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This Act is current to January 17, 2018
See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force.

Forest Act

[RSBC 1996] CHAPTER 157

Part 12 — Reviews, Appeals, Regulations, Penalties

Division 1 — Reviews

Determination that may be reviewed

143  (1) A review of the following may be required under this Division:

(a) a determination, an order or a decision of a timber sales manager under section 78;

(b) a determination, an order or a decision of the minister under section 59, 59.1 (9) or (10), 70 (4), 75, 76 (1), (2) or (6), 77 (1), 78.1 or 112 (2) or (3);

(c) an order made under section 75.02 (2) or (3) (b), unless the order specifies limits on the harvested volume respecting all of the forest licences in a timber supply area.

(2) A review of the determinations, orders and decisions referred to in subsection (1) is to be conducted by a person authorized by the minister.

Request for review

144  (1) If under the provisions referred to in section 143 (1) a determination, order or decision is made, the person

(a) in respect of whom it is made, or

(b) in respect of whose agreement it is made

may request a review of the determination, order or decision by serving a request for review on the person responsible for conducting the review under section 143 (2).

(2) The person must ensure that the request for review meets the content requirements of the regulations.

(3) The person must serve the request for review on the person responsible for conducting the review under section 143 (2) not later than 3 weeks after the date the notice of determination, order or decision is served on the person.

(3.1) After the request for review is served under subsection (1), the person requesting the review and the government must disclose the facts and law on which the person or government will rely at the review if required by the regulations and in accordance with the regulations.

(4) Before or after the time limit in subsection (3) expires, the person responsible for conducting the review under section 143 (2) may extend it.

(5) A person who does not serve the request for review within the time required under subsection (3) or (4) loses the right to require a review.

Powers on review

145  (1) The person responsible for conducting a review under section 143 (2) may decide the matter based on one or more of the following:

(a) the request for review and a review of the ministry's files;

(b) the request for review, the ministry's files and any other communication with persons that the person conducting the review considers necessary to decide the matter, including communication with the person requesting the review and with the person who made the determination, order or decision;

(c) an oral hearing.

(2) The person responsible for conducting the review may confirm, vary or rescind the determination, order or decision or refer it back to the person who made it, with or without directions.

(3) A written decision must be served on the person who requested the review within

(a) the prescribed period after the request for review was received by the person responsible for conducting the review under section 143 (2), or

(b) another period agreed to by the person who requested the review and the government.

(4) Despite subsection (3), if the person conducting the review determines that the request for review does not comply with the content requirements of the regulations, or that there was a failure to disclose facts and law required under section 144 (3.1), the prescribed period referred to in subsection (3) of this section does not begin until a request for review that does comply with the content requirements of the regulations is served on the person conducting the review, or the facts and law are disclosed as required under section 144 (3.1).

(5) [Repealed 2003-31-66.]

(6) Unless the minister orders otherwise, a review of a determination, order or decision does not operate as a stay or suspend the operation of the determination, order or decision.

Division 2 — Appeals

Determinations that may be appealed

146  (1) Subject to subsection (3), an appeal may be made to the Forest Appeals Commission from a determination, order or decision that was the subject of a review required under Division 1 of this Part.

(2) An appeal may be made to the Forest Appeals Commission from

(a) a determination, order or decision of the chief forester, under section 60.6, 68, 70 (2) or 112 (1),

(b) a determination of an employee of the ministry under section 105 (1), and

(c) an order of the minister under section 75.95 (2).

(3) No appeal may be made under subsection (1) unless the determination, order or decision has first been reviewed under Division 1 of this Part.

(4) If a determination, order or decision referred to in subsection (1) is varied by the person conducting the review, the appeal to the commission is from the determination, order or decision as varied under section 145.

(5) This Division does not apply to an appeal under the Forest and Range Practices Act in respect of a contravention of this Act or the regulations under this Act.

(6) For the purpose of subsection (2), a redetermination or variation of stumpage rates under section 105 (1) is considered to be a determination.

Part 8.1 of Forest and Range Practices Act applies

146.1  Part 8.1 of the Forest and Range Practices Act applies to an appeal referred to in section 146 (1) or (2) of this Act.

Parties to appeal

147  (1) If a determination, order or decision referred to in section 146 (1) or (2) is made, the determination, order or decision may be appealed by the person

(a) in respect of whom it is made, or

(b) in respect of whose agreement it is made.

(2) Only the appellant and the government are parties to the appeal.

Repealed

148-148.6  [Repealed 2015-10-79.]

Powers of commission

149  (1) On an appeal, whether or not the person who conducted the review confirmed, varied or rescinded the determination, order or decision being appealed, the commission may consider the findings of

(a) the person who made the initial determination, order or decision, and

(b) the person who conducted the review.

(2) On an appeal, the commission may

(a) confirm, vary or rescind the determination, order or decision, or

(b) refer the matter back to the person who made the initial determination, order or decision with or without directions.

(3) If the commission decides an appeal of a determination made under section 105, the commission must, in deciding the appeal, apply the policies and procedures approved by the minister under section 105 that were in effect at the time of the initial determination.

(4) and (5) [Repealed 2015-10-79.]

(6) Unless the minister orders otherwise, an appeal under this Division does not operate as a stay or suspend the operation of the determination, order or decision under appeal.

Repealed

149.1  [Repealed 2015-10-79.]

Order for compliance

149.2  If it appears that a person has failed to comply with an order or decision of the commission or a member of it, the commission, minister or appellant may apply to the Supreme Court for an order

(a) directing the person to comply with the order or decision, and

(b) directing the directors and officers of the person to cause the person to comply with the order or decision.

Repealed

150  [Repealed 2015-10-79.]

Division 2.1 — Appeals of Contraventions

Forest and Range Practices Act applies to contravention appeals

150.1  Division 4 of Part 6 of the Forest and Range Practices Act applies to a correction, review or appeal under the Forest and Range Practices Act in respect of a contravention of this Act or the regulations under this Act.

