Towards Greater Tenure Security for Commercial Recreation

Transcription

Towards Greater Tenure Security for Commercial Recreation Operators
A report for the Association of Canadian Mountain Guides (ACMG), Back Country Lodges
Association of BC (BCLABC), BC Helicopter and Snowcat Skiing Operators Association
(BCHSSOA), BC River Outfitters Association (BCROA), Commercial Bear Viewing
Association of BC (CBVA), Guide Outfitters Association of BC (GOABC), Sea Kayak Guides
Alliance of BC (SKGABC), and Wilderness Tourism Association of BC (WTA)
November 15, 2005
Prepared by Aaron Heidt and Dr. Peter W. Williams,
Centre for Tourism Policy and Research, School of Resource and Environmental Management,
Simon Fraser University, Burnaby, British Columbia.
Report Committee:
Dave Butler
Jim DeHart
Brian Gunn
Tim McGrady
TABLE OF CONTENTS
PAGE(S)
Table of contents
Executive summary
List of Tables
List of acronyms
ii
iii - ix
x
x
1.
2.
3.
4.
5.
6.
7.
8.
Introduction
The tourism resource industry
Property and property rights
Compensable taking
The importance of providing property rights security
The importance of consultation
The role of compensation
Creating a competitive environment: A comparative analysis
a. Duration and renewability
b. Transferability
c. Exclusivity
d. Public Use
e. Termination
f. In-term changes to contracts
g. Consultation
h. Compensation
9. CR operator perspectives on impacts of taking, consultation
and compensation policies
10. Recommendations and Conclusion
1-3
3-4
4-7
7-8
9
10
10 - 13
13 - 33
14 - 16
17 - 18
18 - 21
21 - 24
24 - 26
26 - 28
28 - 30
31 - 33
33 - 34
References
39 - 41
Appendices
1. Comparative analysis matrix
2. Descriptive analysis of tenures
3. Complete questionnaire results
4. Methodology
5. Interview and questionnaire templates
6. List of tenures, legislative acts and secondary information used in
comparative analysis
7. Forms of Crown Land Allocation
35 - 38
42 - 47
48 - 77
78 - 80
81 - 87
88 - 108
109 - 111
112 - 116
ii
EXECUTIVE SUMMARY
The CR Industry
The global competitiveness of BC’s commercial recreation (CR) industry depends on
equitable and secure access to the province’s natural resources. However, the industry’s rights
to wild spaces, clean mountain streams, and high quality wildlife viewing opportunities do not
meet its security and certainty requirements. In many ways their rights are less secure and
certain than those for the province’s other resource dependent industries.
Tools exist to quantify the value of a stand of trees for the forest industry or a
particular mineral deposit for a mining company. In contrast, determining the value of natural
resources for the CR industry is more challenging. While visitors pay for CR products and
services related to the use of the provinces natural resources, the true value of having access
to these assets is only partially captured by their direct expenditures. Similarly, determining
how government policies affect the forest industry’s access to resources and calculating the
possible economic consequences is a relatively straightforward exercise. Quantifying what
natural assets are important to the CR industry and the economic implications that may result
from altering the quality of, or access to, those resources is a more difficult task. However
such measurement challenges do not diminish the importance of secure and fair natural
resource access to the viability of the province’s CR industry.
Currently, access to those resources central to the CR industry’s performance occurs
through extensive use tenures 1 such as licences of occupation, and temporary use and park
use permits. Though these tenures provide the legal foundation for most of the province’s
current CR businesses, they offer less security than leases, forest licences (FLs), and large
development agreements associated with other businesses using Crown lands.
