Forest development plans are key operational plans through which forest companies notify government agencies and the public where they intend to log and build roads over the coming five years. When the provincial government brought in the Forest Practices Code, it shifted the focus of public input to forest development plans rather than more specific silviculture prescriptions, due to the larger spatial and temporal scale at which the former are prepared.

A forest development plan is a document that contains maps and detailed information regarding the proposed strategies for development and management of the forest resources within a specific area. Forest resources are defined in section 1 of the Forest Practices Code as “resources and values associated with forest and range including, without limitation, timber, water, wildlife, fisheries, recreation, botanical forest products, forage and biological diversity.” 

Forest development plans comprise the highest level of operational planning in British Columbia. They provide one of two important links between higher level planning and on the ground operations; the second important link is cutblock specific silviculture prescriptions. There is a legal obligation on the part of the licence holders mentioned in Part 3.1 of the Guide, prior to harvesting timber from Crown land, to submit a forest development plan illustrating how they intend to achieve the objectives and strategies established in higher level plans. Where no higher level plan has been declared, forest development plans are expected, but not required, to adhere to the goals and priorities set out in land use plans, or to give a clear rationale for any deviations.

According to the Forest Development Plan Guidebook, the two primary goals of forest development plans are:

… to provide the public and administering government agencies with information covering a five-year period (unless otherwise prescribed) on the location and scheduling of proposed roads and cutblocks for harvesting timber, in a manner which demonstrates management for biological diversity, soil conservation, water, fish, wildlife, and other forest resources, and recognizes the economic and cultural needs of peoples and communities; and,

… to illustrate and describe how objectives and strategies established in higher-level plans for an area or region will be carried through in subsequent operational plans.

Forest development plans are landscape level operational plans, and as such are not intended to show the level of detail required for stand level plans such as silviculture prescriptions. For example, road locations shown in a forest development plan are only required to be "approximate," and may be subject to change based on future, site-specific assessments. Plan maps are usually prepared at a scale of 1:20 000.

 

3.3.1 WHAT IS THE TERM OF FOREST DEVELOPMENT PLANS

While forest development plans normally cover a five-year planning horizon, this should not be confused with the term of the plan itself. With the exception of woodlot licences, plans are normally approved for a one-year period, although the District Manager may approve a plan for a term of up to two years. Forest development plans are normally updated annually and resubmitted to the district manager. Approved plans may be extended, but not for more than one year. This enables a five year planning window, but permits the flexibility required to adjust plans on a year-to-year basis.

The regulations and requirements governing woodlot licence holders differ from other licence types. Forest development plans for woodlot licences are normally approved for a five year term and therefore are not subject to annual renewal. Forest development plans submitted under a woodlot licence are also not required to be as detailed as those submitted by major licensees.

On July 30, 1998, the Forest Act was amended to include provisions for community forest pilot agreements. To date, ten community forest pilots have been offered to communities by the Ministry; four pilot projects have actually been negotiated and signed. Amendments to the Forest Practices Code require holders of community forest agreements to prepare certain operational plans, including forest development plans and stand management prescriptions. Although “community forest agreement” is not defined in the Code, the Forest Act definition of community forest agreement includes community forest pilot agreements. The Community Forest Agreement Regulation came into effect December 1, 2000 and and imposes on community forests the same planning regime that is required for woodlot licences.

 

3.3.2 WHAT INFORMATION IS REQUIRED IN FOREST DEVELOPMENT PLANS

Forest development plans provide maps, text and tables illustrating proposed forestry operations and other resource values which are known to occur within a specific planning area. The Code requires the plans to specify measures that will be carried out to protect all forest resources. They must show how management priorities identified in higher level plans will be implemented. Legally, they must be consistent with higher level plans in order to be approved.

The detailed content requirements are set out in section 10 of the Code and sections 18-20 of the Operational Planning Regulation. These include:

• size, shape and location of proposed cutblocks over the next five years;
• approximate location of existing and proposed roads which provide access to those cutblocks;
• whether a cutblock will be clearcut, or harvested under a different silvicultural system;
• forest cover and topography of the area;
• location of those streams, wetlands and lakes that are shown on forest cover maps;
• fish and fish habitat inventory maps or terrain resource inventory maps;
• certain terrain stability information;
• certain road construction, maintenance and deactivation information;
• riparian class of certain streams, wetlands and lakes in community watersheds and areas where joint approval is required with a designated environment official;
• general objectives for riparian management zones, including the range of basal area retention by riparian class; and,
• general objectives respecting the target levels of retention for coarse woody debris and wildlife trees.

 

3.3.3 KNOWN INFORMATION

Certain additional information must be contained in a forest development plan if it is "known" to the person preparing the plan. The plan must demonstrate how these known values will be protected or maintained. There is a general requirement to "use the most comprehensive and accurate information available," but this is subject to the use of known information. Known has a specially defined legal meaning under the Operational Planning Regulation. It means information which is either contained in a higher level plan, or otherwise made available by the district manager or designated environment official at least four months before the operational plan is submitted for approval. Known information that must be on a forest development plan includes:

• protected areas;
• designated areas under Part 13 of the Forest Act;
• wilderness areas;
• sensitive areas established in accordance with the Code;
• wildlife habitat areas (unless ordered otherwise);
• forest ecosystem networks;
• old growth management areas;
• scenic areas;
• ungulate winter ranges;
• community watersheds;
• community water supply intakes and related water supply infrastructures;
• fish streams;
• riparian class of streams, wetlands and lakes;
• temporary or permanent barriers to vehicle access;
• objectives for known ungulate winter ranges; and,
• water quality objectives for community watersheds.

