Canada and British Columbia southern mountain caribou protection study 2017: chapter 1

3. Description of legislative instruments

3.1 Overview of relevant laws governing use of provincial crown land in B.C.

The Government of BC utilizes various pieces of legislation to manage land-based activities. While this Study considers specific legislative instruments in the context of protecting caribou critical habitat, the purpose of most of BC's land use legislation is to manage activities such as forestry, mining, oil and gas and recreation (including the environmental effects of those activities) . Under BC's “activity-based” approach, there is no single piece of legislation which has a specific purpose of protecting caribou habitat, but caribou habitat is explicitly considered in the designation and application of many of the legislative instruments discussed in the Study. 

For the purposes of this study, the term legislative instrument is used to refer to any land use designation or regulatory authority that has the potential to protect caribou habitat, regardless of its effectiveness.

3.1.1 Approach to description of legislative instruments

This section provides a description of each of the legislative instruments that could be relevant to caribou habitat protection on non-federal land (Table 5). For each legislative instrument, a brief explanation of the statutory context is provided as well as the location where the specific instrument applies within the Central Group. Multiple pieces of legislation and regulations can govern the activities which occur within a specific designated area.

For the purpose of the Study, the specific criteria included in the description of legislative instruments were those set out in ECCC's draft Policy on Critical Habitat Protection on Non-federal Land. These include prohibitions and offences, penalties or consequences, enforcement regime, limitations, exemptions, discretion, and permitting authorities.

Also included in the Study is a discussion of how BC Statutory Decision Makers have considered caribou habitat when making decisions, as well as how compliance and enforcement (C&E) is carried out in practice.  These details about the implementation of the legislation are referred to as “history of application” and help to provide additional information on how the Province considers caribou habitat.  History of application is also useful to highlight and describe areas where additional focus and emphasis on caribou could be inserted into provincial decisions.

History of application includes a discussion of authorizations made for specific activities since the legislative instruments have been designated. “Authorizations” include tenure, which is an agreement between an individual or company and the provincial or federal government which provides the individual or company with an interest in the land. Types of tenure can include leases and licences which cover broad areas within which activities may or may not be subsequently authorized as well as more site-specific permits to undertake works on the ground. This discussion of history of application provides general information only about the potential for activities governed by the canvassed legislative instruments to occur within the LPUs of the Central Group.  However, it is important to note that a given authorization or activity may not necessarily result in destruction of critical habitat.  Significantly more detailed analysis would be required to determine whether critical habitat was or could be destroyed as a result of these authorizations. A table of all authorizations is provided in Annex 1.

This review is a “point in time” analysis and only considers legislative instruments that are in force at the time of writing.

Table 5. Provincial legislative instruments that could be relevant to habitat protection for the Central Group of Southern Mountain Caribou in BC
Legislative Instrument Associated Legislation
Ecological Reserve
  • Ecological Reserve Act
    • Ecological Reserve Regulations
  • Protected Areas of British Columbia Act
  • Offence Act
    • Violation Ticket Administration and Fines Regulation
Class A Provincial Park
  • Protected Areas of British Columbia Act
  • Park Act
  • Offence Act
    • Violation Ticket Administration and Fines Regulation
Protected Area
  • Environment and Land Use Act
  • Park Act
  • Offence Act
    • Violation Ticket Administration and Fines Regulation
Wildlife Habitat Area (WHA)
  • Forest Act
  • Forest and Range Practices Act (FRPA)
    • Administrative Orders and Remedies Regulation
    • Forest Planning and Practices Regulation
    • Woodlot Licence Planning and Practices Regulation
    • Government Actions Regulation
  • Offence Act
  • Oil and Gas Activities Act (OGAA)
    • Environmental Protection and Management Regulation
Ungulate Winter Range (UWR)
  • Forest Act
  • Forest and Range Practices Act (FRPA)
    • Administrative Orders and Remedies Regulation
    • Forest Planning and Practices Regulation
    • Woodlot Licence Planning and Practices Regulation
    • Government Actions Regulation
  • Offence Act
  • Oil and Gas Activities Act (OGAA)
    • Environmental Protection and Management Regulation
FPPR Section 7 and WLPPR Section 9 notice area
  • Forest and Range Practices Act
    • Forest Planning and Practices Regulation
    • Woodlot Licence Planning and Practices Regulation
  • Offence Act
Old Growth Management Area
  • Land Act
  • Forest Act
  • Forest and Range Practices Act (FRPA)
    • Forest Planning and Practices Regulation
  • Oil and Gas Activities Act (OGAA)
    • Environmental Protection and Management Regulation 
Resource Review Area
  • Petroleum and Natural Gas Act
  • Oil and Gas Activities Act
PNGA s.72 reserve area
  • Petroleum and Natural Gas Act
  • Oil and Gas Activities Act
s. 15 OIC Reserve
  • Land Act
  • Offence Act
s.16 Withdrawal
  • Land Act
  • Offence Act
s. 17 Conditional Withdrawal
  • Land Act
  • Offence Act
No Registration Reserve (mineral and/or placer)
  • Mineral Tenure Act
  • Mines Act
Coal Land Reserve
  • Coal Act
  • Mines Act
Motor Vehicle or Public Access Prohibition
  • Wildlife Act
    • Motor Vehicle Prohibition Regulation
    • Public Access Prohibition Regulation
Reviewable Projects
  • Environmental Assessment Act

The following additional instruments are spatially relevant to the Southern and Northern Groups of SMC but not to the Central Group: community watersheds established under the Drinking Water Protection Act / Government Action Regulation subsection 8(1); recreation closures established under section 58 of the Forest and Range Practices Act; the Muskwa - Kechika Management Area Act, and wildlife management areas established under the Wildlife Act. There are no geographic areas subject to these instruments within the Central Group boundaries.

3.2 Laws of BC with potential to protect habitat within SMC Central Group range

3.2.1 Parks and protected areas system

British Columbia's protected areas system provides for the protection and maintenance of important natural and cultural values and outdoor recreation opportunities. The designations relevant to the Central Group area include ecological reserves, Class A provincial parks, and protected areas (Map 6).

Map 6. Ecological reserves, parks and protected areas with the Central Group
Map protected areas (see long description below)
Long description for Figure 6

This map shows the distribution of provincial parks (in green), protected areas (in blue), and ecological reserves (in purple) within the boundaries of the Central Group LPUs. Parks cover the largest area of these three categories and are found in both high and low elevation ranges. The LPU boundaries are shown in thick dark blue lines. High elevation range is outlined in grey.

3.2.2 Ecological reserves

Ecological reserves are created through the Ecological Reserve Act or the Protected Areas of British Columbia ActFootnote17. The Ecological Reserve Act reserves land within an ecological reserve from further disposition under any other Act, explicitly including the following Acts that regulate activities relevant to southern mountain caribou habitat: Coal Act, Forest Act, Land Act, Mineral Tenure Act, Mining Right of Way Act, Petroleum and Natural Gas Act.

There are three ecological reserves within the LPU boundaries of the Central Group covering a total of 1114 ha, all within the Pine River LPU (Map 6).

The Ecological Reserve Act and the Park Act both make it an offence to violate the regulations. The Ecological Reserve Regulations specifically indicate that “No person shall enter upon an ecological reserve for a purpose inconsistent with the Ecological Reserve Act, and without limiting the generality of the foregoing, no person shall prospect for minerals, cut timber, allow domesticated animals to graze, camp, light fires, trap or molest animals, build roads or trails, use motorized vehicles within an ecological reserve, or remove plants, animals or material from an ecological reserve.”

The activities likely to affect caribou or their critical habitat are prohibited in these areas and permits may only be issued for ecological scientific research or educational purposes.

Enforcement actions may be taken by enforcement officers designated under various other statutes. A spectrum of enforcement options are specified in the legislation including warnings, tickets for violations and prosecution of offences. This and other Acts are supported by the Offence Act and its Violation Ticket Administration and Fines Regulation, which provides additional details about enforcement processes. Fines associated with tickets range from $115 for failing to obey a sign to $288 for unauthorized activities.

