Upon arrival in Prince George, British Columbia, a visitor is likely to first notice its industrial developments.  The pulp mills, rail yards, and supporting industries are some of the most prominent features of the City, which make Prince George typical of many cities and towns in rural British Columbia.  Visitors will also notice the requisite ‘big box’ store developments, casino, golf courses, and chain restaurants, which make the City typical of most cities in North America.  What visitors may not notice immediately, but will come to appreciate if they stay long enough, is a healthy network of social, arts, and cultural activities.  Yet, what is least obvious is how the City arrived at its present state.  While the proximity to the Nechako and Fraser rivers suggests why the City is located where it is, the current pattern of development seems to defy many principles of good urban design.

Map 1.  Prince George located in the Regional District of Fraser-Fort George

In the early twentieth century, the few permanent residents of European ancestry were employees of the Hudson Bay Company.  During this time, the modest settlement of Fort George served as an important fur trading post.  This settlement would be permanently changed when it was discovered that the Grand Trunk Pacific Railway would be travelling through Fort George, an announcement that set off a flurry of land speculation and development in the area.  From here forward for Prince George, like other settlements of the North American West, “[n]othing could be further from the truth than the notion that Western towns originated as spontaneous crossroad hamlets that grew slowly, incrementally, and randomly, without guidance of direction.”  To the contrary, Prince George is the result of numerous efforts to guide and restrict growth.

Notwithstanding numerous planning initiatives to fulfill its destiny as B.C.’s “northern capital,” Prince George has not achieved most of its predicted growth scenarios.  This shortcoming has presented significant difficulties to direct growth and development throughout its history.

Map 2. Traditional territory of the Lheidli T’enneh (unceded)

First Townsites

The first townsite plans (Figure 1) at the confluence of the Nechako and Fraser rivers were registered in 1909/10 by a group of investors known as the Northern Development Company.  The new townsite was called South Fort George.  Nearby, a competing townsite called Central Fort George was being built by another investment group, the Natural Resources Security Company, who promoted Central Fort George as having huge development potential.  The townsites of South and Central Fort George were home to roughly 1,500 residents and thousands of temporary construction workers who worked in the region.

Figure 1.  Map of early townsites and Fort George Indian Reserve in 1910

Map of the Fort George District as it existed around 1910 (adapted from a map published by Rev. F. E. Runnalls in his book A History of Prince George).  The red circle identifies the Hudson’s Bay Company site upon which the provincial government offices were built.  The blue squares identify the competing townships of (Central) Fort George and South Fort George, as well as the Fort George Indian Reserve that eventually became the township of Prince George. (Digital map source: The Exploration Place)

All the while, the influential Grand Trunk Pacific Railway was moving ahead with its plans for another townsite.  Grand Trunk solicited the federal government for purchase of the Fort George Indian Reserve lands.  After extended rounds of negotiations, and highly questionable tactics, the dispossession of the Reserve lands to the Grand Trunk Pacific Railway was completed in 1912. Building at this third townsite commenced the following year.  Following the announcement that the train station would be located within Grand Trunk lands, the newest townsite was incorporated in 1915 as the Town of Prince George.

Early Development

When the first train arrived in 1914 there was already sufficient investment in the regional forestry industry to ensure prosperity for the area.  At the peak of speculation, the greater Fort George area boasted fourteen completed subdivision plans, equalling roughly 22,800 lots in the three separate townsites.

For the two original townsites, over two-thirds of the subdivided lots had gone undeveloped, and much of this vacant land was abandoned by its owners and reverted back to the provincial government.  Although South Fort George managed to maintain a small population, Central Fort George was eventually completely deserted.  Meanwhile, the Town of Prince George had quickly established itself as the industrial and administrative capital of Northern BC.

The War Years

During the war years from 1941-45, Prince George’s population expanded from roughly 2,000 to 3,800 people; an annual increase of 18%.  Many of the new migrants were attracted by the expanding forest industry and the increased provision of services.  However, due to wartime lumber restrictions, much of the new development was poorly constructed and without basic sanitary infrastructure.  Adding to these woes in 1942, Prince George “was to be invaded and literally taken over by one of the largest army camps in Canada,” with roughly 10,000 soldiers temporarily taking residence in the bustling town.

Gaining Control of Development

The post-war era was the start of a long period of sustained population growth for Prince George.  As illustrated in Chart 1, from 1921 to 2021, average annual growth in the City of Prince George outpaced that of a prospering British Columbia at times, although the pace of growth fluctuated wildly.  As noted below, several of the population increases were due to expansion of municipal boundaries, thus encompassing the population of rural areas.  As the City expanded both demographically and economically, so too did the challenges of managing growth, with low-density, haphazard development spreading beyond the Town of Prince George into South Fort George, the former Central Fort George, and surrounding areas.

To accommodate the influx of new residents who were arriving at an accelerating pace in the 1950s and to deal with the increasingly dilapidated and disorganised cityscape, the City recognised that some form of land use planning was required.  Subsequently, this need was addressed in several capacities, including the following:

• creation of the first zoning bylaws;
• formation of a Town Planning Commission;
• westward expansion of municipal boundaries in 1953-56; and,
• southern expansion of municipal boundaries in 1958.

Chart 1.  Population Growth and Average Annual Growth (%) in Prince George and British Columbia: 1921-2021

Note: City boundaries are not held constant. Includes population increases due to boundary expansions.

As well, in 1957, in order to gain more control over development, Prince George acquired the land rights to all undeveloped parcels within city limits from the Province, who still owned large tracts of land following the initial subdivision boom.  The effectiveness of this bold strategy is well illustrated by Desmond Parker, the City’s de facto planner from 1957-75, who reflects:

By implementing a wise policy of containment, made possible by the public ownership of land, the City has forced development into the previous lower density areas and achieved a saturation of existing services. The shortage of land and the definite policy of inhibiting premature subdivision, coupled with the rapid growth of the community, have brought about a natural renewal.

This “natural renewal” was a form of control over development.  Having gained an upper hand, the City approved three new subdivisions between 1958 and 1965:  Seymour, Spruceland, and Highland (Map 3).  These subdivisions were developed as urban infill and also eschewed the monotony of gridiron subdivision for the aesthetics of neighbourhood design.

Each new subdivision was planned to function as a self-contained neighbourhood complete with commercial and educational services within reasonable distance of all housing units.  The neighbourhood concept was such a success that, thereafter, the City required all private developers to incorporate neighbourhood-level planning into subdivision proposals.  The influence of this planning policy is evident by the College Heights neighbourhood established in the mid-1970s.

Map 3.  Planned neighbourhood subdivisions in Prince George, BC (1965)

Great Expectations

In the late 1960s, due in part to the establishment of three new pulp mills, Prince George (pop. 25,853) was Canada’s fastest growing city with an annual average population growth of 15.3%.  During this period the city completed some progressive land use planning including additional boundary expansions, the creation of a new zoning bylaw (1967), and an Official Community Plan (OCP) (1969).  However, the growth that was taking place outside city limits along the Hart Highway and North Nechako Road severely compromised on-going efforts to develop a comprehensive plan.  In 1969, the population of these so-called “rural slums” was estimated to be around 10,000.

The Regional District of Fraser-Fort George (RDFFG) was established in 1969, consisting of eight Electoral Areas (from A to H), as shown in Map 4.  The Regional District adopted its first Official Regional Plan in 1972; each Electoral Area has an OCP.  These steps helped to improve rural building and development standards.  At this time, the greater Prince George area was projected to have a population range anywhere from 325,000 to 470,000 by the year 2000.  To accommodate these projections, the Region’s Official Regional Plan supported the development of three ‘satellite towns’ directly abutting the ‘urban core’ of Prince George, thus supporting rampant subdivision development in the surrounding areas.  By 1974 the estimated population outside City limits had increased to roughly 25,000.

The Regional District’s plan for a “Greater Prince George,” ambitious even in its day, was abandoned in 1974 after the City’s newly created Planning Department proposed a very aggressive boundary extension.  The expansion would incorporate large areas beyond the “bowl” to include South Fort George, Peden Hill, Cranbrook Hill, College Heights, Beaverly, Blackburn, North Nechako, and the Hart (see Map 5).  The effect was to bring the adjacent rural populations within City limits, and more than double the City’s population to over 60,000 people.  This form of multi-municipality restructuring took place within a provincial initiative that also guided restructuring in Kamloops, Kelowna, and Nanaimo.  In Prince George, although the restructuring was mandated by the province, local politicians supported the action.

Map 4.  Regional District of Fraser-Fort George, Electoral Areas

While this strategy was initiated by the Province of British Columbia and supported by the City of Prince George and the majority of city residents, it was vehemently opposed by rural landowners and developers who (correctly) feared increased taxation rates and development regulation.  This divided support was reflected in a referendum, which saw the plans for restructuring narrowly pass by 55.3% in the vote held on November 2, 1974.  Save a few minor adjustments, the form of present day City of Prince George and Regional District of Fraser-Fort George had been established.

Map 5.  Post-restructuring Prince George, BC (1981)

Coming to Terms One of the arguments City planners were able to use was to say, ‘Well, yes, we’re reducing the development potential of these one to twenty landowners, but we’re dramatically increasing the development potential of these thousands of landowners.’  So, on balance, yes, critics of the plan were vocal and they’re investors and so on, but we also have a lot of embedded interests and people that could become redevelopment investors.   Dan Milburn (RPP MCIP), Former Manager of Long Range Planning, City of Prince George

What followed was a series of public hearings that served to intensify the conflict between the City and some members of the development industry.  Critics of the plan focused upon the liberal allocation of greenspace within the Hart area and the phased development designations that would greatly restrict rural expansion until a future date.  Despite significant efforts to incorporate public input, the City was nonetheless accused of “trying to stifle free-enterprise by forcing a community plan down residents’ throats.”  As reported in the same newspaper article, the prevailing attitude of the opposition is perhaps best illustrated by the sentiment of a local land dealer who declared in a public hearing, “We should be planning for today…not for tomorrow.”

By 1980, the City had gained control of growth in greater Prince George.  Unfortunately, the previous 40 years of growth outside of the city limits, with insufficient planning and development controls, had resulted in a very dispersed urban form outside of the bowl area.…[The] City was now responsible for providing and improving the services and amenities to these areas, and in dealing with the numerous functional problems associated with poorly coordinated and organized development.

In 1981, Prince George had a population of 67,559, which made it the second largest city in BC behind Vancouver and ahead of Victoria (population 64,379).  This height of development marked the end of the City’s era of unprecedented growth.  What followed represented a new chapter in the life of the City full of completely different challenges.

Sprawl and StagnationThis kind of thinking has been in Prince George since the 1970s and it’s never gone away.  They had these rampant growth rates and they thought this land was going to be needed.  It’s not needed at all, as far as we can tell.  We’re living in a historical relic of dramatic growth rates.  Dan Milburn (RPP MCIP), Former Manager of Long Range Planning, City of Prince George

The new City plans were clearly focussed on managing growth, with a projected population of 98,500 by 1991.  As stated in the OCP, “[T]o accommodate the projected growth, very large areas were designated for residential development and extensive tracts were shown for industrial use.” Subdivision developments in the newly incorporated areas continued with an all-but exclusive emphasis on single-family dwellings, which is a source of the ‘urban sprawl’ that we see in Prince George today.  However, while the City was sprawling, its economy was shrinking.  “It is somewhat ironic that once the City of Prince George became able to properly plan for its future growth, the province would be subject to an economic recession that would last over ten years, resulting in little or no growth” in the city.By 1981, the form and structure of the city was established as a sprawling city.  There was good planning done, but based on huge growth.  We’ve continued to allow sprawl, there’s no question.  And I’ve heard planners say that the public wants single-family residential in the standard suburban subdivisions that we have.  So the question needs to be asked of planners and the city, ‘Is it okay?’  Kerry Pateman (RPP MCIP), Former planner, City of Prince George

The City TodayI think the bar is low.  The policy in the plans could’ve been much stronger.  Each one of these has been baby steps, and unfortunately, you can’t do baby steps when you’re doing planning.  And what’s happened here is that even the policy hasn’t been guiding decisions.  Kerry Pateman (RPP MCIP), Former planner, City of Prince George

In the early 1990s, the construction of a new courthouse, civic centre, and the University of Northern British Columbia (UNBC) breathed new life into the City, as many heralded the dawn of a new era for Prince George.  There were modest gains in population and housing starts, although not close to the fever pitch of the ‘boom era’.  Meanwhile, the outdated population projections of the 1979 OCP were discarded in favour of a new plan in 1993.  The 1993 OCP was considered a significant change in the City’s approach to growth management and guided by the following projections and principles:The developers don’t care where they make their money – if it comes out of the left hand pocket or the right hand pocket.  If we can create a way to focus growth, but still point them to development opportunities where they’ll make money – hopefully even more money – that’s good, right?  You can’t have a plan that’s not economically sustainable.…The more challenging issue is how you transition from pretty much allowing anything, to a more focused, infill-type development while acknowledging there are some embedded investment interests in these lands.  some cases, it’s just the planning; but in others, the developers have contributed to actual capital works.  To simply cut people off sends a very problematic signal to the investment community, runs counter to all our planning for the last nine years, and potentially, is also an unjust enrichment – where the City has been unjustly enriched by their capital infrastructure investments.  So there’s a few legitimate arguments they’re bringing to bear.  Dan Milburn (RPP MCIP), Former Manager of Long Range Planning, City of Prince George

• a moderate growth rate (1 to 1.5%) based upon shortened projection timeframes (15 years);
• the introduction of a “potential future development” designation (F) to replace the extravagant industrial allocations contained in the 1979 OCP;
• a recognition of Prince George’s increasing reliance on a service-based economy;
• a five-year phased development designed to increase infill development, specifically focused upon multi-family residential.

In addition, the 1993 OCP espoused tenets of winter city infrastructure and aesthetics, healthy communities, and sustainability.  These ideals were promoted even further in the 2001 OCP, whose vision statement expanded upon ideals of environmental stewardship, social responsibility, economic diversity, and public participation.  Perhaps more tangibly, the 2001 OCP formally recognised growth management as a planning priority, dedicating an entire chapter to principles and policies intended to achieve a vision of “concentrated growth.”  One such policy involved the creation of a long-term Urban Development Boundary, shown in Map 5, that spatially delineated the maximum allowable extent for future development.  Unfortunately, hindsight has suggested that the seemingly progressive policies contained within in the 2001 OCP have “not prevented any development that wanted to happen.”

Map 5.  Urban Development Boundary for Prince George, BC

The Prince George of the early twenty-first century is focussed on economic development and downtown revitalisation.  Economic development has been moving forward in the face of the long-term effects of the Mountain Pine Beetle epidemic, the crisis of the global financial system, the collapse of the U.S. housing market, and COVID.  Tapping into the global transportation system is the catalyst for airport expansion and its related developments, including construction of the boundary road and industrial development.

As for downtown revitalisation, recent plans and public consultations have added to on-going efThere’s always the belief that you’re going to continue to grow.  And, as soon as the City enters into a discussion about developing private land, there’s a belief by the developer that the City has accepted that the land will be developed.  There’s so much perceived political commitment to landowners, that they have some sort of right, that it’s going to take a really strong city counsellor, or planner, to turn that around and say, ‘Sorry, you will not get to develop.’  we haven’t grown in population, it doesn’t matter how many community plans we bring in that say ‘We’ve got a 1.5%, 3%, 0.25% growth rate.’  Unless you’re willing to make some strict statements, you’re not going to get a new form of community.  Kerry Pateman (RPP MCIP), Former planner, City of Prince Georgeforts to improve the City as a whole.  Principles of Smart Growth and new urbanism have been incorporated into visions of what a vibrant Prince George might look like.  In 2015 the City celebrated its 100^th anniversary.  It also hosted the Canada Winter Games the same year.  However, although never short of ideas for future development, the City of Prince George of today remains bound to its reality of low growth.

Over one hundred years ago, in 1913, the Grand Trunk Pacific Railway Company announced it would be locating an important divisional point along its transcontinental railway in a swampy townsite colloquially known as Squatterville (Figure 1).  After just one year, the surveyed site was transformed into a bustling town, complete with medical, educational, and financial services, and numerous business establishments.  The government, private land companies, and residents promoted the area vigorously, as demonstrated by the popular slogan, “5000 population by 1915.”  While the village managed to attract only 700 residents by incorporation in 1921, by most accounts the town was flourishing.  Squatterville would eventually become the idyllic mountain town known as Smithers, located in the Bulkley Valley of the western central interior of British Columbia (Map 1).

Figure 1.  Early settler development, Smithers, BC, 1915

Map 1.  Bulkley Valley, British Columbia.

The expansion of the railway through the Bulkley Valley was part of British Columbia’s first era of resource policy that aimed to develop the resources of northern BC’s Crown lands.  Smithers and the rest of the Bulkley Valley eventually developed through three eras of provincial resource policy, each of which is described as part of this case.  After discussing the economic development of the region’s natural resources, this case highlights four recent planning initiatives undertaken as responses to its historical pattern of resource development.  These recent initiatives include localised resource planning, planning for local economic development, access planning, and bioregional planning.

Traditional Territory of the Wet’suwet’en

The Town of Smithers was built on lands within the unceded traditional territory of the Wetʼsuwetʼen (yintah).  Map 2 shows the traditional territory of the Wet’suwet’en and areas of each clan.

The peoples of the Wet’suwet’en are the original inhabitants of the Bulkley Valley.  Wetʼsuwetʼen means “people of the Wa Dzun Kwuh River” (Morris and Bulkley rivers).  They have occupied 22,000 km² of traditional territory in north central interior BC since time immemorial.  First contact with European fur traders is estimated to have occurred sometime in the early nineteenth century.

The Wet’suwet’en employ a hereditary governance system to guide land management on their traditional territories.  This traditional governance system is based on the following five clans, which comprise thirteen house groups:

• Gilseyhu (Big Frog Clan)
• Laksilyu (Small Frog Clan)
• Tsayu (Beaver Clan)
• Laksamshu (Fireweed and Owl Clan)
• Gitdumden (Wolf and Bear Clan).

The Hereditary Chief of each house is granted the responsibility for sustaining a specific tract of house territory, based upon matrilineal inheritance of the land.  The Wet’suwet’en Hereditary Chiefs are also the governing authority for the Office of the Wet’suwet’en, the central agency that provides services for the entirety of the Nation, including land and resource management.

Map 2.  Traditional territory of the Wet’suwet’en and areas of each Clan

Six First Nations, established by and operating under the Indian Act, govern Reserve lands within the traditional territory.  The six nations are Witset First Nation, Hagwilget Village Council, Nee Tahi Buhn Band, Skin Tyee Nation, Ts’il Kaz Koh, and Wet’suwet’en First Nation.

Early Entrepreneurs of the New Economy

The early settler economy of the Bulkley Valley can be described as entrepreneurial.  An entrepreneurial economy features “locally based entrepreneurs (miners, fishers, or loggers), small-scale operations, employees who may become entrepreneurs, strong local linkages, and commitment to local development.”  The early period of settlement was particularly prosperous for the mining industry, with widespread exploration being conducted throughout the valley.  While the most lucrative deposits were invariably financed by American companies, smaller-scale exploration activities allowed local prospectors to develop deposits that were deemed unprofitable at a larger scale.

While subsistence farming was present on the landscape prior to the arrival of the railway, the allocation of 9,700 ha of agricultural lands as “settlement area” helped to transform local agriculture into a burgeoning resource industry, with valley residents soon shipping upwards of 1,000 tons of high quality grain and forage crops on an annual basis to the newly constructed grain elevator in Prince Rupert.  Many of these farmers supplemented their incomes by harvesting timber on their lands for use as railway ties, another mainstay of the Bulkley Valley’s early economy.  By mid-decade there were hundreds of independent sawmill operations whose raw products were often purchased, processed, and shipped by local buyers in the Smithers area.

In addition to the early development of mining, forestry, and agriculture in the Valley, Smithers was selected as one of several sites for the installation of military airstrips.  These activities, in combination with the area’s burgeoning retail and hospitality sectors, made Smithers an obvious choice for government and social services that served the region.

Overall, despite growth falling well short of most expectations, the entrepreneurial economy helped valley residents shoulder its early burdens through “innovative, self-directed change,” which helped lay a foundation for greater diversification.

The W.A.C. Bennett Era:  “Roads to Resources” (1952-1972)

By the middle of the twentieth century, the entrepreneurial economy of BC’s hinterlands was showing its limits.  Although demand from national and international markets increased, the resource sectors in BC were unable to respond because they “lacked scale, secondary, and support industries, and contributed relatively little to provincial coffers.”  The situation started to change following the election of W.A.C. Bennett’s Social Credit party in 1952.  In conjunction with similar changes at the national level, the new provincial government initiated a comprehensive strategy for “scaling up” economic expansion that focussed on two goals:

province building, by aggressively opening up BC’s hinterland resource base to multi-national corporations (MNCs); and

community building, through active investment into resource hinterlands so as to ensure “social and economic returns long into the future.

As described by Young and Matthews, the Bennett government employed several strategies to achieve these goals, deftly balancing laissez-faire economics with interventionist policy to usher in an era of unprecedented growth. Each one of these strategies affected the Bulkley Valley.

First, the Province opened the central, northwest, and northeast regions to industrial resource development by investing heavily in transportation infrastructure throughout the hinterlands.  For the Bulkley Valley, this investment in infrastructure resulted in the conversion of the old military airport in Smithers into a regional airport, as well as the construction of a highway extension connecting the Valley to Prince Rupert.  Second, the government expressly encouraged consolidation of forestry operations.  For example, by prioritising long-term leases when granting forest tenure on Crown lands, the government policies favoured larger firms that were better positioned to take advantage of these leases.  As a result, many of the independent operators throughout the Valley either failed to have their permits renewed or had their timber quota purchased by larger companies.

The negative effect of consolidating forestry operations was somewhat softened by a package of policies that linked economic growth and social development.  These included (1) appurtenancy, whereby logging and milling operations must occur within the same region; (2) utilisation requirements, which ensured a variety of tree species be harvested; and (3) minimum annual harvests, which aimed at providing rural areas with an economic base independent of market conditions.  Collectively, these policies aimed to capture and retain some benefits of the hinterlands within the hinterlands.

The dual mandate of linking economic growth with social development is most evident in legislative amendments that were collectively known as the “Instant Towns Act.”  These amendments allowed corporations to pre–emptively purchase and incorporate remote tracts of land for the purpose of installing “planned communities” for resource industry workers. Kitimat, Chetwynd, Fraser Lake, Mackenzie, and Tumbler Ridge are all examples of this policy.

Undoubtedly, the Bennett government was successful at achieving its goal of economic expansion through improved access to resource hinterlands.  From 1940-75, provincial employment in the forestry industry tripled while employment in the mining industry doubled.  In Smithers, residents “experience[d] a period of growth not seen since the original town site construction.”  These achievements were largely abetted by a post-war population boom occurring throughout the province (Chart 1), as well as across the nation and the United States.

Despite the many economic benefits, resource policy during this period was not without criticism.  It was suggested that the Bennett administration’s insistence on prioritising unprocessed commodity goods severely undermined rural economic diversification, a feature that persists to this day.   Furthermore, this era was marred by a flagrant disregard of non-market values, and in particular, of Indigenous rights and environmental interests.  This indifference is perhaps best illustrated by the 1963-68 construction of the W.A.C. Bennett Dam, an enormous hydroelectric power station designed to provide affordable electricity to BC residents and, in particular, the Greater Vancouver area.  The resulting Williston Reservoir, now the largest water body in BC, had, and continues to have, a traumatising impact on the Indigenous peoples of the Peace and Finlay River Valleys.  As part of the Province’s relocation effort, entire Indigenous villages were set ablaze while corpses were brusquely exhumed and dumped into mass graves.  As described in a 2007 report:

…[T]he [Bennett] dam flooded not only a 168 acre reserve but [also] 640 square miles of productive Tse Keh Nay traditional territory. The old settlement of Fort Grahame ceased to be. Villages, sacred sites, hunting grounds, and trap lines were flooded and it was the end of hunting, fishing, trapping, and life as they knew it.

After the reservoir was filled, it is not known how much wildlife drowned during the spring flooding, though estimated losses are substantial.

The Post-Bennett Era:  Downloading and Deregulation (1972-2010)

The coalition of government, multi-national corporations, and labour unions proved a robust partnership during the Bennett era that fostered the dramatic growth in natural resource extraction.  However, by the mid-1970s, several factors forged a new era of resource policy.  These factors included a provincial recession, a contentious US-Canada softwood lumber debate, increasing globalisation of world commodity markets, and pressure from various opposition/advocacy groups.

The post-Bennett era of resource policy continued to promote reliance on northern BC as a “resource bank” to support industrial and technological growth in core metropolitan regions.  It can also be described as an era of downloading and deregulation.  If the Bennett “model for development involved the hand-in-hand expansion of rural industry and community, the foremost aim of the…[new] strategy is to disaggregate these.”  In the pursuit of flexible modes of production, resource industries were increasingly relieved of their corporate social responsibilities, specifically those relating to social development.  Thus, this era may be described as a “plantation model,” where resource exploitation is

…by foreign-owned [corporations], capital intensive, and while labor is well paid (in relation to local standards), job tasks are highly specialized and designed to extract a resource for use in the parent company’s operations elsewhere.  The business linkages of the plantation model (value-added, services, equipment, profit flows) are primarily international rather than local….

The general direction of the post-Bennett era policy can be described using three guiding principles: 

• the minimisation or removal of market and regulatory constraints for resource industries;
• a shift from strategic corporate investment towards promotion of municipal entrepreneurship in resource peripheries; and,
• a centralisation of provincial administrative duties.

By 2003, a new era of provincial policies for Crown lands was fully formed.  The Forestry Revitalization Plan (2003) abolished the appurtenance policies that were designed to link extractive industries with regional economies, ostensibly for serving as disincentives to forestry operations.  The Forest and Range Practices Act instituted “results-based” objectives that allowed industry to develop forest management plans and practices without public oversight, thereby decreasing regulation pertaining to environmental values.  Also, whereas provincial regulators were previously granted exclusive authority for administering forest tenure, forestry operators were now able to subdivide, trade, or transfer lease rights without ministerial approval.  The BC Heartland Economic Strategy introduced legislation to streamline administration and stimulate investment in mining.  This legislation provided mineral prospectors with unobstructed right of entry to 85% of the provincial land base for exploratory activities.  As Premier Campbell stated, the desired effect of this strategy was to “open up the heartland of our province” and “to make sure the [rural and northern] communities that built this province share fully in the opportunities and prosperity in British Columbia’s future.”

This era of Crown land planning had several unintended consequences for the Bulkley Valley.  Corporate investment shifted out of the hinterlands to larger urban centres, resulting in many layoffs and mill closures throughout northern BC.  The downsizing of ministerial responsibility eliminated several service offices throughout the hinterland, including the Forest Service’s regional headquarters office in Smithers.  To compensate for this withdrawal, rural municipalities were increasingly encouraged to apply for government funding framed as “community development initiatives.”  Examples of these initiatives included Northern Development Initiative Trust, Community Forest Programs, and Rural Development Initiative.

Land Use Planning in the Bulkley Valley

Land use planning in the Bulkley Valley has been described as “a rough quiltwork; sometimes there are comfy layers upon layers and sometimes there are disturbing gaps.”  This quiltwork is due to the multitude of government agencies asserting jurisdiction throughout the valley overlaid by Indigenous rights and titles.  This quiltwork includes the following:

• First Nations;
  
• Office of the Wet’suwet’en and Gitxsan Chiefs’ Office;
• Ministry of Forests, a provincial agency charged with developing new plans for the management of Crown land and natural resources as well as the maintenance of BC’s existing land use planning legacy;
• Ministry of Transportation and Infrastructure (MoTI), which, among other things, is responsible for rural subdivision approvals;
• Several municipal governments; and
• The Regional District of Bulkley-Nechako and Regional District of Kitimat-Stikine, which are responsible for statutory plans and zoning, and administer private land holdings in unincorporated areas.

