Legal Actions for the purposes of the
Forest and Range Practices Act (FRPA):
Support Document for a Training Package
October 31st, 2008 draft
Prepared for:
Charlie Western, Angela Von Sacken and Brian Westgate
on behalf of:
Ministry of Forests and Range
Integrated Land Management Bureau
Ministry of Agriculture and Lands
Ministry of Environment
Ministry of Tourism, Culture and the Arts
Prepared by:
Terje Vold, RPF, RPBio
Terje Vold and Associates Consulting Ltd
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Table of Contents
Acronyms ............................................................................................................................ 3
Introduction ......................................................................................................................... 4
Chapter 1: Legislative authority......................................................................................... 5
Chapter 2: FRPA structure and objectives pillar ............................................................... 8
Chapter 3: Collaborative approach to taking legal actions .............................................. 13
Appendix: Applying ‘SMART’ Principles to Legal Actions ......................................... 20
2
Acronyms
FPC
FPPR
FRPA
FSP
GAR
ILMB
LUOR
MAL
MOE
MFR
MTCA
RPPR
WLPPR
Forest Practices Code of British Columbia Act
Forest Planning and Practices Regulation
Forest and Range Practices Act
Forest Stewardship Plan
Government Actions Regulation
Integrated Land Management Bureau
Land Use Objectives Regulation
Ministry of Agriculture and Lands
Ministry of Environment
Ministry of Forests and Range
Ministry of Tourism, Culture and the Arts
Range Planning and Practices Regulation
Woodlot License Planning and Practices Regulation
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Introduction
The Ministry of Forests and Range (MFR); Integrated Land Management Bureau
(ILMB); the Ministry of Agriculture and Lands (MAL); the Ministry of Environment
(MOE); and the Ministry of Tourism, Culture and the Arts (MTCA) have developed a
training package in support of undertaking legal actions under the Objectives pillar of the
Forest and Range Practices Act (FRPA).
For the purposes of this document "legal action" means actions enabled under FRPA
which provide direction to forest, range agreement holders regarding plan preparation or
undertaking practices1. The legal actions include:
 establishing objectives under the Land Act including the Land Use Objectives
Regulation (LUOR), and
 establishing objectives, designations, measures, and other actions under FRPA
including the Government Actions Regulation (GAR).
This document discusses:
1. Legislative authority – that each agency uses when taking legal actions;
2. FRPA structure– explaining that FRPA is intended to be results-based with
government establishing objectives and how those actions effect forest and range
licensees
3. Collaborative approach to taking legal actions – identifying key stages where an
agency that can take legal actions should consult with other agencies, and
4. Considerations when writing objectives / orders.
1
Actions may also be taken under FRPA for other purposes but are not specifically addressed in this
document, for example, actions under s. 57 and s. 58 (1)(b) pertain to the public (not forest and range
agreement holders per se).
4
Chapter 1: Legislative authority by Ministry
One of government’s key roles under FRPA is establishing objectives and other legal
actions that provide direction to forest, range and woodlot agreement holders as they
prepare operational plans and undertake forest and range practices. Objectives and other
legal actions focus on the management of particular resource values. The types of legal
actions that can be taken by agencies is summarized below.




Types of Legal Actions*
Objectives:
Other Legal Actions:
Planning Requirement**
Practice Requirement
Land use objectives
 General wildlife measures
Objectives in regulation
 Resource features
Objectives enabled by regulation
 Wildlife habitat features
Grandparented objectives2
 Temperature sensitive streams
* also establishing categories of species at risk, regionally important wildlife and ungulate species which
may help set up objectives or general wildlife measures for an area
**objectives normally are a planning requirement; in some cases they constitute a practice requirement
and/or a supporting (default) practice requirement option is provided in regulation.
The four agencies who can undertake legal actions related to FRPA are the:
 Ministry of Agriculture and Lands;
 Ministry of Forests and Range;
 Ministry of Environment; and the
 Ministry of Tourism, Culture and the Arts.
The nature of the legal actions that can be taken by each agency, and the corresponding
legislative authority, are summarized below. The authority to undertake a legal action
also includes the authority to vary or cancel an action by the appropriate agency.
Ministry of Agriculture and Lands
The Minister responsible for the Land Act may:
Legal Action
Establish land use objectives
Establish scenic areas
Legislative Authority
Act
Regulation
Land Act s. 93.4
Land Use Objectives
Regulation
FRPA s. 150.3
GAR s. 7(1)
(this authority has been delegated to ILMB
and MFR in specified instances)
Designate community watersheds
FRPA s. 150
GAR s. 8(1)
(this authority has been delegated to Ministry
“grandparented objectives” are those objectives that were originally established under the Forest Practices
Code of British Columbia Act which have been continued under FRPA.
