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Vol: V – Issue: I – October 2012

[ Previous Forestry Law Reporters ]

Bio-energy Fibre Supply and other Recent Amendments
to BC's Forestry Legislation

Generally

Since the beginning of the year (and, indeed, for quite some time prior to that), the Legislature has simply shown no appetite to implement any dramatic new policy agendas in our forestry legislation. Any new legislation that is implemented is typically necessary as a consequence of amendments made to a statute in a difference field of regulation (for example, an amendment to legislation that governs energy and mines may require a consequential amendment to a piece of forestry legislation). Otherwise, here and there, the provincial government continues to implement provisions from forestry-related statutes that were previously enacted but not yet brought into force, along with the occasional regulation to accompany that legislation.

The Forest Act

By far the most interesting amendment to the Forest Act in the past year was the long-awaited change to the rules that governed the removal of private land from a woodlot licence. Many years ago, an amendment was made to the Forest Act to permit the removal of private land from a tree farm licence ("TFL"). Curiously, at the time, a similar amendment was not made with respect to private land subject to a woodlot licence – curious in that the amount of private lands committed to woodlot licences was infinitesimally small compared to the massive tracts of private land formerly subject to TFLs. Nevertheless, the Forests, Lands and Natural Resource Operations Statutes Amendment Act, 2011 (Bill 6) finally created a new section 47.1 of the Forest Act that would treat the removal of private lands from woodlot licences in a manner similar to how the Act already treated private lands in TFLs. This past March, the new section 47.1 was brought into force by Cabinet order.

The province also created new legislation under the Forest Act to further promote the development of bioenergy in BC. The Legislature had already implemented an amendment to the Forest Act to add a new section 13.1 that permitted the direct award of non-replaceable forest licences to holders of approved bioenergy supply contracts under the Utilities Commission Act. Under the Greenhouse Gas Reductions (Emissions Standards) Statutes Amendment Act, 2008 (Bill 31), the Legislature had also already amended the Forest Act to allow for the issuance of a forestry licence to cut to the holder of a bioenergy supply contract if it were needed to meet a commercial operation date specified in the bioenergy supply contract, or was otherwise needed to supply a power plant until timber was obtained under a forest licence issued under the new section 13.1 of the Forest Act. Bill 31 also created a new tenure called a "fibre supply licence to cut" in sections 47.71 and 47.72 of the Forest Act to encourage fibre recovery from previously harvested areas. The government has now brought these Bill 31 amendments into force by Cabinet order. As well, Bill 6 amended section 47.3 of the Forest Act to authorize the issuance of a fibre supply licence to cut to a holder of a bioenergy supply contract if it were need to meet a commercial operation date specified in the bioenergy supply contract, or was needed to supply a power plant until timber was obtained under a section 13.1, and this amendment is now in force. Finally, amendments to the Forest Act are now in force that provide extensive authority to government to create regulations with respect to fibre supply and forestry licences to cut.

The Forest and Range Practices Act

So far in 2012, the only amendments to the Forest and Range Practices Act ("FRPA") were exceedingly minor and inconsequential changes to sections 203 and 204 of FRPA that simply confirmed the rule that already existed in the Oil and Gas Activities Act: neither FRPA or the Forest Practices Code of British Columbia Act (as the case may be) applied to the holder of a master license to cut who was carrying out approved activities under the Oil and Gas Activities Act.

Wildfire Act

Similarly, few amendments were made to the Wildfire Act. The Miscellaneous Statutes Amendment Act (No.2), 2012 did add a new section 66.1 to the Wildfire Act to insulate certain persons from any civil liability that might otherwise result from a function or duty performed under the Wildfire Act, so long as the person acted in good faith. These persons include government officials and employees, temporary employees hired to carry out fire control activities, or any person ordered by an official to carry out fire control activities under the Act, or who is from another jurisdiction and acting pursuant to a "mutual aid arrangement". The amendment does not insulate the government from any vicarious liability it may incur as a result of the acts of these persons. As well, the Forest Lands and Natural Resource Operations Statutes Amendment Act, 2012, replaced sections 7.1 and 7.2 of the Wildfire Act to clarify the responsibilities of persons "in a prescribed class of persons" and persons "carrying out an industrial activity or a prescribed activity" to abate a fire hazard.

Regulations

Most regulations passed in 2012 implemented amendments that were either consequential to the legislative amendments discussed above, or otherwise required to flesh out the requirements of those amendments. That said, there were substantial amendments made to the BC Timber Sales Regulation, and to the Advertising, Deposits, Disposition and Extension Regulation that are important to those who work with BC Timber Sales.

Of particular interest is a graduated deposit system the government has implemented whereby the amount of a deposit required in relation to a successful bid for a BCTS timber sale licence is based upon past performance (both operational and financial) of the bidder. The BC Timber Sales Regulation now contains performance evaluation criteria in a new section 16.4 to determine whether a successful applicant for a timber sale licence is at "level 1, level 2, or level 3". The amount of deposit required of the successful bidder then increases depending upon whether the bidder is evaluated at level 1, level 2 or level 3. Under a new section 16(3), if the successful bidder is level 1 then the bidder must pay a deposit equal to a "base amount" (as determined in accordance with section 16.2 of this regulation); if the successful bidder is level 2, then the bidder must pay a deposit equal to 2 times the base deposit; and if the bidder is level 3, then the required deposit is 3 times the base amount. This is a novel approach towards securing the performance of obligations under BCTS timber sale licenses, though its success will depend very much upon the ability of BCTS to consistently apply the specified criteria.