Castle logging tests public land law

Castle logging tests public land law

Regulated access to public land in Alberta has undergone a major overhaul.  As of September 2011, the Public Lands Administration Regulation is in force under the Public Lands Act.  The new Regulation consolidates a patchwork of existing access regulations and provides sweeping new powers.  The first enforcement action triggered by the Regulation in 2012 looks like a test case.

A major reason for the new regulation is a shift in the issues facing public land managers: from managing resource development to managing use by the general public.  The Q&A page maintained by Sustainable Resource Development (SRD) runs as follows:

“Why do we need new regulations for public land?”

  • Sixty years ago, when the Public Lands Act was created, it was mainly to support development and use of public land, for example, to issue approvals for grazing and oil and gas.  It was limited in managing the use of vacant public land.
  • The Act was updated April 1, 2010 to better manage the long-term health of public land.  The regulation provides the tools.

The examples provided concern recreational impacts, particularly damage by off highway vehicles during the wet season.

Legally, the change is basically this:  past regulations prohibited all access without permission, but granted permission to the public at large.  The new regulation provides that “vacant land” is open unless prohibited (Regulation, s.32).  “Vacant land” includes a “vacant disposition area”:  land where timber dispositions have been granted but no development is likely within 90 days (Regulation, s.1).  Closures can take numerous forms, and the actions of officers must only demonstrate “substantial compliance” with any of those forms (Regulation, s.48).  A Public Land Use Zone provides officers additional powers to verbally direct user behavior or prohibit entry (Regulation s.181-184).  Beyond enforcement, the regulation contemplates a permit system for recreational activities [Regulation, s.37].   No specifics are provided, but one clear scenario for permits would be the growing trend of planned gatherings, some meritorious, that nonetheless make trails and staging areas inaccessible to other users.

What the regulation does not change is the general offense provisions of the Public Lands Act. Watch how that works:

On January 19, 2012, an SRD officer issued and posted a Notice of Development in the Castle Area.  The Notice stated that development was “likely to occur” in 90 days and therefore the area is “not vacant public land” under the new Regulation.

On January 25, 2012, an SRD Director issued Enforcement Order 01/2012 against named individuals and John and Jane Doe.  Enforcement Order 01/2012 bridges the Regulation to two offense provisions in the Act:

  • Section 47 of the Act provides that any person not authorized to “occupy” public land is a “deemed trespasser”.  Unauthorized occupiers may be ordered to vacate by SRD Directors [Act, s.47.1].  Unauthorized occupation is an offense [Act, s.56(1)(d)].
  • Section 54.01(3) of the Act provides that no person shall obstruct another person’s free access to or passage on a road or trail on public land.  Obstruction of free passage is an offense [Act, s. 56(1)(g)].

On January 27, 2012, the Government of Alberta obtained an order from the Court of Queen’s Bench, ex parte (meaning without notice or appearance by the Respondent to the application).

Section 54.03 of the Act provides that a person whose access to or passage on a trail has been prevented can apply for an order from the Court of Queen’s Bench, or the Crown can apply on their behalf.  Ex-parte applications are allowed for short term orders but not long term orders [Act, s.54.03].  If anyone contravenes the order, a police officer may arrest them without a warrant for the purpose of bringing that person to court where they will be required to show why they should not be held in contempt of court [Act, s.54.03(9)].  Contempt of court is not a regulatory offense.  While this is serious risk, the most foreseeable outcome should the matter return to court would be a “long term” order naming specific persons who violated the Short term, ex-parte John Doe order.

It is no wonder this case invokes some fairness concern. One notice posted by one officer can produce, for unlimited John Does, an administrative enforcement order, a completely separate court order, liability for two offenses plus contempt of court.

Some attention to the procedural protections afforded to the respondents is warranted.  Is it correct to seek court enforcement while administrative appeals are in progress?  In Cardinal River Coals Ltd. v. Alberta (Environmental Appeals Board) and Ben Gadd, it was premature to go to court before the appeal was concluded. In Reece v. Edmonton (City), it was an abuse of process to pursue regulatory liability through civil proceedings, especially when administrative channels were available.  One dissenting judge held that the question of abuse does not concern the interests of the defendant but rather the reputation of the justice system. Either view could be relevant here.

Some attention to the limits of statutory authority is equally warranted. Quashing dissent is not a legislated purpose.  Nor is this is not a civil injunction in which harm to the forestry operations would be relevant.  Does the closure require that the whole area be developed in 90 days? Do tents and placards amount to occupation?  Is enforcement limited to clearing the trail? Factually, this case could be just as suitable to testing the permitting of gatherings as testing closure powers.  Given the past enforcement climate there are no analogous precedents under the Act yet alone the new Regulation.

The irony is that the protesters are not just trying to hold government accountable to past policies or future regional plans. In their concern for the “long term health of public land”, the protesters are practically supporting the purpose of the new regulation.  Unfortunately for them, a successful challenge to the regulation could actually benefit people lobbying for unregulated access to public land. Environmental protectionists face the harsh choice between risking legal liability and attempting to neutralize their own tool. In the letter of the law, the Public Lands Administration Regulation like the Public Lands Act before it has no expressed purpose.  In this case what it supports is the old tradition of development approvals. This is the failing of power without principles: discretionary enforcement with little accountability for the health of public lands.

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2 Comments
  • Jeff Surtees
    Posted at 14:29h, 27 February Reply

    Would this reg withstand a Charter challenge based on 2(d) – Freedom of Association?

    • Adam Driedzic
      Posted at 15:01h, 27 February Reply

      You are quick on the issues. A breach of a Section 2 Charter right — association, peaceful assembly, expression, religion or conscience – is relatively easy to prove compared to breaches of other charter rights. Section 2 provides freedom from state interference, which is more enforceable than the rights environmentalists often seek, namely positive obligations on the state to act. The Charter can invalidate government action under legislation instead of invalidating legislation. The defendants could challenge the constitutionality of the closure and the two enforcement actions without seeking to strike down the regulation.

      A Section 2 Charter challenge could force the test for justifiable limits under section 1 of the Charter. First, the limit must be “prescribed by law”, in this case an “intelligible standard” in legislation. The Act and Regulation must not be so vague as to not restrain government at all. The Act and Regulation are not necessarily vague but they are very broad. Second, the limits must be reasonable (R v. Oakes). The Crown will have to prove that its objective is sufficiently important and the means is is using are proportionate. Managing public land use conflicts is likely a sufficiently important objective but I am not sure if protecting other user’s interests would be. Proportionality will require a rational connection between the measure and the objective, minimal impairment of the right, and general proportionality between the importance of the objective and the severity of the measure. It could be worth considering the importance of the logging as a Crown objective, and the size of the closure area relative to the interference being caused. The offenses, if strictly interpreted, are more modest as they prohibit occupation by tresspasers and blocking trails.

      The infringement test often turns on the “minimal impairment” issue. The state should use the least drastic means (RJR Macdonald) and keep to what is reasonably necessary (R v. Sharpe). In some contexts the court might consider the effects on people not before the court (Edwards Books). The SCC has held that a “partial ban” is a better measure than a “total ban” if it can achieve the same objective (RJR).

      The administrative appeal is in process and there is no final court order yet so we will have to watch!

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