In addition, private tenure holders (forestry, mining, recreation) are responsible for developing plans at a variety of spatial scales which may or may not require public participation for plan approval. Finally, there exists a multitude of non-government organisations that directly and indirectly contribute to the planning dialogue occurring throughout the Valley.

Map 3 illustrates an example of three overlapping jurisdictions.  These include the traditional territory of the Wet’suwet’en, the geo-political boundary of the Regional District of Bulkley-Nechako, and the boundary of the provincial Bulkley Land and Resource Management Plan (Bulkley LRMP).

Map 3. Overlapping jurisdictions

The difficulty of overlapping jurisdictions is described in Box 1.  This text is an excerpt from the introduction of the government publication A Practical Guide to Effective Coordination of Resource Tenures, which helps readers understand how and why multiple tenures can exist in the same land base, and to help people take steps to avoid disputes that can arise under these circumstances.  These steps include recognising a balance of responsibility among all tenure holders while also understanding the limitations of the tenures.  Learning about the relevant legislation and regulations is essential.

Among these overlapping jurisdictions, the potential for conflict is significant and real.  Regional-scale development of provincial and national interests do not always align with local interests, and conflicts over pipelines have brought Indigenous rights and title to national attention.  A series of critically important court decisions have recognised not only Indigenous rights and title but have also worked toward establishing legal obligations for prior and informed consent through meaningful consultation.

It is amidst the “quiltwork” of land use planning policies with which we describe planning initiatives aiming to assert greater influence over Crown land use decisions in the Bulkley Valley.  At this local scale, land use conflicts can be especially pronounced in the “interface” zone–the ill-defined transition zone of Crown land surrounding municipalities.  Some of the present concerns in the Bulkley Valley that are related to these interface lands reflect the interests of resource towns and incorporate a broader range of resource values (recreation, aesthetic, spiritual, etc.) into management practices.  he Office of the Wet’suwet’en and residents of the Bulkley Valley are among those striving to assert greater local control over Crown lands.  In particular, the Wet’suwet’en continue to assert their traditional title and rights over Crown land.  As well, the Bulkley Valley Community Resources Board (BVCRB) helped create the Bulkley LRMP.

Indigenous rights and title

McCreary’s report on the “shared histories” of Witsuwït’en-settler relations describes a historical process of appropriation and exclusion in the Bulkley Valley. McCreary describes the following conditions of colonial displacement:

If some Witsuwït’en families occupied the Smithers area prior to settlement, others came to Smithers because of colonial policies.  While provincial land policies created opportunities for settlers to claim the land, it limited First Nations people who were both denied title and refused the right to claim land like the settlers.  Instead, First Nations space was bounded to a set of small reserves.  While numerous Witsuwït’en families sought to homestead land, they struggled to achieve legal recognition by settler authorities.  Many families were forced from their homesteads. Some moved to newly created reserves while others came to town poor and dispossessed.

To counter oppression and dispossession, the Wet’suwet’en have taken an assertive approach towards improving local control over resource decisions through a variety of means, including litigation, planning, and grassroots action.  Perhaps most significantly, the Wet’suwet’en and Gitxsan First Nations won a landmark case in the Supreme Court of Canada, known as the Delgamuukw decision, which established oral history as evidentiary proof of Indigenous title and rights.  Moreover, the ruling provided a broader interpretation of asserted rights that defines rights in relation to “all things pre-contact.”

The precedent established by Delgamuukw was instrumental in the Office of the Wet’suwet’en’s opposition to a controversial coal-bed methane proposal near Telkwa in 2006.  Wet’suwet’en Hereditary Chiefs assumed a leadership role in a valley-wide grassroots campaign to obstruct the unwanted development, most visibly through a press conference at Norwest Corporation’s headquarters in Calgary, AB, as well as a well-attended ‘Rally for the Valley’ protest in Smithers.  Following their successes in the Bulkley Valley, the Wet’suwet’en Hereditary Chiefs passed a First Nations Summit resolution that called for a 10-year moratorium on all coal-bed methane development within BC.

The Office of the Wet’suwet’en was also the chief agency responsible for developing the Wet’suwet’en Territorial Stewardship Plan, a “deci­sion-making tool based on the vision of the Hereditary Chiefs and clan mem­bership…designed to develop a comprehensive spatially linked database of Wet’suwet’en cultural and ecological information and values at the House territory level.”  As Rick Budhwa explains, the plan captures and translates Wet’suwet’en oral history, and other media of information transfer, into a GIS database that aggregates data into a “significance scale” of low, moderate, or high value. The specific criteria for determining significance are unique to each house territory.  While limited financial resources had not allowed for input of ecological data, cultural values embedded in the plan were used for archaeological assessments conducted on Wet’suwet’en territory and informed the Morice River Management Plan.  The Wet’suwet’en circumvented government agencies and offered the plan directly to resource industries, allowing for (1) earlier consultation with the Wet’suwet’en in development assessments, and (2) culturally-sensitive regulation of Wet’suwet’en lands.  Moreover, as Budhwa explains, joint consultation agreements between the Wet’suwet’en and local firms created opportunities for economic development and capacity building with each investigation.

The on-going conflict over the Coastal GasLink Pipeline, which is designed to cross 190 kilometres of the Wetʼsuwetʼen territory, has highlighted the critical need to understand relations among band councils, hereditary chiefs, and different levels of Canadian government. 

In February, 2020, the Office of the Wet’suwet’en and the governments of Canada and British Columbia signed a Memorandum of Understanding (MOU) that affirmed the following:

• that Wet’suwet’en rights and title are held by the Wet’suwet’en Houses under their system of governance (Anuk Nu’at’en); and
• that Canada and BC recognise Wet’suwet’en title and rights throughout the yintah.

Work to implement the MOU continues among all three governments.

Integrated resource management

Throughout the post-war era, the BC ministry responsible for forests exercised unparalleled authority in managing forestry practices over 94% of the provincial landmass, while also determining the appropriate level of public involvement in planning.  Meanwhile, area residents became increasingly vocal about their dissatisfaction with the lack of public input.  In the Bulkley Valley, local unrest came to a head in 1990 when the Bulkley Forest Service announced that it would be developing a 20-year Forest Lands Management Plan for the Bulkley Timber Supply Area.  Fearing that such a plan would be completed without meaningful public input, Valley residents sought to reclaim their forests.  The first step was to form a regional steering committee to deal with the Forest Service office.

With the aid of a facilitator, members of the steering committee and the Forest Service negotiated the terms for public involvement during the planning process.  The most important element of these terms was an agreement to form the Bulkley Valley Community Resources Board (BVCRB).  Open selection of BVCRB members was based upon a candidate’s qualifications in representing one of 16 perspectives (e.g., “values timber production above other uses,” “values the maintenance of large tracts of wilderness”).  This selection process was said to increase representativeness while avoiding the adversarial interactions sometimes fostered by sectoral or interest-group representation.

The establishment of the BVCRB loosely coincided with the inauguration of a new provincial government, whose election promises included the development of a province-wide, comprehensive land use planning process that would incorporate explicit requirements for public participation.  This provincial resource planning policy direction was consistent with the sentiments of many Bulkley Valley residents who believed that “when it comes time to make decisions…everyone should have the right to be an expert.  Value judgments should be made by those representing the community perspective, not a technical agency.”

Through various outreach campaigns, the BVCRB generated significant public support from Bulkley Valley residents, forcing ministerial agencies to surrender considerable influence throughout the process.  Most importantly, the BVCRB became the primary agency responsible for drafting the Bulkley LRMP using a consensus-based process for making decisions.  An Interagency Planning Team (IPT), composed of government representatives, was organised to work alongside the BVCRB in providing technical and administrative support.  The BVCRB and the IPT were divided into subcommittees in order to develop four distinct land use management scenarios for public review.  Attendees of the scenario workshops were asked to identify particular components of each scenario that satisfied their particular land use vision for the Bulkley Timber Supply Area.  Based on this information, the BVCRB was tasked with negotiating consensus on management direction for each landscape unit, eventually culminating in the draft Bulkley LRMP.  The document was presented to the IPT, the public, and the provincial government, who eventually ratified the plan with only minor revisions.

Since approval of the Bulkley LRMP in 1998, the BVCRB has maintained an active role in implementing, monitoring, and amending the plan, while also devoting resources to other management projects, including the 2005 Bulkley Valley Sustainable Resource Management Plan (SRMP).  While government enthusiasm for LRMPs waned over time, the BVCRB remains an important agency for ensuring land use decisions made in the Bulkley Valley adhere to objectives established in the Bulkley LRMP.  By promoting and adhering to principles of transparency, accountability, representativeness, and consensus, organisers were able to acquire sufficient public support and to transform this support into decision-making power at various planning tables.

Recreational access planning

The need to co-ordinate access to Crown land for recreational purposes is a long-standing issue in the Bulkley Valley.  There are currently around 400,000 to 550,000 km of resource roads in BC and a seemingly unknowable number of backcountry paths and trails, which exist with little regulatory oversight and no comprehensive inventory concerning their number, location, and status.  In areas of high recreational value, such as the Bulkley Valley, this lack of regulatory oversight may compromise opportunities to promote recreational tourism, encourage land use conflict between resource users (e.g., motorised versus non-motorised recreation), and lead to increased environmental degradation and habitat fragmentation.

During the creation of the Bulkley LRMP, the establishment of a Recreational Access Management Plan (RAMP) was a chief priority for the planning table.  The negotiations were said to be weighed heavily in favour of motorised users, since ATVers and snowmobilers may directly impede non-motorised activities but are relatively unaffected by skiing, hiking, etc.  Notwithstanding such differences, consensus was achieved on zoning designations (e.g., summer or winter, motorised or non-motorised) for the majority of backcountry destinations.  However, a lack of a dispute resolution protocol led to three highly contested backcountry areas being designated as “unresolved.”  Since the adoption of the Bulkley LRMP, user conflicts in these areas have resulted in five formal complaints to the Forest Practices Board.  Through its responses, the Forest Practices Board has continuously advocated for a completed recreational access management plan in the Bulkley Valley.

In the post-Bennett era, government funding and staff resources for projects such as the Bulkley Valley RAMP are almost non-existent.  Thus, it is only through the perseverance of concerned citizens that the RAMP was completed. Informal agreements resolved disputes in two of the three contested areas; although, predictably, enforcement continues to be an issue. In the absence of an access plan, provincial authorities have relied almost exclusively upon voluntary compliance.  And problems continue to exist, even in areas with designated zoning.  As a result of the continued efforts of Valley residents, the BC government hired a consultant to draft a process proposal for establishing consensus on summer and winter use access plans.   In 2013, the BVCRB adopted a Summer Recreation Access Management Plan.  No winter plan has been developed.

Map 1. Seymour Ridge Access Road – initial proposal

Purpose:  Transportation/Roadway

Location:  Hudson Bay Mountain Road, Smithers

Area:  1.0 hectare

BCGS Mapsheet:  93L075

Legal Description:  Unreserved right of way over unsurveyed and in the vicinity of Hudson Bay Mountain, Range 5, Coast District, containing 1.0 hectares, more or less.

Map 2. Seymour Ridge Access Road – revised

INTEGRATED LAND MANAGEMENT BUREAU

Reason for Decision

Application by Elmore Contracting Ltd. for a Temporary Permit for Driveway Construction (ILMB File 6405671 – Reason for Decision)

Decision Rationale

This document provides an accounting of the factors I have considered and the rationale I have employed as delegated statutory decision maker in making my decision, under Section 11 of the Land Act, on the application by Elmore Contracting Ltd. (Conan and Kathy Petursson) for a driveway. These factors have all been considered, as described in this document, prior to my decision of March 2, 2010.

Conan and Kathy Petursson, as individuals and as principles in Elmore Contracting Ltd. (herein referred to as the applicants) own Lots 6, 7 and 8 of District Lot 2518, Range 5 Coast District (the properties). The application relevant to this decision was submitted to the Integrated Land Management Bureau (ILMB) in June 2008. The application was for construction of a driveway to access the upper bench of the properties. The properties are fronted by the Hudson Bay Mountain Road at the toe of the slope. Geotechnical stability issues on the lower properties preclude the applicants’ ability to construct a residence and associated access from the Hudson Bay Mountain Road.

Background

The proposed driveway is located within the area of the Wetzin’Kwa Community Forest Agreement, awarded to the Wetzin’Kwa Community Forest Corporation (WCFC) in 2007. WCFC has the exclusive right to harvest timber within their Agreement area. The mission statement of the WCFC is to “manage a profitable community forest tenure while providing good forest management stewardship that will sustain forest resource values for future generations”. Within WCFC’s tenure is an area designated in the Bulkley Land & Resource Management Plan (LRMP) as the Smithers Community Forest Special Management Zone 2 (SMZ2). The management emphasis for this zone is to provide community recreation and education in a demonstration forest. The Smithers Community Forest SMZ2 contains a network of recreation trails used for Nordic skiing, hiking and public education. The driveway crosses the Seymour Ridge Trail and three additional trails that connect to it.

In addition to the Smithers Community Forest SMZ2, the driveway is within a Core Ecosystem of the Bulkley LRMP and Bulkley Valley Sustainable Resource Management Plan (BVSRMP). The objectives for core ecosystems were established as Objectives Set by Government in September, 2006. The purpose of the core ecosystems is to provide a representative cross-section of naturally occurring ecosystems, to maintain biodiversity by providing interior forest conditions, and to maintain biodiversity by retaining representative examples of rare and endangered plant communities in core ecosystems.

Decision

In making my decision, I have weighed the complexity of the social, environmental and economic factors associated with the application. In doing so, I have considered the file history, relevant land use planning direction including objectives set by Government resulting from the Bulkley LRMP, any information or comment provided by referral agencies, the public and First Nations, and the needs of the applicant. On March 2, 2010 the application for a driveway to access the properties in question was approved under Section 11 of the Land Act. This tenure became effective on March 5, 2010. As part of the tenure approval, the following conditions apply:

The driveway will be built to the minimum level required for residential & occasional heavier truck traffic (ie to get building materials to the site). It will not be built to industrial standards.

Running width to be kept to a minimum (3-4 metres) except on curves, switchbacks and turnouts where a wider running width will be required.

Clearing width to be kept to the bare minimum to allow for driveway construction and ditch integrity (1-3 metres either side of road prism where possible)

Access along the driveway will not be restricted, except as required to allow for subgrade set-up.

Signage will be installed prior to construction informing the public of the construction and closing the trails to use within a safe distance. Placement of the signs will be determined jointly with the District Recreation Officer, Ministry of Tourism Culture & the Arts.

The Integrated Land Management Bureau and Ministry of Tourism Culture & the Arts will be provided with a minimum of one week’s notice prior to commencement of driveway construction.

Barriers and filters will be used to deter motorized use of the hiking trails.

Factors Relevant to Decision

Precedence of the Current and Past Applications

Three similar, but different, applications have been previously submitted to access the same properties. Two were submitted in 1994 and 1995 and one by the current applicants in 2005. All of these applications were disallowed. The decision to disallow the 1994 application was made based on the assumption that there was existing access from the Hudson Bay Mountain Road and on the recommendation of the Smithers Community Forest Steering Committee that the driveway could potentially impact future recreational opportunities. In addition, concerns were raised by Ministry of Environment regarding the importance of the open slope areas for wildlife habitat. Subsequent to the 1994 disallowance, the applicant at the time was advised by the Ministry of Transportation that due to slope instability and sight distance limitations it was not possible to construct a driveway or residential infrastructure using access from the Hudson Bay Mountain Road. The same applicant reapplied in 1995. Referral responses covered the same set of issues as that received for the first application. The application was again disallowed on the recommendation of the Smithers Community Forest Steering Committee that the driveway could potentially impact future recreational opportunities., No discussion occurred on how the slope stability issues were considered in the decision.

In the case of the 2005 application, the Smithers Community Forest Steering Committee (SCFSC) recommended disallowance due to impacts to values and use of the community forest, specifically impacts to the trail, wildlife habitat, and sensitive ecosystems. In their response the SCFSC cited the existence of road access from the Hudson Bay Mountain Road and a concern that the approval of the driveway could lead to further residential development in the area. At the time, the SCFSC was responsible for ensuring forest management activities in the community forest were consistent with the LRMP objectives, and ILMB decision makers deferred to the recommendations of the committee. As a result, the application was disallowed.

Many comments have stated that the disallowance of the previous three applications should dictate that the current application be disallowed. In addition, concerns have been raised regarding the precedence approval of this application would set for future applications in the Core Ecosystem and Smithers Community Forest SMZ2. My role as an independent decision maker is not to validate or repeal previous decisions. Past decisions certainly informed my review. However, my determination making authority is founded on the legal and policy framework and state of the landbase at the time of decision. The management regime and organizational responsibilities for the Smithers Community Forest and associated recreational values have changed in the time since the past three applications were reviewed. Similarly, any future applications of this nature will be subject to the same level of discretion on the part of the decision maker. The approval of this application does not legally bind future decision makers to approve any or all similar applications in the vicinity. I am satisfied that I have considered the relevant information from past decisions in my determination.

Public Consultation

Public advertising of Land Act applications is at the discretion of the Integrated Land Management Bureau. The application was advertised in the Interior News on July 23 and 30, 2008. A significant amount of comment was received and has been considered in my decision as outlined below. As a result of agency and public responses received, the driveway location was altered to mitigate concerns raised. The application was not re-advertized when the revised driveway location was proposed. I considered whether the revised driveway location was of a significant difference that would result in new or different concerns being brought forward. The driveway location was not any closer to private residences and the issues of impacts to recreation, wildlife and ecosystem values remained the same, with the exception of the removal of the direct overlap with the red listed ecosystem. I therefore am satisfied that the public consultation process was adequate to identify the range of concerns with the application.

First Nations Consultation

All four applications have been referred to First Nations. No responses have been received as a result of consultation efforts. A review of available information has not revealed significant indicators of a potential infringement of aboriginal rights and/or title. The driveway will be non-exclusive in nature and impacts to resources important to First Nations will be low. Accordingly, I am satisfied that the Province’s legal duty to consult has been met.

Slope Stability

In considering social needs, I have assessed whether the application was a suitable use of Crown Land. The applicants do not have suitable access to their private land. The initial location of the Hudson Bay Mountain Road resulted in destabilization of the lower slope of the applicants’ properties where they front the road. Subsequent re-ditching of the road has resulted in increased undercutting of the road, further reducing the associated slope stability. A representative of the Ministry of Transportation and Infrastructure (MoTI) informed the applicants that any construction of a house and associated sewerage and access improvements had a high potential to further destabilize the slope, resulting in a failure. A potential failure of this nature would likely destroy the associated portion of the Hudson Bay Mountain Road, resulting in significant reconstruction costs and public safety issues, as well as liabilities which would be assumed by the applicants. In addition, the interruption in use of the road would have a significant impact on the residents, recreational users and commercial and industrial operators for whom the Hudson Bay Mountain Road is the only access.

Development of the properties adjacent to Hudson Bay Mountain Road poses risks to infrastructure, economic development and public safety. By disallowing the application I would be denying the opportunity for the applicants to develop their property in a manner that does not carry these risks. The result would be a landowner whose only options are to not develop the properties or to develop the lower properties and assume the associated risk. As a decision maker I must consider both the implications of approving an application and the implications of disallowing an application. I have determined that the application is valid and has a strong justification, and I am not prepared to put a private individual in a position where a choice that is subsequently his to make may result in a significant risk to public safety.

Economic Considerations

Approval of the application provides minimal economic benefit to the Province. Numerous concerns were raised through the public consultation process regarding the applicants’ future use of the property that would provide the applicants with economic gain, such as harvesting of timber, increased property value, and development of a large commercial operation. I do not have the jurisdiction or mandate to evaluate or consider these concerns. I must review the application based on the merits of the application itself, as outlined above. I therefore did not consider future potential economic gain to the applicants in my decision.

Land Use Planning Direction

Approved Land Use Plans inform decision makers on the social, environmental and economic balance of values within plan areas. The driveway application is within the planning areas of both the Bulkley Land and Resource Management Plan (BLRMP) and Bulkley Valley Sustainable Resource Management Plan (SRMP). The BLRMP provides planning direction to the BVSRMP, therefore the two plans need to be reviewed in harmony.

Two specific resource management zones identified in both plans provide direction for my review of this application: Special Management Zone 2, Unit 10-4 (Smithers Community Forest); and Core Ecosystem. The BLRMP objective for the Smithers Community Forest SMZ2 is to provide community recreation and education in a demonstration forest. Any plan for this area must follow the Smithers Community Forest Steering Committee Plan. Prior to the award of the Community Forest

Agreement to WCFC in 2007, the Smithers Community Forest Steering Committee was responsible for forest management planning within the Smithers Community Forest SMZ2. With the award of the Wetzin’Kwa Community Forest Agreement in 2007, the Wetzin’Kwa Community Forest Corporation (WCFC) has replaced the Steering Committee as the party responsible for management planning within the Smithers Community Forest SMZ2. However, the core values of the SMZ2 remain the same, with a focus on recreation and education while allowing for industrial operations. The Community Forest Steering Committee evolved to become the Smithers Community Forest Society (SCFS), continuing to promote opportunities for recreation, education, and forest management demonstration within the Smithers Community Forest SMZ2, but relinquishing some of its responsibilities for overall forest management.

The BLRMP does not provide a specific objective for Core Ecosystems however the identified purpose is to protect values by providing representation of a cross-section of ecosystems, by retaining representative samples of old growth forests, and by providing forest-interior conditions. The BVSRMP objective for Core Ecosystems is to maintain over time the following:

• a representative range of healthy, naturally occurring ecosystems;
• a diversity of seral stages (emphasizing conservation and recruitment of old seral age classes 8 and 9);
• areas with forest interior conditions; and,
• red and blue-listed, sensitive and vulnerable, and regionally significant species, plant communities, and ecosystems within the Core areas indicated on Map 4.

The direction and strategies for both the Core Ecosystem and Smithers Community Forest SMZ2 focus mainly on forest management and timber extraction. The direction does, however, identify priority values which must be considered during other activities. An application (Lands File 6406529) for a residential roadway within both the Core Ecosystem and the Smithers Community Forest SMZ2 was approved in 2005. While the ecological and recreational issues vary greatly between that application and the current one, the recent approval does serve to inform decision makers that residential access is not specifically excluded from these areas. A significant amount of comment on the current application suggests that timber harvesting conditions should be applied to all uses on Crown land. Land use planning direction for resource management zones often places restrictions only on certain types of activities. It is therefore not appropriate for me to draw a direct link from one activity to all activities. Specifically, the strategies in the BVSRMP state that within Core Ecosystems, if harvesting does occur, no permanent road access structures can be built. As described by the Ministry of Forests and Range (MoFR) in their referral response, the driveway is not a “management” activity as it is not related to a commercial operation on Crown land and therefore is not specifically excluded.

Specific Land Use Objectives arising from the plans were established under the Land Act in 2000 and 2006. While established under the Land Act, the Land Use Objectives do not have a direct legal application to Land Act decisions. I am satisfied that the driveway is consistent with the policy direction contained within the Bulkley LRMP and Bulkley Valley SRMP. In making my decision I have considered the values of the core ecosystem and the Smithers Community Forest SMZ2 and how the driveway would impact those values. Those values and my considerations relevant to them are further described in the sections below.

Sensitive Ecosystems

The driveway location as applied for in June 2008 crossed a red listed ecosystem (SBS dk 81, Saskatoon – Slender Wheatgrass). This ecosystem is associated with the open, southwest facing slopes prevalent along the ridge. ILMB mapped the ecosystem relative to the application area and, along with the applicant and an ILMB employee who has significant experience with grasslands ecosystems, conducted a field inspection to confirm the presence of the rare ecosystem and determine if there were possibilities for mitigating the impacts. As a result of the field visit it was determined that the driveway could be moved away from the open slopes and back onto the flat bench at the top, thereby completely avoiding the rare and endangered ecosystem. The approved driveway location reflects this change and I am therefore satisfied that impacts to the red listed ecosystem have been avoided.

Wildlife Habitat and Associated Ecosystems

Broad concerns have been raised regarding the impact of the driveway on wildlife habitat and ecosystem values associated with the Seymour Ridge area. Referral responses from the Ministry of Environment (MoE) in 1994 and 1995 had referenced the value of the open slope areas. By moving the driveway away from the red listed ecosystems, the open slope areas were not impacted. I advised MoE staff of this and they advised that the relocated driveway was in an area that still contained high habitat values. I had an extensive discussion with MoE staff to solicit more detailed information on the specific habitat values at risk, possible mitigation strategies and a description of the impact of the driveway in the context of the surrounding landscape and allowable uses. I was advised that the ridge crest forest adjacent to the red listed ecosystem provides “snow interception, thermal and screening cover as well as a continuum of forage species”. These values were identified as being captured by the Core Ecosystem designation in the BLRMP and therefore subject to the direction contained in the plan. MoE’s recommendation was that a coordinated approach to access, including roads and recreational trails, needed to be taken within the Smithers Community Forest SMZ2 and that the application should be held in abeyance until such a time as this coordinated planning process could be completed. As a decision maker I must consider all the information available to me at the time of application. An absence of detailed operational plans is not sufficient reason for me to defer a decision, particularly when such plans are not in progress at the time of application.

In making my decision, I have considered the impact of the driveway in the context of the availability and state of the habitat values across the surrounding landscape. To date the majority of disturbance to this landscape has been small patch timber harvesting, small-profile logging roads, hiking trails and cross country ski trails, most of which have been concentrated to the west of the driveway area. The driveway construction as proposed involves minimizing the removal of timber by building to driveway, not industrial, road standards and weaving around mature timber as much as possible. I have also considered the other allowable uses in the vicinity and their potential impacts to habitat values. I have considered whether the construction of the driveway to this standard will result in an unacceptable cumulative impact to habitat values. I am satisfied that the driveway, constructed as per the tenure conditions, will not have significant negative impact on either the habitat values of the surrounding forest type or on ecosystem representation across the core ecosystem area landscape.

Recreational Values of the Seymour Ridge Trail Network

The impact to the Seymour Ridge trail network was the most prevalent concern brought forward by the public. Subsequent to acceptance of the application the Smithers Community Forest Society applied to the Ministry of Tourism, Culture and the Arts (MTCA) to have the SCF trails designated as Recreation Trails. The trails received official designation under Section 56 of the Forest and Range Practices Act (FRPA) on August 18, 2009. The driveway location as applied for in June 2008 made several trail crossings and also ran between the Seymour Ridge trail and the edge of the ridge, where the views from the trail are the most significant. The revised driveway location is now away from the edge of the ridge on the west side of the trail, and crosses the Seymour Ridge trail twice. One crossing is near the beginning of the trail, well back of the ridge, and the second is where the trail enters the applicants’ property. The first crossing of the Seymour Ridge trail is the more significant of the crossings. The second crossing occurs at the mapped trail location but not the used trail location. The used trail is actually on the applicants’ private land, over which MTCA has no jurisdiction. As a result, where the used trail passes through private land, the mapped trail for designation follow the outside of property line. In addition to the Seymour Ridge trail, the driveway crosses two branches of the Goldeneye trail and, where the Seymour Ridge trail reaches the applicant’s private land, the driveway crosses a short trail (Sackungen trail). The Seymour Ridge trail is the more heavily used trail of the network, with the Goldeneye trail experiencing a moderate to low level of usage and the Sackungen trail experiencing low levels of use.