If convicted of an offence, maximum penalties of up to $200,000, with each day the offence continues constituting a separate offence.

History of application:

In general, informal enforcement actions available to natural resource officers and park wardens in parks, protected areas, and ecological reserves include compliance promotion and warning tickets. BC's environmental violations database does not list the Ecological Reserves Act, implying that few if any formal enforcement actions are taken in these areas. A review of park use permits indicates that no research or educational use permits have been issued to date in these three ecological areas. Other authorizations have been issued that appear to overlap with ecological reserves (Annex 1). Some of these may be the result of coarse / fine scale mapping errors. In the case of forest harvesting authorizations, there was a Blanket Salvage Permit (BSP) for bark beetle management issued over the entire Blackwater Creek Ecological Reserve (292 ha). Although not common practice, this can occur in ecological reserves if salvage logging is deemed necessary to prevent the spread of the bark beetle to adjacent areas. Typically harvesting would occur in very small areas relative to the size of the BSP, and may not have occurred within the ecological reserve itself.

3.2.3 Provincial parks - Class A

Provincial parks are designated through the Protected Areas of British Columbia Act and are “dedicated to the preservation of their natural environments for the inspiration, use and enjoyment of the public.”

There are 14 Class A provincial parks within the LPU boundaries of the Central Group covering a total of 338,792 ha (11% of the total area of the three LPUs) (Map 6). There are no Class B or CFootnote18 provincial parks within the boundaries of the Central Group.

The Park Act prohibits most non-recreational activities without a permit, and states that generally, permits shall not be issued "unless necessary to preserve or maintain the recreational values of the park" (Park Act s.8(2) and 9(2)). Enforcement actions may be taken by enforcement officers designated under various other statutes.

Options for enforcement that are specified in the legislation include offence prosecution or violation tickets. Fines associated with tickets range from $115 for failing to obey a sign to $345 for illegal use of a vehicle. If convicted of an offence, maximum penalties of up to $200,000 for contravention of the regulations are possible, and up to $1,000,000 or up to a year imprisonment is possible for contravention of the Act. Directors or park officers may also order removal or repairs to structures or works, and may order people to cease or refrain from actions or conduct detrimental to the public interest.

Within parks (and protected areas to which section 33 of the Park Act applies), a drilling license, permit, lease or other right may be issued under the Petroleum and Natural Gas Act (PNGA), or permits may be issued under the Oil and Gas Activities Act - however, this may only occur if the authorization does not "permit, authorize or allow entry on or occupation, use or disturbance of the surface of land within the park" (Park Act s.33). Avoiding surface disturbance would likely prevent destruction of southern mountain caribou critical habitat. Exploration for or production of government-owned petroleum and natural gas is prohibited except in accordance with the PNGA and the Oil and Gas Activities Act. In the case of unauthorized disturbance of the surface of the land for purposes related petroleum or natural gas, in addition to other enforcement actions, the minister may issue an order to cease activities, and may order restoration and compensation for remedial or preventative actions taken by the government as a result of the contravention.

Amendments passed in 2014 (Park Act s.9.3) broaden discretion for the issuance of permits for research activities, which can include research related to environmental assessments (EAs), feasibility studies (e.g. for roads and pipelines), and to inform decisions around park boundary adjustments.

Motorized and non-motorized recreational activities and associated infrastructure are managed to varying extents in accordance with park management plans and zoning.

History of application:

Policy related to the issuance of research permits recommends the permit be denied if the research activity will result in adverse impacts, which are impacts that will impair the function or role of a protected area.

A representative sample of park use permits issued since the various parks and protected areas were established have been reviewed, and none appear to have presented a risk of caribou critical habitat destruction. Note that recreational activities including snowmobile use are still authorized in certain areas of some parks, and park use permits are not required for these activities. The province manages these activities to reduce impacts to caribou through the use of zoning, adaptive management to incorporate current information about caribou movements, and best management practices for recreational activities.  Authorizations related to various activities do overlap with provincial parks (Annex 1), likely as a result of the inclusion of broad-based tenure in the analysis.

3.2.4 Protected areas

Protected areas are created under the authority of the Environment and Land Use Act (ELUA) and must be designated by Order in Council (OIC).

There are 3 protected areas within the LPU boundaries of the Central Group covering a total of 5800 ha, all in the Narraway LPU. All three protected areas are adjacent to Class A provincial parks (Map 6).

The ELUA is flexible, so various activities can be specified as being regulated, prohibited, or allowed; typically by order, or in a management or policy statement.

In the ELUA orders that designated the three protected areas in southern mountain caribou LPUs, the provincial Cabinet specified that sections of the Park Act applies to the designated areas as if they were a Class A park. Therefore, the discussion above regarding provincial parks applies in these cases, except for the 2014 amendments to the Park Act section 9.3 regarding permits for research activities, which do not apply because the ELUA orders pre-date those amendments.

The ELUA orders also specifically allowed for the construction, use, and maintenance of roads, pipelines, and/or powerlines through the protected areas, subject to assessment of impacts and mitigation requirements. For these specified projects, the ELUA orders specified that park use permits must be issued despite sections 8, 9, and 30 of the Park Act, which would otherwise prohibit the issuance of a permit for these purposes. Occupancy and use of the land associated with existing mineral titles was also specifically allowed in one case.

History of application:

See discussion above for provincial parks, which also applies to protected areas. Authorizations related to various activities do overlap with provincial parks (Annex 1), likely as a result of the inclusion of broad-based tenure in the analysis.

3.2.5 Wildlife habitat areas and ungulate winter ranges (under FRPA)

The FRPA enables the development of regulations to provide authorization for the minister to establish WHAs and ungulate winter ranges (UWRs). The Government Actions Regulation (GAR) in turn enables the establishment, by order, of individual WHAs, UWRs and general wildlife measures (GWMs).

There are 26 wildlife habitat areas for caribou within the LPU boundaries of the Central Group covering a total of 173,290 ha, or 6% of the LPUs (Map 7)

Map 7. Wildlife habitat areas and ungulate winter ranges established under FRPA for caribou within the Central Group area
Map of Central group (see long description below)
Long description for map 7

This map shows the distribution of ungulate winter ranges (UWR) for caribou within the boundaries of the Central Group LPUs, in purple if the UWR has “conditional harvest” general wildlife measures and in green if the UWR has “no harvest” general wildlife measures. It also shows the distribution of wildlife habitat areas (WHAs), using the same labelling as for UWRs except with horizontal lines to show the WHAs. Most of the coloured areas are UWRs. UWRs and WHAs with “no harvest” general wildlife measures are in the high elevation range areas. The UWRs and WHAs shown are those designated under the Forest and Range Practices Act. The LPU boundaries are shown in thick dark blue lines. High elevation range is outlined in grey.

These WHAs and associated GWMs were all established through one GAR order that was approved in May 2008 (Peace Forest District). The order specifies that activities authorized for the purpose of subsurface resource exploration, development or production (e.g. mineral exploration) are exempted from the GWMs.

“No harvest” GWMs apply to most (143,927 ha) of the WHAs shown on Map 7.  These WHAs were established to protect high elevation caribou calving and rutting habitat. These GWMs indicate that primary forest activitiesFootnote19 will not result in: the construction of roads or trails, removal of forest cover, use of pesticides, or development of recreation sites or trails.

“Conditional harvest” GWMs apply to three of the WHAs (9-073, 9-144 and 9-145) which were established to protect connectivity/corridor habitat in the Narraway LPU. With respect to primary forest activities and access, these restrict the construction of mainline roads; require deactivation of roads following silvicultural activities; and require other roads to use existing linear corridors and provide adequate visual screening, to the extent practicable in all cases. The GWMs require coordinated planning of road development and deactivation to minimize disturbance to caribou. With respect to harvesting and silviculture, the GWMs state that primary forest activities will result in: 

  • a network of connected forest cover, which provides visual screening and snow interception, to facilitate caribou movement;
  • pre-harvest pine-leading stands being re-established as pine-leading stands.

