BILL 44 – 2003
FORESTS STATUTES AMENDMENT ACT (No. 2), 2003

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Forest Act

1 Section 1 (1) of the Forest Act, R.S.B.C. 1996, c. 157, is amended by repealing the definition of "forest service road" and substituting the following:

"forest service road" means a road on Crown land that

(a) is declared a forest service road under section 115 (5),

(b) is constructed or maintained by the minister under section 121,

(c) was a forest service road under this definition as it was immediately before the coming into force of this paragraph, or

(d) meets prescribed requirements; .

2 The following Part is added:

Part 2.1 -- Timber Supply Analysis within Timber Supply Areas

Data package and timber supply analysis required

10.1 (1) To assist the chief forester in making a determination of allowable annual cut for section 8 (1) (a), the timber sales manager together with

(a) all holders of replaceable forest licences, and

(b) all holders of agreements listed in section 12, or of pulpwood agreements, that are in a category or subcategory of agreements that is prescribed for the purposes of this section

which licences or agreements grant rights to harvest Crown timber in a timber supply area, must jointly prepare and submit to the chief forester, for the timber supply area, a data package and a timber supply analysis.

(2) Each data package or timber supply analysis required under subsection (1) must conform to the specifications of the chief forester, including but not limited to specifications as to the time and manner of preparation and submission of the data package or timber supply analysis, as the case may be, and the content of each.

(3) Before specifying the time or times for submission under subsection (1) of a data package or timber supply analysis, the chief forester must consult with those jointly responsible under subsection (1).

(4) If all those jointly responsible under subsection (1) do not agree as to the data package and the timber supply analysis that are required under that subsection, they must submit the outstanding matters

(a) for resolution by an agreed process of dispute resolution, or

(b) in the absence of an agreed process under paragraph (a), to binding arbitration under the Commercial Arbitration Act.

(5) Before submitting under subsection (1) a data package to the chief forester, those jointly responsible under subsection (1) must make the data package publicly available for

(a) review, and

(b) comment

in accordance with prescribed requirements.

Acceptance of data package and timber supply analysis

10.2 (1) The chief forester or a person authorized by the chief forester must accept

(a) a data package, or

(b) a timber supply analysis

that has been submitted under section 10.1 if the chief forester or a person authorized by the chief forester is satisfied that

(c) it conforms to the specifications under section 10.1 (2) of the chief forester, and

(d) the data package has been made publicly available for review and comment in accordance with subsection (5) of section 10.1 and the prescribed requirements referred to in that subsection.

(2) After the chief forester or a person authorized by the chief forester has accepted a timber supply analysis under subsection (1), those jointly responsible under section 10.1 (1) must make the timber supply analysis publicly available for

(a) review, and

(b) comment

in accordance with prescribed requirements.

Costs of data package and timber supply analysis

10.3 (1) The government and

(a) all holders of replaceable forest licences, and

(b) all holders of agreements listed in section 12, or of pulpwood agreements, that are in a category or subcategory of agreements that is prescribed for the purposes of this section

which licences or agreements grant rights to harvest Crown timber in a timber supply area, are jointly responsible for the reasonable costs incurred jointly by the timber sales manager and the holders referred to in section 10.1 (1)

(c) respecting review and comment required under sections10.1 and 10.2, and

(d) in preparing and submitting the data package and the timber supply analysis required by section 10.1 (1) for that timber supply area.

(2) Subject to subsection (3), each of those jointly responsible under subsection (1) for the costs referred to in that subsection must contribute to the payment of those costs to the extent, in the manner and at the time or times specified in an agreement among all of those jointly responsible.

(3) If, within a prescribed period, those jointly responsible under subsection (1) for the costs referred to in that subsection have not reached an agreement that addresses the extent, the manner and the time or times for the contributions under subsection (2), then they must pay those costs in accordance with the regulations and each of them must contribute to the payment of those costs

(a) to the prescribed extent,

(b) in the prescribed manner,

(c) at the prescribed times, and

(d) in accordance with other prescribed requirements, if any.