Division 3 — Regulations

Regulations

151  (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(1.1) In making a regulation under this Act, the Lieutenant Governor in Council may do one or more of the following:

(a) delegate a matter to a person;

(b) confer a discretion on a person;

(c) make different regulations for different persons, places, things or transactions;

(d) adopt the provisions of a publication or adopt them as they are amended from time to time.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations respecting any or all of the following:

(a) [Repealed 2004-36-65.]

(a.1) for the purpose of the definition of "allowable annual cut available" in section 1 (1), specifying the criteria, circumstances, rules, methods or formulas to be used in relation to

(i) the reservations, deletions or reductions respecting a tree farm licence,

(ii) the reservations or reductions respecting a community forest agreement, and

(iii) the reservations or reductions respecting a first nations woodland licence;

(a.2) authorizing the minister to enter into agreements with one or more tree farm licence holders to offset, in whole or in part, a reduction under section 3 (3) of the Forestry Revitalization Act, or a reservation referred to in section 35 (1) (h) of this Act, with a deletion of Crown land from the tree farm licence area under section 39.1 of this Act;

(b) [Repealed 1999-10-18.]

(b.1) for the purposes of section 1.1 (1) (a), specifying which powers and duties of the minister under this Act must not be delegated;

(b.2) for the purposes of section 8.1,

(i) prescribing the formulas or methods to be used to adjust the allowable annual cut, and

(ii) prescribing additional circumstances in respect of which the allowable annual cut is adjusted;

(b.3) for the purposes of section 13 (1) (a) (iii) and (2.1), establishing categories of applicants from whom applications for a non-replaceable forest licence must only be invited;

(c) the salvaging of logs including the rights of property in salvaged logs, and the collection, marking and disposing of salvaged logs;

(d) the transportation of timber after harvesting or of timber products, including but not limited to

(i) prescribing records that must accompany the timber or timber products during transportation,

(ii) requiring the production of the records for inspection by a forest officer, and

(iii) empowering a forest officer to designate the site where timber or timber products must be scaled;

(e) [Repealed 2008-20-33.]

(e.1) the imposition of fees payable to the government;

(e.2) for the purposes of section 22.4 (2), respecting

(i) when payment or payments must be made by the minister, and

(ii) the methods and formulas to be used to determine the amount of the payment by the minister, which may be different for different types of agreements, timber or areas in which the timber is located;

(f) harvesting cascara bark from Crown land;

(g) the growing and harvesting of Christmas trees on Crown land;

(h) the operations of holders of log salvage permits and station licences;

(i) the seizure, sale and other disposition of salvaged logs by the minister if the logs are salvaged or dealt with in contravention of this Act or the regulations;

(i.1) for the purposes of section 35.2, the requirements relating to management plans for tree farm licences, including

(i) the approval of management plans,

(ii) the content of management plans,

(iii) the time limits for submission of management plans or portions of management plans,

(iv) the persons to whom the management plans must be submitted,

(v) public review of and comment on management plans,

(vi) the effective time period of management plans or portions of management plans, and

(vii) matters relating to the replacement or extension of management plans;

(j) and (k) [Repealed 2004-36-65.]

(k.1) for the purposes of section 39.1,

(i) the boundary or area of a tree farm licence, and

(ii) limiting the circumstances in which the minister may exercise his or her discretion under that section;

(k.11) for the purposes of permitting the disposition of an agreement referred to in section 54.4 (1) (b) or (1.01),

(i) the circumstances in which a disposition may be made,

(ii) the criteria that must be met by the person disposing of the agreement, including, for the purposes of section 54.4 (1.01), the type of processing facility that must be owned or leased by that person,

(iii) the criteria that must be met by the person to whom the agreement is being disposed of, including, for the purposes of section 54.4 (1.01), the type of processing facility that must be owned or leased by that person, and

(iv) the provisions that must be included in the agreement being disposed of;

(k.2) for the purposes of section 58.2 (2.1) and (2.2),

(i) the 2 year extensions of cutting permits, and

(ii) limiting the circumstances in which the minister may exercise his or her discretion under section 58.2 (2.1) or (2.2);

(k.3) for the purposes of section 58.21,

(i) the circumstances in which or the reasons for which the minister may postpone the operation of a cutting permit,

(ii) the criteria or conditions that must be met in order for the minister to postpone the operation of a cutting permit, and

(iii) the maximum period of time, including any extensions under subsection (4) of that section, for which a cutting permit may be postponed by the minister, which may be different for different circumstances, reasons, criteria or conditions;

(l) and (m) [Repealed 2004-36-65.]

(m.1) what constitutes unduly restricting competition for the purpose of section 54.1 or 54.5, including methods to be used, and factors to be taken into account, in making a determination under section 54.1 (a) or 54.5 (1) (b) (ii);

(m.2) for the purposes of sections 60 to 60.95 and 175.2, prescribing respecting value, including but not limited to

(i) determining value and defining the components that comprise value,

(ii) prescribing methods of evaluation for use in determining value,

(iii) prescribing factors to be taken into account in an evaluation,

(iv) defining the role of evaluators in a determination of value and prescribing qualifications for evaluators that are prerequisite to their participation in the determination of value, and

(v) prescribing requirements for the selection of an arbitrator;

(m.3) the surrender of an agreement listed in section 12, including requirements for fulfilling obligations under or in respect of

(i) the agreement, and

(ii) a cutting permit, road permit or road use permit issued to the holder of the agreement;

(m.4) for the purposes of section 81.1, specifying government objectives;

(n) scaling including, without limitation,

(i) regulations authorized under Part 6,

(ii) the timing of a scale,

(iii) the estimate of stumpage,

(iv) the payment of estimated stumpage, and

(v) scale site authorizations;

(n.1) a penalty for the purpose of section 97 (2), including prescribing

(i) the amount of the penalty, or the formulas or methods to be used to determine the amount of the penalty, and

(ii) the circumstances under which the payment of the penalty may be waived;

(o) [Repealed 1999-10-18.]

