Land Act (British Columbia)

~~General Description~~ [Note: I’ve not used this heading on any of the pages, although they’ve been used in the DFO materials. Re: Strategic Application, I haven’t used that heading on any, although some sense of how people might want to use the Act should be included. For example, if I want to get a park created, how would I go about doing that?]

The Land Act is the main legislation governing the disposition of provincial Crown (i.e. public) land in British Columbia. Crown land is any land owned by the Province, including land that is covered by water, such as the foreshore and the beds of lakes, rivers and streams.

The Land Act is administered by the Ministry of Sustainable Resource Management. In 1998 the Crown corporation Land and Water BC Inc. was created to administer the sale and leasing of Crown land, pursuant to a delegation agreement with the ministry. Under this agreement, the ministry retains authority over the policies and procedures that guide Crown land management.

The Land Act is mostly concerned with the granting of rights to the occupation of the surface of Crown land. When it comes to the extraction of natural resources, the Province normally retains ownership of the land, but grants resource extraction rights through other legislation. For example, logging rights are granted through tenure agreements under the Forest Act. Likewise, mineral rights are granted under the Mineral Tenure Act.

Grants under the Land Act

There are four main types of disposition of Crown land:

· sale, or Crown grant – With a sale or grant the ownership of the land is transferred outright to a private party;

· lease – A lease will transfer exclusive property rights to the lease holder for a set period of time, after which ownership and control will revert to the province;

· right of way or easement – Under a right of way or easement, the province retains ownership, but a private party has the right to access or pass through the land; and

· a licence of occupation – A licence gives the recipient the right to enter on and use provincial land. However, ownership remains with the province and other users will usually be able to use the same area.

Reservations and Limitations

Grants, sales or leases made under the Land Act “reserve” certain rights, which do not pass to the holder of the land. Instead, these reserved rights continue to be held by the Province, and can be granted separately.

For example, a Crown land grant does not include rights to minerals, coal, geothermal resources, or oil and gas, because these are specifically “reserved” to the Province. However, these rights may be granted separately under other legislation such as the Mineral Tenure Act, Coal Act, Geothermal Resources Act or Petroleum and Natural Gas Act. Even though a person might have a Crown grant to occupy the surface of the land, a mining company might have separate subsurface rights to explore for and mine minerals from that same land. There are specific provisions in other legislation to address conflicts that may arise.

The Land Act also reserves water bodies, including all land below the natural boundary of any lake, river or stream, to the Province. The only exceptions are where a Crown grant has an express provision to the contrary. This provision limits certain riparian rights that would be available under the common law, and allows for greater control of aquatic management issues by the Province. While the Province retains ownership of the land below natural boundaries, it may separately grant rights to the use of “aquatic” land, such as the foreshore, for the purposes of docks, log storage, floating homes, etc.

In addition to reservations, the Land Act imposes certain limitations on the government in granting rights to Crown land. For example, Crown grants and leases may not be for more than 520 hectares, unless for commercial, industrial, railway or airport purposes. Larger leases may also be granted for grazing or watershed purposes. Leases in general may not have terms longer than 60 years unless specifically approved by the minister.

Tools under the Land Act

The Land Act has several tools that can potentially be used to benefit ecosystem management. These include:

· reserves;

· prohibitions of use; and

· terms and covenants on dispositions of Crown land.

Reserves:

Reserves are legal designations under sections 15, 16 or 17 of the Land Act that may be placed on Crown land as a means of preventing or restricting the disposition of the land due to an acknowledged value or concern in the public interest. Reserves can prevent dispositions of Crown land under the Land Act altogether, either permanently or on a temporary basis, or place conditions on disposition in order to meet a given purpose. Reserves have been used for many purposes, from prioritizing land for wildlife management to industrial purposes such as log storage areas and energy production.

However, it appears that reserves only prevent lands being turned over to private interests under the Land Act. Grants under other Acts may still be made even within a reserve.

Prohibitions of Use:

Section 66 of the Land Act allows Cabinet to pass regulations that prohibit specific uses of Crown land. This provision is a potentially useful conservation tool because it allows specific activities that harm conservation values to be prohibited. For example, it could be used to prohibit some types of motorized access that could be harmful to wildlife.

Terms and Covenants on Dispositions of Crown Land:

Aside from formal designations, the Land Act authorizes the minister to impose any “terms, covenants, stipulations and reservations” on individual dispositions of land. These may include conservation covenants that are registered on title to the land in order to protect environmental values.

Background Material and ContactsFor more information on the Parks Act:

· Electronic version of the B.C. Land Act.:

· Ministry of Sustainable Resource Management web site.

· Land & Water British Columbia Inc. web site