Consequences of non-conformance

10.4 (1) If those jointly responsible under section 10.1 (1) to prepare and submit a data package and a timber supply analysis do not prepare or submit

(a) the data package, or

(b) the timber supply analysis

in accordance with the specifications referred to in section 10.1 (2), by the time or times required under the specifications, the chief forester may

(c) determine the reasons, and

(d) specify the person or persons responsible and the extent to which the person or persons are responsible

for the data package, the timber supply analysis or both not being prepared or submitted.

(2) The chief forester must not make a determination under subsection (1) without first giving an opportunity to be heard to all of those jointly responsible to prepare and submit the data package and the timber supply analysis, including the timber sales manager.

(3) If the chief forester makes a determination under subsection (1) (c), the chief forester may give notice of the determination to the person or persons specified under subsection (1) (d), requiring that the person or persons refrain from doing anything in furtherance of the preparation and submission of the data package or the timber supply analysis.

(4) After notice is given under subsection (3), the chief forester, on behalf of the government, may

(a) prepare the data package, timber supply analysis or both,

(b) make publicly available for review and comment the data package, timber supply analysis or both, and

(c) recover from

(i) the holders of replaceable forest licences to which section 10.3 (1) applies, and

(ii) the holders of agreements listed in section 12, or of pulpwood agreements, that are in a category or subcategory of agreements that is prescribed for the purposes of section 10.3 (1) (b) and to which section 10.3 (1) applies,

as a debt due the government, payable on demand, the portion attributable to those holders of the reasonable costs incurred by the chief forester under paragraphs (a) and (b).

(5) For the purposes of subsection (4), each of the holders must contribute to the payment of the costs payable under subsection (4) to the same extent as would be the case if the data package, timber supply analysis or both, as the case may be, had been prepared under section 10.1.

Administrative penalties in relation to section 10.1

10.5 In a determination under section 71 of the Forest and Range Practices Act of whether those jointly responsible under section 10.1 (1) or any of them have contravened section 10.1 (1) the minister must

(a) specify, from among them, the person or persons who contributed to the contravention and the extent to which the person or persons contributed to the contravention, and

(b) ensure that his or her determination under section 71 of the Forest and Range Practices Act reflects the facts specified under paragraph (a) of this section.

3 Section 89 is repealed and the following substituted:

Marking with marine log brand

89 (1) A person must not apply a marine log brand to timber unless

(a) the person has obtained

(i) a certificate under section 88 (3) for the marine log brand, or

(ii) the consent of a person who has obtained a certificate under section 88 (3) for the marine log brand, and

(b) the timber has been

(i) marked with a timber mark in accordance with this Part, and

(ii) scaled in accordance with Part 6.

(2) A person who applies a marine log brand under subsection (1) must conspicuously mark the timber in the prescribed manner with the marine log brand so that the brand is readily discernible when the timber is in the water.

4 The following section is added:

Misrepresentation prohibited

93.1 A person must not represent that the person is authorized to perform a scale under this Part if not so authorized.

5 Section 114 is repealed and the following substituted:

Definition

114 In this Part:

"district manager" includes a person authorized by the district manager to carry out a power, duty or function conferred on the district manager under this Part;

"forest development plan" has the same meaning as it has in the Forest and Range Practices Act;

"forest stewardship plan" has the same meaning as it has in the Forest and Range Practices Act.

6 Section 115 is amended

(a) by repealing subsections (1) and (2) and substituting the following:

(1) A person who has the right to harvest timber under a forest licence, timber sale licence, timber licence, tree farm licence, community salvage licence, community forest agreement, woodlot licence, Christmas tree permit or forestry licence to cut may apply under this section to

(a) the district manager or timber sales manager for a road permit to

(i) construct a road on Crown land, or

(ii) maintain an existing road on Crown land, other than a forest service road, or

(b) the district manager for a road use permit to use a forest service road.

(2) Subject to section 81, the district manager or timber sales manager must grant to an applicant under subsection (1) a road permit to construct a road on Crown land, if satisfied that the location of the proposed road is identified in a prescribed manner. ,

(b) in subsection (3) (b) by adding "forest stewardship plan or" after "compromise a",

(c) by repealing subsection (4) and substituting the following:

(4) Subject to section 81, the district manager must grant to an applicant under subsection (1) a road use permit to use a forest service road if the district manager is satisfied that use of the road by that person will not adversely affect authorized users of the road, or compromise a forest stewardship plan or forest development plan. , and

(d) in subsection (5) by striking out "or modified".