 

3.3.4 MANAGEMENT STRATEGIES FOR FOREST DEVELOPMENT PLANS

Those preparing forest development plans must grapple with how their proposed development of roads and cutblocks will meet other objectives concerning non-timber values. There are many guidebooks, policies and strategies that provide guidance on how to accomplish this.

Distribution of Cutblocks

The size, pattern and location of cutblocks on the landscape can be a critical issue in determining how logging will affect wildlife. A key issue is the degree of fragmentation of habitat. The Code sets out certain rules regarding maximum cutblock size and "adjacency" rules regarding when the forest adjacent to a clearcut may be logged. These rules were devised to deter large scale progressive clearcutting. They may be departed from where higher level plans allow. These issues are also addressed in the Biodiversity Guidebook.

Previously, forest development plans were required to provide a schedule of proposed developments for each year of the plan. As a result of the 1998 revisions to the Code, cutblocks are only required to be scheduled for a specific year of the plan "if timing is critical to the management of non-timber resources."

Silviculture and Harvesting Systems

For Category A cutblocks (see Part 3.3.5 of the Guide for a discussion of cutblock categories), the plan must also specify whether or not the cutblock will be partial or clearcut, and whether it will be harvested by cable, aerial or ground-based methods. The choice of silviculture and harvest systems is to be determined in part by any higher level objectives for the plan area; for example, special management zones may require any harvesting to be done using only selection logging practices. There are numerous other factors that impact the pattern and type of harvesting within a planning area, some of which include site-specific ecological conditions, natural disturbance types, adjacency and green-up status, rotation length and economic conditions.

Roads

The approximate locations for proposed road development are required for any forest development plan; however, a schedule for construction is required only if "the timing is crucial to the management of non-timber resources." The following information concerning the maintenance and deactivation of roads is also required:

• any road maintenance that is to be conducted during the first year;
• all roads to be deactivated in the first three years of the plan, and the level to which they will be deactivated;
• the type of vehicle access for which the road will be maintained; and,
• a summary of roads currently deactivated to either temporary or semi-permanent levels.

Roads are deactivated to one of three levels: permanent, semi-permanent or temporary. Under permanent deactivation, a road is completely "unbuilt" and replanted. In some cases, access for all-terrain vehicles will be maintained. Semi-permanent and temporary deactivation is intended for roads that will be required for future access. The level of deactivation depends in part on the length of time until the road will be used again.

Riparian Management

A forest development plan should illustrate how licensees intend to avoid or mitigate adverse effects on riparian areas during operations. The forest development plan is required to include the general objectives for riparian management zones, for example, the intended level of tree retention for each riparian stream class, as well as the location of streams, wetlands and lakes that are shown on forest cover maps, reconnaissance fish and fish habitat inventory maps or terrain resource inventory maps. As a result of 1998 changes to the Code, riparian assessments classifying streams, wetlands and lakes are only required for certain areas. These are: joint approval areas that are shown on government reconnaissance fish and fish habitat inventory maps, forest cover maps, or terrain resource inventory maps, and are either in or adjacent to a proposed cutblock, or have the potential to directly impact on or be impacted by a proposed road. Areas that do not fall into these categories do not need to be assessed until a silviculture prescription is submitted for approval.

Visual Quality Management

Visual quality objectives may be set out in higher level plans, or established by district managers. A forest development plan must include visual quality objectives and information on all known scenic areas. Visual impact assessments, which measure the predicted degree of change against a pre-determined acceptable level of impact for an area, are only required prior to the submission of silviculture prescriptions and if the cutblock is in a known scenic area. Proposed operations in scenic areas are intended to enable visual quality objectives to be met.

Rate of Cut in Watersheds

The extent of harvesting in a watershed can impact the quantity and quality of water at certain times of the year. This can affect fisheries values and community water supplies. In certain circumstances, a watershed assessment, completed within the previous three years, must be submitted with a forest development plan. These are required for: community watersheds; watersheds with significant downstream fisheries values or licenced domestic water users and significant "watershed sensitivity;" and, any other watershed that a district manager determines should have a watershed assessment.

Forest development plans must contain a statement that the plan "is consistent with the results and recommendations of a watershed assessment," if one was required, or alternatively, explain the reason for the inconsistency and why the plan should be approved despite the inconsistency. The broad nature of the requirements for a watershed assessment make it possible for watersheds, particularly in remote areas, to be developed prior to any form of assessment. Licensees may be exempt from a watershed assessment if the district manager (and the designated environment official for joint approval areas) determines that the volume of timber harvested or roads built would not affect the watershed in a significant way.

Biodiversity Issues

General measures for biodiversity conservation involve both landscape level and stand level issues. Biodiversity objectives are to be established for landscape units, and may also be set out in other higher level plans through the designation of resource management zones. These objectives could address concerns such as seral stage distribution, the dispersal of cut and leave areas across the landscape, and connectivity. The current priority for biodiversity protection under the Code is to establish old growth and wildlife tree retention objectives for landscape units. Once objectives for biodiversity are established as higher level plans, forest development plans must be consistent with them.

