungulates (GAR s.13(3))

23 What GAR Enables Species at Risk (GAR s.13(1)) Regionally Important Wildlife (GAR s.13(2)) Ungulates (GAR s.13(3)) GAR enables government to make 3 types of decisions -3 Species Designations - 6 Land Use Designations & related Objectives LMZ s (GAR s.6(1)) Wildlife Habitat Areas (GAR s.10(1)) Ungulate Winter Ranges (GAR s.12(1)) Community Watersheds (GAR s.8(1)) Fisheries Sensitive Watersheds (GAR s.14(1)) Scenic Areas (GAR s.7(1)) Objective (GAR ss.6(2)7(2),8(2),10(2), 12(2),14(2))

24 What GAR Enables Species at Risk (GAR s.13(1)) Regionally Important Wildlife (GAR s.13(2)) Ungulates (GAR s.13(3)) GAR enables government to make 3 types of decisions -3 Species Designations - 6 Land Use Designations & related Objectives - 4 Practices Designations LMZ s (GAR s.6(1)) Resource Features (8 types) (GAR s.5(1)) Wildlife Habitat Features (5 types) (GAR s.11(1)) Temperature Sensitive Streams (GAR s.15) Wildlife Habitat Areas (GAR s.10(1)) Ungulate Winter Ranges (GAR s.12(1)) Community Watersheds (Gar s.8(1)) Fisheries Sensitive Watersheds (GAR s.14(1)) Scenic Areas (GAR s.7(1)) General Wildlife Measure (GAR s.9(1) or GAR s.9(2)) Objective (GAR ss.7(2),8(2),10(2), 12(2),14(2))

25 What GAR Enables Species at Risk (GAR s.13(1)) Regionally Important Wildlife (GAR s.13(2)) Ungulates (GAR s.13(3)) LMZ s (GAR s.6(1)) Resource Features (8 types) (GAR s.5(1)) Wildlife Habitat Features (5 types) (GAR s.11(1)) Temperature Sensitive Streams (GAR s.15) Wildlife Habitat Areas (GAR s.10(1)) Ungulate Winter Ranges (GAR s.12(1)) Community Watersheds (Gar s.8(1)) Fisheries Sensitive Watersheds (GAR s.14(1)) Scenic Areas (GAR s.7(1)) General Wildlife Measure (GAR s.9(1) or GAR s.9(2)) Objective (GAR ss.7(2),8(2),10(2), 12(2),14(2)) GAR specifies who in government can make these decisions: - By Minister responsible for various Acts - Some Land Use Designations / Objectives split between Ministers - Minister can delegate decision making power -Decision given to Minister in first instance to enable Minister to give binding direction to delegate

26 GAR Decisions Made to Date LAND USE DESIGNATIONS Lakeshore management zones Scenic areas Community watersheds Wildlife habitat areas & associated GWMs Ungulate winter ranges & associated GWMs Species-specified areas & associated GWMs Fisheries sensitive watersheds SPECIES DESIGNATIONS Species at risk Decision Est. # of Selected Decisions Made to Date Northern Interior Southern Interior Coast Northern Interior Southern Interior Coast Southern Interior?? > ( + 18 FPC) = ( + 49 FPC) = ( + 86 FPC) = ( + 9 FPC) = ( + 0 FPC) = ( + 11 FPC) = 21 2 ( + 0 FPC) = 2 31 ( about 15 on Coast; 16 Interior) 82 species Regionally important wildlife Ungulates PRACTICES DESIGNATIONS Resource features (8 types) General wildlife measures Wildlife habitat features (5 types) Temperature sensitive streams 0 8 species? See above 25 Proposed 0

