2008 PROVINCIAL ENGINEERING MEETINGFebruary 27, 28 and 29th, 2008

Hilton Vancouver Airport in Richmond

PROFESSIONAL RESPONSIBIILTY, FORESTRY PROFESSIONALS, AND OCCUPATIONAL HEALTH &

SAFETY IN THE BC FOREST INDUSTRY

Jeff WaatainenBarrister & Solicitor

Website: bcforestrylaw.comEmial: jeff@bcforestrylaw.com

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• Started Westhaven Forestry Law out of Nanaimo in July 2006

• Summered, Articled and spent a 10-Year Career as an Associate with the Forestry Practices Group at the Vancouver Office of Davis & Company

• BA(Hons)(1991), MA (1992) and LLB (1995) (UBC)

Introduction

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Introduction … con’t• Entire Career Spent in Forest Sector• Involved with Occupational Health & Safety

in a Forestry Context Since the Bill 14 Amendments to the Workers Compensation Act (“WCA”) in 1998

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Overview

• Not a review of specific standards and requirements of the applicable legislation and regulations.

• Exploration of the role of forestry professionals in the context of occupational health and safety.

• Do forestry professionals have any specific responsibility for safety on account of their professional status?

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Overview … con’t

• Professionalism and Professional Responsibility Generally

• Occupational Health and Safety as a Question of Professionalism for Forestry Professionals

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Overview … con’t

• Intended more for RFTs and RPFs.• However, plenty of overlap.• The role of PEngs and Geoscientists is

more clear:

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Overview … con’t

• Safety is expressly identified as the paramount ethical consideration in APEG’s Code of Ethics:

Professional Engineers and Geoscientists shall ...uphold the values of truth, honesty and trustworthiness, and safeguard human life and welfare ... . In keeping with these basic tenets, Professional Engineers and Geoscientists shall:

1. Hold paramount the safety, health and welfare of the public, the protection of the environment and the promotion of health and safety within the workplace.

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Professionalism?• The core of professionalism is found in the

definition of “practice of professional forestry” in the Foresters Act:

“[A]dvising on, performing or directing works, services or undertakings which, because of their scope and implications ... require the specialized education, knowledge, training and experience of a registered member ... .”

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Professionalism … con’t• The “Professional” has specialized

education, knowledge, training and experience.

• The Professional possesses specialized knowledge that is unknown to mere mortals.

• Through legislation, society recognizes various groups of persons who possess specialized knowledge, and bestows professional status upon them.

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Professionalism … con’t• In exchange for their agreement to

exercise their knowledge and expertise responsibly”—ie. in accordance with the public good—the public grants special authority upon professionals within their field of knowledge and expertise.

• This duty of responsibility is the other side of the professionalism coin.

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Professionalism... con’t

• Those who are awarded professional status become part of society’s priesthood in a particular field of knowledge.

• By virtue of the professional status awarded under the Foresters Act, RFPs and RFTs are society’s “Priests of the Forests”.

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Professional Reliance• Society relies upon professionals for a

very practical reason.• Without the assistance of professionals,

the public and the lawmakers who represent them simply do not have the capacity to manage the complexities that exist within certain spheres of human endeavor.

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Professional Reliance ... con’t• Society is reliant on professionals for front-end planning

and regulation, and back-end compliance.

– Professionals, effectively, determine how complex areas of human activity are undertaken.

– Professionals are then needed to ensure that the complex areas of human activity are undertaken as planned.

• So, professional reliance is needed in advance to plan complicated human activity, and subsequently to ensure compliance.

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Professional Reliance ... con’t• In Advance:• When the planning of complex areas of human

activity is left to professional judgment, regulatory authority is, effectively, delegated to the professional.

• For example, see section 16 of the Forest and Range Practices Act:

16. (1) The minister must approve a forest stewardship plan or amendment to a forest steward ship plan if it conforms to section 5.

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Professional Reliance ... con’t• But yet we se the minister is reliant upon professionals:

16. (1.01) A forest stewardship plan or an amendment to a forest stewardship plan conforms to section 5 if

(a) a person with prescribed qualifications certifies that it conforms to section 5 in relation to prescribed subject matter; ... .

• The Minister must approve when an FSP conforms to prescribed requirements, and an FSP conforms with prescribed requirements when a professional says it does.

• So who really makes the call?

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Professional Reliance ... con’t• This example also illustrates the important

linkage between “professionalism” and “professional reliance”.

• The minister acts on the basis of any qualified professional opinion—not merely the opinions of the minister’s own qualified professionals.

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Professional Reliance ... con’t• Professional reliance presumes

professional ability and responsibility.

• The basic, most important function of our various professional associations is to provide quality assurance—they are a trade mark that assures reliability.

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Professional Reliance ... con’t• Back-End Compliance• Society is also reliant upon professionals

to ensure that complex projects are undertaken in accordance with approved plans and regulatory requirements.

• Planning complex human endeavors requires professional expertise, and so does implementation.

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Professional Reliance ... con’t • May take the form of specific requirements

for professional opinion: – PEng approval of bridge or culvert structures;– Forest Professional “free to grow”

declarations.

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Professional Reliance ... con’t• May take the form of “due diligence”.• For example, when constructing a complex

piece of road, a licensee, contractor or other operator will have a legal obligation to construct a stable road.