2
5
of Environment)
Ministry of Forests and Range
The Minister responsible for the Forest Act may:
Legal Action
Identify resource features*
Establish lakeshore management
zones and objectives
Establish visual quality objectives
(for scenic areas**)
Legislative Authority
Act
Regulation
FRPA s. 154 (2)
GAR s. 5
FRPA s. 150.2
GAR s. 6
FRPA s. 150.3
GAR s. 7(2),
FPPR s. 1.1
* authority to identify recreation-related resource features has been delegated to MTCA
** MAL has delegated authority to establish, amend or repeal scenic areas to MFR in specified relatively
minor instances
The delegation of the MFR Minister’s powers and duties under FRPA and its regulations
are shown at www.for.gov.bc.ca/hcp/legislation/authoritymatrix/
Ministry of Environment
The Minister responsible for the Wildlife Act may:
Legal Action
Designate community watersheds
Legislative Authority
Act
Regulation
FRPA s. 150
GAR s. 8(1)
(this authority has been delegated from
Minister of Agriculture and Lands)
Establish water quality objectives
FRPA s. 150
GAR s. 8(2)
FRPA s. 149.1
GAR s. 9
FRPA s. 149.1
GAR s. 10
FRPA s. 154 (2)
FRPA s. 149.1
GAR s. 11
GAR s. 12
FRPA s. 149.1
GAR s. 13
FRPA s. 150.1
GAR s. 14
FRPA s. 150.5
GAR s. 15
(for community watersheds)
Establish general wildlife measures
(for species at risk, regionally important
wildlife or specified ungulate species)
Establish wildlife habitat areas and
objectives
Identify wildlife habitat features
Establish ungulate winter ranges and
objectives
Establish categories of species at risk,
regionally important wildlife and
ungulate species
Identify fisheries sensitive watersheds
and objectives
Designate temperature sensitive
streams
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Ministry of Tourism, Culture and the Arts
The Minister of Forests and Range has transferred authorities under sections 56, 57 and
58 of FRPA, and delegated authorities under section 5 (1) (f), (g), (h) of GAR to the
Ministry of Tourism, Culture and the Arts.
Legal Action
Establish interpretive forest sites,
recreation sites and recreation trails,
and objectives
Protection of recreation and range**
resources on Crown land
Identify recreation-related resource
features
Legislative Authority
Act
Regulation
FRPA s. 56, 148
Forest Recreation
Regulation s. 6-20*
FRPA s. 58
FRPA s. 154 (2)
Forest Recreation
Regulation s. 2
GAR s. 5(1) (f), (g),
(h)
* Note: s. 16 of the regulation requires that a recreation officer authorize a business or industrial activity at
an established interpretive forest site, recreation site and recreation trail.
** The authority for FRPA s. 58 orders that pertain to the protection of a range resource remain with MFR
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Chapter 2: FRPA structure and objectives pillar
FRPA legislation is comprised of the Forest and Range Practices Act and its regulations.
Collectively, this legislation defines the legal requirements for planning and practices for
forest, range and woodlot agreement holders on Crown lands, as well as any associated
private lands included in any of the above agreements.
The functional architecture of FRPA includes:
 3 pillars: objectives; plan and practices requirements; and compliance and
enforcement;
 2 foundational elements: professional reliance and effectiveness evaluations; and
 supporting policy e.g. regarding timber supply impacts3, expectations from the
legal and non-legal realm4.
Government objectives actions can address an array of forest and range values (or ‘FRPA
values’) such as timber, cultural heritage resources, soils, water, fish, wildlife,
biodiversity, timber, forage, recreation, resource features, and visual quality.
The FRPA framework was built on the key principle that agreement holders and resource
professionals will manage the risks associated with achieving any specified results or
strategies that are consistent with government set objectives, and that government will
hold agreement holders accountable for achieving those results and or carrying out
strategies.
FRPA was designed to operate in conjunction with other government statues to avoid
overlap and duplication with the requirements of other statutes. There remains to be a
need to comply with all applicable requirements in other statutes (e.g. Drinking Water
Protection Act, Heritage Conservation Act, Wildfire Act). Objectives for the purposes of
FRPA do not override these other requirements. These other requirements do not need to
be addressed in FSP’s or other operational plans but, forest and range practices must be
compliant with them.
Types of Objectives
The objectives pillar consists of four types of objectives :
1. Land Use Objectives – established under s. 93.4 of the Land Act, and previously
under s. 3-5 of the Forest Practices Code of British Columbia Act;
2. Objectives in Regulation established under the authority of s. 149 of FRPA, and in
s. 5-10 of FPPR, s. 6-11 of RPPR, s. 9 of WLPPR;
3. Objectives Enabled by Regulation established under authority of s. 565, 149.1150.3 of FRPA, and s. 6-18 of GAR;
3
e.g. see Forest Practices Code Timber Supply Analysis. 1996. www.for.gov.bc.ca/hts/pubs.htm
e.g. see The Expectations that Affect the Management of Public Forest and Range Lands in BC: Looking Outside the
Legislation www.for.gov.bc.ca/hth/timten/FRPA_implementation/FRPA%20General%20Guidance.htm
4
5
Note: objectives established under s. 56 are enabled by the Act not by regulation
8
4. Grandparented Objectives – carrying forward established objectives under FPC (s.
180-181 of FRPA). Grandparented objectives can be viewed as a type of ‘objective
enabled by regulation’.
1. Land Use Objectives
Land use objectives are:
 objectives established under s. 93.4 of the Land Act consistent with the
requirements under the Land Use Objectives Regulation; and
 ‘higher level plans6’ under s. 3-5 of the Forest Practices Code of BC that continue
under the authority of s. 93.8 of the Land Act as objectives established under s.