27 Effect of GAR Decisions on Practices GAR objectives applicable to Woodlot Licences limited to those for: FSW s and CW s (WLPPR s.9(2)(a)) Species at Risk (GAR s.13(1)) Regionally Important Wildlife (GAR s.13(2)) Ungulates (GAR s.13(3)) GAR Objectives applicable to Range Act agreements limited to those for: CW s WHA s UWR s (RPPR s.12(1)) LMZ s (GAR s.6(1)) Resource Features (8 types) (GAR s.5(1)) Wildlife Habitat Features (5 types) (GAR s.11(1)) Temperature Sensitive Streams (GAR s.15) Wildlife Habitat Areas (GAR s.10(1)) Ungulate Winter Ranges (GAR s.12(1)) Community Watersheds (Gar s.8(1)) Fisheries Sensitive Watersheds (GAR s.14(1)) Scenic Areas (GAR s.7(1)) Planning Level Effect General Wildlife Measure (GAR s.9(1) or GAR s.9(2)) FSP s WLP s Objective (GAR ss.6(2), 7(2),8(2),10(2), 12(2),14(2)) RUP s RSP s Field Level Effect Subject to exceptions, Must have Result or Strategy (FRPA ss.5(1)(b) & 13(1)(b)) Must be consistent Must be consistent Minister may authorize R/S Must achieve result, carry out strategy (FRPA s.21(1)) If graze, cut hay, conduct / maintain range dev., must do so in accordance with plan (FRPA s.45(1))

28 Effect of GAR Decisions on Practices For Woodlots: If carrying out PFA, must comply with GWM (WLPPR s.55) Species at Risk (GAR s.13(1)) Regionally Important Wildlife (GAR s.13(2)) Ungulates (GAR s.13(3)) For Range Tenures: Range practice must be consistent with GWM or alternative (RPPR s.36) LMZ s (GAR s.6(1)) Resource Features (8 types) (GAR s.5(1)) Wildlife Habitat Features (5 types) (GAR s.11(1)) Temperature Sensitive Streams (GAR s.15) Wildlife Habitat Areas (GAR s.10(1)) Ungulate Winter Ranges (GAR s.12(1)) Community Watersheds (Gar s.8(1)) Fisheries Sensitive Watersheds (GAR s.14(1)) Scenic Areas (GAR s.7(1)) General Wildlife Measure (GAR s.9(1) or GAR s.9(2)) Objective (GAR ss.7(2),8(2),10(2), 12(2),14(2)) FSP s WLP s RUP s RSP s Subject to exceptions, Must have Result or Strategy (FRPA ss.5(1)(b) & 13(1)(b)) Must be consistent Must be consistent Minister may authorize R/S Practice Requirement: If AP conducting PFA, Must comply with GWM (FPPR s.69) Must achieve result, carry out strategy (FRPA s.21(1)) If graze, cut hay, conduct / maintain range dev., must do so in accordance with plan (FRPA s.45(1))

29 Effect of GAR Decisions on Practices For Woodlots: Similar concept as FPPR, but applies only in RMZ (WLPPR s.42) Species at Risk (GAR s.13(1)) Regionally Important Wildlife (GAR s.13(2)) Ungulates (GAR s.13(3)) For Range Tenures: N/A (no authorized felling, modifying or removing of trees) LMZ s (GAR s.6(1)) Resource Features (8 types) (GAR s.5(1)) Wildlife Habitat Features (5 types) (GAR s.11(1)) Temperature Sensitive Streams (GAR s.15) Wildlife Habitat Areas (GAR s.10(1)) Ungulate Winter Ranges (GAR s.12(1)) Community Watersheds (Gar s.8(1)) Fisheries Sensitive Watersheds (GAR s.14(1)) Scenic Areas (GAR s.7(1)) General Wildlife Measure (GAR s.9(1) or GAR s.9(2)) Objective (GAR ss.7(2),8(2),10(2), 12(2),14(2)) FSP s WLP s RUP s RSP s Subject to exceptions, Must have Result or Strategy (FRPA ss.5(1)(b) & 13(1)(b)) Must be consistent Must be consistent Minister may authorize R/S Practice Requirement: If AP felling, modifying, removing trees in RMA of TSS or tributary, Must retain (FPPR s.53) Practice Requirement: If AP conducting PFA, Must comply with GWM (FPPR s.69) Must achieve result, carry out strategy (FRPA s.21(1)) If graze, cut hay, conduct / maintain range dev., must do so in accordance with plan (FRPA s.45(1))

