Social License to Operate
The Good, the Bad, the Ominous*
THE CONCEPT OF A SOCIAL LICENSE TO OPERATE HAS BEEN EMBRACED ON THE CANADIAN ENERGY REGULATORY SCENE WITH ALACRITY – AND PERVA – SIVE IMPACT.
Indeed, obtaining such a license for major energy development projects – such as Enbridge’s Northern Gateway Project, the expansion of Kinder Morgan’s Trans Mountain Pipeline(the TMX project) or TransCanada’s Energy East Project – is widely considered to be just as necessary as, perhaps even more so than, any formal authorizations that are required as a matter of law. In the case of Northern Gateway, the certificates to construct and operate the project have been issued, as the outcome of a comprehensive regulatory review process, yet the project remains stalled, in part at least for want of a “social license.” The concept has even been extended to challenge the regulatory process itself and to require that regulators earn a social license to regulate.
What is this inchoate idea that employs the language of the law while at the same time frequently rejecting the legitimacy of traditional legal processes and authority? The meaning of, and requirements for, obtaining such a license are, to say the least, obscure. As a metaphor for the quality of the relationship between project developers and local communities, the concept may have much to commend it. However, the specific phrase “social license” – and its widespread adoption, including by industry – has resulted in the concept being broadened to imply a right to veto an approved project, a result that, I would argue, potentially Undermines the rule of law.
As applied to resource development projects, the phrase is of recent, largely Canadian, origin. It has, however, been widely adopted by project opponents, by governments and politicians, and even by project proponents themselves. It is often assumed that a failure to obtain such a license is a barrier to proceeding.
It is not surprising that project opponents would promote the concept of a social licence to operate as something that must be obtained in addition to formal approvals issued through conventional regulatory processes – thereby establishing another means of potentially preventing projects from proceeding.
It is, however, somewhat surprising to note that some governments have also adopted social license as a necessary element of the overall resource development process. For example, in describing the role of the recently-established Alberta Energy Regulator, the Alberta Energy website states:
The single regulator is one part of the province’s commitment to improve integration of its resource system. This integration sets and achieves the environmental, economic and social outcomes Albertans expect from resource development, while maintaining the social license to develop resources.
The statement acknowledges, and implicitly endorses, the need to maintain social license as a fundamental value that is supported by, but exists independently of, the formal regulatory process. It is perhaps surprising that the Alberta government – a government that generally supports resource development – would endorse social licence as a requirement that could impede development.
What is perhaps more surprising is that the concept has been adopted by many companies in the Canadian resource development industry, again with the implicit acknowledgement that the absence of a social licence presents a barrier to development, notwithstanding that formal regulatory approvals are obtained. In a speech in June last year, the President and CEO of Enbridge said: “[I]t’s the need to achieve what some call ‘social license’ that’s proving to be our greatest test.” The previous year, the President and CEO of TransCanada was quoted as saying: “If we don’t regain public confidence, we won’t be able to retain our social license to continue to operate.”
A random sampling of the websites of energy project proponents displays widespread use of the term in corporate policies and publications. Suncor’s 2013 Report on Sustainability, for example, states: “Establishing strong, long-term relationships with those impacted by our business is important to us, and essential to maintaining our social license to operate now and in the future.” TransCanada states on its website, under “Responsible Stakeholder Relations”: “And we’re committed to earning social license to operate wherever we do business.” Encana’s 2013 Sustainability Report states: “This sustainability strategy will support and enhance Encana’s social license to operate…”
In addition to its adoption by individual companies, collective acceptance of the concept is found in the positions of the two leading energy industry associations. The Canadian Association of Petroleum Producers (CAPP) reports in the President’s message in the 2013 Year in Review that CAPP focuses on delivering results for its members under two broad themes: “Competitiveness and Social License.” The Canadian Energy Pipeline Association (CEPA) website contains an extensive discussion of whether pipeline companies need social license and states: “Companies have realized that in order to build new pipeline infrastructure, they must obtain a social license from the communities where they operate.”
In virtually all of these instances, the implicit assumption is that a social license is necessary and that, in its absence, projects cannot legitimately proceed, even when formal regulatory approvals have been issued. As a manager for Anadarko Petroleum, speaking of the challenge of getting community acceptance of proposed drilling programs in northern Colorado, put it: “Those minerals go undeveloped , not for lack of the legal license, but for lack of growing, earning, maintaining that social license.”
