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Vol: II  –  Issue: II      April 30, 2009
[ Previous Forestry Law Reporters ]

Generally

This past March the Government enacted new legislation amending BC's forestry statutes, and passed a half dozen or so Orders in Council (OICs) to amend existing regulations or to bring various provisions of previously enacted statutes into force. While this legislative package contains a couple of interesting twists, it includes little in the way of substantive change for the BC forest industry.

The Forest Amendment Act, 2009 ("Bill 13")

Bill 13 is largely about clarification and consistency—housekeeping, in other words. It includes, perhaps, three substantive changes of note:

• Postponement of Cutting Permits — Bill 13 has amended section 58.21 of the Forest Act so that a "forest management reason" is no longer required to justify the postponement of a cutting permit. Instead, the Minister may now postpone cutting permits "in accordance with the regulations". Government is given the authority—without reference to "forest management"—to make regulations with respect to the circumstances that must exist, and the criteria and conditions that the holder of a cutting permit must meet, before the Minister may postpone the operation of a cutting permit. While this amendment involves only a few words, it has the potential to become the most important amendment made to BC's forestry legislation this year. As of the time of writing, Government had yet to make any regulations with respect to this amendment. Obviously, the significance of this amendment will depend upon the content of any such regulations. Hopefully, at a time when the industry's prospects are so grim, Government will allow postponement on account of market-related reasons.

• Community Forest Licenses — Bill 13 has also done away with the distinctions between "community forest pilot agreements", "long-term community forest agreements", and "probationary community forest agreements". Now there are only "community forest agreements", and they resemble what were formerly known as "long-term community forest agreements" with terms of not less than 25 years and not more than 99 years, and rights of replacement.

• Consolidation of Woodlot Licenses — Bill 13 now provides for consolidation and replacement of multiple woodlot licenses held by the same person. The rules and procedures are similar to those applicable to the consolidation and replacement of other major tenures.

Bill 13 came into force upon Royal Assent and, accordingly, the foregoing (and other) amendments made in Bill 13 are in now in effect.

Amendments Now in Force

Some of the amendments to BC's forestry legislation that Government recently brought into force from previously enacted statutes include:

• Treaty First Nations and Free Use Permits — The Government has brought into force those parts of the Maa-Nulth First Nations Final Agreement Act, c. 43 [SBC 2007] (Bill 45), and the Final Agreement Consequential Amendments Act, 2007, c. 36 [SBC 2007] (Bill 41), that provide for the issuance of free use permits to "treaty first nations" pursuant to "final agreements" (as those terms are used in the BC Treaties Commission process), and for the content of those free use permits.

• The Wildfire Act and Muncipal and Private Managed Forest Land — The Government passed OIC 194 (Reg. 70) that brought into force those provisions of the Forest and Range Statutes Amendment Act, 2008, c. 4 [SBC 2008] (Bill 8), that govern the application of the Wildfire Act with respect to the use of open fires within municipalities and on private managed forest land. The same OIC also made related amendments to the Wildfire Regulation (Reg. 28/2005). Essentially, the Wildfire Act will not apply to the use of open fires in municipalities identified in the Act or the regulation, or to municipalities that otherwise satisfy criteria prescribed in the regulation, but will apply to private managed forest land except as prescribed in the regulation.

• Attribution of AAC to Different Areas of Crown Land — OIC 193 (Reg. 69) brought into force amendments to sections 8 and 69 of the Forest Act from the Greenhouse Gas Reduction (Emissions Standards) Statutes Amendment Act, 2008, c. 20 [SBC 2008] (Bill 31), that will allow the Chief Forester to apportion the AAC for a tree farm licence or a timber supply area to specific areas of land within the TFL or TSA. Previously, the Chief Forester only specified AACs for the entirety of a TFL or TSA, and the apportionment of the AAC to specific areas was left to the planning process.

• Adjustment of Allowable Annual Cut — Numerous provisions enacted in the Forest and Range Statutes Amendment Act, 2007, c. 18 (Bill 18) that relate to the management and adjustment of tree farm licence AAC in various circumstances (consolidation, subdivision, boundary changes, and so on) were brought into force with OIC 194. An important new concept in this respect is found in the definition of "allowable annual cut available" added to the Forest Act.

Miscellaneous Regulatory Changes

Other notable regulatory changes from this past March include:

• The Government created the Forest Licence Regulation, B.C. Reg. 68/2009. This regulation establishes categories, criteria and restrictions applicable to applicants for non-replaceable forest licenses under sections 13(1)(a)(iii) and (2.1) of the Forest Act. These recently enacted provisions authorize the Minister to limit applications for "NRFLs" to prescribed categories of applicants.

• The former Allowable Annual Cut Proportionate Reduction Regulation, B.C. Reg. 156/94 was repealed and replaced with the Allowable Annual Cut Administration Regulation, B.C. Reg. 69/2009. In addition to establishing the prescribed base-level AAC that is exempt from a proportionate reduction under section 63 of the Forest Act (as did the former regulation), the new regulation provides guidance with respect to the new definition of "allowable annual cut available" under the Forest Act, and with respect to the determination of ACC adjustments that may arise on account of modifications to timber supply areas or tree farm licenses (consolidation, subdivision, boundary changes, and so on).

• Sections 19.2 and 45.2 were added to the Forest Planning and Practices Regulation, B.C. Reg. 14/2004. Respectively, these sections provide exemptions to the requirements under the Forest and Range Practices Act to prepare a forest stewardship plan and to establish a free growing stand for areas subject to the Government's "Forests for Tomorrow Program". Section 46 of the Forest Planning and Practices Regulation was also amended to exempt the Minister from the requirement to establish a free growing stand in areas harvested under a forestry licence to cut issued in conjunction with a government funded contract pursuant to the Forestry Licence to Cut Regulation.

• OIC 216 (Reg. 104) made various technical amendments to the Scaling Regulation B.C. Reg. 446/94, the Special Forest Products Regulation, B.C. Reg. 241/003, and the Timber Marking and Transportation Regulation, B.C. Reg. 253/97.

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