Government Commitment
Increased pressures on BC’s natural resources, including those associated with
competing demands for extractive resource use, conservation, public recreation, and First
Nation land rights have intensified the need for greater clarity and security with respect to CR
property rights on public lands. Without such clarity and security, the government will
increasingly be challenged in its bid to:
•
More than double the BC tourism industry by 2015;
1
For the purposes of this report the terms tenure and contract refer to a contractual agreement where the
government grants property rights for Crown land to an individual or company. Common forms of CR tenure in
BC include: licences of occupation, leases, temporary use permits, park use permits, and guide outfitters
certificates. Where the terms tenure or contract are used the statement refers to all types of tenures examined.
iii
•
Create more jobs per capita than anywhere else in Canada;
•
Lead the way in North America in healthy living and physical fitness; and,
•
Lead the world in sustainable environmental management.
A competitive, growing and sustainable CR sector is essential to achieving the government’s
stated tourism goals. In 2001, over 950,000 visitors spent $908 million dollars on naturebased tourism products, and over 2,200 businesses now offer nature-based tourism activities.
Without changes to existing tenure arrangements BC’s CR industry may not be positioned to
successfully compete in the highly competitive tourism market place.
Purpose and Methods
This report describes key aspects of BC’s current land tenure regime that affect the overall
security and subsequent competitiveness of the province’s CR industry. It recommends
improvements to this regime that create a more favourable and equitable operating
environment for CR operators. The findings are based on information from a combination of:
tenure policy and contract comparisons in BC and other competing regions; key informant
interviews with financial, legal and insurance institution representatives; and CR operator
surveys 2 .
Findings and Recommendations
Several aspects of the province’s current tenure contracts and policies create challenges to
the long-term competitiveness and viability of the CR industry. The most significant
challenges and recommendations for remedying them follow. In each case, the specifics of
implementing the recommendation should be negotiated via a working group of industry and
government representatives.
Duration. The duration of a CR lease in BC is 30 years. A 30-year term gives the tenure
holder the length of term required to access traditional financing and undertake long-term
planning. Similarly, licences of occupation in BC offer a 30-year duration if tied to a lease
or freehold property. If not linked to one of these more secure forms of land rights
licences are issued for 10 years with a renewal period of 30 years. Temporary use permits
are only issued for 2 years, while park use permits are currently issued for only 1 year.
Tenure holders in the latter three situations have less security, which reduces their access
to institutional financial resources and can lead to under investment. Even though licences
can be renewed for 30 years the duration of the initial tenure agreement may be too short
to provide adequate financing opportunities.
2
For a detailed description of the methods used in the report see appendix 4.
iv
Many CR businesses depend on multiple tenures to support the delivery of their
products and services. In such situations their business security is only as strong as the
duration of their shortest tenure contract. While this issue has been addressed with respect
to leases and licences, the concern still applies to temporary use permits, park use permits,
and guide outfitter certificates. A more flexible and longer duration to tenure contracts
will alleviate unfavourable security issues and improve possibilities for acquiring financial
support from conventional lending institutions.
Recommendation #1
Increase the length of CR tenure contracts so that all contracts, regardless of issuing agency,
give the CR operator the option of a 30-year tenure from the outset.
Renewability. CR leases, licences, park use permits and the guide outfitters certificate
offer mid-term renewal, while temporary use permits maintain end of term renewal. While
mid-term renewal increases certainty for the tenure holder, it is diminished when the
government retains sole discretion of renewal. Lack of renewal certainty reduces the
willingness of financial institutions to support CR operators. The renewability provisions
in the ski hill master development agreement, forest licences and some of the land leases
in other provinces guarantee renewal if contract obligations are met. While the
government guarantees a fair processing time for tenure applications, a comparable policy
does not exist for tenure renewal. Lengthy approval processes also decrease tenure
security.
Recommendation #2
Guarantee contract renewal if the tenure holder meets contractual obligations including a
policy commitment by government to a fair processing time for contract renewals
Transferability. CR tenures in BC offer greater security with respect to transferability than
do many other dispositions. Currently, the government cannot unreasonably withhold
permission to transfer the tenure and allows for sub-tenuring. This provision in CR tenures
offers the type of language clarity and increased security that should be present in tenure
agreements.
