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  • A critical overview of Bill 23 amendments to the Forest Act and the Forest and Range Practices Act


    Yves Mayrand
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    ON WEDNESDAY, October 20, 2021, the government of British Columbia tabled Bill 23 – Forests Statutes Amendment Act, 2021 (Bill 23) for first reading in the Legislative Assembly of British Columbia and issued a press release under the title: “Revamped forest policy puts environment, people first”. Bill 23 was passed in third reading by the Legislative Assembly of British Columbia on November 23, 2021.

    It is quite difficult and tedious to go through the 59 pages of legalese in Bill 23 and to understand not only what it does, but also what it actually avoids doing. The reading of this government bill is further complicated by the fact that it contains a second layer of amendments to some of the amendments proposed within the text of the same bill.

    All people who are involved in advocating fundamental reform of the forestry framework in BC should be asking themselves whether Bill 23 truly amounts to a revamped forest policy that puts environment and people first. They, as well as First Nations of British Columbia and their respective members, should also ask themselves whether Bill 23 implements British Columbia’s Declaration on the Rights of Indigenous Peoples Act (DRIP Act) in relation to forest laws in a meaningful and definitive way. Finally, but not least, all citizens of British Columbia and members of the press should ask themselves whether Bill 23 has far-reaching consequences on the exercise of their constitutional rights in relation to access to forest roads, peaceful protests in forested areas of provincial Crown land in the province, and the monitoring and reporting of resource extraction, infrastructure building and operations, and police enforcement activities in these forested areas. This analysis and comments will hopefully be useful in finding one’s answer to these questions, or at least help to have a more informed public discussion on the effects of this government bill.

    Bill 23 contains various amendments to the Forest Act, R.S.B.C. 1996, c. 157 (FA) in its Part 1, to the Forest and Range Practices Act, S.B.C. 2002, c. 69 (FRPA) in its Part 2, to the Forest Practices Code of British Columbia Act, R.S.B.C 1996, c.159 in its Part 3, to the Special Accounts Appropriation and Control Act, R.S.B.C. 1996, c. 436 in its Part 4, and various transitional provisions and consequential and related amendments to certain other acts in its Part 5. Most of the proposed amendments are however to the FRPA.

    Bill 23 does not contain proposals or amendments respecting several other acts or sections of acts in the current portfolio of the minister of Forests, Lands, Natural Resource Operations and Rural Development (FLNRORD). These unaffected acts include the Land Act, the Ministry of Forests and Range Act, the Private Managed Forest Land Act, the Riparian Areas Protection Act, the Water Protection Act, the Wildfire Act, the Wildlife Act and the Zero Net Deforestation Act. Bill 23 neither updates nor consolidates the current patchwork of BC forestry laws in the FLNRORD portfolio, nor does it bring about a comprehensive, clear, consistent and effective statutory forest policy statement in furtherance of the public interest.

     

    What Are the Proposed Amendments to Forest Statutes in Bill 23?

    The amendments to the FRPA focus essentially on the following:

    (1) A layered executive and administrative system comprising:

    1. forest landscape plans (FLPs) established by way of orders of the chief forester in relation to forest landscape areas (FLAs), with a view to replacing forest stewardship plans (FSPs) over the next 8 to 10 years; FLAs, their location, extent and characteristics will be determined by the chief forester on a case-by-case basis; FLPs will not apply to woodlot licences, FLPs will be for a term of 10 years, and they may be extended for one or more successive periods of 5 years also by order of the chief forester;

    2. forest operations plans (FOPs) by forest tenure agreement holders that are subject to approval by the minister; FOPs will be for a term of up to 5 years, may be extended for a period of up to 1 year, or for a period of up to 2 years on one or more occasions if the minister considers that government is unlikely to complete consultations with Indigenous Nations in relation to a replacement forest operation plan, with such extensions being before or even after a FOP expires; the minister may approve a FOP if satisfied that the person submitting the plan has given “sufficient consideration” to matters raised by Indigenous nations during the “engagement period” and to comments received from the public, or even when a FOP is “inconsistent” with a FLP;

    3. the filing of annual forest development schedules by holders of a FOP;

    4. site level plans (SLPs) by holders of a FOP for cutblocks or roads before timber harvesting in the cutblocks and road construction actually take place; a SLP must be “consistent” with the FOP that applies to the plan area, may apply to more than one forest operations area and is not subject to chief forester or ministerial approval;

    5. the conclusion of decision-making agreements with individual Indigenous governing bodies respecting the decision-making powers of the chief forester and/or the minister under a. or b. above within the FLP area; there is however no obligation or timetable for the conclusion by the chief forester or the minister of such decision-making agreements with Indigenous governing bodies;

    (2)  the use, maintenance and deactivation of forest resource roads, and government funding for road deactivation to be granted at the discretion of the minister (a more detailed review of the proposed amendments in relation to forest roads is provided in Appendix 1 of the attachment below).