93.4 of the Land Act.
 Also known as a component of “objectives set by government” as per the
definitions section of FRPA
Land use objectives enable key provisions of approved land use plans that are relevant to
the management and use of forest and range resources to be given legal effect for the
purposes of FRPA and can be used to update/revise higher level plan objectives that were
carried forward from FPC to FRPA.
Government policy that supports FRPA that has been carried forward from the FPC is
that:
 land use objectives related to landscape-level and stand-level biodiversity that are
associated with implementation of the Landscape Unit Planning Guide related to
old growth management areas and wildlife trees are subject to overall direction
that the impact of FRPA on provincial timber supply should not exceed 6%. This
impact limit includes the management of other resource values in addition to
biodiversity.
 Land use objectives that are intended to implement direction in approved land use
plans (not associated with Landscape Unit Planning Guide) are outside of the
policy limits on timber supply.
Land use objectives always prevail if any conflict exists with other types of objectives to
the extent that they are inconsistent with the land use objectives (see ‘hierarchy of
objectives’ below).
2. Objectives in Regulation
Objectives in regulation are the second of two types of ‘objectives set by government’.
Objectives in regulation are derived from authority in s. 149 of the FRPA and only exist
in the following regulations:
 Sections 5-10 of the Forest Planning and Practices Regulation;
 Sections 6-11 of the Range Planning and Practices Regulation; and
 Section 9 of the Woodlot License Planning and Practices Regulation.
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These are objectives for resource management zones, landscape units and sensitive areas
9
The suite of objectives is slightly different in each of these regulations. FPPR contains
objectives in regulation for soils; timber; wildlife; water, fish wildlife and biodiversity in
riparian areas; wildlife and biodiversity; cultural heritage resources; visual quality;
community watersheds; and fisheries sensitive watersheds.
Objectives in regulation are intended to provide goalposts for managing and protecting
forest and range values. Results and/or strategies in operational plans must address and
be consistent with these objectives.
Objectives in regulation under the FPPR are often supported by practice requirements so
that agreement holders can manage consistent with the objectives by either complying
with the supporting practice requirements or proposing results or strategies in their FSP7
that are consistent with the objectives in regulation. Objectives in regulation, and the
associated default practices requirements, were designed to be consistent with
government policy that the impact of FRPA on provincial timber supply should not
exceed 6%. For example, many objectives in regulation include the clause “without
unduly reducing the supply of timber from BC’s forests”. The intent of this language is
to help ensure the conservation of non-timber values is undertaken and balanced with
socio-economic benefits associated with timber values.
3. Objectives Enabled by Regulation8
Objectives enabled by regulation are established by the appropriate Minister for a
specified area. These objectives are not stated in regulations, but the legislation gives
authority to establish them consistent with the Government Actions Regulation (GAR).
Objectives enabled by regulation are intended to support effective forest management
under FRPA by addressing specific resource values. They may be used in a
complimentary manner with land use objectives to help implement provisions of
approved land and resource use decisions9 for the purposes of FRPA. GAR specifies
limitation on actions, consultations and reviews, and other requirements that must be
addressed before these objectives are established.
One of the limitations on actions in GAR is that actions ‘not unduly reduce the supply of
timber from BC forests’. Under GAR policy, the advice is that the following should be
considered as a ‘benchmark’ to assess if this test has been met:
7
For details, see Table 1 on FRPA value matrix in the Administration Guide to FSPs
Orders established under s. 56 and 58 of FRPA and are not subject to the Government Actions
Regulation,.
9 ‘Land and resource use decisions’ refers here to approved strategic land use plans (e.g. Regional Land
Use Plans, Land and Resource Management Plans or LRMPs,, Sustainable Resource Management Plans or
SRMPs) and other land and resource use decisions (e.g. Clayoquot Sound; spotted owls, mountain caribou,
government-to-government First Nation agreements).
8
10



government’s policy regarding timber supply impacts associated with
implementation of forest practices legislation10,
government’s approved land and resource use decision, and
assumptions in support of the AAC decision for TSAs, TFLs and woodlots.
The above guidance provides context for the delivery of GAR actions including
objectives, general wildlife measures, and features.
4. Grandparented Objectives
Grandparented objectives are those established under the FPC that are listed under s. 180
of FRPA. This ensures continuation of objectives established under FPC to FRPA.
Although these objectives exist, appropriate agency delegated decision makers can take
legal actions to amend or cancel these objectives. In some cases, this may be needed to
update or replace objectives designed for the FPC so that they are more appropriate
within the FRPA framework.
Hierarchy of objectives
In setting objectives, government agencies must consider the:
 interactions among established objectives, and
 legal requirements for ‘consistency’ among objectives and across different
legislation and geographic scales.
In the event of inconsistency, there is a hierarchy of objectives (see Figure 1). This
hierarchy is intended to clarify how the various objectives for the purposes of FRPA
apply to the land under an operational plan.