The GWMs also indicate that primary forest activities will not result in material adverse disturbance to the productivity of key terrestrial lichen communities, will be completed in as short a timeframe as practicable, to a maximum of 5 years from initiation, and will not result in the development of recreation sites or trails.

There are currently five GAR orders establishing UWRs for caribou covering a total of 952,468 ha, with multiple units that are relevant to the Central Group of SMC, all of which came into effect between 2003 and 2009 (U-7-001 [PDF, 59.2 KB], U-7-003 [PDF, 121 KB], U-7-007 [PDF, 410 KB], U-7-009 [PDF, 144 KB], U-9-002 [PDF, 459 KB]). There is also one recently approved (May 2016) GAR order establishing UWRs for mountain goat within the Central Group (U-7-030 [PDF,1.25 MB])Footnote20.

GWMs are also specified in each GAR order. “No harvest” units (419,437 ha, Map 7) are established for high elevation winter ranges, and “conditional harvest” units (533,031 ha, Map 7) are for low elevation winter range or corridor areas. There are often broad or constrained exemptions for mineral exploration activities, and for timber harvesting and road construction approved prior to the date of the order.

GWMs in “conditional harvest” units usually constrain the construction or location of mainline roads, require the use of existing linear corridors and provision of visual screening wherever possible for secondary roads, and indicate the need for access management. GWMs for forestry activities within “conditional harvest” units are more varied, but examples include:

  • maintenance of key lichen communities, mimicking of the natural disturbance regime (harvest large patches with equivalent size connected leave areas), a maximum allowable disturbance of 33% of the forested area being less than 3 meters, retention of at least 60% of the pine­leading stands > 60 years of age and a minimum 100 year rotation (u-9-002);
  • maintaining a minimum of 20% of the forest within each unit as greater than 100 years of age in a contiguous, wind firm corridor, no more than 20% of the productive forest area of each unit being less than 3 metre green-up condition at any time, conducting forest health sanitation activities in a manner that does not result in a material adverse impact on caribou habitat (u-7-003, u-7-009)
  • reduce moose browse through appropriate silviculture practices, log approximately half the area at a time on a 100 year rotation, harvest in large patches, schedule harvesting to avoid disturbing caribou and terrestrial lichen (u-7-001)
  • create large openings with equivalent size forested leave areas, maintain at least 40% of pre-harvest terrestrial lichen cover, re-establish a forested stand that is consistent with pre-harvest species composition. (u-7-007)

FRPA indicates that it is prohibited to cut, damage, destroy or remove Crown timber, and to use, construct, maintain or deactivate a road without authorization. It is prohibited to harvest timber or build roads without an approved forest stewardship plan (FSP) in an area subject to a licence or agreement. 

When authorizations are in place, the Forest Planning and Practices Regulation (FPPR) section 69 states that authorized persons “must comply” with each applicable GWM when conducting forest practices within WHAs or UWRs. An equivalent provision exists for woodlot licence holders; section 55 of the Woodlot Licence Planning and Practices Regulation (WLPPR). Penalties depend on the specific prohibition that is contravened and enforcement can include prosecution in court (various fines up to $1,000,000 and/or up to 3 years imprisonment), compliance or remediation orders, administrative penalties (various amounts including calculations based on volume of timber subject to the contravention), or issuance of a violation ticket ($173 for most provisions relevant here). Orders that require the licensee to remediate the effects of a contravention are a particularly powerful enforcement tool. FRPA section 112 provides the authority to impose conditions on orders.

The requirement to comply with GWMs (FPPR s.69 / WLPPR s.55) only applies to “authorized persons” or “woodlot licence holders” carrying out “primary forest activities”. Some individual orders that establish GWMs also include exemptions from the application of the GWMs for specific activities such as mineral exploration.

The Minister's delegate has discretion to issue an exemption to the GWMs if compliance with the provision is not practicable (FPPR s.92 / WLPPR s.79). This discretion is not further constrained within the legislation, but FRPA section 112(1) provides authority to impose conditions with respect to exemptions.

History of application – offences, penalties and enforcement

The MFLNRO issues annual reports on C&E activities (C&E Annual Reports). However, these are not specific to WHAs/UWRs.  MFLNRO C&E staff have indicated that C&E activities within caribou WHAs/UWRs are no different than in areas outside WHAs/UWRs; e.g. there is no additional compliance monitoring.

A July 2013 Forest Practices Board (FPB) Special Investigation Report (FPB/SIR/37), which was not specific to WHAs/UWRs, found that there was a 2/3 drop in the number of inspections of forest and range practices carried out in 2011-12 compared to 2010, following a reorganization of government departments, with the newly created Ministry of Forests, Lands and Natural Resource Operations having a broader mandate and fewer officers than its predecessor the Ministry of Forests and Range. The Board was concerned that fewer inspections may result in licensees' activities not being inspected enough; particularly harvesting and road activities that pose a high risk of harm to resource values.

An October 2014 FPB Special Investigation Report (FPB/SIR/41 [PDF, 941 KB]) looked at timeliness, penalty size and transparency of administrative penalty determinations (not specific to WHAs/UWRs or to authorized operators).  The report indicates that "The Ministry of Forests, Lands and Natural Resource Operations states that, historically, about 20 per cent of detected non-compliances have been dealt with by enforcement action, which includes violation tickets, prosecutions and administrative penalties. The remaining 80 percent of non-compliances have been dealt with through warning tickets or compliance notices."

The FPB examined 146 contravention determinations under FRPA and the Wildlife Act made by MFLNRO during a five-year period between 2009 and 2014 (average of 29 per year; it was noted that in the previous five year period, there were about 96 determinations annually, and the reduction in the number of determinations corresponded with a reduction in the number of inspections.). Thirty of the determinations involved alleged contraventions related to unauthorized harvesting.

The FPB found that there were opportunities for improvement in timeliness of decision-making with respect to a determination. The Board also found that in general, penalties seem low; 79% of penalties were below $5000, and 91% of penalties were less than 10% of the maximum authorized penalty prescribed by regulation. The FPB found that economic benefit is not always removed through the application of a penalty, and that the size of the enterprise (e.g. major licensee or individual) is not a factor in determining the size of penalty.

One recent (April 2016) example of an administrative determination concerned unauthorized forest harvesting of 17.2 ha, some of which was within a caribou WHA and UWR. The alleged contravention was associated with work in an adjacent area authorized through an Occupant Licence to Cut (OLTC), which was issued to a mining company to facilitate coal exploration (access roads and drilling sites) on its coal tenure. The unauthorized work occurred in 2012 and was self-reported by the company to the Ministry of Energy and Mines (MEM) in January 2013.  The MFLNRO District Manager found that there was a contravention of FRPA section 52(1), which prohibits unauthorized cutting of Crown timber. FPPR section 69 was not applicable in this case. The three year limitation period (FRPA section 75(1)) had expired by the time the determination was made, so no penalties were levied. The company was required to pay stumpage on the timber. 

West Coast Environmental Law (WCEL) (2014) had similar concerns as the FPB in 2014 regarding MFLNRO's C&E actions, finding that the number of inspections significantly decreased between 1998 and 2012 and the ratio of inspections to enforcement action taken increased; although this was attributed to more targeted inspections as well as a decline in the size of the forest industry overall. WCEL also noted a decline in the use of "administrative monetary penalties" and an increase in "enforcement tickets", with tickets typically having a much lower financial cost to the company.

History of application – discretion, exemptions, authorizations

Guidance relating to the discretion [as per FPPR s.92(1)] to grant exemptions from the requirement to comply with the GWMs [as per FPPR s.69] if compliance with the provision “is not practicable” can be found here: FRPA General Bulletin No. 3 (June 2005) produced by the province discusses the use of the term "practicable" throughout FRPA and its regulations.