(p) the definition of "effective director" for the purposes of section 53 (1);

(p.01) prescribing services for the purposes of section 109 (2.2) (d), which services must be consistent with a purpose or function of the ministry referred to in section 4 (a), (b) or (c) of the Ministry of Forests and Range Act;

(p.1) prescribing the extent of manufacture for the purposes of section 127 (b);

(q) the practice, procedure and forms for reviews;

(r) the content of requests for review under section 144;

(s) the circumstances under which a review may be dismissed on the basis that the request for review does not meet the content requirements of the regulations, or that there was a failure to disclose facts and law as required by the regulations;

(t) the costs of reviews and the apportionment of those costs between the government and the person requesting the review;

(u) [Repealed 2015-10-81.]

(v) fees and deposits respecting applications for reviews;

(w) and (x) [Repealed 2015-10-81.]

(y) respecting BC timber sales enterprises, including but not limited to establishing categories of BC timber sales enterprises;

(z) the maximum volume of timber that may be specified in a forestry licence to cut entered into under section 47.6 (2) (d).

(2.1) The Lieutenant Governor in Council may make regulations defining words and expressions used but not defined in this Act.

(3) The Lieutenant Governor in Council, by regulation, in respect of any provision of this Act or the regulations, may expand the meaning of "timber" to include any or all special forest products.

(4) and (5) [Repealed 1998-29-16.]

(6) [Repealed 2003-30-15.]

(7) The Lieutenant Governor in Council may make regulations respecting administrative penalties that, under section 71 of the Forest and Range Practices Act, may be imposed for the contravention of a provision of this Act.

(8) Without limiting subsection (7), the Lieutenant Governor in Council may make regulations respecting charges and penalties in cases in which a person does not comply with one or more of the following:

(a) this Act or the regulations;

(b) an agreement listed in section 12 or a pulpwood agreement.

(9) Regulations under subsection (2) (m.2) may be made retroactive to the date this subsection comes into force, or to a later date that the Lieutenant Governor in Council may specify by regulation, and a regulation made retroactive in accordance with this subsection is deemed to have come into force on the date specified in the regulation.

(10) Without limiting subsection (1.1), the Lieutenant Governor in Council, in respect of regulations under subsection (2) (i.1), may make different regulations for different management plans, including management plans

(a) that relate to different licences or agreements, or

(b) that were in effect when section 35.2 came into force.

(11) The Lieutenant Governor in Council may make regulations respecting deposits and security of any kind, including but not limited to money, to be provided by the applicant for or the holder of an agreement listed in section 12 or a pulpwood agreement, to ensure the performance of an obligation under this Act or the agreement, the Forest and Range Practices Act, the Wildfire Act or the Forest Practices Code of British Columbia Act.

(12) Without limiting subsection (11), the Lieutenant Governor in Council may make regulations respecting the following:

(a) the type of security that is acceptable or unacceptable;

(b) the form and content of the security;

(c) the circumstances under which the security may be realized.

Criteria for exercise of discretionary powers

151.01  (1) The Lieutenant Governor in Council may make regulations respecting the criteria that a person must use in exercising a discretionary power conferred on the person under this Act.

(2) Criteria prescribed under subsection (1) are in addition to any criteria required by this Act.

Regulation making power to establish forest districts

151.1  (1) In this section, "custodian" means the custodian designated under subsection (7).

(2) The Lieutenant Governor in Council, by regulation, may

(a) establish an area of British Columbia as a BC timber sales business area, forest district or forest region,

(b) abolish, change the boundaries of or change the name of a BC timber sales business area, forest district or forest region, and

(c) consolidate 2 or more BC timber sales business areas, 2 or more forest districts or 2 or more forest regions.

(3) A forest district established under subsection (2) is a forest district for the purposes of section 2 (1) (d) of the Ministry of Forests and Range Act.

(3.1) A forest region established under subsection (2) is a forest region for the purposes of section 2 (1) (c) of the Ministry of Forests and Range Act.

(3.2) A BC timber sales business area established under subsection (2) is a BC timber sales business area for the purposes of section 2 (1) (d.1) of the Ministry of Forests and Range Act.

(4) A regulation made under subsection (2) may establish the boundaries of BC timber sales business areas, forest districts or forest regions by reference to maps that are available to the public and that are kept by the ministry of the minister responsible for the administration of this Act

(a) in paper form, or

(b) as information that

(i) is stored electronically in a database controlled by the custodian, and

(ii) can be reproduced as a map in paper form.

(5) A regulation made under subsection (2) may provide that the boundaries of a BC timber sales business area, forest district or forest region are as set out from time to time in a map referred to in subsection (4), but if such a regulation is made, a change to a boundary has no effect until a notice of the change is published in the Gazette.

(6) A regulation made under subsection (2) may be made retroactive to the date on which this section comes into force.

(7) The minister may designate a person employed in the ministry of the minister responsible for the administration of this Act to be the custodian of the database under subsection (4) (b) with the title of Custodian of the Forest Administrative Boundaries Database.

(8) A map in paper form that is certified by the custodian as having been reproduced from information stored electronically in the database controlled by the custodian is, without proof of the signature or official position of the custodian, evidence of the boundary of the BC timber sales business area, forest district or forest region.

(9) For the purposes of subsection (8) the custodian's signature may be reproduced mechanically or electronically.

Repealed

151.2  [Repealed RS1996-157-151.2 (4).]

Area-based allowable annual cut

151.3  (1) The Lieutenant Governor in Council may make regulations implementing a trial program under which allowable annual cut is determined under section 8 in whole or in part on the basis of the area from which timber is to be harvested.

