Although federal jurisdiction respecting forest land use matters is limited, there are several statutes which have a bearing on land use activities which take place on public land in British Columbia.

 

5.2.1 CANADIAN ENVIRONMENTAL ASSESSMENT ACT (CEAA), SC 1992, C.37

The Canadian Environmental Assessment Act (CEAA) affects land use in British Columbia only to the extent that it requires environmental assessment of certain activities which come under federal jurisdiction. It has limited application to most issues affecting land use planning in British Columbia.

Under section 5 of the CEAA, an environmental assessment of a project is required before a federal authority exercises a power, or performs a duty, where it:

• is the proponent of the project and does any act or thing that commits the federal authority to carrying out the project in whole or in part;
• makes or authorizes payments or provides a guarantee for a loan or other financial assistance to the proponent of the project;
• sells, leases or otherwise disposes of federal lands; or,
• issues a permit or licence, or grants an approval, in relation to specific sections of federal legislation as listed in the Inclusion List Regulations.

The Inclusion List Regulations (SOR/94-637) require an environmental assessment for projects relating to national parks and protected areas, oil and gas pipelines, nuclear waste, hazardous waste, fisheries, migratory birds, certain federal transportation issues and certain projects on Indian reserve lands.

The Act also allows for the specific exclusion of some projects from the requirement to conduct environmental assessments. They are:

• projects set out in the Exclusion List Regulations (SOR/94-637);
• projects carried out in response to some national emergencies; and,
• projects carried out in response to urgent emergencies to prevent damage to property or the environment, or in the interest of public health or safety.

Where an environmental assessment is required, the federal authority must ensure that it is conducted "as early as is practicable in the planning stages of the project and before irrevocable decisions are made."

Projects must first be "screened" for their environmental impact, and in certain cases will require a comprehensive study. Some undertakings automatically require comprehensive study if they are listed in the Comprehensive Study List Regulations (SOR/94-638). These regulations list certain projects involving national parks, wildlife areas and migratory bird sanctuaries, construction, expansion or abandonment of certain power lines and generating stations, dams and dykes, oil and gas works, metal mines, certain production levels, industrial sites such as pulp mills and smelters, plywood and particle board mills, chemical wood treatment facilities, transportation projects and hazardous waste treatment facilities.

Every screening or comprehensive study of a project must consider the following factors:

• the environmental effects of the project, including the environmental effects of malfunctions or accidents that may occur in connection with the project and any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out;
• the significance of the above environmental effects;
• comments from the public received in accordance with this Act and the regulations;
• measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the project; and,
• any other matter relevant to the screening, comprehensive study, mediation or assessment by a review panel, such as the need for the project and alternatives to the project, that the responsible authority or, except in the case of a screening, the Minister after consulting with the responsible authority, may require to be considered.

After considering the comprehensive study report and comments from the public, the Minister must decide whether or not the project is likely to cause significant adverse environmental effects. Where a project will not likely have significant adverse impacts, or where it will but the impacts are considered to be "justified in the circumstances," the project may be approved. Where it will cause significant adverse impacts that cannot be justified in the circumstances, it cannot be approved. Where the environmental effects are uncertain or are significant and adverse, or where public concern warrants, the Minister must refer the project to a mediator or appoint a review panel.

The Canadian Environmental Assessment Agency has been established to:

• administer the environmental assessment process and any other requirements and procedures of the Act or regulations;
• promote uniformity and harmonization in the assessment of environmental effects across Canada at all levels of government;
• promote or conduct research in matters of environmental assessment and to encourage the development of environmental assessment techniques and practices, including testing programs, alone or in cooperation with other agencies or organizations;
• promote environmental assessment in a manner that is consistent with the purposes of the Act; and,
• ensure an opportunity for public participation in the environmental assessment process.

 

5.2.2 CANADA WILDLIFE ACT, RSC 1985, c.W-9

Management of wildlife in Canada is both a federal and provincial responsibility. The jurisdictional lines are not clearly set out in the Canadian constitution, except for matters such as control over fisheries, which is exclusively a federal power. The provinces have exclusive jurisdiction over "property and civil rights," which is considered to include wildlife. However, the federal government has jurisdiction over transboundary issues and matters of national concern. Because some wildlife (such as migratory birds) cross international boundaries, they are subject to international treaties and federal legislation. Some constitutional scholars believe that these federal powers would justify a stronger federal presence in the management of wildlife, such as federal laws regarding endangered species that are of national concern to Canadians.