While forest development plans are primarily landscape level plans, they must set out the general objectives for retention of coarse woody debris and wildlife trees.

Ungulate Winter Range

The winter survival of ungulates such as deer, elk, moose and caribou depends on the availability of forested areas which have a sufficient canopy to intercept winter snows so that these wildlife can escape predators and find forage. These areas are usually identified on maps prepared by the Ministry of Environment, Lands and Parks. Forest development plans must state the known objectives for known ungulate winter ranges, and demonstrate how these objectives will be accommodated.

 

3.3.5 CATEGORIES FOR CUTBLOCKS IN FOREST DEVELOPMENT PLANS

Until recently, the intended year of harvest or construction was identified for all cutblocks and roads on forest development plans. There was no distinction in the legal status of different cutblocks on the plan, although it was generally expected that blocks which appeared on a plan for several years and had undergone various assessments would be more difficult to alter, particularly if silviculture prescriptions had been approved or if cutting permits had been issued.

As part of the 1998 Code amendments, six categories of cutblocks were created for forest development plans. From the perspective of licensees, the purpose of these categories is to increase certainty that roads and cutblocks will not be rejected after they have incurred planning costs and received initial approvals. From the perspective of the public groups which review forest development plans, there is concern that the new categories, and the redesigned approval process, will reduce the amount of information which must be submitted with a plan, place new restrictions on input into forest development plans, and place new restrictions on when district managers (and in some cases designated environment officials) may refuse to approve cutblocks.

The detailed requirements and distinctions among the new categories of cutblocks are set out in the Operational Planning Regulation, sections 19-22. The new cutblock categories are briefly summarized in the following table.

 

CATEGORIES FOR CUTBLOCKS IN FOREST DEVELOPMENT PLANS

Title	Explanation	Public Input
Category A Proposed	The most commonly used category for cutblocks. See section 20 (1) of the Operational Planning Regulation for a detailed list of the information required for these blocks.	Shown on forest development plans. Full public review allowed, however, much of the information previously required for development plan approval is no longer required until submission of silviculture prescriptions (e.g. most riparian assessments, visual quality assessments and archaeological impact assessments.) Assessments that are required at forest development plan stage must be requested by the public, as they no longer form part of the plan itself.
Category A Approved	These are blocks which were shown as approved on the most recent forest development plan, and for which none of the required information needs to be updated	Shown on forest development plans. Public review limited to issues pertaining to assessments not previously prepared. Licensees and district managers are not required to consider or address other comments, but could at their discretion.
Category I	These blocks are for information purposes only. They are not considered to be part of the forest development plan	Exempt from public review, but shown on forest development plans.
Emergency Cutblocks & Roads	Situations where "timber should be harvested without delay because it is in danger of being damaged, significantly reduced in value, lost or destroyed." Section 42 of the Code.	Exempt from public review. Not shown on forest development plans.
Major Expedited Salvage	Cutblocks containing greater than 2000 cubic metres of timber where harvesting is required to remove dead or infested wood, or to stop the spread of insects.	Shown on forest development plans, but limited public review, i.e. public comments will be received for ten days from the first publication of notice.
Minor Salvage	Cutblocks containing less than 2000 cubic metres of timber where harvesting is required to remove dead or infested wood, or to stop the spread of insects.	Exempt from public review. Not shown on forest development plans.

3.3.6 ASSESSMENTS REQUIRED AT THE FOREST DEVELOPMENT PLAN STAGE

 

As a general statement, the Forest Practices Code is more enabling and discretionary than it is prescriptive and mandatory. Rather than setting out standards that prohibit potentially harmful forest practices, it defines the parameters for the approval of practices. In addition to requiring operational plans to have certain content, it requires assessments of the potential for harm to occur in some situations. For example, instead of a requirement prohibiting logging or road building on steep slopes with a likelihood of landslides in a community watershed, the Code requires an assessment of the potential for such activity to result in harm. So long as a qualified professional will attest that harm is unlikely to occur, a district manager may approve the practice.

Assessments were previously considered to be part of the forest development plan, and were therefore required to be available for public review along with the plan. As a result of the 1998 Code amendments, assessments are no longer considered to be part of the plan, and are available for public review only upon request. Emergency and minor salvage cutblocks are exempt from all assessments, except in the case where a district manager requires a terrain stability assessment.

Some assessments are not required at the forest development plan stage. These include all visual impact assessments, all archaeological impact assessments, some terrain stability assessments and some riparian assessments. While some of these assessments still must be done before a silviculture prescription may be approved, archaeological impact assessments are now only required if a district manager considers one necessary to determine that archaeological sites are "adequately managed and conserved" by the operational plan in question.

The following table provides a summary of the assessments required at the forest development plan stage.

SUMMARY OF ASSESSMENTS REQUIRED FOR FOREST DEVELOPMENT PLANS

A brief summary of the requirements for each type of assessment is presented below. However, the requirements for each assessment can be fairly detailed and technical, and you are referred to individual Code guidebooks for more explicit information.