(2) A regulation under this section

(a) must specify all or part of a timber supply area, tree farm licence area, community forest agreement or woodlot licence area as an area to which the trial program applies, and

(b) may vary this Act, the regulations or a forest licence, tree farm licence or woodlot licence as they apply, in relation to allowable annual cut, within

(i) a timber supply area or part of one,

(ii) a tree farm licence area or part of one, or

(iii) a woodlot licence area or part of one

that is specified under paragraph (a).

(3) The Lieutenant Governor in Council must not make a regulation under subsection (2) (b) varying a forest licence, tree farm licence or woodlot licence unless the licensee has consented to the amendment.

(4) This section may be repealed by regulation of the Lieutenant Governor in Council.

Adapting cut control under this Act for the Forestry Revitalization Act

151.4  The Lieutenant Governor in Council may make regulations he or she considers necessary or desirable for the purpose of adapting

(a) Division 3.1 of Part 4 of this Act, and

(b) the regulations made for that Division,

to take into account the effect of the Forestry Revitalization Act, and orders under that Act, on an agreement listed in the Schedule to that Act, including but not limited to regulations

(c) prescribing additional provisions to supplement the provisions of

(i) Division 3.1 of Part 4 of this Act, or

(ii) the regulations made for that Division

as the provisions apply in respect of that agreement or its holder,

(d) varying provisions of that Division or of regulations made for that Division as the provisions apply in respect of that agreement or its holder,

(e) providing that specified provisions of that Division or of regulations made for that Division do not apply to or in respect of that agreement or its holder, and

(f) imposing conditions for the purpose of regulations made under this section.

Adapting cut control for provisions respecting conversion of timber sale licences

151.5  The Lieutenant Governor in Council may make regulations he or she considers necessary or desirable for the purpose of adapting

(a) Division 3.1 of Part 4 of this Act, and

(b) the regulations made for that Division

to take into account the effect of sections 24.1 to 24.91 of this Act on an agreement that is converted, amended, entered into or surrendered under one or more of those sections, including but not limited to regulations

(c) prescribing additional provisions to supplement the provisions of

(i) Division 3.1 of Part 4 of this Act, or

(ii) the regulations made for that Division

as the provisions apply in respect of that agreement or its holder,

(d) varying provisions of that Division or of regulations made for that Division as the provisions apply in respect of that agreement or its holder,

(e) providing that specified provisions of that Division or of regulations made for that Division do not apply to or in respect of that agreement or its holder, and

(f) imposing conditions for the purpose of regulations made under this section.

Adapting cut control for provisions respecting first nations woodland licences

151.51  (1) The Lieutenant Governor in Council may make regulations he or she considers necessary or desirable for the purpose of adapting

(a) Division 3.1 of Part 4 of this Act, and

(b) the regulations made for that Division

to take into account the effect of the surrender of a licence or an agreement referred to in section 43.54 (4) (b), including but not limited to regulations

(c) prescribing additional provisions to supplement the provisions of

(i) Division 3.1 of Part 4 of this Act, or

(ii) the regulations made for that Division

as the provisions apply in respect of that licence or agreement or its holder,

(d) varying provisions of that Division or of regulations made for that Division as the provisions apply in respect of that licence or agreement or its holder,

(e) providing that specified provisions of that Division or of regulations made for that Division do not apply to or in respect of that licence or agreement or its holder, and

(f) imposing conditions for the purpose of regulations made under this section.

(2) This section may be repealed by regulation of the Lieutenant Governor in Council and, on that repeal, regulations made under this section are also repealed.

Regulation making power for fibre supply and forestry licence to cut

151.6  (1) The Lieutenant Governor in Council may make regulations he or she considers necessary or desirable for the purposes of prescribing requirements respecting forestry licences to cut described in section 47.6 (2.11) or fibre supply licences to cut, including but not limited to regulations

(a) prescribing provisions, in addition to the provisions of

(i) Division 8.2 of Part 3 of this Act, or

(ii) the regulations made under that Division,

that apply to or in respect of forestry licences to cut or fibre supply licences to cut or to the holders of forestry licences to cut or fibre supply licences to cut,

(b) varying provisions of Division 8.2 of Part 3 of this Act or of the regulations made under that Division as the provisions apply to or in respect of forestry licences to cut or fibre supply licences to cut or to the holders of forestry licences to cut or fibre supply licences to cut,

(c) providing that specified provisions of Division 8.2 of Part 3 of this Act or of the regulations made under that Division do not apply to or in respect of forestry licences to cut or fibre supply licences to cut or to the holders of forestry licences to cut or fibre supply licences to cut, and

(d) imposing conditions for the purposes of regulations made under this section.

(2) Without limiting subsection (1) and for the purposes of sections 47.6 (2.11) (b) and 47.72 (2), the Lieutenant Governor in Council may make regulations as follows:

(a) requiring the holder of an agreement listed in section 12 to give written notification to the district manager respecting harvest completion;

(b) respecting time requirements for the notification;

(c) respecting content requirements for the notification including, without limitation,

(i) a declaration in respect of timber that is not harvested or removed under the agreement indicating the amount of that timber the agreement holder

(A) plans to sell, trade or use for commercial purposes, and

(B) does not plan to sell, trade or use for commercial purposes,

(ii) an estimate of the amount of timber referred to in subparagraph (i) (B) that is at all landings or roadsides,

(iii) a list of the activities the agreement holder has planned for the site area that are to be subject to the fibre recovery permit for a specified period, and

(iv) a description of any of the agreement holder's forest management concerns;

(d) if an agreement holder indicates in accordance with paragraph (c) (i) that the holder plans to sell, trade or use for commercial purposes timber that was not harvested or removed, requiring the holder to sell, trade or use that timber as declared;

(e) prohibiting an agreement holder from destroying timber referred to in paragraph (c) (i) in specified circumstances.

