Fort St John Code Pilot Project

Fort St. John Pilot Project

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    Questions and Answers

    How did the pilot project come to be?

     In May, 1999, then Premier Glen Clark made a commitment to allow experimentation with forest practices regulations to explore for ways to create efficiency and save costs for both industry and government. Enabling legislation was passed in June of 1999
    (see Part 10.1, Forest Practices Code Act of BC). The Fort St John Pilot Project was proposed that summer and permission to start was given in October, 1999.

    What are the basic requirements of a pilot project regulation?

    For a pilot project regulation to be approved it must pass several key tests:
    a) it must provide at least the equivalent protection for forest resources and resource features as does the ‘standard’ Forest Practices Code Act (FPCBC) and regulations.
    b) it must be consistent with the preamble to the FPCBC.
    c) it must provide for adequate management and conservation of forest resources.
    d) it must provide for public review and comment on the forest practices that will be carried out in the pilot project area.
    e) it must provide for monitoring and evaluation criteria for the project.
    f) the role of the Forest Practices Board must be maintained.
    g) there must be public access to planning documents and assessments used in the pilot project area.
    h) all the pilot projects in the forest region must not exceed 10% of the allowable annual cut or 10% of the animal unit months in effect in the forest region. (see part 10.1, FPCBC)

    Who approves a pilot project regulation?

    A pilot project regulation is approved by the “Lieutenant Governor in Council”. Practically speaking, “Lieutenant Governor in Council” means the cabinet.

    Are there any other pilot projects in the province?

    Yes. There are six pilot projects underway in the province. The Fort St John project is the only project underway in the Prince George Forest Region. The Fort St John project and the Stillwater-Weyerhauser project on Vancouver Island have advanced to the provincial public review and comment stage.

    Are there intermediate steps between getting permission to undertake a pilot project and presenting a proposed regulation to cabinet for a decision?

    Yes. There are three major intermediate steps. The Ministry of Forests and Ministry of Environment, Lands and Parks formed a regional working group to review and make recommendations as the pilot project and pilot project regulation developed. The project was then presented to the Joint Steering Committee, a group made up of assistant deputy ministers from the Ministry of Forests, including the Chief Forester, the Ministry of Environment, Lands and Parks and the Ministry of Energy and Mines. The Joint Steering Committee (JSC) gave approval for the proposed regulation to be put out for public review and comment (January 30, 2001). The Joint Steering Committee will further review the project after the public review and comment period is over and the project partners have responded to the comments. The JSC will then make recommendations to cabinet as to whether or not, in the JSC’s opinion, the proposal should be approved by cabinet.

    Are the project partners ‘making law’ by preparing a draft regulation?

    No, not at all. The making and bringing into force a law is solely and completely the responsibility of government.

    The draft regulation, while prepared by the partners, will be turned over to government after the public review and comment amendments (if any are necessary) have been made. After review and possible modification by government lawyers (legislative counsel) whose job it is to ensure all proposed legislation meets certain standards, the draft proposal will go in front of cabinet for a decision. If cabinet decides that the proposal meets the tests laid out in Part 10.1, FPCBC, cabinet will then decide whether or not the draft may become law.

    Does the pilot project regulation ‘exempt’ the participants from the Forest Practices Code?

    No. The pilot regulation is a regulation under the FPCBC. The pilot regulation proposes a different method of achieving the same fundamental goals of the FPCBC. In order for the experiment to be carried out, however, some provisions of the standard legislation must be set aside. Basically, one set of laws is being replaced with another set of laws. How does the pilot project regulation differ from the standard legislation? The standard legislation sets out a standard in the Act (the key standards are in Part 4, FPCBC) then, in regulations subordinate to the Act, sets out, in considerable detail, steps that are required to achieve the standards set out in the Act. Failure to meet the standard, or to carry out a required step even if the standard has been met, may result in an administrative penalty (a financial penalty determined by an employee, eg., a forest service district manager) or prosecution (criminal charges).

