While the BC legislature has passed many laws which affect land use either generally or tangentially, this section will discuss those which are most relevant to forest land use planning.

 

5.1.1 ASSESSMENT ACT, RSBC 1996, C.20

The Assessment Act creates a preferential property tax regime for private land that is managed for timber production. It has limited application to forest land use planning generally, but because it can influence how land owners choose to manage their land, it is particularly important in areas where there is a high proportion of private land, such as the Gulf Islands and Vancouver Island.

To be eligible, a property must be "forest land." Forest land is either land used for the production and harvesting of timber which is designated as forest reserve land under the Forest Land Reserve Act, or other land for which timber production and harvesting is the highest and best use.

The Act then distinguishes between managed forest land and unmanaged forest land. Managed forest land has a lower property tax rate. The assessor must classify land as managed forest land, when it meets various conditions:

• the land must be forest reserve land, or part of the agricultural land reserve;
• the land must be subject to a forest management plan which is approved by the assessor; and,
• the land must be managed according to the forest management plan.

The required content for forest management plans is set out in section 6 of the Assessment Act (Forest Land) Regulation (BC Reg. 349/87).

Valuation of forest land for property tax purposes is determined according to two factors:

• the value of the land for growing and harvesting trees (without taking into account the existence of any trees on the land); and,
• a value for cut timber, determined according to schedules set out in the Assessment Act (Land and Cut Timber Values Regulation). There are different classes of land for the coast and interior of BC, according to the distance from sawmills, log dumps and other sites. On the coast, the basis for timber values is the Vancouver log market, while in the interior it is a function of timber selling prices, costs of milling, and distance from the nearest sawmill.

Land classified as “managed forest land”, whether contained in the Forest Land Reserve or Agricultural Land Reserve, must be managed in accordance with either the Forest Land Reserve Act or, where the land is public or part of a broader public forest agreement (like a woodlot or tree farm licence), the Forest Practices Code.

 

5.1.2 ECOLOGICAL RESERVE ACT, RSBC 1996, C.103

The Ecological Reserve Act authorizes the provincial Cabinet (Lieutenant Governor in Council) to establish ecological reserves on Crown land in British Columbia. They are established by Order-in-Council. Ecological reserves may be expanded, cancelled, or have portions deleted by Order-in-Council as well.

The purpose of the legislation is to reserve, for ecological purposes, areas of Crown land:

• suitable for scientific research and educational purposes associated with studies in productivity and other aspects of the natural environment;
• that are representative examples of natural ecosystems in British Columbia;
• that serve as examples of ecosystems that have been modified by human beings and offer an opportunity to study the recovery of the natural ecosystem from modification;
• where rare or endangered native plants or animals in their natural habitat may be preserved; and,
• that contain unique and rare examples of botanical, zoological or geological phenomena.

The effect of designation as an ecological reserve is that the land in question is withdrawn or "reserved" from any further disposition under any statute or law of British Columbia. In other words, no interests granted under the Forest Act, Land Act, Mineral Tenure Act, Mining Right of Way Act, Petroleum and Natural Gas Act, Range Act or Water Act, among others, may be granted by any other branch of government. The Ecological Reserve Act and its regulations prevail over other provincial legislation. Nature conservancies within a provincial park may also be designated as ecological reserves under the Ecological Reserve Act.

For further discussion of ecological reserves, please refer to Part 4.2.1 of this Guide.

 

5.1.3 ENVIRONMENT AND LAND USE ACT, RSBC 1996, C.117

The Environment and Land Use Act probably has the broadest and most sweeping powers of any provincial legislation dealing with the environment or land use. The Act is short, consisting of only eight sections, which establish an Environment and Land Use Committee, comprised of members of the provincial Cabinet.

The Committee has the duty and power to:

• establish and recommend programs designed to foster and increase public concern and awareness of the environment;
• ensure that all the aspects of preservation and maintenance of the natural environment are fully considered in the administration of land use and resource development commensurate with the maximum beneficial land use, and minimize and prevent waste of those resources, and despoliation of the environment occasioned by that use;
• make recommendations to the Lieutenant Governor in Council respecting any manner relating to the environment and the development and use of land and other natural resources;
• enquire into and study any manner related to the environment or land use; and,
• prepare reports, and make recommendations to the Lieutenant Governor in Council.