Regulation making power for first nations woodland licences

151.7  (1) The Lieutenant Governor in Council may make regulations he or she considers necessary or desirable for the purposes of prescribing requirements respecting first nations woodland licences, including but not limited to regulations

(a) prescribing provisions, in addition to the provisions of

(i) Division 7.11 of Part 3 of this Act, or

(ii) the regulations made under that Division,

that apply to or in respect of first nations woodland licences or the holders of first nations woodland licences,

(b) varying provisions of Division 7.11 of Part 3 of this Act or of the regulations made under that Division as the provisions apply to or in respect of first nations woodland licences or the holders of first nations woodland licences,

(c) providing that specified provisions of Division 7.11 of Part 3 of this Act or of the regulations made under that Division do not apply to or in respect of first nations woodland licences or the holders of first nations woodland licences, and

(d) imposing conditions for the purposes of regulations made under this section.

(2) This section may be repealed by regulation of the Lieutenant Governor in Council and, on that repeal, regulations made under this section are also repealed.

Interpretation for sections 152 to 162

152  In this section and sections 153 to 162:

"contract" has a meaning corresponding to the definition of "contractor" below;

"contractor" means a person who has an agreement with the holder of a forest licence, timber licence or tree farm licence to carry out one or more aspects of the holder's timber harvesting operations under the licence, and includes "person under contract" as defined by the regulations;

"replaceable contract" means a contract

(a) that includes a requirement that the holder of the forest licence, timber licence or tree farm licence, as the case may be, by a prescribed time before expiry of the existing contract, must, if the contractor has satisfactorily performed the existing contract up to the time of the offer, make an offer to the contractor, conditional on the contractor continuing to satisfactorily perform the existing contract, of a replacement contract that

(i) provides for payment to the contractor of the amounts agreed by the parties, or failing agreement, of the amounts settled by the method of dispute resolution provided under the existing contract at the time of the offer, and

(ii) subject to a requirement as to length of term prescribed under section 157 (d) (ii), is otherwise on substantially the same terms and conditions as the existing contract, and

(b) that conforms to the requirements for replaceable contracts prescribed under section 157;

"replaceable forest licence" means a forest licence for which the minister must make an offer of replacement, as set out in section 15;

"replaceable subcontract" means a subcontract

(a) that includes a requirement that the contractor, by a prescribed time before expiry of the existing subcontract, must, if the subcontractor has satisfactorily performed the existing subcontract up to the time of the offer, make an offer to the subcontractor, conditional on the subcontractor continuing to satisfactorily perform the existing subcontract, of a replacement subcontract that

(i) provides for payment to the subcontractor of the amounts agreed by the parties, or failing agreement, of the amounts settled by the method of dispute resolution provided under the existing subcontract at the time of the offer, and

(ii) subject to a requirement as to length of term prescribed under section 157 (d) (ii), is otherwise on substantially the same terms and conditions as the existing subcontract, and

(b) that conforms to the requirements for replaceable subcontracts prescribed under section 157;

"replaceable tree farm licence" means a tree farm licence for which the minister must make an offer of replacement, as set out in section 36;

"subcontract" has a meaning corresponding to the definition of "subcontractor" below;

"subcontractor" means a person who has an agreement with a contractor to carry out one or more aspects of the contractor's responsibilities to the holder of the forest licence, timber licence or tree farm licence, as the case may be.

Requirement for written contracts and subcontracts

153  The Lieutenant Governor in Council may make regulations

(a) requiring

(i) a holder of a forest licence, timber licence, timber sale licence or tree farm licence who enters into a contract, or

(ii) a contractor who enters into a subcontract

to do so only by a written contract or written subcontract, as the case may be, and

(b) requiring the parties to a contract or subcontract that is not in writing to exert their best efforts to convert the contract or subcontract into a written one.

Assignability of contracts and subcontracts

154  The Lieutenant Governor in Council may make regulations

(a) prescribing, for a contract, a requirement under which

(i) the contractor's interest is assignable to another person with the consent of the holder of the forest licence, timber licence, timber sale licence or tree farm licence who is the other party to the contract, and

(ii) consent of the holder to the assignment must not be unreasonably withheld,

(b) prescribing, for a subcontract, a requirement under which

(i) the subcontractor's interest is assignable to another person with the consent of the contractor who is the other party to the subcontract, and

(ii) consent of the contractor to the assignment must not be unreasonably withheld, or

(c) prescribing, for use in contracts or subcontracts, standard provisions representing the requirements prescribed under paragraph (a) or (b).

Mediation and arbitration under contracts and subcontracts

155  The Lieutenant Governor in Council may make regulations respecting mediation and arbitration of all or certain disputes that have arisen or may arise between the parties to a contract or subcontract, including, but not limited to, regulations

(a) establishing a system of mediation and arbitration and making the system applicable to

(i) contracts, or

(ii) subcontracts

that do not make any provision or do not make adequate provision for mediation and arbitration,

(b) respecting contracts to which or subcontracts to which the system of mediation and arbitration established under this section is made applicable, including, but not limited to, regulations prescribing the following types of requirements for those contracts or subcontracts:

(i) requirements under which the parties to the contract or subcontract, as the case may be, are obliged, under the system of mediation and arbitration established under this section, to settle by mediation, and in the event of unsuccessful mediation, by arbitration,

(A) all disputes, or

(B) certain disputes as specified by regulation

that have arisen or may arise between the parties under the contract or subcontract;

(ii) requirements under which the parties to the contract or subcontract, as the case may be, must select the mediators and arbitrators to be used in the settlement of disputes under the contract or subcontract only from the Register of Timber Harvesting Contract Mediators and Arbitrators established under section 156,

(c) prescribing, for use in contracts or subcontracts, standard provisions representing the requirements prescribed under paragraph (b) (i) and (ii),

(d) prescribing what constitutes making "adequate provision" for the purposes of paragraph (a), and

(e) adopting by reference for the purpose of the system of mediation and arbitration established under this section any provisions of the Arbitration Act, either without variation or with variations that the Lieutenant Governor in Council considers necessary or desirable.

