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

4. Analysis of legislative instruments

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

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

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

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

4.1 Spatially-explicit legislative instruments – any group of activities

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

Table 9. Area covered by Legislative Instruments within Central Group LPUs.
Legislative Instrument (LI) Total Area (ha) of LI in LPU boundaries % of Central Group LPU boundaries (all ranges) Area (ha) within Central Group high elevation winter or summer range % of Central Group high elevation range Area (ha) within Central Group, outside high elevation range % of Central Group non-high elevation range
Ecological Reserve 1,114 0.0% 143 0.0% 971 0.0%
Motor Vehicle Prohibition Regulation (Wildlife Act) 153,608 5.2% 153,589 18.6% 18 0.0%
No Registration Reserve - Coal (Coal Land Reserve) 602,627 20.3% 335,215 40.7% 267,412 12.4%
No Registration Reserve - Mineral 499,115 16.8% 378,483 45.9% 120,632 5.6%
No Registration Reserve - Placer 444,960 15.0% 296,958 36.1% 148,002 6.9%
Old Growth Management Area (FRPA) 190,924 6.4% 30,255 3.7% 160,669 7.5%
Old Growth Management Area (OGAA) 64,945 2.2% 13,651 1.7% 51,294 2.4%
Protected Area 5,800 0.2% - - 5,800 0.3%
Provincial Park 338,792 11.4% 91,468 11.1% 247,325 11.5%
Resource Review Area (oil and gas) 627,794 21.1% 405,727 49.3% 222,067 10.3%
Section 15 OIC Reserve (Land Act) 25 0.0% - - 25 0.0%
Section 16 withdrawal (Map Reserve) (Land Act) 29,314 1.0% 3,161 0.4% 26,153 1.2%
Section 17 conditional withdrawal (designated use area) (Land Act) 489,435 16.4% 470,381 57.1% 19,054 0.9%
Ungulate Winter Range - FRPA - Conditional Harvest GWMs 533,031 17.9% 72,090 8.8% 460,941 21.4%
Ungulate Winter Range - FRPA - No Harvest GWMs 419,437 14.1% 404,220 49.1% 15,216 0.7%
Ungulate Winter Range - OGAA - Conditional Harvest GWMs 354,631 11.9% 270 0.0% 354,361 16.5%
Ungulate Winter Range - OGAA - No Harvest GWMs 419,437 14.1% 404,220 49.1% 15,216 0.7%
Wildlife Habitat Area - FRPA - Conditional Harvest GWMs 29,363 1.0% 9,639 1.2% 19,723 0.9%
Wildlife Habitat Area - FRPA - No Harvest GWMs 143,928 4.8% 143,928 17.5% 0 -
Wildlife Habitat Area - OGAA - Conditional Harvest GWMs 29,264 1.0% 9,639 1.2% 19,625 0.9%
Wildlife Habitat Area - OGAA - No Harvest GWMs 143,928 4.8% 143,928 17.5% 0 -
Provincial Crown land outside above LI 1,027,427 34.5% 81,952 9.9% 945,475 43.9%
Federally-administered Land & First Nation Reserves (no LI reviewed) 74 0.0% - - 74 0.0%
Private & municipal  (no LI reviewed) 11,305 0.4% 33 0.0% 11,272 0.5%

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

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

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

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

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

Map 14. Overlapping legislative instruments within the Central Group
Map of overlaping (see long description below)
Long description for map 14

This map shows the frequency with which the different legislative instruments overlap within the boundaries of the Central Group LPUs. Darker colours show more overlap; white areas are places where none of the legislative instruments that are discussed in this document apply.

4.2 Spatially-explicit legislative instruments – some groups of activities

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

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

Table 10. Areas within the Central Group LPU boundaries that are not covered by legislative instruments associated with activity groupings.
Activity Group Relevant Legislative InstrumentsFootnote23 Area not covered by relevant instrument(s)Footnote24
High Elevation habitat (ha/%)
Area not covered by relevant instrument(s)Footnote24
Non-high elevation habitat (ha/%)
Forest Harvesting & Roads

Parks
Protected Areas
Ecological Reserves
Old Growth Management Areas
“No harvest” Wildlife Habitat Areas

“No harvest” Ungulate Winter Ranges

--------------------
As above, but including “conditional harvest” WHAs & UWRs

 

279,925 ha / 34%

 

--------------------
213,735 ha / 26%

 

1,724,724 ha / 80%

 