Exclusivity. BC’s CR land use policy guarantees exclusivity for leases and intensive
licences of occupation used for primary camps. However, the exclusivity of intensive
licences is not apparent in the licence contract. BC’s intensive licences of occupation for
temporary camps, extensive licences of occupation, and park use and temporary use
v
permits offer little security against the granting of non-compatible tenures over the same
area. In instances where low compatibility tenure overlap is proposed, agreement between
all stakeholders could increase tenure security. Where this is not possible, the government
should commit to third party arbitration. An industry-government working group should
determine specifics surrounding which parties should pay for third party arbitration.
All CR tenures include a provision which places CR tenure rights secondary to all
subsisting grants and rights under the Coal Act, Forest Act, Mineral Tenure Act,
Petroleum and Natural Gas Act, Range Act, or Water Act. This provision reduces the
security and equity of CR tenures.
Recommendation #3
Where CR contracts do not grant exclusivity, limit the disposition of overlapping CR tenures
of low or moderate compatibility to cases where consensus agreements between government,
existing tenure holders, and the tenure applicant are in place.
Recommendation #4
Amend clause 5 in the CR tenure contract which places CR tenure rights secondary to all
subsisting grants and rights under the Coal Act, Forest Act, Mineral Tenure Act, Petroleum
and Natural Gas Act, Range Act, or Water Act.
The amendment should secure CR tenure rights. Where conflicts with other tenure rights
exist, the CR land use policy should require a consultation and accommodation process with
all affected tenure holders.
Public Use. Over half of the contracts include provisions that prohibit tenure holders from
blocking public access to, or passage over, tenured land. Of all the LWBC contracts
examined, only the CR tenures (all types) and the moorage licence of occupation include
provisions protecting public access. While the contract protects public access, the CR land
use policy gives CR leases and intensive licences of occupation used for primary camps
the right to block public access. Lack of uniformity with respect to public access between
contracts and policies also exists in other LWBC tenures.
Public access to Crown land is important to the general public, and in most cases it
must be preserved. However, protection of CR tenures is also needed in situations where
public use has low to no compatibility with existing activities, or where increasing public
vi
use threatens the security of a tenured business. Public access is of particular concern
when motorized public use interferes with non-motorized tenured use.
Recommendation #5
In some tenured areas and for some tenured activities there are conflicts between tenured
activities and public activities. Reduce these conflicts by:
- Developing consultation and accommodation processes that bring public parties and tenure
holders together to arrive at shared solutions; and,
- Examining whether it may be appropriate to add a provision to some CR tenures that gives
greater management control to a CR tenure operator. This provision could be similar to that
provided in article IV of the master development agreement. The provision should apply in
situations where public or private uses are permitted in important portions of the tenure
area.
Termination. Of the contracts studied in Canada and Alaska, Parks Canada tenures, the
BC commercial recreation park use permit, and Alberta leases and licences of
occupation include a provision for termination due to public interest; however, Alberta
offers compensation. Yukon, Ontario, and all but one type of Alaska's CR tenures do
not include a provision for termination due to public interest. All licences of occupation
and temporary use permits administered by LWBC include provisions permitting the
termination of contracts due to public interest or if the government requires the land for
their own use - without compensation. This situation decreases contract security and
certainty, and reduces the likelihood that tenure operators will invest further in their
businesses. It also decreases the willingness of lending institutions to finance such
operations.
Recommendation #6
Remove the provision in clause 8, which states that:
if we require the Land for our own use or, in our opinion, it is in the public interest to cancel this
Agreement and we have given you «NOTICE_CANCELLATION_PUBLIC_INTEREST» days’ written
notice of such requirement or opinion this Agreement will, at our option and with or without entry,
terminate and your right to use and occupy the Land will cease.
The government’s ability to terminate a contract due to public interest should be contingent
on a successful consultation and accommodation process, and fair compensation.
In-term Contract Changes. Only CR tenures allow the BC government to make in-term
changes to the provisions of tenure contracts. While the CR land use policy requires the
government to give tenure holders notice and an opportunity to voice their concerns, the
vii
government maintains sole discretion in making these changes. This provision is
unprecedented in the Canadian tenures examined in this report. The ability of the
government to make in-term contract changes also contributes to a loss of overall
competitive advantage for the province’s CR industry.
