Professional reliance experiment a regulatory failure?

By Briony Penn, September 2016

Tourism operators on the coast have been forced to watchdog forestry operations since government introduced self-monitoring.

Breanne QuesnelJOHNSTONE STRAIT, around Robson Bight, is one of the most scenic and busy sections of the Inside Passage for Vancouver Island tourism in general, and for whale watching in particular. Across the water from the Bight, in Boat Bay on West Cracroft Island, is Spirit of the West Adventures’ base camp. There owner Breanne Quesnel is juggling her busiest time of year for kayak guiding, looking after her two under-two-year-olds, and fielding my questions on an issue she has been watchdogging for the last five years.

Quesnel has been monitoring harvesting operations by TimberWest, the company that holds the Tree Farm Licence in the area. It all started in June of 2011 when she found cutblock boundary marker ribbons near her licenced camp. Since then she has been researching, meeting with government and TimberWest, and offering recommendations on how best to conserve local viewscapes. 

Managing viewscapes is a legal requirement of BC’s forest practices that has been around for a long time. WAC Bennett popularized the concept because he knew that visitors to Beautiful BC actually came to see trees—not stumps. Since those days, it has become a more exacting science than just keeping a strip of trees between the highway and the clearcut—and an increasingly contentious issue. Quesnel and others involved in tourism in the area know that clients choose other destinations when they start seeing too many big, ugly clear-cuts. 

Focus spoke with Quesnel back in 2013 when she went public about concerns not being addressed by TimberWest or the district manager of the North Island Central Coast Forest District—concerns also voiced by the Sea Kayak Guide Alliance of BC, the Wilderness Tourism Association, the North Island Marine Mammal Association and others. 

Three long years later, triggered by TimberWest’s submission of a cutting permit application, Quesnel filed a complaint with the Forest Practices Board (FPB). She argued the concessions to visual quality were inadequate, the process flawed, and government wasn’t acting in a timely manner. The FPB is an independent board that investigates complaints with forest practices and makes recommendations to the regulator, the Ministry of Forest, Lands and Natural Resource Operations, and companies holding licences to log Crown land.

Quesnel’s chief frustration lay in the lack of opportunity for the public to review and comment, specifically on cutblock layouts. The mechanism by which a company can legally get away with no input from the public is by requesting an “extension” or renewal of an existing Forest Stewardship Plan (in this case a plan developed more than a decade ago). There is no legal requirement for public input on an extension. 

A Forest Stewardship Plan is a regional plan that describes how the area will be managed for a variety of values. It is the only legally-binding planning document under the Forest and Range Practices Act (FRPA). Quesnel describes it as “so vague, it allows forestry companies the ability to push through cuts just about anywhere once it is approved or extended.” The public has no recourse except a cumbersome legal appeal process in which they need to prove that stopping the logging plans would not unduly impact the supply of timber on the coast or the economics of the logging company, and that the public benefits outweigh any constraints or impacts on the licencee. As Quesnel asks, “How does a member of the public prove these tests?” 

The answer is they aren’t supposed to. The onus is on the professionals to weigh up the varying priorities of serving the interests of the company, the government and the public.

 

THIS IS CALLED “professional reliance” and it finds its way into much of our legislation these days. The Province recently rescinded it for the real estate industry, but it’s alive and kicking in the Forest Range and Practices Act. In theory, it allows government to cut costs and “get out of the way” of business. 

In his previous employment with UVic Environmental Law Centre, lawyer Mark Haddock, now a lawyer for the Forest Practices Board, wrote in a 2015 paper: “Just over a decade ago, the British Columbia government embarked on a significant regulatory experiment. It adopted an ambitious goal of cutting or deregulating one-third of the regulations, coupled with an equivalent reduction in the size of the public service. Natural resource management and environmental protection laws and agencies were a prime focus for this initiative as government believed resource companies were significantly over-regulated.”

To assure the public that standards wouldn’t diminish, the responsibility of managing our forests for aspects such as wildlife, tourism and water—as well as timber—was to be put in the hands of the professionals instead of government. Professional reliance is preferred by business for its flexibility and lack of regulatory controls, but it has been characterized by many as the fox guarding the chicken coop. Government’s role was converted to reviewing the “results.” Results are what you see once the harvesting is done; they provide evidence of whether the professionals did their job—or not. 