There is no question that the driveway will alter the current state of the trail network. The Ministry of Tourism, Culture and the Arts (MTCA) is responsible for the authorization and management of recreation facilities and trails on Crown land under the Forest and Range Practices Act. The review of this application was made with the direct involvement of the District Recreation Officer (RO) for MTCA. I invited the RO to attend the above-mentioned field visit to discuss impacts and possible options for mitigation. Moving the trail back to the approved location has increased opportunities for utilizing natural filters to minimize the amount of driveway directly adjacent to the trail. Due to the location of the trails and the applicants’ properties it is not possible to further reduce trail crossings. Increased risk of unauthorized motorized use of the trail as a result of trail crossings has been brought up in public comment received. I note that the Seymour ridge trail is accessible to motorized vehicles at its commencement point on the Hudson Bay Mountain road. It does not appear that there is currently any unauthorized motorized use of the trail. To mitigate this risk, however, I will require the placement of barriers at trail crossings to discourage such use. As a result of the field visit and discussions regarding mitigation strategies, MTCA recommended approval of the application subject to a number of conditions, as outlined in Section3 – Decision above. I have evaluated the potential impacts to the recreation trails and weighed those impacts relative to the merits of the application. I have determined that the revised location of the driveway is a suitable location and I am satisfied that the construction conditions agreed to by the applicant, ILMB and MTCA are adequate to protect the overall recreational value of the Seymour Ridge Trail network.

Wetzin’Kwa Community Forest Corporation Interests

As described in Section 2 – Background, the driveway is located within the Wetzin’Kwa Community Forest Corporation’s Community Forest Agreement area, within which WCFC has the exclusive right to harvest timber. WCFC has a Memorandum of Understanding (MoU) with the Smithers Community Forest Society (SCFS) regarding forest harvesting and recreation activities within the Smithers Community Forest SMZ2. The SCFS has stated that WCFC verbally indicated to them that logging would not occur within the Core Ecosystem area of the SMZ2. WCFC has responded stating that WCFC recognizes and understands the constraints of the core ecosystem but have made no commitment to forego all harvesting opportunities within it. The MOU states that any required access within the area covered by the agreement would be done in such a manner as to minimize trail crossings. The MOU also reinforces that maintaining access for WCFC to their entire tenure area is critical to their operations. WCFC has expressed their support for the application so long as their use of the driveway is not restricted and with the recommendation that trail crossings be minimized as much as possible. While the driveway will not be constructed to an industrial standard, access along it will not be restricted. I am therefore satisfied that my decision will not unduly restrict the ability of WCFC to operate in the future should such operations be proposed.

Summary

After weighing and assessing all of the public and agency referral comment as described above, I am satisfied that my determination to grant the land act tenure for driveway construction, with conditions attached, represents an appropriate and fair balance of the social, environmental and economic concerns expressed. I am also satisfied that my determination takes into account and fairly considers the balance of public values as expressed through the Bulkley LRMP and subsequent associated legal and policy documents.

SMITHERS COMMUNITY FOREST SOCIETY (SCFS)

Notice of Objection

Notice of Objection under Section 63 (1) of the Province of British Columbia Land Act – related to application for a temporary permit for a “driveway” (the “Seymour Ridge Road”)

Reasons/Grounds for Objection

Disposal of Application Not Complete

1.  Although the status of this application is posted as “offered” on the ILMB Website, the disposition is not yet complete due to the requirement that an Occupant Licence to Cut be issued by the District Manager, Ministry of Forests and Range, Smithers. See s. 8(3) and s. 8(4) of the Land Act (the “Act”). The Licence to Cut has not yet been issued.

2.  The Reason for Decision posted on the ILMB web site states that an offer has been made subject to any terms and conditions that need to be met before the tenure is issued. There is no indication that any or all of these terms and conditions have yet been met.

3.  In the Decision Rationale posted on the ILMB web site, the application is described as a Temporary Permit, suggesting a permit under s.14(1)(c) of the Act, yet the ILMB decision maker states that the decision is being made under s.11 of the Act. The application cannot be considered complete for the purposes of s. 63(1) until the decision-maker unequivocally informs the applicant and the public under which provision of the Act she is exercising her jurisdiction.

Substantive Objections

4.  The “driveway” is being proposed through a Core Ecosystem of the Bulkley Land and Resource Management Plan (LRMP) and the Bulkley Valley Sustainable Resource Management Plan (BVSRMP) – the purpose of which is to provide a representative cross-section of naturally occurring ecosystems, to maintain biodiversity by providing interior forest conditions, and to maintain biodiversity by retaining representative examples of rare and endangered plant communities in core ecosystems. Specifically, the strategies in the BVSRMP state that within core ecosystems, if harvesting does occur, no permanent road access structures can be built. Although the decision maker states in her rationale that the driveway is not a “management activity” and thus it should not be specifically excluded, this is a technicality that completely ignores and contravenes the meaning and intent of the Core Ecosystem designation resulting from a long established and extensive public planning process. Though referred to as a “driveway” in the application, the rationale states that public access will not be restricted. The term “driveway” is commonly used to describe a private access way falling completely on private land. What is actually being approved in this case is a “road” that will provide public vehicle access into a significant portion of the Core Ecosystem – a Core Ecosystem which has already been impacted elsewhere by road access.

Improper Consideration of Slope Stability

5.  In the consideration of this application by the decision maker, considerable weight is given to slope stability concerns where a public road, Hudson Bay Mountain Road, is adjacent to the lots for which access is sought, yet the decision-maker provides no references to any technical or professional reports to substantiate any slope stability concerns along that existing road which allegedly prevent the applicant from accessing his property from there. As well, there is no reference to any technical reports to substantiate the overriding assumption that the Seymour Ridge road access provides any less slope stability risk than the Hudson Bay Mountain Road access. So far, our attempts to obtain any relevant reports that were used in the decision have failed.

6.  Further, the decision-maker does not appear to have considered any slope-stability and other access matters raised by the approving officer under s. 73 of the Land Title Act when the lots that the “driveway” purports to access were originally subdivided. Under the Land Title Act, land cannot be sub-divided until, among other things, the sub-divider can provide each lot with legal access to a public road. In the present application, the decision-maker should have considered why that originally approved access is now said to be unavailable.

Insufficient Consideration Given to Public and Agency Advice

7.  The decision maker states in her decision rationale that the three previous applications for a similar road were turned down largely on the advice of the Smithers Community Forest Steering Committee (now called the Smithers Community Forest Society). This committee is designated in the Bulkley LRMP as the body that coordinates management activities within the Smithers Community Forest – where this and the previous applications occur. For the past 22 years, this body has been actively involved in the coordination of recreation, forest management, and ecosystem interpretation initiatives in the Smithers Community Forest. The decision maker goes on to state that since the Wetzin’kwa Community Forest tenure was awarded for this same area in 2007, the role of the Smithers Community Forest Committee (now the Society) has largely been taken over by the Wetzin’kwa Community Forest Corporation (WCFC). This is incorrect in that the current Memorandum of Understanding between the Society and the WCFC clearly outlines the significant role the Society continues to play in management recommendations within the Recreation Emphasis Zone where the proposed road is located. Had the decision maker properly understood this relationship between these two bodies, she would have been obliged to give greater weight to the recommendations against approval of the application put forth by the Smithers Community Forest Society. The rationale states that the WCFC supported the application. At a recent public meeting, however, the Manager of the WCFC emphasized that their position on the road was neutral – neither for nor against.

8.  The Ministry of Environment (MoE) submitted referral responses for this and previous applications for roads on Seymour Ridge that strongly recommended against approval – due to environmental sensitivity, risks to wildlife habitat values, and incompatibility with the management direction provided by the LRMP. In fact they recommended that s.17 (Conditional Withdrawal) of the Land Act be explored for the area in order to reflect the LRMP management/planning direction. The decision maker in her rationale describes the advice of MoE in some detail but in the end this advice appears to have little bearing on her decision. If there is disagreement between these two government agencies on the merits of this application/approval, then an internal mechanism to resolve this dispute must be implemented.

9.  The Bulkley Valley Community Resources Board (CRB), the body responsible for overseeing the implementation of the Bulkley LRMP, also submitted a referral letter recommending against approval of this road through the Core Ecosystem. There is no mention of this significant and very relevant referral advice in the rationale of the decision maker, and thus no indication that this advice was even considered by the decision maker.

The Smithers Community Forest Society thus objects to Application 6405671 and the process by which it is being considered for approval by the ILMB decision maker. We request a formal hearing and an independent review of the decision and the rationale for this application.

Public Comments Posted on ValleyVision website

Comment #1

“As there is already good road access to this property from H.Bay Mt. road, there is no reasonable need for a second access. My second reason is that crown land with historic use by recreational hikers and bikers should not be compromised for a private road that is not needed by the applicant.”

Comment #2

“Something that the public may not be aware of is that the covenanted area, shown in green on the map, is proposed by the road applicant. This was to address public concern relating to endangered grassland. (Most of which is on private property.) Concerning the ‘already good access to this property,’ it is impossible to build a road to the top, which is the only usable area, from the bottom of the property due to slope instability and grade.”

Comment #3

“I feel the impact on the trail and those who use it will be negative. Crown lands should not be compromised for use of the private individual.”

Comment #4

“What about the fact that a driveway would actually open up opportunities for those people that are not able to access the view and unique features now? (Which by the way, is on our PRIVATE property as are some of the trails.) (Physically challenged, daycare groups, the elderly, etc.) Plus, our covenant on the red-listed grassland ecosystem on our private property should be worth something as far as ‘compromising’ Crown land. People should research what is really going on here and not just blindly trust those who supposedly know, yet are not letting all the facts be known.

British Columbia (BC) boasts considerable subsurface resources, including coal, gold, copper, industrial minerals (sulphur, silica, etc.), and construction aggregates (gravel, sand, limestone, etc.).  Consequently, there are major mines operating throughout the provincial land base, with hundreds of smaller aggregate and seasonal mines.  According to the BC Ministry of Energy, Mines and Low Carbon Innovation (MEMLCI), the mining sector employs directly and indirectly more than 30,000 people and contributes $9.9 billion to the provincial economy.  Offsetting the benefits of economic development, the exploration and extraction of these mineral resources has had profound influences on the province.

When Northgate Minerals Corporation proposed to develop the Kemess North copper/gold mine in 2003, everyone expected that this project would be approved.  The first sign that the outcome might be different appeared when a joint Federal-Provincial panel review was announced in 2004.  At the time, these joint reviews were the most comprehensive assessment procedures practised and, prior to Kemess North, had never before been used when conducting a mine assessment in BC.  As it turned out, the panel’s recommendation was also unprecedented in BC:  the project was not approved as proposed.

While Kemess North is a milestone case for recognising Indigenous interests through an assessment process and an inspirational tale of environmental justice, the case also highlights fundamental shortcomings involved in asserting Indigenous title and rights to subsurface resources on a project level. The lack of formally recognised regional land use plans that accommodate multiple interests has implications for all parties.  In particular, regional land use planning, if done well, is widely considered as a potentially important, if not essential, mechanism for recognising and asserting Indigenous title and rights over traditional territories.  In the absence of joint land use plans between the Province and Indigenous Nations, the joint environmental assessment panel decision applies only to the project as proposed to the panel, so the potential exists for similarly controversial development proposals—and the need to start a new review process.

The Kemess North Copper-Gold Mine Project

Between 1998 and 2011, Northgate operated the Kemess South Mine (mineral lease # 354991).  In 2001, exploration activities revealed substantial mineral deposits in an area approximately five kilometres north of the existing mine site.  The bid to develop these deposits would eventually become known as the Kemess North Project.

The Kemess North mine site is part of an area owned by Kemess Mines Ltd., a subsidiary of Northgate Minerals Corporation.  The Kemess property, shown in Maps 1 and 2, covers roughly 34,000 ha in north-central BC, approximately 430 km northwest of Prince George.  Large portions of the Kemess property were given to Northgate as compensation for the expropriation of the Windy Craggy mineral rights during the creation of Tatshenshini-Alsek Provincial Park.  Northgate owns surface rights to the entirety of the property, as well as to two inactive mineral leases (#410732, #410741).  It also has registered 206 mineral claims.

Map 1.  Kemess Property Location in BC

The Kemess Property and its associated mineral tenures overlap with the traditional territories of the Fort Connelly First Nation, Gitxsan House of Nii Kyap, Kwadacha First Nation, Takla Lake First Nation, and Tsay Keh Dene First Nation (hereafter the ‘Five Nations’).

Map 2.  Kemess North and South Mine Locations

Mackenzie Land and Resource Management Plan

As part of province-wide regional planning (Box 1), the Mackenzie Land and Resource Management Plan (Mackenzie LRMP) was initiated in 1996 and ratified in 2000, a seemingly ideal timeframe to anticipate and resolve potential land use conflicts associated with the Kemess North mine. The Kemess Property is contained entirely within the Mackenzie LRMP. However, both the Mining Association of British Columbia and (most) Indigenous groups were notably absent from the Mackenzie LRMP process.

In 1999, industry representatives from the mining sector withdrew from the Mackenzie LRMP process after “conclud[ing] they could not achieve their goals and objectives by going through collaborative approaches.”  This ambivalence is at least partially explained by section 14(5) of the Mineral Tenure Act, where “a land use designation or objective does not preclude application by a recorded holder for any form of permission, or approval of that permission, required in relation to mining activity.”  Therefore, unless the Kemess property was designated as a protected area—in which case Northgate would have a strong argument against expropriation—the LRMP process has little bearing on access and exploratory rights afforded under the ‘free entry’ system.  (For an Indigenous perspective on the free entry system, see Box 2 and the Learning Module on Subsurface Property Rights.)  In the absence of the Mining Association, mineral interests were represented by provincial agencies at the planning table.

The Kwadacha was involved throughout the Mackenzie LRMP as a full table member, a designation which treats Indigenous representatives as equivalent “stakeholders” to other resource interest groups.  The relegation of Indigenous interests to stakeholder status falls well short of the preferred government-to-government interactions that are advocated in contemporary planning practices.  For these (and other) reasons, the Tsay Keh Dene declined participation, but did submit an independently produced Land and Resource Conservation Management Plan, which is attached as an appendix to the Mackenzie LRMP.

In relation to Kemess North, a relevant sub-area of the Mackenzie LRMP is the Thutade Resource Management Zone (RMZ).  The sub-area is designated as a Mining and Wildlife Special Resource Management Zone, as follows.

The intent of this zone is to manage for the conservation of non-extractive values such as wildlife and wildlife habitat, fish and fish habitat, heritage and culture, scenic areas, recreation and tourism. This zone also has a special emphasis on mineral development and related access. Opportunities are maintained for timber, mineral and oil and gas development.

The RMZ objectives related to mineral development are to:

• promote development of high mineral values and recognise the significance of mineral potential in this zone; and
• maintain opportunities for mineral exploration, development and transportation.

While the RMZ acknowledges the numerous overlapping Indigenous land claims in the Thutade area, noting that “it seems likely that [this] was an important area for cultural diffusion,” the specific traditional uses are described as “relatively undocumented.”  Consequently, the RMZ contains no objectives related to preserving Indigenous values.

Mackenzie LRMP’s Effect on Recognising Indigenous Rights

The general management direction for the Mackenzie LRMP declares, “nothing in this Land and Resource Management Plan is intended to create, recognize or deny any aboriginal rights” and advocates that planning occur “co-operatively with aboriginal peoples to address their rights and interests” through management strategies designed “to minimise the effects of development on First Nations traditional and historic uses.”  However, the LRMP does not clarify how Indigenous objectives will be integrated into overall management strategies, implemented, or monitored.  Furthermore, only Indigenous groups with established settlements within the planning boundaries were invited to participate in the LRMP process, leaving the traditional territories of many Indigenous peoples, including those impacted by Kemess North, vulnerable to land use decision-making beyond their control.  It is notable that the boundaries for the Mackenzie LRMP and the Tsay Keh Dene conservation plan are not harmonised.

The Tsay Keh Dene conservation plan also articulates the need for “Tsay Keh Dene involvement in determining future development and access” for mining, logging, and road construction.  Although the conservation plan makes no specific mention of Amazay Lake, the plan refers to the significance of nearby Thutade Lake, where objectives related to conservation of fish and wildlife habitat are relatively consistent with the Thutade RMZ.

Consultation and Environmental Assessment Review

The consultation process for a mining project begins with a Notice of Work application.  Under certain conditions, an environmental assessment is required, which establishes a comprehensive process of consultation.

Notice of Work

Initial consultation for the Kemess North deposit began with the exploration referral process, where affected parties receive a Notice of Work (NOW) from project proponents and are granted 30 days to comment on the proposed project locations, schedules, and mitigation measures.  For Indigenous groups, responding to a NOW involves the completion of a traditional-use assessment, which describes how a project will impact Indigenous rights.  Many Indigenous groups, particularly in northern BC, are overwhelmed with referrals and are unable to adequately respond within the “brutal” time frame afforded.  This problem is exacerbated by the generalised nature of NOW referrals, which often fail to provide the details necessary for a thorough assessment of potential project impacts. Furthermore, in the case that an Indigenous group is able to respond to a NOW within the allotted timeframe, critics argue that of Indigenous opposition to NOWs is often ignored.  In the case of Kemess North, this initial consultation process did not capture the concerns of affected Nations.  An extensive exploratory drilling program was conducted from 2001-04.

Environmental Assessment

In 2003, Northgate officially submitted its pre-application environmental assessment proposal for Kemess North with provincial authorities.  Under the Public Consultation Policy Regulations of the BC Environmental Assessment Act (2002), a proponent was required to conduct and document a “public consultation program that is acceptable to the executive director.”  Despite the fact that there is no common law duty on proponents to consult with Indigenous peoples, most proponents find motivation to voluntarily consult with impacted peoples, an expensive and time-consuming task which may serve to improve public relations, exhibit corporate social responsibility, flow benefits to Indigenous peoples, or proactively resolve land use conflicts.

In 2004, Northgate and the Five Nations signed a Statement of Understanding (SOU), which in turn laid the foundation for negotiations on a Consultation and Negotiation Protocol.   The protocol was designed to address compensation measures, employment contracts, revenue sharing, and impact benefit agreements.  Northgate’s estimates of socio-economic benefits (Box 3) and compensations (Box 4) were included in these discussions.

Whereas the affected Nations initially supported the Kemess North proposal, chiefly because of the purported socio-economic benefits that would result from its development, they eventually mounted a full opposition to Northgate’s proposal.  The disagreement stemmed from the company’s preferred method of disposal for waste acid mine tailings, which involved indefinite containment in pristine Amazay (Duncan) Lake:

Northgate Minerals is proposing to destroy Amazay (Duncan Lake) to make a waste dump for its Kemess North mine.… Amazay Lake is part of our territory and is an important place to our people. Amazay means “little mother.” We believe it is a birthing place for animals that are important to us. It is a place that we have used, managed, and protected since time immemorial.

Negotiations for the protocol agreement lasted six months, but reached an impasse when it became increasingly clear that Amazay Lake was the only option for tailings impoundment.  This provision was unacceptable to the Five Nations, who signed the SOU with the explicit understanding that alternative waste disposal options would be thoroughly considered during the environmental assessment process.

While the Five Nations continued to voice their opposition, Northgate persisted in “intimating to environmental assessment regulators that it had the support of First Nations to continue to pursue the lake as an option.”  Subsequently, the Consultation and Negotiation Protocol was abandoned, with the Five Nations opting instead to focus upon the constitutional obligations of the provincial and federal governments to consult.  As expressed by affected Indigenous peoples,

Currently, our territory is under threat from mining, logging and other industrial activity. We do not oppose development. We need jobs, training, and revenue for our people. However, we do not support unsustainable development that destroys our lands and waters.

Crown Consultation

Whereas private corporations are not specifically required to consult with Indigenous peoples independently of the overall public review process, the Crown’s duties to consult and accommodate are firmly entrenched in common law.  Current interpretations suggest that “the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”  Accordingly, the provincial duty to consult was triggered in 2003, upon receiving Northgate’s pre-application notice; the federal duty was initiated in 2004 upon the pronouncement that Fisheries and Oceans Canada would be involved in the environmental assessment.  Common law has not prescribed a process for “meaningful consultation,” thus providing the Crown considerable flexibility in fulfilling its obligations.

For Kemess North, despite repeated requests by the Five Nations to establish a formal consultation agreement with the Crown, it was decided that Indigenous interests would be primarily addressed through a joint panel environmental assessment review.  Joint panel reviews are the most comprehensive assessment procedures currently practised, and, prior to Kemess North, had never before been used when conducting a mine assessment in BC.  In addition, one of the three panel members was appointed by the Five Nations representatives. Nevertheless, concerns remained outstanding.

In their submission to the Kemess North Joint Review Panel, Indigenous representatives argued, “[t]he federal and provincial environmental assessment processes are not the proper processes for determining and addressing potential impacts to Aboriginal title and rights and are…unable to meaningfully engage First Nations with regard to identifying potential impacts and determining appropriate accommodation measures.”  Their argument rested upon the following limitations of the joint assessment process:

• the process lacks the mechanisms for substantive consultation;
• it does not engage participants at strategic planning levels;
• it provides insufficient funding for third party assessments; and,
• it summarises and interprets public comment before inclusion in a final report.

Tse Keh Nay and the Joint Panel Review

In 2006, the Kwadacha, Tsay Keh Dene, and Takla Nations formed an alliance, collectively called Tse Keh Nay.

In lieu of a formalised consultation agreement with Northgate or the Crown, and seeing few remaining prospects for conserving Amazay Lake, Tse Keh Nay opted to participate in the environmental assessment under protest.  From the onset, however, it became clear that the process would be decidedly unconventional.  Prior to the panel review, the Tse Keh Nay were instrumental in conducting numerous public relations campaigns that helped to inform the public about the severity of the mine’s environmental impact.  The opening panel hearings consisted of an elaborate pipe ceremony, complete with a poignant testimonial from Takla Chief John Allan French, the content of which was included in official transcripts of the review process only because the Tse Keh Nay insisted.  At a later panel hearing, to resolve funding disparities and collate additional information, the Gitxsan successfully passed a motion to suspend panel hearings, with an extension granted at the behest of the Tse Keh Nay.  Finally, during winter 2006, Tse Keh Nay representatives organised a site visit for panel members to the remote, frozen Amazay Lake, where Indigenous leaders could more tangibly communicate their cause for concern.

For their part, the panel review members also displayed a unique approach to the review process.  In addition to Northgate’s 2004 feasibility study, the panel ordered two independent feasibility assessments, which would eventually conclude that the proposal was “not economically robust” and project benefits were “marginal.”  The panel also chose to adopt what was coined a “sustainability assessment framework,” where panel members reviewed each of the project stages in terms of (1) environmental stewardship; (2) economic benefits and costs; (3) social and cultural benefits and costs; (4) fairness in the distribution of benefits and costs; and (5) present versus future generations.

Joint Review Panel Recommendation

After 11 months of contentious dispute, suspended hearings, and countless inputs of human resources, the panel reached its recommendation, as follows.

The Kemess North Mine Joint Review Panel has concluded that development of the Kemess North Copper/Gold Project in its present form would not be in the public interest .… The Panel recommends to the federal and provincial Ministers of the Environment that the Project not be approved as proposed .…  Key adverse effects include the loss of a natural lake with important spiritual values for Aboriginal people, and the creation of a long-term legacy of environmental management obligations at the minesite to protect downstream water quality and public safety.

The panel’s recommendation, unprecedented in BC, was highly contested by Northgate officials, who declared that “[s]uch a conclusion does not appear to be shared by any of the federal and provincial departments who have reviewed this and many other similar projects and found the risks to be acceptable.”  Northgate called the decision “a deep disappointment for the Canadian exploration and mining community.”  In spite of a persuasive public relations campaign by Northgate to reject the panel’s recommendation, the provincial and federal agencies upheld the panel’s verdicts.

In March 2010, Northgate submitted a second Notice of Work proposal to continue exploration at Kemess North with the intention of developing a “smaller footprint” underground mine in the same area.

According to JP Laplante, the former Mining Coordinator for Takla Lake Nation, the Kemess North project underscores the need for joint land use planning between Indigenous peoples and the provincial government.

The human resources required at the community and leadership level to engage in a battle such as the Kemess North are significant. The time and energy dedicated to this battle could have been directed to other areas such as community development, education, health, housing, and other community priorities.

Laplante believes that landscape-level land use plans could minimise conflict and work toward harmonising development goals of all parties.  Such agreements may include provisions for a preferred consultation protocol or policy related to mineral development.  Specific policies can include land use plans that are the result of reconciling existing provincial and Indigenous land use plans or of a new joint planning exercise.

Joint land use planning between Indigenous Nations and the Provincial Government can lead to agreements that include provisions to protect natural areas and specific policies related to mineral development.  These policies can include land use plans that are the result of reconciling existing provincial and Indigenous plans or of a new joint planning exercise.

The Haida Nation has a history of joint management.  In 1985, the Haida declared Gwaii Haanas a protected heritage site and, in 1993, agreed to a co-management strategy with Parks Canada.  In 2010, the Haida Nation established a Marine Conservation Area Reserve that is co-managed with Fisheries and Oceans Canada.

In the initial phases of the provincial government-led Land and Resource Management Plan (LRMP) process for Haida Gwaii, the Haida Nation rejected the proposed process and, instead, insisted on a government-to-government decision-making model, where representatives of the Council of the Haida Nation would co-chair the planning process alongside the Province of British Columbia (BC).  This process led to the signing of the General Protocol Agreement on Land Use Planning and Interim Measures.  This protocol established measures for collaborative engagement between the two parties and an ecosystem-based management (EBM) framework to guide management strategies.

The Community Planning Forum (CPF) was the primary means to carry out discussions.  The first meeting was held in September, 2003.  The CPF consisted of 29 participants who represented the Haida Nation, local governments, the provincial government, non-governmental organisations, and business organisations.

An early step in the process was for the Council of the Haida Nation to develop a land use vision, the Haida Land Use Vision, which was presented to the CPF and finalised in 2005.  This vision represents a balance of ecological, cultural, and economic interests.  The vision was adopted by all representatives of the Planning Table except the forest industry.  The Province held a neutral position.

During the creation of the Recommendations Report, which was developed through a 17-month process, a consensus-based agreement was not reached on a preferred scenario for EBM.  Instead, the CPF representatives considered “viewpoints.”  Votes were taken on these Viewpoints for each area element of the EBM framework.  Where disagreement was more widespread, differing management recommendations are organised into opposing ‘perspectives.’  The tumultuous nature of the planning process, as described by Takeda and Røpke, involved widespread mistrust, civil disobedience, and political subterfuge.  As the authors state, this level of disagreement is far from the academic tendency to “regard collaborative planning processes in terms of…an idealised win-win outcome”; close scrutiny reveals that the joint land use planning process was anything but amiable.

As of April, 2006, areas of disagreement still need to be resolved, including the extent of new protected areas and of watersheds where mining is restricted. You are required to consider these two outstanding items.