The Canada Wildlife Act sets out how the federal Ministry of Environment will be involved in wildlife conservation and management of public lands for wildlife. There is also federal involvement in wildlife outside of this legislation through other agencies such as Fisheries and Oceans Canada. The Canada Wildlife Act is deferential to the provincial role in wildlife management, by requiring provincial agreement or cooperation for most endeavours.

Section 3 of the Act empowers the Minister of Environment to:

• encourage public cooperation in wildlife conservation and interpretation;
• initiate conferences and meetings respecting wildlife research, conservation and interpretation;
• undertake programs for wildlife research and investigation;
• establish advisory committees; and,
• coordinate and implement wildlife programs and policies in cooperation with "the government of any province having an interest therein."

Any federal law, for the purpose of wildlife research, conservation or interpretation, may assign administration of public lands to the federal environment ministry. "Public lands" here means lands belonging to Canada, subject to agreements with the province in which the land is situated, including waters flowing through the lands or internal waters and the territorial sea of Canada. Other lands may be purchased, leased or otherwise acquired for migratory birds without the agreement of a province, or for any other wildlife with provincial government agreement. These areas may be designated as "national wildlife areas," of which there are five in British Columbia. Human activity in national wildlife areas is regulated by the Wildlife Area Regulations (SOR/78-466, s.1(F); SOR/94-594, s.2(F)). For further information on national wildlife areas, please refer to Part 4.3.4 of this Guide.

Section 4.1 of the Canada Wildlife Act allows the federal Cabinet to establish "protected marine areas" managed by the Canadian Wildlife Service. However, other federal legislation also allows other federal agencies to establish similar areas for marine protection.

The Act enables the Minister of Environment to enter into agreements with provinces over wildlife research, conservation and interpretation programs or measures, and the administration of lands for wildlife purposes. Agreements may also be entered in to with municipalities or individual persons, but only with provincial approval.

The Minister may take measures for the protection of wildlife in danger of extinction, but only in cooperation with a provincial government. Under section 9, the Minister may purchase or lease lands for migratory birds, or with the agreement of the province for other wildlife. Once acquired, these lands cannot be disposed of, occupied or used except in accordance with the Act and regulations.

This legislation is considered weak, and the federal government has proposed new endangered species legislation that is much more specific to the needs of endangered species. However, it has encountered some resistance from provincial governments, including British Columbia, in doing so.

 

5.2.3 DEPARTMENT OF NATURAL RESOURCES ACT, SC 1994, C.41

The federal government has a presence in forestry matters through the Department of Natural Resources, under which the Canadian Forest Service operates. The jurisdiction of the federal government over forestry is fairly limited, however, by the Canadian constitution which gives the provinces exclusive jurisdiction over "civil rights and property matters," which are considered to include forestry and land use matters. The federal jurisdiction is therefore restricted to federal lands — such as Indian reserves, airports and national parks — which are managed by other federal agencies.

The Department of Natural Resources Act sets out the mandate of the department as including "all matters over which Parliament has jurisdiction, not by law assigned to any other department, board or agency of the Government of Canada, relating to natural resources...."

Section 6 of the Act requires the Minister and department to:

• have regard to the sustainable development of Canada’s natural resources and the integrated management thereof;
• coordinate, promote, recommend and implement policies with respect to the matters referred to in that section, and programs and practices established pursuant to those policies;
• assist in the development and promotion of Canadian scientific and technological capabilities;
• participate in the development and application of codes and standards for technical surveys and natural resources products and for the management and use of natural resources;
• seek to enhance the responsible development and use of Canada’s natural resources and the competitiveness of Canada’s natural resources products;
• participate in the enhancement and promotion of market access for Canada’s natural resources products and technical surveys industries, both domestically and internationally;
• promote the development and use of remote sensing technology;
• promote cooperation with the governments of the provinces and with non-governmental organizations in Canada, and participate in the promotion of cooperation with the governments of other countries and with international organizations; and,
• gather, compile, analyse, coordinate and disseminate information respecting scientific, technological, economic, industrial, managerial, marketing and related activities and developments affecting Canada’s natural resources.

For a more complete sense of the mandate of the Canadian Forest Service, see the entry below on the Forestry Act.

 

5.2.4 FISHERIES ACT, RSC 1985, C.F-14

The federal Fisheries Act and its regulations are directed towards the management of Canada’s fisheries rather than land use; however, there are important provisions affecting land use and forestry practices. Although there is provincial involvement in the regulation of sport fishing, under the Canadian constitution exclusive jurisdiction over "sea coast and inland fisheries" lies with the federal government. The provincial involvement in fresh water fisheries occurs by an informal delegation of administration from the federal government. Provincial sport fishing regulations are developed by the province, but legally must be passed by federal Cabinet under the Fisheries Act.