Under this deregulated system, the responses of the FPB to Quesnel’s concerns were predictable: 1) that there was little more that the district manager could do other than encourage her to continue to discuss concerns with TimberWest and, 2) that TimberWest did voluntarily reduce some of the visual impact of the cutblocks to accommodate non-forestry business interests. 

Is Quesnel assured that the experiment is working? As she points out, “Well you can’t stand the trees back up!” 

The Ministry’s own study on the effectiveness of managing visual quality objectives (VQOs) found they were only achieved, across the province, an average of 61 percent of the time. The most stringent category of visual quality (which represents 13 percent of scenic areas) was effective less than half the time. 

After five long years of gathering a large body of evidence in a field she’s worked hard to learn, Quesnel now wonders: “Why do members of the public have to do all of this? And where are all the foresters on this issue? I can’t even dig a pit toilet here without getting an archaeological impact assessment and they are blasting a road behind us?” 

Mike Larock of the Association of BC Forest Professionals supports the professional reliance system, pointing to 90 percent compliance in terms of government monitoring. He sees the Association’s key priority as educational, working closely with government advisory and appeal boards, watchdogs and members of the public. He notes that every allegation raised by any of these groups is investigated. Around 10 complaints are reviewed annually. He says there have been some suspensions of licences (unconfirmed at time of press). In the online case digests, it is evident that in the majority of cases offending firms didn’t end up with fines. And the number of citations in 2014, listed in the Association’s annual report, was zero. 

A minimalist approach to penalties also appears to be the policy of the Ministry. With a results-based system, if a district manager is alerted that legislated standards might not have been met, he or she informs the Compliance and Enforcement (C & E) branch who monitor “the results.” 

West Coast Environmental Law did an analysis of the Ministry’s C & E branch, called Few Inspections—Low Consequences. Since 1999/2000 the number of inspections has dropped from 34,046 to 7,976. Despite so few inspections, inspectors are finding the same number of non-compliance actions. However, the amount of fines collected has plummeted from $561,511 to $72,585. 

 

TIM RYAN, CHAIR OF THE FOREST PRACTICES BOARD, has concerns similar to those of Quesnel’s. “I have heard many of these issues myself and have seen the efforts [members of the public] make to gather the information, and I agree, they shouldn’t be in that position.” The FPB has reviewed numerous complaints about impacted viewscapes. In a 2014 complaint brought forward by the Council of Haida Nations, for instance, the FPB found that the results on the ground for visual quality were not in compliance and, more importantly, that the Ministry’s C & E branch itself “did not provide an adequate rationale or a reasoned decision for stopping the investigation, nor was the pace of the investigation satisfactory. Government’s enforcement of Forest Range and Practices Act was not appropriate.”

To that end, the FPB has made various recommendations over the years to the Ministry to improve the process. Chief amongst them was stopping the practice of approving “extensions” of Forest Stewardship Plans that preclude any public review, and increasing the discretionary powers of district managers so that if they see the runaway train coming they can do something about it. As the FPB wrote in a December 2015 report, “In recent years, the Forest Practices Board has seen situations arise where forestry development was putting local environmental and community values at risk, yet district managers could do little to affect the development and protect the public interest.” The FPB has also prepared reports on contentious issues like visual quality, endangered ecosystems and professional reliance. It cites the Haida Gwaii visual quality complaint report, and the Mount Polley mine disaster report as examples that “point to the need for a review of all parties’ roles and responsibilities in supporting professional reliance, including effectiveness and monitoring.”

Key to effectiveness is a genuine penalty for the non-compliers. In one of the first cases of its kind for visual quality, the Ministry’s C & E branch successfully brought a non-compliance case against Interfor. It concerns the visual quality objectives of Stuart Island, one of the Discovery Islands, another high- profile tourism area south of Johnstone Strait that Focus reported on in 2013, alerted by another tireless tourism operator, Ralph Keller of Coast Mountain Expeditions. Keller’s experience was similar to Quesnel’s with no real opportunity for input and huge investments of his limited time. After investigation of the complaint by the FPB, the case was heard and it was found that “Interfor had erred on the side of risk instead of on the side of caution” and that the company “had failed to take all reasonable care to avoid a contravention.” A penalty of $20,000 was levied. 