Register of Timber Harvesting Contract Mediators and Arbitrators

156  For the purpose of implementing a system of mediation and arbitration established under section 155, the minister may

(a) establish and maintain a Register of Timber Harvesting Contract Mediators and Arbitrators,

(b) enter in the register the names of at least 9 individuals whom the minister considers qualified to mediate or arbitrate disputes under contracts and subcontracts, and

(c) amend the register from time to time by removing names or by adding the names of individuals the minister considers qualified to mediate or arbitrate disputes under contracts and subcontracts.

Requirements for replaceable contracts and subcontracts

157  The Lieutenant Governor in Council may make regulations

(a) requiring the holder of a timber licence, replaceable forest licence or replaceable tree farm licence who enters into a contract, including a replacement contract, to do so only by means of a replaceable contract,

(a.1) despite paragraph (a), permitting the holder of a timber licence, replaceable forest licence or replaceable tree farm licence who enters into a contract to agree in writing with the intended contractor that the contract is not a replaceable contract,

(b) requiring the holder of a replaceable contract who enters into a subcontract, including a replacement subcontract, to do so only by means of a replaceable subcontract,

(b.1) despite paragraph (b), permitting the holder of a replaceable contract who enters into a subcontract to agree in writing with the intended subcontractor that the subcontract is not a replaceable subcontract,

(c) prescribing methods to be used to calculate compliance with a provision of a timber licence, replaceable forest licence or replaceable tree farm licence that requires timber to be harvested by persons under contract, and defining "persons under contract" for the purpose of sections 14 (1) (g) and 35 (1) (j),

(d) respecting replaceable contracts and replaceable subcontracts, including, but not limited to, regulations prescribing the following types of requirements for replaceable contracts or for replaceable subcontracts:

(i) requirements governing the length of the term of

(A) replaceable contracts, or

(B) replaceable subcontracts

that are made after the effective date of the regulation prescribing the requirements referred to in this subparagraph;

(ii) requirements governing the commencement and length of the term of the replacement contract or replacement subcontract, as the case may be, that must be offered under an offer referred to in

(A) paragraph (a) of the definitions in section 152 of "replaceable contract" and "replaceable subcontract", or

(B) section 158;

(iii) requirements respecting the respective rights of the parties to the replaceable contracts or replaceable subcontracts in the event of contingencies not under the control of either party, including, but not limited to,

(A) a reduction in allowable annual cut under the forest licence, timber licence or tree farm licence to which the replaceable contract or replaceable subcontract pertains, or

(B) a change in harvesting methods that is approved or required by the government or a licence holder under the forest licence, timber licence or tree farm licence to which the replaceable contract or replaceable subcontract pertains;

(iv) requirements relating to the amount of work to be allocated to and performed by a contractor or subcontractor;

(v) requirements relating to the replacement of contracts or subcontracts on the transfer, subdivision or consolidation of licences and the replacement of subcontracts on the transfer of contracts;

(vi) requirements relating to the determination of rates under contracts and subcontracts;

(vii) requirements relating to the operational and commercial terms of contracts and subcontracts,

(e) prescribing,

(i) for use in contracts made by holders of timber licences, replaceable forest licences or replaceable tree farm licences with contractors, a standard provision representing the requirement referred to in paragraph (a) of the definition of "replaceable contract" in section 152,

(ii) for use in subcontracts made by contractors described in subparagraph (i) with subcontractors, a standard provision representing the requirement referred to in paragraph (a) of the definition of "replaceable subcontract" in section 152, and

(iii) for use in replaceable contracts or replaceable subcontracts, standard provisions representing any of the requirements prescribed under paragraph (d) (i) to (vii) of this section,

(f) prescribing what constitutes "substantially the same terms and conditions" for the purposes of paragraph (a) (ii) of the definitions of "replaceable contract" and "replaceable subcontract" in section 152, and

(g) prescribing what constitutes "substantially the same terms and conditions" for the purposes of section 158.

Agreement to make a replaceable contract or subcontract non-replaceable

157.1  (1) Despite section 160 or a regulation under section 157, the Lieutenant Governor in Council by regulation

(a) may permit the holder of a licence and the contractor who are the parties to a replaceable contract pertaining to the licence to amend the replaceable contract by written agreement to provide that it is not replaceable, and

(b) may permit the holder of a replaceable contract and the subcontractor who are the parties to a replaceable subcontract pertaining to the replaceable contract to amend the replaceable subcontract by written agreement to provide that it is not replaceable.

(2) A contract amended in accordance with a regulation under subsection (1) (a) ceases to be a replaceable contract.

(3) A subcontract amended in accordance with a regulation under subsection (1) (b) ceases to be a replaceable subcontract.

(4) A regulation under subsection (1) (a) granting permission to amend a replaceable contract by written agreement to provide that it is not replaceable does not affect any rights, against the contractor or another person, of a subcontractor who has a replaceable subcontract with the contractor pertaining to the contract.

Waiver by licensees, contractors and subcontractors of certain rights under regulations

157.2  (1) Despite sections 154 to 160 or a regulation under section 154, 155 or 157, the Lieutenant Governor in Council by regulation

(a) may permit the holder of a licence and the contractor who are the parties to a contract pertaining to the licence to amend the contract by written agreement, to provide that one or more specified provisions of regulations under sections 154 to 157 are inapplicable in relation to the contract, and

(b) may permit the holder of a contract and the subcontractor who are the parties to a subcontract pertaining to the contract to amend the subcontract by written agreement to provide that one or more specified provisions of regulations under sections 154 to 157 are inapplicable in relation to the subcontract.

(2) On and after the effective date of an amendment permitted by regulation under subsection (1) (a), the specified provisions of the regulations that are the subject of the amendment do not apply in respect of the contract.