30 Effect of GAR Decisions on Practices Resource Features (8 types) (GAR s.5(1)) Wildlife Habitat Features (5 types) (GAR s.11(1)) For Woodlots: For resource feature: if Species carrying at out forest practice, Regionally must: Risk Important (GAR carry s.13(1)) out measures in plan Wildlife re feature; or (GAR s.13(2)) if no measure, not damage or render ineffective (WLPPR s.56(1)) Temperature For wildlife habitat feature, Wildlife Sensitive must not damage or Habitat render Streamsineffective Areas (GAR s.15) (WLPPR s.56(2)) (GAR s.10(1)) Ungulates (GAR s.13(3)) Ungulate Winter Ranges (GAR s.12(1)) Community Watersheds (Gar s.8(1)) For Range Tenure Holders: If carrying out range practice, must not damage or render ineffective (RPPR ss.37&38) Fisheries Sensitive Watersheds (GAR s.14(1)) Scenic Areas (GAR s.7(1)) LMZ s (GAR s.6(1)) General Wildlife Measure (GAR s.9(1) or GAR s.9(2)) Objective (GAR ss.7(2),8(2),10(2), 12(2),14(2)) FSP s WLP s RUP s RSP s Subject to exceptions, Must have Result or Strategy (FRPA ss.5(1)(b) & 13(1)(b)) Must be consistent Must be consistent Minister may authorize R/S Practice Requirement: If AP conducting PFA, Must not damage or render ineffective (FPPR s.70) Practice Requirement: If AP felling, modifying, removing trees in RMA of TSS or tributary, Must retain (FPPR s.53) Practice Requirement: If AP conducting PFA, Must comply with GWM (FPPR s.69) Must achieve result, carry out strategy (FRPA s.21(1)) If graze, cut hay, conduct / maintain range dev., must do so in accordance with plan (FRPA s.45(1))

31 GAR Decisions & Their Effect on Forest & Range Practices Species at Risk (GAR s.13(1)) Regionally Important Wildlife (GAR s.13(2)) Ungulates (GAR s.13(3)) LMZ s (GAR s.6(1)) Resource Features (8 types) (GAR s.5(1)) Wildlife Habitat Features (5 types) (GAR s.11(1)) Temperature Sensitive Streams (GAR s.15) Wildlife Habitat Areas (GAR s.10(1)) Ungulate Winter Ranges (GAR s.12(1)) Community Watersheds (Gar s.8(1)) Fisheries Sensitive Watersheds (GAR s.14(1)) Scenic Areas (GAR s.7(1)) General Wildlife Measure (GAR s.9(1) or GAR s.9(2)) Objective (GAR ss.6(2), 7(2),8(2),10(2), 12(2),14(2)) FSP s WLP s RUP s RSP s Subject to exceptions, Must have Result or Strategy (FRPA ss.5(1)(b) & 13(1)(b)) Must be consistent Must be consistent Minister may authorize R/S Practice Requirement: If conducting PFA, Must not damage or render ineffective (FPPR s.70) Practice Requirement: If AP felling, modifying, removing trees in RMA of TSS or tributary, Must retain (FPPR s.53) Practice Requirement: If AP conducting PFA, Must comply with GWM (FPPR s.69) Must achieve result, carry out strategy (FRPA s.21(1)) If graze, cut hay, conduct / maintain range dev., must do so in accordance with plan (FRPA s.45(1))

32 What GAR Requires Process Substantive tests

33 Gaps in GAR Process and Tests & General Principles for Addressing Them GAR has gaps, where it does not expressly set out all of the details of the process or the tests that apply So, how are these gaps filled? By principles of administrative law Some principles quite specific But two general statements of principle provide the bookends for guidance on the gaps: there is no such thing as absolute and untrammelled discretion, that is that action can be taken on any ground for any reason that can be suggested to the mind of the administrator for far-reaching and frequently complicated administrative schemes, the approach should be to endeavour within the scope of the legislation to give effect to its provisions so that the administrative agencies may function effectively

34 Process Required GAR requires government to follow 3 processes when taking or potentially taking GAR action 1. Must provide opportunity for review & comment 2. Must consult 3. Must give notice of order This presentation focuses on first two: Review/Comment & Consultation

35 Opportunity for Review & Comment Two key questions: 1. Who is entitled to the opportunity? 2. What must the opportunity consist of?