The Committee may hold public enquiries and appoint technical committees for anything within its mandate. The most sweeping powers are found in section 7, which authorizes the Lieutenant Governor in Council, on the recommendation of the Committee, to make any order it considers necessary or advisable respecting the environment or land use. These orders can overrule any other provincial Act or regulation.

For further discussion of designations under the Environment and Land Use Act, please refer to Part 4.2.2 of this Guide.

 

5.1.4 ENVIRONMENTAL ASSESSMENT ACT, RSBC 1996, C.119

British Columbia passed its Environmental Assessment Act in 1995. The Act replaced policy-based processes that reviewed major development proposals, such as the Mine Development Review Process, the Energy Project Review Process, and the Major Project Review Process. Section 2 of the Act states its purposes as being:

• to promote sustainability by protecting the environment and fostering a sound economy and social well being;
• to provide for the thorough, timely and integrated assessment of the environmental, economic, social, cultural, heritage and health effects of reviewable projects;
• to prevent or mitigate adverse effects of reviewable projects;
• to provide an open, accountable and neutrally administered process for the assessment of reviewable projects, and of activities that pertain to the environment or to land use and that are referred to the Environmental Assessment Board in accordance with certain terms of reference; and,
• to provide for participation...by the public, proponents, First Nations, municipalities and regional districts, the government and its agencies, the Government of Canada and its agencies and British Columbia’s neighbouring jurisdictions.

The requirement to conduct environmental assessments applies only to projects that are considered "reviewable projects." The provincial Cabinet sets out regulations under the Act specifying which projects are reviewable. Projects usually must be of a certain size or capacity for an environmental assessment to be required. The obligation may also be tied to the project’s potential for adverse effects, or the type of industry.

Specifically excluded from environmental assessment requirements are forest practices, as defined in the Forest Practices Code of British Columbia Act, whether on Crown or private land. The forestry exemption does not apply to timber processing facilities.

The review process under the Act has three stages: the application stage, the project report stage and the public hearing stage. At the conclusion of each stage a decision is made whether to approve or reject the proposal or to require further review.

There is no guarantee at the beginning of the process that a proposal will go through all three stages, so it is essential that anyone with concerns about a proposal raise them during the first stage.

The Act provides for public input at a number of key stages:

• when an application is received by the Environmental Assessment Office;
• when draft project report specifications are being prepared;
• when the project report is filed with the Environmental Assessment Office;
• when the draft terms of reference for the public hearing are being prepared; and,
• during the public hearing, if one is held.

One of the innovative features of the Act is a project registry that provides notice and information to the public throughout the review process. The registry provides a wealth of important information, including:

• a list of all projects currently under review;
• an index listing records filed at the project registry for each reviewable project; and,
• all important documents and decisions produced during the assessment process.

The Act allows for intervenor or participation funding to individuals, public interest groups or First Nations to facilitate their participation in environmental assessments. It also allows for public advisory committees, on an optional basis, to provide ongoing advice during the assessment process.

Presently, the regulations apply to projects meeting certain threshold requirements in the following industries:

Industrial Projects

• organic and inorganic chemical industry
• primary metals industry
• non-metallic mineral product industries relating to asbestos, cement, glass and lime
• forest products industries relating to pulp and paper, paperboard, de-inking, wood preservation, building board, sawmills, veneer and plywood, particle board, wafer board and medium density fibre board
• pharmaceutical products
• human-made fibre production and contract textile dyeing
• tire and tube industries
• leather tanneries
• lead-acid batteries

 

Mine Projects

• coal mines
• mineral mines
• sand and gravel operations
• placer mines
• construction stone and industrial mineral quarries
• off-shore mines

 

Energy Projects

• electric transmission lines
• substations
• energy storage facilities
• energy use projects
• natural gas processing plants
• transmission pipelines
• power plants
• off-shore oil and gas facilities

 

Water Management Containment and Diversion Projects

• dams
• dykes
• water diversion projects
• groundwater extraction
• shoreline modification projects

 

Waste Disposal Projects

• special waste facilities
• local government solid and liquid waste management facilities

 

Food Processing Projects

• meat packing plants
• poultry and fish processing plants

 

Transportation Projects

• public highways
• railways
• urban transit rail projects
• ferry terminals
• marine port facilities
• airports

 

Recreation and Tourism Projects

• destination resort projects

An electronic listing of the documents relating to reviewable projects is available online through the Environmental Assessment Office’s website at www.eao.gov.bc.ca.

