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

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4. Analysis of legislative instruments

This section identifies areas where legislative instruments with some potential to prevent destruction are or are not in place for one or more groups of activities. Information is provided on:

1. Areas for which there are no spatially-explicit legislative instruments in place that would constrain any of the relevant groups of activities
2. Areas in which some, but not all, activities are constrained by the application of legislative instruments.
3. Decision-making related to authorizing activities that is not constrained by a substantive requirement to meet threshold conservation objectives, in this case protection of caribou critical habitat.

This section examines each in as they relate to each of the activity groups described in the “Activities Likely to Result in Destruction of Critical Habitat” section. For reference, these include:

• Forest harvesting –related (including road building)
• Mining-related (including coal & mineral exploration & road / transmission line building)
• Oil & gas-related (including road building, pipelines, and forest harvesting as a precursor)
• Renewable energy-related (e.g. windfarms, independent power projects & associated roads / infrastructure)
• Recreation-related (e.g. winter motorized & non-motorized recreation, ski hill expansion, summer ORV use)

4.1 Spatially-explicit legislative instruments – any group of activities

The boundaries of the three LPUs within the Central Group in BC, as defined in the 2014 federal recovery strategy, encompass a total of 2,975,871 ha.  Within these LPUs there are 15 different types of spatially-explicit legislative instruments that could be used to constrain one or more activities such that destruction of critical habitat by that activity or activities would be avoided.  The total area covered by each instrument, as well as the area within and outside of high elevation caribou ranges is shown in Table 9.

Note: there are frequent overlaps, so sum will not add to the total area within the LPUs. Additional non-spatially explicit legislative instruments also apply in some areas.

Narraway/Pine River/Quintette area LPUs combined (Central Group) Total Area(ha): 2,975,871
High Elevation (winter or summer) range area (ha): 823,717
Non-High elevation range area (ha): 2,152,154

Map 14 shows all the legislative instruments described in Table 9 in a “cumulative” image. Those areas which are darker red have four or more different protection designations or are in an ecological reserve, provincial park or protected area.  The analysis shows that one or more legislative instruments, regardless of efficacy, are in place for almost 87% of high elevation caribou habitat and 60.3% of the remaining area within the Central Group LPUs. 

The spatial area to which none of the listed legislative instruments apply represents about 10% of the high elevation caribou habitat. The spatial area to which none of the listed legislative instruments apply represents about 44% of the area outside high elevation caribou habitat, which would be considered critical habitat by ECCC. Some of this area would not be considered caribou habitat by BC. In these areas, operators must still comply with the general provisions of FRPA, the Coal Act, OGAA, etc., and their associated regulations; major projects would also be subject to relevant environmental assessment legislation. Voluntary guidelines and professional reliance may go further in mitigating the effects of the activities on caribou.

The location and configuration of the areas where no instruments apply are relevant to a determination of which areas should be addressed first to achieve the objective of a maximum of 35% disturbance. The achievement and maintenance of the minimum of 65% undisturbed habitat depends on factors such as habitat connectivity to support the functioning of biophysical attributes within these ranges.

4.2 Spatially-explicit legislative instruments – some groups of activities

There are situations where one or more legislative instruments are in place that could partially or fully constrain some, but not all, groups of activities which have the potential to impact caribou critical habitat. A legislative instrument may be in place which could reduce or eliminate potential impacts to caribou habitat from, for instance, forestry, but there may be no mechanism / designation in place to manage potential impacts from coal mining, recreation and wind energy.  Likewise, one or more legislative instruments may constrain most activity groups at a given area of the landscape, but no instrument would constrain one activity group.

Table 10 indicates the legislative instruments that are relevant to each of the activity groups being considered by this Study, and the areas to which they do not apply.

4.3 Discretion within legislative instruments

Section 3.2 above provides a review of the legislative tools used by BC to manage land-based activities.  Table 11 below presents a high level summary of how each piece of legislation addresses each of the groupings of activities that has the potential to destroy or disturb caribou habitat, and highlights areas where discretion exists to authorize those activities in the context of the legislative instrument. See section 3.2 for more information about the constraints on that discretion, where it exists.