Considerations

Your decision requires careful evaluation of a variety of historical, cultural, socio-economic, and environmental factors.  While a comprehensive analysis of mineral reserves in Haida Gwaii is beyond the scope of your contract, some important points to consider are:

• For the last 20 years (~1990-2010), Haida Gwaii has seen virtually no mining exploration, due in part to significant land use uncertainty and generalised opposition among island residents to large-scale mineral developments.  Previously, the mining industry had played a larger role in contributing to the Haida Gwaii economy.  Provincially, mineral exploration was also suppressed through the 1990s.
• A 2004 report, Revitalizing British Columbia’s Coastal Economy: A New Economic Vision for North and Central Coast and Haida Gwaii, describes the mineral potential for the area as “low.”  In addition, the report notes that past mines operating on the island have provided only a small economic benefit to nearby communities, while imposing significant environmental and social costs.
• A 2006 report, Socio-Economic Assessment of Haida Gwaii / Queen Charlotte Islands Land Use Viewpoints, argues that Haida Gwaii contains a disproportionate percentage of mineral resources, with roughly 3% of the province’s high/very high mineral potential within just 1% of the land base.  In addition, due to its physical proximity to foreign markets, Haida Gwaii is thought to have a competitive advantage regarding transportation.
• A robust mining industry requires large areas of available land for exploration purposes.  While the value of undeveloped deposits is unknown, lands withdrawn from disposition may have a negative economic impact for Haida Gwaii.
• Compensation costs for expropriation of existing mineral tenures are substantial.  These costs are to be minimised wherever possible.
• The options being considered are consistent with the Viewpoints and Perspectives stated in the Recommendations Report.  The options for PAs are based on the Agreements and Viewpoints outlined in section 3.1.1 Protected Areas of the Recommendations Report.  The options for NWMs are based on Perspectives outlined in section 3.3.6 Minerals of the Recommendations Report.  For additional details, refer to the socio-economic assessment completed by Pierce Lefebvre Consulting.
• The proposed PAs and NMWs outlined below are separate areas; there is no overlap of geographic areas between them.

Each of the options being considered for PAs and NMWs is summarised below.  First, a summary of projected impacts on mining activity is provided in Table 1.

Table 1.  Summary of Impacts of Options on Mining Activity

Negotiating position of the Council of the Haida Nation

The Council of the Haida Nation is committed to realising the PA2/NMW2 options (see below) as outlined in the Haida Land Use Vision.  These two options are consistent with the Haida Land Use Vision and are strongly advocated by the Council of the Haida Nation.  The Council anticipates that any deviation from this vision will result in significant litigation expenses, as well as economic losses resulting from continued land use uncertainty.

Negotiating position of the mining industry

Industry representatives argue that any increase in protected areas and no-mining watershed reserves beyond current management agreements will irrevocably compromise mining viability on the island.

Summary of options for protected areas (PAs)

The two options being considered for protected areas include ‘protected area 1’ (PA1) and ‘protected area 2’ (PA2).  The extent of the land base for each option is presented in Table 2.  These options are consistent with Viewpoints 1 and 2, respectively.

Table 2.  Protected Area Options

The estimated impacts of the options on areas identified as having potential for mineral exploration are provided in Table 3.  These areas are identified as having either high or very high potential for mining.

Table 3.  Protected Areas Options:  Impacts on Metallic Mineral Potential

The extent to which the land base for each protected area option overlaps with pre-existing mineral tenure is outlined in Table 4.

Table 4.  Protected Areas Options:  Impacts on Metallic Mineral Tenure

Summary of options for no-mining watershed reserves (NMWs)

The three options being considered for designation of important watersheds as reserves are ‘current management’, ‘no-mining watershed reserve #1’ (NMW1), and ‘no-mining watershed reserve #2’ (NMW2), as presented in Table 5.  No-mining watershed reserves are consistent with the intent of restricting mineral rights through available legislation.  These NMWs are in addition to the PAs.

Table 5.  Watershed Reserve Options

The estimated impacts of the options on areas identified as having potential for mineral exploration are provided in Table 6.  These areas are identified as having either high or very high potential for mining.

Table 6.  Watershed Reserve Options:  Impacts on Metallic Mineral Potential

The extent to which the land base for each no-mining watershed reserve option overlaps with pre-existing mineral tenure is outlined in Table 7.

Table 7.  Watershed Reserve Options:  Impacts on Metallic Mineral Tenure

Reports

Integrated Land Management Bureau (2003).  Haida Gwaii / Queen Charlotte Islands Land Use Plan Background Report.

This report provides a background information about the social, ecological and economic characteristics of the Haida Gwaii region. It was prepared to provide information for the land use planning process.

Haida Gwaii Management Council

Land Use Objectives Order: Background

Land Use Objectives Order Amendment Decision-Making Process

Government of British Columbia

BC Land Use Planning

BC Land Use Planning for Provincial Public Land

BC Modernizing Land Use Planning

BC Land Use Plans & Legal Direction By Region

British Columbia Ministry of Energy, Mines and Low Carbon Innovation

BC Mine Information

BC Environmental Assessments

Legislation

For all BC Laws

Coal Act  [SBC 2004] Ch 15

Environment and Land Use Act [RSBC 1996] Ch 117

Environmental Assessment Act [SBC 2018] Ch 51

Forest and Range Practices Act [SBC 2002] Ch 69

Forest Practices Code of British Columbia Act [RSBC 1996] Ch 159

Impact Assessment Act (S.C. 2019, Ch 28, s. 1)

Land Act [RSBC 1996] Ch 245

Land Use Objectives Regulation

Mineral Tenure Act [RSBC 1996] Ch 292

Mines Act [RSBC 1996] Ch 293

Oil and Gas Activities Act [SBC 1998] Ch 39

Petroleum and Natural Gas Act [RSBC 1996] Ch 361

Pipeline Act [RSBC 1996] Ch 364

Public Policy Consultation Regulation B.C. Reg. 373/2002

“We, The Tse’Khene Nation (People of the Rock), are proud people. We believe the Creator put us here as stewards of the land. We will regain our Traditions to cultivate a respected, united, self-sufficient community.”

Members of the McLeod Lake Indian Band (MLIB) are of the Tse’Khene, an extension of the Athapascan speaking peoples of northern Canada.  Traditionally, Europeans refer to Tse’Khene as “Sekani.”  The roughly 108,000 km² traditional territory (as shown on Map 1 and described in Box 1) has been occupied by McLeod Lake Tse’Khene since before European contact.  The main settlement of the McLeod Lake Indian Band is located on McLeod Lake, about 150 kilometres north of Prince George.  Throughout its history, the McLeod Lake Tse’Khene people have remained defiant in protecting their lands and interests.

European Contact and Cultural Erosion

European fur traders first settled in the area in 1805 at Fort McLeod, which served as the first trading post west of the Rockies and is the oldest continuously occupied non-Indigenous settlement in BC.  The opportunity to trade with Europeans at Fort McLeod enticed the traditionally nomadic Tse’Khene people to establish nearby residences.  But this contact had consequences.  “Exposure to disease, alcohol, firearms contributed to the systematic breakdown of almost all their laws, customs and social systems” and had profound and devastating effects on the Tse’Khene.  From 1840 to 1925, the recorded population was reduced from 202 to 60.

Map 1.  McLeod Lake Tse’Khene Traditional Territory

In 1867, through section 91(24) of The Constitution Act, 1867, the Government of Canada was granted law making power over all “Indians and Lands reserved for the Indians” to ensure the “Peace, Order and Good Government of Canada.”  By these laws the McLeod Lake Tse’Khene were arranged onto five Reserves, which combined for a total land base of 244 km².  The extent of original set of McLeod Lake Indian Reserves (#1-5) are depicted in Map 2.

The erosion of the traditional territory of the McLeod Lake Tse’Khene and their culture continued throughout the twentieth century with devastating effects.  The McLeod Lake Tse’Khene were subject to institutional assimilation at Lejac Indian Residential School (1930s-1976), the economic impact of closure of Fort McLeod as a trading post (1956), and the flooding of 1,761 km² of traditional territory following the construction of the W.A.C. Bennett Dam (1969).  By the 1970s, the traditional livelihood of the Tse’Khene had been compromised significantly.

Map 2.  McLeod Lake Reserve Lands #1-#5

Formalisation of Tenure

The erosion and transformation of the traditional territory of the McLeod Lake Tse’Khene took place within a process of “tenure formalisation.”  (See Box 2 for a definition of tenure formalisation.)  In Canada and other colonised countries (e.g., United States, New Zealand, Australia), many of the historical efforts at tenure formalisation have centred on granting a person legal title to small portions of traditional territory.  According to Baxter and Trebilcock, the physical boundaries created by the reserve system serve as a means for implementing government policy with the eventual goal of ‘civilisation.’  They also characterise the Canadian reserve system as a “vestige of past attempts to promote the norms, if not the legal rights, of private ownership…while maintaining central control of tenure administration in First Nations communities.”  Voluntary enfranchisement packages, which have been presented in various incarnations were offered as alternatives to the restrictive property interests afforded under the reserve system.

Efforts to implement tenure formalisation by Canadian governments were opposed by Indigenous peoples, who have generally regarded tenure formalisation as either inappropriate to cultural traditions or as a thinly veiled attempt at assimilation (or both).  This criticism is not to suggest that Indigenous peoples are opposed to tenure reform or private land ownership.  On the contrary, achieving greater stability and minimising uncertainty over lands management have been a central theme in Indigenous rights advocacy throughout the twenty-first century.  However, most attempts at tenure formalisation have been imposed in a homogenised and centralised manner, lacking the “social, economic, political, geographical and historical context” necessary to create tenure regimes congruous with the traditions, practices, and capacities of the many individual nations inhabiting the land base known as Canada.

Consequently, Indigenous peoples experience the dichotomy of having cultural values tied to the land with restricted rights to access and use the land.  The inability for Indigenous peoples to exercise greater authority in managing Reserve lands and the assets generated by those lands is cited frequently as a contributing factor toward many of the injustices currently occurring on Reserve lands.  Some of these injustices include inadequate housing, unsafe drinking water, unemployment, drug and alcohol abuse, elevated suicide rates, and spousal abuse.

Contemporary Land Tenure and Property Rights Negotiations

While tenure formalisation can be antithetical to Indigenous rights to land, it is also possible for Indigneous peoples to improve tenure security through the same process.  The McLeod Lake Indian Band has both confronted tenure formalisation and attempted to use the process to its advantage.

During the 1980s, the McLeod Lake Indian Band engaged in several heated litigious battles with both the federal and provincial governments over unresolved land claims.  The Band’s claim centred on Treaty 8, which was signed in 1899 and covered a very large area that was then part of the Northwest Territories and now part of Alberta, Yukon, and northeastern BC.  The McLeod Lake Indian Band claimed that the original treaty applied to the Arctic watershed, which extended beyond the geographic “height of land” of the Rocky Mountains, which was the designated western boundary of Treaty 8.

In relation to their land claim, the Band asserted their rights to the claimed land to protect their future interests.  They disrupted provincially-sanctioned forestry operations and demanded an equitable share in forestry contracts conducted on their traditional territory.  In July, 1987, for example, the Band established a blockade along the gravel road to Carp and War lakes.  Chief Harry Chingee explained their aim was to get the provincial government to stop logging in the area until their land claim was settled.  Chief Chingee stated, “I think the biggest problem we have is that our people can’t get work. That’s why we want to get control of our resources.”

The land claims, and associated on-the-ground actions, culminated in the signing of the McLeod Lake Indian Band Treaty No. 8 Adhesion and Settlement Agreement (2000).  This agreement benefitted the Tse’Khene in several ways, including the following financial and land benefits:

• $2,900,000 to cover portions of litigation expenses;
• $9,750,000 in legal settlement;
• Provincial and Federal recognition of Tse’Khene traditional territory;
• certainty of traditional resource use rights; and
• an additional 18,521 ha of Treaty 8 Reserve land.

As shown in Map 3 (shaded areas), the adhesion agreement contributed substantially to the amount of land available to the McLeod Lake Indian Band for potential development and resource extraction.  The number of Reserve lands increased from 5 to 22.  The Band also purchased additional lands from the province that they own as fee simple:  43 hectares in Mackenzie Junction; 56 hectares at Summit Lake (identified as fee simple parcels on Map 1).  As per the agreement, the settlement funds were deposited to a trust, with Band members having use of the income derived from the invested funds but not from the principal.

In 2003, shortly after signing the Treaty No. 8 Adhesion Agreement, the McLeod Lake Indian Band became one of the first band councils in Canada to ratify a Land Code under the Framework Agreement on First Nations Land Management, a piece of legislation that transfers federal jurisdiction over Reserve land and resource management to signatory bands.  Upon ratification in 2002, the Land Code established the rules for how the Band would govern its Reserve lands.

Map 3.  McLeod Lake Indian Band Post-Treaty No. 8 Reserve Lands

The Land Code was drafted by an appointed Land Management Committee with assistance from the national Lands Advisory Board.  Highlights from the McLeod Lake Land Code are presented in Table 1.  A land use plan was completed in 2004.

Table 1.  Highlights of McLeod Lake Indian Band Land Code

Private interests in land and economic development

Improving living conditions, income, and employment opportunities for Indigenous peoples is closely tied to on-reserve economic development.  However, sources of capital for band councils and their members to pursue economic development opportunities are limited, unaffordable, restrictive, and insufficient.  Most critically, Section 89 of the Indian Act eliminates the ability of a band council or individual member to pledge real and personal property on-reserve as security for financing.

In their discussion of economic development for Indigenous peoples, Shanks highlights the importance of private interests in land.  For financial institutions, land is a primary source of equity, and tenure security and land value are essential for funding a business venture.  Shanks argues,

The availability of, use, tenure, and jurisdiction over land is at the heart of economic development.  There exists an incredibly high level of frustration over the timeframe and processes involved in land designations and additions to reserve.  Certainty of tenure is fundamental to the concept of using equity in land as a component of economic development.  Efforts to clarify tenure and modernise the current system of land registration, although difficult to achieve, are necessary.

Thus, land tenure and transaction costs are strongly associated with pursuing opportunities for economic development on Reserve lands, and an important part of Indigenous sovereignty over their economy.

In their study of the economic effects of existing private property rights on Reserve lands, Aragón and Kessler found there is a positive relationship between on-reserve private property and homeownership rates, housing conditions, and band public spending.  The researchers also highlight an important drawback.  A positive relationship between private tenure and average income was associated with an increase in non-Indigenous population, not by improvements in Indigenous households’ income or on-reserve employment.

Some of the mixed results are attributed to the ability to designate Reserve lands for third party use, thereby generating revenue for bands through lease payments and permit fees.  These revenues support band spending for the benefit of all, such as community halls and improving water systems.  Thus, while individual incomes may not increase substantially, the researchers found that overall quality of life improved.  The researchers conclude that, notwithstanding limitations to alleviate on-reserve poverty, enabling interests in private property has some positive effects.

Entreprenurial spirit

In addition to protecting their title and rights to their traditional territory, the McLeod Lake Indian Band have always demonstrated an entrepreneurial spirit—a strong desire to support the quality of life of its members.  While the ratification of their Land Code in 2003 was an important step to gain greater control over their opportunities for economic development, the McLeod Lake Indian Band already had a history of successful entrepreneurship.  For example, during the 1980s, the Tse’Khene disrupted provincially-sanctioned forestry operations and demanded an equitable share in forestry contracts conducted on their traditional territory.  This display of land use rights eventually led to the formation of Duz Cho Logging, a 100% owned company that is one of the biggest Indigenous-owned logging companies in Canada.  Presently, the Band operates several businesses.

• Duz Cho Construction
  Mining, pipeline, hydroelectric and oil and gas industries
• Lone Pine Forest Products
  Specialialty manufacturer of Rig Mats and Access Mats used extensively in energy, mining, construction, and other industries
• Tse’Khene Food & Fuel
  Gas bar, store, Little Teapot Cafe
• Tse’Khene Sand & Gravel
• McLeod Lake Mackenzie Community Forest Limited Partnership
  Partner with the District of Mackenzie

The entrepreneurial spirit of the McLeod Lake Indian Band is supported by the Tse’khene Community Development Corporation.  This economic development agency promotes and facilitates community and economic development to secure opportunities for business development and to increase employment of Band members.

The McLeod Lake Indian Band have a wide range of agreements with the Province of British Columbia that support not only economic development, but also social and cultural development of the Indigenous Nation.  These agreements include revenue sharing agreements for wind energy projects and forestry economic development, and benefits agreements for natural gas pipelines. These agreements are listed in the appendix.

APPENDIX

The following are a list of current agreements between McLeod Lake Indian Band and the Province of British Columbia.

Current activities

• Land issues have been settled through the Mcleod Lake Indian Band Treaty No. 8 Adhesion and Settlement Agreement Act, 2000.

Completed agreements

• McLeod Lake Indian Band Treaty No. 8 Adhesion and Settlement Agreement – 1999
• Vol. 1
• Vol. 2
• Vol. 3
• Mcleod Lake Indian Band Treaty No. 8 Adhesion and Settlement Agreement Act, 2000.

Other negotiations

First Nation Clean Energy Business Fund (FNCEBF) Revenue Sharing Agreements

• McLeod Lake Indian Band FNCEBF Revenue Sharing Agreement (Quality Creek Wind IPP) – 2017
• McLeod Lake Indian Band FNCEBF Revenue Sharing Agreement (Septimus Wind IPP) – 2017
• McLeod Lake Indian Band FNCEBF Revenue Sharing Agreement (Thunder Mountain Wind IPP) – 2017
• McLeod Lake Indian Band FNCEBF Revenue Sharing Agreement (Tumbler Ridge Wind IPP) – 2017

Forestry Agreements

• Mcleod Lake Indian Band Economic Development Agreement – 2010 (PDF)

LNG Agreements

• McLeod Lake Natural Gas Pipeline Benefits Agreement (Coastal GasLink Pipeline Project) – 2015
• McLeod Lake Natural Gas Pipeline Benefits Agreement (Pr. Rupert Gas Transmission Project) – 2015
• McLeod Lake First Nations Limited Partnership (FNLP) Pacific Trails Pipeline (PTP) Economic Participation Agreement – 2009

Other Agreements

• McLeod Lake Government to Government Agreement – 2017
• McLeod Lake Site C Tripartite Land Agreement – 2017
• McLeod Lake Economic and Community Development Agreement – 2010

A private developer has approached the McLeod Lake Indian Band Council about developing residential units on Bear Lake Reserve, shown in Map 1.  In the MLIB Land Use Plan, the planning statement for Bear Lake is as follows:

With excellent highway frontage and close proximity to Prince George the Bear Lake reserve has great potential for residential and service/commercial developments.  MLIB has signed a Municipal Servicing Agreement with the Fraser Fort George Regional District so this reserve has access to municipal water, fire protection, school services, a community hall, and garbage collection.  These services make Bear Lake ideal for highway frontage commercial coupled with a residential community.

According to preliminary designs, the development can provide up to 50 new housing units.

The Band is interested in the proposal because of two short-term needs.

1. The Band needs 25 housing units, preferably at Bear Lake reserve, to meet the needs of its members.
2. The band is interested in developing commercial properties on or nearby Bear Lake Reserve. This development requires a $4 million up-front investment before it can be initiated.

The MLIB Land Code includes rules and procedures for granting property interest on Reserve lands, but does not detail which tenure types will be administered and where no individual member of McLeod Lake Indian Band has claimed or been granted rights to Bear Lake reserve land, interest in the subject area is held communally.  Currently, it is possible that a variety of tenures could be granted to facilitate the development of Bear Lake, with each tenure composed of different bundles of rights for the developer and the Band.

Map 1.  Bear Lake Reserve:  Land Use Designations

The developer, who is well versed in First Nations land tenure, has proposed three options for the Band Council to consider.  All options are feasible.

Reserve Land Exchange

The Framework Agreement allows for alienation of MLIB Reserve lands where compensation is provided in the form of other land that is to become First Nation reserve land.  Other compensation may include land that will not become First Nation Reserve land.  The developer has submitted a draft terms of reference, which would include compensation in the following forms:

• the whole of the Bear Lake Reserve lands would be exchanged for new reserve lands within the McLeod Lake Tse’Khene traditional territory, which would be appropriate for general resource development, but not suitable for residential designations;
• a one-time settlement of $5 million; and,
• 25 potential housing units for Band members; either a member or the Band can purchase a unit (within a specified time period).

Long-term lease

The Band may negotiate a 99-year head lease for all or part of the Reserve lands with the developer who may then issue leaseholds (subsidiary sub-leases) to potential renters.  The draft contract for a head lease involves:

• annual lease payments, set initially at $300,000 and subject to review at a future date, for all of the land to the MLIB; and
• 15 housing units available exclusively to the Band at no cost (i.e., the units do not need to be purchased by the Band; they will be given to the Band as part of the agreement).  The Band will determine how to make the units available to Band members.

Joint Venture

A joint investment in an $9 million residential/commercial venture between the developer and the MLIB.  This business venture would take the form of a corporation-to-corporation agreement between the developer and a one of MLIB’s existing corporations, with levels of ownership by each of the two parties to be determined.  The joint venture would operate under a head lease with MLIB.  Important stipulations include:

• an initial Band investment of $4.5 million;
• estimated return on the joint commercial investment of $300,000 annually from potential (not guaranteed) profits; and,
• 25 housing units being made available exclusively to Band members (at no additional cost).

Resources

In addition to MLIB’s Land Code and Land Use Plan, the Framework Agreement, andIndian Act, the following resources provide relevant information.

Land management

Indian and Northern Affairs Canada (2006). Land Management Manual. Ottawa, ON: Government of Canada.

Note: this manual is for First Nations operating under the Indian Act (i.e., without a Land Code).

Leases

Starkell, Bob C. (2006). Leases on Indian Reserves. Vancouver, B.C.: Bob C. Starkell Law Corporation.

Pushor Mitchell LLP (2008). The Development Process On First Nations Lands.

Joint ventures

Fraser, Sara Jane (2002). “Joint ventures as a sustainable development tool for First Nations,” The Journal of Aboriginal Economic Development 3(1):40-44.

Websites

McLeod Lake Indian Band

Indigenous Foundations (First Nations Studies Program, University of British Columbia)

Yellowhead Institute (Faculty of Arts at Toronto Metropolitan University)

Indigenous Land Title Initiative

Framework Agreement on First Nations Land Management

Framework Agreement on First Nations Land Management

First Nations Land Management (Government of Canada)

Lands Advisory Board/First Nations Land Management Resource Centre

KPMG (2014). Framework Agreement on First Nation Land Management: Update Assessment of Socio/Economic Development Benefits.

Jobin, Shalene, and Emily Riddle (2019). The Rise of the First Nations Land Management Regime in Canada: A Critical Analysis. Yellowhead Institute.

Federal legislation

For all Federal laws:

Department of Justice

Constitution Act, 1867 and Constitution Act, 1982

Indian Act [RS 1985] c. I-5

Framework Agreement on First Nation Land Management Act S.C. 2022, c. 19, s. 121

Replaced:

First Nations Land Management Act [Repealed, 2022, c. 19, s. 143]

Is food production merely another resource-based industry equivalent to other provincial stalwarts like forestry, mining, or oil and gas?  Perhaps our farms are nothing more than urban lands-in-waiting, patiently anticipating favourable market conditions to transform them into profitable residential or industrial areas.  Or maybe, as some have suggested, agriculture is something entirely different—a “use of priority” where agricultural lands are protected from other uses, and farm viability is supported through economic policies and programs.  The answer may be deduced by first asking, “Who needs agriculture?”

Agriculture, food, and Canadian society

The question about the need for agriculture concerns “the nature of society we want, the place in it for farmers, the food policy we are comfortable with and the price we are willing to pay to obtain these important goals.”  These needs and wants have changed during Canada’s history.  The first national interests in agriculture centred on immigration and agricultural settlement as a means to increase the population of Canada’s frontier and the development of its rural economy.  The direction of development changed dramatically in the 1940s.  The impacts of mechanical and chemical inputs led to an intense wave of farmland abandonment in some areas and amalgamations in others.  From the post-war period to the late twentieth century, agricultural policy centred on state assistance in the belief that agriculture remains an exceptional sector that provides public goods that the market alone could not achieve.  The seeds of another shift in agricultural policy were planted in the 1969 Report of the Federal Task Force on Agriculture, which promoted moving away from a “public good” concept of agriculture to a focus on free enterprise and competitiveness.  In 2017, the Economic Advisory Committee to the Federal Government identified the agri-food industry as a “key sector” for national economic growth with a goal to become the world’s second largest exporter of agri-foods.

The future of Canadian society will continue to be profoundly influenced by agriculture’s development and adaptation to shifting domestic and global drivers, including market volatility, urbanisation, climatic disruptions to global food supplies, and growing demand for local food and farmland amenities.  At the same time, the nationally significant and localised nature of agri-food issues, whether in inner cities, peri-urban areas, or Indigenous territories, points to the need for co-ordination among and across multiple jurisdictions.

Land use planning seeks to minimise conflict in the pursuit of an appropriate balance of land uses.  Therefore, it is incumbent upon practitioners and decision-makers to consider the relationship between agricultural land uses and the mosaic of competing land uses that exist across the province.

The political context today

Within British Columbia (BC), and elsewhere across Canada, a historical decline in the economic and social role of agriculture during the post-war era corresponded with a significant loss and degradation of the prime agricultural land base.  Prime agricultural land refers to land with high capabilities for food production.  Capability is classified by the BC Land Inventory (BCLI) system, whereby Classes 1, 2, and 3 are considered “prime.”  “Productive” agricultural land includes Class 4.  The BCLI is based on the Canada Land Inventory (CLI) (see Box 1).

The most highly productive land base in BC faces growing pressures from urban development and the pursuit of other economic priorities, with few indications that this trend will be curtailed significantly.  As well, the rights and capacities of farmers to use agricultural lands are compromised increasingly by neighbouring non-farm uses, such as when residential neighbours file unwarranted nuisance complaints about farm odours and noise, or sever residential lots near agricultural operations.

As a land use policy, protecting agricultural land first garnered serious public attention in Canada in the early 1950s with most provincial and local jurisdictions having some form of legislation or guidelines in place by the end of the 1970s.  Connell et al. provide a comprehensive account of farmland protection policies across Canada.  However, in spite of efforts over the past fifty years, Canada has experienced a continual loss of prime farmland.

Farmland protection policies have been accompanied by an “array of economic, environmental, and social conflicts [that] characterise the tension between urban, recreational, infrastructure, and industrial land uses, and viable rural or agricultural communities.”  Correspondingly, motivations to protect farmland are influenced by factors such as food production, market value for land, environmental issues, rural landscape amenities, agrarian ideals, and land use conflicts on the urban fringe.

In addition to a desire to protect farmland, two other policy regimes influence the use and perceived value of agricultural land.  A policy regime of global competitiveness has strengthened over the past fifty years at both the national and provincial levels.  A recent report on competitiveness by the House of Commons Standing Committee on Agriculture and Agri-Food focussed on access to new markets, barriers to trade, food safety and product labelling, and market concentration within sectors.

More recently, a policy regime centred on food sovereignty has emerged.  While the control of food supplies were among the earliest drivers of nation-building and human settlements, food sovereignty is about the right of peoples to define, protect, and regulate domestic agricultural production and land policies that promote safe, healthy, and ecologically sustainable food production that is culturally appropriate.  Within BC, the growth of the local food movement, as evident by the increasing number of farmers markets and citizen-based initiatives like community gardens and local food councils, has been the forerunner of recent calls for citizens having greater control over provincial and national agri-food policies.  Adopting agri-food policies that promote greater food sovereignty and household food security could easily reach into people’s daily lives, with economic, social, and environmental implications, both positive and negative.

BC’s Agricultural Geography

Compared to many other provinces, BC has a small agricultural land base, equating to 4.2% of the total farmed area in Canada.  Of all BC lands, the following may be described as agricultural (see Box 1):

• Less than 5% of BC lands are included in the Agricultural Land Reserve;
• 1.12% of BC lands are considered prime agricultural lands (Class 1-3);
• 2.64% of BC lands are capable of producing a range of crops (Class 1-4);
• 0.06% have Class 1 agricultural capability.

