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Vol: I  –  Issue: II      August 29, 2008

Greenhouse Gas Reduction (Emissions Standards) Statutes Amendment Act, 2008, and Miscellaneous Amendments Brought into Force

Generally

This edition of The Forestry Law Reporter will provide a general overview of the Greenhouse Gas Reduction (Emissions Standards) Statutes Amendments Act, 2008 ("Bill 31") given Royal Assent in the Legislature on May 29, 2008. While at first glance this enactment may not appear to have any particular connection with BC’s forestry legislation, it does, in fact, contain a package of amendments that is arguably as significant to BC’s forestry legislation as those amendments enacted in the Forests and Range Statutes Amendment Act, 2008 ("Bill 8").

As well, this edition will look at some of the various amendments to BC's forestry legislation that came into force this summer.

Bill 31

Except for those who pay really close attention to the proceedings of the Legislature, or those who are actually involved in the legislation-making process, the amendments to the Forest Act contained in Bill 31 could easily have gone unnoticed. Even though it contains as many or more pages of amendments to the Forest Act than did Bill 8 itself, Bill 31 was brought through the Legislature by the Minister of Environment (not the Minister of Forests and Range) as part of the Greenhouse Gas Reduction (Emissions Standards) Statutes Amendments Act, 2008.

Approximately half of Bill 31 contains amendments to emissions standards under the Environmental Management Act, while the other half contains amendments to the Forest Act that are theoretically designed to facilitate the production of bio-fuel. However, Bill 31 also includes amendments that have little, if anything specific, to do with this notional purpose.

Some of the more interesting amendments included in Bill 31 include:

• Creation of New Cutting Rights — Bill 31 creates new forms of tenures (for example, the fibre supply licence to cut) and new opportunities to apply for existing forms of tenure (for example, the nonreplaceable forest license) in order to make fibre available for bioenergy purposes.
• Waste Billings — The Legislature has now vested Cabinet with the authority under Bill 31 to create regulations with respect to waste billings. Currently, waste billings are governed under the tenure document itself. Once brought into force, Cabinet regulations with respect to waste billings will trump the rules that the Government and licensee agreed upon in tenure documents.
• AAC Partitions — Bill 31 also authorizes the Chief Forester to partition the allowable annual cut for a TSA or TFL on the basis of different timber types, terrain or areas. The Chief Forester is given the further authority to issue partition orders that will limit the amounts harvested under forest licenses or TFLs from each of the various partitions. Finally, Cabinet is given the authority to make exemptions to partition orders, while the Minister is given the authority to waive their application.

Note:  While Bill 31 is now enacted, very little of it is actually in force. We will provide further commentary as its more important provisions are brought into force.

Amendments Now in Force

Some of the more notable amendments to BC's forestry legislation that the Government has brought into force over the summer include:

• Free Use Permits for Traditional and Cultural Activities — The amendments contained Bill 8 with respect to sections 48 and 49 of the Forest Act regarding Free Use Permits are now in force. As noted in our previous edition, these amendments will authorize free use permits for non-commercial traditional and cultural activities even if the applicant already has access to suitable timber, and will do away with volume limitations in these circumstances. Further amendments to the Free Use Permit Regulation, B.C. Reg. 335/99, also modified the prescribed definition of "traditional and cultural activity" to clarify that "trading and bartering" was a "commercial purpose" and not a traditional and cultural activity. The definition of "traditional and cultural activity" was also amended to clarify that construction of a residential dwelling would fall within the definition of "traditional and cultural activity" if the aboriginal community possessed an aboriginal right to timber that included the construction of residential dwellings.
• Postponement of Cutting Permits — The government has amended the "forest management reasons" prescribed in the Cutting Permit Postponement Regulation, B.C. Reg. 284/2007. Forest management reasons are a prerequisite for the postponement of a cutting permit under section 58.21 of the Forest Act. The amendments have removed the requirement that the postponement is "unrelated to the holder's financial situation". As well, a postponement is now authorized if timber harvesting operations under the cutting permit will have an adverse effect on reforestation or an unacceptable risk of fire hazard in the area covered by the cutting permit.
• Forestry Licenses to Cut for Timber at Risk — The amendment in Bill 31 that eliminates the 2,000 m³ forestry licence to cut formerly available under section 47.6(2)(a) of the Forest Act for timber at risk is now in force.
• Forestry Licenses to Cut for Small Scale and Intermediate Salvage — Section 2 of the Forestry Licence to Cut Regulation, B.C. Reg. 221/2006, was amended to modify the prescribed circumstances when a forestry licence to cut is available under section 47.6(2)(d) of the Forest Act. The prescribed circumstances are now more generalized and, accordingly, are even more a matter for the statutory decision maker's discretion. The prescribed circumstances do not specifically focus on "bark beetle" salvage, and this category of forestry licence to cut is now available in the Coast Forest Region as well as Northern or Southern Interior Forest Regions. This amendment also modifies the volume limitations. Previously, there was a simple 5,000 m³ cap. Now, there is a 2,000 m³ limitation for a direct award of this type of forestry licence to cut, while the 5,000 m³ cap only applies if the forestry licence to cut is issued through a competitive process. Finally, the automatic repeal of Section 2 of the Forestry Licence to Cut Regulation on December 31, 2008 is now, itself, repealed.
• Forest Planning and Practices Regulation — The Government has made an Order in Council that includes a relatively a small package of amendments to the Forest Planning and Practices Regulation, B.C. Reg. 14/2004. These amendments are of interest to those professionals involved with the preparation of forest stewardship plans. In general, the focus is on the retention of secondary structure in mountain pine beetle stands, and the designation of areas in a timber supply area or tree farm licence as a "targeted pine leading stand".