When Interfor appealed to the Forest Appeals Commission, the FPB provided its evidence and Keller and others were invited as witnesses. Interfor’s appeal was turned down this summer. (Legal costs assuredly exceed the $20,000 penalty.)

One of the findings in the Interfor case was that a forester involved failed to do a “proper peer review because of his earlier involvement with Interfor in the design of the cutblock” and was found not to be independent.

 

INDEPENDENCE LIES AT THE HEART of concern over professional reliance. How can foresters whose work is controlled by so few companies be independent of them? Haddock put it this way in his report: “In some cases the same individual can be the evaluator, planner, approving professional and the supplier of goods and services. In many cases that professional may be an employee or contractor of the proponent, with duties of loyalty that may conflict with optimal environmental outcomes.”

And then there’s the matter of discipline and penalties. The Association of BC Forest Professionals’ Mike Larock could not comment on any disciplinary action for the foresters named. He said they would be looking at the case and that they take objectivity very seriously under their professional legislation, the Foresters Act. 

The FPB’s Tim Ryan feels the economics make it challenging to ensure consistent standards and practices across a big landscape where there are lots of complicated technical problems. The Association of BC Forest Professionals operates on a budget of $2.3 million to cover the education, monitoring and disciplining of 5000 members over the entire province. Larock admits, “We are stretched pretty thin.” Ryan’s own agency has not had any increase in funding for 10 years and operates on $3.8 million. Is this enough to provide independent education, monitoring, investigation and enforcement for a profession overseeing an industry generating $15.7 billion dollars in sales? 

Keller feels the Interfor/Stuart Island case may make a positive difference. Interfor had already had a case brought against them earlier for another infraction in Pryce Channel and so a second strike against them could be more damaging. In 2015, the Forest Practices Board made a recommendation that the cases of non-compliance should be made more public on an easily accessible website to act as a deterrent. Keller couldn’t agree more. “The professional reliance around how well the companies do is hollow since monitoring and enforcement is underfunded, understaffed and underpublicized. Most members of public are so cynical they don’t even bother writing complaints any more,” he said.

The Association of BC Forest Professionals’ Mike Larock says the decision on Interfor’s performance on Stuart Island was welcome and “will shape the management of visual quality objectives.”

When Focus asked Interfor about its next steps in light of the case, its Director of Economic Partnerships & Sustainability Karen Brandt responded: “Before the Tribunal’s decision, Interfor and tourism groups had already begun to work together to improve communications and collaboration. Interfor is now a member of the Discovery Island Tourism-Forestry Group, shared its 10-year harvesting plans with tourism operators, hosted open houses and developed new operating procedures and training for staff to guide visual management. The recent Tribunal decision provides further learnings to improve independent peer reviews.” 

Quesnel does feel things might be improving, citing the forester from Interfor for finally bringing maps to the table for their Tourism-Forestry Group. Still, she cautions, “While all of this is going on, logging is actively taking place. None of the companies have agreed to halt plans until agreements can be reached with the tourism sector.”

And what of the Ministry of Forest, Lands and Natural Resource Operations? Is it listening to the Forest Practices Board? In a letter addressed to its chair, Deputy Minister Tim Sheldan wrote, “Now that FRPA has been in effect for over a decade it is appropriate to acknowledge and address areas of learning and longstanding concerns. And begin integrating them into our administration and implementation of the Act and framework.” The Forest Practices Board chair Ryan believes the government is beginning to take a more “aggressive” stand on the over 270 Forest Stewardship Plans up for renewal. “We will see some improvements,” he predicts. Sheldan stated that “province-wide expectations are also being set for the submission of new plans that will be subject to full review and comment by the public and stakeholders. Achieving a new standard will take time and collaboration.”

Quesnel, Keller and many others frustrated with the system will be watching with sharp eyes as to whether genuine change is afoot or simply more delaying tactics. Meanwhile the two tourist operators are confident that the business case for logging is losing out to tourism values in their regions. Quesnel calculates “our one business generated more income in less than four years than [forestry generated] from the entire cut—which can only be done every 60 years or so.” 

Briony Penn is the author of the new book, The Real Thing: The Natural History of Ian McTaggart Cowan. She recommends Daniel Pierce’s Heartwood videos on forestry issues on the Island.