Despite these relatively modest figures, BC’s farmlands are indisputably diverse and economically valuable.  The Province organises the land base into eight regions of major agricultural significance: Vancouver Island-Coast; Lower Mainland-Southwest; Thompson-Okanagan; Kootenay; Cariboo; North Coast; Nechako; and Peace Region.  Currently, it is estimated that BC farmers produce roughly 200 different agricultural commodities.  This food production accounts for roughly 48% of all food consumed within the province.  BC’s agriculture industry generates about $4.8 billion annually in gross farm receipts and employs 23,680 farm operators.

Agricultural land can also yield many valuable ecological services, such as the provision of wildlife habitat, conservation of water and soil resources, and sensitive area protection.  Moreover, many of the farmlands boast high amenity value, as evidenced by BC’s burgeoning agri-tourism industry, where consumers are increasingly enjoying direct farm marketing, orchard and winery tours, as well as low-impact recreational pursuits.  Farming can also be said to have inherent heritage values, in which BC’s past and present cultural identity has been inextricably linked to the production of food.

Productive agricultural lands contribute positively toward food security.  Food insecurity is a prevalent issue for BC’s proportionally large economic underclass, where 13.3% of BC children and youth (0-17) are living in poverty in 2020.  While universal in its significance, food sovereignty is of particular importance to many Indigenous peoples of British Columbia.  A food system largely shaped by Euro-Canadian perspectives is often to the detriment of the cultural traditions and health of Indigenous peoples.  Furthermore, the agriculture industry is purported to have significant potential toward mitigation of climate change-inducing greenhouse gases, through emission reduction practices and carbon sequestration measures.

Land Use Issues

The breadth of BC’s agriculture brings with it a host of planning challenges.  Agricultural land conversion, land use incompatibility, farm viability, and climate change are some of the issues to be considered when planning for agriculture.

The loss of farmland is concerned primarily with the conversion of agricultural land for non-farm uses, such as residential, commercial, or industrial uses.  The availability of agricultural land is also affected by other forms of alienation, such as fragmentation and parcelisation.  Other issues are alienation of farmland through foreign ownership, tree planting for carbon credits, and pressures from natural resource developments (e.g., oil and gas, forestry, mining).

Land Use Incompatibility

Despite the idyllic images perpetuated in popular media, farm operations have significant potential for conflict with surrounding land uses.  Although incompatibilities are often most visible at the agricultural-urban interface, other land use activities also negatively affect agricultural operations and vice-versa.

There are several factors that may influence the potential for agricultural land use conflict, including the type of farming operations, the intensity of farming operation, climate and topography, and perceptions.  Some of the nuisances typically associated with farming operations may include:

• odours, dust, and noise pollution;
• safety issues with livestock;
• runoff of pesticides, herbicides, and manure into freshwater bodies;
• irrigation demand; and,
• irregular or inconvenient traffic patterns (slow-moving vehicles on highways, etc.).

Conversely, farm operators in close proximity to urban, commercial, or industrial land uses may be burdened by trespass, theft, livestock harassment, invasive weeds, and other damages to property.

Farm Viability

Since the first Census of Agriculture in 1931 until 2006, BC has seen a staggering decline in farm operators.  Over the past 100 years, BC has moved from 1 in 7 inhabitants living on a farm to 1 in 211.  During the same period, the provincial population increased from fewer than 700,000 to over five million.  While these dramatic changes can be explained partially by mass urbanisation and improved farming technologies, they are also the result of the underlying economic reality of farming:  it is difficult for people to earn a living from farming.

• On the surface, BC’s agricultural sector may indicate a healthy, even flourishing industry.  However, a closer inspection reveals several troublesome trends.  In 2020, while BC farms generated $4.8 billion in gross farm receipts, they also incurred $4.2 billion in operating expenses.  This means that for every $1 in farm receipts earned, BC operators paid out $0.88 in expenses.  Meanwhile, total agricultural operating expenses keep rising, largely caused by:
• escalating land costs due to high market demand; and,
• inflation of farm input costs consistently outpacing inflation of farm product revenues.

Furthermore, gross farm receipts statistics are artificially buoyed by increasingly large inputs from government-funded payment programs.  On the upside, net farm income increased since 2016.

BC’s outlook is skewed by the disproportionate influence of large-scale operators, where 10.2% of farms account for 70% of all gross farm receipts.  Thus, farm viability is especially threatened for medium- and small-scale operators who are methodically being squeezed out of the market by large-scale retailers, commodity marketing boards, and inflexible provincial food inspection regulations.  To supplement on-farm income, the majority of BC farmers require “off farm” income just to stay afloat.

Finally, alarm is being raised about the lack of young people entering the agricultural industry to replace the aging farmer population.  In 2020, in Canada, the average age of a farmer was 56.3 years, which has increased from 49.4 in 1996, which is to say that the average farmer is getting older.  At the same time, operations led by farmers aged 55 to 59 account for the largest share of all operations at 58.5%.  If this trend persists, not only will our province undergo severe declines in economic activity and food production, but also considerable—and perhaps irreplaceable—loss of agricultural knowledge.

Climate Change

Over the past century, BC’s climate has already changed.  According to Pacific Institute for Climate Solutions report, “The science to date is unequivocal”:

• the average annual temperature increased 1.2°C (between 0.5 and 1.5°C by region);
• annual precipitation increased, on average, by 22% (between 10 to 50% by region), with the greatest increases in winter and spring;
• more heavy rainfall events in the spring;
• increase in both extreme wet and extreme dry conditions in summer; and,
• increase in extreme hot and decrease in extreme cold temperatures.

The same report also highlights expected changes for temperature and precipitation in BC:

Temperature

• • continue warming trend;
  • greater warming in north than south, inland than coastal, winter than summer; and,
  • increasing frost free days and growing degree days.

Precipitation

• • continuing increase in average annual precipitation;
  • increase in precipitation in fall, winter, spring; decrease in summer;
  • significant decrease in winter and spring snowfall in most regions; and,
  • increasing proportion of precipitation falling as rain rather than snow in most areas.

Climate change will have both negative and positive impacts for BC farmers.  One of the chief impediments to reaping the purported benefits of climate change at a local level is irrigation infrastructure and availability of freshwater.  At a global scale, changes in global food supply are certain to effect BC’s agricultural sector.  Furthermore, climate change models suggest far greater uncertainty.  While average temperature and precipitation regimes may favour food production, an increase in climatic variability poses substantial risks to producers.  And while farmers are adept at coping with environmental hazards such as flood, drought, salination, invasive plants, pest outbreaks, and wildfires, it is expected that the frequency of such events will increase.

Planning for Agriculture across Jurisdictions

Reconciling competing interests for agricultural lands remains a complicated process that crosses multiple jurisdictions.  Under Section 95 of Canada’s Constitution Act, 1867, responsibility for agriculture is jointly shared by the federal and provincial governments.  However, responsibility for land use planning rests with provinces.  Local responsibility for land use planning is the result of the provinces delegating certain areas of decision making to the local level, with varying degrees of provincial oversight.

The legislative framework for agricultural land use planning in BC is shown in Table 1.  The Agricultural Land Commission (ALC) and the Ministry of Agriculture are the primary government agencies that exercise jurisdiction over farm land uses.  These agencies must work in concert with a variety of federal (e.g., Canadian Food Inspection Agency), provincial (e.g., BC Farm Industry Review Board), regional, and municipal bodies, industry representatives (e.g., BC Agricultural Council, BC Cattlemen’s Association), Indigenous Nations (e.g., First Nations Agricultural Organization), and public organisations (e.g., Farmers Institutes) to effectively carry out their mandates.

Table 1.  Legislative Framework for British Columbia

Agricultural Land Commission Act (ALC Act)

Perhaps no piece of provincial agricultural legislation has been more celebrated and scrutinised than the Agricultural Land Commission Act (SBC 2002 Ch. 36) (ALC Act).  Originally passed in 1973 to “reflect the long-term provincial need for agricultural land,” the Act provided the legal foundation for establishing the Agricultural Land Reserve (ALR) that would be overseen by the arm’s-length Agricultural Land Commission (ALC).  “The ALC Act takes precedence over but does not replace other legislation and bylaws that may apply to the land.  Local and regional governments, as well as other provincial agencies, are expected to plan in accordance with the provincial policy of preserving agricultural land.”  The ALC Act is recognised as a progressive piece of legislation in North America.

The ALC Act is implemented through two regulations:

• The Agricultural Land Reserve General Regulation (B.C. Reg. 57/2020 O.C. 131/2020) identifies the procedures for submitting applications and notices of intent;
• The Agricultural Land Reserve Use Regulation (B.C. Reg. 30/2019 O.C. 67/2019) specifies land uses permitted in the ALR.

Agricultural Land Reserve (ALR)

BC’s 4.7 million hectare ALR, shown in Map 2, is a land use designation that divides the province into two zones: agricultural lands and non-agricultural lands.

Map 2.  ALR in British Columbia.

Under the ALC Act, ALR landowners must not use agricultural land for a non-farm use unless permitted by the Act or the regulations.  The Act (s. 37) explicitly states that affected landowners will receive no compensation for land use restrictions, since “land is deemed not to be taken or injuriously affected by its designation as an agricultural land reserve.”  Subject to certain provisions, activities designated as farm use under the ALR Use Regulation include:

• the construction, maintenance and operation of farm buildings;
• land development works;
• the storage, packing, product preparation or processing of farm products;
• the application of soil amendments, fertilisers, composts, etc.;
• farm retail sales;
• agri-tourism activities; and,
• timber production and agroforestry.

In addition, the regulation outlines a number of permitted uses, which provide some flexibility for activities that are not considered to detrimentally impact future agricultural production.

The original ALR was established over a 90-day period.  Each of BC’s 28 Regional Districts was made responsible for delineating reserve boundaries within their region.  Boundaries were established primarily through technical analysis based on Canada Land Inventory (CLI) maps, in which agricultural potential of soils and climate are ranked into seven different categories based upon ability to produce a range of crops (Box 1, above).

The BC Land Inventory (BCLI) classification index, which is adapted from the CLI, is premised upon a mechanised production system; it does not consider “distances to markets, kind of roads, location, size of farms, type of ownership, cultural patterns, skill or resources of individual operations, and hazard of crop damage by storms” in its determination.  In addition to the BCLI system of classification, there are also the Land Evaluation and Area Review (LEAR) system and the Land Suitability Rating System (LSRS), both of which take more factors into account.  Neither of these other systems are used in BC.

From 1976 to 1996, the ALR underwent an extended period of fine-tuning, where boundaries were adjusted to account for:  (1) imprecision in the original boundary setting process; (2) the inclusion of additional land inventory data; (3) local government planning priorities; and, (4) landowner appeal.  Yet concerns about the validity of existing boundaries remain, while boundary reviews continue.

Despite many competing factors, since 1974, the total reserve area has remained consistent.  In 35 years, total ALR lands have actually increased; however, “the quality of farmland in the ALR has decreased, with 2.8 hectares of prime farmland being excluded for every hectare of prime farmland included.”  This trend has manifested itself in a gradual shift of ALR lands, where 90% of farmland inclusions occur in northern regions while over 70% of exclusions take place in southern environs.  The vast majority of reserve lands are now located in the Province’s northern and interior farming areas.

In May, 2014, the ALC Act was amended via Bill 24.  Although the mandate of the ALC was not changed, there were several major amendments that changed how agricultural land use decisions are made.  The most significant of these changes was a division of the ALR into two zones.  Zone 1 comprised the Island, South Coast, and Okanagan panel regions.  Zone 2 included the Interior, Kootenay, and North panel regions.  As stated in the Province’s announcement of the changes,

In Zone 1, where land is in greater demand and there are development and population pressures, ALC decisions will continue to be made on the basis of the original principle of preserving agricultural land.  In Zone 2, where growing seasons are shorter and there are lower value crops, ALC decisions will now, in addition to the original principle, include additional considerations to provide farmers with more flexibility to support their farming operations.

In Zone 2, the ALC “must consider all of the following, in descending order of priority:  (a) the purposes of the commission set out in section 6; (b) economic, cultural and social values; (c) regional and community planning objectives; (d) other prescribed considerations.  Regulations to implement these changes were implemented in 2015.

The two-zone ALR was returned to a single-zone in 2019 via Bill 52, soon after a change in government.  Other changes included limited new house sizes to less than 500 square metres and greater restrictions and increased penalties for dumping of construction debris, toxic waste, and other fill in the ALR.  Changes were also made to regulations.

Agricultural Land Commission

As described in Section 6 of the ALC Act, the purposes of the ALC are to:

1.  (a) to preserve the agricultural land reserve;

(b) to encourage farming of land within the agricultural land reserve in collaboration with other communities of interest;

(c) to encourage local governments, first nations, the government and its agents to enable and accommodate farm use of land within the agricultural land reserve and uses compatible with agriculture in their plans, bylaws and policies.

2. The commission, to fulfill its purposes under subsection (1), must give priority to protecting and enhancing all of the following in exercising its powers and performing its duties under this Act:

(a) the size, integrity and continuity of the land base of the agricultural land reserve;

Operating on the principle that the “provincial government is best able to steward the long-term food system needs of the citizens of British Columbia,” the original ALC was composed of a five member panel made up of representatives from around the province.  This governance structure was thought to be consistent with the Commission’s mandate to make decisions in the provincial interest.  In 2002, the Commission underwent a controversial restructuring, both in mandate and board composition.  In an effort to make the Commission more “regionally responsive,” the original five member panel was abandoned in favour of six regional boards (Interior, Island, Kootenay, North, Okanagan, and South Coast), each composed of three commissioners.  In the same year, the ALC adopted a three-year service plan that introduced performance measure objectives “to increase the regional responsiveness of the Commission to community needs.”  Subsequently, the language of “community need” was incorporated into subsequent ALC service plans, with the 2009-10 plan stating, “The boundaries of the Agricultural Land Reserve reflect agricultural suitability, the needs of the agricultural industry and long term community needs and food requirements.”  Some critics argued that this subtle shift in the Commission’s mandate resulted in an increasing number of municipalities exercising and in some cases abusing Section 13 of the ALC Act which contains provisions for facilitated dispute resolution on community issues.

Bill 15, which came into force in 2020, led to additional changes in the ALC Act.  Affected areas of the ALC Act included the following: the ALC governance model (i.e., structure of the panels); more compliance and enforcement capacity and tools; new decision-making criteria to prioritize the protection and enhancement of the size, integrity, and continuity of the land base; and a requirement that applications for exclusions be submitted to the ALC only by local governments, Indigenous governments, or the Province.

In January, 2020, the Ministry of Agriculture initiated a review of its recent changes to the Act through Bill 52.  The review was based on a policy direction to increase residential flexibility in the ALR.  The rationale for more residential flexibility is based on several potential needs: keeping a family member (e.g., an aging parent) on the property; providing a residence for a farmer transitioning out of farming, or for a young or new person transitioning into farming; providing farmer or farm-worker accommodation, without the need to apply to the ALC; enabling a source of rental revenue.

To fulfill its mandate as set in Section 6 of the ALC Act, the ALC operates in a variety of capacities, including advising local governments on development of plans and applicable bylaws; and monitoring and auditing municipal plans and implementing bylaws for consistency with the ALC Act.  However, by far the most important of the Commission’s many responsibilities is exercising decision-making authority for applications.  There are several types of applications:

• Exclusion

Application to remove land from the ALR; if approved, none of the ALC Act applies to the land.  The land is subject to local government bylaws.

• Inclusion

Application to designate land as ALR; if approved, the parcel is added to the ALR and the ALC Act applies to the land.  The land is subject to local government bylaws.

• Subdivision

An ALR parcel is divided into two or more parcels; each parcel is legally separate.  The subdivided parcels remain in the ALR unless also approved via an application for exclusion.  The parcels can be any combination of sizes.

• Non-Adhering Residential Use

Permitted residential uses of ALR land are defined by the ALC Act and its regulations.  For residential uses in excess of those permitted, i.e., residential uses that do not adhere to the ALC Act and its regulations, must be approved by the ALC via application.

• Non-farm uses

Literally, this refers to a use of agricultural land for non-farm purposes.  Non-farm uses fall into categories of permitted and non-permitted uses.  Permitted uses are defined by provincial regulations (Agricultural Land Reserve Use Regulation – 30/2019).  Non-farm uses that are not permitted by regulation must be approved by the ALC via application.

• Soil and fill

A type of non-farm use.  An application to remove soil from or to add material (i.e., fill) to ALR land.

• Transportation/Utility/Trail

A type of non-farm use.  An application to use land for these specific non-farm uses:  transportation (e.g., widening roads, new roads); utility (e.g., power lines, sewage treatment); and trails.

Since its formation in 1973 to 2012, the Commission processed over 35,000 applications, a task that consumes the majority of the ALC’s resources.  While the furor of applications has waned since boundary refinement, the Commission still receives anywhere from 470 to 650 applications annually.  About 90% of applications are made by private landowners, with the remaining percentage comprised of local and regional governments.

When the Commission reviews applications, its mandate to preserve the agricultural land reserve serves as the primary criteria for making decisions.  Considerations for agricultural capability of the parcel, agricultural suitability, and impact on agriculture help to inform the Commission’s decisions.

Agricultural capability:  whether the property is appropriately designated as ALR.

The effects of a change in agricultural land use would consider the agricultural capability of the soil. T he BCLI ratings are the basis for evaluating capability and would be completed usually by a professional agrologist.  Related objectives are to mitigate impacts on prime agricultural areas and directing non-farm uses to agricultural land of lower capability.

Agricultural suitability.  Whether the proposed land use change would affect the agricultural utility (or capability) of the property.

Agricultural suitability evaluates the proposed change in land use in relation to adjacent lands and land uses in the area.  The Commission will assess external pressures on the subject parcel, including whether factors such as encroaching non-farm development have caused or will cause the land to become unsuitable for agriculture.  Consideration for suitability also accounts for the history of agriculture in the area and whether subdivisions in the area are outside the ALR.

Impact on agriculture,  Whether there is an agricultural benefit to the subject parcel and local area.

The Commission will consider whether the proposed land use change would negatively or positively affect existing or potential use of agricultural land in the surrounding area.  For example, the Commission is reluctant to allow exclusions where there are existing agricultural land holdings and active farming or ranching is occurring.

Inevitably, land owners applying to the ALC for an exclusion or non-farm use and the ALC do not always agree on either the outcome or the criteria.  Regarding the criteria, the ALC is concerned with “what is” while applicants often base their argument on “what should be.”  For instance, the ALC will assess the capability of the parcel for agriculture whereas the applicant might focus on the viability of the farming operation.  From the ALC’s perspective, viability is predicated on the operator’s skills and abilities, not on the capability of the soil. It is not within the mandate of the ALC to assess the former.

Ministry of Agriculture

The portfolio of the Ministry includes responsibilities pertaining to:

• achieving a balance between agricultural and urban interests;
• promoting environmental, social, and human health by regulating food production practices;
• monitoring and managing risk of disease (agricultural, horticultural, and aquacultural);
• guiding economic development of the agricultural sector to “increase innovation, competitiveness and profitability”;
• providing farmer income stabilisation programs; and,
• developing agricultural legislation as well as strategic and operational policy.⁴²

The Ministry is responsible for administering the provincial Strengthening Farming Program, which “supports fair resolution of land use conflicts and effective community planning for a sustainable agriculture and aquaculture industry in British Columbia.”  A tenet of this program is providing legislative support for farming activities through the Farm Practices Protection (Right to Farm) Act (RSBC 1996 Ch 131) also known as the “Right to Farm” Act.  The legislation affirms that BC farmers will not be held liable for nuisances caused by agricultural activities.  The organisation formed to resolve disputes under the act is the quasi-judicial Farm Industry Review Board, which determines whether or not a farmer has followed normal farm practices.  The Strengthening Farming Program also provides the planning framework for integrating farming for municipal, regional, and provincial government bodies.  Currently, there are three types of plans that directly or indirectly speak to agricultural land use priorities:  (1) Regional Growth Strategies; (2) Official Community Plans; and, (3) Agricultural Area Plans.

Regional Growth Strategies

BC’s unincorporated areas contain the majority (~ 95%) of ALR lands within the province.  As a result, regional districts can play a significant role in co-ordinating compatible uses around existing and future farmlands.  “Regional planning can also strategically address deficiencies in the links between local governments and provincial ministries and agencies, and can set in place broad regional land use objectives.”

Under Part 13 of the Local Government Act (RSBC 2015 Ch 1), a regional district may enter into an agreement with its member municipalities to enact a Regional Growth Strategy (RGS) with the “purpose of guiding decisions on growth, change and development within its regional district.”  This is accomplished by planning across municipal boundaries to achieve a shared vision for a district by articulating specific goals related to social, economic, and environmental values.  Once enacted, all subsequent bylaws and land use plans must be consistent with the RGS.  A RGS may also benefit agricultural lands by protecting farmlands through the creation of urban containment boundaries (for an example see Map 3) and developing planning strategies to support and enhance a region’s agricultural sector.  For example, the Metro Vancouver Regional Growth Strategy states a clear commitment to farmland protection as part of a comprehensive approach to planning for a regional food system.  Strategy 2.3 of the RGS states, for example, “Protect the supply of agricultural land and promote agricultural viability with an emphasis on food production.”  This strong statement is supported by clear commitments to urban containment boundaries.  In addition, Metro Vancouver completed a regional agricultural land use inventory, a regional food system strategy, and action plan.

Map 3.  Example of Urban Containment Boundary

Official Community Plans (OCPs)

The relevance of an Official Community Plans (OCPs) to BC’s agricultural land base depends on the total area of ALR land included within a municipal boundary.  Part 14 Section 473(1)(b) of the Local Government Act requires a municipality to include statements (objectives) and map designations respecting “the approximate location, amount and type of present and proposed” agricultural land uses.  Farming land use designations should include all ALR lands, and may include non-ALR lands.  In addition, section 474(1)(c) permits an OCP to include “policies… respecting the maintenance and enhancement of farming on land in a farming area or in an area designated for agricultural use in the plan.”  Further, local governments (regional districts and municipalities) can take a more active role in agricultural planning through a variety of methods, as evident by the efforts of Metro Vancouver noted above.

OCPs may include reference to preserving contiguous agricultural areas, allowing for a wide range of farming land uses, restrictions on road construction, etc.  The District of Central Saanich OCP (2023) provides an example of strong agricultural policy:

Objective: Preserve lands with potential for agricultural production.  Protect these areas from incompatible and detrimental land uses, and support efforts to increase the productivity of farmlands to improve food security to support a healthy community.

Policy 1: Retain areas designated as Agriculture on Schedule F: Land Use Plan for agricultural purposes regardless of any changes that may be made by the Provincial government with respect to the Agricultural Land Reserve.

An OCP may also establish Development Permit Areas to minimise land use conflict in the agriculture-urban interface.  The farming-sensitive permit areas may provide detailed development requirements including (but not limited to):

• setbacks, fencing, and landscape buffers;
• awareness covenants;
• stormwater management;
• appropriate zoning designations for lands adjacent to agricultural areas; and,
• restrictions on infrastructure that may encourage non-farm speculation in the future.

Zoning bylaws are the primary mechanism through which OCP land use designations are implemented.  Zoning bylaws allow a local government to enforce specific regulations related to permitted uses, minimum lot sizes, lot coverage, etc.  Under Part 14 Division 17 of the Local Government Act, a municipality may also choose to enact farm bylaws, which “allow for greater flexibility in standards for farming…matters which cannot be regulated by zoning bylaws.”  Farm bylaws are local standards regulating conduct of farm operations, farm buildings, and farming materials/waste handling.  However, the real merit of farming bylaws is the ability to develop different regulations depending on the size, type, and location of a farming operation.

An OCP may also identify and provide policy direction for “edge planning” areas along the agricultural-urban interface.  For example, an OCP may require modified building standards for an edge planning area, such as double-paned windows for residences in order to reduce noise and odour nuisances.  Roadway ordinances may suggest that no roadway endings can be pointed towards an agricultural area.  Many municipalities also incorporate signage requirements in agricultural areas to increase resident awareness.  However, perhaps the most widely used technique in edge planning is buffering, which incorporates a combination of separation of uses, dense vegetation, and fencing.  While buffers may vary widely in type, including earth mounding, ditches, retention ponds, etc., the Ministry’s Guide to Edge Planning recommends these specifications for buffers:

• A total minimum separation distance of 30 m (15 m of which is a vegetative buffer) between a housing unit and agriculture-urban boundary;
• A barrier (fence) to deter trespass;
• A vegetative buffer with a finished height of at least 6 metres to act as a screen and help capture dust and spray drift;
• A mixed deciduous and coniferous planting; densely packed hedges are not desirable due to poor air circulation;
• A 2-metre separation distance between a low-growing vegetative buffer and agriculture-urban boundary; and,
• Any pathway or passive recreation along the buffer should be set far away from the farms.

Agricultural Area Plans

An Agricultural Area Plan (AAP) is a planning tool that municipalities may use to identify issues, opportunities, and solutions related to the farming sector’s future.  Essentially, AAPs “act as sub-area or neighbourhood plans of the OCP and provide a high level of detail specific to the issues relevant to farming.”  AAPs are part of a logical planning hierarchy with the additional benefit of allowing for cross-jurisdictional management of agricultural lands.

Ideally, AAPs are prepared as a collaborative effort between a municipal government, the provincial government, the ALC, and most importantly, the farming sector.  Members from these groups are usually organised as an AAP Working Group or Agricultural Advisory Committee.  While each AAP is necessarily unique, the plans will likely include:

• a map delineating the agricultural area;
• a comprehensive inventory of current agricultural production and future projections;
• strategies and policies designed to protect agricultural areas;
• strategies and polices designed to enhance the economic viability of the local agricultural sector;
• a detailed implementation plan, complete with responsible actors, timelines, and budget allocations; and,
• monitoring regimes to assess the progress of plan implementation.

Agricultural Impact Assessment

Another important tool available to planners and agrologists is an agricultural impact assessment (AIA).  Ideally, an AIA is required when considering non-farm developments that affect agricultural land and farming or ranching activities.  Relevant considerations include capability of the soil, suitability of the land for agricultural uses, negative impacts on the industry, fragmentation of the land base, minimum parcel sizes, direct development away from prime and viable agricultural lands, and mitigate negative impacts on existing or adjacent agricultural areas.  Agricultural impact assessments are usually completed by a professional agrologist.  The Land Evaluation and Area Review (LEAR) system and the Land Suitability Rating System (LSRS), both of which take multiple factors into account, can be incorporated into an AIA.

Legislation

BC Laws

Agricultural Land Commission Act [SBC 2002] c. 36

Agricultural Land Reserve General Regulation, B.C. Reg. 57/2020

Agricultural Land Reserve Use Regulation, B.C. Reg. 30/2019

Farm Practices Protection (Right to Farm) Act [RSBC 1996] c. 131

Local Government Act [RSBC 1996] c. 323

Land Act [RSBC 1996] c. 245

Manuals

Smith, B. M. (1998). Planning for Agriculture. Provincial Agricultural Land Commission.
[scroll down to see links to four parts of the manual]

Excerpt from abstract:

Planning for Agriculture is a comprehensive guide for local government planners, farmers, and other stakeholders which provides a detailed review of plan and bylaw delivery systems and how agriculture can best fit within these processes.  Key issues facing agriculture are considered along with practical suggestions and solutions that may be achieved through local initiatives.  The importance of a more focused effort to plan for agriculture’s sustainability through the adoption of ‘agricultural area plans’ and the detailed development of land use policy along critical portions of agriculture’s interface are highlighted.