 

5.1.5 FOREST ACT, RSBC 1996, C.157

The Forest Act is one of the key provincial statutes governing land use planning. The current legislation was first passed, substantially in its present form, in 1978. It incorporated many of the changes recommended by the 1976 Royal Commission on Forestry.

Part 2 of the Forest Act requires the Chief Forester to develop and maintain an inventory of the land and forests in British Columbia. The Chief Forester must then assess the potential of the land for growing trees continuously, providing forest or wilderness oriented recreation, producing forest for livestock and wildlife, conserving wilderness, and accommodating other forest uses. If the chief forester considers that the greatest contribution to the social and economic welfare of the province for, and land in, British Columbia is to be achieved by maintaining the land in successful crops of trees or forage, or both, or maintained as wilderness, the land must be classified as forest land. It is this provision and others that establish the Ministry of Forests as the key agency regulating land use in British Columbia.

A second key aspect of the Forest Act is that it requires the Chief Forester to determine the rate of logging, or allowable annual cut, for timber supply areas and tree farm licence areas.

A relatively recent addition to the Forest Act is Part 13, which allows Cabinet to designate areas of Crown land in which the Minister of Forests may "vary, suspend, or refuse to issue or approve certain permits and licences, prescriptions or plans." This section was added to give the provincial government flexibility to prevent the development of logging or road building in contentious areas, pending land use decisions. It is time-limited, in that Cabinet only has this power up until January 1, 2001 (unless the Act is amended to extend the time). The Chief Forester may reduce the allowable annual cut for designated areas.

The third major significance of the Forest Act is that it establishes the forest tenure system. It sets out the ways in which the provincial government may dispose of timber on public land, by authorizing the Minister of Forests, or regional and district managers of the Ministry of Forests, to enter into agreements granting rights to harvest timber. There are presently eleven different types of tenures: forest licences, timber sale licences, timber licences, tree farm licences, pulpwood agreements, woodlot licences, community forest agreements, free use permits, licences to cut, road permits, and Christmas tree permits. Most of the rights to public timber were allocated long ago, and have rolled over through replacement licences that must be offered every five years. Section 75 of the Act makes it clear that these tenure agreements do not prevent or impede the government from using, or granting the use of, Crown land for any purpose considered to be compatible with timber harvesting. Appendix Six of this Guide provides an overview of BC’s timber tenure system.

Parts 3 through 7 of the Forest Act set out the legislative regime for managing and administering forest tenures, and the rules for marking timber (so that logs can be traced to the cutting permit under which the timber was harvested), scaling timber (the rules around measuring timber to determine the quantity and quality of the timber harvested), and the rules respecting payment for public timber to the government in the form of stumpage and annual rent.

The remainder of the Forest Act deals with the permitting of roads and rights of way, the rules around the salvage of logs in marine areas, and obligations to use or manufacture timber into wood products within British Columbia.

The Act deals with financial matters, such as the government’s ability to recover money owed to it, and other miscellaneous matters. Part 12 sets out the regime for administrative reviews and appeals of decisions made under the Act, penalties for non-compliance, and authorizes Cabinet, or the Lieutenant Governor in Council, to make a number of regulations under the Forest Act.

 

5.1.6 FOREST LAND RESERVE ACT, RSBC 1996, C.158

The Forest Land Reserve Act was passed in July 1994. It establishes a Forest Land Reserve which is regulated by the Land Reserve Commission. The purpose of the Commission, as it relates to the Forest Land Reserve, is to minimize the impact of urban development and rural area settlement on forest reserve land. To this end, the Commission must work with local governments, First Nations and other communities of interest.

The Forest Land Reserve consists of both public and private land. Certain lands automatically became forest reserve lands under the Forest Land Reserve Act, and other lands may be designated by the Land Reserve Commission with the agreement of the land owner. The provincial Cabinet may designate Crown land within a provincial forest as forest reserve land as well.

The effect of being designated as forest reserve land is that uses of the land are restricted by legislation and that forest operations are subject to a level of regulation. There are certain tax benefits to land owners for having land in the forest land reserve, but also provisions for recapture of those tax benefits if the land is subsequently removed from the reserve.