It provides the following example with respect to FPPR section 12(7): In situations where this exemption power might be used, the delegated decision maker would have to determine that it is not feasible to come up with a result or strategy that is consistent with an objective in a particular area. Rather than specifying an inconsistent result or strategy, the person is exempted from the requirement of specifying a result or strategy. The exemption need not relate to the entire plan but to a "particular area", given the circumstances or conditions applicable to that area. For that particular area, the person is exempted from specifying a result or strategy only in relation to the objective in question.

Authorizations for forest harvesting have been issued in WHAs and UWRs since they were established under FRPA for management of caribou (Annex 1). The authorizations overlap with 351 ha of ‘no harvest' WHAs and 1206 ha of ‘conditional harvest' WHAs, and with 16,537 ha of ‘no harvest' UWRs and 1,988 ha of ‘conditional harvest' UWRs. The specifics of the various authorizations have not yet been reviewed. They may apply to persons who are not subject to the GWMs, or they may reflect the exercise of discretion to grant exemptions from the GWMs. Authorizations have also been issued within these WHAs for other activities, which is reflective of the fact that FRPA does not regulate non-forestry activities.

3.2.6 Wildlife habitat areas and ungulate winter ranges (under OGAA)

The provisions of the PNGA, the Oil and Gas Activities Act (OGAA) and OGAA's Environmental Protection and Management Regulation (EPMR) apply to all oil and gas activities wherever they occur in the province, and include the harvesting of timber under a master licence to cut.

The EPMR provides the legislative authority for the Minister responsible for administering the Wildlife Act to establish WHAs and UWRs for the purposes of the EPMR. Orders to continue WHA and UWR designations previously made under the FRPA were approved on August 18, 2011.

All WHAs and UWRs with “no harvest” GWMs established under FRPA that are relevant to the Central Group LPUs (see previous section) are also subject to OGAA and the EPMR. This amounts to 143,982 ha for WHAs and 419,437 ha for UWRs. A further 29,264 ha in WHAs and 354,631 ha in UWRs are established as the purposes of the EMPR that were previously designated under FPRA with “conditional harvest” general wildlife measures (Map 8).

Map 8. OGAA UWRs and WHAs for caribou in the Central Group
Map of Central group (see long description below)
Long description for map 8

This map shows the distribution of ungulate winter ranges (UWR) for caribou within the boundaries of the Central Group LPUs, in purple if the UWR has “conditional harvest” general wildlife measures and in green if the UWR has “no harvest” general wildlife measures. It also shows the distribution of wildlife habitat areas (WHAs), using the same labelling as for UWRs except with horizontal lines to show the WHAs. Most of the coloured areas are UWRs. UWRs and WHAs with “no harvest” general wildlife measures are in the high elevation range areas. The UWRs and WHAs shown are those designated under the Oil and Gas Activities Act. The LPU boundaries are shown in thick dark blue lines. High elevation range is outlined in grey.

The OGAA requires the Oil and Gas Commission (OGC or “the Commission”) to consider “government's environmental objectives” when deciding whether or not to issue a permit to undertake oil and gas activities. The objectives are set out in the EPMR of the OGAA. The OGAA also requires persons carrying out oil and gas activities within operating areas to comply with environmental protection and management requirements established under the EPMR as well as with other regulations under OGAA and its specified enactments.

Unauthorized activities are prohibited. Under the PNGA, it is an offence to explore for or produce government-owned petroleum and natural gas except in accordance with the PNGA and OGAA. OGAA makes it an offence to carry out an oil and gas activity except in compliance with the Act, the regulations and any permit or order. Under the FRPA, it is an offence to cut, damage, destroy or remove Crown timber, and to use, construct, maintain or deactivate a road without authorization. Under the Land Act it is an offence to occupy or use Crown Land without lawful authority. It is also an offence to use Crown Land for a purpose not provided for in a disposition under that Act. Penalties depend on the specific prohibition that is contravened and the form of enforcement, which can include offence prosecution in court, administrative penalties, or orders. For example, penalties for unauthorized oil and gas activities (e.g. contraventions of OGAA section 21) could result in fines up to $1,500,000 and/or imprisonment if convicted of an offence, or administrative penalties up to $500,000. The OGC has enforcement powers related to all oil and gas activities regardless of whether the provision is under OGAA, FRPA, or the Land Act.

The EPMR section 6(a) states that operating areas are not to be located within a WHA or UWR unless an operating area will not have a material adverse effect on the ability of the wildlife habitat within the WHA/UWR to provide for the survival, within the WHA/UWR, of the wildlife species for which the WHA/UWR was established.

History of Application

The OGC's Environmental Protection and Management Guideline (EPMG) (June 2016, version 2.3) provides additional guidance on the interpretation of “material adverse effect” and indicates that WHAs and UWRs should be avoided. If an oil and gas activity is proposed within one of these areas, the applicant must demonstrate adherence to the mitigation hierarchy (avoid, minimize, mitigate, restore), provide a compelling rationale for why activities would be proposed in these areas, and provide a mitigation plan outlining how the activity will not have a material adverse effect on the wildlife. The OGC has indicated that the GWMs established under FRPA would also inform the decision making. 

Authorizations for forest harvesting have been issued in WHAs and UWRs since they were established under OGAA within the Central Group LPU boundaries (Annex 1). The authorizations overlap with 2,252 ha of ‘no harvest' WHAs and 5,612 ha of ‘conditional harvest' WHAs, and with 164,553 ha of ‘no harvest' UWRs and 11,840 ha of ‘conditional harvest' UWRs. The specifics of the various authorizations have not been reviewed for how the activity was determined not to have a material adverse effect on the wildlife. Authorizations have also been issued within these WHAs and UWRs for other activities, which is reflective of the fact that OGAA does not regulate non-oil and gas activities.

3.2.7 Old-growth management areas (OGMAs) (under FRPA or the Land Act)

Spatially-explicit OGMAs established under FRPA or the Land Act cover a total of 190,924 ha within the LPU boundaries of the Central Group (6.4%) (Map 9).

Map 9. Spatially-explicit OGMAs relevant to the Central Group in BC
Map of Central group (see long description below)
Long description for map 9

This map shows the distribution of OGMAs within the boundaries of the Central Group LPUs. The OGMAs are shown in dark green if they are designated under FRPA or the Land Act, and in green horizontal lines if they are designated under the Oil and Gas Activities Act. The OGMAs are shown as relatively small polygons distributed throughout the three LPUs, usually outside of high elevation range. The LPU boundaries are shown in thick dark blue lines. High elevation range is outlined in grey.

Government objectives, including those pertaining to OGMAs, may be established by order under the Land Act (section 93.4) or carried forward from the former Forest Practices Code of British Columbia Act (as per Forest Planning and Practices Regulation section 1(1)). 

A provincial non-spatial old growth order was passed in 2004, and there are two spatially explicit legal orders established pursuant to of the Land Act and one Forest Practices Code order that are relevant to the Central Group.

Under FRPA, it is prohibited to cut, damage, destroy or remove Crown timber, and to use, construct, maintain or deactivate a road without authorization. It is prohibited to harvest timber or build roads without an approved FSP or woodlot licence plan (WLP), as applicable, in an area subject to a licence or agreement.  FSPs and WLPs must specify intended results and strategies in relation to objectives set by government; FSP or WLP holders must ensure specified results are achieved and strategies carried out. As discussed above, the objectives set by government that must be reflected in FSPs for OGMAs are legally established by order. Non-legal OGMAs that are identified during landscape unit planning or an operational planning process are also legally enforceable if a licensee has voluntarily incorporated the objectives into their FSP.

The two orders that establish spatially explicit OGMAs under the Land Act include the simple objective to “retain all timber within OGMAs”, with exceptions for incursions of 5-10% disturbance (maximum of 40 ha). The one Forest Practices Code order indicates that cutting trees within OGMAs is limited to circumstances where it is absolutely necessary for insect or disease infestation control. It is an offence to contravene any of these prohibitions or requirements. See the discussion above for WHAs and UWRs under FRPA for more information about penalties and enforcement mechanisms.

