Canada: The New Professional Governance Act – Impacting Natural Resource Sector Professionals

Background

The BC Government's recent introduction of the Professional Governance Act (the "PGA")1, which as of October 22, 2018 passed its first reading in the Legislature, is the Government's response to public concerns around resource management and perceived shortcomings of professional reliance. The legislation is aimed at "making sure decisions affecting the province's natural resources are science-based, transparent and protect B.C.'s unique environment for future generations" 2. The PGA is in based on the recommendations a report, dated May 18, 2018, authored by lawyer Mark Haddock, titled Professional Reliance Review, The Final Report of the Review of Professional Reliance in Natural Resource Decision Making [the "Haddock Report"] 3. The Haddock Report makes clear the perception that there is a need to strengthen the professional reliance model:

Over the last several years, examples have been raised by the Ombudsman ..., the Forest Practices Board ..., and the Auditor General that highlight significant gaps in professional reliance models of regulation. Various high profile environmental protection and natural resource management issues, including the Mount Polley Tailings Storage Facility breach and the contamination of the Hullcar Aquifier, have drawn public scrutiny and brought to light deceased public confidence in some of the professional reliance regulatory regimes in effect in BC today. [Haddock Report, at p. 6]

In October of 2017, the Provincial Government announced a review of professional reliance in the natural resource sector to "ensure that the highest professional, technical and ethical standards are being applied to resource development in British Columbia." [Haddock Report, at p. 6]. The Haddock Report makes 121 recommendations, though only finds that two of those should be implemented through legislation-those two recommendations being with respect to governance. These recommendations include the establishment of an Office of Professional Regulation and Oversight, similar to that of the Health Professions Act, which would be an agent of government separate from the natural resource sector ministries with a focus on professional governance issues and that the government

... standardize 10 elements of professional governance through umbrella legislation, including a new power to regulate firms, improve council authority to pass certain bylaws, required continuing professional development, clarify public interest duties, and address code of ethics, reporting duties and whistleblower protection. [Haddock Report, p. 9]

The remaining recommendations were with respect to improving laws, regulations, and authorizations, and with respect to regime specific recommendations, including:

  • Agricultural Waste Control
  • Contaminated Sites
  • Hazardous Waste
  • Landfill Gas Management
  • Municipal Wastewater
  • Organic Matter Recycling
  • Soil Amendments
  • Forest and Range Practices Act
  • Greenhouse Gas Industrial Reporting and Control Act
  • Mines Act
  • Riparian Areas Protection Act
  • Water Sustainability Act
  • Dam Safety Regulation

The conclusion of the Haddock Report was that some regimes addressed professional reliance issues well while others did not. The Haddock Report concluded that the most problematic regimes were the Forest and Range Practices Act and Riparian Areas Protection Act due to their restriction on government's authority.

Particulars of the Legislation

The tabled legislation is aimed at making sure decisions affecting the province's natural resources are science-based, transparent and protect BC's unique environment for future generations. Effectively the PGA will provide another layer of administration over regulated professions and their members.

To carry out its agenda to address these concerns, the PGA will create a Superintendent of Professional Governance that will oversee the five regulated natural resource professions, including:

  • BC Institute of Agrologists;
  • Applied Science and Technologist s & Technicians of BC;
  • College of Applied Biology;
  • Engineers and Geoscientists BC; and
  • Association of BC Forest Professionals.

(the "Professional Bodies")

The Superintendent has wide authority over the five resource professions. The Superintendent's duties include general powers of oversight over these Professional Bodies, relating to both systemic or general matters of professional governance, and also include investigatory powers, and broad powers of search and seizure upon application to the courts. The PGA also includes a list of offences under the PGA that carry strict penalties which include jail time. Under the PGA. Listed offences include:

  • the use of reserved titles for registrants of a regulated body (s. 52);
  • unauthorized practice (s. 54);
  • failure of the duty to report (s. 58) ;
  • failure to complete a competence declaration and conflict of interest declaration (s. 60);
  • failure to comply with practice restrictions arising from and extraordinary action to protect the public (s. 67);
  • breach of whistleblower protection (s. 103);
  • obstruction of the Superintendent (s. 104); and
  • obstruction of inspection or search (s. 105).

The penalties can be quite severe, and include, in the case of an individual, a fine of not more than $200,000 or to a term of imprisonment of not more than two years. In the case of a firm, the penalty is a fine of not more than $500,000. If an offence under the PGA is committed by a firm, each director, manager, secretary or other officer of that firm who assented to the commission of the offence is a party to that offence.