    The pilot regulation sets out a standard that must be met – the same fundamental standards as those of the standard legislation – but for the most part does not specify any steps that must be taken to achieve the standard. Failure to meet the standard may result in an administrative penalty or prosecution. For example, the pilot regulation prohibits the felling or modifying of trees in an area that is a riparian reserve zone or a reserve identified in a site plan. The administrative penalty for a breach may be up to $50,000, the quasi-criminal penalty up to $500,000 and two years imprisonment. In fact, these are the penalty provisions for any breach of the pilot regulation.

    The much heard term ‘results based’ applies to the pilot project regulation. ‘Results based’ essentially means that the standards or goals should be specified but the steps and methods to achieve those goals need not be.

    Can government suspend or cancel the project?

    Yes. A suspension and cancellation provision is in the pilot project regulation.

    Does government have control over the approval of a road or cutblock under the pilot project regulation?

     

    Standard Legislation

    Pilot Project Regulation

    Be consistent with higher level plans in force.

    Must

    Must

    Be approved in a Forest Development Plan (FDP).

    Must

    Must

    Be approved as Category A in an FDP. must must Undergo public review and comment in and FDP.

    Must

    Must

    Have a site plan prepared. 

    Must

    Must

    Have the site level plan reviewed and approved by the district manager.

     Must

    May, at the discretion of district manager

    A cutting permit issued. 

    Must

    Must

    A road permit issued. 

    Must

    Must

     

    Summary: for harvesting or construction to take place on a cutblock or road:

     

    Standard Legislation 

    Pilot Project Regulation

    Must be consistent with any higher level plans.

    Yes 

    Yes

    Must be approved in an FDP.  

    Yes

    Yes

    Must have a site level plan approved

    Yes

    May, at the discretion of the district manager.

    Must have cutting or road construction authority issued.

    Yes

    Yes

    Why are not all site plans subject to an approval decision under the pilot project regulation?

    The experience of industry and the agencies in the Fort St John Forest District is that the majority – more than 80% - of site level plans are proposed and carried out without any issues or problems arising. Nevertheless, the standard legislation requires that all site level plans undergo formal review and determination procedures. These procedures use up significant amounts of staff time that could otherwise be applied to other forest management issues such as landscape level planning, or the impact of oil and gas exploration activities on forest management strategies. By allowing the district manager to focus just on those areas where issues are identified, the district manager can free up considerable resources to now apply to other important tasks.

    How will the district manager know which areas to focus on?

    In large measure through the FDP process. The amount of information necessary for a cutblock to achieve category A status is considerable and ordinarily will provide the district manager with sufficient information upon which to base a decision as to the need to review a site plan. The FDP public review and comment process can also provide information that will influence the district manager’s decision, as will the various planning processes and, very importantly, the sheer volume of local knowledge that can be brought to bear by agency and industry staff.

    How, under the pilot project regulation, can the district manager ensure that a site plan is reviewed before any forest practices are carried out?

    There are two ways for the district manager to ‘capture’ a site plan for review. The first is the power to make policy respecting roads and cutblocks. The district manager may make a policy that requires roads and cutblocks that fall into certain categories to automatically be submitted for review. An example would be a policy for all site plans proposed in the Graham River drainage to be submitted to the district manager for review. Upon review of a site plan the district manager may determine that the proposed plan does not adequately manage and conserve the forest resources of the area and that the proposed forest practice must not be carried out. The second is for the district manager, when reviewing the FDP for approval, to note certain cutblocks or roads as being of concern. The district manager will then advise the FDP proponent that the site plans for the roads and blocks of concern must be submitted for review before any operations can be carried out. The district manager must then determine if the proposed site plan adequately manages and conserves the forest resources of the area.

    How can government be confident that a site plan is appropriate and will be carried out?

    There are a number of specific issues that must be addressed in a site plan, notably requirements for silviculture, soils and biodiversity. These are specific requirements of the regulation and failure to comply could result in a penalty. Additionally, government has four discretionary tools available that may shape the form a site plan takes. All forest practices carried out under the pilot regulation must be consistent with any higher level plan, sustainable forest management plan, operational plan and permits (the Forest Development Plan is an operational plan).

    Higher level plans and sustainable forest management plans may specify a variety of standards or benchmarks that must apply at the forest development plan level and site level. Forest development plans must be consistent with higher level plans (HLP) and sustainable forest management plans (SFMP) and site plans must be consistent with FDP’s. Additionally, all forest practices, regardless of specific site plan contents, must be consistent with any HLP, SFMP and FDP in force.

