The Meaning of GAR

1. The Meaning of GAR February / March 2008

2. 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

3. 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?

4. 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

5. 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

6. 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?

7. 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?

8. 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?

9. 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?

10. 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?

11. 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?

12. 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?

13. 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?

14. 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?

15. Why GAR? • Why GAR is Needed • Why GAR is Desired • Why GAR Differs from FPC

16. 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

17. 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

18. 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)

19. 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

20. About GAR • What GAR Enables • What decisions • What effect • What GAR Requires • Process • Substantive tests • What GAR Does Not Address

21. GAR enables government to make 3 types of decisions What GAR Enables

22. 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))

23. 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))

24. 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))

25. 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

26. GAR Decisions Made to Date

27. 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))

28. 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))

29. 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))

30. 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))

31. 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))

32. What GAR Requires • Process • Substantive tests

33. 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…”

34. 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

35. Opportunity for Review & Comment • Two key questions: 1. Who is entitled to the opportunity? 2. What must the opportunity consist of?

36. 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

37. 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”

38. 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

39. 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

40. 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

41. 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

42. What must opportunity consist of ?Consideration of Input • If submissions are made by an agreement holder, they must be considered by the decision maker

43. 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

44. Consultation • Like Opportunity for Review & Comment, two key questions: 1. Who is entitled to be consulted? 2. What must consultation consist of?

45. 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

46. 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

47. 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

48. 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)

49. 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?

50. 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