Reports

BC Minister of Agriculture’s Advisory Committee for Revitalizing the Agricultural Land Reserve and the Agricultural Land Commission (2018). Final Committee Report to the Minister of Agriculture: Recommendations for Revitalization.

This final report sets out a comprehensive list of recommendations.

Bullock, Richard (2012). Changing the Way We Do Business: An Update on the Transition of the Agricultural Land Commission, August 23, 2012.

This is a ‘message from the Chair’ that outlines the changes made to the ALC since the completion of the organisational review in 2010 (see next annotation).

Bullock, Richard (2010). Review of the Agricultural Land Commission. Moving Forward: A Strategic Vision of the Agricultural Land Commission for Future Generations, November 26, 2010.

This report is the outcome of a review of the ALC’s operations, policy, regulations, and legislation.  The purpose of the review was to verify that the ALC is meeting its mandate while looking for ways to improve its decision making processes.

Curran, D. (2005). Protecting the working landscape of agriculture: A smart growth direction for municipalities in British Columbia. West Coast Environmental Law.

Excerpt from introduction:

This report details the range of tools local governments are using to protect the agricultural working landscape, and directs readers to specific examples of local government bylaws and policies.  Its purpose is to encourage local governments to adopt effective tools for protecting the working agricultural landscape.

Curran, D. (2007). British Columbia’s Agricultural Land Reserve: A legal review of the question of “community need.” SmartGrowth BC.

Excerpt from introduction:

The purpose of this report is to examine the Agricultural Land Commission’s recent attention to the concepts of “regional responsiveness” and “community need” in light of its mandate to preserve agricultural land as set out in the Agricultural Land Commission Act.

Climate Change Adaptation Program

The Climate Change Adaptation Program was a province-wide initiative led by industry with the goal of helping producers successfully adapt to the impacts of a changing climate.  Through its two sub-programs, the Regional Adaptation Program and the Farm Adaptation Innovator Program, the Program provided funding for the development and implementation of collaborative regional adaptation strategies, innovative adaptation action at the farm level, and industry communication.  Background materials include a review of climate change scenarios for the province and its regions, as well as assessments of risks and opportunities for the agricultural and food sectors.

Cariboo Regional District

Directory of all Bylaws

Cariboo Regional District, South Cariboo Area Official Community Plan Bylaw 5171, 2018

Cariboo Regional District, South Cariboo Area Zoning Bylaw No. 3501, 1999.

British Columbia’s inland temperate rainforest is over 500 kilometres from the coast (Figure 1). Globally, this is unique.  Typically, rainforests exist along coasts where moisture-laden winds from the ocean soak lush forests rich in biodiversity and beauty.  Rainforests exist inland where conditions are just right.  The rarity of such conditions make inland temperate rainforests special.

Figure 1.  Location of BC’s inland temperate rainforest

The scenery is also very striking, with very large trees covered in lichen and moss and a forest floor blanketed with ferns, Devil’s Club, and other vegetation.  In the ancient stands of the upper Fraser Rive watershed, trees are three or more metres in diameter.  The oldest trees are estimated to be 1,000 years or more, and perhaps up to 2,000 years.  The largest documented tree, the tree along the Ancient Forest Trail known as “Big Tree,” measures 4.13 m in diameter.

Not only are individual trees old, so is the forest itself.  The absence of natural disturbances, such as wildfire, landslides, and avalanches, means that some of these stands  have not been disturbed for a long time.  Among biologists, “ancient forests” denote stands of trees that have been in place for 1,000 years or more.  This is why people who know these trees refer to them as the Ancient Forest.  In the Lheidli dialect of the Dakelh language, chun t’oh whudujut refers to the “oldest trees.”

Block 486 is a film about these stands of ancient cedar trees.  The title of the film refers to the number of a forest licence held at the time by TRC Cedar Inc., a local forestry company that produced cedar rails and posts for gardens, with byproduct sold as garden mulch.  Block 486 contains some of the biggest, oldest trees in the watershed.

The film was released publicly at a screening in Prince George in November, 2006.  After the film was shown, the floor was opened for questions with the film’s producer.  David Radies, a graduate student at the University of Northern British Columbia (UNBC) who was studying the ancient cedars for his Master’s degree, was in the audience.  Radies’ profound question captured what everyone in the room was thinking:  “Why are we turning thousand-year old cedars into garden mulch?”

The film strikes at the heart of protected areas:  When is a natural area worth protecting?  What users, interests, and values must be considered?

Globally-unique ecosystem

The global significance of the forest’s ecological value was first documented in 1994 by Trevor Goward, which makes this a relatively new scientific discovery.  As explained by Coxson, Goward, and Connell, the weather systems that support rainforests on BC’s west coast are also responsible for a secondary zone that supports the inland rainforest as the weather systems cross interior mountain ranges.  The result is a zone of high precipitation, most of which falls as snow in the winter.

According to BC’s Biogeoclimatic Ecosystem Classification (BEC) system, the inland temperate rainforest is in the Interior Cedar-Hemlock (ICH) zone (Figure 2).  Among the ICH subzones, the ancient forests of the upper Fraser River are in the very wet (v) and cool (k) subzones (ICH vk), largely due to its geographic location in the lower slopes of the Columbia and Rocky mountains.

Figure 2. Location of inland temperate rainforest (Interior Cedar Hemlock wetbelt) of upper watershed of Fraser River

In this very wet, cool zone, the high-level snowpack is the essential source of water for the ancient cedars throughout the year.  In the spring and summer, the melting snowpack migrates downslope, picking up nutrients along the way, and feeding the forest systems downslope.  In particular, the water pools in toe slope areas, providing ideal conditions for what have become impressive stands of very large, old western redcedar.

Although people are readily impressed by the size and beauty of the cedars, the canopy of the ancient forest is also home to rich biodiversity.  A scientific assessment of biodiversity of a small sample of the area identified more than 900 species, some red- and blue-listed species (endangered or near extinction in B.C. or even globally).

Importantly, the climatic conditions that create ideal conditions for the cedar also suppress stand-level wildfires.  When lightning strikes, only a few trees might catch fire; the wet conditions prevent the fire from spreading (as evident in Figure 3).  However, the stands will be subject to future impacts of climate change, which are largely unknown.

Figure 3. Western redcedar burning a few days after a lightning strike

Traditional uses of the Lheidli T’enneh

Chun t’oh whudujut, the “oldest trees,” are important to the Lheidli T’enneh.  The stands of western redcedar are tied to their cultural practices and traditions and were sources of medicinal plants.  The Lheidli visited the stands from summer fishing camps along the upper Fraser River.

The traditional territory of the Lheidli T’enneh (Figure 4), an area of over four million hectares, covers a diverse landscape.  Significantly, the Fraser River traverses the whole of their area traditional territory, which also covers portions of the Rocky Mountains and extends to the Alberta border.  The rivers and river valleys are essential to travel, trade, and culture based on hunting, fishing, trapping, and gathering.

Figure 4. Traditional territory of the Lheidli T’enneh

Note: This map, which is for illustrative purposes only, represents an approximate boundary of the traditional territory.

Within their territory, the areas where the Lheidli T’enneh lived and their activities varied by season.  During the winter months, larger groups of the Lheidli T’enneh lived in semi-permanent villages of pit houses.  In other seasons, family groups lived at seasonal camps throughout their traditional territory.  Although these seasonal camps varied from year to year, family groups returned to key sites along rivers for salmon, on lakes for fishing in the spring, and in the mountains for hunting in the fall.

In recent years, the Lheidli T’enneh signed several economic benefit agreements with the Province of BC.  These agreements aimed to ensure that Lheidli T’enneh would more fully benefit from the natural resources within their traditional territory while enhancing their social, economic, and cultural well-being of their members.  In 1997, the Lheidli Nation established LTN Contracting Ltd., a timber harvesting company operated as a joint venture with Roga Contracting Ltd.  The forest agreements have covered replaceable and non-replaceable licences as well as revenue sharing.  Although the areas covered by these agreements include stands of ancient cedars, the focus of logging is in deciduous-leading harvest areas.  In the Forest Tenure Opportunity “A&B” Agreement signed in 2011, the Lheidli T’enneh have access to 101,888 cubic metres annually via non-competitive bid, with a maximum volume of 509,440 over five years.  The Forest Consultation and Revenue Sharing Agreement, signed in 2018, provides the Lheidli T’enneh with a portion of provincial revenues derived from timber harvesting with their traditional territory.

History of logging cedar trees

The Lheidli T’enneh have lived among the ancient forests for thousands of years.  For others, the value of this unique landscape has been “discovered” several times in various forms.  Alexander Mackenzie travelled through Lheidli territory in 1793 and was followed by Simon Fraser in 1808.  A major incursion by non-Indigenous peoples was the Grand Trunk Pacific Railway, which started in Winnipeg and led to Prince Rupert.  In 1911, the construction crew crossed the Alberta/BC border and then into the watershed of the upper Fraser River. Construction of the railway was completed in 1914.

From a settler perspective, the upper Fraser River watershed was a remote, bustling area.  In her book on the history of the area, Marilyn Wheeler notes a brochure from 1914 promoting the area as the “new garden of Canada.”  An early account described the area as a “picture of tremendous beauty,” but also an “eerie forest” that looked like “the Devil’s Cathedral.”

The next major incursion through the upper Fraser was the highway, completed in 1968.  Highways tend to be constructed on the toe slopes of mountain areas.  Unfortunately, as discussed above, these toe slopes are also prime areas for ancient stands of cedars.  When the highway was built, it tended to be built through these stands, which is evident as one drives through the valley, seeing cedars on both sides of the highway.

As Wheeler documents, prior to the highway, the valley was dominated by small mills.  The new highway, however, opened up the valley to a greater flow of people and products, including logs.  As more logs were trucked out of the valley to Prince George, the local mills closed.  Although cedar posts and poles continued to be shipped out of the area, the stands of giant cedars were not a prime area for logging.  The larger cedars have hollow centres and tend to shatter when felled, thus reducing their economic potential while increasing harvesting costs.  Although the low-timber value of the giant cedars meant that most areas were not logged extensively, the greatest impact on stands of ancient cedars was the construction of the highway through the valley.

There are a few small and medium-sized companies in the McBride area that are harvesting and processing western redcedar.  Midget Mills is a second-generation family-owned and -operated custom saw mill using locally-harvested logs.  In addition to western redcedar, they saw spruce, balsam fir, pine, Douglas fir, hemlock, poplar, and birch.  For more than two decades, Cedar 3 Products produces split post and rail fencing, cedar bark mulch, and custom cedar furniture.

TRC Cedar also operated in the area, employing about 40-50 people.  Using a more aggressive approach, TRC Cedar acquired volume-based licences to harvest looper-killed hemlock.  When the market for salvaged hemlock dropped almost immediately and significantly, TRC Cedar requested permission to cut green wood and less salvage stands, including the cutting of “damaged” (i.e., low timber value) ancient cedars stands.  The request was approved as a desirable balance between the salvage objective and maintaining local employment opportunities, thereby establishing the timber value of the ancient cedars as a priority.  The government policy at the time viewed cedar as a “decadent” species that should be harvested and replaced by other faster-growing species.  Most of the stands that TRC Cedar had identified for logging included the oldest, biggest, and most ecologically-significant stands of cedar.  Their license included Block 486, which was the focus of the film. Block 482 is located a few kilometres west of Block 486 and was clear-cut around 2007 (Figure 5).  In February 2008, TRC sold its forest licence to harvest the cedar-hemlock stands; the volume was transferred to beetle-attacked pine stands in the southern interior.

Figure 5. Block 482, clear cut

A few years after TRC ceased operations, the gap in the market was filled by BKB Cedar Manufacturing, which was established in 2013.  BKB manufactures cedar post and rail fencing, as well as mulch and wood chips.

The McBride Community Forest Corporation (MCFC) has operated in the valley since 2007.  The company, which is wholly-owned by the Village of McBride, has exclusive rights to harvest timber from an area surrounding the village.  Under a Community Forest licence, the primary aims are to stimulate local economic activity and provide a monetary return back to the village and its residents.  Spruce (41%) is the dominant species within the MCFC timber supply area, with subalpine fir (17%) and other species present.  Western redcedar covers 16% of the area and is part of MCFC’s harvest plans.

Recreational values

Access to the ancient forest was enhanced greatly when the Ancient Forest Trail was built.  The trail was born out of collaboration and coincidence.  In 2005, a group of local residents from the Dome Creek area wanted to improve recreational access to stands of ancient cedars in the area.  At the same time, members of the Caledonia Ramblers Hiking Society, a group of volunteers based in Prince George, were exploring ways to improve access to the Driscoll Ridge trail, which they maintain.  Both groups were considering a new trail in the area of TRC Cedar’s Block 486.  Figure 6 shows the first sketch of the proposed trail (dark blue line); it also shows the boundary of Block 486 (solid pink line) and a proposed access road for the logging operation (pink crosses).  After getting permission from the province, the Ancient Forest Trail, a 2.5 km interpretive trail (Figure 7) built by volunteers (Figure 8), opened officially on June 4, 2006, the same year that the film Block 486 was released.

Figure 6. First sketch of proposed trail

Figure 7. Ancient Forest Trail map

Figure 8. Nowell Senior Universal Boardwalk under construction, part of the Ancient Forest Trail.

Around this time, David Radies was conducting research on biodiversity in the area.  During one of his trips into the stands of ancient cedar, Radies found flagging tape and markings on the trees in Block 486.  Concerns rose immediately among local residents, scientists, and recreational users that the ancient cedars would be harvested within weeks.  The conflict remained until TRC Cedar sold its licence.

In November, 2008, a Recreation Order established the Ancient Forest Trail as an interpretive site and the Driscoll Ridge Trail as a recreation trail.

It did not take long after the trail opened for word of the ancient cedars to spread.  Visits to the trail increased dramatically.  Estimates of visits to the Ancient Forest Trail indicate growth from 4,749 visits in 2008 to almost 15,000 visits in 2016 (Chart 1).

Chart 1. Ancient Forest Trail, estimated users (summer hiking season, 2008-2016)

The Ancient Forest Trail has been walked by visitors from around the world.  According to entries made in the visitor’s book at the trail head, visitors represent 12 Canadian provinces/territories, 28 states of the USA, and 26 countries outside North America.

Policy Development

The ancient forests of the upper Fraser River watershed are located on Crown lands, areas that are owned and managed by the Province of British Columbia.  The management of these lands is governed by relevant provincial legislation such as the Forest and Range Practices Act and the Park Act.  Within this policy regime, the aim is to maximise the timber value based on sustainable levels of harvesting and the primary means for allocating land uses is through timber supply analyses.  Little priority is given to the non-timber forest values of the ancient cedars.

Stevenson et al. describe the historical development of logging in the inland temperate rainforest, including the stands of ancient cedars.  Throughout the early days of settlers, logging was a daily chore, occupied with harvesting wood for buildings and fires.  Small-diameter cedar was harvested regularly for poles; the outer shells of larger-diameter trees were used for shakes, shingles, fence posts, and fence rails.  Over the many years since, harvesting has focused primarily on white spruce, Douglas fir, and subalpine fir, with redcedar constituting only a relatively small percentage of total volume logged.  Notwithstanding their lower economic value, cedars remain a source of valuable shakes, shingles, posts, and rails.  Harvesting and processing tended to be done by smaller companies.  Over time, the volume of western redcedar harvested declined dramatically, yet remains a specified component of harvest quotas.

Since 1999, there have been a number of important developments regarding land use policy in the valley of the upper Fraser River.  The development of comprehensive regional land use plans, which began in the 1990s, provides a starting point.  At that time, the Province of BC revised its land use planning processes with the aim to incorporate more non-commercial values such as wildlife, tourism, and culture.  This change centered on the development of Land and Resource Management Plans (LRMPs) that would govern all activities on public land.

The Prince George LRMP (1999) and Robson Valley LRMP (1999), which cover most of the ancient cedar stands, were intended to help guide forest development and established new protected areas.  Although stands within the cedar-hemlock forests are valued as old-growth forests in the Prince George LRMP, and the plan included specific objectives for biodiversity and maintaining rare and common habitats, there is no mention of other special values associated with the ancient cedars.  The Robson Valley LRMP states only, “Some of these cedar-hemlock forests are more than 500 years old and have areas with a variety of macrolichen species.”  The LRMPs did lead to the designation of provincial parks that had specific objectives to protect some stands of old-growth cedar-hemlock.

Coxson, Goward, and Connell discuss land use policy governing old-growth stands.  As they explain, stands of ancient cedars within the upper Fraser River watershed been managed as part of the timber harvesting land base with the implicit or explicit objective of sustained timber production over time.  As stated by the province’s Chief Forester, it is “important to maintain old growth redcedar on the landscape for future generations and to meet requirements to manage old growth in the ICH.”

According to the provincial government’s 2004 “Old Growth Order,” 53% of upper Fraser forests was to be maintained as old forests.  However, the status of this old growth order in the Prince George Timber Supply area is uncertain.  Recommendations from the review of the mid-term timber supply state that “it is possible to increase mid-term timber supply in the Prince George TSA to 9.2 million cubic metres per year (almost the pre-beetle level) by removing the Prince George old growth order”.  The report acknowledged risks associated with this recommendation, namely that “removing the requirement for old growth increases the risk of survival for those species and plant associations reliant on old growth habitats and structures”, and provides the caveat that “conserving remnants of these older forests, consistent with approved land use plans, is still extremely important”.

According to provincial policy, “old growth” includes trees that are more than 140 years old.  This definition of old forests, which is used in the old growth order, has substantial limitations as a management tool for conserving ancient forest stands.  The 53% target is set aspatially and has no long-term or defined boundaries; rather they may be located in different parts of the landscape as harvesting proceeds and managed landscapes evolve, regardless of species composition or site conditions.  This fails to recognise the long-term site continuity and site-specific topographic factors which constrain the development of ancient cedar stands.

This policy gap was acknowledged by the Integrated Land Management Bureau (ILMB) in its 2008 report and, subsequently, led to designating many ancient cedar stands within old-growth management areas (OGMAs).  In the upper Fraser watershed, these are spatially defined, some affording legal protection (so-called legal OGMAs), others simply constituting advice to industry on best practices and not legally binding (i.e., non-legal or “guidance” OGMAs).  While these OGMAs provide near-term protection from logging, it must be stressed that OGMAs in general do not provide protection from other types of industrial development such as mining, hydroelectric development or road construction–a concern highlighted in a recent Forest Practices Board report.

Within legal OGMAs, forest industry contractors are mandated not to construct roads unless there is no other practicable option.  However, the order establishing guidance OGMAs was silent on limitations respecting development activities.

As of 2008, none of the identified ancient forest stands fell within ecological reserves.  While this designation would certainly be appropriate for some stands, the generally small size of ecological reserves in BC can limit their usefulness as a management option for conservation of landscape values.  The only valley-bottom ecological reserve in the upper Fraser area is the Aleza Lake Ecological Reserve (242 ha), which protects a small area of old-growth sub-boreal spruce forest.

Similarly, only small patches of the ancient forest stands occur within protected areas or within BC provincial parks:  69 ha in Sugarbowl-Grizzly Den and 27 ha in Slim Creek Provincial Park (from B.C. Integrated Land Management Bureau 2008 mapping).  This lack of representation within the B.C. provincial park system remains a major deficiency in landscape level planning in the upper watershed of the Fraser River.

As is the situation with any planning process, one can only do the best possible with information that is available—and this is a critical issue for the ancient cedar stands.  Most of what we know about the ecological value of the ancient forest was discovered after the land use plans were completed, while the level of public interest and recreational use emerged even more recently.

The years immediately following the completion of the LRMPs include formal complaints by local residents to and responses from the Forest Practices Board (FPB).  The FPB is an independent watchdog that conducts audits and investigations and issues public reports on how well industry and government are meeting the intent of BC’s forest practices legislation.  The FPB has authority to make recommendations to the government.

Supporting documents

• Letter from local group to Ministers  [below]
• Briefing document for Ministers (prepared by local group)  [below]
• BC Parks Consultation Paper [below]
• Coxson, Darwyn, Trevor Goward, and David J. Connell (2012). “Analysis of ancient western redcedar stands in the Upper Fraser watershed and scenarios for protection.” British Columbia Journal of Ecosystems and Management 13(3):88-106.

Briefing document for Ministers

Legislation

Directory of all BC Laws

Park Act [RSBC 1996] CHAPTER 344

Ecological Reserve Act [RSBC 1996] CHAPTER 103

Ecological Reserve Regulations B.C. Reg. 335/75 O.C. 1456/75

Protected Areas of British Columbia Act [SBC 2000] CHAPTER 17

Environment and Land Use Act [RSBC 1996] CHAPTER 117

Park, Conservancy and Recreation Area Regulation B.C. Reg. 180/90 O.C. 867/90

Ministry of the Environment Act [RSBC 1996] CHAPTER 299

Forest and Range Practices Act [SBC 2002] CHAPTER 69

Websites

BC Parks

BC Parks – overview of legislation

BC Parks Management Plans

Ancient Forest/Chun T’oh Whudujut Park

The rural planning case about access to a rural subdivision raises questions about options for legal recourse that may be available to people and organisations that oppose a particular decision.  The following module lays out some of these options in very general terms.  Please be advised that the following material does not constitute legal advice; they are for discussion only as part of the teaching materials included in this textbook.

1. In the absence of an appeal mechanism in the land legislation, one avenue of recourse might be to apply to the BC Supreme Court for judicial review of the approving officer’s decision to issue the road tenure.  There might be time limit considerations and the applicant would have to show standing (i.e. a legally-recognizable “stake” in the issue) but it is a possibility.  There is an example of judicial review of a land tenure decision in the Redmond case, albeit that was about denying an application.

2. The standard of review is the “reasonableness” of the ministry’s approval decision, which is determined according to the five criteria listed in paragraph 22 of the Redmond decision.  The issues of slope stability and unknown ecosystem impacts might be able to be brought into determining whether the ministry acted reasonably.

3. Judicial review is governed by the Judicial Review Procedure Act and requires approval from the court to proceed but it is an option in the right circumstances.

4. There is also the option of simply suing the Crown for damages if a party suffered loss of some sort by the road approval.  Again, the party would have to show standing and a recognized form of loss such as economic loss, devaluation of their property, traffic nuisance, etc.

5. Regarding the Community Forest, it would be worthwhile to review the particular agreement that they have with the ministry.  Any community forest agreements that I am familiar with exclude roads and other tenures from the community forest tenure, but it never hurts to confirm.

6. If there are any further permits associated with the road tenure, it may open up recourse under other statutes.  For example, a timber clearing permit improperly granted or exercises might open the door to an appeal under the Forest Appeals Commission.

7. If there are fisheries issues related to the slope instability, the Department of Fisheries and Oceans might be brought into the picture, or possibly the provincial Environmental Appeals Board if the province issues any permits that might impact fish or other environmental values.  These are very longshots but may be enough to found a negotiation.

8. The silence of First Nations is in and of itself likely to have little effect as long as they had reasonable opportunity to respond.  The courts have clearly determined that consultation is a two-way street, so a First Nation that does not respond to a request for consultation is at its peril.

As per s. 83(1) of the Land Title Act, all subdivisions in British Columbia (BC) must be approved by an Approving Officer (AO).

In this learning module, we draw primarily from the following two resources:

Ministry of Transportation and Infrastructure.  Subdividing Land Outside a Municipality

Ministry of Transportation and Infrastructure (2021).  Guide to Rural Subdivision Approvals [pdf].

One key piece of relevant legislation is the Land Title Act.  The most relevant sections of the Act are included at the end of this document.

Subdividing Land

When someone subdivides land, they are usually creating new lots from one or more parcels of land; that is, they are subdividing one parcel into multiple lots.  ​In more precise legal terms, a subdivision creates new, titled parcels of land. Subdivision of land also includes, but is not limited to, creating lots in a bare land strata development, re-adjustment of an existing property line, as well as the consolidation of properties.

Municipalities, regional districts, and the Ministry of Transportation and Infrastructure (MoTI) can have roles in the application and approval process of subdivisions, depending on whether the land to be subdivided is inside or outside of a municipality.  If the land to be subdivided is located in a municipality, then the application is submitted to that municipality.  If the land to be subdivided is located outside of a municipality, then the landowner (developer) applies to a MoTI District Office.

Approving Officer (AO)

As per the Land Title Act (s. 83(1)), all rural subdivisions must be approved by an Approving Officer (AO).  Which AO is responsible for a subdivision depends on where the land to be subdivided is located, as follows.

83   (1) A subdivision plan must be tendered for examination and approval by the approving officer as follows:

(a) if the land affected is within a municipality, to the designated municipal officer;

(b) if the land affected is in the rural area of a regional district authorized to appoint an approving officer under section 77.1, to the designated regional district officer;

(c) if the land affected is in the rural area of the trust area under the Islands Trust Act and the trust council is authorized to appoint an approving officer under section 77.1, to the secretary of the trust council;

(d) in other cases, to the district highways manager of the Ministry of Transportation.

Although s. 77.1(1) of the Land Title Act enables a regional district to appoint an AO, there are no regional district AOs in the province.  As such, s. 77.2(1) of the Act applies, whereby a Provincial Approving Officer (PAO) is responsible for approving all rural subdivisions.  The PAO is a staff member of MoTI.

In addition to municipal AOs and PAOs, the Act requires that AOs be appointed for Indigenous treaty lands and for Nisga’a lands, as follows.

Appointment of treaty first nation approving officers
77.21 (1) A treaty first nation must appoint an approving officer for its treaty lands.

Nisg̱a’a approving officer
77.3 (1) The Nisg̱a’a Lisims Government must appoint an approving officer for Nisg̱a’a Lands.

An AO does not have to be a professional planner.  The Act states that the person appointed can be the chief engineer, chief planning officer, or “some other employee” of the local government or First Nation.  An AO can also be a person under contract to a local government or First Nation.

The roles and responsibilities of an AO are established under section 77 of the Land Title Act.  When reviewing an application for subdivision, an AO must consider the interests of the applicant (such that the probability the applicant’s proposed subdivision will be approved), of future owners of individual lots, and of broader public interests.  As such, an AO must act independently when considering whether the proposed subdivision is appropriate for the site, complies with provincial acts and regulations, and complies with local government by-laws.  Factors an AO must consider include the following:

• Land use, lot size, and shape;
• Road status;
• Safety of access;
• Public health and safety;
• Potential impact of geotechnical hazards and flooding on the subdivision lots;
• Impacts to archaeology and environment;
• Environmental and heritage values;
• Other physical, social, and economic considerations;
• Development cost charges and park land;
• Works and services; and,
• Approvals from other agencies.

As part of the review process, the AO may require the application to complete assessments, such as geotechnical, archaeological, environmental, hydrological, and soils assessments.  Section 86(1)(c) sets out conditions that an AO may consider as grounds for refusing an application.

After an application is approved, the applicant registers the subdivision plan (including any other necessary documentation, such as restrictive covenants, easements, and rights-of-way) with the Land Title Office and new lots are created.

Land Title Act

[RSBC 1996] CHAPTER 250

The following are selected sections of the Act relevant to rural subdivision.

Division 3 — Appointment, Powers and Duties of Approving Officers

Appointment of municipal approving officers

77 (1) For land within a municipality, the municipal council must appoint a person as an approving officer.

(2) An approving officer appointed under this section must be

(a) the municipal engineer,

(b) the chief planning officer,

(c) some other employee of the municipality appointed by the municipal council, or

(d) a person who is under contract with the municipality.