36 Who is entitled to opportunity? GAR obligation limited to holders of agreements under Forest Act / Range Act affected by order If species designation, to organizations minister considers representative of those agreement holders that may be affected by order If any other decision, to actual holders of those agreements that will be affected by order GAR does not limit government to providing only these opportunities GAR does not speak to government duties re First Nations

37 What must opportunity consist of? Nothing specified in GAR (or in delegation of decision making power) So there is a gap, & general principles of administrative law will apply Key issues: Method Information to be provided to agreement holders Time allowed for response Consideration of input from agreement holders Response to agreement holders Concept of spectrum of opportunity consistent with general administrative law principles, but caution against falling below required minimum

38 What must opportunity consist of? Method Decision maker must provide opportunity for formal input Two basic options: allow written submissions only; or allow oral presentation as well as written submissions Appropriate option usually depends on significance of decision on the agreement holders that will be affected As GAR also requires consultation of some agreement holders, likely review/comment obligation does not require decision maker to have an in-person meeting with agreement holders

39 What must opportunity consist of? Information to be Provided Agreement Holders Administrative law says amount of information that must be provided can vary depending on situation Generally: must be sufficient to enable the agreement holder to participate in the process in a meaningful way falls short of criminal law obligation of full disclosure but..notice of the substance of the matter will be necessary to enable a party to make representations effectively and to answer any case that must be met. Applied to GAR, likely means information on 4 points must be provided

40 What must opportunity consist of? Information to be Provided Agreement Holders 1. The nature of the decision what kind of GAR decision it is where the decision will apply if it is an objective or GWM, the proposed text 2. Indication re which agreement holders likely to be affected 3. Why tests are met government (not decision maker) must provide its analysis of tests and why it believes they are met 4. Other matters decision maker believes are relevant & will be taken into account in making the decision these are permitted from decision maker, in that role, & can be helpful must be relevant and can t conflict with express GAR tests or administrative law principles decision maker must not consider them binding & conclusive, without the need to consider other factors

41 What must opportunity consist of? Time Timeline for response must be specified Must be sufficient to allow agreement holder adequate time to assess & respond to the proposed decision and the government s assessment of why it meets the GAR tests Can vary depending on: Importance of agreement holder s interests Significance of impact of the decision on those interests Complexity of proposal and related impacts Agreement holder s familiarity with proposal and impacts Implications of delay

42 What must opportunity consist of? Consideration of Input If submissions are made by an agreement holder, they must be considered by the decision maker

43 What must opportunity consist of? Response from Decision Maker Decision maker does not necessarily have a duty to respond to the agreement holders or give reasons for a decision (cf. decisions re FSP s, WLP s, RUP s and RSP s FRPA expressly requires written reasons for refusing to approve) However, if decision challenged, possible for court to draw adverse inference if no reasons provided Therefore, providing reasons generally recommended, especially if agreement holders have asserted tests are not met Generally not expected to be of a judicial standard

44 Consultation Like Opportunity for Review & Comment, two key questions: 1. Who is entitled to be consulted? 2. What must consultation consist of?