Recommendation #7
The Commercial Recreation Land use policy should make in-term changes to the contract
contingent on agreement by both parties.
Consultation. Where tenures allow a government to make in-term changes to a contract or
to grant additional dispositions over the land, some degree of consultation is usually
required. In the case of lease changes, governments often must obtain consent from the
lessee. LWBC includes provisions that require the government to notify a grantee of: new
dispositions, changes to regulations, and termination of the contract. In all of these cases,
the government retains the right to make decisions at its sole discretion.
Recommendation #8
Develop a clear and fair consultation policy, in conjunction with CR industry stakeholders.
The policy should include:
-
Consultation with stakeholders before decisions are made;
-
Procedures for participation;
-
Directives requiring information exchange;
-
Methods which ensure government and industry understanding of the potential effects on
interests;
-
Listings of circumstances where mediation or dispute resolution is appropriate; and,
-
Commitment to an agreeable outcome.
Compensation. Most contracts do not address compensation for takings. While LWBC
lease contracts do not offer such compensation, they do not explicitly state that the
government is not responsible for this type of provision. None of the current CR contracts
recognize the importance of secure access to, and maintenance of, surrounding extensive
land use to these businesses. Beyond providing compensation for the loss of intensive
improvements, the security of CR operations can be enhanced by providing compensation
for the loss of extensive wilderness resources (e.g. viewscapes, wildlife habitats,
watersheds) that are integral to the success of CR businesses. Government decisions that
have a material impact on the extensive use of natural resources should be compensated if
viii
increased security is to be realized. Specific details with respect to a fair compensation
policy should be determined in conjunction with CR industry representatives.
Recommendation #9
Create a clear policy, in conjunction with industry representatives, which includes
compensation for takings associated with: material impacts on natural resources, intensive
improvements, trail networks and smaller infrastructure improvements, business start-up
costs, and the current value of future earnings.
Outcomes of Increased Contract Security
Many operators feel their tenure situations are insecure. They believe that the
government is unlikely to consult them or offer appropriate compensation if takings were to
happen. Implementing this report’s recommendations will increase:
- The CR industry’s ability to attract strong investment and aggressively grow the
provincial tourism economy;
- The government’s opportunities to reduce business flight, create jobs, expand public
recreation opportunities, and capitalize on sustainable uses of the province’s land
base.
ix
LIST OF TABLES
PAGE
Table 1: Security of contract renewal
16
Table 2: Transferability of tenure
18
Table 3: Degree of exclusivity granted by contract
20
Table 4: Contracts including provisions preventing tenure holders
from blocking public access to, or passage over, the land
23
Table 5: Government ability to terminate contracts due to public interest
or government discretion
25
Table 6: Ability of government to alter contract provisions within term
27
Table 7: Government requirements to consult tenure holder before takings
occur or additional dispositions are granted
29
Table 8: Tenure holder’s right to compensation for government takings
and no-fault contract termination
32
LIST OF ACRONYMS
AAC
Annual Allowable Cut
BC
British Columbia
BLM
Bureau of Land Management (United States)
CR
Commercial Recreation
CROIF
Commercial Recreations Operator Input Form
GDP
Gross Domestic Product
JSC
Joint Steering Committee
LRMP
Land and Resource Management Plan (British Columbia)
LWBC
Land and Water British Columbia Incorporated
MFR
Ministry of Forest and Range (British Columbia)
MOF
Ministry of Forests (British Columbia – now MFR)
MP
Management Plan
MWLAP
Ministry of Water Land and Air Protection (British Columbia)
NAFTA
North American Free Trade Agreement
NPS
National Parks Service (Alaska)
TFL
Tree Farm Licence (British Columbia)
US
United States
USDA
United States Department of Agriculture
US DNR
United States Department of Natural Resources
x
1. INTRODUCTION
Like other resource based economic sectors, the long-term sustainability of many
commercial recreation 3 (CR) enterprises requires secure and fair access to strategically
important parts of the province’s land base (WTA, 2005a). Fundamental to ensuring this
access is a land tenure system that guarantees a level playing field among: CR tenure holders
in BC; the CR industry and other resource industries in the province; and, BC’s CR industry
and other similar operations in competing jurisdictions. The degree to which commercial
recreation tenures 4 offer security and certainty affects the overall competitiveness, growth
opportunities and economic sustainability of British Columbia’s CR industry.