Figure 1: Hierarchy of objectives
10
Impacts assessed in the 1996 Forest Practices Code Timber Supply Analysis guided delivery of the Code
and continue to guide FRPA. See www.for.gov.bc.ca/tasb/legsregs/fpc/pubs/timbersupply/tsa-toc.htm
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Under s. 149(2) of FRPA, land use objectives prevail over objectives in regulation to the
extent an inconsistency exists11. Under s. 12(4) of FPPR, a person preparing a FSP is
exempt from addressing objectives in regulation under s. 5-10 of FPPR to extent that
doing so would conflict with a land use objective.
Under s. 12(5) of FPPR, if two or more objectives are applicable to a common area and
address the same subject matter, the minister may exempt the person required to prepare
a FSP from having to specify a result or strategy for all but one of the established
objectives. Under s. 12(6), the minister must do so in accordance with the following
descending order of priority: objective enabled by regulation under GAR; objective in
regulation under s. 5-10 of FPPR; and land use objective.
One of the limitations on actions under s. 2(1)(a) of GAR is that orders must be
consistent with established objectives. This applies to both objectives and other legal
actions under GAR such as identifying resource features or establishing general wildlife
measures.
Supporting Policy
Considerations for the Selection of LUOR and GAR. 2008 Revision. Provides advice on
using the two regulations in a complementary manner since either tool could be used in
some situations to give legal effect under FRPA to aspects of approved land and resource
use decisions. A series of considerations are provided. To be posted at:
www.for.gov.bc.ca/hth/timten/FRPA_implementation/GAR%20Memo%20and%20Manual.htm
Government Actions Regulation: Policy and Procedures for Government Staff Assisting
Delegated Decision-Makers. 2008 Revision. Provides advice designed to promote
consistent assessment of need, preparation, review and approval of GAR actions,
including guidance on how to address limitations on actions (or GAR ‘tests) and meet
requirements for consultation and review. To be posted at:
www.for.gov.bc.ca/hth/timten/FRPA_implementation/GAR%20Memo%20and%20Manual.htm
Land Use Objectives Regulation: Policy and Procedures. 2008. Provides advice to staff
when addressing requirements set out under the Land Act and the regulation including
guidance on preparing a draft order, review and comment, meeting criteria for establish
land use objectives, and when establishing, amending or canceling an order.
http://ilmbwww.gov.bc.ca/slrp/legalobjectives/whatarelor.htm
Administrative Guide for Forest Stewardship Plans. 2006. Brings together advice on
developing and administering FSPs for forest agreement holders who prepare FSPs, and
MFR and other government staff who review and approve FSPs. Describes relationship
between government objectives and results or strategies in FSPs under FRPA.
www.for.gov.bc.ca/hth/timten/AGFSP/index.htm
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Under section 5 of the Land Use Objectives Regulation (LUOR), the minister must determine if the
proposed land use objectives would conflict with other objectives established under FRPA; and if so, must
either amend the order to avoid the conflict or specify the nature and extent of the conflict in the order.
12
In addition to the overarching advice provided by the above documents, more detailed
guidance documents exists for specific types of legal actions such as:
Procedures for Managing Identified Wildlife. 2004. Describes the procedures for
establishing, modifying and rescinding wildlife habitat areas.
www.env.gov.bc.ca/wld/frpa/iwms/procedures.html
Memorandum of Understanding on the Establishment of Ungulate Winter Ranges and
Related Objectives. 2003. Describes agency roles and various types of ungulate winter
ranges and objectives. www.env.gov.bc.ca/wld/frpa/uwr/docs.html
Recreation Features Handbook for BC: A Working Draft. 2005. Describes FRPA
provisions related to recreation features and how they can be applied.
Chapter 3: Collaborative approach to taking legal actions
This chapter highlights the benefits of interagency collaboration when developing,
establishing and implementing legal actions. Given the diversity of potential actions and
agency authorities, it is vital that ministries with authorities to take legal actions for the
purposes of FRPA work closely together.
Efficiencies gained by inter-agency collaboration
In order for effective inter-agency collaboration to occur at the staff level, explicit
direction from regional Inter-Agency Committee (IAC) and/or Sub-Regional
Management Committee (SRMC), may be necessary. Senior management’s endorsement
of inter-agency collaboration can be an important signal to professionals when
establishing, or delivering legal actions.
Inter-agency collaboration in the establishment and delivery of legal actions can result in
efficiencies including:
1. Deciding if actions are needed,
2. Deciding what tool to use,
3. Co-locating areas,
4. Writing objectives,
5. Undertaking consultation and review,
6. Determining if legal requirements can be met,
7. Coordinating the timing of actions, and
8. Determining if established actions (including grandparented actions) should
be varied or canceled.
Collaboration during each of these stages is discussed in more detail in the following
sections.
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1.
Deciding if actions are needed
It is important to be strategic in determining what actions are needed in a particular area
keeping in mind the overall intent of FRPA where the legal realm is intended to play a
smaller role relative to the FPC. Many aspects of forest and range stewardship, including
aspects of land and resource use decision, can be delivered outside of the FRPA legal
framework12 through statutes and standards that apply to resource professionals, common
law, and the non-legal realm (e.g. societal expectations and scientific/technical
knowledge).
A variety of considerations are provided in the LUOR: Policy and Procedures and GAR:
Policy and Procedures documents when deciding on the need for actions that may also be
applicable when considering the need to continue grandparenting actions. Agencies
working together can help ensure that the assessment of the need for actions is
coordinated and undertaken in a relatively consistent fashion.