    The district manager may require strategies in an FDP that must apply to the site plan, site, or forest practices carried for the area under the FDP.

    Government, and the general public, have access to all relevant documents, including site plans and government may at any time assess performance on a site, including comparing actual site outcomes with the site plan.

    There must also be periodic independent performance audits, whose results must be reported to the regional manager.

    Does the pilot project affect government’s fiduciary obligations to aboriginals?

    No. The pilot regulation does not affect the government’s fiduciary responsibilities to aboriginal people.

    Does the pilot project affect government’s ability to take enforcement action or carry out inspections?

    No. Government employees have the same powers to inspect and carry out compliance and enforcement action under the pilot regulation as they do under the standard legislation.

    To some extent compliance and enforcement workload is potentially eased under the pilot project regulation. The administrative penalties structure under the pilot regulation provides an incentive for self-reporting of breaches of compliance that is not available in the standard legislation. ‘Self-reporting’ means if a law is broken, the person or company that broke the law will report the incident to government.

    Does the pilot project affect the role of the Forest Practices Board?

    No. The Forest Practices Board’s ability to carry out investigations, audits or to challenge the approval of an FDP is not affected by the pilot regulation.

    Is the sustainable forest management plan a higher level plan?

    No, but it acts somewhat like a higher level plan. Higher level plans, while they may contain elements in common with the SFMP, tend to be more focused on broad land use zoning elements. The SFMP is intended to be used more as strategic plan that directs the more technical issues of forest resource management. These may be such things as a reforestation strategy to balance long term needs for both hardwoods and softwoods, or a strategy for natural disturbance harvesting patterns that will balance age class distribution in riparian zones with respect to maintaining water quality objectives over the long term.

    Questions from PAG Meeting, March 24, 2001

    Will Small Business Forest Enterprise Program license holders be under an Environmental Management System, and if so how would this be implemented?

    The SBFEP will be covered by an environmental management system (EMS). The Ministry of Forests had initiated the involvement of the provincial small business program in a certification system prior to the Fort St John pilot project getting underway. An implementation plan is presently under development. It is expected that the other partners will have an important role in the process because of all partner forest operations being carried out under one FDP.

    As the district manager will no longer approve operational plans unless he requests a review of a specific plan, how will he be aware of issues with proposed operational plans?

    The Forest Development Plan and the site plans are by statutory definition operational plans and the district manager continues to have the power to approve forest practices proposed in them. However, the district manager may choose to review and approve forest practices in some site plans only, but the district manager must review and approve the Forest Development Plans.

    The requirements for an FDP include providing the approximate location of all proposed roads and cutblocks and actions that will be taken with respect to biodiversity, harvesting methods and many other areas of interest or concern. The FDP must also be made available for public review and comment for at least 60 days. The information requirements of the FDP and the public access to the FDP should provide the district manager with the necessary awareness of areas of concern. The requirements of an FDP are found in the Operational Planning Regulation, most notably in S.18.

    Will the LRMP RMZ emphasis provide direction for the District Manager (DM) review of operational site level plans?

    No. LRMP RMZ’s provide strategic direction for the achievement of broad forest management goals rather than specific directions to the district manager with respect to any operational plan. This is the case with the standard legislation as well. The district manager may, however, choose to implement a policy that would see certain site plans undergo a review in light of some specific RMZ management issue or direction.

    Will the PAG have the ability and authority to recommend to the DM in which RMZs all operational plans must be reviewed?

    The participants must submit any proposed SFMP to the PAG for review and comment. The PAG may make any comments and recommendations on the proposed SFMP that the PAG considers appropriate, including recommendations around operations in any specific RMZ. These comments and recommendations are made to the participants proposing the SFMP. The participants must consider the comments and must notify the PAG on how the recommendations were addressed. The PAG must respond to the participants as to the PAG’s view of the adequacy of the response. The participants must include the comments and responses with the proposed SFMP when it is submitted to the Regional Manager and Regional Director for a decision.

    The PAG members have the right to provide comments on any FDP submitted to the district manager for approval. They may do so as individuals or, if they choose, as the PAG. The PAG does not, however, have any specific responsibilities regarding FDP’s.