Forestry activities undertaken by Forest Act agreement holders who are not required to prepare a FSP or WLP are not legally subject to the objectives set by government. In addition, woodlot licence holders are specifically exempted from government's objectives for old growth retention (i.e. OGMAs).

The minister must exempt a person responsible for preparing an FSP from the requirement to specify results or strategies for achieving government objectives, if the minister determines that it is not practicable for the person to do so.

History of application

A FPB investigation into the implementation of OGMAs (SIR36 [PDF, 298 MB], June 2012) “included a review of the content of approximately 20 FSPs, roughly distributed across all forest regions, to assess if the orders that apply to the area covered by the FSPs were appropriately addressed. Overall, the content of FSPs either met or exceeded the requirements of the applicable order. “The investigation found that FSPs generally include restrictions on harvesting and road construction similar to the thresholds found in orders establishing legal OGMAs.” […] “Despite provisions in FSPs to harvest or build roads in non-legal OGMAs, licensees said they tend to avoid OGMAs wherever possible and most incursions were minor (probably in the 0.5 to 1 hectare range).”

Sixty-one authorizations for forest harvesting have been issued that overlap with 1,423 ha of spatially explicit OGMAs within the Central Group LPU boundaries since they were established under FRPA or the Land Act (Annex 1). The specifics of the various authorizations have not yet been reviewed as to whether they represent activities undertaken by agreement holders who are not required to prepare a FSP or WLP or exemptions granted if the achievement of results and strategies is determined not to be practicable. Authorizations have also been issued within these OGMAs for other activities.

3.2.8 Old-growth management areas (OGMAs) (under OGAA)

Spatially-explicit OGMAs established under OGAA cover a total of 64,945 ha within the LPU boundaries of the Central Group (2.2%) (Map 9).

The EPMR (section 32) provides for the establishment of old-growth management areas relevant to oil and gas activities.

The EPMR section 7 indicates that operating areas for oil and gas are not to be located within an old-growth management area “unless it will not have a material adverse effect on the old seral stage forest representation within that area”. As a matter of policy, the OGC considers all OGMAs, not only those formally designated under OGAA. See the discussion above regarding WHAs and UWRs under OGAA for more information; all the same information applies to OGMAs.

History of application

No authorizations for oil and gas activities have been issued that overlap with spatially explicit OGMAs since they were established under OGAA within the Central Group LPU boundaries (Annex 1). Authorizations have been issued within these OGMAs for other activities. Authorizations for oil and gas activities have been issued that overlap with 15,602 ha of spatially explicit OGMAs since they were established under FRPA or the Land Act within the Central Group LPU boundaries.

3.2.9 Forest and Range Practices Act FPPR section 7 and WLPPR section 9 notices

The FRPA requires a FSP or WLP, as applicable, in an area subject to specified types of licences or agreements.  FSPs and WLPs must specify intended results and strategies in relation to objectives set by government. The objectives for wildlife are identified through the FPPR section 7 and WLPPR section 9. A person preparing a FSP or WLP is required to address the objective if the person is notified of the applicable species and indicators of the amount, distribution and attributes of the wildlife habitat applicable to the objective. Notices were provided in December 2004. The notices generally identify an overall amount of area and distribution of area to be conserved, but are otherwise aspatial. Many notices have been superseded by newer wildlife habitat areas or ungulate winter ranges, at which point the aspatial objective becomes spatialized, and the amount of the aspatial objective is reduced by the equivalent amount of the new spatially explicit WHA or UWR.

There are notices still in effect that could be relevant to the Central Group (Table 6); however, given that the forest district boundaries extend beyond the LPU boundaries and the aspatial nature of the notices, it is difficult to determine the actual extent of overlap.

Table 6. Summary of FPPR Section 7 and WLPPR Section 9 notices still in effect for northern caribou in forest districts that overlap with Central Group LPU boundaries.
Forest District (FD) / Timber Supply Area (TSA) Amount included in current Notice (Dec 2004) Total Area (ha) Amount included in current Notice (Dec 2004)Mature THLB Impact (ha) Exemption from objective Amount remaining in the notice following approval of WHAs/UWRs Total Area (ha) Amount remaining in the notice following approval of WHAs/UWRs Mature THLB Impact (ha) WHA orders and notices providing exemption
Mackenzie [FD] Not specified 10,100 - Not specified 10,100 -
Mackenzie [TSA] Not specified 1995 Partial Not specified 272 u-7-007 u-7-009
Prince George [FD] Not specified 1000 - Not specified 1000 -

As discussed in the section on OGMAs, FSP or WLP holders must ensure specified results are achieved and strategies carried out. See the discussion in the section on WHAs and UWRs under FRPA for more information about penalties and enforcement mechanisms.

The requirement to prepare FSP and to ensure the results are met and strategies carried out only applies to certain Forest Act agreement holders. FRPA s.3 specifies the types of licences and agreements for which a FSP must be prepared. By omission, other types of agreements under s.12 of the Forest Act do not require the preparation of a FSP.

The minister must exempt a person responsible for preparing an FSP from the requirement to specify results or strategies for achieving government objectives, if the minister determines that it is not practicable for the person to do so.

For woodlot licence holders, the objectives are not required to be reflected in the woodlot licence plan. The WLPPR states that the woodlot licence holder must act in a manner consistent with the objective specified in a WLPPR section 9 notice; however, failure to do so is not specified as an offence in WLPPR section 90.

For licensees responsible for preparing a FSP, the aspatial nature of the notices presents a challenge in tracking of whether the objectives are achieved amongst multiple licensees.

History of Application

Two example FSPs were reviewed. One indicated that forest operations would be consistent with the FPPR section 7 notice, but did not indicate how that would be achieved or managed.  The second indicated that the FSP agreement holders will participate with other forest tenure agreement holders to ensure no harvesting or road construction will occur on the amount of area specified in the section 7 notice. The specific results / strategies are: where the habitat attributes for caribou occur within herd boundaries, the agreement holder will conduct a caribou wildlife habitat assessment prior to harvesting of roads or cutblocks; the assessment will evaluate and develop recommendations for management of calving sites, rutting areas, connectivity, and mineral licks; forest operations will be consistent with the mountain caribou wildlife habitat assessment recommendations.

3.2.10 Resource review areas

The PNGA regulates the issuance of subsurface petroleum and natural gas tenure.  Tenure does not include authorization to conduct activities.  In order to conduct any oil and gas activity or related activity, a proponent must apply to the OGC in accordance with the OGAA.  The only oil and gas activity for which tenure is required is drilling or operating a well (other than a water source well).  In all other cases there is no direct link between subsurface tenure and oil and gas activities.

Resource Review Areas (RRAs) refer to a policy tool. The Ministry of Natural Gas Development provides notice to industry that new petroleum and natural gas tenure requests will not be accepted in the designated areas. RRAs are used regularly to indicate to industry areas in which the Ministry will not accept posting requests or issue tenure. Where RRAs are in place (Map 10), tenure will not be granted in any case.

Map 10. Resource Review Areas within the Central Group LPU boundaries
Map of resource review area (see long description below)
Long description for Figure 10

This map shows the distribution of Resource Review Areas within the boundaries of the Central Group LPUs. The Resource Review areas are shown in green. Most are within the Pine River LPU boundaries, with some in high elevation areas in the Quintette and Narraway LPUs. The LPU boundaries are shown in thick dark blue lines. High elevation range is outlined in grey.

History of Application

Since the RRAs were established, authorizations for oil and gas activities have been issued that overlap with 1,639 ha of RRAs within the Central Group LPU boundaries (Annex 1).

3.2.11 Petroleum and Natural Gas Act s.72 Withdrawal Orders

Section 72 (1) of the PNGA enables the minister, by order, to withdraw Crown reserves petroleum, natural gas, and oil-related resources from disposition. There is one Ministerial withdrawal order in effect with a very small amount of overlap with one of the Central Group LPUs (Information letters).

