Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M A R C H 2 0 1 8 13 tions), 2014 BCSC 808 demonstrates the lack of clout as his orga- nization took forward the test case regarding the role of profes- sionals in safeguarding B.C.'s diminishing supply of old-growth coastal Douglas fir, which has shrunk to 2.75 square kilometres from 2,555 square kilometres. Page's submission said: "Because the law does not say notice 'must' be given, combined with the requirement of 'without unduly reducing the supply of timber,' the court found no mandatory requirement to give notice to companies of the location of endangered Coastal Douglas Fir so as to enable logging company professionals to mitigate harm posed by logging (and the court identified no independent obli- gation for professionals in the absence of notice)." "I can't over-emphasize that the laws now do not have enforcement. They have been changed so that laws are no longer laws," says Page. It's a position with which Brian Gilfillan, professional forester and lawyer who practises forestry-related law in B.C., disagrees. Gilfillan, who is the third generation in his family to work in the B.C. forest industry, said the governing statute Forest and Range Practices Act replaced the highly prescriptive Forest Practices Code (brought in by the previous NDP government). The FRPA "moved away from the cookbook style of governing to govern- ment setting objectives that achieve forest values and allowed the professional to do their best to achieve (through plans and strategies) those objectives." If the plan or strategy doesn't meet that proposed objective, it is in violation of FRPA, he says. Professionals such as registered professional foresters are guided by their association standards for professional reliance, which set out a duty to protect the pub- lic interest. Gilfillan says there is the misconception that professions are setting broad policy. "Legislation is passed by government and land use determined by government and all the objectives under FRPA's forest stewardship plans are made by government and approved by government. Government is involved in every stage. They are writing the objectives that are driving the forest stewardship plans." But Gage says the system is deeply flawed as it sets up obvious conflicts. Behavioural science studies, he said, have shown individuals receiving a gratuity demonstrated favourit- ism. Resource companies also know they can shop for the right professional opinion. There is a known incident where a com- pany went to three different professionals to gain the regulatory answer it wanted, says Gage. The complaints of Gage and Page are not just green gripes as red flags have been raised by a number of watchdog bodies such as B.C.'s ombudsman, auditor general and the B.C. Forest Prac- tices Board. Compounding the situation has been the reduction of compliance and enforcement staff who would normally check the validity of regulatory outsourcing decisions. The 2016 auditor general's look at the mining sector set off warning bells. "The compliance and enforcement activities of both the Ministry of Energy and Mines and the Ministry of Environment are not set up to protect the province from environmental risk," a statement issued by the auditor general's department said. Mining companies had also not provided the province with enough financial security deposits to mitigate potential reclamation costs in the case of a default. The ombudsmen's review of professional reliance decisions (provided in the Riparian Areas Regulations under the Fish Pro- tection Act) to reduce construction setbacks from fish-bearing streams found numerous problems such as professionals without the qualifications making decisions, streams not identified as fish-bearing and local authorities not able to halt variances. In Yanke v. Salmon Arm (City), 2011 BCCA 309, the B.C. Court of Appeal ruled that government does not have the power to intervene to prohibit development where the hired profes- sional's opinion approved development near a fish habitat. In 2015, Chilcotin rancher Randy Saugstad received an out-of- court settlement after seeking compensation from a logging company whose cut-plan impacted Saugstad's water. When the plan was first designed by the timber company's foresters, Saugstad went to the Ministry of Forests' district manager who was powerless to halt the logging despite perceived damage. In December 2017, the new NDP government launched its professional reliance review, and calls for submissions yielded nearly 100 briefs and letters from citizens and various groups. Submissions closed Jan. 19. A public report is expected in May, which will go to cabinet for recommendations to be adopted. — JEAN SORENSEN \ AT L A N T I C \ C E N T R A L \ N O RT H \ W E S T REGIONAL WRAP-UP CORPORATE COUNSEL Connect with Find more than 4,100 corporate counsel and over 1,500 organizations along with fresh editorial content, information on deals and links to important resources. Lexpert.ca/ccca ntitled-2 1 2018-02-12 10:00 AM

• Cover