    What is wrong with the way in which the Code works now and why are the participants trying to modify the rules? Department of Fisheries and Oceans needs to be able to monitor and audit he participants.

    The forest industry and government have recognized for some time that the FPCBC may be inefficient in achieving the fundamental goals of the legislation. The FPCBC requires government review of a wide array of plans and prescriptions and the sheer number of reviews results in a very large workload for both government and industry.

    As experience with the FPCBC has developed in the years since its inception, it has become clear that the majority of forest activities can be, and are, carried out without any special issues or concerns and therefore some of the administrative work around them is likely unnecessary. Government has encouraged forest companies to experiment with different models of forest stewardship in an effort to find a legislative model that provides all of the resource protection of the FPCBC does but does so at a lower administrative cost. The involvement of the Ministry of Forests Small Business Forest Enterprise Program in the Fort St John pilot project is a sign of government’s support for the pilot projects across the province. The project partners believe they have found a cooperative, workable model that can reduce the cost of operations for both the regulatory agencies and those who carry out forest practices on the ground.

    Federal fisheries legislation takes precedence over provincial resources legislation. The role and powers of the Department of Fisheries and Oceans Canada are not affected by the pilot project and pilot project regulation.

    If this pilot is successful, won’t that mean that other areas of the province may adopt its findings?

    Yes. Transferring successful elements of the pilot projects to the rest of the province is one of the principal reasons for the pilot program exercise. The reason for the ‘pilots’ is to test the various measures proposed and determine what works and what doesn’t work before going to the disruption and expense of implementing something provincially.

    Will licensees still carry out reforestation obligations? Will there still be trees for our grandchildren?

    S.15(6) makes reforestation of harvested areas an absolute obligation on a participant. In his most recent determination of allowable annual cut (1996), the Chief Forester’s analysis predicted that 50 years from now the forests of the Fort St John TSA will support close to the same level of activity as they do today, although deciduous volumes may be lower and coniferous volumes higher.

    If the Pilot proposes only to adopt the LRMP Resource Management Zone objectives instead of specific LRMP strategies, will the spirit and intent of the LRMP be missed?

    The partners believe that we will meet the intent of the LRMP through meeting the objectives of the LRMP. There is a wide range of strategies that may be appropriately used to meet those objectives, including strategies in the LRMP. The partners believe strongly that a full range of strategies, including some not yet envisioned, must be available to ensure that continuous improvement in forest management and forest practices can be achieved.

    The district manager, in making an approval decision on an FDP under S.41(1)(a) and (b), FPC Act, will continue to consider the LRMP under S.41(1)(b) as is the case now; the regional manager and regional director will consider the LRMP in making an approval decision for an SFMP. In both instances the important elements of the LRMP are reasonably certain to be captured.

    Suggest clarification or expansion in the document as to the rationale for achieving CSA certification.

    Implementation of a CSA SFM System assures the public that the participants are conducting sustainable forest management to the standards defined by CSA. The Canadian Standards Association (CSA) uses the 6 criteria developed by the Canadian Council of Forest Ministers (CCFM) to develop a Sustainable Forest Management (SFM) plan. The CCFM criteria are consistent with internationally recognized Montreal Process and Helsinki Process criteria for the sustainable management of boreal and temperate forests. CSA requires a rigorous public participation process involved in identifying local values, goals, indicators and performance objectives for the local defined forest area.

    Major international retailers of forest products, Home Depot is an example, are increasingly requiring that all forest products that they sell come from a certified source. It is therefore very important for forest products producers to achieve and maintain certification in order to ensure that they will be able to sell the products they produce. The CSA standard is one of several independent certifying bodies that have wide international acceptance.

    What impact will the SFMP have on other tenure holder in the FSJ TSA, such as range? And what, if any, are the benefits to these other tenure holders? This should be spelled out in more detail in the proposal.

    The SFMP may or may not have a direct impact on other tenure holders; the intent of the SFMP is to provide for the improved management of forest resources so, on average, an SFMP is more likely to have a positive impact than a negative impact.