Individual agencies acting in isolation of other agencies can lead to unintended negative
and cumulative impacts on timber supply and affected agreement holders. An individual
action may not seem consequential on its own, but when summed over time there could
be significant adverse impacts on timber supply, or on individual agreement holders (e.g.
by substantially increasing delivered wood costs). Government may not have intended
these compounding impacts in the implementation of FRPA or specific land and resource
use decisions.
Further, agreement holders, First Nations and the public would likely prefer to see an
overall ‘game plan’ of actions so that they are aware of ‘corporate’ government’s
intentions at least over the short to mid-term. With a ‘game plan’, when individual
actions are undertaken, with corresponding consultation and review, the broader context
of intended actions is known. This may be important in supporting consultation with
First Nations, and in addressing public benefits through review and comment.
In short, agencies need to consult with one another when determining if legal actions are
needed.
2.
Deciding What Tool to Use
As noted earlier, if actions are needed to give legal effect under FRPA to aspects of
approved land and resource use decisions, in some situations either LUOR or GAR could
be used. The 2006 policy document Considerations for the Selection of LUOR and GAR
should be referred to where an inter-agency team approach is suggested.
In addition, some actions that may be needed to address a particular FRPA value are not
associated with a strategic land and resource use decision. Even in these instances, a
variety of tools may still be considered to address the same FRPA value. For example, to
12
See The Expectations that Affect the Management of Public Forest and Range Lands in BC: Looking Outside the
Legislation www.for.gov.bc.ca/hth/timten/FRPA_implementation/FRPA%20General%20Guidance.htm
14
address recreation sites and trails government could: (i) establish objectives; (ii)
identified the sites and trails as a resource feature; or (iii) both actions could be
considered. The tool chosen has implications on operational plan content including
amendments, opportunities for public review and comment on those plans,
responsibilities for plan approval, practices requirements and compliance and
enforcement. Agencies therefore need to coordinate their efforts through consultation so
that the most appropriate tool(s) is applied given the circumstances.
3.
Co-locating Areas
In some situations, actions needed to protect or conserve a FRPA value could be applied
in a variety of different areas. It is important for inter-agency discussion regarding this
flexibility. Overlapping, for example, areas for old growth retention needed to address
landscape-level biodiversity, with either habitat needed for species at risk, or protection
of resource features can help reduce adverse impacts on timber supply and agreement
holders while still ensuring non-timber values are appropriately managed.
Some area-based TFL licensees have been able to effectively address non-timber values
in their management plans through the careful placement of reserves that can address
multiple values. An individual agency may find similar efficiencies through consultation
early on with other agencies as well as with tenure holders.
The co-location of areas may help ensure that legal requirements associated with taking
action to manage public forest resources, such as limitations on actions under GAR
regarding impacts on timber supply, are met. Agencies need to coordinate efforts to
account for impacts when taking actions so that timber supply ‘budgets’ (or ‘caps’) for
particular actions are appropriately accounted for. For example, if a visual quality
objective coincides with an ungulate winter range objective, agencies working together
will need to determine whether and how to track the resulting timber supply impacts.
4.
Writing Objectives
Some agencies are very involved in writing objectives and can share their experiences
and ‘lessons learned’ with other agencies that have responsibilities to draft objectives.
Lessons learned can include:
 legal advice obtained;
 related agreement holder feedback;
 associated compliance and enforcement staff members’ perspectives; and
 findings from related effectiveness evaluation efforts.
Inter-agency consultation can lead therefore to ‘wisdom’ that can make the task of one
agency easier by taking advantage of the experience of ‘what has worked well’, ‘what
has not’, and ‘why?’ that has been gained by another agency. This can help ensure the
writing of objectives consistent with the FRPA framework is both efficient and effective.
5.
Undertaking Consultation and Review
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The timing of undertaking legal actions may enable a joint or coordinated consultation
and review process with potentially affected agreement holders, First Nations and the
public. For example, government agencies could coordinate their consultations with
agreement holders and First Nations to address proposed actions by more than one
agency.
Limited capacity on the part of government agencies, agreement holders, First Nations
and the public may suggest that meetings and discussions are more effective and efficient
if actions proposed by different agencies for the same general area, for example a
management unit such as a Tree Farm License or Timber Supply Area, are discussed at
the same time.
6.
Determining if Legal Requirements can be Met
Consultation on the part of agencies with the authority to undertake actions can include
an evaluation of whether the requirements in legislation, which must be met to set up new
actions, such as the limitations on actions (or ‘tests’) in GAR, have actually been met.
Staff in another agency may be able to provide information that can assist the agency
with authority to take an action to determine if the legislative tests have been met.
Proposed actions could be coordinated, for example, with a timber supply review, so that
impacts on timber supply, individually and in combination, are better understood, which
would allow the authorized agency to assess if those actions might ‘unduly impact the
timber supply of BC’s forests”.
7.