Under the PNGA, it is an offence to explore for or produce government-owned petroleum and natural gas except in accordance with the PNGA and associated regulations. It is also an offence under the Oil and Gas Activities Act (OGAA) to carry out unauthorized oil and gas activities. Under the PNGA and OGAA, unauthorized activities are clearly prohibited; the prohibitions are enforceable, and contraventions could be subject to significant penalties.

The only oil and gas activity for which tenure is required is drilling or operating a well, other than a water source well. In all other cases there is no direct link between subsurface tenure and oil and gas activities. Therefore, other oil and gas activities may still be authorized, so long as they are in accordance with OGAA and its regulations.

Where Crown reserves have been withdrawn from disposition under PNGA section 72(1), tenure will not be disposed until the withdrawal order is cancelled by the minister. Under section 72(2) of the PNGA, withdrawn Crown reserves may be managed, developed or disposed of in accordance to the terms and for the price approved by the Lieutenant Governor in Council, or in accordance with regulations under PNGA section 72(3).

History of Application

No information available.

3.2.12 Land Act Reserves and Withdrawals

Reserves are legal designations under sections 15, 16 or 17 of the Land Act that may be placed on Crown land as a means of preventing or restricting the disposition of the land due to an acknowledged value or concern in the public interest. There are 27 Land Act section 17 conditional withdrawal areas within the LPU boundaries of the Central Group (489,435 ha), with significant amounts designated for the purpose of recognizing caribou habitat (Map 11). There are 35 areas (29,314 ha) designated as Land Act section 16 withdrawals (map reserves) within the LPU boundaries of the Central Group, most very small; sub-purposes of areas over 5000 ha include watershed reserve and fish & wildlife management, and may be incidentally relevant to caribou habitat (Map 11). The only Land Act section 15 OIC Reserves within the LPU boundaries of the Central Group occur within the Pine River LPU. These were established as recreation or flooding reserves and have no direct or incidental relevance for caribou habitat (Map 11).

Map 11. Land Act section 15, 16 and 17 reserves within the Central Group LPU boundaries
XXXXXXXXXXX (see long description below)
Long description for Figure 11

This map shows the distribution of different types of Land Act reserves within the boundaries of the Central Group LPUs. Section 17 reserves are the most widely distributed, and are shown in green. There are a few Section 16 reserves, shown in purple. Section 15 reserves are too small to really see at this scale. The LPU boundaries are shown in thick dark blue lines. High elevation range is outlined in grey.

The Land Act makes it an offence to use Crown land without lawful authority. In areas designated under sections 15, 16, or 17, that authority will not be granted except for the specified purpose (or compatible use in the case of section 17). For the purposes of this study, only section 15, 16, and 17 reserves and withdrawals with a specified general purpose of “Environment, Conservation, and Recreation” were considered.

Applications for tenure under the Land Act may only be accepted on Crown land covered by a section 17 conditional withdrawal if the use or uses are allowed in the withdrawal notice or are compatible with the intent of the withdrawal notice. These are also referred to as designated use areas.

Section 16 withdrawals (also known as map reserves) are a temporary withdrawal of Crown land from disposition for all purposes under the Land Act except those specified. Applications for tenure are not accepted for these areas for the duration of the term. Reserves established under section 15 are established by OIC and are therefore known as OIC Reserves. They can be amended or cancelled only by another order, and dispositions are absolutely reserved during the term, which is specified in the establishing order (minimum five years).

The Land Act section 60 states that it is an offence to occupy, possess, or use Crown land without lawful authority, and to perform any excavation or filling without authorization. If convicted of an offence, a person is subject to fines up to $20,000 or imprisonment or both. Other than prosecution, contraventions of section 60 may also be subject to requirements to cease the unauthorized use and restore the land or pay for its restoration. Enforcement authorities are clear.

These designations (i.e. under section 15, 16, and 17) do not apply to activities that do not require a Land Act disposition for occupancy. This includes some oil & gas-related, mining-related, and non-commercial recreation activities. Within section 15 OIC reserves, the minister has discretion to authorize temporary licences for less than two years for a variety of activities, and to authorize construction of roads.

Within areas designated under section 15, 16, or 17, activities may be authorized so long as they are for the purpose, or compatible with the purpose in the case of section 17, for which the area was designated. In some situations this could include activities with the potential to result in destruction of critical habitat. It would be necessary to review the terms and conditions associated with each of the designated areas to assess the extent of this risk.

History of application

The Compliance and Enforcement Branch of MFLNRO investigates and enforces some issues of non-compliance with the Land Act.  Other issues of noncompliance with the Land Act are investigated and resolved by Authorization staff. 

Enforcement activities for Land Act noncompliance are initiated by complaints, inspections, and audits.  Compliance actions can range from requests or notices to comply through to prosecutions in the courts of law.  Most issues of noncompliance to the Land Act are resolved through requests or notice to comply.  These requests or notices to comply can be generated by Authorization staff. 

Compliance promotion is conducted in the form of proponent education and information sharing through Notices of Final Review at time of tenure issuance and through inspections and audits.

The terms or conditions to section 15, 16 and 17 reserves normally take the form of an “Intent Statement”.  All non-compatible activities proposed within a reserve are considered by the statutory decision-maker or Cabinet with full engagement and consultation. If a non-compatible activity is deemed necessary, the decision would require cancellation or amendment of the reserve to allow the proposed activity.

The authorizations issued under the Land Act since the various Land Act reserves within the Central Group LPU boundaries were established are shown the table below, and in Section 4.

Table 7. Authorizations issued under the Land Act within Land Act reserves with a purpose of “Environment, Conservation, and Recreation” since the reserves were established.
Activity Category Section 15
# of authorizations
Section 15
Total Area (ha) of Overlap
Section 16
# of authorizations
Section 16
Total Area (ha) of Overlap
Section 17
# of authorizations
Section 17
Total Area (ha) of Overlap
Recreation 0 0 2 1,645 2 131,016
Renewable energy 0 0 6 3,732 3 318
Other activities regulated by the Land Act 3 1 27 3,440 10 978

3.2.13 Mineral Tenure Act mineral no registration reserves

The Mineral Tenure Act enables the establishment, through regulation, of no registration reserves and conditional registration reserves, for mineral or placer claims, or both.

In areas designated as no registration reserves, free miners are prohibited from registering a mineral and/ or placer claim. In areas designated as conditional registration reserves, free miners may register a mineral and/or placer claim, but subject to conditions, generally that they must not interfere with another use of the land such as a pipeline, transmission line or gravel pit.  Since conditional reserves do not constrain activities in a way that considers caribou habitat, they will not be reviewed further in this Study.

No registration reserves for mineral claims overlap with 499,115 ha (17%) of the area of the Central Group LPUs; no registration reserves for placer claims are in effect over 444,960 ha (15%) of the area (Map 12).

Map 12. Mineral or mineral, coal and placer no registration reserves within the Central Group LPU boundaries
Map of mineral reserves (see long description below)
Long description for map 12

This map shows the distribution of No Registration Reserves (NRRs) within the boundaries of the Central Group LPUs. NRRs for coal mining are shown in grey. NRRs for mineral mining are shown in green horizontal lines. NRRs for placer mining are shown in purple. The majority of these areas are in the northeast of the Pine River LPU, where there is a lot of overlap between the NRRs for all three resources. The LPU boundaries are shown in thick dark blue lines. High elevation range is outlined in grey.

The Mineral Tenure Act makes it an offence to explore for, develop or produce minerals except in accordance with the Act and regulations. If convicted of an offence, fines of up to $25,000 or up to six months imprisonment or both are possible. The Mines Act also makes it an offence to start any work in, on, or about a mine without a permit. If convicted of an offence, fines of up to $1,000,000 or up to three years imprisonment or both are possible, as well as additional penalties if a written notice was served. There is no discretion to authorize the exploration, development, or production of minerals except in accordance with the Mineral Tenure Act and regulations.

In areas designated as no registration reserves, free miners are prohibited from registering a mineral and/ or placer claim. There is no discretion to issue leases, licences, permits or other authorizations for the exploration, development, or production of minerals on a no registration reserve if there were no existing claims in place.

