Professional Foresters Act Update
At the start of January 2021, the ISAO chapter was made aware of proposed changes to the Professional Foresters Act, 2000, S.O. 2000, c.18, “the Act”, and Regulation 145/01 “the regulation”.
This legislation regulates the scope of practice of professional forestry within the Province of Ontario. The Ontario Professional Foresters Association (OPFA), is the licensing body. The proposed changes to the Act, if approved, would have potentially devastating impacts on the arboriculture industry and certified arborists practicing in all sectors.
Within this article, I will provide a brief history of the Professional Foresters Act, and I will reference important sections within the existing Act and regulation that affect arborists today.
I’ll also provide an explanation of the proposed changes to the Act, and the unintended consequences these changes will have on professional arboriculture. I’ll also touch on the legislative process as well as future considerations that we as arborists should contemplate.
History of the Professional Foresters Act
The original Professional Foresters Act was passed in the legislature on April 3, 1957; at that time, referred to as ‘the Professional Foresters Association Act’. This title act would protect the use of the term: “Registered Professional Forester”. Fast forward to the year 2000, the Professional Foresters Act that we know today was approved in parliament as a practice act. (opfa.ca/about-us/history). The change, although subtle in appearance, has a significant impact on arborists
Title Act vs Practice Act
As a Title Act, legislation regulates what a professional can and cannot call themselves depending on pre-defined criteria: such as the completion of post-secondary education from an accredited college or university; the successful completion of professional exams; or the completion of a professional mentorship program as an example. Title acts are not specific to a Professional Forester only; title acts also apply to numerous other professionals such as ‘Financial Planners’ and ‘Landscape Architects’. Pre-2000, the Professional Foresters Association Act regulated the use of the title “Registered Professional Forester” or “R.P.F”.
In contrast, a practice act regulates a scope of practice rather than a title. Practice acts exist for Engineers, Ontario Land Surveyors, and since 2000, Registered Professional Foresters.
In order to comprehend the full extent of influence the Act has on other professions, namely arboriculture, it’s important to reference the scope of practice specifically – included below:
3 (1) “The practice of professional forestry is the provision of services in relation to the development, management, conservation and sustainability of forests and urban forests where those services require knowledge, training, and experience equivalent to that required to become a member under this Act and includes:
- (a) the designing, specifying, or approving of silvicultural prescriptions and treatments, including timber harvesting;
- (b) the appraisal, evaluation, and certification of forests and urban forests;
- (c) the auditing of forest management practices;
- (d) the assessment of impacts from planned activities on forests and urban forests;
- (e) the classification, inventory, and mapping of forests and urban forests; and
- (f) the planning and locating of forest transportation systems, including forest roads. 2000, c. 18, s. 3 (1).” (emphasis added).
As part of this discussion, it is also important to understand how urban forests are defined within the Act:
“urban forest means tree-dominated vegetation and related features found within an urban area and includes woodlots, plantations, shade trees, fields in various stages of succession, wetland and riparian areas. 2000, c. 18, s. 3 (3)” (emphasis added).
Suffice to say that any tree growing in an urban area would be considered part of the urban forest, and therefore within the scope of practice of Professional Forestry.
Based on the broadly defined scope of practice, coupled with the ever-broader definition of an urban forest, it would seem that there are a number of professions with overlapping scopes of practice (14 to be exact). Arboriculture (Certified Arborist, specifically) is considered one of them.
Because of this apparent overlap, when the Act was passed in 2000, a list of exclusions was included within the Act and regulations.
Under section 3 (2)(b) of the Act:
“The practice of professional forestry does not include acts performed in relation to the management or manipulation of forests if they are performed by a person acting within the scope of practice of a profession, trade or occupation that is listed in the regulations”.
I’ve included the list below for reference, including the clause:
For the purposes of clause 3 (2) (b) of the Act, a person who performs an act in relation to the management or manipulation of forests that is within the generally accepted scope of any of the following professions, trades or occupations is not practising professional forestry when so acting unless the person is a registered professional forester:
- Natural resource technician and technologist.