CR security and certainty hinges on its core natural resources being maintained in a
natural state. While tools exist to quantify the value of a stand of trees to the forest industry or
a particular mineral deposit to a mining company, the task of determining the value of natural
resources to the CR industry is more challenging. Visitors pay for CR products and services
related to the use of the provinces natural resources, but the true value of having access to
these assets is only partially captured by these expenditures. Similarly, determining how a
government policy affects the forest industry’s access to resources and calculating the
possible economic consequences is a relatively straightforward exercise. Quantifying what
natural assets are important to the CR industry and the economic impacts that may result from
altering the quality of, or access to, those resources is a much more difficult task. These
measurement difficulties, however, do not decrease the importance of secure and fair natural
resource access to the viability of the CR industry.
The CR industry’s rights to wild spaces, clean mountain streams, and high quality
wildlife viewing opportunities, the resources that draw CR clients to BC, are much less secure
than resources tenured for extractive purposes. Access to these resources occurs through
extensive use tenures such as licences of occupation, temporary use permits and park use
permits. Though these forms of tenure determine the security and health of the CR industry,
they offer less security than leases, forest licences (FLs), and large development agreements
such as those for ski hills.
3
Commercial recreation is defined as outdoor recreational activities provided on a fee-for-service basis, with a
focus on experiences associated with the natural environment (LWBC, 2005c). Some examples include: sea
kayaking, wildlife viewing, commercial hunting and fishing, snowmobiling, horse pack trips, and cross-country
skiing.
4
For the purposes of this report the term tenure or contract refers to a contractual agreement where the
government grants property rights for Crown land to an individual or company. Common forms of CR tenure in
BC include: licences of occupation, leases, temporary use permits, park use permits, and guide outfitters
certificates. Where the terms tenure or contract are used the statement refers to all types of tenures examined.
1
This report describes key aspects of BC’s current land tenure regime that affect the
overall security and subsequent competitiveness of the province’s CR industry. It then
recommends areas where improvements to this regime can create a more favourable and
equitable operating environment for CR operators. More specifically, it:
•
Describes property rights and explains why they are an important tool for land tenure
considerations;
•
Identifies and examines the issue of government takings as they relate to land tenures;
•
Provides a business argument for improving land tenure security for CR operators;
•
Outlines the importance of consultation and compensation in creating greater security
for CR operators;
•
Compares critical dimensions of existing land tenure contracts and related legislation
within BC and surrounding regions;
•
Reports CR operator perspectives concerning the equitability of current tenure
contract rights and restrictions; and,
•
Recommends means of increasing CR tenure security through changes in tenure
contract provisions, tenure contract compensation and taking strategies, and the
process of consultation between the government and tenure holders in BC.
In February 2005, the CR joint steering committee 5 (JSC) approved a list of priority
actions for addressing tenure management issues in BC. The list includes:
•
Undertaking a Commercial Tourism & Resort Program development and policy
review, which included modernizing tenure policy for all forms of nature-based
tourism businesses operating on Crown lands, pricing, overlaps, incidental use, new
tenure options, harmonizing tenure policies and procedures between LWBC and
MWLAP, etc.;
•
Reviewing and adjusting tenure security/certainty issues and policies, including
conflicting tenures and compensation; and,
•
Enhancing communication and the relationship between LWBC and tenured CR
operators 6 . (LWBC, 2005b)
5
The purpose of the JSC is to provide a forum for tourism industry associations and Land and Water BC Inc.
