Moving Forward in the World
of Professional Reliance
Presentation by Roberta Reader to the
Southern Interior Forest Region
Regional Stewardship Meeting
March 13, 2007
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There is a large, complex world outside
the “known world” of the FRPA
• The world outside statutory regimes administered
by government officials is as important as the
world inside; this is part of the rationale for the
change from the Code to the FRPA
• Ultimately, the government, tenure holders and
professionals will be judged against societal
expectations and the current state of scientific/
technical knowledge, and not just against the
FRPA, an FSP or a government guidebook
• The government cannot control the world outside
the FRPA; if government officials fail to recognize
the role played by this world, they may make
unwise decisions or overstep their authority
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The iceberg analogy
The Legal Realm
Statutory regimes administered by
government officials
Statutory regimes administered
by self-regulating professions
Statute law
Common Law
The Non-Legal
Realm
Societal Expectations
The most up-to-date scientific / technical knowledge,
which underpins both the legal and non-legal realms
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The common law
• Government officials generally focus on the
statutory regimes they are charged with
administering; however, the common law can be
just as important to their decisions
• Administrative law (which governs how
governmental powers are exercised), statutory
interpretation principles (which govern how
Acts and regulations are interpreted), contract
law (which governs business relationships
founded on contracts), negligence law (which
governs civil liability for actions that harm
others), and professional negligence law
(which applies specifically to professionals) are
all part of the common law
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The changing world of civil liability
• Civil liability is part of the common law, which is
made by the Courts and evolves in response to
the cases they are called upon to adjudicate
• In 2004, the Supreme Court of Canada
recognized a new civil action for environmental
damage to public lands
• Compliance with the FRPA (or any other Act)
may not be sufficient to protect tenure holders –
or even the government – from liability for failing
to adequately protect public lands or resources
• Government officials can also be held
personally liable for their actions and decisions,
particularly if they exceed their authority
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The role of tenure holders
• Extends beyond the FRPA and other statutory
regimes administered by government officials
• Is subject to pressures and constraints that
cannot be controlled by the tenure holders
themselves or by the government, such as the
expectations of the public, the marketplace and
the Courts
• Is maturing and evolving; tenure holders are no
longer just resource extractors; whether they like
it or not, they have also become stewards
• The freedom afforded to them by the FRPA
comes at price: increased responsibility
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The role of government officials
• Serve the Legislature under the supervision of
the Courts, which means fulfilling the will of the
Legislature in accordance with the rule of law
• Have no inherent powers to affect the rights,
duties or liberties of any person; their powers
(and associated duties) are circumscribed by the
law, including administrative law and contract
law principles
• The Legislature, if it so chooses, can change or
even eliminate their role at any time (a change in
the legislation can change everything!)
• If they misuse their powers, their decisions can
be overturned and, in certain circumstances,
they may face personal liability
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The non-legal realm: the power of
societal expectations
• Public opinion matters because public lands are
held in trust for the public
• Loss of public confidence brings governments
down; it can also bring the public service into
disrepute (which does not mean that MOFR staff
can use public opinion to justify “non-legal”
controls over tenure holders or their professionals)
• A tenure holder’s “social licence” can be as
important as any regulatory licence issued by the
government; “reputation capital” is often the key to
business success
• A profession exists only so long as it has the
public’s confidence
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How will we know if societal
expectations have been met?
• Public sector evaluation schemes (FREP,
Montreal Process, CCFM, etc.)
• Private sector evaluation schemes, including
market-based schemes such as certification
• The Forest Practices Board’s role as
independent watchdog
• Scientific validation: the ultimate arbiter of forest
management decisions
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Building an effective
effectiveness monitoring program
• Do not confuse effectiveness with legality. C&E
staff assess the latter, not the former.
• What is your definition of “effectiveness”? What
criteria explicitly or implicitly underpin your
definition? What is the source of these criteria? Is
it scientific/technical knowledge, government
policy, personal opinion or something else?
• What indicators are you using to evaluate the
condition or state of these criteria, i.e. how are you
measuring the extent to which your definition of
effectiveness has been met?
• What is your goal? What do you intend to do with
the results of your monitoring?