The Mines Act specifies that inspectors, including the Chief Inspector of Mines, may inspect a mining activity site that is operating without a permit. An inspection report must be completed and include orders for remedial action if contraventions of the Act are noted. Follow-up orders are enabled including the taking of remedial action and suspension of work. This may be further escalated to the Supreme Court if necessary.

Titles in a no registration reserve area that were registered prior to the establishment of a reserve are unaffected by the reserve, and recorded holders of such titles may apply for permits under the Mines Act to conduct mining activity. Mines Act permits may be issued on Crown or private land in the absence of a mineral or coal title, such as for a gravel or aggregate quarry. Gravel and construction aggregate are not regulated under the Mineral Tenure Act, and may be disposed of on Crown land under the Land Act.

Note that no registration reserves are only relevant for resource specified in the establishing regulation (i.e. mineral or placer or both).

History of application

Since the various mineral no registration reserves were established, there have been 14 authorizations under the Mineral Tenure Act within the no registration reserves. These overlap with 91 ha of the Central Group LPU area (Annex 1). In placer no registration reserves, there have been 27 authorizations overlapping 117 ha.

3.2.14 Coal Act coal land reserves

The Coal Act enables the establishment, through regulation, of coal land reserves (CLR) (also known as no registration reservesFootnote21). Areas in which these are in effect are shown in Map 12 above.

The Coal Act makes it an offence to explore for, develop or produce coal on a CLR without lawful authority. The Mines Act also makes it an offence to start any work in, on, or about a mine without a permit. In areas designated as CLRs, that authority will not be granted. Coal titles may not exist in a CLR because the exploration and development of coal are rights acquired with a coal title, and the CLR prohibits those activities.  

If convicted of an offence under the Mines Act, fines of up to $1,000,000 or up to three years imprisonment or both are possible, as well as additional penalties if a written notice was served. The Mines Act specifies that inspectors, including the Chief Inspector of Mines, may inspect a mining activity site that is operating without a permit. An inspection report must be completed and include orders for remedial action if contraventions of the Act are noted. Follow-up orders are enabled including the taking of remedial action and suspension of work. This may be further escalated to the Supreme Court if necessary.

Under the Coal Act, if “recorded holders” are not compliant with the Act or an existing licence, lease, or permit, the minister may notify the recorded holder of the failure to comply. If the non-compliance is not remedied within the time specified in the notice, the Minister may order the suspension of operations, refuse to renew any license or lease, and ultimately may cancel the license or lease. These compliance provisions of the Coal Act would not be relevant within a CLR, as no licence or lease will be issued within CLRs.

History of application

The MEM is not aware of anyone exploring for coal in a coal land reserve, and has no record of any complaint against someone exploring for coal in a coal land reserve.

There have been no authorizations for coal mining issued within a CLR since the CLRs were established (Annex 1).

3.2.15 Wildlife Act motor vehicle prohibition and public access prohibition

Two regulations established under the Wildlife Act: the Motor Vehicle Prohibition Regulation (MVPR) and the Public Access Prohibition Regulation (PAPR), make it an offence to use or operate motor vehicles, or certain types of motor vehicles, in specific areas, sometimes only for specific times of year. The areas to which the prohibitions apply are set out in the regulations themselves. Spatially-explicit information is available for snowmobile closures under the MVPR (Map 13).

Map 13. MVPR closure areas (for snowmobiles) within the Central Group LPU boundaries
Map of snowmoblie closures (see long description below)
Long description for Figure 13

This map shows the distribution of areas closed to snowmobiles within the boundaries of the Central Group LPUs. The legal closures are shown in orange. There are no areas closed by agreement in this particular area; if there were any, they would be shown in pink. The majority of the closed areas are in the south of the Narraway LPU. The LPU boundaries are shown in thick dark blue lines. High elevation range is outlined in grey.

At the times and locations the prohibitions are in place, it is an offence to use or operate motor vehicles or certain types of motor vehicles (i.e. snowmobile or all-terrain vehicle). The prohibitions can be enforced by various officials, and may be prosecuted as an offence, or persons can be subject to violation tickets.  Penalties range from $115 to $230 violation tickets to a maximum $50,000 fine and/ or less than six months imprisonment for a first offence if convicted in court.

There are specific exemptions to the prohibitions that apply to specified areas. These include some commercial purposes and times of year. In addition to the specified exemptions, the Permit Regulation grants the regional manager authority to grant exemptions to the regulations, by permit. Permits may also be issued by the director, as enabled by the Wildlife Act.

History of Application

As discussed in section 2.3, annual winter enforcement flights are undertaken to promote compliance and ticket those violating the closures. 

3.2.16 Projects subject to the B.C. Environmental Assessment Act

The Environmental Assessment Act (EAA) applies essentially to major projects only. Projects become "reviewable" in one of three ways:

  • Prescribed by regulation under EAA s. 5(1): (see Reviewable Projects Regulation);
  • Designated by ministerial order under EAA s. 6(1);
  • At the request of a proponent under EAA s. 7.

Under the Reviewable Projects Regulation, the following projects are designated as reviewable (and conceivable to be applied for in southern mountain caribou range):

  • Coal, mineral, and placer mineral mines; and sand and gravel pits and construction stone and industrial mineral quarries that meet criteria laid out in Table 6 of the regulation
  • Power plants (e.g. wind, hydro, biomass) or electric transmission lines that meet criteria laid out in Table 7
  • Natural Gas Processing Plants, and Transmission Pipelines that meet criteria laid out in Table 8
  • Water Management Projects including diversion projects, and groundwater extraction projects that meet criteria laid out in Table 9
  • Tourism Resort developments that meet criteria laid out in Table 15

The issuance of an EA certificate is not sufficient in and of itself to enable a project to proceed. Permits would still be required for specific works, and the issuance of such permits would be in the context of other pieces of legislation (e.g. cutting permits, drilling permits, etc.) However, the issuance of an EA certificate is a necessary precursor to applying for those permits.  If an EA certificate is issued, it sets the major design considerations and allows the project to proceed to permitting Additional constraints can be applied by permitting agencies.

For those "reviewable projects" to which the EAA applies, it is an offence to initiate project-related works without an EA certificate, unless it has been determined that a certificate is not required. Approvals also may not be issued under other enactments for project-related works on reviewable projects, unless an EA certificate has been issued or determined not to be required. If a certificate is issued, it includes legally binding conditions. Failure to comply with the conditions is an offence under the EAA.

Incidents of non-compliance may be enforced through various administrative or judicial means, and Environmental Assessment Office (EAO)  C&E officers are able to investigate and carry out enforcement actions. C&E activities may include orders to cease activities or to carry out measures to remedy the effects of non-compliance.   The Act provides for remedies such as voluntary compliance agreements as well as for escalating penalties for certificate holders including fines up to $100,000 and/or imprisonment for less than 6 months if convicted of a first offence. Other enforcement actions and penalties include cancellation of an EA certificate or suspension of rights under it.

As indicated above, the EAA only applies to major projects, and can therefore not be considered with respect to other activities. For example, exploration activities in support of a mining or wind energy project may not meet the threshold for a reviewable project. Approval of these activities would be subject to other legislation (e.g. FRPA, Lands Act, Mines Act).

Where critical habitat is identified during the EA as potentially being affected by the project, it is likely that certificate conditions and/or the design of a given project would occur in such a way as to avoid, minimize, and/or mitigate destruction of critical habitat. The issuance and specific content of the conditions is subject to Ministerial discretion; there is no legislative requirement to avoid critical habitat destruction, or to apply any specific mitigation measures. In practice, the EA approach and methodology considers caribou, its habitat and all other potential impacted “valued components”. Certificates may be issued even if there is a finding of significant adverse environmental effects, which may or may not result in destruction of critical habitat.