--------------------
1296352 ha / 60%

Coal mining & related activities Parks
Protected Areas
Ecological Reserves
Coal Land Reserves
396,890 ha / 48% 1,631,418 /
76%
Mineral mining & related activities Parks
Protected Areas
Ecological Reserves
Mineral No Registration Reserves
353,623 ha / 43% 1778916 ha / 83%
Placer mining & related activities Parks
Protected Areas
Ecological Reserves
Placer No Registration Reserves
435148 ha / 53% 1751658 ha / 81%
Sand and gravel extraction Parks
Protected Areas
Ecological Reserves
Land Act Reserves
259,859 ha  / 32% 1,852,988 ha / 86%
Oil & gas exploration & infrastructure

Parks
Protected Areas
Ecological Reserves
Old Growth Management Areas
“No harvest” Wildlife Habitat Areas

“No harvest” Ungulate Winter Ranges

--------------------
As above, but including “conditional harvest” WHAs & UWRs

 

 

290,429 ha / 35%

------------------
274,447 ha / 33%

 

 

1,831,603 ha / 85%

-----------------
1,399,449 ha / 65%

Renewable Energy
Recreation
Other
Parks
Protected Areas
Ecological Reserves
Land Act Reserves
259,859 ha / 32% 1,852,988 ha / 86%