Riparian Assessments

Riparian assessments are used to aid in establishing management strategies for riparian areas in accordance with the requirements of the Code. Such strategies specify, among other things, understory retention levels and the width of reserve zones (if required). The results of riparian assessments guide operational practices within riparian management areas. A complete riparian assessment requires the identification and classification of all streams, wetlands and lakes in or adjacent to a proposed cutblock.

Streams

Stream reaches are classified from S1 to S6, according to the average channel width, the presence of fish and whether they occur in a community watershed. A stream reach is defined as a relatively homogeneous section of a stream having a sequence of repeating structural characteristics (or processes) and fish habitat types.

The following table summarizes the six stream classes and the corresponding management areas for each. For further reference, consult the Riparian Management Area Guidebook.

 

Stream Class	Width	Community watershed or fish bearing	Riparian Reserve Zones	Riparian Management Zone	Riparian Management Area
S1	>20 m	YES	50	20	70
S2	>5m < or equal to 20m	YES	30	20	50
S3	1.5m < or equal to 5m	YES	20	20	40
S4	<1.5m	YES	0	30	30
S5	>3m	NO	0	30	30
S6	< or equal to 3m	NO	0	20	20

Wetlands

Five types of wetlands are recognized: shallow open water, marsh, swamp, fen or bog. Each type is classified from W1 to W5 according to its size, the biogeoclimatic zone in which it occurs, and whether or not the wetland is simple or complex. The following table summarizes the five wetland classes and the corresponding management area for each. For further reference, consult the Riparian Management Area Guidebook..

Wetland Class	Riparian Reserve Zone	Riparian Management Zone	Riparian Management Area
W1	10	40	50
W2	10	20	30
W3	0	30	30
W4	0	30	30
W5	10	40	50

Lakes

Lakes are classified from L1 to L4 according to their size and the biogeoclimatic zone in which they occur. The following table summarizes the four lake classifications and the corresponding management area for each. For further reference, consult the Riparian Management Area Guidebook.

Lake Class	Riparian Reserve Zone	Riparian Management Zone	Riparian Management Area
L1	10	Variable	Variable
L2	10	20	30
L3	0	30	30
L4	0	30	30

Watershed assessments are intended to enable managers to "understand the type and extent of current water-related problems that may exist in a watershed, and to recognize the possible hydrologic implications of proposed forestry-related development or restoration in that watershed." An assessment examines the potential for changes to peak flows, landslides, accelerated surface erosion, channel bank erosion, changes to channel morphology, potential for change to the stream channel, and the interaction of these processes.

There are six main components of a watershed assessment:

1. Watershed Advisory Committee: a technical group formed to provide specific watershed information.
2. Compilation of Existing Information: a compilation of aerial photographs and
   1:20 000 scale map information of the development history of the watershed and inventories.
3. Field Assessments: reconnaissance-level, field-based assessments of stream channel stability, sediment sources and riparian condition.
4. Watershed Report Card: a tabular summary of the field assessment results.
5. Watershed Report: a comprehensive report by the hydrologist of the watershed’s state of health, based on field assessments and review of existing information.
6. Forest Development Plan Recommendations: specific recommendations made by the hydrologist for the forest development plan.

Because there are significant differences between coastal and interior watersheds in terms of geology, terrain features and other relevant factors, the two types of watersheds have some different procedures and requirements for watershed assessments. Previously, there were separate guidebooks for these two areas. In April 1999, a second, consolidated version of the Coastal Watershed Assessment Procedure and the Interior Watershed Assessment Procedure Guidebooks was released. Consult the new Watershed Assessment Guidebook for further information.

 

Forest health assessments are completed to identify existing and potential forest health issues for an area. The results of these assessments are used to determine appropriate management strategies, at both landscape and stand levels, for the monitoring and control of pests and disease. Landscape level assessments include recording and evaluating "the occurrence of detected forest health factors currently causing damage or that may potentially cause damage" (Operational Planning Regulation, s.13). These assessments may include pest incidence surveys if required by a district manager; however, this is generally required only when there are significant pest hazards that may impede the implementation of landscape level plans. More detailed, site-specific assessments consisting of surveys are completed as part of stand level planning exercises. For further information, consult the Forest Health Surveys Guidebook.

 

Terrain stability mapping is a method of identifying stable, potentially unstable and unstable terrain on maps. There are five terrain survey intensity levels used for terrain and terrain stability mapping in BC. The intensity level represents the extent of field-checking done during mapping and is a measure of the reliability of the mapping.

Terrain stability field assessments are conducted to determine the potential hazard for landslides in areas that have been identified as having a high likelihood of landslides, unstable terrain or slopes greater than 60%. The assessments examine factors such as slope gradient, slope morphology, bedrock geology, and gullies, all of which may influence slope stability, and classify areas according to their likelihood of slope failure. The results of terrain stability field assessments restrict the type and extent of harvesting and road building activities permitted in an area. For further information, consult the Mapping and Assessing Terrain Stability Guidebook. A second edition of this Guidebook was released in August 1999.

 

3.3.7 PUBLIC INPUT TO FOREST DEVELOPMENT PLANS

Forest development plans are the focal point for public input into forestry operations. The scale of forest development plans make them the most appropriate level of planning for those who are interested in areas that will be roaded and logged over the next five years.