7 Section 116 is amended by striking out "or modify" in both places.

8 Section 117 is repealed and the following substituted:

Road use permits for industrial use

117 (1) A person, other than a person referred to in section 115 (1), who wishes to use a forest service road for an industrial purpose, may apply under this section to the district manager for a road use permit.

(2) The district manager may grant to an applicant under subsection (1) a road use permit to use a forest service road if the district manager is satisfied that use of the road by that person for that industrial purpose will not

(a) cause inordinate disturbance to the natural environment,

(b) adversely affect authorized users of the road, or

(c) compromise a forest stewardship plan or forest development plan.

9 Section 118 is amended

(a) in paragraph (a) by striking out ", modified",

(b) by repealing paragraph (b) and substituting the following:

(b) authorize its holder to

(i) use the road, and

(ii) if applicable,

(A) construct the road, or

(B) on Crown land that is in a Provincial forest and is in the area covered by the road permit, manage and use that land for sand pits, gravel pits, rock quarries or other quarries that are adjacent to the road covered by the road permit and provide materials for the construction or maintenance of the road,

in accordance with the road permit, this Act and the regulations and the Forest and Range Practices Act and the regulations and the standards made under that Act, , and

(c) in paragraph (d) by striking out "the Forest Practices Code of British Columbia Act" and substituting "the Forest and Range Practices Act".

10 Section 119 is amended

(a) by repealing paragraph (a) and substituting the following:

(a) describe the forest service road that its holder may use, , and

(b) in paragraph (b) by striking out "the Forest Practices Code of British Columbia Act and the regulations made under that Act." and substituting "the Forest and Range Practices Act and the regulations and standards made under that Act."

11 Section 121 is amended

(a) in subsection (1) by striking out "the Forest Practices Code of British Columbia Act" and substituting "the Forest and Range Practices Act", and

(b) by repealing subsection (1) (a) and substituting the following:

(a) construct and maintain roads and trails, .

12 Sections 130 (1.1) (a) and (c) and 133 (1) and (2) are amended by striking out "the Forest Practices Code of British Columbia Act" and substituting "the Forest and Range Practices Act".

13 Section 151 is amended by adding the following subsections:

(7) The Lieutenant Governor in Council may make regulations respecting administrative penalties that, under section 71 of the Forest and Range Practices Act, may be imposed for the contravention of a provision of this Act.

(8) Without limiting subsection (7), the Lieutenant Governor in Council may make regulations respecting charges and penalties in cases in which a person does not comply with one or more of the following:

(a) this Act or the regulations;

(b) an agreement listed in section 12 or a pulpwood agreement.

14 Section 163 is repealed and the following substituted:

Fines

163 (1) A person who contravenes section 84 (1), (3) or (4), 89 (1) or (2), 94 (1), 127, 164 (1) (a), (b) or (c) or 165.1 commits an offence and is liable on conviction to a fine not exceeding $500 000 or to imprisonment for not more than 2 years or to both.

(2) A person who contravenes section 9 (2), 84 (6), 86 (3.1) or (4), 94 (4), 95 (1) or (7), 97 (1), 126 (2), 136 (1) or 163.1 commits an offence and is liable on conviction to a fine not exceeding $100 000 or to imprisonment for not more than one year or to both.

(3) A person who contravenes section 93.1 or 97 (6) commits an offence and is liable on conviction to a fine not exceeding $50 000 or to imprisonment for not more than 6 months or to both.

(4) A person who contravenes section 84 (2), 90 (1) or (2), 96 (1), 124 (1), 125 or 132 (2) commits an offence and is liable on conviction to a fine not exceeding $10 000 or to imprisonment for not more than 6 months or to both.

(5) A person who contravenes section 86 (1) or (2) commits an offence and is liable on conviction to a fine not exceeding $5 000 or to imprisonment for not more than 6 months or to both.

(6) A person who contravenes section 136 (3) commits an offence and is liable on conviction to a fine not exceeding $2 000 or to imprisonment for not more than 6 months or to both.