    Forest tenure holders who are not project partners will not be subject to the pilot project regulation. In recognition of the importance of forest grazing in the TSA and of the potential gains to grazing licensees of becoming pilot project participants, the regulation provides for other Forest and Range Act licensees to become participants in the project in the future (S.8, PPR).

    One of the broader goals of the project is for the partners to coordinate their forest activities and plans. It should be much easier for other forest tenure holders to review and assess the impact of forest harvesting and associated activities on their own operations as a result.

    What are the intent and the current status of the individual licensees regarding certification? Must they all be certified, and what is the effect if one either does not attain certification, or loses it? What means is available to determine the participant’s commitment to certification?

    All participants are working towards achieving CSA certification. There is no statutory requirement for a participant to be certified but achieving CSA certification is one of the critical elements that the Lieutenant-Governor in Council will be considering in making the decision as to the fitness of the project proposal to proceed. Failure to commit to achieving certification would almost certainly prevent the proposal from being approved. By the same measure, the loss of certification by a partner would very likely jeopardize that partner’s continued participation in the project.

    The wording or terminology in the table (license volume) on page 10 of the detailed proposal is confusing.

    The notes at the bottom of this table are confusing to the public, in particular as to the meaning of ‘sustainable”. The wording will be revised and a glossary of terms will be provided.

    What Act and regulation is referred to in the detailed proposal on page 147, Sec. 25:2? Will areas of inconsistency between the Act, its regulations, and the SFMPP be brought the to the public’s attention?

    The act and regulations mean the Forest Practices Code of British Columbia Act and regulations.

    References to the “Act and regulations’ in the pilot project regulation always means the FPC Act and Regulations. The definitions of the proposed regulation will be modified to make clear the use of terms around the FPC, Forest and Range Acts.

    Areas of inconsistency will be defined in the SFMP at the time the SFMP is proposed and will be subject to PAG and public review and comment. The issue of inconsistency will also be an issue requiring a determination by the Regional Manager and Regional Director.

    How does the $50,000 maximum penalty specified in the Pilot Reg. (Page 153 Sec. 38 (i)) compare with what is currently in the FPC Act? Shouldn’t all penalties be equivalent with those prescribed in the FPC?

    There are two penalty systems that apply to the participants in the pilot project. This is true of the standard code as well. The first is an ‘administrative’ penalty, or a penalty that can be levied by a senior official from the Ministries of Forests, Environment, Lands and Parks and Energy and Mines. For the pilot project this penalty is $50,000.00 and, for like infractions, is generally equal to or higher than the standard Code.

    The second penalty system is ‘quasi-criminal’ and the penalties may be a fine, or imprisonment, or both. These are matters for the criminal justice system and the maximum penalty that would apply to a participant is $500,000.00 and two years imprisonment.

    A person may be liable for both an administrative penalty and a criminal prosecution under both the standard code and the pilot regulation.

    Note: in response to concerns expressed by the public advisory group, the penalty scheme in the pilot regulation has been modified to more closely parallel that of the standard code by establishing a range of penalties.

    Is the intent of clause 1 of Schedule A (page 157) that green-up requirement for areas adjacent to licenses-to-cut will be waived? Need to clarify the intent of this clause, define what a license to cut is.

    No. Schedule A, Green Up, doesn’t apply to licences to cut or Christmas tree permits. The standard code (S.9(2)(a), Timber Harvesting Practices Regulation) continues to apply to licences to cut and Christmas tree permits. The pilot regulation only applies to the participants and the forms of cutting authority which fall from the licences held by the participants – Cutting Permits and Timber Sale Licences. The green up provisions of the pilot project and the standard code are otherwise the same.

    Definition: where a person has a right to occupy Crown land but otherwise doesn’t have a right to harvest timber from Crown land, a licence to cut may be issued to the person to harvest the timber from the area covered by the right to occupy. Licences to cut are the normal form of cutting authority granted for oil and gas road rights of way and for agriculture leases. Normal stumpage must be paid.

    Proposed Regulation, section 16, Provisions of the Code That Do Not Apply: Clarify why should these should not apply, and address specifics such as Road Regulations.