45 Who is entitled to be consulted? GAR obligation limited to holders of agreements under Forest Act / Range Act on whom the order may have a material adverse impact Obligation exists whether or not holder of agreement identifies that it will be materially impacted Does not apply to species designations Obligation to consult First Nations (or anyone else) separate from this express GAR duty

46 What must consultation consist of? Like opportunity for review & comment: nothing specified in GAR (or in delegation of decision making power) so general principles of administrative law will apply Key issues are the same: Method Information to be provided to agreement holders Time allowed for response Consideration of input from agreement holders Response to agreement holders Principles re information, time, consideration of input & response will be similar Method will differ, and so will focus

47 What must consultation consist of?(cont d) As consultation differs from review and comment, this implies a different Method is required Considered to be a more interactive requirement: while review / comment could be limited to written submissions, likely consultation will also require opportunity to make oral submissions would involve an offer to meet & meeting if offer accepted

48 What must consultation consist of?(cont d) Guided by following principles re duty to consult: can t be superficial, done merely for the sake of getting through the duty must be a genuine invitation to [agreement holders] to make their views known and a real opportunity for [agreement holders] to take reasonable steps to affect a proposed decision but also must balance fairness and efficiency agreement holders must be given a reasonable and adequate time to make their views known however, a single hearing (meeting) will suffice if it enables the agreement holders to adequately present their views Duty to consult is on the minister (or DDM), so can t be fulfilled simply by meetings between government staff & agreement holders must involve decision maker Added focus expected to be on existence & degree of material adverse impact on agreement holder(s)

49 Tests Government cannot make a decision under GAR (other than no ) unless GAR tests are met Key questions are: What tests apply? To whom do the tests apply & how do they apply to that person? What are the specifics of the tests? What process / methods should be used to determine whether or not the tests are met?

50 What tests apply? 2 groups of tests: those in the GAR section under which the decision is being made (ss.5 to 15); and those in GAR s.2(1) Government material sometimes describes these as 4 tests 1 test in each of ss.5 to 15 3 tests in s.2(1) but usually more than 1 test in each of ss.5 to 15 All applicable tests must be met to enable the decision

51 To whom & how do tests apply? Tests apply to the minister or delegated decision maker In other words, it is the minister or delegated decision maker that must determine whether or not the tests are met Agreement holders must be asked for input on the tests, and if such input given it must be considered, but: obligation remains on the decision maker obligation applies regardless of the amount or absence of input from agreement holders

52 To whom & how do tests apply? (cont d) Minister must be satisfied each test is met It is the minister s (DDM s) opinion that is relevant Not an objective / reasonable person test Rather, what the decision maker thinks However: Does not mean opinion can be reached casually Nor can it be based on personal knowledge Decision must be based on: evidence put forward to decision maker by government staff & agreement holders & available to both evidence [that is] sufficient to satisfy an unprejudiced mind seeking the truth that the test is met balance of probabilities generally sufficient but, if decision has serious consequences for agreement holder, could be somewhat higher

53 What are the specifics of the tests? Tests Specific to Decision For each decision, GAR sets out tests in the relevant section that must be met (ss.5 to 15) For most decisions, there are two tests or two parts to the test: A part / test that is common to most decisions A part / test unique to that type of decision (these are the ones government material sometimes seems to overlook when suggesting there are only 4 GAR tests)

54 What are the specifics of the tests? Test Common to Most Decisions requires special management not otherwise provided by an enactment Application of concept varies somewhat between decisions e.g. for UWR s, GAR applies concept to establishing both the UWR & the objective for it cf. for WHA s, GAR applies concept to objective, but a different test for the WHA itself cf. for GWM s, where special management part not included 3 aspects to this part of the test [section topic] requires management management required must be special the special management required must not otherwise be provided by an enactment (enactment means provincial Acts, regulations & decisions under those Acts & regulations but not limited to practices legislation)

55 What are the specifics of the tests? Test(s) Unique to Decision Part / test that is unique to decision varies widely among the decisions (hence unique!) These are the tests / parts of the test not counted in the 4 tests of GAR Sometimes affects whether or not decision can be made Other times affects the nature of the decision that can be made

56 What are the specifics of the tests? Examples of Tests Specific to Decision Resource Features (MOFR) 5 (2) The minister responsible for the Forest Act may make an order under subsection (1) if the minister is satisfied that the resource feature requires special management not otherwise provided for under this regulation or another enactment. (3) The identification of a resource feature under subsection (1) (a) may be by category or type, and may be restricted to a specified geographic location, and (b) must be sufficiently specific to enable a person affected by it to identify the resource feature in the ordinary course of carrying out forest practices or range practices.