(LWBC) to meet and exchange ideas with respect to the Commercial Recreation (CR) policy, procedures, key
issues and future program development as they relate to British Columbia’s nature-based tourism industry and its
operations on Crown land.” (LWBC, 2005a)
6
The issue of enhanced communication is addressed in the consultation section of this report.
2
This report addresses key aspects of the above priorities and offers recommendations for
improving the current situation.
2. THE TOURISM RESOURCE INDUSTRY
There is a growing recognition that the tourism industry competes for and depends on
scarce natural resources for its sustainability (Williams, 1993). In the early 1990’s this
awareness prompted BC Lands (now LWBC) to create policies that more appropriately
balanced the land and resource needs of the tourism sector with those of other public and
private sector resource stakeholders 7 (Ministry of Lands and Parks, 1990). A key component
of this adjustment involved modifying existing CR land and resource use policies to reflect
that BC’s CR operators:
•
Compete for land and resources with other CR industry businesses;
•
Compete for land and resources with other resource sector businesses; and,
•
Depend on access to a secure natural resource when competing with CR operators
from BC and other regions for market share.
It was also clear that CR operators had to increase their land tenure security on BC’s Crown
lands. While the industry has made some progress towards increasing its overall tenure
security many of the same concerns still exist.
In the 2003 BC provincial throne speech the Honourable Iona Campagnolo expressed
the government’s commitment to more than doubling tourism by 2010 (Legislative Assembly
of British Columbia, 2003). More recently, The Honourable Olga Ilich, the Minister of
Tourism, Sport and the Arts 8 , reaffirmed this commitment and adjusted the goal date to 2015
(Ilich, 2005). As an important resource industry and the number two contributor to BC’s
GDP, tourism currently plays a critical role in fuelling the province’s economy (Tourism BC,
2003). A competitive, growing and sustainable CR sector is essential to success in achieving
the government’s tourism goal. In 2001, over 950,000 visitors spent $908 million dollars on
nature-based tourism products, and over 2,200 businesses now offer nature-based tourism
activities. (WTA, 2005b).
7
Stakeholder refers to those individuals or groups that will be affected by a decision or policy.
The research for this report began before the BC government modified its ministries in June 2005. MOF is now
MFR, WLAP is now MOE, and where tourism used to be governed under MSRM, it is now in the ministry of
Tourism, Sport, and the Arts (MTSA). In addition, the responsibility for land use policy and tenure
administration, formally handled by LWBC, has been broken up. The Ministry of Agriculture and Lands now
administers all land tenure contracts formally managed by LWBC, except for CR tenures and ski hill MDAs,
which are managed by MTSA. For clarity this report retains the old ministries, as they appeared on tenure
contracts and corresponding policy and legislation prior to July 2005.
8
3
In addition to their commitment to the growth of the tourism industry, the government
has identified 5 great goals for a golden decade (BC government, 2005a). They include
creating more jobs per capita than anywhere else in Canada, leading the world in sustainable
environmental management, and leading the way in healthy living and physical fitness. By
addressing the issues and recommendations of this report, the government can foster the
development of a more secure and vital CR industry, which can aggressively assist in the
attainment of these goals.
The CR industry requires a certain and equitable operating environment in order to
contribute fully to province’s future growth. As a public land user it requires fair tenure
contracts, which provide the solid foundation on which viable business plans and increased
economic opportunities can be built. However, because of tourism’s low profile within the
traditional resourced-based arenas of government, the foundation for such certainty is weak at
best (WTA, 2005b). If the CR industry is going to help the government realize their goals of
doubling tourism, increasing job growth, and improving the environment and healthy living
and physical fitness greater tenure security is required.
Based on the factors emanating from a study conducted by the Ministry of Lands and
Parks in the early 1990’s 9 , as well as the government’s commitment to using rural
communities and the tourism industry to diversify the province’s economic base (BC
government, 2005b), creating greater security and increasing the competitiveness of CR
operations has never been greater. Central to such security is clear and fair property rights.