Of particular interest is section 58, regarding the Duty to Report, which requires:

(2) If a registrant has reasonable and probable grounds to believe that an identified registrant is

(a) engaged in the regulated practice in a manner that may pose a risk of significant harm to the environment or to the health or safety of the public or a group of people, or

(b) engaged in a matter or conduct prescribed by the Lieutenant Governor in Council,

the registrant must promptly report this to the registrar of the identified registrant's regulatory body.

This coupled with the offence provisions creates a strong duty to report, as failing to report also attracts strict penalties.

Another significant provision is section 67 with respect to what is described as an "Extraordinary Action to Protect Public":

67 (1) If the council of a regulatory body, or a discipline committee established under section 75 [discipline hearings], considers the action necessary in the public interest during an investigation under section 66 (1) (a) or pending a hearing under section 75, the council may, by order and without giving the registrant an opportunity to be heard,

(a) impose limits or conditions on the practice of the regulated practice by the registrant, or

(b) suspend the registration of the registrant.

Other regulatory bodies have such provisions for public protection, but it is interesting that the government has now proposed this for the resource professionals.

A concern with this legislation is whether it is ultimately used (or perhaps is intended) to prevent or delay resource development, such as pipe lines, where one registrant who disagrees with certain projects can use the "Duty to Report" provisions to have involved engineering professionals investigated. The effect of such 'bullying' could be to stifle development. Many if not all resource development projects may "pose a risk of significant harm to the environment ..." Engineers work to mitigate that risk through design solutions but those solutions are unlikely to entirely eliminate the risk.

Also of interest are the provisions requiring registrants of the Professional Bodies to make competence and conflict of interest declarations:

60 (1) When a registrant is engaged to provide services that are within the registrant's regulated practice, the registrant must, within a prescribed time period and in the prescribed form and manner, file the following:

(a) a competence declaration;

(b) a conflict of interest declaration, which includes a conflict of interest or a perceived conflict of interest in respect of the service to be provided.

(2) The council of a regulatory body may, subject to regulations that may be made by the Lieutenant Governor in Council, make bylaws to specify the requirements for competence in respect of the regulated practice of registrants or a category of registrants.

The purpose of this requirement is unclear. Most professional bodies require competence in the carrying out of a professional engagement, and require members to not act in a situation of conflict of interest. This creates another level of oversight over registrants in that it appears the declarations must be given to the regulatory body for every engagement, no matter how small or how large. It is difficult to see the point of such a requirement, unless its use is intended for disciplinary actions where a member may have acted in a less than competent manner or in a conflict of interest. This will beg the question as to what is 'competent', how does one evaluate 'competency', and when can a registrant declare their competency?

Commentary on the PGA

Association of B.C. Forest Professionals:

"The introduction of the Professional Governance Act and creation of the Office of the Superintendent of Professional Governance will change how professionals are governed but does nothing to change policies regulating how the environment and land base are managed," 4said Christine Gelowitz, RPF and ABCFP CEO.

"The ABCFP agrees that forest management can be improved. Repeatedly, through our submission to the government's stakeholder process and during meetings with government officials, we stressed the need for government to clearly define values, clarify desired results, set objectives and values, and establish a hierarchy for objectives on the landscape. Without those tools, forest professionals are left trying to balance numerous competing and varied expectations by disparate groups with differing values and competing interests on the land."

Engineers & Geoscientists, British Columbia:

While government appears to be on a course to implement this office and consolidate regulatory oversight into a single body through this legislation, officials have been receptive to the specific concerns and recommendations we have made.

At this point, we are cautiously optimistic that our recommendations will be reflected in the legislation when it is tabled.

If that occurs, and the risks are appropriately mitigated, when combined with the new regulatory tools the review recommends, such as providing us with the ability to regulate firms, the professional reliance review has the potential to provide a net benefit to regulatory oversight.

In the interim, we are maintaining our efforts to ensure any changes are effectively implemented, and are based on the proposed mandate, governance structure, and anticipated working relationship with regulators.5

Summary

In short, the PGA is another level of administration oversight over registered professionals. The PGA creates a regulatory regime that the Professional Bodies and its registrants must follow. The purpose of the PGA appears to be with respect to resource management, but really does not seem to further this goal.

Footnotes

1 https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/41st-parliament/3rd-session/bills/first-reading/gov49-1

2 https://news.gov.bc.ca/releases/2018ENV0078-002045

3 https://engage.gov.bc.ca/app/uploads/sites/272/2018/06/Professional_Reliance_Review_Final_Report.pdf

4 https://www.woodbusiness.ca/industry-news/news/bc-professional-governance-act-does-not-go-far-enough-says-abcfp-5247

5 https://www.egbc.ca/About/Initiatives-and-Consultations/Professional-Reliance

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