Proponents may request an exemption to the requirement to obtain a certificate. This exemption may be granted if the Executive Director of the EAO considers that a project will not have significant adverse effects (SAE) (EAA s. 10(1)(b)). Critical habitat for a species at risk is not an explicit consideration in the legislation for the Executive Director. However, the exemption process will consider potential impacts to species at risk and their habitat. The lack of explicit consideration in the legislation provides for flexibility to consider a multitude of valued components and mitigations.

History of application

Certificates have been issued for projects within southern mountain caribou Central Group local population unit boundaries (Table 8), including four since the federal recovery strategy was finalized in June 2014Footnote22. The BC EAO found that, of the four most recent projects, after consideration of mitigation and monitoring plans, the two pipelines are predicted to result in SAE to caribou. Projects are listed in reverse chronological order within categories below, with very brief summaries that do not capture the depth of analysis provided in the EA process.

Table 8. Summary of Projects for which certificates have been issued within the Central Group LPU boundaries.
Project Name Date certificate issued BC EAO finding of SAE to caribou? Summary of SAE findings
Prince Rupert Gas Transmission Pipeline (PRGT) Nov 25, 2014 Yes

Finding of likely SAE included consideration of mitigation and monitoring plan, recognizing that mitigation measures are not yet proven for caribou.

PRGT would affect the Moberly/Klinse-Za, Kennedy-Siding, Scott herds (South Peace Northern Caribou (SPNC)) and the Takla herd.

WCGT would affect the Graham, Moberly, Kennedy-Siding and Scott herds  (SPNC) and Wolverine herd

Westcoast Connector Gas Transmission Pipeline (WCGT) Nov 25, 2014 Yes

Finding of likely SAE included consideration of mitigation and monitoring plan, recognizing that mitigation measures are not yet proven for caribou.

PRGT would affect the Moberly/Klinse-Za, Kennedy Siding, Scott herds (South Peace Northern Caribou) and the Takla herd.

WCGT would affect the Graham, Moberly, Kennedy Siding and Scott herds  (SPNC) and Wolverine herd

Murray River Coal Mine Oct 1, 2015 No

EAO concluded no residual or cumulative effects to caribou (Quintette herd). EAO's AR notes that during the EA there was the issue of uncertainty regarding how subsidence would impact wildlife habitat and uncertainty around the proponent's determination of no residual effects for caribou. Additionally, there was the issue of specific uncertainty regarding potential impacts on caribou:

  • Locally and regionally
  • Potential use of low elevation habitat in the Project area if high elevation habitat is lost or altered by other proposed Projects in the area
  • Potential impacts of an increase in wolf population on caribou due to the creation of early seral habitat.

In response to the uncertainty, EAO proposed a Wildlife management plan, that must be aligned with the management direction of the Peace Northern Caribou Plan

Project also requires a federal EA. On Oct 17, 2016, the federal Minister of ECCC decided that the project is likely to cause significant adverse cumulative environmental effects.  The decision must now be referred to the GiC.

Roman Coal Mine Dec 14, 2012 Yes

Finding of likely SAE on the Babcock-Quintette sub-herd, and in turn, the Quintette herd, and a related conclusion that there is a negative impact on the Treaty 8 right to hunt caribou as part of the seasonal round that has not yet been appropriately accommodated.

EAO, taking a precautionary approach, noted that the mitigation strategies as proposed by the Proponent (consistent with the draft Interim Direction) were not yet proven to be effective in BC. In addition, as the objectives of the PNCP had not yet been established by government, a mechanism to weigh the ecological and management opinions was not available.

The Ministers of MOE and MEM in their reasons for decision, disagreed with the assessment report (AR) as the Peace Northern Caribou Plan had been approved after the AR was issued (but before Ministers made their decision). The Ministers said that due to the measures in the Peace Northern Caribou Plan and the mitigation measures in the Roman certificate, the adverse effects of the Project would be offset and there would not be a significant residual effect on caribou across the Peace Northern Caribou Plan area due to the Project.

Hermann Coal Mine (expansion of Wolverine) Nov 24, 2008 (amended Nov 15, 2013 to include new caribou-related conditions) No EAO noted possibility of residual effects but considered them to be substantially reversible except for the pit walls and pit wall in the long-term, of medium magnitude, and deemed the effects to be less than significant.
Wolverine Coal Mine Jan 13, 2005 No

EAO determined that mitigation measures would prevent or reduce potential SAE, but noted uncertainty around the impact of the EB pit on caribou migration routes of the Quintette herd; and uncertainty regarding the threshold values for cumulative habitat disturbance within the caribou range resulting in a population decline.

EAO found that the Quintette herd of about 160 to 200 animals (at that time) is one of four recognized herds in the general area of the proposed mine. About 50 caribou were on Quintette Mountain; the rest were concentrated in the Wolverine and Bullmoose areas. There was insufficient information to determine nature and use of the EB pit area.

Meikle Wind Energy June 24, 2014 No

Project application indicated modifications to avoid locating infrastructure inside a low elevation ungulate winter range designated for caribou, and to avoid areas identified by West Moberly First Nation for protection of the Klinse-Za herd in a draft action plan.

EAO considered the Application and additional information provided during the Application Review, and concluded that there would be negligible effects to Northern caribou resulting from the proposed Project. No residual effects were predicted for northern caribou.

Tumbler Ridge Wind Energy March 27, 2012 No EAO determined that the probability of caribou using the proposed Project area was low, the geographic extent would be local, and the Proponent would implement a Caribou Protection Plan including adaptive management strategies, if caribou were observed frequenting the proposed Project site.
Quality Wind Project July 9, 2010 No

EAO was satisfied that the proposed Project would not likely result in significant adverse residual effects on terrestrial wildlife.

Quality Wind Project - No adverse residual effects to caribou

Thunder Mountain - Low to moderate magnitude residual effects on caribou."

Thunder Mountain Wind Dec 10, 2009 No

EAO is satisfied that the proposed Project would not likely result in significant adverse residual effects on terrestrial wildlife.

Quality Wind Project - No adverse residual effects to caribou

Thunder Mountain - Low to moderate magnitude residual effects on caribou."

Dokie Wind Energy Aug 8, 2006 No Application indicated lack of overlap between core caribou distribution and project footprint, and low suitability of the local assessment area for caribou winter foraging. Project characterized as minor contributor to overall industrial clearing in the regional assessment area, particularly compared to timber harvesting. Moberly herd slightly overlapped RSA. Low magnitude residual effects to movement patterns, and direct mortality. Minimal concern for effects on habitat availability due to lack of overlap between caribou distribution and Project footprint. Not significant.

3.3 Laws of BC that are in place to protect individuals

The Wildlife Act defines any member of the family Cervidae, which includes caribou, as “big game” and the definition of wildlife includes game species. Caribou are thus included in the definition of wildlife, and game, for the purposes of the Act.

The Wildlife Act makes it an offence to hunt, take, trap, wound, or kill wildlife; to attempt to capture wildlife; to possess wildlife; to herd or harass wildlife with a vehicle; to allow a dog to hunt or pursue wildlife; and to import, export, transport or traffic in wildlife; except as authorized under the Act and regulations.

If convicted of an offence under most of these provisions, a person could be subject to a fine up to $100,000 and/or up to 1 year imprisonment for a first conviction. For second and subsequent convictions, fines range from $2,000-$200,000 and/or up to 2 years imprisonment. Trafficking has higher penalties.

Cabinet has broad authority to pass regulations, including the Hunting Regulation and Limited Entry Hunting Regulation, which are amended regularly. The current regulations do not include authorizations for hunting of caribou within any Central Group southern mountain caribou local population unit boundaries.

The Permit Regulation provides a regional manager with the authority to issue permits that would exempt the permit holder from some of the above provisions. Permits to hunt, trap or kill wildlife during the open or closed season may be issued for: scientific purposes; educational purposes; or if necessary for the proper management of the wildlife resource. The discretion to issue permits to capture and possess live wildlife are constrained by the requirement for the regional manager to be satisfied that issuing the permit is not contrary to the proper management of wildlife resources in BC.

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