Appointment of regional district and islands trust approving officers

77.1 (1) Subject to subsection (2), the Lieutenant Governor in Council may, by order, do one or more of the following:

(a) authorize a regional district board to appoint a person as an approving officer for the rural area of the regional district;

(b) authorize the trust council under the Islands Trust Act to appoint a person as an approving officer for the rural area of the trust area under that Act;

(c) if an order under paragraph (a) or (b) applies, provide that section 83.1 does not apply in relation to the regional district or trust area.

(2) An order under subsection (1) (a) or (b) must be requested by resolution of the regional district board or trust council, as applicable, and must be recommended by the minister charged with the administration of the Transportation Act.

(3) An order under subsection (1) (a) or (b) may include one or more of the following:

(a) requirements that must be met before the authorization becomes effective;

(b) conditions relating to the appointment of the approving officer under this section;

(c) provisions respecting the transition to the exercise of authority by an approving officer appointed under this section including, without limiting this, exceptions and modifications respecting how applications that are pending at the time the authorization becomes effective are to be dealt with.

(4) If a regional district board or the trust council is authorized under subsection (1), it must appoint an approving officer for the rural area of its jurisdiction.

(5) An approving officer appointed under this section must be

(a) the regional district or trust area engineer,

(b) the chief planning officer,

(c) some other employee of the regional district or trust council appointed by the board or council, as applicable, or

(d) a person who is under contract with the regional district or trust council.

Provincial approving officers

77.2 (1) If an approving officer is not appointed under section 77.1 for a rural area, the approving officers for the area are

(a) the deputy minister to the minister charged with the administration of the Transportation Act, and

(b) approving officers appointed under subsection (2).

(2) The Lieutenant Governor in Council may appoint a person as an approving officer for a rural area referred to in subsection (1).

Appointment of treaty first nation approving officers

77.21 (1) A treaty first nation must appoint an approving officer for its treaty lands.

(2) An approving officer appointed under subsection (1) must be

(a) an official or employee of the treaty first nation, or

(b) a person who is under contract with the treaty first nation.

(3) Sections 77.1 and 77.2 do not apply to the treaty lands of a treaty first nation.

Nisg̱a’a approving officer

77.3 (1) The Nisg̱a’a Lisims Government must appoint an approving officer for Nisg̱a’a Lands.

(2) The approving officer appointed under subsection (1) must be

(a) an official of the Nisg̱a’a Lisims Government, or

(b) a person who is employed by or under contract with the Nisg̱a’a Nation.

(3) The approving officer appointed under subsection (1) may exercise his or her powers in relation to all Nisg̱a’a Lands, including Nisg̱a’a Village Lands.

(4) Sections 77.1 and 77.2 do not apply to Nisg̱a’a Lands.

Division 4 — Approval of Subdivision Plans

Tender of plan for examination and approval

83 (1) A subdivision plan must be tendered for examination and approval by the approving officer as follows:

(a) if the land affected is within a municipality, to the designated municipal officer;

(b) if the land affected is in the rural area of a regional district authorized to appoint an approving officer under section 77.1, to the designated regional district officer;

(c) if the land affected is in the rural area of the trust area under the Islands Trust Act and the trust council is authorized to appoint an approving officer under section 77.1, to the secretary of the trust council;

(d) in other cases, to the district highways manager of the Ministry of Transportation.

(2) The subdivision plan must be accompanied by the following:

(a) the applicable fees established under section 462 (1) (f) of the Local Government Act or under section 292 (1) (h) of the Vancouver Charter or prescribed under subsection (3) of this section;

(b) a certificate

(i) that all taxes assessed on the subdivided land have been paid, and

(ii) if local service taxes are payable by instalments, that all instalments owing at the date of the certificate have been paid;

(c) if the approving officer considers that there is reason to anticipate that the land may be resubdivided and requires this information, a sketch showing that the parcels into which the land is subdivided can conveniently be further subdivided into smaller parcels;

(d) if the approving officer requires this information, profiles of every new highway shown on the plan and such necessary topographical details as may indicate engineering problems to be dealt with in opening up the highways, including environmental impact or planning studies.

(3) The Lieutenant Governor in Council may, by regulation, prescribe fees for subdivision plan examination by a Provincial approving officer, which may vary with the number, size and type of parcels involved in the proposed subdivision.

Matters to be considered by approving officer on application for approval

86 (1) Without limiting section 85 (3), in considering an application for subdivision approval, the approving officer may

(a) at the cost of the subdivider, personally examine or have an examination and report made on the subdivision,

(b) hear from all persons who, in the approving officer’s opinion, are affected by the subdivision,

(c) refuse to approve the subdivision plan, if the approving officer considers that

(i) the anticipated development of the subdivision would injuriously affect the established amenities of adjoining or reasonably adjacent properties,

(ii) the plan does not comply with the provisions of this Act relating to access and the sufficiency of highway allowances shown in the plan, and with all regulations of the Lieutenant Governor in Council relating to subdivision plans,

(iii) the highways shown in the plan are not cleared, drained, constructed and surfaced to the approving officer’s satisfaction, or unless, in circumstances the approving officer considers proper, security is provided in an amount and in a form acceptable to the approving officer,

(iii.1) a highway provided for in a subdivision plan or otherwise legally established on lands adjoining, lying beyond or around the land subdivided is, in the approving officer’s opinion, not sufficient,

(iv) the land has inadequate drainage installations,

(v) the land is subject, or could reasonably be expected to be subject, to flooding, erosion, land slip or avalanche,

(vi) after due consideration of all available environmental impact and planning studies, the anticipated development of the subdivision would adversely affect the natural environment or the conservation of heritage property to an unacceptable level,

(vii) the cost to the government of providing public utilities or other works or services would be excessive,

(viii) the cost to the municipality or regional district of providing public utilities or other works or services would be excessive,

(ix) the subdivision is unsuited to the configuration of the land being subdivided or to the use intended, or makes impracticable future subdivision of the land within the proposed subdivision or of land adjacent to it,

(x) the anticipated development of the subdivision would unreasonably interfere with farming operations on adjoining or reasonably adjacent properties, due to inadequate buffering or separation of the development from the farm, or

(xi) despite subparagraph (ix), the extent or location of highways and highway allowances shown on the plan is such that it would unreasonably or unnecessarily increase access to agricultural land within the agricultural land reserve, as those terms are defined in the Agricultural Land Commission Act, and

(d) if the approving officer considers that the land is, or could reasonably be expected to be, subject to flooding, erosion, land slip or avalanche, the approving officer may require, as a condition of consent to an application for subdivision approval, that the subdivider do either or both of the following:

(i) provide the approving officer with a report certified by a professional engineer or geoscientist experienced in geotechnical engineering that the land may be used safely for the use intended;

(ii) enter into one or more covenants under section 219 in respect of any of the parcels that are being created by the subdivision.

(2) The Lieutenant Governor in Council may, by regulation, amend, add to, substitute or repeal any of the grounds for refusal set out in this section or in section 85 (3).

Local government matters to be considered by approving officer

87 Without limiting section 85 (3), the approving officer may refuse to approve a subdivision plan if the approving officer considers that the subdivision does not conform to the following:

(a) all applicable provisions of the Local Government Act;

(b) all applicable municipal, regional district and improvement district bylaws regulating the subdivision of land and zoning;

(c) if the land affected is within the trust area under the Islands Trust Act, all applicable local trust committee bylaws regulating the subdivision of land and zoning.

Approval of plan

88  On the approval of a plan, the approving officer must write on it “Approved under the Land Title Act” with the date of approval and must sign it and append below his or her signature the title

Approving Officer for

……………………………………………………………….
(municipal, or as the case may be)

……………………………………………………………….
(name of municipality, or as the case may be).

This module introduces readers to opportunities for a career as a professional planner in local government.  We begin by describing the typical requirements for an entry-level position and how a person becomes a Registered Professional Planner (RPP), which is the official designation of a professional planner.  We also provide a list of colleges and universities that offer planning diplomas and degrees in British Columbia (BC).

Having addressed the requirements for becoming a professional planner, we describe employment opportunities in three different contexts:  the City of Nelson as an example of a small city; the City of Prince George as an example of a medium-sized city; and the City of Vancouver as an example of a large city.  Our aim is to describe a wide range of opportunities for a career as a professional planner in local government.

Most professional planners work for local governments (municipalities and regional districts). Common titles of planning positions include the following, listed from junior to senior positions:

• Planning Technician
• Planning Assistant I, II, III
• Planning Analyst
• Planner I, II, III
• Co-ordinator
• Supervisor
• Manager
• Director

Professional planners also work in the provincial government, usually in ministries that have some jurisdiction over the use of land.  These job positions can be with ministries responsible for municipal affairs, housing, transportation, Crown lands, environment, parks, and forestry, among others.  Planners also work for consulting firms that specialise in community planning, land use planning, property development, and for other private, non-profit, and public enterprises.  Collectively, the work of planners covers different areas of expertise, such as community planning, re-zoning, economic development, climate change and adaptation, public spaces, housing, affordable housing, and transportation, among others.

CivicInfo BC is an excellent source for current planning-related job positing in local governments.

A typical entry-level planner position and requirements

Although the formal titles of planner positions vary, Planner I is a common entry position in smaller and medium-sized municipalities.  From this position, a person can be promoted to Planner II and then Planner III.  In a large city with a large planning department, entry-level positions also include Planning Assistant and Planning Analyst.

The responsibilities of a Planner I cover the essential, day-to-day aspects of land use planning within a local government.  The duties are often described as “front counter” services because a Planner I is often the first point of contact with members of the public, including residents and businesses.  This planning work includes the following:

• Processing a full range of land use applications;
• Preparing of plans and reports;
• Collecting and analysing data; research; report writing;
• Consulting with design professionals, developers and the general public; and,
• Representing the planning department on technical staff committees.

Typically, to qualify for a Planner 1 position, an applicant has a degree in land use, environmental, or regional planning recognised by the Canadian Institute of Planners (CIP). T his educational requirement should be complemented with some related experience.  Almost all positions require the candidate to have or be eligible for membership with CIP. Membership is explained next.

Who is a Registered Professional Planner (RPP)?

To be a professional planner, a person must successfully complete the formal process to become certified.  When certified, a professional planner has the exclusive right and privilege to use the “Registered Professional Planner” (RPP) designation.

The association for professional planners in BC is the Planning Institute of British Columbia (PIBC). There is also a national association, the Canadian Institute of Planners (CIP).  A certified planner and member in good standing may also use the designation “MCIP” to indicate their membership in CIP.   The certification process is administered by the Professional Standards Board on behalf of PIBC.

For information about becoming a certified professional planner, visit the following websites:

Planning Institute of BC – Membership

Canadian Institute of Planners – Membership

Professional Standards Board

Post-secondary education in planning

There are different paths to become a certified professional planner and member of CIP based on different combinations of work experience and education.  The most effective path is to complete a university degree through an accredited program, as this degree is the most common qualification for planning positions.

Just as people are certified as professional planners, planning degrees offered by universities are also certified (accredited), which means that the degree meets the curriculum requirements established by the Professional Standards Board.  The following universities offer a full-time accredited planning degree in BC (Table 1).

Table 1. Universities in BC offering a full-time accredited planning degree

In addition to the above, there are other, non-accredited avenues to pursue planning-related education, including, but not limited to, the following:

• Langara College Applied Urban & Rural Planning Program (post-degree diploma)
• Selkirk College Applied Environmental Science and Planning Technology
• Simon Fraser University City Program
• University of British Columbia Bachelor of Urban Studies

Municipal planning departments: examples

The following examples of three municipal planning departments illustrate the breadth of career options as a professional planner.  As the examples show, in a small city, a professional planner can be responsible for the full range of planning duties.  As municipalities get bigger, so does their planning department.  Correspondingly, each planning position also becomes more specialised.  In smaller municipalities (villages and towns), land use planning is often only a part of one person’s job and a planning-related degree may not be required.

City of Nelson: Department of Development Services

The City of Nelson, located in the Selkirk Mountains in Southern Interior BC, has a population of 11,106 (2021 Census).  As shown in the city’s organisational chart (Figure 1), planning services are part of the Development Services department.

Figure 1. Organisational chart, City of Nelson

A detailed job posting for a Planner I with the City of Nelson demonstrates the breadth of responsibilities of a planner in a small city (see Box 1).  This planner is responsible for most aspects of planning for the City. Qualified applicants required a university degree in Planning; a Master’s degree in Planning is desirable.

City of Prince George: Department of Planning & Development Services

The City of Prince George, located in Central Interior BC, has a population of 76.708 (2021 Census).  As shown in the city’s organisational chart (Figure 2), planning services, named Development Services, are part of the Planning and Development department.

Figure 2. Organisational chart, City of Prince George

In this medium-sized city, there are at least five levels of planning positions within the department. T hese positions include Planning Technician, Planner I, Supervisor of Land Use Planning, Manager of Planning Services, and Director of Planning and Development Services.  The responsibilities and qualifications for each of these positions are summarised, as follows.  Most likely, there are also Planner II and Planner III positions based on promotions.

Planning Technician

Responsibilities

• • Process a variety of applications;
  • Assist with carrying out field inspections and collecting data; and,
  • Prepare technical reports and planning studies.

Qualifications

• • Bachelor’s Degree in Land Use, Environmental of Regional Planning;
  • At least one year of relevant experience.

Planner 1

Responsibilities

• • Processing of a full range of land use applications;
  • Preparation of plans and reports;
  • Field work, data collection and analysis;
  • Research, report writing, consultation with design professionals, developers and the public; and,
  • Representing the department on various technical staff committees.

Qualifications

• • A degree in land use, environmental or regional planning recognized by the Canadian Institute of Planners;
  • Professional experience includes one year of related experience; and,
  • Membership or eligibility for membership with the Canadian Institute of Planners.

Supervisor, Land Use Planning

Responsibilities

• • Reports to the Manager, Development Services;
  • Supervising the planning function and developing and implementing policies and bylaws related to current planning and land use management;
  • Areas of responsibility include the Official Community Plan, Neighborhood Plans, zoning Bylaw, development permits, development variance permits, liquor licensing, agricultural land reserve, and other land use related applications;
  • Responsibility for long range plans and studies, long range planning contract administration, data collection and analysis, policy research, community consultation, and report preparation.
  • Overseeing the efficient and professional operation of the front counter, permit and business licensing functions; and,
  • Supervisory responsibility for unionized administrative staff.

Qualifications

• • Postgraduate University Degree in Land use, Environmental or Regional Planning, geography, or related discipline;
  • Five (5) years of related planning experience is required, three (3) years of which must have been in a supervisory capacity within a unionized environment;
  • Previous experience with Land Use Planning and land use issues is required; and,
  • Membership or eligibility for membership in the Canadian Institute of Planners is desirable.

Manager, Development Services

Responsibilities

• • Reports to the Director, Planning & Development;
  • Responsible for ensuring that the City is developed in accordance with City bylaws and meets the appropriate aesthetic, functional, safety and quality of life standards;
  • Oversees a team involved in land use planning and development approvals, building inspection, subdivision, building permits, and business licenses;
  • Co-ordinating the public input process on development projects and land use issues;
  • Overseeing the development and administration of the Zoning Bylaw; and,
  • Liaising with the business community, developers, the general public, senior administration and City Council.

Qualifications

• • Graduate degree/diploma in Community and Regional Planning or a related discipline;
  • Undergraduate degree/diploma combined with suitable experience will be considered;
  • At least 5 years of related experience including supervisory experience in a municipal setting; and,
  • Eligible for membership with the Planning Institute of BC and the Canadian Institute of Planners.

Director, Planning & Development Services

Responsibilities

• • Responsible for all land use planning and land development approval activities;
  • Oversee the preparation and administration of the City’s Official Community Plan, Zoning Bylaw, Subdivision & Development Servicing Bylaw and all related bylaws that govern development in a manner that is consistent with City Council’s strategic plan and priorities;
  • Oversee professional and technical support services related to the delivery of capital projects and municipal infrastructure; and,
  • Other key responsibilities include building inspection services, economic development, asset management, real estate services and business licensing.

Qualifications

• • A university degree in urban or regional planning, geography, architecture or in a related social science discipline and have completed supplemental planning or administration courses equal to one to two years of study; a Master’s degree in Planning is preferred;
  • Ten years of experience in local government planning, six years of which are at a managerial level; and,
  • Membership or eligibility for membership in the Canadian Institute of Planners and the Planning Institute of BC are essential.

City of Vancouver: Department of Planning, Urban Design, and Sustainability

The population of the City of Vancouver is 662,248.  As a metropolitan centre, the City has tremendous demands on land use planning for all uses: residential, industrial, commercial, retail, hospitality, institutional, transportation.  These demands are reflected in the specialised planning positions within the Department of Planning, Urban Design, and Sustainability.  The organisation chart for the City (Figure 3) shows only the department-level structure.

Within the Department, many professional planners are required to cover all areas of responsibilities. In a large local government like the City of Vancouver, planning positions at all levels of the organisation can be specialised.  The following table (Table 2) lists some of the junior planning positions within the City, including Planning Assistant, Planning Analyst, and Planner I.  For many of these positions, Membership or eligibility for membership in the Canadian Institute of Planners is desirable.

Figure 3. Organisational Chart, City of Vancouver

Table 2. Partial list of professional planning positions, City of Vancouver

The conflict between the Wet’suwet’en Nation and the Coastal GasLink pipeline has attracted national attention, and deservedly so.  The crossing of the pipeline through the traditional territory of the Wet’suwet’en (yintah) is a conflict between Indigenous rights to govern land, government policies and priorities (e.g., environment versus economic development), corporate interests, and police.  This situation also highlights differences between the traditional governance of traditional lands by Hereditary Chiefs and the statutory limits of First Nations Bands, which are creations of the Indian Act.

The full scope of the conflict over the Coastal GasLink pipeline cannot be covered within this Learning Module.  The aim is to provide a general description of the situation and to highlight major sources of tension.  Content includes a description of the pipeline and of different perspectives of the pipeline, including TC Energy, Wet’suwet’en Hereditary Chiefs, and First Nations of the Wet’suwet’en.  A list of chronological events since 2012 covers some of the incidents and arrests that have occurred between the RCMP and Wet’suwet’en Land Defenders.

About the pipeline

The Coastal GasLink pipeline began in 2020 and is currently under construction at a cost of about $40 billion.  The purpose of the pipeline is to transport natural gas from the oil and gas fields in northeast British Columbia (BC) near Dawson Creek to a liquid natural gas facility located on the central west coast near Kitimat.  The gas facility, owned by LNG Canada, will convert the gas to a liquid form and export the liquid natural gas to global markets.  The pipeline is approximately 670 kilometres long and will deliver 2.1 billion cubic feet per day (bcf/d) of natural gas with the potential to deliver up to 5 bcf/d.  Figure 1 illustrates the route of the pipeline, which goes over mountain passes, crosses salmon-bearing rivers, and overlaps many Indigenous territories.  As shown on the map, the project to build the pipeline is divided into eight sections, numbered from Section 1 in the east to Section 8 in the west.  Figure 2 shows the location of First Nations along the route.  Figure 3 shows the pipeline crossing about 190 kilometres of the 22,000 square-kilometre Wet’suwet’en traditional territory and the location of First Nations within the territory. This part of the pipeline corresponds with Sections 6, 7, and 8 shown in Figure 1.  Figure 4 shows the pipeline route in relation to the Clans of the Wet’suwet’en Nation.

Figure 1.  Route of the Coastal GasLink pipeline

Figure 2.  Location of First Nations along the pipeline route

Figure 3.  Section of pipeline crossing Wet’suwet’en traditional territory

Figure 4.  Clans of the Wet’suwet’n and location of pipeline route

As of March 30, 2023, according to TC Energy’s update, the pipeline is more than 85% complete with an estimated completion date in 2023.  For Section 7, the section of the pipeline where most of the conflict is taking place, 100% of the route is cleared, 92.1% of grading is complete, and 51.5% of pipe is installed.  This percentage of installed pipe in Section 7 is the lowest of all sections; the next lowest is Section 6 at 70.9%.  For Section 6, 100% of the route is cleared, 97.8% of grading is complete.  Some of the other sections of the pipeline are fully completed or close to being completed.

Perspective:  TC Energy

The following information is drawn from TC Energy (2023), Coastal GasLink: Project Overview.

TC Energy is the corporation building the Coastal GasLink pipeline.  The pipeline is operated as a separate company, Coastal GasLink Pipeline Ltd.  The design of the pipeline began in 2012 with the environmental assessment process completed between 2014 and 2020.  According to TC Energy, the route of the pipeline was approved with consideration for a broad set of interests, including Indigenous, landowner and stakeholder input, the environment, archaeological and cultural values, land use compatibility, safety, constructability, and economics.

Coastal GasLink maintains that the pipeline offers a safe means to transport natural gas while also meeting strict environmental standards and providing significant economic benefits to the province.  These economic benefits include the following:

• 6,000 high-quality jobs during construction;
• $1.5 billion in employment and contracting opportunities for local and Indigenous communities;
• $21 million in annual property tax benefits; and,
• $11+ million invested in communities to date with investments continuing throughout the life of the project.

To ensure that Indigenous people benefit from the Coastal GasLink pipeline, TC Energy states it is committed to a collaborative approach.  TC Energy cites the 20 shared benefits agreements they have signed with First Nations along the route.  Sixteen of these First Nations recently signed agreements with TC Energy for an option to purchase a 10 per cent ownership stake of the project.  However, the pipeline does not cross the territories of any of these First Nations.

The approved route through the Wet’suwet’en territory is the site of greatest conflict, especially the crossing of the Wedzin Kwa (Morice River) in Section 7.  TC Energy’s position is that the specific route of Section 7 presents the only feasible option to connect with Section 8, which is a difficult, remote mountainous terrain.

Perspective:  Wet’suwet’en Hereditary Chiefs

Although some elected Band Councils along the pipeline route signed agreements with TC Energy, the Wet’suwet’en’s Hereditary Chiefs oppose the pipeline and did not consent to the project.  As confirmed by the Supreme Court of Canada in 1997, the Wet’suwet’en and Gitxsan have rights and title to the land of their traditional territories.  Accordingly, the Wet’suwet’en assert that Coastal GasLink, its employees, and contractors are trespassing on their land while the Province is issuing permits illegally.

To the Wet’suwet’en, access to their traditional lands is essential for their social, physical, cultural, and economic well-being.  Their territory is a sacred place of cultural sites and for the Wet’suwet’en to hunt, gather medicinal plants and berries, and fish.  The Wedzin Kwa (translated as blue-green river) is a sacred waterway that provides clean drinking water and sustenance.

While Band Councils have authority over Reserve lands, the Hereditary Chiefs govern the use of the Wet’suwet’en traditional territory.  Accordingly, the Government of BC engaged Wet’suwet’en Hereditary Chiefs (through the Office of the Wet’suwet’en) during the environmental assessment process to establish the route for the pipeline.  The aim was to reach an agreement for the route; however, the negotiations were not successful.

Perspective:  First Nations within Wet’suwet’en territory

There are six First Nations located on Reserve lands within the Wet’suwet’en territory:  Hagwilget, Witset (formerly known as Moricetown), Wet’suwet’en First Nation (formerly known as the Broman Lake Indian Band), Skin Tyee, Ts’il Kaz Koh, and Nee-Tahi-Buhn.  Together, the area of land covered by the six Reserves account for 35 square kilometres of the 22,000 square kilometres of Wet’suwet’en territory.  The Band Council for each First Nation, established under the Indian Act, has statutory authority over Reserve lands, and no authority over any of the traditional territory.

Five of the six Band Councils signed agreements with TC Energy and the province.  The agreements signed with TC Energy are confidential.  As reported by Matt Simmons, the agreements with the Province are public and show that the Bands received an initial payment with a promise of additional payments.  Simmons wrote, “By supporting the project the nations agreed ‘not to bring any court actions or proceedings that directly or indirectly challenge any government actions in relation to the natural gas pipeline project on the basis that the province has infringed any … rights recognized and affirmed’ by the Constitution Act.”

Hagwilget refused to sign an agreement; their interests align with the Hereditary Chiefs.

Tunnelling under the Wedzin Kwa (Morice River)

Natural gas is often promoted as a green source of energy.  However, this claim has been disputed, as natural gas is a major source of green house gas emissions.  s well, oil and gas pipelines cannot be separated from the source of production, all of which are embedded in a global economy predicated on the extraction of fossil fuels.  The Coastal GasLink pipeline is part of this global picture.  At its source, the pipeline is connected to the Montney Formation, a source of oil and gas that spans northeast BC and northwest Alberta.  The Montney Formation is a major source of shale gas extracted through the controversial method of fracking.  At this point, the Montney Formation is at its early stages of development and the Coastal GasLink pipeline to the west coast will help connect this resource to the global market.

When complete, Coastal GasLink’s 670-kilometre pipeline will cross about 625 streams, creeks, rivers, and lakes.  To date, TC Energy has been fined $456,200 for environmental infractions, such as protecting fish habitat.  One river of major concern to the Wet’suwet’en is the Wedzin Kwa (Morice River).  The river, a migration route for salmon, is a sacred waterway for the Wet’suwet’en people.  The pipeline threatens this river as a source of sustenance, cultural heritage, and drinking water.  The route of the pipeline crosses the Wedzin Kwa.  To traverse the river, TC Energy tunnelled under the river using a method called trenchless micro-tunnelling (see Text Box below).

The Wet’suwet’en are deeply concerned about tunnelling under the Wedzin Kwa, which is why this construction site has been a focal point of conflict, as noted below in the list of incidences and arrests.  The Coyote Camp is located a short distance from the drilling site.

On April 12, 2023, Coastal GasLink self-reported that two clay deposits at the Wedzin Kwa tunnel site were found.  The clay is used as part of the tunnelling process.  When not properly contained, the clay is a threat to the environment.

Events:  Protests and arrests

The construction of the pipeline through the Wet’suwet’en territory has been countered by on-going efforts by members of the Wet’suwet’en to defend their rights to govern the land.  A heavy presence by the RCMP has contributed to many clashes and arrests.  The following is a partial account of activities and outcomes, in chronological order.

Sources:

Events listed 2012 through 2019 are from the Supreme Court of BC decision to allow an injunction. Coastal GasLink Pipeline Ltd. v. Huson, 2019 BCSC 2264.

Details of more recent events are from various newspaper articles published in The Tyee, CBC News, and The Narwhal

Since 2010, the general impression of downtown Prince George is one of revival.  Many new stores and restaurants opened with accolades to the city for its commitment to supporting downtown development.  Amidst the positive developments, much went on behind the scenes by the City to ensure that projects were supported, approved, and implemented.  And much more about the costs were revealed in local newspapers.

To support development of some of these projects, the City asked residents twice to approve long-term debt financing.  In October, 2017, residents approved proposals for the City to borrow a $50 million for a new pool ($39 million) and new Fire Hall No. 1 ($15 million).  In May, 2019, residents were asked to approve a proposal for the City to borrow $32 million to pay for 11 infrastructure projects (most of these projects were not downtown).  Projects that took place downtown are identified in Figure 1 and described below.

Figure 1.   Downtown developments in Prince George, since 2010.

Source of base map.

1. Seniors housing complex (2011)

A 36-unit seniors housing complex was built downtown at 1373 Sixth Avenue.  When the Commonwealth Health Centre purchased the old gaming centre, it also became owner of the airspace above the underground parkade.  As well, new owners also inherited an obligation to build multi-family housing in this airspace above the parkade.  These arrangements were part of an agreement between the City and the previous owners of the gaming centre.  This agreement is based on the city purchasing the parkade and, as part of this purchase, the owner had to build six townhouses.