(3) On and after the effective date of an amendment permitted by regulation under subsection (1) (b), the specified provisions of the regulations that are the subject of the amendment do not apply in respect of the subcontract.

(4) A regulation under subsection (1) (a) granting permission to amend a contract by written agreement to provide that one or more specified provisions of regulations under sections 154 to 157 are inapplicable in relation to the contract does not affect any rights, against the contractor or another person, of a subcontractor who has a replaceable subcontract with the contractor pertaining to the contract.

Special provision for certain expired contracts

158  (1) If a contract between the holder of a timber licence, replaceable forest licence or replaceable tree farm licence and a contractor expired or expires, or was or is wrongfully terminated by the holder, on or after January 25, 1991 but before the end of September 30, 1991, and

(a) the parties to the contract have not, by the end of September 30, 1991, entered into a new contract on substantially the same terms and conditions as those of the expired contract or on other terms and conditions agreed by the parties, and

(b) the contractor satisfactorily performed the contractor's obligations under the expired contract,

then, on or before October 15, 1991 or a later date that, on application by the holder, the minister may specify by order, the holder of the licence must make an offer to the contractor of a replacement contract that

(c) provides for payment to the contractor of the amounts agreed by the parties or, failing agreement, of the amounts settled by mediation and arbitration under the system established under section 155,

(d) subject to a requirement as to length of term prescribed under section 157 (d) (ii), is otherwise on substantially the same terms and conditions as the expired or terminated contract, and

(e) is a replaceable contract.

(2) In the absence of agreement between the parties to an expired or terminated contract referred to in subsection (1) as to whether the contractor satisfactorily performed the contractor's obligations under the expired or terminated contract

(a) the parties must settle that issue by mediation and arbitration under the system established under section 155, and

(b) the time within which the holder of the licence must offer a replacement contract under subsection (1) is extended to a date 15 days after the settlement of that issue.

Applicability of certain prescribed provisions to existing contracts and subcontracts

159  A regulation made under or for the purpose of any of sections 152 to 161 respecting contracts of any class or subcontracts of any class

(a) may be made applicable to

(i) contracts, or

(ii) subcontracts

that were made before the time of coming into force of the regulation and are still in effect at that time as well as to

(iii) contracts, or

(iv) subcontracts

that are made after that time, and

(b) may include transitional provisions to deal with compliance with the regulation by the parties to those contracts or subcontracts.

Non-compliance with prescribed requirements for contracts and subcontracts

160  (1) A regulation prescribing a standard provision under section 154 (c), 155 (c) or 157 (e) for contracts of any class or subcontracts of any class may specify a deadline before which the parties to

(a) any of the contracts that do not conform to the requirement represented by the standard provision, or

(b) any of the subcontracts that do not conform to the requirement represented by the standard provision

must amend the contracts or subcontracts, as the case may be, to conform to the requirement.

(2) A deadline specified by regulation under subsection (1) may be expressed

(a) as a specific date applicable to all contracts of or to all subcontracts of the relevant class that were made before the time of coming into force of the regulation and are still in effect at that time, or

(b) as the end of a period of days immediately following the making of any

(i) contract, or

(ii) subcontract

that is of the relevant class and is made after the time of coming into force of the regulation.

(3) If a deadline for contracts of any class or subcontracts of any class is specified by regulation under subsection (1) and

(a) any of the contracts that does not conform to the requirement represented by the standard provision, or

(b) any of the subcontracts that does not conform to the requirement represented by the standard provision,

as the case may be, is not amended by the parties to conform to that requirement, then, effective at the deadline, the contract or subcontract, as the case may be, is conclusively deemed

(c) to be amended to include the standard provision prescribed for that requirement, and

(d) to be binding on the parties to the contract or subcontract, as the case may be, in the same way as if amended by agreement between them.

(4) An amendment made by subsection (3) to a contract or subcontract does not prevent the parties from

(a) amending the standard provision added by subsection (3), or

(b) substituting for that standard provision another provision,

as agreed by the parties, provided that the amendment or substitution complies with the requirement that is represented by the standard provision.

(5) If a standard provision added to a contract or subcontract by subsection (3) conflicts or is inconsistent with one or more other provisions of the contract or subcontract, the standard provision added by subsection (3) prevails over that other or those other provisions.

Included regulatory powers for sections 152 to 161

161  (1) A regulation made under or for the purpose of any of sections 152 to 161 may

(a) provide that a provision of the regulations does not apply to or in respect of a person, a forest licence, timber licence or tree farm licence, or a contract or subcontract,

(b) prescribe circumstances in which or conditions on which a provision is disapplied under paragraph (a),

(c) for the purpose of the regulation, define classes

(i) of forest licences, timber licences and tree farm licences, and of holders of any of those licences,

(ii) of contracts and of contractors, and

(iii) of subcontracts and of subcontractors, and

(d) provide differently for different classes defined under paragraph (c), or

(e) permit the minister, by order, in prescribed situations and according to prescribed criteria, to relieve, in whole or in part,

(i) a holder of a forest licence, timber licence or tree farm licence,

(ii) a contractor, or

(iii) a subcontractor,

who is named in the order from a requirement of the regulations, subject to the conditions, if any, imposed by the minister.

(2) Without limiting the generality of subsection (1) (c), a definition of classes under that provision may be based on the region to which a licence, contract or subcontract pertains, the volume of timber harvested or to be harvested under a licence, contract or subcontract, or on any characteristics of a licence, contract or subcontract, including when issued or made, length of term or of remaining term, or in the case of a licence or contract, whether it is replaceable.

No compensation

162  No compensation is payable by the government and proceedings must not be commenced or maintained to claim compensation from the government or to obtain a declaration that compensation is payable by the government in respect of the effect, on a forest licence, timber licence or tree farm licence or on a contract or subcontract, under any provision of the following:

(a) sections 152 to 161 of this Act;

(b) the regulations made under or for the purpose of a provision referred to in paragraph (a).