3. PROPERTY AND PROPERTY RIGHTS
Fischer (1923) defines property rights as “the liberty or permit to enjoy the benefits of
wealth while assuming the costs which these benefits entail”. Property rights determine who
gains from, and who bears the costs of, economic transactions and to what extent (Haley and
Luckert, 1990). For an economy to operate efficiently a system of property rights is
necessary.
In the case of tenure rights, property is defined by terms of the contract, legislation, and
interpretation of both by the courts. The clearer the wording of the contract, the less likely
interpretation of the document will be deferred to the courts. Clarity also improves the tenure
9
Commercial Backcountry Recreation on Crown Land in British Columbia - A public discussion paper and
Summary of Public Comments (see references for full reference)
4
holders understanding, thereby increasing the efficiency of tenure holder investment
(Schwindt, 1992).
CR operators require property rights as a foundation for their businesses. The value of
their business assets depend on two major factors:
•
Physical characteristics of the land base they use; and,
•
Associated property rights, which are obtained through market transactions
involving the transfer of property rights. (Scott and Johnson, 1983)
In general terms, property rights are often likened to a bundle of sticks – each stick
representing a property right. The more rights granted the greater the pile of sticks. For
example, a forest tenure allows the tenure holder to harvest timber over a certain period of
time, grants some degree of exclusivity, and can often be transferred from one holder to
another. Property rights also include restrictions. In the case of forestry tenures, the right to
run tourism operations, extract minerals, or sell water are usually not included. Specific
regulations also accompany the right. A licence to harvest timber usually requires the tenure
holder to meet certain environmental regulations, pay the government user and management
fees, and carry insurance. A tenure holder is said to have acquired a right if the benefits of the
right outweigh the associated contractual requirements (Haley and Luckert, 1989).
Property rights for resource use purposes are normally allocated with the intent of
encouraging economic development (Schwindt, 1992). In fact, LWBC’s vision statement for
the management of Crown lands is to ‘facilitate economic development, job creation and
revenue generation by aggressively pursuing and encouraging investment and optimal use of
Crown land and water resources’ (Land and Water British Columbia Inc., 2004, p.3).
Consequently, the efficient and well defined allocation of property rights helps the
government maximize economic development opportunities (Pearce, 1988). To understand
what interests amount to property and who has ownership over a property right, analysts
disaggregate such rights in specific categories. A list of those categories identified by Haley
and Luckert (1990) that are especially pertinent to CR operations follow.
1. Comprehensiveness: refers to the number of asset attributes over which a property
rights’ holder has control. In transferring certain rights to land through tenure,
governments frequently withhold other resource uses.
2. Duration: refers to the period over which property rights can be exercised. Private
ownership usually implies a period of perpetual duration, but tenures may specify
5
terms of varying length. An important aspect of duration is the degree of certainty
provided to the tenure holder that tenure can be renewed.
3. Transferability: refers to the rights of property holders to sell, or otherwise dispose of,
their property as they see fit. An increased ability to transfer property or tenure rights
increases the licensee’s security.
4. Rights to economic benefits: refers to the extent to which the holder of the property
rights can capture the economic returns generated by an asset. Property holder rights
may be limited by the imposition of taxes, fees, and user charges, or by restrictions
requiring the property to be managed in certain ways.
5. Exclusiveness: refers to the rights of the property holders to prevent others from freely
enjoying the benefits of the asset. Without some degree of exclusivity, property rights
may be of very little value to their holders. In the case of CR tenures, if an unregulated
number of CR outfits were permitted to use a given area, the resource would likely be
over-used, destroying the resources that originally attracted CR investment in the area.
6. Security: refers to:
•
The ability of the tenure holder to terminate a tenure (or portion of); and,
•
The tenure holder’s trust in the political / bureaucratic system to honour the terms
under which the property rights were granted. One component of this report relates
specifically to the probabilities CR operators attach to the possibility that existing
institutions will terminate or alter tenure contracts.
7. Use restrictions: refers to the way in which an asset may be used or limited. In this
report restrictions are gauged in-term of the degree to which improvements to the land
are allowed.