Private lands within the Forest Land Reserve which are not otherwise covered by the Forest Practices Code (as part of a broader forest agreement such as a tree farm licence or woodlot) are now subject to regulation by the Land Reserve Commission. The primary requirement in most cases will be for the owner to make a management commitment which complies with the regulations made under the Forest Land Reserve Act. These requirements are significantly less stringent than those required on public lands under the Code.

For further information on the effect of the forest reserve land designation, please refer to Part 4.1.2 of this Guide.

 

5.1.7 FOREST PRACTICES CODE OF BRITISH COLUMBIA ACT, RSBC 1996, C.159

The Forest Practices Code of British Columbia Act was passed in 1994, and came into effect on June 15, 1995. It is the main legislation governing forest planning and forest practices, which includes timber harvesting, road construction, maintenance, use and deactivation, silviculture treatments, grazing, hay cutting, fire use, control and suppression and other activities. The Code governs forest and range practices that are carried out primarily on Crown forest and range land, but also covers private land that is within a tree farm licence, woodlot licence, or community forest agreement.

Part 2 of the Code provides important legal mechanisms required to link land use plans to forestry operations. These are described in Part 2 of this Guide.

For the most part, forest practices are governed through the submission (by industry) and approval (by government) of "operational plans." These plans are discussed in Part 4 of this Guide. Part 2 of the Code, and regulations such as the Operational Planning Regulation, set out the content requirements for operational plans.

In addition to regulating forest practices through operational plans, there are certain basic requirements respecting protection of the environment, roads, timber harvesting, silviculture and range management, which are addressed in Part 4 of the Code and regulations under it such as the Timber Harvesting Practices Regulation, the Forest Road Regulation, Range Practices Regulation and Silviculture Practices Regulation.

Part 5 of the Code governs activities relating to the protection of forest resources, such as fire use, control and suppression, unauthorized timber harvesting and trespass, the purchase of botanical forest products (e.g. pine mushrooms), recreation and the control of insects and disease.

The passage of the Forest Practices Code of British Columbia Act brought in a new regime for compliance and enforcement with forest practices rules. The regime allows for the levying of administrative penalties by forest officials, and allows remediation orders to be made for contravention of forest practices requirements or operational plans. It also provides for administrative review and appeal of these penalties and orders in Part 6 of the Code. In addition to administrative penalties, some contraventions are also offences which may be prosecuted in courts of law.

Part 8 of the Code establishes the Forest Practices Board, which has powers to conduct audits and special investigations of compliance with the Code and the appropriateness of government enforcement. The Board must deal with complaints from the public respecting certain aspects of the Code, and may initiate the administrative review and appeal procedure on behalf of the public. Essentially, the Forest Practices Board is to be an independent public watchdog whose members are appointed by government, and whose staff are government employees, with a role somewhat similar to the Office of the Ombudsman.

Part 9 of the Code establishes a Forest Appeals Commission, which is a quasi-judicial tribunal with forestry expertise established to hear appeals relating to determinations and orders made by forest officials under the Code.

Many of the most important details concerning the regulation of forest practices are found in regulations passed by Cabinet under Part 10 of the Code. Regulations under the Code include:

• Administrative Remedies Regulation (BC Reg. 182/98)
• Administrative Review and Appeal Procedure Regulation (BC Reg. 114/99)
• Forest Fire Prevention and Suppression Regulation (BC Reg. 169/95)
• Forest Practices Board Regulation (BC Reg. 170/95)
• Forest Recreation Regulation (BC Reg. 58/99)
• Forest Road Regulation (BC Reg. 106/98)
• Forest Service Road Use Regulation (BC Reg. 173/95)
• Health, Safety and Reclamation Code For Mines (Part 11) Exemption Regulation (BC Reg. 132/98)
• Operational Planning Regulation (BC Reg. 107/98)
• Provincial Forest Use Regulation (BC Reg. 176/95)
• Range Practices Regulation (BC Reg. 177/95)
• Security for Forest Practice Liabilities Regulation (BC Reg. 178/95)
• Silviculture Practices Regulation (BC Reg. 108/98)
• Strategic Planning Regulation (BC Reg. 180/95)
• Timber Harvesting Practices Regulation (BC Reg. 109/98)
• Tree Cone, Seed and Vegetative Material Regulation (BC Reg. 164/95)

A new Part 10.1 of the Code came into force on July 15, 1999. Part 10.1 authorizes Cabinet to make regulations respecting pilot projects to experiment with ways to improve the regulatory framework for forest practices.

