Legal Actions for the purposes of the
Forest and Range Practices Act (FRPA):
Support Document for a Training Package
October 31st, 2008 draft
Prepared for:
Charlie Western, Angela Von Sacken and Brian Westgate
on behalf of:
Ministry of Forests and Range
Integrated Land Management Bureau
Ministry of Agriculture and Lands
Ministry of Environment
Ministry of Tourism, Culture and the Arts
Prepared by:
Terje Vold, RPF, RPBio
Terje Vold and Associates Consulting Ltd
Table of Contents
Acronyms 3
Introduction 3
Chapter 1: Legislative authority 3
Chapter 2: FRPA structure and objectives pillar 3
Chapter 3: Collaborative approach to taking legal actions 3
Appendix: Applying ‘SMART’ Principles to Legal Actions 3
Acronyms
FPC Forest Practices Code of British Columbia Act
FPPR Forest Planning and Practices Regulation
FRPA Forest and Range Practices Act
FSP Forest Stewardship Plan
GAR Government Actions Regulation
ILMB Integrated Land Management Bureau
LUOR Land Use Objectives Regulation
MAL Ministry of Agriculture and Lands
MOE Ministry of Environment
MFR Ministry of Forests and Range
MTCA Ministry of Tourism, Culture and the Arts
RPPR Range Planning and Practices Regulation
WLPPR Woodlot License Planning and Practices Regulation
Introduction
The Ministry of Forests and Range (MFR); Integrated Land Management Bureau (ILMB); the Ministry of Agriculture and Lands (MAL); the Ministry of Environment (MOE); and the Ministry of Tourism, Culture and the Arts (MTCA) have developed a training package in support of undertaking legal actions under the Objectives pillar of the Forest and Range Practices Act (FRPA).
For the purposes of this document "legal action" means actions enabled under FRPA which provide direction to forest, range agreement holders regarding plan preparation or undertaking practices[1]. The legal actions include:
· establishing objectives under the Land Act including the Land Use Objectives Regulation (LUOR), and
· establishing objectives, designations, measures, and other actions under FRPA including the Government Actions Regulation (GAR).
This document discusses:
1. Legislative authority – that each agency uses when taking legal actions;
2. FRPA structure– explaining that FRPA is intended to be results-based with government establishing objectives and how those actions effect forest and range licensees
3. Collaborative approach to taking legal actions – identifying key stages where an agency that can take legal actions should consult with other agencies, and
4. Considerations when writing objectives / orders.
Chapter 1: Legislative authority by Ministry
One of government’s key roles under FRPA is establishing objectives and other legal actions that provide direction to forest, range and woodlot agreement holders as they prepare operational plans and undertake forest and range practices. Objectives and other legal actions focus on the management of particular resource values. The types of legal actions that can be taken by agencies is summarized below.
Types of Legal Actions*Objectives:
Planning Requirement** / Other Legal Actions:
Practice Requirement
· Land use objectives
· Objectives in regulation
· Objectives enabled by regulation
· Grandparented objectives[2] / · General wildlife measures
· Resource features
· Wildlife habitat features
· Temperature sensitive streams
* also establishing categories of species at risk, regionally important wildlife and ungulate species which may help set up objectives or general wildlife measures for an area
**objectives normally are a planning requirement; in some cases they constitute a practice requirement and/or a supporting (default) practice requirement option is provided in regulation.
The four agencies who can undertake legal actions related to FRPA are the:
· Ministry of Agriculture and Lands;
· Ministry of Forests and Range;
· Ministry of Environment; and the
· Ministry of Tourism, Culture and the Arts.
The nature of the legal actions that can be taken by each agency, and the corresponding legislative authority, are summarized below. The authority to undertake a legal action also includes the authority to vary or cancel an action by the appropriate agency.