Of particular relevance to land use and forest practices are the prohibitions against harmfully altering fish habitat and depositing deleterious substances into water frequented by fish. These provisions are two of the strongest environmental laws in Canada.

The habitat protection provision in section 35 of Fisheries Act states in subsection 35(1) that "[n]o person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat." Subsection 35(2) states that "[n]o person contravenes subsection (1) by causing the alteration, disruption or destruction of fish habitat by any means or under any conditions authorized by the Minister or under regulations made by the Governor in Council under this Act."

The pollution prohibition provision in section 36 of the Fisheries Act states, in part at subsection 36(3):

…[s]ubject to subsection (4), no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.

Subsection 36(4) states:

…[n]o person contravenes subsection (3) by depositing or permitting the deposit in any water or place of waste or pollutant of a type, in a quantity and under conditions authorized by regulations applicable to that water or place made by the Governor in Council under any Act other than this Act; or a deleterious substance of a class, in a quantity or concentration and under conditions authorized by or pursuant to regulations applicable to that water or place or to any work or undertaking or class thereof, made by the Governor in Council under subsection (5).

The federal Cabinet may make regulations which prescribe:

• the deleterious substances authorized to be deposited;
• the waters or places where any deleterious substances are authorized to be deposited;
• the works or undertakings in the course or conduct of which any deleterious substances are authorized to be deposited;
• the quantities or concentrations of any deleterious substances that are authorized to be deposited;
• the conditions or circumstances under which any deleterious substances are authorized to be deposited in any waters or places; and,
• the persons who may authorize the deposit of any deleterious substances.

These provisions are backed by strong penalties. Section 40 of the Act sets the maximum penalty for not complying with these provisions at a fine of one million dollars, or a prison term up to three years, or both. In addition, where section 36 is violated, the owner or person in charge, management or control of the deleterious substance, or person who causes or contributes to its deposit, may be held liable for all costs and expenses incurred by the federal or provincial governments in trying to prevent, mitigate or counteract the pollution.

Regulations under the Fisheries Act that are relevant to forestry include the British Columbia Gravel Removal Order (CRC, c. 841) and the British Columbia Logging Order (CRC, c. 842). The Gravel Removal Order prohibits the removal or displacement of gravel from within the normal high water wetted perimeter of any stream, river or other body of water that is a spawning ground frequented by fish, unless it is authorized by a written permit issued by the Regional Director or a fishery officer. Gravel removal from streams or rivers is often an issue in logging road construction and maintenance. Although this is a general prohibition applicable to fish waters throughout the province, a schedule to the regulation specifically mentions 106 rivers in British Columbia which are particularly important for fish.

The British Columbia Logging Order specifies requirements respecting the placing, driving, towing, booming and releasing of logs into certain waters in British Columbia. The prohibitions are specifically tailored to the individual water bodies mentioned in the regulation.

Other provisions of the Fisheries Act which are not particularly relevant to the focus of this Guide cover topics such as the powers of fishery officers and guardians, fishery leases and licences, construction of fishways, marine plants, the culture of fish, general prohibitions and the application of the Act outside of Canadian fisheries waters. There are numerous regulations under the Act which govern fishing practices.

 

5.2.5 FORESTRY ACT, RSC 1995, C.F-30

The federal Forestry Act sets out the mandate of the Canadian Forest Service. The work of the agency is summarized in section 3 of the Act, which states that the federal Minister of Natural Resources:

• shall provide for the conduct of research relating to the protection, management and utilization of the forest resources of Canada and the better utilization of forest products and may establish and maintain laboratories and other necessary facilities for those purposes;
• may undertake, promote or recommend measures for the encouragement of public cooperation in the protection and wise use of the forest resources of Canada;
• may enter into agreements with the government of any province or with any person for forest protection and management or forest utilization, for the conduct of research related thereto or for forestry publicity or education;
• may provide for the making of forestry surveys and provide advice relating to the protection and management of forests on lands administered by any department or agency of the Government of Canada or belonging to Her Majesty in right of Canada; and,
• at the request of any department or agency of the Government of Canada, may assume responsibility for the protection and management of any forest on lands for which that department or agency is responsible, including responsibility for the disposal of timber and grass and for the granting of rights to the natural produce of the forest.

In addition to the above, the Minister "may conduct economic studies relating to the forest resources, forest industries and marketing of forest products, make investigations designed to aid the forest industries and woodlot owners of Canada and assist external aid programs relating to forestry."

Under section 4 of the Forestry Act, the federal Cabinet may designate federally owned land, or other land where there is an agreement with the provincial government, as a Forest Experimental Area. Activities within these areas are governed by the Timber Regulations, 1993 (SOR/94-118). However, there are no such areas in British Columbia.