Division 4 — Offences and Penalties

Fines

163  (1) A person who contravenes section 84 (1), (3) or (4), 89 (1) or (2), 94 (1), 105 (5.2), 105.1 (2) or (3), 127, 127.1, 164 (1) (a), (b) or (c) or 165.1 commits an offence and is liable on conviction to a fine not exceeding $500 000 or to imprisonment for not more than 2 years or to both.

(2) A person who contravenes section 9 (2), 84 (6), 86 (3.1) or (4), 94 (4), 95 (1) or (7), 97 (1), 126 (2), 136 (1) or (1.1) or 163.1 commits an offence and is liable on conviction to a fine not exceeding $100 000 or to imprisonment for not more than one year or to both.

(3) A person who contravenes section 93.1 or 97 (6) commits an offence and is liable on conviction to a fine not exceeding $50 000 or to imprisonment for not more than 6 months or to both.

(4) A person who contravenes section 90 (1) or (2), 96 (1), 124 (1), 125 or 132 (2) commits an offence and is liable on conviction to a fine not exceeding $10 000 or to imprisonment for not more than 6 months or to both.

(5) A person who contravenes section 86 (1) or (2) commits an offence and is liable on conviction to a fine not exceeding $5 000 or to imprisonment for not more than 6 months or to both.

(6) A person who contravenes section 136 (3) commits an offence and is liable on conviction to a fine not exceeding $2 000 or to imprisonment for not more than 6 months or to both.

(7) The Lieutenant Governor in Council may provide by regulation that

(a) a contravention of a regulation is an offence, and

(b) a person convicted of an offence for a contravention of a regulation is liable to a fine not exceeding a maximum amount or to imprisonment not exceeding a maximum amount or to both.

(8) If the maximum fine or imprisonment provided by a regulation under subsection (7) (b) is less than that provided by a provision of this Act, the regulation prevails.

Interference, non-compliance and misleading

163.1  (1) In this section, "person acting in an official capacity" means an individual who is

(a) employed under the Public Service Act, and

(b) is exercising a power or performing a duty or function under this Act.

(2) A person must not

(a) without lawful excuse, intentionally interfere with a person acting in an official capacity,

(b) without lawful excuse, intentionally not comply with a lawful requirement of a person acting in an official capacity, or

(c) intentionally make a false statement to, or mislead or attempt to mislead a person acting in an official capacity.

Part 3 offence

164  (1) A person must not

(a) by intimidation or threat hinder or prevent a person from making an application for an agreement, or from submitting a tender or bid, under Part 3,

(b) for an improper purpose threaten to make an application for an agreement, or to submit a tender or bid, under Part 3, or

(c) participate in or be a party to an agreement or arrangement among 2 or more persons, under which

(i) one or more of the persons agrees or undertakes not to make an application for an agreement, or to submit a tender or bid, under Part 3, or

(ii) particulars in an application made for an agreement, or the amount of a tender or bid submitted, under Part 3, by one or more of the persons are decided.

(2) Subsection (1) (c) does not apply to

(a) an agreement or arrangement made only among 2 or more corporations that are affiliated within the meaning of the Business Corporations Act, or

(b) an application for an agreement under this Act made jointly by 2 or more persons.

(3) A person who is convicted of an offence under subsection (1), and a corporation controlled by that person, is disqualified from making an application under Part 3, either on the person's own application or through an agent, for 2 years after the date of the person's conviction.

Cancellation and disqualification

164.1  (1) In this section, "official" means an official designated by the minister.

(2) If, after giving a person an opportunity to be heard, an official determines that the person has contravened any of paragraphs (a) to (c) of section 164 (1), the official may do either or both of the following:

(a) cancel an agreement referred to in section 12 that is held by or on behalf of the person, if the official believes on reasonable grounds that the person, in relation to the agreement, derived or could have derived any benefit as a result of the contravention;

(b) disqualify the person from making an application under Part 3, either on the person's own application or through an agent, for not more than 10 years.

(3) If, under subsection (2), an official determines that a corporation has contravened any of paragraphs (a) to (c) of section 164 (1), a person who is an officer, director or agent of the corporation is subject to the consequences described in subsection (2) if, after giving the person an opportunity to be heard, an official determines that the person authorized, permitted or acquiesced in the contravention.

Repealed

165  [Repealed 2003-31-75.]

Prohibition against restricting competition in sale or purchase of logs

165.1  (1) In this section, "timber" means timber harvested under an agreement referred to in section 12 and offered by or on behalf of the holder for sale as logs.

(2) A person must not conspire, combine, agree or arrange with another person to prevent, limit or lessen competition in the purchase or sale of timber

(a) by arriving at a maximum amount to be paid by the person or persons for the timber,

(b) by implementing a strategy in relation to the purchase or sale of the timber, or

(c) by another method.

Remedies preserved

165.2  A proceeding, conviction or penalty for an offence under this Act does not relieve a person from any other liability.

Officers of corporation

166  If a corporation commits an offence under this Act, an officer, director or agent of the corporation who authorized, permitted or acquiesced in the offence commits the offence and, despite that the corporation is convicted, is liable on conviction to fine and imprisonment.

Repealed

167  [Repealed 2003-55-88.]

Defences to a prosecution

167.1  Due diligence, mistake of fact and officially induced error are defences to a prosecution under this Act.

Section 5 of the Offence Act

167.2  Section 5 of the Offence Act does not apply to this Act or the regulations.

Part 6 of the Forest and Range Practices Act applies

167.3  (1) Divisions 1 to 3 of Part 6 of the Forest and Range Practices Act apply to this Act and the regulations under this Act, unless the context indicates otherwise.

(2) [Repealed 2015-10-82.]

Contents | Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 11.1 | Part 12 | Part 13 | Part 14