The remainder of the Code deals with transition provisions relating to a two-year phase, which in some instances has been extended.

 

5.1.8 HERITAGE CONSERVATION ACT, RSBC 1996, C.187

The Heritage Conservation Act can be relevant to forest land use planning because it deals with heritage sites, some of which are designated on forest land, and heritage objects, which may be found on forest land. The purpose of the Act is to conserve and protect heritage property in British Columbia. Heritage property may include anything from buildings in downtown Vancouver to First Nation artifacts in remote forest locations.

The Heritage Conservation Act is fairly strong legislation, in that it is binding on the government, and prevails over any other legislation that may conflict with it.

Section 9 of the Act allows for the designation of heritage sites, and heritage objects, which are land or property that "has heritage value to British Columbia, a community or an aboriginal people."

The legal protection afforded to heritage sites and objects is found in section 13 of the Act. It is an offence to damage, alter or remove heritage sites and objects. Even inspection and investigation of heritage sites requires a permit.

The provincial government may enter into agreements with First Nations for the conservation and protection of heritage sites and objects that represent the cultural heritage of the aboriginal people of that nation. This allows for greater local First Nation autonomy over important cultural sites. Agreements may include the following:

• a schedule of heritage sites and objects that are of particular spiritual, ceremonial or other cultural value to the aboriginal people;
• a schedule of other heritage sites and objects of cultural value;
• the circumstances in which heritage sites and objects, or land around them, may be altered for research, investigation, etc. by the First Nation without a permit, or according to its own administration of heritage protection; and,
• policies or procedures relating to the issuance of permits, and the delegation of ministerial authority.

The Act creates the British Columbia Heritage Trust, which is a Crown corporation with a mandate to:

• conserve and support the conservation of heritage sites and heritage objects;
• gain further knowledge about British Columbia’s heritage;
• increase public awareness, understanding and appreciation of British Columbia’s heritage; and,
• undertake other activities related to British Columbia’s heritage authorized by the Minister responsible (presently the Minister of Small Business, Tourism and Culture).

Further discussion of heritage sites as land use designations is found in Part 4.4 of this Guide.

 

5.1.9 LAND ACT, RSBC 1996, C.245

The Land Act sets out the laws respecting the disposition of Crown land in British Columbia. It authorizes the Minister of Environment, Lands and Parks to sell or lease Crown Land, or grant rights of way, easements, or licences to occupy Crown land. There are certain restrictions on disposing of Crown land, such as restricting the term of leases to no longer than sixty years unless prior approval is obtained from Cabinet. Another example is that land below the natural boundary of a body of water must not be disposed of by Crown grant, except by order of Cabinet.

For the purposes of this Guide, the main relevance of the Land Act is that it prohibits the disposal of Crown land that is suitable for the production of timber and pulp wood unless, in the opinion of the Minister, such land is required for agricultural settlement and development or other higher economic use. The Minister responsible for Crown lands has the administration of all Crown land in the province except land specifically administered by another ministry, branch or agency of government.

Early in the history of forest policy in British Columbia, a decision was made not to grant public forest land to private individuals, but rather, to grant rights to take trees from the land with the Crown maintaining ownership. As a result, over 90% of the land in BC is public land, owned by the provincial government. The only way in which rights to trees on public forest land may be granted is through a tenure under the Forest Act.

Likewise, the Land Act prohibits the Minister responsible for Crown land from disposing by Crown grant any land that is suitable for mining, quarrying, digging or removal of building or construction materials, except by order of Cabinet. This covers any rock or natural substance prescribed under the Mineral Tenure Act.

The Land Act contains a power to reserve land from disposition that may be exercised by Cabinet for any purpose in the public interest. This has been used in the past to reserve areas known as UREPs (areas for the "use, recreation, and enjoyment of the public"), lands managed for wildlife, and other areas with environmental values or future park potential. Land Act reserves are potentially very broad in application, and have also been used to reserve community water supply areas from disposition. The strengths and limitations of these designations are discussed in Part 4.1.3 of this Guide.