The level of public consultation for forest development plans varies across the province. In some parts of the province, the Forest Service and licensees combine all of the forest development plans for the district onto single map sheets, to make a consolidated plan. Some areas hold public viewing sessions, widely advertised through newspapers and radio, at a central location so that all the plans may be viewed at once. These efforts are not required by law, but are very helpful as the public is not required to attend numerous separate viewing sessions at different locations, and can see the cumulative results of all proposed operations on one set of maps. In other areas, the minimal legal requirements for public review and comment are all that is offered.

The following five steps comprise the process of public input to forest development plans. They apply equally to amendments to forest development plans, but not to minor amendments that do "not materially change the objectives or results of the plan," are otherwise lawful, and otherwise provide for managing and conserving the forest resources of BC.

Notice. Forest companies preparing forest development plans must place a notice in a local newspaper, announcing that the forest development plan is available for public review.

Review. Members of the public who are interested in or affected by proposed operations must be provided an opportunity to review the plans. Upon the request of a member of the public, assessments that are required at this stage must also be made available. The normal review period is sixty days, unless the entire plan relates to an expedited major salvage operation, in which case the review period is ten days. No review is required at all for emergency operations where there is insufficient time for a review and comment period of ten days.

Comment. Public comments on forest development plans are best made in writing within the sixty or ten day period, as the case may be. Comments are to be addressed to the licensee who prepared the draft plan, however, many citizens choose to send copies of their comments directly to the district manager as well. Although verbal comments must be considered, there is no requirement for a licensee to send them along to the district manager with the proposed plan. While comments may be made outside of the prescribed review and comment period, there is no legal obligation on the part of licensees to consider them, and they may come too late in the process to provide effective input. District managers, and designated environment officials for joint approval areas, may extend the time allowed for public review and comment. They must be satisfied that the review and comment period has been adequate. The Forest Practices Board has made several recommendations concerning the adequacy of public review and comment.

Evaluation of Comments. Once public input has been received, the licensee is required to consider each comment which concerns proposed Category A cutblocks and proposed road construction, maintenance or deactivation. Under the 1998 changes to the Code, licensees and district managers are not required to consider or address comments concerning previously approved cutblocks and roads, unless the comments relate to an assessment that was not completed earlier. This provision highlights the need for the public to ensure that comments are made every year. There is no requirement for licensees to respond to the public comments directly; however, a copy of each written comment must be included with the submission of the final proposed forest development plan.

Plan Approval. Although there is no express legal requirement, the regulations clearly imply that district managers, and designated environment officials in joint approval areas, must also consider the public comments and decide whether the licensee has adequately responded to public concerns in the submitted plan. A plan may be approved without having been made available for review and comment in emergency situations where the district manager is satisfied that it otherwise meets the legal requirements.

 

3.3.8 CONSULTATION WITH FIRST NATIONS

The government has a duty to consult with First Nations independently of the minimum legal requirements for public consultation set out in the Forest Practices Code. This obligation stems from the affirmation of aboriginal rights in section 35(1) of the Constitution Act, 1982, and court decisions which have held that governments have a duty to consult where activities they approve have the potential to infringe on aboriginal rights.

Guidelines for suitable consultation procedures by government agencies have been set out in a policy developed by the Ministry of Aboriginal Affairs titled Crown Land Activities and Aboriginal Rights. Within this framework, the Ministry of Forests developed its own Protection of Aboriginal Rights policy. Ministry policy for consultation with First Nations groups was recently revised to incorporate the implications of the 1997 Delgamuukw decision by the Supreme Court of Canada. Effective June 3, 1999, the new Aboriginal Rights and Title policy is found in the Ministry of Forests Policy Manual, and replaces the Ministry of Forests Protection of Aboriginal Rights policy.

First Nations and the provincial government often have differing views of aboriginal rights and title. For example, the Ministry of Forests policy provides that the government "does not assume the existence of aboriginal title where its existence has not been legally proven" by the First Nation; whereas many First Nations question the legitimacy of the Crown’s assertion of sovereignty over their traditional territories. The Aboriginal Rights and Title policy is based on the provincial government’s view of aboriginal rights and title, as it interprets court decisions and its constitutional obligations.

According to the Supreme Court of Canada in the 1996 Van der Peet decision, "in order to be an aboriginal right an activity must be an element of a practice, custom, or tradition integral to the distinctive culture of the aboriginal group claiming the right." The practice, custom or tradition must be one of the aspects that made the culture of the society distinctive prior to contact with Europeans. However, the aboriginal group may rely on evidence of post-contact activities to show continuity with pre-contact practices, customs and traditions, and the rights may be exercised today in a modern form.

Aboriginal title on the other hand, according to the Supreme Court of Canada in the Delgamuukw decision, "encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety or purposes, which need not be aspects of those aboriginal practices, customs and traditions which are distinctive to aboriginal cultures." Aboriginal title is a property interest held communally by all members of an aboriginal nation and is subject to an inherent limit: land held under aboriginal title cannot be used in a way that would sever the relationship of future generations to the land. For example, aboriginal title would not permit strip mining an area traditionally used as a hunting ground. Aboriginal title is proven by demonstrating exclusive or shared exclusive occupation of the land at the time the Crown asserted sovereignty over BC (which the Supreme Court of Canada has held to be through the Oregon Boundary Treaty of 1846). It is a right to the land itself, including the trees on it.