Ministry of Agriculture and Lands
The Minister responsible for the Land Act may:
Legislative AuthorityLegal Action / Act / Regulation
Establish land use objectives / Land Act s. 93.4 / Land Use Objectives Regulation
Establish scenic areas
(this authority has been delegated to ILMB and MFR in specified instances) / FRPA s. 150.3 / GAR s. 7(1)
Designate community watersheds
(this authority has been delegated to Ministry of Environment) / FRPA s. 150 / GAR s. 8(1)
Ministry of Forests and Range
The Minister responsible for the Forest Act may:
Legislative AuthorityLegal Action / Act / Regulation
Identify resource features* / FRPA s. 154 (2) / GAR s. 5
Establish lakeshore management zones and objectives / FRPA s. 150.2 / GAR s. 6
Establish visual quality objectives (for scenic areas**) / FRPA s. 150.3 / GAR s. 7(2), FPPR s. 1.1
* authority to identify recreation-related resource features has been delegated to MTCA
** MAL has delegated authority to establish, amend or repeal scenic areas to MFR in specified relatively minor instances
The delegation of the MFR Minister’s powers and duties under FRPA and its regulations are shown at www.for.gov.bc.ca/hcp/legislation/authoritymatrix/
Ministry of Environment
The Minister responsible for the Wildlife Act may:
Legislative AuthorityLegal Action / Act / Regulation
Designate community watersheds
(this authority has been delegated from Minister of Agriculture and Lands) / FRPA s. 150 / GAR s. 8(1)
Establish water quality objectives (for community watersheds) / FRPA s. 150 / GAR s. 8(2)
Establish general wildlife measures
(for species at risk, regionally important wildlife or specified ungulate species) / FRPA s. 149.1 / GAR s. 9
Establish wildlife habitat areas and objectives / FRPA s. 149.1 / GAR s. 10
Identify wildlife habitat features / FRPA s. 154 (2) / GAR s. 11
Establish ungulate winter ranges and objectives / FRPA s. 149.1 / GAR s. 12
Establish categories of species at risk, regionally important wildlife and ungulate species / FRPA s. 149.1 / GAR s. 13
Identify fisheries sensitive watersheds and objectives / FRPA s. 150.1 / GAR s. 14
Designate temperature sensitive streams / FRPA s. 150.5 / GAR s. 15
Ministry of Tourism, Culture and the Arts
The Minister of Forests and Range has transferred authorities under sections 56, 57 and 58 of FRPA, and delegated authorities under section 5 (1) (f), (g), (h) of GAR to the Ministry of Tourism, Culture and the Arts.
Legislative AuthorityLegal Action / Act / Regulation
Establish interpretive forest sites, recreation sites and recreation trails, and objectives / FRPA s. 56, 148 / Forest Recreation Regulation s. 6-20*
Protection of recreation and range** resources on Crown land / FRPA s. 58 / Forest Recreation Regulation s. 2
Identify recreation-related resource features / FRPA s. 154 (2) / GAR s. 5(1) (f), (g), (h)
* Note: s. 16 of the regulation requires that a recreation officer authorize a business or industrial activity at an established interpretive forest site, recreation site and recreation trail.
** The authority for FRPA s. 58 orders that pertain to the protection of a range resource remain with MFR
Chapter 2: FRPA structure and objectives pillar
FRPA legislation is comprised of the Forest and Range Practices Act and its regulations. Collectively, this legislation defines the legal requirements for planning and practices for forest, range and woodlot agreement holders on Crown lands, as well as any associated private lands included in any of the above agreements.
The functional architecture of FRPA includes:
· 3 pillars: objectives; plan and practices requirements; and compliance and enforcement;
· 2 foundational elements: professional reliance and effectiveness evaluations; and
· supporting policy e.g. regarding timber supply impacts[3], expectations from the legal and non-legal realm[4].
Government objectives actions can address an array of forest and range values (or ‘FRPA values’) such as timber, cultural heritage resources, soils, water, fish, wildlife, biodiversity, timber, forage, recreation, resource features, and visual quality.
The FRPA framework was built on the key principle that agreement holders and resource professionals will manage the risks associated with achieving any specified results or strategies that are consistent with government set objectives, and that government will hold agreement holders accountable for achieving those results and or carrying out strategies.
FRPA was designed to operate in conjunction with other government statues to avoid overlap and duplication with the requirements of other statutes. There remains to be a need to comply with all applicable requirements in other statutes (e.g. Drinking Water Protection Act, Heritage Conservation Act, Wildfire Act). Objectives for the purposes of FRPA do not override these other requirements. These other requirements do not need to be addressed in FSP’s or other operational plans but, forest and range practices must be compliant with them.