5.1.9.1 LAND RESERVE COMMISSION ACT, S.B.C. 1999, c. 14

The Land Reserve Commission Act creates a single commission to regulate both the Agricultural and Forest Land Reserves. Previously, these reserves were managed by separate commissions. The members of the Commission are appointed by cabinet and must include no fewer than five individuals who are knowledgeable in matters related to agriculture, forestry, land use planning or local government. The Commission’s responsibilities under the Agricultural Land Reserve Act, R.S.B.C. 1996, c. 10 and the Forest Land Reserve Act, R.S.B.C. 1996, c. 158 include considering applications to add or remove land from the respective land reserves. For more information on these reserves, see Parts 4.1.1 and 4.1.2 of this Guide. 

5.1.10 MINERAL TENURE ACT, RSBC 1996, C.292

The Mineral Tenure Act sets out the regime regulating the right to explore for, develop or produce minerals owned by the Crown or government in the province. "Minerals" are any metal ores, or natural substance that can be mined, but do not include coal, petroleum, natural gas, marl, earth, soil, peat or gravel, or some rocks or natural substances used for construction purposes.

The Act established a free miner system in which any person over eighteen years of age and ordinarily a resident of Canada, or Canadian corporations, may for a nominal fee acquire the right to locate a mineral claim or placer claim. Free miners may enter any mineral land to explore for minerals or placer minerals. Mineral land is any land in which minerals or placer minerals are vested in or reserved to the government. This includes private land, because through much of the province the original Crown grants were for surface rights to the land only. Subsurface mineral rights were reserved to the Crown. A free miner’s right of entry on private land does not, however, extend to land occupied by buildings, the curtilage of (i.e. the area around) a dwelling house, orchard land, land under cultivation, land occupied for mining purposes, protected heritage property and land in a park or recreation area, unless specifically authorized by Cabinet.

In addition to the above areas in which mineral exploration is excluded, the Minister of Mines may, by regulation, establish mineral reserves prohibiting free miners from locating and recording mineral titles, or making it subject to certain limitations, or prohibiting mining activities either absolutely or under specific circumstances.

Most of the Mineral Tenure Act is devoted to the regulation of mineral and placer claims, such as establishing the rules for locating, recording and maintaining claims. The Act also specifies the circumstances in which a mining or placer lease may be issued, and the rights and responsibilities which accompany those leases. Amendments in 1998 addressed rights of access to mineral claims, and rights of compensation if land use decisions precluded development of the claim.

 

5.1.11 MINES ACT, RSBC 1996, C.293

The Mines Act regulates workplace safety for operating mines. It establishes a Chief Inspector of Mines with powers to appoint other inspectors. It requires mine owners to appoint managers responsible for ensuring compliance with regulations and safety codes.

For the purposes of this Guide, it is included to show that within provincial forests there may be land use designations governed by other legislation. Mines governed by the Mines Act include the following:

• places where mechanical disturbances of the ground or any excavation is made to explore or produce coal, mineral bearing substances, placer minerals, rock, limestone, earth, clay, sand or gravel;
• all cleared areas, machinery and equipment for use in servicing a mine or for use in connection with a mine and buildings other than bunkhouses, cookhouses and related residential facilities;
• all activities including exploratory drilling, excavation, processing, concentrating, waste disposal and site reclamation;
• closed and abandoned mines; and,
• a place designated by the Chief Inspector as a mine.

 

5.1.12 MINISTRY OF ENVIRONMENT ACT, RSBC 1996, C.299

The Ministry of Environment Act is the legislation that gives the Ministry of Environment, Lands and Parks its mandate. The broad mandate is to administer matters relating to the environment. Specific purposes of the ministry are:

• to encourage and maintain an optimum quality environment through specific objectives for the management and protection of land, water, air and living resources of British Columbia;
• to undertake inventories and to plan for and assist in planning, as required, for the effective management, protection and conservation of all water, land, air, plant life and animal life;
• to manage, protect and conserve all water, land, air, plant life and animal life, having regard to the economic and social benefits they may confer on British Columbia;
• to set standards for, collect, store, retrieve, analyze and make available environmental data;
• to monitor environmental conditions of specific developments and to assess and report to the Minister on general environmental conditions in British Columbia;
• to undertake, commission and coordinate environmental studies;
• to develop and sustain information and education programs to enhance public appreciation of the environment;
• to plan for, design, construct, operate and maintain structures necessary for the administration of this Act or for another purpose or function assigned by the Lieutenant Governor in Council; and,
• to plan for, coordinate, implement and manage a program to protect the welfare of the public in the event of an environmental emergency or disaster.