The Supreme Court of Canada has held that aboriginal rights and title are not absolute. Governments may infringe on aboriginal rights and title provided that they can justify the infringement according to tests set out by the Canadian courts. Demonstrating that First Nations were consulted about the infringement is one aspect of the justification analysis.

The Ministry of Forests Aboriginal Rights and Title policy contains an appendix entitled "Consultation Guidelines," which sets out the following stages for consultation regarding forestry activities:

Examining the Need to Consult (Priority Assessment). A priority assessment is done to evaluate the degree of consultation that must be undertaken before the approval of a particular activity. Factors that may be considered include:

• the potential impact of the proposed forest management activity on aboriginal interests;
• the degree of consultation undertaken to date;
• the nature of the land at issue;
• emergency measures; and,
• public safety.

The Consultation Guidelines state that "[a]rea-extensive and long-term development proposals and/or tenures, such as forest development plans, may have significant impact on aboriginal interests" and thus the consultation process set out in the policy should be undertaken.

The Consultation Process. The Ministry of Forests Consultation Guidelines set out the following steps:

Approximately Twenty Days After Notification of Proposed Forest Management Activity

• If not already done, identify First Nation(s) that may be potentially affected by proposed forest management activity, taking into account overlapping territories.
• Request a meeting to discuss the consultation process regarding the forest development activity and the identification of aboriginal interests.
• At the forest development plan stage (if possible), notify and provide relevant information to the First Nation(s) about the proposed forest management activity.
• Information regarding the location, nature and extent of the proposed activity, sufficient for the First Nation to understand the on-the-ground impact of the activity, should be made available through letters and meetings.
• Technical and descriptive information such as diagrams and appropriate mapping products showing the location of the proposed activity should be sent or delivered to the First Nation(s).

 

Approximately Sixty Days After Notification of Proposed Forest Management Activity

• Request a meeting with affected First Nations(s) to "obtain specific information concerning the length or timeframes of use or occupation, location, kind and importance of aboriginal interests, if any, within the forest development plan area or area that will be affected by the proposed activity."
• Where appropriate, initiate processes to facilitate ongoing communication.
• Where information is not provided by the First Nations(s), Ministry staff must still make efforts to gather information regarding aboriginal intersts in the forest management area. If the statutory decision-maker determines there is a "significant potential for archaelogical resources," an archaelogical impact assessment may be undertaken.

Although the Consultation Guidelines direct Ministry staff to take all reasonable efforts to initiate and carry out a consultation process, they go on to say that: "[r]efusal to participate, or insistence on ‘without prejudice’ participation, is not a reason for delaying the operational planning process."

 

Carry Out Internal Assessments To Address Aboriginal Interests that Came to Light During Consultation Process. The Consultation Guidelines direct Ministry staff to do the following approximately 60 to 100 days after notification:

Determine Whether to Address the Potential Existence of Aboriginal Interests in Relation to the Proposed Activity

At this stage Ministry staff assess the potential existence of aboriginal rights or title. Based on this decision, consultation will follow either the "rights" stream or the "title" stream of consultation, or both.

With regard to aboriginal rights, the Consultation Guidelines indicate that relevant questions will usually include:

• Did the aboriginal people use the land or resources within the proposed forest management area prior to contact with European society?
• What was the nature of the use, and where within the forest management area did it take place?
• Can the uses fairly be described as integral to the culture of the particular aboriginal societies in question? Consultation may be required with the Aboriginal Affairs Branch to answer this question.

With regard to aboriginal title, the Consultation Guidelines state in strong terms that: "Ministry of Forests decision-makers do not have the authority to confirm or verify the existence of aboriginal title." The Guidelines indicate that statutory decision-makers should make a general assessment as to whether the potential for aboriginal title within the proposed forest management area "warrants further consideration." In making this assessment they are to collectively weigh the following factors:

• Has the land been Crown land since 1846?
• Are the affected lands near or adjacent to a reserve or former settlement or village sites?
• Is the land in areas of traditional use or archaelogical sites?
• Is the land used for aboriginal activities?
• Has there been significant notice of interest from the First Nation?
• Is the land subject to a specific claim? (A claim based on a treaty.)
• Is the land close to known fishing, hunting, trapping, gathering or cultural sites?

It should be remembered that the Ministry of Forests Aboriginal Rights and Title policy and the Consultation Guidelines only set out government policy; they are not law. The courts may determine that aboriginal rights and title legally exist in circumstances not recognized by the Ministry’s policy.

 

Determine Whether There May be an Infringement and the Degree of Likely Impact

An infringement of an aboriginal right will occur if the proposed forest management activity:

• limits the right unreasonably;
• imposes undue hardship on the First Nation; or,
• denies the First Nation their usual (preferred) method of practicing the right.

In addition, with regard to aboriginal title, the Consultation Guidelines direct Ministry staff to consider the following to determine the potential degree of infringement:

• Does the proposed activity interfere with aboriginal activities on the land or limit what the First Nation might be able to do with the land?
• Will the forest activity change or damage the nature of the land?
• To what extent is the forest resource renewable or non-renewable?
• Will any of the land be sold to third parties as part of this activity?
• Will long term leases or tenures be provided to third parties?
• Are the leases or tenures renewable?