57 What are the specifics of the tests? Examples of Tests Specific to Decision Resource Features (MOFR) Special Management Test - common to most decisions 5 (2) The minister responsible for the Forest Act may make an order under subsection (1) if the minister is satisfied that the resource feature requires special management not otherwise provided for under this regulation or another enactment. (3) The identification of a resource feature under subsection (1) (a) may be by category or type, and may be restricted to a specified geographic location, and (b) must be sufficiently specific to enable a person affected by it to identify the resource feature in the ordinary course of carrying out forest practices or range practices.

58 What are the specifics of the tests? Examples of Tests Specific to Decision Resource Features (MOFR) Test Unique to Features Decisions this one affects nature 5 (2) The minister responsible for the Forest Act may make an order under subsection (1) if the minister is satisfied that the resource feature requires special management not otherwise provided for under be made this regulation or another enactment. (3) The identification of a resource feature under subsection (1) (a) may be by category or type, and may be restricted to a specified geographic location, and (b) must be sufficiently specific to enable a person affected by it to identify the resource feature in the ordinary course of carrying out forest practices or range practices. of decision more than whether or not it can

59 What are the specifics of the tests? Examples of Tests Specific to Decision Fisheries Sensitive Watersheds (MOE) 14 (1) The minister responsible for the Wildlife Act by order may identify as a fisheries sensitive watershed an area of land in a watershed that has significant downstream fisheries values and significant watershed sensitivity if satisfied that the area requires special management to protect fish, that is not otherwise provided for under this regulation or another enactment, by (a) conserving (i) the natural hydrological conditions, natural stream bed dynamics and stream channel integrity, and (ii) the quality, quantity and timing of water flow, or (b) preventing cumulative hydrological effects that would have a material adverse effect on fish.

60 What are the specifics of the tests? Examples of Tests Specific to - common Decision to most Fisheries Sensitive Watersheds (MOE) Special Management Test decisions 14 (1) The minister responsible for the Wildlife Act by order may identify as a fisheries sensitive watershed an area of land in a watershed that has significant downstream fisheries values and significant watershed sensitivity if satisfied that the area requires special management to protect fish, that is not otherwise provided for under this regulation or another enactment, by (a) conserving (i) the natural hydrological conditions, natural stream bed dynamics and stream channel integrity, and (ii) the quality, quantity and timing of water flow, or (b) preventing cumulative hydrological effects that would have a material adverse effect on fish.

61 Special Management Test What are the specifics of the tests? Examples of Tests Specific common to Decision to most decisions but this one has additional parts to SMT 14 (1) The minister responsible for the Wildlife Act by order may identify as a fisheries sensitive watershed an area of land in a watershed that has significant downstream fisheries values and significant watershed sensitivity if satisfied that the area requires special management to protect fish, that is not otherwise provided for under this regulation or another enactment, by (a) conserving (i) the natural hydrological conditions, natural stream bed dynamics and stream channel integrity, and (ii) the quality, quantity and timing of water flow, or (b) preventing cumulative hydrological effects that would have a material adverse effect on fish. Fisheries Sensitive Watersheds (MOE)

62 Plus Test Unique to this Decision What are the specifics of the tests? Examples of Tests Specific in to this case, Decision affects whether or not can make decision, not nature of decision to make 14 (1) The minister responsible for the Wildlife Act by order may identify as a fisheries sensitive watershed an area of land in a watershed that has significant downstream fisheries values and significant watershed sensitivity if satisfied that the area requires special management to protect fish, that is not otherwise provided for under this regulation or another enactment, by (a) conserving (i) the natural hydrological conditions, natural stream bed dynamics and stream channel integrity, and (ii) the quality, quantity and timing of water flow, or (b) preventing cumulative hydrological effects that would have a material adverse effect on fish. Fisheries Sensitive Watersheds (MOE)