- Forest management plan approver certified under the “Managed Forest Tax Improvement Program”.
- Certified tree marker.
- Certified arborist.
- Landscape architect.
- Professional planner.
- Certified Ontario or Canadian land surveyor.
- Professional engineer.
- Certified property appraisers.
- Ecologist. O. Reg. 145/01, s. 4.
Within the list of the 14 professions or trades that would otherwise be considered ‘excluded professionals’, certified arborists would be able to continue doing the work we do without contravening with the Act in any way across all sectors: public, private, utility, consulting, and institutional.
Proposed Changes to the Act
In January, the ISAO was made aware of proposed changes to the Act, which included the elimination of ‘excluded acts’ (professionals) within the regulation.
As one would guess, this is of great concern as it has already been established that the defined scope of practice of Professional Forestry directly overlaps with the scope of practice of Arboriculture, albeit currently poorly defined and arguably out of date (don’t forget the other 13 professionals).
The rationale for the changes to the Act provided by the OPFA was to provide clarity to the roles of a professional forester, raise awareness of the value of qualified registrants with the OPFA, and protect the public interest. The unintended consequence, however, may mean that no longer would a certified arborist, or other excluded profession, be considered exempt from any provision of the Act. More specifically, any time an arborist would be working on more than one tree, they would need to consult with/be supervised by a Registered Professional Forester, become a Registered Professional Forester, or risk being prosecuted under the provision of the Act.
With such a significant change to the Act and regulations come significant logistical challenges.
For example, the majority of municipalities in Ontario employ and entrust municipal arborists with the ongoing management and care of their urban forests. To put this in perspective, there are 444 municipalities in Ontario, many of which have an urban forestry program in some capacity. Based on the OPFA’s webpage, they “have over 900 members, of which 600 are licensed to practice in Ontario today” (opfa.ca/what-foresters-do/), and through discussion with the OPFA Project Team, about 10% of their licensed members practice within the urban forest.
Notwithstanding the role arborists play in a municipal context, many other sectors employ Certified Arborists in a management capacity and would be affected by this change. For example, arborists are also employed by the utility sector for line clearing operations. Countless consulting arboriculture firms provide management planning support to these municipalities and local utility providers, as well as golf courses, conservation authorities, condominium complexes, and more. Professional Foresters alone simply cannot provide the required capacity to protect the public interest.
In addition, with the elimination of the 14 excluded professionals, there is a risk of losing the breadth of perspective in urban forest management. For more than 50 years, ecologists, zoologists, certified arborists, landscape architects, for example, each working within their own scope of practice, each with diverse backgrounds, skill sets, and ways of thinking, have positively contributed to shaping what the urban forest is today. No single profession should have sole dominion over something that is so complex and multi-dimensional.
A Coordinated Response
These proposed changes created significant concern and discussion throughout the arboricultural industry, including municipal arborists, private tree care companies, consulting firms, conservation authorities, and more. This concern very quickly evolved into a coordinated response: in a little over two weeks, the ISAO and other affiliate organizations, created a task force of representative members within the industry and launched an aggressive media campaign. As a result of those efforts, more than 400 letters were sent to the Ministry of Natural Resources and Forestry (who administers the Act and regulation), the Premier, the OPFA, and other members of provincial parliament from individual members ridings. A petition was also created and garnered more than 4,000 signatures within that same time frame.
As a result of the response from certified arborists, members of the OPFA project team and the ISAO task force entered into discussions in good faith immediately. From the end of January to the beginning of May, the OPFA and the ISAO task force have been working diligently to achieve consensus amongst our two professions.