What is strikingly absent in most cases is any discussion of the validity of this assumption that projects cannot proceed in the absence of social license. The issue is not whether, in this day and age, a certain level of public and community support is needed before major infrastructure projects should proceed. Rather, the question is: What is the basis for concluding that the acceptable level of support is to be determined by earning a social license through an undefined process that exists independently of established regulatory review processes, without the sanction of any duly enacted law?
The challenge in answering that question is compounded by several related questions. What exactly is a social license? There is no accepted definition. Rather, there are vague descriptions of what it is about (such as “trust in the company to do the right thing, trust in the industry to keep the public safe”) or when it is considered to exist (such as “[s]ocial license is generally considered to exist when the perceptions, opinions, and beliefs
held by a local population regarding a development allow for the ongoing public approval of the related activity”). But how is it earned? Who grants it? The emphasis here is usually on “the local community,” but not universally. The Pembina Institute, for example, in a single sentence speaks of the perceptions of “a local population[allowing] for the ongoing public approval” of activities – a local population, I suggest, is not “the public” in the context of making decisions on behalf of society at large.
As the respected Globe and Mail columnist Jeffrey Simpson asked recently:
Who defines “social license?” Interest groups such as NGOs or businesses? Courts? Public opinion, but as measured by what? Polls? Write-in campaigns? Social media comments? Street demonstrations? Elections?
In order to explore these questions further, it is helpful to step back and examine the essential nature of decisions with respect to natural resource development.
It must be emphasized, firstly, that there is no right or wrong answer to the question of whether to develop a natural resource. Rather, a decision whether or not to proceed in a particular case is fundamentally a choice that must be made by society at large, a choice that, in the past at least, was typically described as being based on a determination of the public interest. The phrase “the public interest” itself implies an overall balancing of various, competing interests.
The task, then, is, firstly to identify who is to make that determination on behalf of society and, secondly, to establish a process for doing so. There are various models, but typically they include a structured regulatory review process, such as is found in the National Energy Board Act. Under that Act, the National Energy
Board’s role with respect proposed interprovincial and international pipelines is to recommend to the federal government whether a certificate of public convenience and necessity should be issued in a particular case. In forming its recommendation, the Board is required by the NEB Act to consider, among other things, “any public interest that in the Board’s opinion may be affected by the issuance of the certificate or the dismissal of the application.” In exercising its mandate in this regard, the Board, in addition to hearing directly from a wide range of interests that would potentially be affected by a proposed project, requires applicants to file with the Board information on the public consultations that the applicant has undertaken. Applicants are expected to have a company-wide Consultation Program “to anticipate, prevent, mitigate and manage conditions which have the potential to affect persons and groups.” An application is required to demonstrate that those potentially affected have been adequately consulted and that any concerns raised have been considered and addressed as appropriate. The Board then considers this information as one of the factors leading to its conclusion on whether a proposed project would be in the public interest. The Board’s mandate and its process require the Board to consider, and balance, all relevant interests.
The role of local opposition to a proposed project in the Board’s determination of the public interest was addressed directly by the Board in a 2004 decision on an application for an international power line that was proposed to pass through the City of Abbotsford in B.C. The application, originally filed in 1999, attracted the largest public response of any NEB application ever filed with the Board up to that time. More than 400 parties registered as intervenors and the Board received more than 22,000 letters of comment. A local Member of Parliament, registered as an intervenor in the proceeding, filed a motion
requesting that the Board dismiss the application, without proceeding to a hearing, on the ground that “it is the unanimous opinion of all Canadians so involved in the process, that [the application] not be approved…” The language of “social license” had not yet become widely used, but it is clear the basis of the motion was that the applicant did not hold what would today be described as a social license for the proposed project.
Not surprisingly, the Board dismissed the motion. The Board emphasized that it was committed to ensuring that stakeholders are engaged effectively in its public processes and that one aspect of that commitment was “to have effective public participation in oral hearings before the Board.” However, the Board also stated:
[T]he Board must focus on the overall Canadian, or national, public interest. Various decisions of the courts have established that a specific individual’s or locale’s interest is to be weighed against the greater public interest, and if something is in the greater public interest, the specific interests must give way.