 

Determine Justifiability of Any Infringement

The courts have set out various tests for whether an infringement of aboriginal rights or title is justifiable. There must be a "compelling and substantial" legislative objective, such as conservation, and the government action must be consistent with the special trust-like relationship between the government and First Nations. In order to show that government has lived up to its obligations, relevant issues include: whether there has been as little infringement as possible to achieve the desired result; whether fair compensation for the infringement has been paid to the First Nation; and, whether the First Nation has been consulted with regard to the activity.

The Ministry of Forests Consultation Guidelines set out steps that should be taken where it appears that a proposed forest management activity may infringe on a potential aboriginal right. These steps are to:

• identify ways to reconcile the aboriginal right and the forest management activity in conjunction with discussions with the First Nation(s);
• consult with the affected First Nation(s) and third parties regarding proposed accomodations;
• assess whether accomodation is possible (e.g., can the forestry activity be relocated); and,
• where infringement is likely, statutory decision-makers should request assistance in making a decision from the Regional Manager, Aboriginal Affairs Branch and the Ministry of the Attorney General.

Where it appears that forest management activities may have a high impact on land that may be subject to aboriginal title, the Consultation Guidelines direct decision-makers to:

• identify ways to mitigate impacts of forest management activities (e.g., involving First Nation(s) in monitoring, avoiding areas of high importance);
• examine, with advice from Aboriginal Affairs Branch and Legal Services Branch, and where necessary, direction from Ministry executive, issues such as the relative likelihood of potential title, potential impact of forest actiivity, level of consultation to date, and possible mitigative measures;
• request the assistance of available resources such as the Regional Manager, Aboriginal Affairs Branch, Assistant Deputy Minister, Executive and Ministry of Attorney General;
• consult further with affected First Nation(s) and third parties regarding mitigation; and,
• with advice from Aboriginal Affairs Branch and the Ministry of the Attorney General, determine whether the level of consultation or mitigative measures are sufficient for justification.

 

The Final Decision. The decision should be based on consideration of all facts presented throughout the previous steps. The decision-maker must make a final decision regarding:

• whether the proposed forest management activity will take place and on what terms;
• levels of consultation in relation to information gathered on aboriginal interests;
• how a First Nation’s concerns were considered in the decision-making process; and,
• instructions to proponents regarding mitigative measures.

According to the Consultation Guidelines, unless significant aboriginal interests were raised during the consultation process, the reasons for the decision will be available to First Nations only on request. If significant aboriginal issues were raised, then statutory decision-makers must inform the First Nation(s) in writing of their decision.

The Consultation Guidelines also set out the records that the Ministry of Forests should keep regarding the consultation process, and indicate that the rationale for the decision should document how specific information brought forward by the First Nation was addressed.

According to the Consultation Guidelines, a final decision should be made within approximately 120 days of the initial notification of the proposed forest management activity.

 

For Further Reference

Policy: Policy Manual, Volume 1 - Resource Management, c. 15. Policy 15.1 Aboriginal Rights and Title. Ministry of Forests.

Cases: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.

R. v. Van der Peet, [1996] 2 S.C.R. 507.

 

3.3.9 APPROVAL OF FOREST DEVELOPMENT PLANS

Once the public review process has been completed and the final draft of the plan prepared, it is submitted to the district manager for approval. In addition to complying with higher level plans, forest development plans must meet the following criteria for approval, which are set out in section 41(1)(a) and (b) of the Code:

• the plan or amendment was prepared and submitted in accordance with the Code, the regulations and the standards; and,
• the district manager (and designated environment official for joint approval areas), is satisfied that the plan or amendment will adequately manage and conserve the forest resources of the area to which it applies.

Both these criteria must be met simultaneously. That is, even if the plan meets the Code and regulations, the district manager must still be satisfied that it is adequate to manage and conserve forest resources.

The question of what may be considered in evaluating “adequate management and conservation of forest resources” has been considered in a Ministry of Forests Bulletin dated July 14, 2000. This Bulletin replaced an earlier, controversial version which had suggested that statutory decision-makers could only refuse to approve an operational plan where there was an “unacceptable risk” that it would not adequately manage and conserve forest resources. 

The current Bulletin describes the test of “adequate management and conservation” as follows:

Section 41(1)(b) is an important “safety net” which enables [statutory decision-makers] to consider all forest values, many of which have limited, or no, mandatory planning requirements. Statutory decision-makers should consider all of the available information, the relevance and reliability of the information, and the benefits and risks presented by the proposed operational plan when determining whether or not the plan meets the test of section 41(1)(b). It is suggested that [statutory decision-makers] weigh all the relevant information to ensure there is an adequate evidentiary basis before using section 41(1)(b) to either approve or reject a proposed operational plan.... 

The new Bulletin addresses some, although not all, of the concerns raised by the Bulletin it replaces. 

The Forest Practices Board has been asked to comment on the scope of the test of “adequate management and conservation” and is in the process of preparing such a report.