2.  Wood Innovation and Design Centre (2014)

The Wood Innovation and Design Centre (WIDC) is a six-storey wood-construction building.  At the time it was built, it was the tallest wood building in the world.  WIDC is the home of the Master of Engineering in Integrated Wood Design program for the University of Northern British Columbia.

3.  Wood Innovation Research Lab (WIRL) (2018)

The UNBC Wood Innovation Research Lab (WIRL) is an energy-efficient building located next to the WIDC.  The new lab is a wood science and engineering research facility for the study of building tall, large-scale wood structures.  WIRL includes a wood conditioning and processing room, a lab, and classroom space.

4.  Marriott Courtyard Hotel (2018)

This development is a six storey, 174-room, hotel at Tenth Avenue and Brunswick Street, which includes a 3,600 square-foot space outfitted for a restaurant.  The development was valued at $35 million and includes convention space, a pool, and underground parking

Six years earlier, in 2012, the initial project was based on a 12-storey hotel and luxury condominium.  The proposed Delta Hotel was to have 151 hotel rooms, 34 condominiums, and a restaurant.  After a foundation was laid, the site sat dormant for two years.  “Construction started in September 2013 and then ground to a halt in March 2014.  It took a $3.2-million cash infusion from the city, using money from a Northern Development Initiatives Trust fund, and a 10-year tax exemption to get work started again in July 2016.”¹

In order to make the financial support work for the Marriott hotel development, some changes were required.  Whereas a develop can apply for only the RTE or Early Benefit Program, there were not enough funds in the EBP program to cover the possible full value of the RTE.  Consequently, the City asked NDIT to change the rules of the EBP program so that the two incentives could be combined to cover the full value.

Lheidli T’enneh Uda Dune Baiyoh “House of Ancestors“ (2018)
[not shown in Figure 1]

The former Odeon Theatre on Vancouver Street was purchased and renovated ($1.7 million) to create a new community hall and conference centre for the Lheidli T’enneh.  The facility offers full in house-catering.  The name of the building is Uda Dune Baiyoh, meaning “House of Ancestors.”

5.  Hyatt Place Hotel (2020)

The Hyatt Place Hotel is a 104-room modular building located at 585 Dominion Street.

6.  Park House condominiums (2020)

Adding permanent residents to the downtown core has been a centrepiece of downtown revitalisation for more than twenty years.  For this reason, the Park House residential development was hailed as a major accomplishment and turning point.  Like other downtown projects, this development also required a partnership with the City and financial incentives.

The Park House development, built by with A & T Projects Development Ltd., was based on a four-phase development with four four-storey 160-unit condo buildings (Figure 2).  The project has reduced to three buildings.  The first phase, with 37 units, has been completed; the remaining phases will have between 32 and 46 units.  The project includes underground parking (see next item) with electric-vehicle charging stations.  When completed, the residential development will be home to 300 to 400 people.

This multi-family residential development was eligible for three financial incentives.

• Downtown RTE.  Exemption from portion of city’s property taxes for 10 years.
• Multi-Family RTE.  Exemption from portion of city’s property taxes for 10 years, if the development meets certain accessibility standards.
• Housing Contribution Program.  A $10,000 per unit subsidy.

As shown in Figure 2, instead of a fourth condo building, the Park House development now includes space for a childcare centre to be operated by the YMCA of Northern BC.  In December, 2020, the city received $3.98 million from the Childcare BC New Spaces Fund and a Union of B.C. Municipalities to build the 85-space childcare centre.

Figure 2. Proposed four-phase Park House development

7.  Park House underground parkade (2021)

The underground parkade for the Park House condominium project, located on Sixth Avenue near George Street, was built by A & T Projects Development Ltd. in partnership with the City.  The City owns the parkade, which serves as the foundation for the residential buildings and provides 289 underground parking stalls and 62 surface parking spaces.  The parkade is also the foundation for the proposed YMCA child care centre.  As per the agreement, 133 of the underground parking stalls are reserved for condo residents at a discounted rate for 50 years.  This parking subsidy is in addition to the incentives noted above for the residential development.  According to the City Manager, the value of the parking subsidy is expected to be $95,000 per year or $4.75 million for the duration of the 50-year agreement.

The initial budget of the parkade was $12.61 million.  The final cost was $22.46 million, which is 78% more than the expected cost.  The cost over-runs were attributed to design changes and unexpected costs.  The major design changes were related to ground water.  Although it was fully known that the underground parkade is located in a flood zone with fluctuating ground water levels.  After it was determined that the initial design failed to address risks to public safety and liability for possible damage, a permanent dewatering system was installed.  The size of the parkade was also increased to cover the full parcel.  Unforeseen costs include the following: increased construction costs for labour and materials; structural changes to the foundation; relocating a major fibre optic cable; removing several buried foundations and oil tanks; higher-than-expected costs for the roof waterproofing membrane; mechanical, electrical and fire suppression systems; retaining walls and fencing; and other expenses.  When related projects are included, such as connecting the parkade to the city’s district energy system, upgrading water and sewer in the immediate area, the total cost of the project to the City was $34.16 million.  These related projects were approved by Council in March, 2019, under a separate budget process.

In addition to the exceptional cost over-runs, members of City Council raised serious questions about staff authority to authorise the extra costs without Council approval and whether city staff misled Council about the true costs of the parkade.  See Appendix A below for more details.

8.  Fire Hall No. 1 (2021)

The City’s old and out-dated fire hall is located in the city’s downtown core near City Hall.  However, this facility, which was built in 1956, was deemed inadequate to meet the city’s needs and plans were developed to build a new facility on the outside the downtown core, near the YMCA on Massey Drive near Carney Street. City residents approved $15 million debt financing via a referendum held in 2017.  The development was completed at $2 million over budget, which was attributed to the need for a building larger than proposed to accommodate a fire dispatch centre and additional space in the mechanical room.

9.  Public library (2021)

In May, 2019, City Council approved a $3.95-million budget for a new entrance at the downtown main branch of the Prince George Public Library.  This amount is $1.28-million more than the initial cost in late 2017.  In addition to increased construction costs for labour and materials, design changes included the following: an extra staircase; relocation of fire department connections; the elevator was extended to the upper floor; and the entry lobby was increased to 1.5 storeys.  The final cost was $230,000 over the 2019 budget, pushing the total cost over $4 million.

10.  Student housing (2021)

A student housing development, with underground parking, was built at 1404 Patricia Blvd., next to the public library and the new Marriott Courtyard hotel. Construction started in 2019 with completion expected in summer 2021.  Like the Park House condominium, this development is a key step toward downtown revitalisation by having more residents in the downtown area of the City.

The building is a six-storey, wood-framed structure with 205 units.  The small units, described as self-contained “micro-units,” are less than 29 square metres (312 square feet).  To accommodate this project, the City rezoned the parcel with special considerations.  The project also qualified for the Downtown RTE and Multi-Family RTE.

11.  Canfor Leisure Pool (2022)

Based on engineering reports, due to the age of the facility and its infrastructure, the old Four Seasons Pool required over $10 million in repairs and upgrades to meet current safety standards.  Alternatively, the City proposed building a new pool at an estimated cost of $35 million.  In October, 2017, residents approved the City’s proposal to borrow up to $35 million to build the new pool.  The total cost of the project $39.1 million, which included the purchase ($4.5 million) and razing ($2.5 million) of the Days Inn hotel.  Provincial and federal funding contributed $10 million.  The Regional District of Fraser-Fort George contributed $750,000.

The new pool has the following features:

• A six lane, 25-metre lap pool.
• A four lane, 25-metre teaching pool with warmer water and shallow depth.
• A leisure pool with a lazy river, beach entry, and play features.
• A large waterslide with a run-off lane.
• Ninja Cross obstacle course (additional cost of $500,000)
• Dedicated male and female change rooms, as well as a large universal change room.
• Sauna and steam room

The new pool uses the Downtown Renewable Energy System to heat the pool, which reduces greenhouse gas emissions by 95 per cent compared to heating it with natural gas.

Construction started in July, 2020, and completed in fall 2022.

Canfor Corporation signed a five-year naming rights agreement for $75,000 per year.

12.  BC Housing (2022)

There are two new BC Housing developments in the City’s downtown.

A residential development for social housing will be built at the corner of First Avenue and Ontario Street.  The development will include 50 units of supportive housing and 50 units of rental homes for low-income people.  Partners for this project include BC Housing, Northern Health, and the City.  Northern Health will provide services including a needle exchange and safe injection site, community outreach and mental health services, and primary care for both residents and the public.

BC Housing purchased the National Hotel, located on First Avenue.  The building was converted to 27 units of supported housing and opened to new residents in 2022.  On-site staff will provide support services including meal programs, life and employment skills training, and health and wellness programs.

13.  Quebec Street House (under development, as of 2023)

Quebec Street House is a four-storey, 36-unit apartment building.  The units include bachelor, one- and two-bedroom units.  As of February, 2023, the exterior of the building remains unfinished and the building is for sale.

APPENDIX

This appendix refers to two news articles from the Prince George Citizen that are related to the cost over-runs of the Park House underground parkade.  Both articles provide insights to the political process between Council and staff, as well as accountability.

Kurjata, Andrew. “A parkade has gone $22M over budget and it’s shaking up city hall in Prince George, B.C.” CBC News, January 14, 2021.

Williams, Arthur. “Mayor told of parkade cost increase in 2018,” Prince George Citizen. January 18, 2021.

This module addresses First Nation Reserve land tenures, which encompasses Indigenous people’s rights to land only under Canadian common law.  The matter of Indigenous rights and title to land is separate, and addressed in other case materials and the Learning Module on Indigenous Title and Rights.

Reserve lands were created in accordance with the Indian Act (R.S.C., 1985, c. I-5). Under this Act, the use, control, and disposition of Reserve lands by Indigenous peoples are severely constrained.  The issues with this state-controlled Reserve system are pronounced when compared to two other regimes that are available to First Nations, which are:  (1) self-determined tenures under the Framework Agreement on First Nations Land Management (hereafter, Framework Agreement); and, (2) fee simple treaty settlement lands offered under the BC Treaty Commission Process.  Collectively, the three regimes represent a continuum from limited property rights under the Indian Act to full property rights after treaty settlement.

Prior to European contact, Indigenous peoples determined territorial boundaries through a system of laws and customary rights.  The extent to which property rights were practised and how formally they were managed varied significantly among Indigenous Nations across continent.  Generally, customary rights were established usually through ritual and ceremony, and were enforced according to cultural practices and protocols.  Customary rights are still practised today by many Indigenous peoples to grant and reaffirm private interest in areas of reserve land and traditional territory, and are increasingly recognised within Canadian legal and political realms.  This particular nature of land use planning for Indigenous peoples demonstrates to Canadians that “the relationships that people have with land and with each other, concerning the acquisition, use, transfer and distribution of land and its products” are outcomes of negotiations.  Indigenous land use planning also illustrates how the intricacies of land tenure and property rights creates many avenues for debate within negotiation processes and often leads to verbal, legal, and sometimes physical conflict among stakeholders.

The particular struggle of Indigenous peoples can be characterised as an ongoing effort to devise an equitable and ethical system of rights that satisfies both Western and Indigenous notions of communal and private property.  In addition to customary rights, the result is a continuum of property ownership from less to more bundles of rights.  As noted, this continuum ranges from state-controlled tenures of the Indian Act, to self-determined tenures under the Framework Agreement, to fee simple treaty settlement lands offered under the BC Treaty Process.

When considering the range of tenures available to Indigenous peoples, one must also consider “tenure security” and “transaction costs.”  In conventional terms, tenure security has a strong association with legal title, that is, registration and protection under state law.  This narrow view of legal title must be extended to include other forms of recognition, such as oral tradition, customs, and rituals, as well as resolutions enacted through traditional systems of governance.  Security of tenure is also associated with duration, whereby there is the real or perceived expectation that tenure will continue without infringement or interference by others for the long term.  Tenure security is also related to the right to reap benefits from the land or resource.  Thus, a high degree of security implies little risk of the state or other claimants impinging upon another’s land rights.  Correspondingly, a higher degree of tenure security is a foundation for investing in, conserving, and protecting property.  Baxter and Trebilcock highlight these aspects of tenure security, as well as some related issues, as follows.

Where some of the community’s goals are to use resources more efficiently and to promote growth by participating in national and international economies, harmonizing land tenure inside the community with regimes outside and enforcing rights at the level of the state may provide greater tenure security for interest holders and produce net economic benefits.  However, these reforms may entrench inefficient regimes, undermine traditional tenure systems, pose serious threats to community cohesion and fail to consider crucial supporting institutions, thus creating greater uncertainty and diminishing prospects for community-led development.

The term transaction cost describes the administrative burden incurred when dealing with property rights through the legal system, including financial and non-financial costs, as well as time.  Both tenure security and transaction costs influence how one weighs the advantages and disadvantages of holding interest in lands.

The Indian Act:  Reserve Tenure

The Indian Act was enacted in 1876.  Although amendments have been made since its inception, the tenets of the legislation remain intact.  Among Indigenous peoples, the Act is viewed as a form of discrimination and paternalistic oppression that regulates their lives.  Among other things, the Act imposed band councils as the only legally-recognised form of governance and restricted traditional cultural practices.

The Indian Act is also the primary legal mechanism of the Government of Canada for enforcing power over all “Indians and Lands reserved for the Indians” (s. 91(24) of The Constitution Act, 1867).  As stated in Section 20(1), “no Indian is lawfully in possession of land in a reserve unless…possession of the land has been allotted to him by the council of the band.”  However, the lawful possession of land by individual band members provides few property rights under the reserve tenure regime of the Indian Act.  Legally, First Nations possess usufructuary rights, which refers to the right to use and enjoy the property of another (the Crown), provided its substance is neither impaired nor altered.

For Reserve lands, band councils may grant possession of an on-reserve land parcel to a band member through either customary rights or a Certificate of Possession.  It must be noted, however, that all formal band council decisions are subject to approval by the Federal Minister of Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC), an arrangement that can make on-reserve land development a protracted and difficult process.  If a band council adopts a Land Code, in accordance with the Framework Agreement and Framework Agreement on the First Nations Land Management Act (S.C. 2022, c. 19, s. 121), it can operate much like a municipal government and exercise authority over many aspects of land management, including the granting of possessory rights, zoning, and subdivision regulations, as well as processing development applications.

Since the Crown retains legal title to Reserve land, all Reserve lands are inalienable.  This means that the land cannot be sold and can only be bequeathed to band members.  Similarly, land obtained through customary rights cannot be leased to outside parties, mortgaged, or used as collateral for a loan.  However, Section 38 of the Indian Act does permit a band to “surrender” all rights and interests in a property to the Crown or to “designate” land for the purpose of establishing a leasehold interest.  This provision helps to use this land as collateral to get financing from off-reserve institutions, since lands surrendered in this manner may be seized in the event of a loan or mortgage default.  However, since leasehold administration is conducted directly through CIRNAC with the leasee, the potential exists for disagreement between a land user and the Crown over specifics of the contract.

Customary Rights

One method an individual band member can acquire interest in property is through customary rights, which are established through a range of traditions and practices unique to each band.  The administrative systems for managing customary rights may range from informal, socially-determined mechanisms to those that are “highly structured with detailed, explicit rules regarding land use, value appropriation, title transfer and inheritance, and the initial allocation of rights by a central authority.”⁴

Once granted customary title, an individual user may occupy a parcel of land so long as the land use remains consistent with the wishes of band council.  For example, a band member granted customary possessory rights may be enabled to build a home, operate a business, or cultivate the land for agricultural purposes.  However, in cases of dispute, most courts have prioritised communal customary interests in Reserve lands over an individual member’s customary rights.  Since customary rights are not legally recognised under the Indian Act, a land user has no mechanism for appeal.  Thus, depending on the nature of the property and the member’s relationship with council, the land user may be subject to significant tenure insecurity.

There are some transaction costs associated with customary rights.  With regard to the Indian Act, ministerial approval is rarely obtained since customary rights are not legally recognised.  To remove timber or minerals from properties occupied under customary rights, the land user must apply to the Minister and pay the band for a temporary permit.  The revenue from these transactions is collected communally as “Band moneys” and may only be spent with the Minster’s approval.

Certificate of Possession

A band member who is in lawful possession of land (i.e., under section 20(1), approved by the council of the band) and wishes to increase tenure security may apply for a Certificate of Possession (CP) under section 20(2) of the Indian Act.  A CP provides lawful “evidence of his [the successful applicant’s] right to possession of the land,” thus providing an individual member with use and possession rights, but not title to the land itself.  In these terms, CPs are closest to, but fall short of, fee simple ownership on Reserve lands.  A CP holder has the right to build a home on the land, extract resources from the land, and lease the land to another band member or non-member.  A CP holder is not able to mortgage the property or use it as equity for a business venture.

A land user who obtains a CP from the Minister may be more likely to invest in the land and its buildings, since (a) risk of appropriation is greatly reduced; (b) ministerial and/or council approval of entrepreneurial activities is likely not required; and (c) profits from land use (through leases to third parties, primarily) are retained by the CP holder.  Land held under a CP can also be used as collateral for a loan from the Band.

Notably, a land user is not permitted to transfer or subdivide a CP to non-band members; however, under section 58(3), the federal government may establish long-term leases for CP land with non-members or corporations, effectively selling the property.  This latter arrangement does not require consent from band council and is obtained directly through CIRNAC.  Nonetheless, the reserve tenure system may serve as a disincentive to outside investors.

Acquiring a CP involves considerable transaction costs.  Resolution by a band council and approval by CIRNAC may take anywhere from 6 months to 11 years.  Transfer applications to other band members are also burdened in this manner.

Framework Agreement on First Nations Land Management:  Self-determined Tenure

The Framework Agreement on First Nations Land Management, agreed upon in 1999, represents a government-to-government initiative to improve Indigenous governance through the development of self-determined Reserve land management regimes for each participating band council.  This agreement allows for the transfer of administration and control over land management (but not Indigenous title) from CIRNAC to a band council.  In effect, the Framework Agreement strengthens the communal (or collective) rights of participating bands and is a step toward developing culturally appropriate on-reserve land tenure regimes.  In collaboration with its members, a band council is empowered to decide through which tenure regime land users, both members and non-members alike, may occupy, manage, transfer, and profit from Reserve properties.

The transfer of administration and control is accomplished through the creation of a Land Code, which replaces specific land-related provisions of the Indian Act. As of 2020, 96 band councils across Canada have an operational agreement, with 48 agreements under development.

Section 6(1) of the Framework Agreement outlines the requirements for adoption of a Land Code, including a legal description of the land that will be subject to the Code.  The Land Code includes the rules and procedures governing a range of land uses and associated rights, such as the following:

• use, occupancy, transfer, expropriation, or exchange of reserve land;
• division of interest in cases of breakdown of marriage;
• management of revenues gained through natural resource exploitation on Reserve land;
• enactment and publication of laws;
• delegation of authority, potential conflicts of interest, and dispute resolution; and,
• amendment of the Land Code.

The Framework Agreement contains a number of other sections relevant to Reserve land use planning, including the following:

• empowering First Nations to enact laws pertaining to environmental management, protection, and conservation;
• requiring band approval for adoption of the Land Code;
• establishing a Lands Management Committee to aid in development and administration of the Land Code; and,
• creating a Canada-wide First Nations Land Register for bands operating under the Framework Agreement.

Prior to ratification of its Land Code, band councils must complete an Individual Agreement, also known as a Transfer Agreement, with the Government of Canada.  This agreement details the transfer of Federal interests and administrative duties to a band, and the financial resources required to capably administer these new jurisdictions.  Upon member ratification of this agreement and the Land Code, a band acquires full legal powers to manage all its lands and resources as outlined in the Framework Agreement.

Tenures issued under this regime will be registered in the First Nations Land Register, which is administered by CIRNAC.  A participating nation may also choose to create their own on-reserve registry system that duplicates information provided to the federal land register.

Under the Framework Agreement, all Reserve land continues to be held in trust by the Crown, thereby prohibiting outright transfer of title to non-members.  Nonetheless, outside investment may be enticed by reduced transaction costs, where Ministerial approval is no longer required for land use arrangements.

Given the stipulations for member approval and a formalised lands registry, it may be assumed that tenure security for individual band members will be improved under the Framework Agreement.  Furthermore, tenure security is increased by allowing council or land users to negotiate lease contracts directly with third party lessees, a power not afforded under the Indian Act.  However, imprecise or vague language employed when drafting a Land Code may actually decrease security for land users when compared to the more firmly entrenched CP system.  Furthermore, the variability of self-determined tenures makes analysing the security of property rights of individual land users more complicated.

Critical reflections on the Framework Agreement

While the Framework Agreement represents a significant step towards developing culturally appropriate Reserve land tenure regimes, the rights of Indigenous peoples remain subsumed under s. 91(24) of the Constitution Act, 1867 and the largely archaic Indian Act.  This restriction on land tenure persists under the Framework Agreement because the adoption of a Land Code has no bearing on title.  In other words, as stated in the Framework Agreement, the land management agreement is not a treaty or land claim.

Three issues regarding the Framework Agreement should be noted.  The first is the cost of administering a land code, which requires time and expertise.  Some funds are provided initially to support administration, but bands have stated that the funding is inadequate.  Second, these costs include environmental assessments and land surveys.  Liability is another major concern.  Under their own land code, a band assumes legal and financial responsibility for everything that happens on their land, including disasters and problems.  Given these issues, as Flanagan and Alcantara note, the options afforded under the Framework Agreement appears, in some respects, to be a process of the federal government devolving some responsibilities to band councils.

Sharlene Jobin and Emily Riddle offer a harsher critique.  While not rejecting the Framework Agreement outright, Jobin and Riddle express strong concern that the Framework Agreement must be viewed as part of a larger context of colonisation and alienation.  They state,

In our view, as treaty people, the threat of the First Nations Land Management Regime is that it overwrites our treaty history and obligations.  Beyond this, for people whose nations do not have historical or contemporary treaties with the Crown, the threat of the politics of distraction is also at play in that we believe we should be having a larger, more robust conversation with the Crown regarding jurisdiction and management of lands and resources in Canada.  It is important to state at the outset that the Indian Act, the First Nations Land Management Act, and the Framework Agreement on First Nation Land Management make no substantive reference to treaties.  This regime is about a very limited type of self-governance and does not substantively implement the self-determination envisioned by our ancestors through treaty or inherent rights. (p. 5)

Jobin and Riddle characterise the Framework Agreement as a process of “Reserve marketisation.”  They argue that the First Nations Land Management Act prioritises economic development, thus favouring First Nations with aligned interests. “Ultimately, the aim of the First Nations Land Management Act is to put reserve land on the global market, subjecting communities to increased market forces” (p. 6).  The effect is to serve economic interests at the expense of Indigenous philosophy, practices, and lands.

Treaty Settlement Lands

Fee simple is the highest estate a land user may be granted in Canada.  Title holders may exercise the fullest extent of property rights afforded under Canadian law (subject to legislation, taxation, Crown reservations and/or any stipulations on the deed or certificate of title).  Thus, land users may enjoy a high degree of tenure security and minimal transaction costs associated with their property.  For these reasons, some argue that fee simple title is best suited to empower Indigenous peoples to “define their relationship with the land as they wish,” with minimal risk of interference or expropriation from government or other claimants.  Furthermore, the self-governing authority and law-making power of a treaty allows Indigenous peoples to ensure cultural values are enshrined within an appropriate legal framework.

In British Columbia, the process for formalising fee simple rights and title to land is established through a six-stage negotiation process administered through the BC Treaty Commission.  While the specific details of provincial treaties are unique to each Indigenous Nation, each treaty will normally include common provisions such as:

• establishment of treaty boundaries and title to a unique fee simple estate known as treaty settlement lands;
• a clear system for Indigenous self-governance, including a constitution, taxation frameworks, financing agreements and law making authority;
• emancipation from all provisions included in the Indian Act (other than provisions affecting Indian status and certain wills and estates);
• specific rights to use natural resources; and,
• a role for Indigenous Nations in land and resource management within traditional territories not included in the treaty boundaries.

For these provisions, some advocates describe the BC Treaty Process as fundamentally distinct from past attempts at enfranchisement in that, rather than take away status, the self-governing authority and law-making power of a treaty allows Indigenous Nations to ensure cultural values are enshrined within an appropriate legal framework.

As an example, the Nisga’a in the Nass River Valley sought and ratified a unique treaty agreement in 2000, which contains provisions for self-government and fee simple ownership.¹¹   For the Nisga’a, the treaty established a “modified” form of title to land, which included areas of land dedicated as Nisga’a Lands (communal lands) and Nisga’a Fee Simple Lands.  The Nisga’a Fee Simple Lands refer to 33 sites located outside of Nisga’a Lands.  Eighteen of these sites are former reserve lands, to which the Nisga’a have close to full fee simple tenure (referred to as Category A lands), which includes full rights to subsurface resources, i.e., minerals.  Fifteen sites are located elsewhere with limited fee simple tenure (Category B Lands).  The treaty established the authority of the Nisga’a Government to make laws dividing property and regulating activities.

In its annual report for 2022, the BC Treaty Commission identifies 39 First Nations involved in the BC treaty process (Figure 1).  Seven First Nations are implementing modern treaties; 31 First Nations are actively negotiating at different stages of the process. The Nisga’a Treaty was negotiated prior to the BC Treaty Commission process.

Figure 1. Map of First Nations involved in the BC Treaty Commission process

Source:  BC Treaty Commission (2022). Annual Report 2022.

Fee Not-So-Simple?

Despite the many apparent freedoms offered under fee simple estate, a debate exists whether or not freehold tenure is desirable for Indigenous peoples.  In the United States, the much maligned Dawes Act (1888) enforced private interests through fee simple ownership of Reserve lands upon Indigenous peoples.  The campaign was a failure, with hindsight suggesting that private land holdings “actually increased poverty rather than reducing it” by providing non-Indigenous speculators with the legal mechanisms to purchase Reserve lands.  For similar reasons, some argue that fee simple title would fundamentally alter the relationships between Indigenous peoples and their lands.  This perspective was reinforced by the Assembly of First Nations’ rejection of the proposed First Nation Property Ownership Act (POA).

The First Nations Tax Commission, a Federally-legislated body, proposed the POA in 2009.  In their rejection of the POA, the Assembly of First Nations argued that:

• First Nations have a relationship with their territories that is rooted in their spirituality as a gift from the Creator.
• Their spiritual connection with their territories is the foundation of their life as Peoples.  First Nations have a sacred responsibility to honour and preserve their spiritual connection to their territories.
• The proposed POA would endorse “fee simple title” of First Nation reserved lands, a concept that is in direct contradiction to First Nation sacred responsibilities and distinct relationship to their territories.
• The proposed POA would enable First Nation lands to be “transferred to non-First Nation persons” and would erode their collective rights in their reserved lands.
• Fee simple title will lead ultimately to the individual privatisation of Indigenous collective lands and resources and impose the colonizer’s model on First Nations Peoples.
• The POA literature ignores the ultimate risk that all First Nation lands, currently held in trust by them for their future generations, could disappear through “fee simple title” thereby violating their responsibility to subsequent generations and sacred treaties.

In contrast, the First Nations Property Ownership Initiative, a group, argued in favour of the POA because it would allow Indigenous Nations to transfer title of lands from the Federal Government to Indigenous Nations and to issue fee simple title.

The debate about fee simple rights transcends arguments about the advantages and disadvantages of this tenure.  As reflected in the landmark Supreme Court of Canada case, Delgamuukw v. British Columbia (1997),