The concern presented by members of the OPFA project team was that the inclusion of ‘excluded professionals’ within the regulation was a liability to their association long term and does not align with other professional forestry acts across Canada. Conversely, the ISAO task force argued that the elimination of ‘excluded professionals’ from the regulation was a significant threat to the arboricultural profession (and others). At a regulatory stalemate, both parties began to evaluate the defined scope of practice within the Act and applicable definitions.
One of the discussions that were agreed to by both parties is that the urban forest is a complex area of practice.
Professionals from almost every background can stake a claim to having a scope of practice within an urban forest, including both arborists and professional foresters. Acknowledging this point, both parties discussed how the scope of practice within the Act could be refined sufficiently to allow for allied professions to retain their ability to practice within the urban forest, while the OPFA could remove the list of exclusions within the regulation.
It was clear that the link between the excluded professionals and the scope of practice was the inclusion of the term ‘urban forest’. Part of the original rationale to remove the exclusion was to align with other provincial forestry acts in Canada. It is important to note that the term ‘urban forest’ doesn’t exist in any of the other provincial forestry acts from other provinces across Canada.
The ISAO brought forward a proposal to the OPFA project team to amend the definition from ‘urban forest’ to ‘urban woodland’, considered remnant tableland and riparian forests within an urban setting.
This terminology also aligns well with the Forestry Act, which includes a definition of ‘woodland’ within the Forestry Act, also administered through the Ministry of Natural Resources & Forestry (MNRF). This change would allow individuals that aren’t Registered Professional Foresters to continue to work within the scope of their profession, like arborists, without contravening the Act. At the same time, the scope of practice and specialization of Professional Forestry is preserved within the Act. The OPFA is amenable to this change and is considering it further. Discussions are currently still ongoing between both parties.
Members of the ISAO task force have also been in discussion recently with Senior Policy Advisors with the MNRF.
The ministry has been genuinely interested in learning the perspective from the ISAO and the implications the proposed changes to the Act will have on the Arborist profession in general. Given established legal processes, the MNRF is not able to provide a draft of the proposed legislative changes to the ISAO as it is considered confidential. However, given the positive relationship that has been established with the OPFA through this process, it is the ISAO’s hope that this information will be shared willingly in good faith.
It is important to note that when an Association wishes to make changes to their Act, in this case, the OPFA and the Professional Foresters Act, they are required to submit a formal request to the Ministry that administers or ‘owns’ the Act. In this case, that is the Ministry of Natural Resources and Forestry, under the direction of Hon. John Yakabuski. With the Ministry’s approval, the association is required to complete a pre-consultation process, whereby they consult with all stakeholders (i.e., ISAO) and provide a summary back to the Ministry. The Ministry will review the pre-consultation summary inclusive of proposed legislative changes. If in agreement, the Ministry will publish a public notice advising of the proposed legislative changes for a period of 45 days through the Regulatory Registry. It is important to note that the proposed changes to the Act are not made public to the Regulatory Registry. It is only at the time that the Act is reviewed (and voted on) within the House of Commons that the general public is made aware of the specific changes to sections within the Act. One can imagine how frustrating this is as there really isn’t any way to conduct a thorough review of legislative changes and their impact until it is going to be voted on. At the time of writing this article, the OPFA has completed its pre-consultation process with the Ministry. In addition, members of the ISAO task force are in discussion with both the OPFA as well as MNRF staff.
Throughout this process, it has been evident that the ISAO, its members, and the industry, in general, have evolved over the last several decades.
What started as an industry with a strong focus and foundation of operational tree care has grown to include a diverse number of specializations including municipal, consulting, utility arboriculture, and more. Our industry has not only grown and diversified in what it does day-to-day, but it has also grown and diversified in its membership. That is something to be truly proud of.
Over the last twenty years, we have been able to demonstrate that our industry is capable of meeting the needs of the urban forest, from caring for a resident’s single tree to planning and managing the long-term health of tens of thousands of trees for a municipality. But we can’t stop now. We cannot rest on our laurels. We need to continue to raise awareness of what we are capable of as an industry and of each other, and we need to challenge ourselves to accomplish even more.
