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The Meaning of GAR. February / March 2008. 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. Key Messages. Why GAR?

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the meaning of gar

The Meaning of GAR

February / March 2008

topics
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
key messages
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?

gar at a glance
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
making gar work well
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
making gar work well cont d
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?

making gar work well1

What GAR Does

Expressly Address

Making GAR Work Well
  • 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?

making gar work well2

What GAR Does

Expressly Address

- GAR Process

Making GAR Work Well
  • 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?

making gar work well3

What GAR Does

  • Expressly Address
  • GAR Process
  • GAR Tests
Making GAR Work Well
  • 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?

making gar work well4

What GAR Does

  • Expressly Address
  • GAR Process
  • GAR Tests
Making GAR Work Well
  • 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?

making gar work well5

What GAR Does Not Expressly Address

Making GAR Work Well
  • 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?

making gar work well6

What GAR Does Not Expressly Address

  • Using GAR
Making GAR Work Well
  • 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?

making gar work well7

What GAR Does Not Expressly Address

  • Using GAR
  • GAR Order Options
Making GAR Work Well
  • 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?

making gar work well8

What GAR Does Not Expressly Address

  • Using GAR
  • GAR Order Options
  • GAR Order Implementation
Making GAR Work Well
  • 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?

why gar
Why GAR?
  • Why GAR is Needed
  • Why GAR is Desired
  • Why GAR Differs from FPC
why gar needed
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
why gar desired
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
why gar differs from fpc
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)
why gar differs from fpc1
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
about gar
About GAR
  • What GAR Enables
    • What decisions
    • What effect
  • What GAR Requires
    • Process
    • Substantive tests
  • What GAR Does Not Address
what gar enables1

GAR enables government to make 3 types of decisions

- 3 Species Designations

What GAR Enables

Species at

Risk

(GAR s.13(1))

Regionally

Important

Wildlife

(GAR s.13(2))

Ungulates

(GAR s.13(3))

what gar enables2

GAR enables government to make 3 types of decisions

  • 3 Species Designations
  • 6 “Land Use” Designations & related Objectives
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))

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))

what gar enables3

GAR enables government to make 3 types of decisions

  • 3 Species Designations
  • 6 “Land Use” Designations & related Objectives
  • 4 “Practices” Designations
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))

what gar enables4
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
effect of gar decisions on practices
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))
  • GAR Objectives applicable to Range Act agreements limited to those for:
  • CW’s
  • WHA’s
  • UWR’s
  • (RPPR s.12(1))

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))

Planning Level Effect

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

Field Level Effect

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))

effect of gar decisions on practices1
Effect of GAR Decisions on Practices

For Range Tenures:

Range practice must be consistent with GWM or alternative

(RPPR s.36)

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))

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))

effect of gar decisions on practices2
Effect of GAR Decisions on Practices

For Range Tenures:

N/A (no authorized felling, modifying or removing of trees)

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))

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))

effect of gar decisions on practices3
Effect of GAR Decisions on Practices
  • For Woodlots:
  • For resource feature: if carrying out forest practice, must:
  • carry out measures in plan re feature; or
  • if no measure, not damage or render ineffective
  • (WLPPR s.56(1))
  • For wildlife habitat feature, must not damage or render ineffective
  • (WLPPR s.56(2))

For Range Tenure Holders:

If carrying out range practice, must not damage or render ineffective

(RPPR ss.37&38)

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))

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))

gar decisions their effect on forest range practices
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))

what gar requires
What GAR Requires
  • Process
  • Substantive tests
gaps in gar process and tests general principles for addressing them
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…”
process required
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
opportunity for review comment
Opportunity for Review & Comment
  • Two key questions:

1. Who is entitled to the opportunity?

2. What must the opportunity consist of?

who is entitled to opportunity
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
what must opportunity consist of
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”
what must opportunity consist of method
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
what must opportunity consist of information to be provided agreement holders
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
what must opportunity consist of information to be provided agreement holders1
What must opportunity consist of ?Information to be Provided Agreement Holders
  • 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
  • Indication re which agreement holders likely to be affected
  • Why tests are met
    • government (not decision maker) must provide its analysis of tests and why it believes they are met
  • 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
what must opportunity consist of time
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
what must opportunity consist of consideration of input
What must opportunity consist of ?Consideration of Input
  • If submissions are made by an agreement holder, they must be considered by the decision maker
what must opportunity consist of response from decision maker
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
consultation
Consultation
  • Like Opportunity for Review & Comment, two key questions:

1. Who is entitled to be consulted?

2. What must consultation consist of?

who is entitled to be consulted
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
what must consultation consist of
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
what must consultation consist of cont d
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
what must consultation consist of cont d1
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)
tests
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?
what tests apply
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
to whom how do tests apply
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
to whom how do tests apply cont d
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
what are the specifics of the tests tests specific to decision
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)

what are the specifics of the tests test common to most decisions
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] requiresmanagement
    • 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)

what are the specifics of the tests test s unique to decision
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
what are the specifics of the tests examples of tests specific to decision
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.

what are the specifics of the tests examples of tests specific to decision1
What are the specifics of the tests?Examples ofTests Specific to Decision

“Special Management Test” - common to most decisions

  • 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.

what are the specifics of the tests examples of tests specific to decision2
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 besufficiently 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.

Test “Unique” to Features Decisions – this one affects nature of decision more than whether or not it can be made

what are the specifics of the tests examples of tests specific to decision3
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.

what are the specifics of the tests examples of tests specific to decision4

“Special Management Test” - common to most decisions

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.

what are the specifics of the tests examples of tests specific to decision5

“Special Management Test” –

common to most decisions – but this one has additional parts to SMT

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 managementto 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.

what are the specifics of the tests examples of tests specific to decision6

Plus Test Unique to this Decision

– in this case, affects whether or not can make decision, not nature of decision to make

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.

what are the specifics of the tests tests specific to decision1
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
what are the specifics of the tests section 2 1 tests
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
section 2 1 tests consistent with established objectives
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
section 2 1 tests not unduly reduce supply of timber
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 / intent @ 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
section 2 1 tests benefits to public vs impact on dwc
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”
section 2 1 tests benefits to public vs impact on dwc1
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
section 2 1 tests benefits to public vs impact on dwc2
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
section 2 1 tests benefits to public vs impact on dwc3
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 well-being & 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
section 2 1 tests benefits to public vs impact on dwc4
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)
section 2 1 tests benefits to public vs impact on dwc5
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
section 2 1 tests benefits to public vs undue constraint
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
what gar does not expressly address but you should
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
what gar does not expressly address threshold stage
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 value @ 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

what gar does not expressly address threshold stage cont d
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?
what gar does not expressly address order design stage
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)?
what gar does not expressly address order design stage cont d
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)
what gar does not expressly address order design stage cont d1
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?
what gar does not expressly address order design stage cont d2
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?
summary
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
summary cont d
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