An amendment to the Code was made in 1997 to add a third criterion. However, to-date, this amendment is not in force. When it becomes law, section 41(1)(c) will also require that the district manager must be satisfied that the plan or amendment adequately addresses the government’s economic objectives for the area, including any economic direction for forest resources provided in a higher level plan. 

There are certain conditions under which a district manager may grant licensees an exemption to forest development plans; these are detailed in section 28 of the Code.

Joint Approval Areas

There are some situations in which the Forest Practices Code requires decision-making over forest development plans to be made jointly with the Ministry of Environment, Lands and Parks. The Code uses the term "designated environment official" wherever this is the case, rather than specifying a single position such as district manager, because the authority to approve forest development plans is delegated to different positions within the environment ministry depending on the reasons for joint approval being required. Appendix 5 summarizes all of the designated environmental officials within the Ministry of Environment, Lands and Parks (Forest Practices Code Delegated Authority Levels: Ministry of Environment, Lands and Parks).

There are three types of joint approval areas for forest development plans (as set out in subsection 41(6) of the Code, and section 2 of the Operational Planning Regulation):

• community watersheds (see Part 4.5 of this Guide);

• areas where higher level plans require joint approval; and,

• areas where the district manager and designated environment official agree that joint approval is appropriate.

The joint approval requirement does not extend to all of the forest development plan area, but only that portion of the plan that meets the above criteria. Designated environment officials must approve the joint approval portion of forest development plans if they are satisfied that it was prepared and submitted in accordance with the Code and regulations, and that it will adequately manage and conserve the forest resources of the area. They are not required to determine whether it addresses the government’s economic objectives for the area.

Conditional Approval

District managers are also able to grant conditional approval to a plan by imposing requirements on the licensee to alter certain aspects of the plan. For example, a plan may be approved on the condition that certain cutblocks are amended or removed, or that further field assessments be completed.

Gates of Approval

1998 revisions to the Forest Practices Code introduced the concept of phased approval or gating for cutblocks and roads. Prior to the revisions, licensees had expressed their concern over the possibility that portions of a plan deemed acceptable at one stage of the planning process could later be refused approval on the basis of new information. Their argument was that once a cutblock or road had been approved initially in a plan, the licensee should not have to face the possibility of it being rejected in future drafts of the plan.

In response to these industry concerns, provisions for gates of approval were added to the Code. District managers may now approve certain portions of a forest development plan prior to the completion of the entire plan. In addition, specific assessments may be submitted and approved prior to the plan itself. Once a section of the plan has been approved according to a specific set of standards it cannot be disapproved for the remaining term of the plan. This presents a potential problem for public input into plans, as a person might raise legitimate issues respecting approved cutblocks or roads, but be told that the concerns are being raised too late. There are limited circumstances in which previously approved roads and cutblocks may be rejected in future plan submissions; these are listed below.

Circumstances where Previously Approved Roads and Cutblocks May be Rejected

The circumstance in which decision-makers may refuse to approve roads and cutblocks on subsequently proposed forest development plans include:

• where legislation is made or a higher level plan is established four months before the submission of the proposed forest development plan, and the cutblock or road is inconsistent with it;

• where, four months before the submission of the plan, a wildlife habitat area is established over any area of the proposed forest development plan, and the Chief Forester and Deputy Minister of Environment, Lands and Parks have specified that the cutblock cannot be harvested as planned or the road cannot be located, constructed, modified or deactivated as planned;

• where, four months before the submission of the plan, a community watershed that includes the area under the proposed forest development plan is designated, and the designation specifies that the cutblock cannot be harvested as planned or the road cannot be located, constructed, modified or deactivated as planned;

• where, four months before the submission of the plan, catastrophic damage or destruction of timber occurs in the vicinity of the cutblock, as a result of which harvesting the cutblock as planned no longer adequately manages and conserves the forest resources;

• where, four months before the submission of the plan, a watershed assessment is completed for an area under the forest development plan, and reveals an adverse impact that was not revealed in a previous assessment and as a result the recommendations in the current assessment specify that the cutblock should not be harvested as planned or the road should not be located, constructed, modified or deactivated as planned; and,

• where, four months before the submission of the plan, the timber harvesting or other operation for which the road was to provide access will not be proceeding.

One exception to these restrictions is that previously approved Category A cutblocks may be rejected where a terrain stability field assessment is completed, and as a result of that assessment, the district manager or designated environment official is satisfied that the cutblock cannot be harvested as planned.

 

For Further Reference

Legislation: Forest Practices Code of British Columbia Act. ss.10, 18, 19, 28, 39-43.

Regulations: Operational Planning Regulation. BC Reg. 107/98, ss.2, 3, 8-30, 69,70,71.

Guidebooks: Forest Development Plan Guidebook. December 1995.

Watershed Assessment Procedure Guidebook. April 1999.

Mapping and Assessing Terrain Stability Guidebook. August 1999.

Forest Health Surveys Guidebook. April 1995.

Public Consultation Guidebook. September 1995.

Policy: Identified Wildlife Management Strategy. February 1999.

Memos: Roberta Reader, Director, Compliance and Enforcement Branch, Ministry of Forests. Bulletin No. 4, “The Application of Section 41(1)(b) of the Forest Practices Code of British Columbia Act,” July 14, 2000.

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11.19.2003