    (3)  the eventual disclosure under the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 (FOIPPA) of information on administrative penalties, fines and sanctions for violations to the Acts, at the discretion of the minister;

    (4)  relief granted by the minister from obligations under the FRPA or an operational plan, a free growing stand obligation, a road deactivation obligation, or the provision of government funding to fund a free growing stand obligation or road deactivation;

    (5)  relief from obligations, or government funding, for catastrophic damage resulting from wildfire or a prescribed natural event, at the discretion of the minister; and

    (6)  a string of new executive government powers to make regulations on:

    • the resolution of disputes relating to the preparation and establishment of FLPs;
    • with respect to a forest service road or forest resource road, requirements for a person who uses a forest service road to provide notice to the minister or a prescribed person in relation to the person’s use of the forest service road, authorizing a person to close a road, restrict the use of a road, and/or remove property from a road, including but not limited to removing vehicles or animals, and/or requirements for the owner of property removed from a road to pay a person who removed the property the costs of the removal (a more detailed review of the amendments to section 155 of the FRPA is provided in Appendix 1 of the attachment below, and an unofficial consolidation of section 155 of the FRPA, as amended, is provided in Appendix 2 of the attachment below);
    • forest practices generally; and
    • relief and government funding for road deactivation and areas of catastrophic damage.

     

    What Are the Fundamental Issues that Bill 23 Fails to Address?

    With Bill 23, government continues to avoid dealing with the following fundamental issues:

    (1) meaningful process for prior and informed input by all BC citizens and communities before executive and administrative decisions are actually made (no public hearings, no right of revision or appeal, significant expansion of executive powers with no opportunity to comment on new regulations or orders before they are issued);

    (2)  land use reform;

    (3)  forest tenure reform;

    (4)  FLNRORD reform;

    (5)  removing the primacy of FLNRORD’s statutory mandate to encourage maximum productivity of the forest and range resources, the immediate and long-term economic benefits of these resources, and a vigorous, efficient and world competitive timber processing industry in section 4 of the Ministry of Forests and Range Act, R.S.B.C. 1996, c. 300;

    (6)  actual protection of old growth from further logging and from BCTS timber sales affecting old growth areas;

    (7)  clearcutting, monoculture and chemical spraying as the prevailing BC forestry practices, as opposed to ecoforestry-based practices;

    (8) protection of watersheds from flooding, drought, soil erosion and water pollution caused by these prevailing forestry practices;

    (9)  protection of species at risk under BC law from loss of habitat caused by these prevailing forestry practices;

    (10)  raw log exports;

    (11)  allowable annual cut determinations and the sustainability of forest resources;

    (12)  actual and meaningful implementation of the United Nations Declaration on the Rights of Indigenous Peoples pursuant to the Declaration on the Rights of Indigenous Peoples Act of British Columbia, particularly with respect to free, informed and prior consent for industrial resource extraction on unceded traditional territories, and the phasing out of oppressive Forest Consultation and Revenue Sharing Agreements (FCRSAs); and

    (13)  actual carbon balance sheet metrics and obligations for the forest sector in British Columbia, and the required contribution of the forest sector to climate change mitigation, decarbonization, zero net deforestation, afforestation and reforestation.

     

    Conclusion

    It is my personal view that Bill 23:

    (1) is clearly not a revamped forest policy;

    (2) does not put the environment and the people of BC first, but rather puts private industry first;

    (3) is a bureaucratic and disingenuous scheme to significantly expand discretionary and even arbitrary forest-related decision-making without challenge, revision or appeal;

    (4) entrenches the status quo for the industrial extraction of BC forest resources by industrial forest tenure agreement holders for the current decade and beyond;

    (5) prolongs the actual circumvention of the rights and interests of Aboriginal peoples with respect to forest resources on unceded traditional territories; and

    (6) gives more and broader powers to government to impinge upon the fundamental rights of all BC citizens, First Nations and members of the press to freely circulate on forest roads located within forested provincial Crown land so as to monitor the activities and practices of:

    • forest tenure agreement holders;

    • other resource extraction industries;

    • builders and operators of pipelines, energy transmission lines and other large infrastructures;

    • builders or operators of forest roads; and

    • law enforcement operations by police.

    Yves Mayrand is a retired lawyer, with a civil law degree from a Québec university. He notes that he has not practiced law in British Columbia and is not qualified to provide any legal opinion.  His analysis and comments are his alone, from his own reading of the Forest Act, the Forest and Range Practices Act and Bill 23.

    Analysis of Amendments in Bill 23 - YM 8 December 2021.pdf

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    Guest Frederick Marshall

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    Hi Yves:  Excellent summary and your work in developing this summary is much appreciated.   
     
    It appears that the new legislation is not about developing a better regime and procedures to enable enhanced resource management across BC but rather to:
    • Give police-state control over the use of most roads located in BC's forests
    • Give relatively free use of and control over these same roads to the forest and Petroleum industries.
    • Does nothing to establish a formal comprehensive Resource Road Policy across BC that is relatively simple and easy to administer and----fails to ensure that there are NO Non-status roads in the province.   The new legislation fails to even mention Non-status roads which are a huge risk to all resources and communities across BC.
    • Allows --yea basically states--- that the government will pay for any environmental damage accruing to these roads or landscape or structures or private property caused by any forest-related activities such as extensive clearcutting across any landscape.   A huge subsidy to the forest industry and an inherent encouragement to do whatever they want upon the landscape with no responsibility or liability for the "results" of their operations. 
           They are already doing this with the recent flood damages.  The new legislation just more legally and more formally authorizes it.
     
    What a huge disappointment.  This "new" legislation all too clearly indicates that the Forest Industry and their lobby groups continue to have inordinate control over what happens to BC's Forests.  
     
    And yes, this control extends to and over most of the "free' press in BC.
     
    It is extremely hard for anyone or even any group to counter these insidious forces.
     
    Fred
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    Thank you Yves for your critical analysis.  You have made an important contribution to the discussion. In my view your critique underscores the need to draft new, good forest legislation in British Columbia that will take us progressively forward for the next 50 years. 

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