(7) The Lieutenant Governor in Council may provide by regulation that

(a) a contravention of a regulation is an offence, and

(b) a person convicted of an offence for a contravention of a regulation is liable to a fine not exceeding a maximum amount or to imprisonment not exceeding a maximum amount or to both.

(8) If the maximum fine or imprisonment provided by a regulation under subsection (7) (b) is less than that provided by a provision of this Act, the regulation prevails.

Interference, non-compliance and misleading

163.1 (1) In this section, "person acting in an official capacity" means an individual who is

(a) employed under the Public Service Act, and

(b) is exercising a power or performing a duty or function under this Act or the regulations.

(2) A person must not

(a) without lawful excuse, intentionally interferes with a person acting in an official capacity,

(b) without lawful excuse, intentionally not comply with a lawful requirement of a person acting in an official capacity, or

(c) intentionally makes a false statement to, or misleads or attempts to mislead a person acting in an official capacity.

15 Section 164 (1) is repealed and the following substituted:

(1) A person must not

(a) by intimidation or threat hinder or prevent a person from making an application for an agreement, or from submitting a tender or bid, under Part 3,

(b) for an improper purpose threaten to make an application for an agreement, or to submit a tender or bid, under Part 3, or

(c) participate in or be a party to an agreement or arrangement among 2 or more persons, under which

(i) one or more of the persons agrees or undertakes not to make an application for an agreement, or to submit a tender or bid, under Part 3, or

(ii) particulars in an application made for an agreement, or the amount of a tender or bid submitted, under Part 3, by one or more of the persons are decided.

16 The following sections are added to Division 4 of Part 12:

Defences to a prosecution

167.1 Due diligence, mistake of fact and officially induced error are defences to a prosecution under this Act or the regulations.

Section 5 of the Offence Act

167.2 Section 5 of the Offence Act does not apply to this Act or the regulations.

Part 6 of the Forest and Range Practices Act applies

167.3 (1) Divisions 1 to 4 of Part 6 of the Forest and Range Practices Act apply to this Act and the regulations under this Act, unless the context indicates otherwise.

(2) Without limiting subsection (1), sections 131 to 141 of the Forest Practices Code of British Columbia Act apply to an appeal under the Forest and Range Practices Act in respect of a contravention of this Act or the regulations under this Act.

Forest Practices Code of British Columbia Act

17 Section 1 (8) of the Forest Practices Code of British Columbia Act, R.S.B.C 1996, c. 159, is amended by striking out "19.1," and "71.1,".

18 Section 42.1 (3) is amended by adding "as soon as practicable" after "subsection (1)".

19 Section 64 is amended by adding the following subsection:

(1.1) If the regulations respecting road deactivation conflict with a road deactivation prescription, the regulation prevails over the prescription to the extent of the conflict.

20 Section 162.1 is amended

(a) in subsection (1) by striking out "subsections (3) to (5)," and substituting "subsections (3) to (4),",

(b) by adding the following subsection:

(3.1) The district manager must not give written notice to the holder under subsection (3) to the effect that an obligation in respect of establishing a free growing stand on an area has not been met unless the district manager has determined that

(a) a free growing stand has not been established, or

(b) a free growing stand has been established and the following circumstances apply:

(i) at the time the declaration was made, the stand was under threat from

(A) competition from plants, shrubs or other trees established on the area, or

(B) forest health concerns present on the area;

(ii) as a result of the threats referred to in subparagraph (i), the stand is unlikely to remain a free growing stand without further treatment. , and

(c) by repealing subsections (5) and (6).

21 Section 162.2 (1) is repealed and the following substituted:

(1) The district manager must grant the relief described in subsection (3) to a person who, under this Act, the regulations, the standards or an operational plan, has an obligation other than

(a) an obligation to establish a free growing stand, or

(b) a prescribed obligation, and

who satisfies the district manager that

(c) because of an event causing damage, the obligation on the area cannot be met without significant extra expense than would have been required if the damage had not occurred, and

(d) the person

(i) did not cause or contribute to the cause of the damage,

(ii) exercised due diligence in relation to the cause of the damage, or

(iii) contributed to the cause of the damage, but only as a result of an officially induced error.