    The general experiment that is the pilot project revolves around reducing the workload associated with the review and approval of the site level plans that fall under the Forest Development Plan. The disapplications in S.16, PPR, are of those sections associated with the requirements of the ‘junior’ operational plans and their associated procedural requirements. These sections must be specifically disapplied in order for the pilot project to proceed. To ensure that forest resources are properly protected, the disapplied sections have been replaced with the requirements and protective powers of S.10 – 15, PPR. The Forest Road Regulation, for example, is disapplied and replaced with the absolute requirements of S.12 and S.15. S.15 puts an absolute requirement on a participant to:

       - not fell or modify trees in a riparian reserve zone except for a stream crossing for a road.

       - not damage any resource feature.

       - must maintain slope stability.

       - must maintain surface drainage patterns.

       - must minimize surface soil erosion.

       - minimize sediment entering into streams

       - protect the structural integrity of any road and drainage structures.

    Breaching any of these requirements would make the participant liable for both administrative and quasi-criminal sanctions.

    Will the Pilot address the issue of the amount of useable aspen and cottonwood perceived as currently being wasted by the coniferous forest industry and the oil and gas industry? Will there be improved utilisation?

    Specifically, no. The pilot project focus is on forest practices – the ‘how’ of carrying out forest management – not the broader forest management issues of forest resource allocation and utilization. The setting of cut and utilization levels are not, by definition, forest practices and therefore it is not within the scope of the sections of the FPC Act that allow for the pilot project experiments to take place. Nevertheless, it is reasonable to think that a timber management strategy approved in an SFMP could significantly influence the way in which all timber types are utilized.

    The proposal makes a reference to internal controls that will ensure that site plans are consistent with the SFMP (pg 27, Section 5.4, para 2). What internal controls? Are there guidelines to follow?

    Forest practices carried out in the pilot project area must be consistent with any FDP, SFMP and higher level plan in effect over the area. S.15(1)(a), PPR, will be amended to more clearly state the obligation.

    In turn, reforestation and stand management site plans must be consistent with any FDP in effect over the area.

    A forest practice or site plan that is not consistent with the ‘senior’ plans would be a breach of S.13 and 15, PPR, and the participant could be subject to a penalty.

    There are no specific statutory guidelines but there are, or will be, EMS requirements respecting consistency between plans. The EMS requirements will be the internal controls. Consistency between plans will also be one of the compliance items monitored by government and will be the subject of performance audits carried out for certification purposes. The Forest Practices Board also has the right to audit for consistency.

    As the Ministry of Forest Small Business Forest Enterprise Program is a pilot participant, is there a possible conflict of interest for the district manager to have a role in monitoring pilot activities?

    To ensure that no conflict of interest issues arise with respect to the district manager’s role in the pilot project, the district manager must, upon the coming into force of the regulation, turn over all their authority and responsibility with respect to SBFEP to another person (S.7(3), PPR). This person will be completely responsible for small business, the district manager for project monitoring and enforcement.

    There appears to be no provision for removing a participant for non-performance in the requirements of the pilot.

    This issue is presently under review.

    What provision is there for the Public Advisory Group to participate in periodic field reviews of participant forestry operations?

    There is no specific requirement for PAG members to participate in periodic field reviews. The critical role of the PAG is to ensure that informed and fair consultation with local people has occurred. While it is not anticipated that members of the PAG will have a statutory role in assessing forest practices in the field, the participants plan to provide PAG members with the opportunity to accompany participant staff and forest practices auditors in the course of field work.

    Should there be a provision for auditors to discuss audit process and findings with the PAG and to also solicit the PAG’s input into the audit?

    The success of the pilot project depends in part on the audit process being clearly independent of the participants. It would therefore be inappropriate for the participants to attempt to direct the auditors in how they carry out the audits. Given the important role of the PAG overall, and the specific requirement for the PAG to review the audits (S.29(2)(b), PPR), auditors will as a matter of normal practice be interviewing the PAG members on a number of matters.

    What factors could lead to the suspension or cancellation of the pilot project?

    A decision to suspend or cancel a pilot project would be made by the Lieutenant- Governor in Council (cabinet).

    There is as yet no specific regulation which lays out what cabinet may consider in making a decision to suspend or cancel a pilot project. As certain tests must be met in order for a pilot project to proceed, it is probably reasonable to assume that failing to continue to meet those tests would be the most likely reason for a project to be suspended or cancelled.