[Update, 23 January 2014 - We have just posted further analysis of this data, examining the extent to which the Ministry of Forests, Lands and Natural Resource Operations has shifted compliance and enforcement actions away from companies that hold large-scale logging rights, and onto smaller operators.]
We recently promised to continue ‘watch dogging’ the BC government’s environmental enforcement (when we applauded the Ministry of Environment’s public naming of environmental offenders who weren’t paying their court fines). So let’s take a look at enforcement of BC’s forest laws, and the disturbing questions that are emerging there.
We’ve looked through the Ministry of Forest, Lands and Natural Resource Operations Compliance and Enforcement Annual Reports from 1998 to 2012.
Inspections and enforcement actions
The number of inspections carried out by Forestry staff has dropped to a quarter of what it was in 1999-2000: from 34,046 in 1999-2000 down to 8,117 in 2011-12. These are inspections to see how logging companies are doing at meeting the requirements of BC’s forestry legislation – in maintaining a sustainable cut, not damaging wildlife, water or other environmental values, not cutting illegally, etc.
Inspections are important, of course, since they represent the Ministry’s presence in the field. Environmental law enforcement specialists tell us that the likelihood of an offence being detected is a significant factor in deterring illegal behaviour.
Ministry annual reports and sources say that the Ministry is attempting to be more targeted in its inspections. In addition, we are advised that some of the decline is due to a shift in focus from a “monitoring” role to more of an enforcement role, and from other choices about the allocation of scarce resources.
It is also true that there has been a decline in the size of the forest industry over this period, which may justify a decreased number of inspections.
However, such a dramatic decline in inspections nonetheless raises many questions about the government’s ability to detect and address non-compliance.
Important changes, but not a decline, in enforcement
If all else remained constant (including the levels of non-compliance within the forest industry remained constant), then a reduction of inspections to ¼ of the original level should mean that ¼ the number of instances of non-compliance should be detected.
In actual fact, despite the decline in inspections, the number of formal enforcement actions (tickets, administrative monetary penalties, charges, etc.) has not declined over the same period, with the exception of a rather major drop in 2011-2012 (see the above chart). When less formal “compliance actions” (which typically do not have financial consequences and are not reflected in the above chart) are included, the level of non-compliance detected and remedied in some way has risen over that time period.
This means, of course, that not everything has remained constant. One factor may be the Ministry’s more targeted approach to investigations. Interestingly, in recent years a larger portion of the investigations have focused on “other licensees/non-tenure holders” – a category which includes many small operators and individuals who are being charged for operating on the land-base, and which has a higher level of non-compliance than larger industrial operators. This shift may help explain some of the increased detection of non-compliance.
As a result of these trends, the Ministry is now (in 2011-12), on average, carrying out some sort of compliance or enforcement action for every 4 inspections done, compared with about one for every 23 inspections in 1999-2000. In some cases one inspection may give rise to multiple compliance/enforcement actions, so we can’t assume that only 75% of the inspections reveal that operators are in compliance – the true number may be higher. And, as noted, the Ministry may be focusing its compliance efforts differently. However, the shift does seem to raise questions about the forest industry’s non-compliance rate. (The Ministry itself believes that the compliance rate is fairly constant, in the 90% range).
Administrative monetary penalties v. tickets
But wait, there’s more to that story. Although overall enforcement action levels remain (for the most part) level, there has been a decline in the use of “administrative monetary penalties”, and a rise in “enforcement tickets”.
- Enforcement tickets are what they sound like – tickets issued by Ministry staff. As we’ve explained in the context of other environmental statutes, they are most appropriately used for minor infractions, and carry with them standard, and minor, penalties. For example, Forest Act and Forest and Range Planning Act tickets range in value from $58 to $575, depending on the section of the Act or regulations that is violated.
- Administrative Monetary Penalties, by contrast, give the power to senior government officials to determine the appropriate penalty, and they often carry with them significant financial penalties, ranging into the hundreds of thousands for some offences (although considerably less for others). Government officials are supposed to consider such factors as “any economic benefit derived by the person from the contravention” and “the gravity and magnitude of the contravention.”
- Until 2004-05 the Ministry also reported on the number of charges laid and taken to court as well (generally reserved for the most serious offenders), but that figure is not available in more current reports.
In other words, AMPs (at least potentially) have teeth, while tickets can easily be a (very cheap) cost of doing business. However, in addition to using fewer AMPs, the government seems to be issuing them for smaller amounts in recent years.
Some of this may be to the shift, mentioned above, towards inspecting more small operators and non-tenure holders (against whom tickets will frequently be the most appropriate enforcement tool).
Whatever the cause, the result is that the fines levied against the forest industry has declined dramatically – a decline that closely follows the decline in inspections.
The statistics leave a number of unanswered questions: Why is the government using fewer Administrative Penalties, and for smaller amounts of money? Is the decline in use of more substantial Administrative Monetary Penalties related to the decline in inspections or are they both an independent result of cuts to forestry staff? Is non-compliance with BC’s forestry laws as widespread as it seems, or is there another explanation for the fact that compliance and enforcement actions have remained constant, or risen despite fewer inspections taking place?
These trends raise troubling questions for those concerned about BC’s forests, and environmental and economic benefits that they bring.
By Andrew Gage, Staff Lawyer
Note: Forestry Compliance and Enforcement reports use fairly consistent statistics from the 2001-2002 report, and the above discussion is based on those statistics. While the reports for 1998-99 and 1999-2000 include data for numbers of inspections, administrative monetary penalties and enforcement tickets, they report the total numbers of enforcement and compliance actions differently. The figures we provide for this year are based on our best efforts to reconcile the Inspection Statistics Table in these two reports with the statistics reported in later years. While they should broadly be accurate, they may not entirely correspond to the figures from 2001 on. Moreover, the figures for 1998-99 are low, since the government used a shortened non-standard reporting year for that year.