The Board concluded:
[D]ecisions by regulatory tribunals such as the National Energy Board are not made by conducting a plebiscite or merely on the basis of a demonstration of public opposition or support. Rather, such decisions are made within a legal framework enacted by the legislature and applied by the courts. This is, of course, the essence of the rule of law.
Having weighed all of the relevant factors, the Board ultimately concluded that the project was not in the public interest and dismissed the application, a decision that was upheld by the Federal Court of Appeal.
It is unlikely that any major resource development project will ever be universally accepted and supported. Unlike a mine development, which is geographically localized, pipelines in particular extend over several hundred, even thousands, of kilometers and thus impact numerous, diverse local and community interests. Competing interests (both geographic and philosophical) must be balanced – and regulatory review processes are established, under the authority of duly enacted laws, for the very purpose of undertaking the challenge. Whether such processes in fact do so comprehensively and effectively is another matter. The point here is that society has chosen, through its duly elected representatives, to have decisions about resource development made on its behalf through such processes. In making such decisions, is not the overall regulatory process granting “social license”? As one commentator asked: “Isn’t ‘social license’ something granted by elected officials in a democracy?”
The popular concept of the social license in effect rejects the legitimacy of the formal regulatory review process, by super-adding a requirement for something that must be obtained independently through an unidentified process that exists outside the established legal system. However, given that the phrase is widely applied by both project opponents and proponents alike, and sometimes by governments, it would be unrealistic to suggest that it should simply be rejected out of hand. So, let me explore the concept in a little more detail, under the headings of “the good, the bad and the ominous.”
Firstly, “the good.” While there is no universal agreement on the origin of the phrase “social license,” its use is widely attributed to Jim Cooney, formerly Vice President, International Government Affairs for Placer Dome Inc., now Adjunct Professor at Simon Fraser University. Cooney has explained that he introduced the term into the discourse on social and political risk management by mining companies in developing countries, as a necessary risk management response to a lack of government willingness or capacity to address the needs and concerns of communities. The drivers underlying the expanded use of the concept in the Canadian context go well beyond such a practical need to address a real business risk faced by a specific, local development project, such as a mine. They include increasing expectations by society at large – enabled by the advent of the internet and social media – to participate directly in decision-making processes. The phrase serves as a reminder that the integrity of project review processes will depend in large measure on the extent to which those processes include a consideration of all affected interests, including particularly local and community interests.
Let me digress here. I believe the rapid rise of the concept of social license is related to the evolution of aboriginal rights to consultation. However, I see a fundamental difference between the two developments. Aboriginal rights to consultation are legal rights, grounded in the law as administered by the courts. Asserting such rights to challenge regulatory processes and outcomes presents legal issues that can be resolved in the courts, according to law. Social license, on the other hand, purports to challenge the outcomes of legal processes by means that operate outside of the established legal system. Thus, while those asserting aboriginal rights and the advocates of social license may be natural allies in opposing projects in some cases, I see a fundamental difference between the two. Nothing I say should be interpreted as implying that my criticisms of the social license phenomenon have any application to the pursuit of aboriginal rights.
Secondly, “the bad.” As I noted earlier, there is no clear understanding of exactly what a social license is. Who is to determine whether it has been earned? More fundamentally, what are the criteria for determining that a social license has or has not been earned? Recognizing that it is almost certainly impossible to obtain unanimous support for any major resource development, what level of support should suffice? Fifty per cent plus one? Fifty per cent of what denominator? The local community? How local? What about the national interest of society at large?
Merely posing these questions emphasizes that, at the end of the day, answering each requires judgment, which is, of course the very reason for establishing a formal regulatory process. A structured regulatory framework explicitly answers the questions of who is to decide on behalf of society, specifies the criteria to be applied and establishes the process to be followed. (If the outcomes are not acceptable to society at large, the solution should be found in overhauling the framework, not in the extra-legal concept of social license, a point to which I shall return.)
Finally, what I describe as “the ominous” emanates from the elements of “social license” that I have identified as “bad.” I believe that, when applied as a justification for rejecting formal regulatory approvals, the concept of a social license to operate is fundamentally antithetical to the rule of law. Social license, as it is popularly invoked, operates without legal authority or legitimacy and is not sufficiently well-defined to meet the requirements of the rule of law that laws are “clear, publicized, stable and just; [and] are applied evenly…” It may be objected to this point that social license is not law and should not, therefore, be held to the rigors of the rule of law. My answer is that, while social license may not be formal law, it is invoked by many of its proponents as if it were law, when, for example, it is embraced as justification for ignoring properly granted approvals or even for refusing to comply with court orders, to which I turn now.