While this mandate is very broad in its potential application to forestry and land use matters, the Ministry of Environment has not been given decision-making powers commensurate with its mandate. For example, while the Ministry of Environment regulates the taking of wildlife through hunting regulations, its role in managing wildlife habitat is largely advisory. This is because the Ministry of Forests is the main decision-making agency when it comes to provincial forest land. There are, however, exceptions to this where joint decision-making is required under the Forest Practices Code of British Columbia Act.

 

5.1.13 MINISTRY OF FORESTS ACT, RSBC 1996, C.300

The Ministry of Forests Act sets out the mandate of the Ministry of Forests, which also operates under the name BC Forest Service. Section 4 of the Act sets out the purposes and functions of the Ministry, which are:

• to encourage maximum productivity of the forests and range resources in British Columbia;
• to manage, protect and conserve the forest range resources of the government, having regard to immediate and long-term economic benefits they may confer on British Columbia;
• to plan the use of the forest and range resources of the government, so that the production of timber and forage, the harvesting of timber, the grazing of livestock and the realization of fisheries, wildlife, water, outdoor recreation and other natural resource values are coordinated and integrated, in consultation and cooperation with other ministries and agencies of the government and the private sector;
• to encourage a vigorous, efficient and world competitive timber processing industry in British Columbia; and,
• to assert financial interest of the government in its forest and range resources in a systematic and equitable manner.

The third bullet above (subsection 4(c)) is the main section which relates to forest land use planning. By policy, the Ministry of Forests interprets "private sector" to include the general public. This subsection is generally cited as the source of the Ministry’s obligation to integrate both timber and resource values in its planning.

 

5.1.14 PARK ACT, RSBC 1996, C.344

The Park Act is the legislative authority for establishing and managing provincial parks and recreation areas in British Columbia. These designations are discussed in greater detail in Part 4.2 of this Guide.

The Park Act is somewhat unique among provincial statutes dealing with land use designations, in that it requires Cabinet to exercise its power to create parks and recreation areas to ensure that not less than 7 300 000 hectares is so designated, and that 10 000 000 hectares be so designated by January, 2000. This will amount to approximately eleven percent of the area of the province. The Park Act thus incorporates much of the provincial government’s commitment to increase the amount of the province in protected area status, under its Protected Areas Strategy.

Provincial parks may be created by an Order-in-Council of Cabinet, or by an act of the Legislature. The Park Act contains several schedules that list and provide legal descriptions for the boundaries therein listed. These "legislated parks" cannot have their boundaries altered except by an act of the Legislature. Parks which are established by Order-in-Council may be cancelled or have their boundaries amended by Orders-in-Council.

In addition to land designated as provincial parks or recreation areas, the Park Act may apply to other public land under the management of the Minister responsible for parks. This includes:

• Crown land which is the subject of an order under the Environment and Land Use Act;
• Crown land designated as greenbelt land under the Greenbelt Act;
• Crown land that is a heritage site under the Heritage Conservation Act;
• land leased to the government for public outdoor recreation;
• land owned by a person who has entered into an agreement with the government respecting use of the land for outdoor recreation;
• land owned by a person who has entered into an agreement with the government respecting the conservation, preservation or protection of the land;
• a trail, path or waterway owned by the government and available for use by the public as a trail or path, or as a waterway for canoes or small boats; and,
• Crown land designated as an ecological reserve under the Ecological Reserve Act.

The Park Act is fairly strong legislation for protecting the environment in a park because it prohibits interests in land from being granted, sold, leased, pre-empted or otherwise alienated, except as authorized by park use permits.

The Park Act is subject to the Environment and Land Use Act, the Environmental Assessment Act, section 23 of the Mineral Tenure Act and its regulations, the Muskwa-Kechika Management Area Act, and the Waste Management Act. Where park boundaries overlap those of municipalities or regional districts, the Park Act prevails over any inconsistent bylaws. The Heritage Conservation Act applies in parks and recreation areas, as does the Wildlife Act, subject to regulations under the Park Act.