63 What are the specifics of the tests? Tests Specific to Decision Not attempting to provide further definition to these tests today But since government analysis (plus information package) must speak to these tests, requires consideration perhaps in panel sessions later today substantive meaning process / method for determining whether test met or not

64 What are the specifics of the tests? Section 2(1) Tests Apply to every GAR decision Require that: decision be consistent with established objectives decision not unduly reduce the supply of timber from BC s forests benefits to public from decision outweigh any: material adverse impact on delivered wood costs of any Forest Act agreement holder affected; and undue constraint on ability of an agreement holder to exercise its rights under the agreement GAR gives no guidance as to meaning of these tests Will try today to suggest some possibilities to trigger discussion in panels

65 Section 2(1) Tests Consistent with established Objectives consistent not defined so courts look to dictionary, vernacular of profession or industry or other court decisions: understood to mean in harmony, in agreement or not in conflict with or generally headed in the same direction as established objectives defined in FPPR as: FPC grandparented objectives FPPR objectives Land use objectives (formerly HLP s, now under Land Act and Land Use Objectives Regulation) Objectives established under GAR most likely government analysis must identify whether there are any such objectives relevant to this test & explain why GAR decision is consistent

66 Section 2(1) Tests Not Unduly Reduce Supply of Timber unduly not defined so ordinary dictionary definitions, vernacular of profession/industry & court decisions will be looked to: excessive ; disproportionate ; unwarranted but assessed how or compared with what? discussion / time of drafting was that it means in excess of: impacts of FPC on timber supply estimated in 1996 FPC Timber Supply Impact Analysis MOE statements under FPC re maximum impacts on timber supply for specified decisions (e.g. 1% by District) again, most likely that government analysis must speak to what is meant by unduly & why proposed decision does not breach this test

67 Section 2(1) Tests Benefits to Public vs. Impact on DWC test contains 4 concepts that must be assessed by decision maker: benefits to public outweigh material adverse impact delivered wood costs

68 Section 2(1) Tests Benefits to Public vs. Impact on DWC benefits to public and outweigh benefits to public likely include environmental, social, economic obvious that conserving environmental values, addressing First Nation rights, etc. generally viewed as beneficial but, requiring that benefits outweigh any adverse impacts requires decision maker to: make an assessment have a method for doing so

69 Section 2(1) Tests Benefits to Public vs. Impact on DWC benefits outweigh (cont d) What methodology, what degree of precision? SCC Stone fire decision gives guidance on environmental assessment: environmental considerations have value in the sense of the nature of the wildlife, plants and other organisms protected, the uniqueness of the ecosystem, the environmental services provided or recreational opportunities afforded, or the emotional attachment of the public to the area but, can t apply a value to the environment that is overly arbitrary and simplistic instead, must be a coherent theory of value, a methodology suitable for assessment and supporting evidence suggest similar approach applies to all public benefits

70 Section 2(1) Tests Benefits to Public vs. Impact on DWC material adverse impact material not defined likely to be something considered significant or highly important - affecting agreement holder s wellbeing & perhaps their decision to proceed magnitude not only guide small increases can be significant must be assessed in the context of the operation affected, not over the whole of the licence or the whole of the agreement holder s collective operations requires comparing what would likely occur in the absence of the decision to what will likely occur in light of the decision

71 Section 2(1) Tests Benefits to Public vs. Impact on DWC delivered wood costs defined in FPPR as costs associated with accessing and harvesting timber and delivering it to a timber processing facility therefore, includes costs of: road construction, maintenance & deactivation felling, yarding or skidding, processing and loading hauling might it also include: silviculture? (likely) reduced margins inability to access species that are more commercially valuable? (likely not)