The social license framework for determining whether resource development projects should be allowed – that is to say should be “licensed” – to proceed is not only conceptually inconsistent with the rule of law; it can directly threaten legal and civil order. Empirical evidence abounds of a growing willingness by project opponents to reject regulatory processes and their outcomes and even to refuse to comply with court orders. Over the past several weeks, we have witnessed the intervention of the RCMP to physically remove protesters against Trans Mountain’s TMX project from Burnaby Mountain. The protesters were defying an injunction granted by the B.C. Supreme Court on the application of Trans Mountain to enable the company to undertake survey work to support its application for the TMX project, as it had been directed to do by the National Energy Board. In another incident, members of a group identified as “Burnaby Mountain Caretakers” locked themselves to the entrance to the Supreme Court in Vancouver “to draw attention to the role of the courts in ongoing colonial occupation of Indigenous territory on Burnaby Mountain and across the country.”
It is interesting to note that the B.C. Court, in granting the injunction in favor of Trans Mountain, was sensitive to the potential effects on the right to freedom of expression:
The courts must be careful not to act in ways that dissuade concerned and engaged citizens from expressing their opposition to activities which they view as destructive of the social or political good.
The Court concluded, however, that “as much as the right of public dissent must be carefully protected, what is at issue in the present case goes beyond that and engages a strong prima facie case of liability for tortious behaviour.”
Recently, a Justice of the Superior Court of Ontario spoke directly to the threat to the rule of law in the context of issuing an injunction ordering the removal of a blockade of the main Canadian National Railways line between Toronto and Montreal, bringing freight and passenger traffic to a halt. Mr. Justice D. M. Brown (now a Justice of the Court of Appeal for Ontario) minced no words in addressing the matter:
We seem to be drifting into dangerous waters in the life of the public affairs of this province when courts cannot predict, with any practical degree of certainty, whether police agencies will assist in enforcing court injunctions against demonstrators who will not voluntarily cease unlawful activities, such as those carried on by the protesters in this case. Just over two weeks ago, on December 21, 2012, I issued an injunction requiring the First Nation protesters blocking a CN Spur Line in Sarnia to remove ‘forthwith’ their obstructions. To my astonishment, the local police failed to assist in enforcing that order until January 2, 2013, under pressure from another judge of this Court, a passage of almost two weeks.
Citing from the reasons for his original decision, Mr. Justice Brown added:
As a judge, I make an order expecting it will be obeyed or enforced. If it will not be enforced, why should I make the order? An order which will not be enforced is simply a piece of paper with meaningless words typed on it, and making a meaningless order only undermines the authority and concomitant legitimacy of the courts.
Saturday night I made a time-sensitive order because the evidence showed that significant irreparable harm resulted from each hour the blockade remained in place, yet the OPP would not assist the local sheriff to ensure the order was served by the time stipulated for the removal of the blockade. Such an approach by the OPP was most disappointing because it undercut the practical effect of the Injunction Order. That kind of passivity by the police leads me to doubt that a future exists in the province for the use of court injunctions in cases of public demonstrations.
The threat to the rule of law, I suggest, is troublingly obvious.
In a more recent Ontario case in which landowners challenged the approval of a wind farm, the same Mr. Justice Brown was quoted as asking one of the challenging landowners whether his argument would give the public a constitutional veto over rural development, to which the reply was: “We do as members of the public have a veto.”
So, what can be said of the concept of social license to operate looking forward? In addressing that question, there are two observations I would make about how the concept has come to be widely accepted as something that can operate independently of the legal system to thwart formal regulatory approvals.