 

5.2.6 MIGRATORY BIRD CONVENTION ACT, SC 1994, C.22

Under the Canadian constitution the power to implement treaties resides with the federal government. One such treaty that could have some bearing on forestry and land use matters in British Columbia is the Convention for the Protection of Migratory Birds of 1916 between Canada and the United States. One of the rationales for the treaty is best expressed in its preamble, which states in part:

…[m]any of these species are of great value as a source of food or in destroying insects which are injurious to forests and forage plants on the public domain, as well as to agricultural crops, in both Canada and the United States, but are nevertheless in danger of extermination through lack of adequate protection during the nesting season or while on their way to and from their breeding grounds….

The Convention applies to the following three categories of migratory birds:

• Anatidae or waterfowl, including brant, wild ducks, geese, and swans;
• Gruidae or cranes, including little brown, sandhill, and whooping cranes;
• Rallidae or rails, including coots, gallinules and sora and other rails;
• Limicolae or shorebirds, including avocets, curlew, dowitchers, godwits, knots, oyster catchers, phalaropes, plovers, sandpipers, snipe, stilts, surf birds, turnstones, willet, woodcock, and yellowlegs; and,
• Columbidae or pigeons, including doves and wild pigeons.

• Bobolinks, catbirds, chickadees, cuckoos, flickers, flycatchers, grosbeaks, humming birds, kinglets, martins, meadowlarks, nighthawks or bull bats, nuthatches, orioles, robins, shrikes, swallows, swifts, tanagers, titmice, thrushes, vireos, warblers, waxwings, whippoorwills, woodpeckers, and wrens, and all other perching birds which feed entirely or chiefly on insects.

• Auks, auklets, bitterns, fulmars, gannets, grebes, guillemots, gulls, herons, jaegers, loons, murres, petrels, puffins, shearwaters, and terns.

 

The Convention is implemented in Canada through the Migratory Bird Convention Act and its regulations. Presently the treaty, Act and regulations tend to focus on management of migratory bird populations through closed seasons and bag limits on the hunting of migratory birds. There are also general prohibitions against the removal of nests and eggs of migratory birds.

There are two regulations under the Act: the Migratory Bird Regulations (CRC, c.1035), and the Migratory Bird Sanctuary Regulations (CRC, c.1036). The Migratory Bird Regulations deal with issues such as restrictions on hunting, bag limits, possession of birds, bait restrictions, hunting methods, retrieving birds, trade, and permits relating to the taking of migratory birds for scientific, avicultural, airport, pest and taxidermist purposes.

Section 35 of the Migratory Bird Regulation prohibits the deposit of oil, oil wastes or any other substance harmful to migratory birds in any waters or any area frequented by migratory birds.

The Migratory Bird Sanctuary Regulations establish a number of migratory bird sanctuaries throughout Canada, including seven in British Columbia. Hunting, disturbing nests, possession of migratory birds (including nests and eggs) and possession of firearms are prohibited in these areas.

For further information, please refer to the discussion on migratory bird sanctuaries, in Part 4.3.9 of this Guide.

 

5.2.7 NATIONAL PARKS ACT, RSC 1995, c.N-14

The National Parks Act applies to any land which the government of Canada, through the federal Cabinet or Governor in Council, has proclaimed to be a national park. Section 4 of the Act sets out the purpose of national parks:

…[t]he National Parks of Canada are hereby dedicated to the people of Canada for their benefit, education and enjoyment, subject to this Act and the regulations, and the National Parks shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations.

The Act sets out the procedure for adding land to national parks, and the requirements for management plans within five years of park establishment, with provisions for ongoing review and public input. It also sets out the requirements regarding disposition, use and occupation of public lands within national parks.

The legislation was amended in 1992 to introduce the concept of a national park reserve as an interim designation pending the resolution of land claims negotiations with first nations. This designation presently applies to Gwaii Haanas National Park Reserve on South Moresby Island, and may soon apply to Pacific Rim National Park Reserve.

Although the Act contemplates the creation of national marine parks, presently they are only mentioned in the definition section of the Act under "park." There are no national marine parks in British Columbia. On October 20, 1999, Bill C-8, the Marine Conservation Areas Act was introduced in the House of Commons. If passed, the new act will provide more focused regulation of nationally significant marine areas.

Part II of the National Parks Act authorizes the federal Cabinet to designate federal land as a national historic park to commemorate historic events of national importance or to preserve any historic landmark or object of national importance.

For further information on land use designations under the National Parks Act, please refer to the discussion in Part 4.2.6. of this Guide.

11/19/03