Types of Objectives
The objectives pillar consists of four types of objectives :
1. Land Use Objectives – established under s. 93.4 of the Land Act, and previously under s. 3-5 of the Forest Practices Code of British Columbia Act;
2. Objectives in Regulation established under the authority of s. 149 of FRPA, and in s. 5-10 of FPPR, s. 6-11 of RPPR, s. 9 of WLPPR;
3. Objectives Enabled by Regulation established under authority of s. 56[5], 149.1-150.3 of FRPA, and s. 6-18 of GAR;
4. Grandparented Objectives – carrying forward established objectives under FPC (s. 180-181 of FRPA). Grandparented objectives can be viewed as a type of ‘objective enabled by regulation’.
1. Land Use Objectives
Land use objectives are:
· objectives established under s. 93.4 of the Land Act consistent with the requirements under the Land Use Objectives Regulation; and
· ‘higher level plans[6]’ under s. 3-5 of the Forest Practices Code of BC that continue under the authority of s. 93.8 of the Land Act as objectives established under s. 93.4 of the Land Act.
· Also known as a component of “objectives set by government” as per the definitions section of FRPA
Land use objectives enable key provisions of approved land use plans that are relevant to the management and use of forest and range resources to be given legal effect for the purposes of FRPA and can be used to update/revise higher level plan objectives that were carried forward from FPC to FRPA.
Government policy that supports FRPA that has been carried forward from the FPC is that:
· land use objectives related to landscape-level and stand-level biodiversity that are associated with implementation of the Landscape Unit Planning Guide related to old growth management areas and wildlife trees are subject to overall direction that the impact of FRPA on provincial timber supply should not exceed 6%. This impact limit includes the management of other resource values in addition to biodiversity.
· Land use objectives that are intended to implement direction in approved land use plans (not associated with Landscape Unit Planning Guide) are outside of the policy limits on timber supply.
Land use objectives always prevail if any conflict exists with other types of objectives to the extent that they are inconsistent with the land use objectives (see ‘hierarchy of objectives’ below).
2. Objectives in Regulation
Objectives in regulation are the second of two types of ‘objectives set by government’. Objectives in regulation are derived from authority in s. 149 of the FRPA and only exist in the following regulations:
· Sections 5-10 of the Forest Planning and Practices Regulation;
· Sections 6-11 of the Range Planning and Practices Regulation; and
· Section 9 of the Woodlot License Planning and Practices Regulation.
The suite of objectives is slightly different in each of these regulations. FPPR contains objectives in regulation for soils; timber; wildlife; water, fish wildlife and biodiversity in riparian areas; wildlife and biodiversity; cultural heritage resources; visual quality; community watersheds; and fisheries sensitive watersheds.
Objectives in regulation are intended to provide goalposts for managing and protecting forest and range values. Results and/or strategies in operational plans must address and be consistent with these objectives.
Objectives in regulation under the FPPR are often supported by practice requirements so that agreement holders can manage consistent with the objectives by either complying with the supporting practice requirements or proposing results or strategies in their FSP[7] that are consistent with the objectives in regulation. Objectives in regulation, and the associated default practices requirements, were designed to be consistent with government policy that the impact of FRPA on provincial timber supply should not exceed 6%. For example, many objectives in regulation include the clause “without unduly reducing the supply of timber from BC’s forests”. The intent of this language is to help ensure the conservation of non-timber values is undertaken and balanced with socio-economic benefits associated with timber values.
3. Objectives Enabled by Regulation[8]
Objectives enabled by regulation are established by the appropriate Minister for a specified area. These objectives are not stated in regulations, but the legislation gives authority to establish them consistent with the Government Actions Regulation (GAR).
Objectives enabled by regulation are intended to support effective forest management under FRPA by addressing specific resource values. They may be used in a complimentary manner with land use objectives to help implement provisions of approved land and resource use decisions[9] for the purposes of FRPA. GAR specifies limitation on actions, consultations and reviews, and other requirements that must be addressed before these objectives are established.
One of the limitations on actions in GAR is that actions ‘not unduly reduce the supply of timber from BC forests’. Under GAR policy, the advice is that the following should be considered as a ‘benchmark’ to assess if this test has been met:
· government’s policy regarding timber supply impacts associated with implementation of forest practices legislation[10],
· government’s approved land and resource use decision, and
· assumptions in support of the AAC decision for TSAs, TFLs and woodlots.
The above guidance provides context for the delivery of GAR actions including objectives, general wildlife measures, and features.
4. Grandparented Objectives
Grandparented objectives are those established under the FPC that are listed under s. 180 of FRPA. This ensures continuation of objectives established under FPC to FRPA.