4.3 Discretion within legislative instruments

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

Table 11. BC's legislative instruments compared against activities with the potential to destroy caribou habitat.
Type of Designation/ % of Central Group LPU area General Activity Type / Constraints on the Activity within Designated Area -
Forest Harvesting & Roads
General Activity Type / Constraints on the Activity within Designated Area - Mineral exploration & mining General Activity Type / Constraints on the Activity within Designated Area -
Oil & gas exploration & infrastructure
General Activity Type / Constraints on the Activity within Designated Area -
Renewable Energy & associated roads etc
General Activity Type / Constraints on the Activity within Designated Area - Recreation
Ecological Reserve (Ecological Reserve Act)
0.04%
Prohibited Prohibited Prohibited Prohibited Motorized – Prohibited
Class A Provincial Park
(Park Act)
11%
Prohibited Prohibited. Research permits associated with environmental assessments etc. may be authorized. May only be authorized if activities do not disturb the surface of land. Research permits associated with environmental assessments etc. may be authorized. Prohibited. Research permits associated with environmental assessments etc. may be authorized. Constrained to various levels  / specific areas depending on the park
Protected Area
(Park Act, Environment and Land Use Act) 0.2%
Same as for Provincial Parks except some specific projects were authorized when areas were designated (e.g. roads, pipelines, powerlines, use of the land associated with existing mineral title) Same as for Provincial Parks except some specific projects were authorized when areas were designated (e.g. roads, pipelines, powerlines, use of the land associated with existing mineral title) Same as for Provincial Parks except some specific projects were authorized when areas were designated (e.g. roads, pipelines, powerlines, use of the land associated with existing mineral title) Same as for Provincial Parks except some specific projects were authorized when areas were designated (e.g. roads, pipelines, powerlines, use of the land associated with existing mineral title) Same as for Provincial Parks
Wildlife Habitat Area (WHA) (5%) or Ungulate Winter Range (UWR) (14%)– “no harvest” General Wildlife Measures
(Forest and Range Practices Act (FRPA) / Oil and Gas Activities Act(OGAA))
No removal of forest cover or construction of roads or trails. Exemption may be granted if not practicable. No constraints through FRPA. May be constrained as a result of an EA process; the general provisions of the Mineral Tenure Act, Mines Act, and Coal Act always apply. If designated under OGAA, operating areas are not to be located within a WHA or UWR (regardless of whether the GWMs are “no harvest” or “conditional harvest” unless it will not have a material adverse effect on the ability of the wildlife habitat within the WHA/UWR to provide for the survival, within the WHA/UWR, of the wildlife species for which the WHA/UWR was established. Even if not designated under OGAA, OGC considers material adverse effects on caribou within UWRs, WHAs as a matter of policy. Same as for forest harvesting and roads. Recreation sites and trails will not be developed. Otherwise no constraints.
Wildlife Habitat Area (WHA) (1%) or Ungulate Winter Range (UWR) (18%)– “conditional harvest” General Wildlife Measures
(FRPA / OGAA)
Some harvesting allowed. Constraints vary according to area-specific general wildlife measures. Exemption may be granted if not practicable. No constraints through FRPA. May be constrained as a result of an EA process; the general provisions of the Mineral Tenure Act, Mines Act, and Coal Act always apply. If designated under OGAA, operating areas are not to be located within a WHA or UWR (regardless of whether the GWMs are “no harvest” or “conditional harvest” unless it will not have a material adverse effect on the ability of the wildlife habitat within the WHA/UWR to provide for the survival, within the WHA/UWR, of the wildlife species for which the WHA/UWR was established. Even if not designated under OGAA, OGC considers material adverse effects on caribou within UWRs, WHAs as a matter of policy. Same as for forest harvesting and roads. No constraints
FPPR Section 7 notice area (FRPA)
(aspatial / undefined area)
Depends on the results and strategies specified by the licensee in their Forest Stewardship Plan. These areas are aspatial, so tracking achievement of overall government objectives amongst licensees is a challenge. Only applies to Forest Act agreement holders who are required to prepare a Forest Stewardship Plan (e.g. major licencees). Exemption may be granted if not practicable. No constraints through FRPA. May be constrained as a result of an EA process; the general provisions of the Mineral Tenure Act, Mines Act, and Coal Act always apply. No constraints through FRPA. The general provisions of OGAA and its regulations, especially the EPMR, always apply. No constraints through FRPA. May be constrained as a result of an EA process; the general provisions of FRPA and the Land Act always apply. No constraints
Old Growth Management Area
(Forest and Range Practices Act (FRPA) / Oil and Gas Activities Act (OGAA))
6.4%
Depends on the results and strategies specified by the licensee in their Forest Stewardship Plan. Generally, all timber must be retained, with exceptions for minor incursions.
Only applies to Forest Act agreement holders who are required to prepare a Forest Stewardship Plan (e.g. major licencees). Exemption may be granted if not practicable.
No constraints through FRPA. May be constrained as a result of an EA process; the general provisions of the Mineral Tenure Act, Mines Act, and Coal Act always apply. If designated under OGAA, operating areas are not to be located within an OGMA “unless it will not have a material adverse effect on the old seral stage forest representation within that area”. No constraints through FRPA. May be constrained as a result of an EA process; the general provisions of FRPA and the Land Act always apply. No constraints
Resource Review Area
(Petroleum and Natural Gas Activities Act (PNGA) / Oil and Gas Activities Act (OGAA) / Environmental Protection and Management Regulation (EPMR))
21%
No constraints through PNGA/ OGAA. The general provisions of FRPA always apply. No constraints through PNGA/ OGAA. May be constrained as a result of an EA process; the general provisions of the Mineral Tenure Act, Mines Act, and Coal Act always apply. No new tenures will be issued for subsurface oil and gas activities. The only activity for which tenure is required is drilling or operating a well; all other oil and gas activities may still be authorized under OGAA, in accordance with the EPMR. No constraints through FRPA. May be constrained as a result of an EA process; the general provisions of FRPA and the Land Act always apply. No constraints
No Registration Reserve  (Mineral Tenure Act) /
Coal Land Reserve (Coal Act)
Cumulative 28% for MTA NRR and Coal Land Reserves