Coordinating the Timing of Actions
Coordination of the timing of orders with objectives that require amendments to
operational plans (such as Forest Stewardship Plans) can help minimize the number of
amendment requirements (e.g. by issuing several orders with the same or similar effective
date or issuing them on an annual basis versus issuing several orders in an uncoordinated
manner with varying effective dates). Publishing or otherwise making available the
schedule for upcoming orders is helpful to those who will be subject to the orders.
8.
Determining if Actions should be Varied or Canceled
An agency who varies or cancels an action, including one grandparented from the FPC,
might unknowingly impact an associated value that may be important to another agency.
Again, emphasizing the importance that consultation with other agencies occurs before
such actions are undertaken.
Chapter 4: Writing Orders
The language conventions for legal actions in ministers’ orders (e.g. objectives, measures
and features) should be consistent with the results-based approach applied during
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development of forest and range practices legislation and regulations. Some general
considerations for proposed orders under FRPA model are that they are:
 to be set where and when needed based on ‘risk’;
 to provide clear direction;
 to give due consideration to FRPA goals;
 to ensure a high level of stewardship ‘liability’ in hands of the tenure holder and
their professionals;
 to add value to the FRPA framework (responsible governance);
 to include flexibility for more specific actions in the future;
 to allow for new improved information to enter the picture;
 to be supported by strong and compelling information (be science-based);
 to allow for good results or strategies to be written (in case of objectives); and
 to allow for monitoring to determine if the desired intent is being achieved and is
effective over time.
Orders that identify resource features and wildlife habitat features are linked to a practice
requirement already specified regulation13 that states that a primary forest activity must
not damage or render the feature ineffective. There is no ability for orders to provide a
different or additional practice requirement for features. Similarly, a practice
requirement also already exists in the FPPR for temperature sensitive streams once
identified under GAR.
The wording of orders for objectives and measures can range from strategic (or general)
to specific (or detailed) keeping the following considerations in mind:
Strategic (or general)
Need for more flexibility (e.g. to encourage
different and innovative results, strategies and
practices thereby learning by doing and/or to
allow for new information/science in the future)
Unforeseen events or conditions (like wildfire or
beetle infestations) need to be accounted for
Order applies to non-spatial values (i.e. the order
does not have a map showing location of the
value)
Agreement holders have an established and
proven track record in sustainable forest
management (e.g. as demonstrated with forest
certification)
There is available documented professional
guidance on the value (where the strategic order
provides for a compelling ‘trail’ leading to the
Specific (or detailed)
There are higher risk issues (e.g. species at
risk) as determined by a risk assessment
There is strong and stable science in support
of a particular action given the circumstances
(such as prohibiting or restricting a certain
activity or practice)
Orders applies to a spatially explicit value
and/or mapping the value will reduce
conflicts in areas with overlapping tenures
Newer or smaller agreement holders exist
that may prefer more directed ‘tell me what
to do’ actions and/or may not have ready
access to resource professionals best suited to
deal with the values in the proposed order
Agreement holders indicate a preference for
such actions (e.g. it may make both the
writing or addressing results and strategies in
13
See s. 70 of the FPPR, s. 37 and 38 of RPPR, and s. 56 of WLPPR (there is an option in WLPPR for
licence holder to specify measures to address a resource feature)
17
best place of supporting information necessary to
address the order)
FSPs and the approval of FSPs easier)
Where a specific (detailed) order is prepared, care must be taken to:
 consider and possibly allow for exceptions due to unforeseen circumstances such
as wildfire, pest outbreaks, windthrow with built in flexibility. If not, this may
cause the need for formal exemptions as provided for under FRPA.
 avoid orders worded in a manner that might otherwise trigger an impracticality
issue.
For example, general wildlife measures can be written in a manner that describes
government’s results for the subject value on the land base– what it is that must be
delivered. The language for general wildlife measures, therefore, can leave selection of
delivery methods to practitioners. When data are lacking, opportunities for cooperative
monitoring and adaptive management should be explored.
Where orders address species at risk, and where science indicates a certain practice is
known to reduce the risk to the species, and that science is specifically applicable to the
area of a proposed action, a prohibitive general wildlife measure may be acceptable. This
decision ultimately needs to be made considering the identified risk to the resource value.
Where risk is identified as high a more prohibitive approach may be warranted.
When writing an order either strategic or specific, some ‘do’s’ and ‘don’ts’ to consider
include:
Suggested Do’s
Suggested Don’ts
Orders should be clearly worded so that users
have a common understanding of government’s
intended goal. If necessary, include definitions
in the order.
Orders should not include background
information, detailed procedural requirements,
nor should an order attempt to encompass the
rationale for the decision. This material can be
provided in a separate companion document.
Separate clarifying documents may be useful
but should not form part of the order
In the case of objectives, orders should enable a - Orders should not devolve a decision to a
measurable or verifiable result or strategy to be future planning process or subsequent decision
written where applicable in an operational plan. maker.
-Orders should not include provisions for joint
decision making.
-Orders should not direct government staff
Orders must meet the requirements (i.e.
limitations on actions or tests) in regulation
(e.g. LUOR or GAR)
Orders should not duplicate existing legal
direction contained either in legislation or in
existing orders.
Orders should be reasonably consistency in the
-Orders should not be written so as to provide
18
wording of similar types of Orders. Reviewing
recent applicable orders14 (i.e., those designed
for application to FRPA) can help promote
consistency, while respecting opportunity for
innovation and creativity in the drafting of
proposed orders.