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The power of science
• Science can have a profound effect on both the
legal and non-legal realms
• Science should never be confused with
government policy or vice versa
• The neutrality that underpins scientific/technical
knowledge complements
– the professional neutrality that characterizes
all true professionals
– the political neutrality required of public
servants, including government officials
charged with administering the FRPA
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Distinguishing science from public
policy (and vice versa)
• Elected officials have been given the power to
make public policy; if it affects a person’s rights,
duties or liberties, it usually requires legislation
• Public servants do not make public policy; neither
do tenure holders or the professionals who advise
and assist them (which means tenure holders
generally need to look for scientific answers to the
dilemmas they face)
• Valid public policy decisions should always be
respected; science does not provide a pretext for
ignoring or overriding legislation
• However, science should not be misrepresented
simply to support a public policy decision; the
purity of science should also be respected
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The role of professionals
• The standards of conduct and competence set
by a self-regulating profession determine the
nature and scope of the advice and assistance
that its members can (or cannot) provide
• Professionals owe a dual duty to their clients
and to the aspect of the public interest that their
profession is charged with protecting
• Professional reliance does not mean blind
reliance; professionals should expect their
opinions to be scrutinized (transparency is one
of the hallmarks of a true professional)
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Applying the iceberg analogy to
self-regulating professions
Legal Realm
Professional standards imposed
by statutory regimes administered
by self-regulating professions
Common law principles of
professional negligence
Non-Legal
Realm
All professionals must comply with the law,
including statutory requirements, such as
those imposed by the FRPA, that apply to
their clients. Professional standards go
beyond this; they embody a particular
profession’s answer to the question: “What
else is expected of professionals?”
Societal expectations
Peer expectations
Professional culture (core
values and beliefs)
The most up-to-date knowledge underpinning
a particular profession
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The importance of professional
culture (core values and beliefs)
• The law is an axe, not a scalpel; it hews out
minimum standards of what is acceptable; it does
not lend itself to detailed sculpting of human
thought and behaviour
• The same holds true for a profession’s rules or bylaws; they can hew out minimum standards of
professional conduct and competence, but cannot
capture the ideals of the profession – its core
values and beliefs
• It is a profession’s ideals – and not its rules or bylaws – that create a professional culture; ideals (or
their lack) shape societal and peer expectations
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Incompetence = A professional who
is not an expert in their chosen field
• High standards of competence are as
important to a profession as high standards of
conduct (a code of ethics alone provides no
guarantee of expertise)
• If a profession fails to set appropriate
standards of competence, then the Courts will
eventually impose their own standards in the
context of a negligence suit
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What does it take to be an expert?
• Two-part test: (1) Is the professional qualified to
give an opinion? (2) Does the opinion itself
stand up under scrutiny?
• The first part of the test turns on a professional’s
training and experience, as well as other factors
such as the research they’ve done, their
publications and the recognition they’ve received
from their peers (The bottom line: professional
accreditation alone does not make an expert)
• The second part of the test turns on a number of
factors, including the current state of
scientific/technical knowledge
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The role of government professionals
• The public service is a profession in its own right;
its role brings into play fundamental democratic
and constitutional principles
• Members of the resource management
professions need to reconcile their duties as
resource management professionals with their
duties as public servants
• Advising a statutory decision-maker requires
special care (make sure you understand what the
law requires of them)
• As public servants, government professionals owe
a dual duty to: (1) the government of the day and
future governments; and (2) the public
• Tenure holders are part of the public -- with rights
as well as obligations
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Distinguishing guidance from direction
• Government officials can only give directions
when they have been clearly authorized to do so
• Directions are orders rather than suggestions,
which means you must verify their legal pedigree
before you can expect compliance
• Guidance is not an exercise of government
powers; anyone can provide guidance
• Guidance draws its power from its content, and
not from who provides it; it needs to be
compelling and persuasive or else it can, and
probably should, be ignored
• Professionals who are true experts in their field
are most effective when they are providing
guidance, not direction
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MOFR motto for the future:
“Leading through knowledge”
(or why the Forest Service’s research
program is more important than ever)
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