22 Section 175 is repealed and the following substituted:

Definition of "party"

175 In this Part and the regulations related to this Part, "party" means

(a) the government,

(b) the holder of an agreement under the Forest Act,

(c) the holder of an agreement under the Range Act, or

(d) persons referred to in section 176 (2).

23 Section 176 is amended by renumbering the section as section 176 (1) and by adding the following subsection:

(2) If, while carrying out under subsection (1) (a) an audit or investigation of a party,

(a) the board finds that the party complied with the requirements audited or investigated, and

(b) the only reason for that finding was that

(i) the party exercised due diligence to prevent non-compliance,

(ii) the party reasonably believed in the existence of facts that if true would establish that the person complied with the requirement, or

(iii) the party's actions relevant to the requirement were the result of an officially induced error,

the board may audit or investigate whether a person other than that party did not comply with the requirements, in the course of acting for or at the direction of the party.

24 Section 185 is amended

(a) in subsection (1) by striking out "After" and substituting "Subject to subsection (1.1), after", and

(b) by adding the following subsection:

(1.1) If an audit or investigation referred to in subsection (1) includes more than one party, the board may report its overall conclusions without reporting on compliance by each party.

25 Section 213 is amended

(a) in subsection (1) (a) and (b) by striking out "forest service roads" and substituting "roads", and

(b) in subsection (2) by striking out "subsection (1) (a) or (b)," and substituting "subsection (1) (a) or (b) in respect of a road that is a forest service road,".

26 Section 221.1 is amended

(a) in subsection (3) (b) by adding "in accordance with subsection (3.1)," before "the Lieutenant Governor in Council", and

(b) by adding the following subsection:

(3.1) The Lieutenant Governor in Council may consider that a proposed pilot project meets the requirements of subsection (3) (b) (i), if

(a) the Lieutenant Governor in Council makes that determination, or

(b) the minister notifies the Lieutenant Governor in Council in writing that the minister considers that the planning processes provided for in the proposed pilot project, once completed, will provide at least the equivalent protection for forest resources and resource features as that provided by this Act and the regulations made under this Act.

Forestry Revitalization Act

27 The Forestry Revitalization Act, S.B.C. 2003, c. 17, is amended in item 2 in Column 3 of the Schedule by striking out "2964" and substituting "29 634".

Range Act

28 Section 47 of the Range Act, R.S.B.C. 1996, c. 396, is amended

(a) by repealing subsection (1) and substituting the following:

(1) A person must not hinder, obstruct or impede a regional manager, district manager or a forest officer in the discharge or performance of a duty or the exercise of a power or authority under this Act.

(1.1) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding $100 000 or to imprisonment for not more than one year or to both. , and

(b) by adding the following subsections:

(5) Due diligence, mistake of fact and officially induced error are defences to a prosecution under this Act.

(6) Section 5 of the Offence Act does not apply to this Act or the regulations.

29 Section 49 is amended by adding the following subsections:

(2.1) The Lieutenant Governor in Council may make regulations respecting administrative penalties that, under section 71 of the Forest and Range Practices Act, may be imposed for the contravention of a provision of this Act.

(2.2) Without limiting subsection (2.1), the Lieutenant Governor in Council may make regulations respecting charges and penalties in cases in which a person does not comply with one or more of the following:

(a) this Act or the regulations;

(b) a licence referred to in section 3;

(c) a permit referred to in section 3.

Implementation regulations

30 (1) The Lieutenant Governor in Council may make regulations he or she considers necessary or advisable for the purpose of more effectively bringing into operation

(a) the Forest Act as amended by this Act,

(b) the Forest Practices Code of British Columbia Act as amended by this Act, and

(c) the Range Act as amended by this Act,

and to remedy any transitional difficulties encountered in doing so.

(2) A regulation made under this section may be made retroactive to a date not earlier than the date this section comes into force.

(3) This section and any regulations made under it are repealed on January 1, 2006.

Commencement

31 (1) This Act, except sections 1, 19 and 27, come into force by regulation of the Lieutenant Governor in Council.

(2) Section 19 is deemed to have come into force on December 17, 2002 and is retroactive to the extent necessary to give effect to it on or after that date.

(3) Section 27 is deemed to have come into force on March 31, 2003 and is retroactive to the extent necessary to give it effect on and after that date.