Terms in the order should be consistent with
those defined under FRPA and its regulations.
If a new term is used, a definition may need to
be provided in the order so that the intent is
clear.
Orders should be reasonably identifiable
(features), achievable (measures) and either
directly (features and measures) or indirectly
(objectives) be enforceable.
Orders should include a map(s) showing the
location of the area to which the action applies
if spatially explicit resource is being managed
Objectives should be written in a way that the
delegated decision-maker (DDM) for an
operational plan can apply the tests in
legislation. That is so that the DDM can
determine whether or not the results or
strategies are “consistent” with the objectives,
are “measureable or verifiable”, and describe
the “situations or circumstances” where the
outcomes, steps or practices will be applied.
another individual, other than the statutory or
delegated decision maker the ability to amend
an objective.
-Similarly, objectives should not be written to
suggest that policy documents that are subject
to change or committees are the ones that
determine the objective.
Orders should not be worded to say they
replace sections of FRPA or other Acts. Nor
should they be written in a manner that creates
a direct conflict with other sections of FRPA or
other Acts.
Orders should not include a mandatory review
date. If desirable to mention, include in an
accompanying memo.
Orders should not include footnotes. If the
information is important, include directly in the
order (e.g. definitions, or write into action)
Orders should not include a preamble. While
many existing orders do, current legal advice is
that such context and background information
should be explained in a separate covering
memo that accompanies the legal order
Basic principles in administrative law need to be considered when government officials
are taking legal actions for the purposes of FRPA. The principles are described in
Appendix 5 of the Administrative Guide to FSPs15 and include:
 Jurisdiction – having the authorization to make the decision and making it within
the scope of your authority;
 Decisions: mandatory versus discretionary;
 Proper use of discretion;
 Proper delegation;
 Avoidance of fettering – so that the person with decision-making authority can
exercise that authority freely;
 Relevance – consider all relevant factors and avoid all irrelevant factors;
 Proper purpose – consider the overall purpose of the Act or regulation;
 Arbitrariness – so that similar facts produce similar results;
 Reasonableness – to avoid unreasonable decisions despite following proper
process;
14
Current GAR Orders for example are available at:
www.for.gov.bc.ca/hth/timten/FRPA_implementation/GAR%20Memo%20and%20Manual.htm
15
http://www.for.gov.bc.ca/hth/timten/AGFSP/index.htm
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

Making procedurally fair decision – including procedural fairness and natural
justice; and
Remedies for improper decisions.
Other documents that may be considered when writing orders include:
 Writing Resource Objectives and Strategies: A Guide to Preparing Effective
Resource Management Plans16 is targeted at writing objectives and strategies for
resource management plans, as the title denote. Nevertheless, some of the advice
may be helpful when writing objectives for the purposes of FRPA.

Principles of Legislative Drafting.17 Part 2 in A Guide to Legislation and
Legislative Process in British Columbia.
Applying ‘SMART’ Principles to Legal Actions
The ‘SMART’ acronym is often used to summarize what an objective should be:
 Specific
 Measurable
 Achievable
 Relevant
 Time-bound
The following suggestions regarding the application of ‘SMART’ principles is adapted
and summarized from Writing Resource Objectives and Strategies: A Guide to Preparing
Effective Resource Management Plans. 2004 Second Edition.
http://ilmbwww.gov.bc.ca/slrp/lrmp/policiesguidelinesandassessements/index.html
For the most part, the guidance in the above report applies to legal objectives prepared for
the purposes of FRPA – and should also be considered when taking other legal actions
such as measures or features.
However, some adapting of principles is needed when considering FRPA. This is because
‘objectives’ for the purposes of FRPA trigger a measurable or verifiable ‘result’ or
‘strategy’ in an operational plan such as a Forest Stewardship Plan. Therefore, the
objectives themselves can be more generally worded, like goal statements that describe a
desired end state with respect to a particular value.
The following are some considerations when applying SMART principles for the
purposes of FRPA.
Specific ( precision)
16
17
http://ilmbwww.gov.bc.ca/slrp/lrmp/policiesguidelinesandassessements/index.html
www.llbc.leg.bc.ca/Public/PubDocs/bcdocs/376304/
20
Orders should provide clear direction so that users have a common understanding of
intent including ‘who’ the order applies to, ‘what’ is expected, and ‘where’ the order
applies (with ‘when’ being a ‘time-bound’ consideration). Terms in the order should be
consistent with those defined under FRPA and its regulations. If a new term is used, a
definition may need to be provided in the order so that the intent is clear.
Orders may or may not apply to both forest and range agreement holders, or to holders of
various minor tenures. The order should be clear regarding ‘who’ the order applies to.
Focus the order, where possible and appropriate, on ‘what’ is expected regarding desired
future resource conditions thereby giving the agreement holders the ability to undertake
strategies that enable those conditions to be attained. This helps ensure a high level of
stewardship ‘liability’ is in the hands of the agreement holders and supporting resource
professionals. Orders normally should focus on specifying desired biophysical resource
conditions and not on process – leaving the ‘how’ to agreement holders. An exception
may be some specific (detailed) orders, as noted in Chapter 2.