No constraints through Coal Act / Mineral Tenure Act. The general provisions of FRPA always apply. No registration reserves: new mineral title will not be granted. Holders of mineral title granted prior to the establishment of the reserve may apply for permits under the Mines Act. Reserve only applies to the specified resource (e.g. mineral or placer or both).
Coal land reserves: exploration and development of coal is prohibited.
No constraints through Coal Act / Mineral Tenure Act. The general provisions of OGAA and its regulations, especially the EPMR, always apply. No constraints through Coal Act / Mineral Tenure Act. May be constrained as a result of an EA process; the general provisions of FRPA and the Land Act always apply. No constraints
s. 15 OIC Reserve (Land Act) 0.001% In general, activities inconsistent with the stated purpose (e.g. of Environment, Conservation, and Recreation), and specifically with the Intent Statement for the reserve, will not be authorized. However, the Minister has discretion to authorize temporary licences for less than two years for a variety of activities, and to authorize construction of roads. The designation does not apply to activities that do not require a Land Act disposition for occupancy. This includes some oil & gas-related & mining-related activities. In addition, some activities may be consistent with the Intent Statement but still result in destruction of critical habitat. In general, activities inconsistent with the stated purpose (e.g. of Environment, Conservation, and Recreation), and specifically with the Intent Statement for the reserve, will not be authorized. However, the Minister has discretion to authorize temporary licences for less than two years for a variety of activities, and to authorize construction of roads. The designation does not apply to activities that do not require a Land Act disposition for occupancy. This includes some oil & gas-related & mining-related activities. In addition, some activities may be consistent with the Intent Statement but still result in destruction of critical habitat. In general, activities inconsistent with the stated purpose (e.g. of Environment, Conservation, and Recreation), and specifically with the Intent Statement for the reserve, will not be authorized. However, the Minister has discretion to authorize temporary licences for less than two years for a variety of activities, and to authorize construction of roads. The designation does not apply to activities that do not require a Land Act disposition for occupancy. This includes some oil & gas-related & mining-related activities. In addition, some activities may be consistent with the Intent Statement but still result in destruction of critical habitat. In general, activities inconsistent with the stated purpose (e.g. of Environment, Conservation, and Recreation), and specifically with the Intent Statement for the reserve, will not be authorized. However, the Minister has discretion to authorize temporary licences for less than two years for a variety of activities, and to authorize construction of roads. The designation does not apply to activities that do not require a Land Act disposition for occupancy. This includes some oil & gas-related & mining-related activities. In addition, some activities may be consistent with the Intent Statement but still result in destruction of critical habitat. In general, activities inconsistent with the stated purpose (e.g. of Environment, Conservation, and Recreation), and specifically with the Intent Statement for the reserve, will not be authorized. However, the Minister has discretion to authorize temporary licences for less than two years for a variety of activities, and to authorize construction of roads. The designation does not apply to activities that do not require a Land Act disposition for occupancy. This includes some oil & gas-related & mining-related activities. In addition, some activities may be consistent with the Intent Statement but still result in destruction of critical habitat.
s.16 Withdrawal
(Land Act) 1%
As for Land Act section 15 reserves, except there is no authority to issue temporary licences. As for Land Act section 15 reserves, except there is no authority to issue temporary licences. As for Land Act section 15 reserves, except there is no authority to issue temporary licences. As for Land Act section 15 reserves, except there is no authority to issue temporary licences. Non-commercial recreation activities are not constrained. Commercial activities are the same as for other activities.
s. 17 Conditional Withdrawal
(Land Act) 16%
As for Land Act section 15 reserves, except there is no authority to issue temporary licences. As for Land Act section 15 reserves, except there is no authority to issue temporary licences. As for Land Act section 15 reserves, except there is no authority to issue temporary licences. As for Land Act section 15 reserves, except there is no authority to issue temporary licences. Non-commercial recreation activities are not constrained. Commercial activities are the same as for other activities.
Motor Vehicle Prohibition Regulation 5%
Public Access Prohibition % unclear (Wildlife Act)
Constraints vary according to the specific regulation. At the times and locations the prohibitions are in place, it is an offence to use or operate motor vehicles or certain types of motor vehicles (i.e. snowmobile or all-terrain vehicle). There are specific exemptions to the prohibitions that apply to specified areas. These include some commercial purposes and times of year. Exemptions may also be granted by permit. Constraints vary according to the specific regulation. At the times and locations the prohibitions are in place, it is an offence to use or operate motor vehicles or certain types of motor vehicles (i.e. snowmobile or all-terrain vehicle). There are specific exemptions to the prohibitions that apply to specified areas. These include some commercial purposes and times of year. Exemptions may also be granted by permit. Constraints vary according to the specific regulation. At the times and locations the prohibitions are in place, it is an offence to use or operate motor vehicles or certain types of motor vehicles (i.e. snowmobile or all-terrain vehicle). There are specific exemptions to the prohibitions that apply to specified areas. These include some commercial purposes and times of year. Exemptions may also be granted by permit. Constraints vary according to the specific regulation. At the times and locations the prohibitions are in place, it is an offence to use or operate motor vehicles or certain types of motor vehicles (i.e. snowmobile or all-terrain vehicle). There are specific exemptions to the prohibitions that apply to specified areas. These include some commercial purposes and times of year. Exemptions may also be granted by permit. Constraints vary according to the specific regulation. At the times and locations the prohibitions are in place, it is an offence to use or operate motor vehicles or certain types of motor vehicles (i.e. snowmobile or all-terrain vehicle). There are specific exemptions to the prohibitions that apply to specified areas. These include some commercial purposes and times of year. Exemptions may also be granted by permit.

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