Moving Forward in the World of Professional Reliance

1. Moving Forward in the World of Professional Reliance Presentation by Roberta Reader to the Southern Interior Forest Region Regional Stewardship Meeting March 13, 2007

2. There is a large, complex world outside the “known world” of the FRPA • The world outside statutory regimes administered by government officials is as important as the world inside; this is part of the rationale for the change from the Code to the FRPA • Ultimately, the government, tenure holders and professionals will be judged against societal expectations and the current state of scientific/technical knowledge, and not just against the FRPA, an FSP or a government guidebook • The government cannot control the world outside the FRPA; if government officials fail to recognize the role played by this world, they may make unwise decisions or overstep their authority

3. The iceberg analogy The Legal Realm Statutory regimes administered by government officials Statute law Statutory regimes administered by self-regulating professions Common Law The Non-Legal Realm Societal Expectations The most up-to-date scientific / technical knowledge, which underpins both the legal and non-legal realms

4. The common law • Government officials generally focus on the statutory regimes they are charged with administering; however, the common law can be just as important to their decisions • Administrative law (which governs how governmental powers are exercised), statutory interpretation principles (which govern how Acts and regulations are interpreted), contract law (which governs business relationships founded on contracts), negligence law (which governs civil liability for actions that harm others), and professional negligence law (which applies specifically to professionals) are all part of the common law

5. The changing world of civil liability • Civil liability is part of the common law, which is made by the Courts and evolves in response to the cases they are called upon to adjudicate • In 2004, the Supreme Court of Canada recognized a new civil action for environmental damage to public lands • Compliance with the FRPA (or any other Act) may not be sufficient to protect tenure holders – or even the government – from liability for failing to adequately protect public lands or resources • Government officials can also be held personally liable for their actions and decisions, particularly if they exceed their authority

6. The role of tenure holders • Extends beyond the FRPA and other statutory regimes administered by government officials • Is subject to pressures and constraints that cannot be controlled by the tenure holders themselves or by the government, such as the expectations of the public, the marketplace and the Courts • Is maturing and evolving; tenure holders are no longer just resource extractors; whether they like it or not, they have also become stewards • The freedom afforded to them by the FRPA comes at price: increased responsibility

7. The role of government officials • Serve the Legislature under the supervision of the Courts, which means fulfilling the will of the Legislature in accordance with the rule of law • Have no inherent powers to affect the rights, duties or liberties of any person; their powers (and associated duties) are circumscribed by the law, including administrative law and contract law principles • The Legislature, if it so chooses, can change or even eliminate their role at any time (a change in the legislation can change everything!) • If they misuse their powers, their decisions can be overturned and, in certain circumstances, they may face personal liability

8. The non-legal realm: the power of societal expectations • Public opinion matters because public lands are held in trust for the public • Loss of public confidence brings governments down; it can also bring the public service into disrepute (which does not mean that MOFR staff can use public opinion to justify “non-legal” controls over tenure holders or their professionals) • A tenure holder’s “social licence” can be as important as any regulatory licence issued by the government; “reputation capital” is often the key to business success • A profession exists only so long as it has the public’s confidence

9. How will we know if societal expectations have been met? • Public sector evaluation schemes (FREP, Montreal Process, CCFM, etc.) • Private sector evaluation schemes, including market-based schemes such as certification • The Forest Practices Board’s role as independent watchdog • Scientific validation: the ultimate arbiter of forest management decisions

10. Building an effective effectiveness monitoring program • Do not confuse effectiveness with legality. C&E staff assess the latter, not the former. • What is your definition of “effectiveness”? What criteria explicitly or implicitly underpin your definition? What is the source of these criteria? Is it scientific/technical knowledge, government policy, personal opinion or something else? • What indicators are you using to evaluate the condition or state of these criteria, i.e. how are you measuring the extent to which your definition of effectiveness has been met? • What is your goal? What do you intend to do with the results of your monitoring?

11. The power of science • Science can have a profound effect on both the legal and non-legal realms • Science should never be confused with government policy or vice versa • The neutrality that underpins scientific/technical knowledge complements – the professional neutrality that characterizes all true professionals – the political neutrality required of public servants, including government officials charged with administering the FRPA

12. Distinguishing science from public policy (and vice versa) • Electedofficials have been given the power to make public policy; if it affects a person’s rights, duties or liberties, it usually requires legislation • Public servants do not make public policy; neither do tenure holders or the professionals who advise and assist them (which means tenure holders generally need to look for scientific answers to the dilemmas they face) • Valid public policy decisions should always be respected; science does not provide a pretext for ignoring or overriding legislation • However, science should not be misrepresented simply to support a public policy decision; the purity of science should also be respected

13. The role of professionals • The standards of conduct and competence set by a self-regulating profession determine the nature and scope of the advice and assistance that its members can (or cannot) provide • Professionals owe a dual duty to their clients and to the aspect of the public interest that their profession is charged with protecting • Professional reliance does not mean blind reliance; professionals should expect their opinions to be scrutinized (transparency is one of the hallmarks of a true professional)

14. All professionals must comply with the law, including statutory requirements, such as those imposed by the FRPA, that apply to their clients. Professional standards go beyond this; they embody a particular profession’s answer to the question: “What else is expected of professionals?” Legal Realm Professional standards imposed by statutory regimes administered by self-regulating professions Common law principles of professional negligence Non-Legal Realm Societal expectations Peer expectations Professional culture (core values and beliefs) The most up-to-date knowledge underpinninga particular profession Applying the iceberg analogy toself-regulating professions

15. The importance of professional culture (core values and beliefs) • The law is an axe, not a scalpel; it hews out minimum standards of what is acceptable; it does not lend itself to detailed sculpting of human thought and behaviour • The same holds true for a profession’s rules or by-laws; they can hew out minimum standards of professional conduct and competence, but cannot capture the ideals of the profession – its core values and beliefs • It is a profession’s ideals – and not its rules or by-laws – that create a professional culture; ideals (or their lack) shape societal and peer expectations

16. Incompetence = A professional who is not an expert in their chosen field • High standards of competence are as important to a profession as high standards of conduct (a code of ethics alone provides no guarantee of expertise) • If a profession fails to set appropriate standards of competence, then the Courts will eventually impose their own standards in the context of a negligence suit

17. What does it take to be an expert? • Two-part test: (1) Is the professional qualified to give an opinion? (2) Does the opinion itself stand up under scrutiny? • The first part of the test turns on a professional’s training and experience, as well as other factors such as the research they’ve done, their publications and the recognition they’ve received from their peers (The bottom line: professional accreditation alone does not make an expert) • The second part of the test turns on a number of factors, including the current state of scientific/technical knowledge

18. The role of government professionals • The public service is a profession in its own right; its role brings into play fundamental democratic and constitutional principles • Members of the resource management professions need to reconcile their duties as resource management professionals with their duties as public servants • Advising a statutory decision-maker requires special care (make sure you understand what the law requires of them) • As public servants, government professionals owe a dual duty to: (1) the government of the day and future governments; and (2) the public • Tenure holders are part of the public -- with rights as well as obligations

19. Distinguishing guidance from direction • Government officials can only give directions when they have been clearly authorized to do so • Directions are orders rather than suggestions, which means you must verify their legal pedigree before you can expect compliance • Guidance is not an exercise of government powers; anyone can provide guidance • Guidance draws its power from its content, and not from who provides it; it needs to be compelling and persuasive or else it can, and probably should, be ignored • Professionals who are true experts in their field are most effective when they are providing guidance, not direction

20. MOFR motto for the future: “Leading through knowledge” (or why the Forest Service’s research program is more important than ever)