The first is with respect to the use of the word “license,” which, in its ordinary meaning, implies authority to do something that would otherwise be unlawful, or at the least would not be permitted. While the word does not always imply legal authority, it most often does. Thus, the use of the word in the phrase “social license” feeds the view that, in the absence of such a license, a project is not authorized to proceed. More appropriate terms, I suggest, would be “acceptance” or “support,” either of which, I believe, would appropriately accommodate the legitimate expectation that all affected interests should be considered, while not implying any substantive consequence in the absence of such acceptance or support. I would also suggest that any
proper determination of the public interest in a structured regulatory process would include consideration of the degree and nature of acceptance of, or support for, a project. Indeed, most regulatory review processes do so, as noted with respect to the consultation requirements that are included in the National Energy Board’s process.
My second observation is that I believe acceptance by industry and by governments of the concept of a social license to operate – and the adoption of the term “social license” itself – has tended to validate the view that the absence of such a license can operate as a barrier to proceeding with a development that has otherwise been lawfully approved. Columnist Terence Corcoran put it bluntly when he wrote in the Financial Post last year: “The corporate sector fell for the idea…”
Both industry and governments, while acknowledging the legitimate expectations of a wide range of interests to be considered in the decision-making process, should push back against the concept of social license as an independent threshold for proceeding with resource developments. Opponents of such developments are unlikely to abandon the concept, but industry and governments could hope to change the dynamics of the
overall resource development debate by shifting the focus away from “license” onto the concepts of acceptance” and “support,” neither of which, I suggest, carries the same connotation of a permission – or license – that has or has not been granted. Perhaps a shift in industry thinking is beginning. As noted, TransCanada’s report on Corporate Social Responsibility speaks of “earning our social license to…operate…” The comments in a recent interview with the company’s CEO perhaps suggest some reservation:
What is the bar by which we get approval? And they keep using terms like social license, but we can’t enter into a process by which we don’t have a defined way of determining what that social license looks like.
Governments in particular should, I suggest, recognize the ominous implications of the current popular concept of social license to operate and show leadership in supporting the legitimacy, and enforceability, of the outcomes of structured regulatory processes. Governments should resist the use of social license as a justification for rejecting lawful authorizations.
There are some signs that this might be beginning to happen. The Minister of Finance, Joe Oliver, was quoted as saying at a conference in Ottawa last week that social license “is too often used by a small minority of activists to block projects that have been approved by regulatory agencies, endorsed by elected governments and supported by a majority of Canadians.” However, B. C. Premier Christy Clark was quoted as saying at the same conference “project proponents do need social license.”
No doubt it will be argued that the regulatory process for major resource development projects has failed to adequately consider society’s concerns and that this failure is itself a driver behind the widespread invocation of the popular concept of social license. The argument has merit. Regulatory processes have not kept pace with public expectations in a world in which the decisions to be made are seen by many as fundamental to the future of society. In a recent speech, the President of Enbridge acknowledged the “heightened legitimate public concern around climate change and the impact of greenhouse gas emissions associated with fossil fuels.”
Furthermore, some measures aimed at “reforming” the regulatory process to make it more efficient and effective – for example, the imposition of time limits and restrictions on rights to participate in the process – I believe have been counter-productive and have only served to further foster widespread disillusionment with established processes. A notable example was the recent withdrawal by a prominent intervenor in the NEB review of the TMX expansion project from further participation in the process, calling it a “sham.”
I would argue that the answer must be found in addressing the source of the problem, by broadening the regulatory process to address society’s legitimate concerns. That, no doubt, is a tall order.
My objection to the popular concept of “social license to operate” is NOT an objection to recognizing and considering the role of community and public support for, or opposition to, a project. Rather, my objection is to using social license as a justification for holding projects hostage, by outright rejecting the outcomes of formal regulatory processes and thereby undermining the rule of law. I believe this ominous result has
been fostered by the use of the term “license” and by a failure on the part of governments, and indeed industry itself, to insist that the regulatory arena is the proper forum in which to determine “the public interest” and to deliver outcomes that should be seen as granting “social license to operate.”
As published in the November/December
2016 issue of Right of Way Magazine.
Rowland J. Harrison Q.C. is an energy regulation consultant and former senior government official with more than 45 years’ experience. He was a member of the National Energy Board from 1997 to 2011 and is the co-Managing Editor of Energy Regulation Quarterly.
* A public lecture presented at the Faculty of Law, University of Alberta, March 10, 2015.
**TransCanada Chair in Administrative and Regulatory Law, University of Alberta. Mr. Harrison was a member of the National Energy Board from 1997 to 2011, during which he served as a member of the Joint Review Panel for the Mackenzie Gas Project.