72 Section 2(1) Tests Benefits to Public vs. Impact on DWC delivered wood costs (cont d) Examples of typical drivers of increased costs: inability to locate road in particular area, preventing access to timber in some cases or forcing roads into more costly locations and longer hauling distances restrictions on ability to harvest in particular locations, forcing additional development & harvesting in more costly locations restrictions on size of cutblock & amount / area to be harvested within the block restrictions on type of equipment that can be used (e.g. helicopter vs. ground based systems) restrictions on time of year that activity can occur

73 Section 2(1) Tests Benefits to Public vs. Undue Constraint benefits outweigh undue constraint on ability to exercise rights under agreement rights = for forestry tenures, harvest the AAC = for range tenures, AUM / cut quantity of Hay ability goes to (for forestry tenures): ability to find that amount of wood on the ground after taking into account the constraints ability to take permitted profile (this is where margins issue might be addressed) ability to build up reasonable level of approvals undue constraint suggests some level of challenge OK but could not prevent rights from being exercised issue is where on this spectrum is it OK to fall

74 What GAR Does Not Expressly Address: (But You Should(?)) Several stages related to GAR decisions GAR (& this presentation) expressly address one: Process & Testing Stage At least two others to possibly think about today & in application of GAR moving forward: one before Process & Testing Stage the other after stages not mutually exclusive or strictly lineal Before : Threshold Stage After : Order Design Stage

75 What GAR Does Not Expressly Address: Threshold Stage Asks the question: Should a GAR decision be pursued or not? Among possible considerations: 1. Is there a forest risk that can & should be addressed by government? 2. If so, what options are available to government to manage that risk? 3. Of these options, is GAR potentially the best? 4. If so, can move to Process and Testing Stage

76 What GAR Does Not Expressly Address: Threshold Stage (cont d) Asks the question: Should a GAR decision be pursued or not? (cont d) Questions for break-out group & panel: Does it make sense to have a Threshold Stage in GAR deliberations? If so: vs. above list, what additional or better considerations might be taken into account at this stage? How can this stage be best managed to build common understanding between government & agreement holders on these issues?

77 What GAR Does Not Expressly Address: Order Design Stage Asks the question: How should the GAR order be written? Must be written in manner that: satisfies GAR tests will produce desired result for forest value addresses implementation issues Among possible considerations regarding implementation: Is it flexible? Is it realistic? Does it adequately address transition (timing issue)?

78 What GAR Does Not Expressly Address: Order Design Stage (cont d) Possible considerations re implementation Is it flexible: Can it be & is it written to enable a choice among the 3 approaches that are part of FRPA direction / structure? Objective R/S Practice requirement Professional reliance Can it be & is it written to enable flexibility within the option(s) chosen? (e.g. an objective that is a method is not an objective)

79 What GAR Does Not Expressly Address: Order Design Stage (cont d) Possible considerations re implementation (cont d) Is it realistic: If objective, can it & is it written so that an approvable, workable and enforceable R/S be readily written for it in plans? If not, need to reconsider wording of objective How can an objective best be written to achieve this? If RF, WHF, GWM, can it & is it written so that the practice requirement can be practically, efficiently, etc. met in the field? If not, need to reconsider wording of RF, WHF, GWM How can these types of orders best be written to achieve this?

80 What GAR Does Not Expressly Address: Order Design Stage (cont d) Questions for break-out groups and panel same as for Threshold Stage : Does it make sense to have an Order Design Stage in GAR deliberations? If so: vs. above list, what additional or better considerations might be taken into account at this stage? How can this stage be best managed to build common understanding between government & agreement holders on these issues?

81 Summary Two key purposes of GAR: enables government to make decisions requires government to follow process & ensure tests are met Decision to use GAR is discretionary but, if used, process & tests are mandatory There are gaps in details of process and tests that legal principles help to fill, but only in part Possible to think about GAR process in stages, but GAR expressly addresses only one, leaving unsaid whether, and if so how, to address others

82 Summary (cont d) Government has already provided guidance that may help to fill some of these gaps: Government Actions Regulation: Policy and Procedures for Government Staff Assisting (?) Delegated Decision Makers Today s break-out groups & panels offer opportunity to explore what, if anything, more is needed to enhance common understanding on these issues