• Due diligence will require that the operator involve professional opinion not only in the planning stages, but also in the construction of the road.

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Professional Reliance... con’t• How else would a diligent operator

construct a complex road system other then through the involvement of professionals?

• See the Forest Appeals Commission decision in Kalesnikoff (Appeal Nos. 2003-FOR-005(b) & 006(b)).

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Occupational Health and Safety and

Forest Professionals

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OHS & Forest Prof’s ... con’t• Nonsequitor?• What does the practice of professional

forestry have to do with occupational health and safety?

• Comes back to the role of a forest professional as a “professional”.

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OHS & Forest Prof’s ... con’t• Sources of Professional Responsibility For

Occupational Health & Safety• Forest and Range Practices Act and Regulations.

– very little– typically in the form of exceptions to rules, ie. FPPR, s.51(1)(a):

An agreement holder must not cut, modify or remove trees in a riparian reserve zone, except for the following purposes:

(a) felling of modifying a tree that is a safety hazard ....

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OHS & Forest Prof’s ... con’t• Occasionally, there is something more

substantive, ie. FPPR, s.79(6)(c)A person required to maintain a road must ensure ... the road can be used safely by industrial users.

• Due diligence may require the use of forest professionals to satisfy these sorts of obligations—those with the necessary “specialized education, knowledge, training and experience”.

• Little specific reference to the responsibility of forest professionals for OHS.

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OHS & Forest Prof’s ... con’t• Workers Compensation Act and

Regulations• Part 3 of the Act itself, and Part 26 of the

OHS Regulation, contain extensive occupational health and safety requirements that are applicable to all workplaces, and that are specifically applicable to forestry operations.

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OHS & Forest Prof’s ... con’t• Again, due diligence may require the use

of forest professionals to satisfy these requirements given their “specialized education, knowledge, training and experience.”

• Little specific reference to the responsibilities of forest professionals (PEngs are another storey).

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OHS & Forest Prof’s ... con’t• However ...• Section 26.2 of the Occupational Health

and Safety Regulations goes further:The management of forestry operations must plan and conduct such operations in a manner consistent with this Regulation and with recognized safe work practices.

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OHS & Forest Prof’s ... con’t• Planning of forestry operations is, by definition,

the “practice of professional forestry” under the Foresters Act:

“practice of professional forestry” means ...advising on, performing or directing works, services or undertakings which ... require the specialized education, knowledge, training and experience of a registered member ... and includes the following:

(a) planning, advising on, directing, approving methods for, supervising, engaging in and reporting on the ... harvesting, siviculture and rehabilitiation of forests ... .

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OHS & Forest Prof’s ... con’t• If planning forestry operations is the

practice of professional forestry ...• ... and if only forestry professionals may

practice of professional forestry (Foresters Act, s.20) ...

• ...then forest professionals are obliged to account for safety in their practice (at least insofar as the planning and conduct of forestry operations is concerned.)

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OHS & Forest Prof’s ... con’t• Foresters Act• No specific references to safety in the Act

itself.• Under section 4(1), the ABCFP is ogliged

to “serve and protect the public interest”.• Does this include the public interest in

forestry “safety”.

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OHS & Forest Prof’s ... con’t• Code of Ethics, Bylaw 11.3.10:

The responsibility of a member to the public is ... to have proper regard in all work for the safety of others.

• Forestry Professionals have an ethical obligation to account for safety “in all work”.

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OHS & Forest Prof’s ... con’t• “All work” means:

– all planning;– all advising;– all directing;– all supervising;– all approvals;– all preparation of professional documentation;– all auditing;– all road and other setting location;– all other work: see definition of “practice of professional

forestry”.

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Conclusion

Safety is a Professional Responsibility of Forest Professionals:

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1.Forest Professionals have the “specialized education, knowledge, training and experience” necessary to allow forestry operations to comply with prescribed legislative safety standards (FRPA, WCA).– Due diligence requires the specialized

knowledge of Forestry Professionals.

Conclusion ... con’t

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Conclusion ... con’t2. The Occupational Health & Safety

Regulation requires those who plan forestry operations to recognize safety. – Only Forest Professionals are entitled to plan

forestry operations.

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Conclusion ... con’t3. Forest Professionals are otherwise

ethically bound to have proper regard for the safety of others in “all work”.

– Code of Ethics, Bylaw 11.3.10

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Conclusion ... con’t• The responsibility of Forest Professionals

is likely to become more apparent in the future.

• Many of those studying OHS in the forest industry have come to the conclusion that forestry planning and safety planning do not work as a closed loop.

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Conclusion ... con’t• For example, in a recent Coroner’s

Inquest into a forest industry fatality, the Coroner’s jury recommended that:

[W]orker health and safety and road user safety, be included as an objective in all forest stewardship plans.

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Conclusion ... con’t• Implications?2. Safety is likely to become a legislatively

more express part of forestry planning.- insofar as forestry planning is the stuff

of professional forestry, then safety will become a much larger part of

professional forestry.

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Conclusion ... con’t2.Given that safety already is a responsibility of

Forestry Professionals, and is likely to become more so, the ABCFP will face pressure to make their members more accountable for safety.– The ABCFP is responsible for the protection of the

public interest, and the more the public interest is defined in terms of safe forestry the more the ABCFP must hold its membership accountable for safety.

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Questions?

Thank You!