Objectives Pillar Workshop Compliance and Enforcement -- Implications / Issues 2009

Objectives Pillar Workshop 2009 Previously, from learning objectives – Examine some positive and negative aspects of the construct and content of legal orders / objective actions Previously, from learning objectives – Examine some positive and negative aspects of the construct and content of legal orders / objective actions Global movement to move away from prescriptive requirements to results based requirements – enables greater number of circumstances to be captured; and lend themselves to being measurable or verifiable Global movement to move away from prescriptive requirements to results based requirements – enables greater number of circumstances to be captured; and lend themselves to being measurable or verifiable On a positive note, enables localized issues to be dealt with in arguably a more focused manner – fitting to the local circumstance On a positive note, enables localized issues to be dealt with in arguably a more focused manner – fitting to the local circumstance

Objectives Pillar Workshop 2009 On a negative (with respect to an Order) – a possible worst case scenario is where an enforcement action has been challenged to the Supreme Court of BC; and the enforcement action has been over turned based on the fact that the Order that precipitated the chain of events, was determined to have been initiated contrary to statutory requirements. On a negative (with respect to an Order) – a possible worst case scenario is where an enforcement action has been challenged to the Supreme Court of BC; and the enforcement action has been over turned based on the fact that the Order that precipitated the chain of events, was determined to have been initiated contrary to statutory requirements.

Objectives Pillar Workshop 2009 So in going back to the beginning, one needs to be aware that by definition a LUOR or GAR Order are regulations So in going back to the beginning, one needs to be aware that by definition a LUOR or GAR Order are regulations The in writing order, it would then need to describe vis-à-vis objectives what is desired to be remedied The in writing order, it would then need to describe vis-à-vis objectives what is desired to be remedied Orders, in and of themselves, are generally not enforceable – become enforceable via practice requirements, or results or strategies contained in an operational plan, e.g., GWM vis-à-vis FPPR s. 69 Orders, in and of themselves, are generally not enforceable – become enforceable via practice requirements, or results or strategies contained in an operational plan, e.g., GWM vis-à-vis FPPR s. 69 Legislation describes, in general, a procedure to be used in writing an “Order” Legislation describes, in general, a procedure to be used in writing an “Order”

Objectives Pillar Workshop 2009 Therefore, Principles of Administrative Law not only apply during the compliance /enforcement end of the spectrum; but they equally apply at the initiation end of the spectrum – the development and implementation of an Order / Objective Therefore, Principles of Administrative Law not only apply during the compliance /enforcement end of the spectrum; but they equally apply at the initiation end of the spectrum – the development and implementation of an Order / Objective Once brought into effect, then implementation (compliance) is about how to: Once brought into effect, then implementation (compliance) is about how to: promote compliance; promote compliance; avert non-compliance before it occurs; and avert non-compliance before it occurs; and detect and address non-compliance when it does occur; detect and address non-compliance when it does occur; All the while trying to provide a consistent approach – regardless of action by MFR/MoE/MAL/MTCA/ etc. All the while trying to provide a consistent approach – regardless of action by MFR/MoE/MAL/MTCA/ etc. The extent to which risk is managed at the planning stage will dictate how well risk can be managed at the compliance stage – enabling that “consistency” requirement The extent to which risk is managed at the planning stage will dictate how well risk can be managed at the compliance stage – enabling that “consistency” requirement

Objectives Pillar Workshop 2009 Some additional risks that need to be considered at the implementation stage: The risk that the plan won’t be implemented properly; The risk that the plan is simply wrong (and therefore needs to be amended) and; The risk that the objectives (Order) set by the legislation will not be met. E.g., risk of an order not being met – GWM for mule deer winter range – trees removed, but requires expert witness – expert says, looks okay – what then?

Objectives Pillar Workshop 2009 Fortunately, gov’t employees do not have to become experts in civil or criminal law in order to defend themselves against allegations of wrong-doing. The best defence is to carry out their duties within the limits of their authority, to be mindful of the interests of those who may be impacted by their actions and decisions, to conduct themselves in accordance with the highest standards of professionalism, neutrality and integrity, and to respect the rule of law.

Objectives Pillar Workshop 2009 A long standing over arching objective of gov’t is to have consistency in determining compliance and enforcement of statutes the regulated community are obliged to comply with A long standing over arching objective of gov’t is to have consistency in determining compliance and enforcement of statutes the regulated community are obliged to comply with Having a LUOR / GAR order enacted that meets the statutory requirements and administrative law principles, will definitely help facilitate the ability for consistency to be demonstrated in the implementation and any subsequent enforcement actions Having a LUOR / GAR order enacted that meets the statutory requirements and administrative law principles, will definitely help facilitate the ability for consistency to be demonstrated in the implementation and any subsequent enforcement actions

Objectives Pillar Workshop 2009 “The right approach requires a mix of information at multiple scales. It requires an understanding of the higher level objectives of society and knowledge of how to best apply those to the specific bio-physical characteristics of a given piece of land” (Doug Konkin DM, MFR, in BC Forest Prof.) “The right approach requires a mix of information at multiple scales. It requires an understanding of the higher level objectives of society and knowledge of how to best apply those to the specific bio-physical characteristics of a given piece of land” (Doug Konkin DM, MFR, in BC Forest Prof.) As all legislation “must be construed as always speaking” (from IA s. 7), arguably one of those objectives is the use of professional reliance – using a different tool other than legislation or orders to deliver an outcome on the ground As all legislation “must be construed as always speaking” (from IA s. 7), arguably one of those objectives is the use of professional reliance – using a different tool other than legislation or orders to deliver an outcome on the ground

Objectives Pillar Workshop 2009 In closing – back to the theme of this workshop – is an objective / Order the right gov’t action to take; as there are other tools that can be implemented. In closing – back to the theme of this workshop – is an objective / Order the right gov’t action to take; as there are other tools that can be implemented. E.g., professional reliance (ABCFP, APEGBC, CABBC, BCIA) – terrain stability, crossings, etc? E.g., professional reliance (ABCFP, APEGBC, CABBC, BCIA) – terrain stability, crossings, etc? regulation changes? (possibly under different legislation) regulation changes? (possibly under different legislation) Applying appropriate conditions to approvals? Applying appropriate conditions to approvals? Other types of Orders, other than LUOR or GAR? Other types of Orders, other than LUOR or GAR? If written, can the Oder be clearly implemented If written, can the Oder be clearly implemented

Objectives Pillar Workshop 2009 Questions ?????? Questions ??????