 

5.1.15 WATER ACT, RSBC 1996, C.483

All water in British Columbia is owned by the government, except in so far as private rights have been granted under licences issued or approvals given under the Water Act. This legislation primarily deals with the requirements and procedures for acquiring water licences for surface water such as streams and lakes. The Act does not presently apply to groundwater.

Any changes "in and about a stream" require written approval from the Comptroller of Water Rights, a regional water manager, or an engineer employed in the ministry to whom authority has been delegated. Any person who makes a change in and about a stream must do so in accordance with the regulations and must "exercise reasonable care to avoid damaging land, works, trees or other property."

The Water Act has a "use it or lose it" policy, in which failure to exercise licence privileges, such as failure to make use of the water under licence for three successive years, construct works, or pay water rentals due to the government, etc., may result in the cancellation of the water licence.

Holders of water licences have the right to expropriate land required for the construction, maintenance or improvement of works authorized in the licence. It is an offence to wilfully hinder or interrupt the exercise of a right granted under a water licence. It is also an offence to place, maintain or make use of an obstruction in a channel of a stream without authority, or to put into a stream any sawdust, timber, tailings, gravel, refuse, carcass or other thing or substance after having been ordered by the engineer or water recorder not to do so. It is also an offence to divert water from a stream without authority. While many of these prohibitions could theoretically apply to logging operations, forest practices and enforcement of them are normally dealt with under the Forest Practices Code of British Columbia Act and Forest Act.

The Water Act allows the comptroller to issue a certificate of incorporation to a group of six or more licensees, incorporating them into a ‘water users’ community.’ A water users’ community is a public corporate body which may collectively licence and operate works and levy assessments on its members. Some procedural rules regarding the business of water users’ communities are set out in the Water Act. One of the benefits of incorporation is that community watersheds require enhanced forest practices considerations under the Forest Practices Code. For further details, please refer to the discussion in Part 4.5 of this Guide.

 

5.1.16 WILDLIFE ACT, RSBC 1996, C.488

Wildlife management is primarily a function of two factors: the management of habitat that sustains wildlife populations; and, the regulation of how those populations may be hunted, trapped or otherwise taken. There are some minimal provisions for habitat in the Wildlife Act, but the pressing dilemma for wildlife managers in British Columbia is that they do not have regulatory control or decision-making powers over most wildlife habitat. Most habitat in the province is in provincial forests, which come under the authority of the Ministry of Forests. There is, however, limited provision in the Forest Practices Code for some decisions to be made jointly with designated environment officials.

Primarily, the Wildlife Act manages wildlife through the regulation of hunting licences, fishing licences, trapping licences, guide outfitter licences, angling guide licences and fur trader’s licences. In addition, the Wildlife Act contains some restrictions on activities that can harm wildlife, and allows for the designation of land important for wildlife as wildlife management areas, critical wildlife areas and wildlife sanctuaries.

In order to manage or protect wildlife, the Minister of Environment may acquire and administer land, improvements on land, and timber, timber rights and other rights on private land. With the consent of Cabinet, the Minister may designate any land under the Minister’s administration as a wildlife management area, except for land in a park or recreation area. The written consent of the regional fish and wildlife manager of the Ministry of Environment, Lands and Parks is required before any use of land or resources in a wildlife management area occurs. Land within wildlife management areas may further be designated as a critical wildlife area, if required for habitat of an endangered species or threatened species, or as a wildlife sanctuary.

Any species of wildlife that is threatened with imminent extinction throughout all or a significant portion of its range in British Columbia may, by regulation of Cabinet, be designated as an endangered species. Likewise, any species that is likely to become endangered if the factors affecting its vulnerability are not reversed may, by regulation, be designated as a threatened species. These provisions have been exercised on just four occasions to designate the Vancouver Island marmot, white pelican, sea otter and burrowing owl as endangered species.

It is an offence to alter, destroy or damage wildlife habitat in a wildlife management area. Certain activities that are damaging to wildlife are prohibited under the Wildlife Act, such as damaging the house or den of a muskrat or beaver, or a beaver dam. In addition, it is an offence to possess, take, injure, molest or destroy a bird or its egg, the nest of an eagle, peregrine falcon, gyr falcon, osprey, heron or burrowing owl, or any other nest of a bird that is occupied by either the bird or its egg.

11/19/03