- The opposition of Aboriginal groups is also a major obstacle to proceeding with the Northern Gateway project at this time. I draw an important
distinction between opposition to projects on the basis of a lack of social license and opposition based on the assertion of aboriginal rights. See infra, following note 22
- http://www.energy.alberta.ca/Initiatives/3591.asp. Emphasis added.
- Al Monaco, President and CEO, Enbridge, Inc., presentation to a C.D. Howe Institute Roundtable Event, Calgary, June 4, 2014.
- Suncor Report on Sustainability 2013: http://sustainability.suncor.com/2013/en/social/social-responsibility.aspx. Emphasis added.
- TransCanada report on “Responsible Stakeholder Relations,” http://csrre-port.transcanada.com/Community/ResponsibleStakeholderRelations.html. Emphasis added.
- Encana, Sustainability Report 2013, http://www.encana.com/pdf/sustain-ability/corporate/reports/sustainability-report-2013.pdf. Emphasis added.
- CAPP 2013 Year in Review: http://www.capp.ca/context/Pages/MessagefromthePresident.aspx.
- CEPA, “Do pipeline companies need social license?” http://www.cepa.com/do-pipeline-companies-need-social-license. Emphasis added.
- Wyoming Public Radio, December 8, 2014: http://wyomingpublicmedia.org/post/relationships-101-oil-and-gas-looks-social-license-operate
- CEPA website, supra note 9.
- “The costs of losing social license,” Pembina Institute, June 6, 2014: http://www.pembina.org/blog/the-costs-of-losing-social-license
- The Globe and Mail, October 22, 2014: http://www.theglobeandmail.com/globe-debate/define-consultation-and-social-license/article21199386/
- R.S.C., 1985, c. N-7.
- Paragraph 52 (2) (e).
- NEB Filing Manual, Chapter 3: http://www.neb-one.gc.ca/bts/ctrg/gnnb/flngmnl/fmch3-eng.html#s3_4
- Sumas Energy 2, Inc, EH-1-2000.
- Id., at p. 9.
- Id., at p. 14.
- Sumas Energy 2, Inc. v. Canada (National Energy Board),  1 F.C.R. 456.
- Energy Magazine, November 5, 2014: http://www.hudson.org/research/10803-keystone-consequences-for-the-future-of-large-infra-structure-projects
- CEPA website, supra note 9.
- Trans Mountain Pipeline ULC v. Gold et al, November 14, 2014, in which the B.C. Supreme Court https://www.documentcloud.org/docu-ments/1361182-judge-cullen-re-trans-mountain-pipeline-ulc-v.html
- Vancouver Observer November 27, 2014: http://www.vancouverobserver.com/news/burnaby-mountain-caretakers-lock-themselves-supreme-court-entrance
- Supra, note 24, at paragraph 115.
- Id., at paragraph 117.
- Canadian National Railway Company v. John Doe, 2013 ONSC 115, at paragraph 15.
- Id., at paragraph 20.
- As reported in The Globe and Mail, November 21, 2014: http://www.theglobeandmail.com/news/national/legal-bat-tle-over-ontario-wind-turbine-farm-may-redefine-harm/article21714017/
- Financial Post, April 22, 2014: http://business.financialpost.com/2014/04/22/terence-corcoran-from-northern-gateway-to-keystone-the-undefinable-social-license-movement-is-in-control-of-jobs-and-growth/
- Calgary Herald, January 2, 2015: http://calgaryherald.com/business/energy/nothing-straightforward-for-tran-scanadas–irlinghttp://www.theglobeandmail.com/news/politics/leave-action-on-climate-policy-to-provinces-bc-tells-ottawa/article23350033/
- Loc. cit. supra, note 3. Emphasis added.
- Letter of Withdrawal by Marc Eliesen, October 30, 2014: https://docs.neb-one.gc.ca/ll-g/llisapi.dll/fetch/2000/90464/90552/548311/956726/2392873/2449925/2451033/2543157/C118-6-1_-_Marc_Eliesen_Letter_of_Withdrawal_-_A4E1Q6.pdf?nodeid=2543843&vernum=-2. Eliesen is a former CEO of B.C. Hydro and a former Chair of Manitoba Hydro and of Ontario Hydro.
Published: The Negotiator, March 2017
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