The Forest Service will carry out a status check to look for any conflicts between the proposed work and resource tenure holders, private land owners, or other rights or interests. Given the 60 day maximum time frame, this will normally be limited to a preliminary status check carried out within the forest district office rather than a full status check carried out in consultation with the Forest Service’s resource tenures branch. A full status check would be required, for example, before a trail or recreation facility could be established (“designated”) as a Forest Service trail or site.
The Forest Service will refer the proposal to all affected resource agencies and resource users, including other outdoor recreation groups.
Based on comments received and other information, the Forest Service will evaluate the proposal with respect to the criteria set out in Section 4(5) of the Forest Recreation Regulation. That is, the district manager may refuse to consent to a proposal only if he or she determines that the proposal will result in one or more of the following:
Time required to process
The time required for the Forest Service to process a proposal will normally depend on the nature of the proposal. For example, a straight forward proposal for maintenance of an existing trail could normally be processed within much less than 60 days. However, a complex proposal for construction of a new trail across district boundaries could take the full 60 days. There are three basic categories of proposals, listed here in order of increasing complexity as follows:
The district manager should inform the applicant in writing regarding:
The district manager may also wish to inform the applicant that any trail or recreation facility that is constructed, rehabilitated, or maintained under Section 102:
The district manager’s determination will generally fall into one of four basic categories:
The proposal is given consent, but there are conditions, warnings or requirements associated with the consent. For example, the applicant is informed that a more thorough statusing or referral than was able to be carried out in 60 days, if carried out could uncover conflicts that may prevent the project from continuing at that time.
The proposal is refused at this time or as it stands, but the applicant is informed that the proposal might be given consent under different circumstances or if it were revised. For example, the proposal is for an area that is currently under a local planning study and should be dealt with by that study or postponed until that study is concluded. Or, for example, the proposal fails to address certain safety or environmental issues, but could be revised and resubmitted.
The proposal is refused because it is considered to pose, inherently, one or more of the following, as set out in Section 4(5) of the Forest Recreation Regulation:
The total “response time,” or time between when an applicant mails a written proposal and receives a written response, will be determined by:
Upon receipt of a district manager’s determination, the applicant may accept the determination and any conditions that may apply. In this case, the applicant may still want to contact the district manager or district recreation staff to discuss the determination or the proposal in order to clarify the determination or gain information to prepare another proposal.
On the other hand, either the applicant or any other person may not accept the determination. In this case, the Act and regulations provide for a review and appeal process as follows:
Briefly, this process involves:
The applicant (i.e., the person subject to the determination) must prepare a written request for an administrative review and submit it to the review official(s) named in the district manager’s determination within three weeks of receiving the determination. The request should explain why the district manager’s determination is considered unacceptable.
Role of the review official(s)
The review official(s) coordinate an administrative review of the district manager’s determination. The review is conducted by one or more government employees. The review must be conducted in a manner that complies with the requirements set out in the Act and the regulations. It can be based on oral or written information.
The employees conducting the review can confirm, vary, rescind, or cancel the district manager’s determination, make a new determination, or order the district manager to re-assess the original determination.
The employees conducting the review must give the person subject to the determination a written decision within 60 days of receiving their request for a review. They must also provide the Forest Practices Board (FPB) with copies of the written decision.
Review by the Forest Appeals Commission (FAC)
The affected party or the FPB may appeal an administrative review decision to the FAC. The request for an appeal should be sent to the FAC within three weeks of the administrative review decision being made.
Role of the FAC:
On receipt of a request for an appeal, the FAC must give a copy of the request to the ministers, and to the party subject to the determination and to the FPB.
The FAC can request information from all parties including witnesses and Forest Service staff, and can add other parties to the appeal.
The FAC can confirm, vary, rescind, or cancel the determination; make a new determination; or order that the original determination be sent back to the district manager for re-assessment.
The FAC must make a decision regarding the appeal promptly (i.e., there is no specified time period) and give copies of the decision to the ministers and all other parties to the appeal.
Appeal to the courts
The ministers or any party to the appeal can appeal the FAC’s decision to the B.C. Supreme Court of B.C. within three weeks of receiving the decision.
Court appeals are restricted to questions of law and jurisdiction. The court generally does not review findings of fact by the FAC. The Supreme Court does not normally look at the merits of the decision or substitute its own view. It can, however, substitute new decisions where errors of law or jurisdiction have been made.
The Supreme Court’s decision can be appealed to the BC Court of Appeal. However, the Court of Appeal of B.C. has the right to refuse to consider the request for further review.
Investigation by the Forest Practices Board (FPB)
In addition, any person (i.e., the public) who does not accept a district manager’s determination may make a complaint to the FPB.
The FPB will investigate any public complaint in accordance with the regulations. The circumstances in which the board may refuse to investigate or stop investigating include:
There is no appeal from a refusal to investigate, but a person could apply to the courts for an order requiring the board to investigate.
Role of the FPB:
The independent Forest Practices Board investigates third-party complaints on aspects of the code following a regulated process, and will carry out independent audits and special investigations of both licence holders and government agencies.
Enforcement of unauthorized activities
Note: This section only summarizes and sketches, for reference purposes, the enforcement provisions regarding Section 102 that are provided for under the Act. This section is neither a complete nor official presentation of this broad and complex subject. For more information on enforcement, please contact the nearest Forest Service office.
Experience has shown that information, education, and voluntary compliance are the most effective means of managing recreation activities and enforcing recreation management rules and objectives. This can be expected to be the case with Section 102 and its intent to bring about a more planned approach to trail and recreation facility management in British Columbia.
This section deals with regulatory, as opposed to voluntary, enforcement of Section 102 as set out in the Act and regulations. It outlines the actions an official may take if he or she believes that a person is illegally constructing, rehabilitating, or maintaining a trail or recreation facility on Crown land.
In summary, the actions that may be carried out, either individually or in various combinations, are as follows:
If an official believes that a person(s) is contravening Section 102 he or she may inform them through a written notice of the apparent contravention. The notice should contain information pertaining to the alleged contravention, including the name and phone number of the official. Failure to heed the warning may lead to penalties.
Stop work order
If an official believes that a person(s) is contravening Section 102 he or she may order the contravention to stop, or to stop to the extent required for the person(s) to get the required consent. Such a stop work order may or may not name, or apply to, specified persons.
The minister may apply to the courts for an order for compliance if the minister considers that a person(s) is not complying with a stop work order.
Violation ticket (specified penalty ticket)
If an official believes that a person(s) is contravening Section 102, he or she may issue a $100 ticket. The person(s) may appeal the ticket.
Administrative penalties have not yet been developed for Section 102.
A senior official may order a person(s) to remedy a contravention of Section 102 by requiring them to repair any damage caused by the contravention.
Such a remediation order must set out all information required by the Act and regulations, including:
If the minister considers that a person(s) is not complying with a remediation order made under Section 102, the minister may apply to the Supreme Court for an order directing the person to comply with the order. The court can use discretion to issue a court order that it considers appropriate. Refusal to comply with a court order could result in penalties for contempt of court.
If an official believes that a person(s) is contravening Section 102, he or she may prosecute. A person(s) prosecuted by the Crown for contravening Section 102 would (at the discretion of a judge, not an official) be subject to a penalty of up to $5,000 in fines and six months in jail.