This exercise has also demonstrated that the arborist profession across all sectors is at significant risk due to the fact that we are all operating under an outdated and poorly defined scope of practice, coupled with a lack of regulation within the profession. As our practices have evolved and expanded over the last 50 years, our scope of practice hasn’t kept up nor have our academic institutions with respect to specialized training. We do ourselves and our profession a disservice by not taking a deeper dive into this in the immediate future. Because the arborist profession is considered an unregulated trade, we run the risk of being ‘regulated out’ of a sector or ‘regulated by’ another profession from an industry that we, as a profession, have an equal stake to claim.
An opportunity lies before us all right now to redefine the scope of practice of the arborist profession to formally include all sectors and specializations.
In addition, there is also an opportunity to build on established academic curricula that provide a straightforward path of professional development and specialization for every arborist long term. In doing so, we will undoubtedly raise the bar of professionalism while being recognized as a valued stakeholder in the care of the urban forest, standing shoulder to shoulder with other allied professions.
October 29, 2019: OPFA initiates discussion with Ministry of Natural Resources & Forestry requesting changes to Professional Foresters Act & regulation 145/01
October 2020: OPFA started working with the MNRF Policy Branch (Delayed due to COVID)
January 2021: OPFA started “Pre-Consultation Engagement” including discussion with all associations like the ISA, considered an ‘Excluded Professional’ under the Act and Regulations.
ISAO and members submitted hundreds of letters of opposition to the Minister of Natural Resources, Hon. John Yakabuski, the Premier, and local MPPs. A petition of over 4,000 signatures was also submitted in opposition.
ISAO created a task force with the intent to liaise directly with the OPFA on a go-forward basis. Task Force members represent municipal, private, utility, consulting, and institutional sectors within the arboricultural industry
Feb 4: Members of the ISAO Task Force met virtually with MPP Judith Monteith-Farrell (NDP), MNRF Critic.
Feb 5: ISAO Task Force and OPFA Project Team discussed proposed changes to the act. Discussion around the removal of ‘excluded professionals’ from within the Act, and definitions. ISAO agreed to discuss internally and respond back.
Feb. 19: ISAO Task Force members met with City of Toronto staff regarding proposed changes to the PFA.
March 11: OPFA project team and ISAO task force met to discuss proposed changes to some definitions. ISAO recommended amending ‘Urban Forest’ to ‘Urban Woodland’ within the Act.
May 14: ISAO task force members meeting with MNRF staff to discuss changes to the Act.
“Just be clear, we have no issue at all with RPFs (Registered Professional Foresters). We highly respect them, and all other industries involved in the urban forest. It takes many professionals to make this system work.”
— Ken Gillies, Gillies Tree Care / ISA Ontario Past President
Update: May 25th, 2021
Our OPFA task force has been working behind the scenes, with OPFA, to come up with agreeable wording to the proposed changes to the PF Act. Please see the update above, from the Task Force Chair, Steve Robinson.
Update: January 24th, 2021
Our OPFA task force has met numerous times over the last week to discuss how to move forward.
As part of these talks, we reached out to OPFA to gain some clarity on the situation. OPFA has asked all concerned parties to take part in the Public Consultation by 28 January. They want to hear your voice. We’ve also initiated talks with other stakeholders and interested parties.
Our #1 priority is to inform arborists in Ontario of the public consultation and help their voices be heard.
Update: January 17th, 2021
ISA Ontario has assembled a team of experts from our industry to consult on this matter. The task force consists of:
- Ken Gillies
- Mark Graves
- Mike Greer
- Mason Hanrahan
- Oliver Reichel
- Steve Robinson (Chair)
- Philip van Wassenaer, B.SC., MFC
- Mandy Vandenberg
- Peter Wynnyczuk
- Rebecca Lord
- Bridget Dilauro