All orders should include a map showing ‘where’ the area to which the order applies.
Even if the resource value is not spatially explicit in the order, the overall area to which
the order applies needs to be specified. For example, if the order applies to a particular
forest district, the boundary of that district might change, so a map identifying the precise
boundary to which the order applies should be provided. The advice in GAR: Policies
and Procedures related to ‘Mapping Considerations’ provides further guidance to help
ensure the map is properly prepared and made available for use. This advice is relevant
for all legal actions unless it applies to the whole province, then the order can simply
state this.
Allows for Measurablity
The adage “If you can’t measure it you can’t manage it” supports the notion that resource
management direction should ideally be measurable. Under FRPA, as noted in Chapter
2, the intent of objectives is normally to set up a requirement that agreement holders
prepare ‘results’ or ‘strategies’ that are either ‘measurable’ or ‘verifiable’ in their
operational plans. An objective under FRPA is therefore primarily intended to describe
clear intent (desired end state) with respect to a particular value – and therefore can be
more like a ‘goal’ statement as described in the 2004 Writing Resource Objectives and
Strategies document.
Having an operational plan, like a Forest Stewardship Plan, provide results or strategies
consistent with an objective enables feedback from public review and comment, and First
Nations consultations, to occur which may help ensure the ‘measurable’ or ‘verifiable’
aspects make sense locally.
That said in some cases, as described in Chapter 2, a specific (detailed) direction may be
needed where the order itself includes a measurable objective. General wildlife measures
are more similar to ‘results’ and may therefore also be measurable.
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Also, some objectives may have a measurable component for a large geographic area
while still leaving considerable flexibility for agreement holders to prepare more specific
results or strategies (e.g. the Order Establishing Provincial Non-Spatial Old Growth
Objectives).
Measurability helps set up monitoring which enables feedback to occur on how effective
the order, result or strategy has been thereby fostering its continuous improvement.
Achievable
Orders should be reasonably achievable and either directly (in case of features and
measures) or indirectly (in case of objectives) enforceable.
Legal actions must be technically possible in terms of the forest management direction
they are providing. Avoid drafting unrealistic legal actions that:
 conflict with other legislation (e.g. Wildfire Act) or other FRPA requirements;
 may inadvertently cause forest and range practices to be economically unviable;
 are subject to further planning inventories being completed
 may not be achievable given a landscape’s natural disturbance patterns which
may include large wildfires and insect epidemics;
 cause activities (like roads) to be located in unsuitable areas; and
 place requirements on other decision makers
 lead to exemptions because its not possible to write a result or strategy for it
 are outside the legal authority
For example, regarding natural disturbances, forest pests such as insects and fire can, in a
short time-frame, significantly impact the ability to achieve legal actions. Where a
catastrophic event makes an existing legal action out-of-date, there will be a need to
amend the action unless the order has been written in a manner that permits some
flexibility and discretion in how they are implemented in case such an event occurs.
Relevant
Legal actions for the purposes of FRPA should be taken to address significant issues. If
there are no significant issues, there is no need to take a particular action – standard laws,
policies and guidelines (including those related to resource professionals) will normally
provide an adequate basis for resource management.
However, where there are important issues that need addressing, clearly articulating them
at an early stage in the process of considering legal actions can help immensely with
developing appropriate orders.
Issues should:
 pertain to existing or potential resource problem, concern or unrealized
opportunity;
22





relate to a specific geographic area;
specify both the problem (i.e. symptom) and the underlying cause;
pertain to a matter that is within the scope of FRPA where forest or range plans or
practices can actually address the issue;
connect where appropriate to specific land and resource use decisions; and
be stated in neutral terms.
Issues should not:
 normally describe a problem that is not resource-based (e.g. administrative
problem);
 relate to a provincial, national or international problem that is better dealt with at
those levels;
 fail to identify the underlying cause of the problem;
 describe a solution, rather than the problem; or
 be vague or loosely stated.
Good ‘issue analysis’ at the outset of the process where legal actions are being considered
allows the applicable agency to distinguish between symptoms, causes and appropriate
resource management responses. For strategically (generally) worded orders (as
described in Chapter 2), allowance is provided the forest and range agreement holders to
provide an appropriate resource management response i.e. to propose results or strategies
in their operational plan, or to operate appropriately on-the-ground to address measures
and features. For more specific (detailed) worded orders, if applicable, some direction
may be provided in the order that addresses what an appropriate management response
should be.
Time-bound
It is important to be clear in the order itself when it comes into effect. It may be
appropriate to have the order take effect on a date later than when it is posted or
published so that agreement holders have sufficient time to adjust to and effectively
address the new requirements. That of course needs to be considered in balance with the
need to protect or conserve the resource that the order addresses.
The potential effectiveness of a new order may be a sufficient concern where it may be
desirable to commit to its review after its use has been monitored. The review may
involve both how well the order is protecting/conserving a value as well as its effects on
agreement holders. The order itself however should not include a mandatory review date.
If desirable to mention, include a targeted review date in an accompanying memo.
Objectives order could also include a “sunset” clause that ceases to have effect when a
new order establishing xxx comes into effect or time the cancelling of and objective with
the establishment of a new one.
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