8. Management stipulations: refers to protection requirements and restrictions on the
tenure holder’s activity. This includes regulations governing environmental and
cultural protection as well as tenure holder requirements to hold external permits and
insurance.
9. Operational controls: refers to the means and extent to which the government ensures
compliance through operational stipulations and other restrictions placed on tenure
holders. Operational control often involves monitoring performance and enforcing
standards. However, control may also be exercised by requiring that operational,
working and management plans be submitted to the government for approval.
6
A detailed analysis of these characteristics as they pertain to different tenures is provided in
Appendix 2.
An understanding and agreement between CR operators and the government of the
number and extent of the rights provided to a CR operator is a central part of the foundation
needed to establish the value of the property and the potential areas where compensation for
government ‘taking’ might arise. In order to assess whether a government action amounts to a
taking, it is important to establish:
•
What rights are being removed;
•
How these rights influence access to the resource; and,
•
What value is associated with that access. (Haley and Luckert, 1989)
4. COMPENSABLE TAKING
When the crown asserts its freedom to vary or restrict property rights and resource
interests the issue of taking arises (Schwindt, 1992). In theory, every government action that
diminishes the value of land or property could be viewed as a taking and could be subject to
compensation. Traditional expropriation laws, which cover private land ownership and limit
takings to the expropriation of private property, cannot be directly applied to resource
interests on public lands as resource interests are not typically ‘expropriated’ but are instead
negatively affected by regulatory actions which alter the tenure holder’s rights (Schwindt,
1992).
Compensation circumstances range within a continuum (Schwindt, 1992). In some
situations, property rights are weak and if ‘taken’ may create insignificant, difficult to
determine losses. Conversely, strong property rights if ‘taken’ can impose significant losses
for the owner. The line that divides what should and should not be compensated lies
somewhere in between. Useful factors to consider when determining what should be
compensable include the impact of the taking on the industry’s investment decisions and the
fairness and distributive justice of the taking (Schwindt, 1992).
Based on these criteria, a government commissioned report outlined takings involving
mining and forestry tenures that should be compensated (Schwindt, 1992). Those relevant to
the CR industry include:
•
Where tenures are taken compensation should be paid and based on the market
value of the business.
7
•
Where possible and at the holder’s option tenure rights that are taken could be
exchanged for other rights, supplemented by disturbance damages. An example of
this is the taking of a portion of a tenure to expand the boundaries of a park.
Increased rights could be given to the holder by expanding another portion of their
tenure or increasing the number of activities permitted on their tenure. In this case
disturbance damages may include the labour costs of lost trail networks and
structures on the portion of the tenure taken.
•
Where an investment or asset is rendered worthless by reason of tenure alteration
or tenure overlap compensation should be paid on the basis of the investment or
assets original cost, less real depreciation plus interest.
Important in compensation assessment is the recognition that investments are not
limited to structural improvements such as lodges. They should also include trail networks,
roads, warming huts, campgrounds and other smaller infrastructure improvements that are
required for business success and have a significant associated cost. Possibly more important
is the recognition of the importance and value of extensive uses of the resource. A
commercial recreation business’s success depends on a product that includes resources such
as undisturbed backcountry, clean mountain streams, abundant wildlife, and old growth
forests. Without these resources a backcountry lodge is of very limited value. For this reason
government decisions that negatively affect the quality of, or access to, the extensive use of
these resources must also be considered in a compensation policy. Finally, business start-up
costs, which are often viewed as a five-ten year investment, such as advertisement costs,
equipment costs, unpaid labour, a reasonable expected return on investment, and accreditation
and training costs should be considered in a fair compensation policy.
Many CR businesses are small family-run companies and during the start up phase they
incur debt and are unable to pay their own labour costs. These hardships are incurred with the
expectation of a reasonable return on investment over a 5-10 year period. If the government
takes away a CR operator’s tenure or renders it worthless by decreasing the value of extensive
resource uses during the business start-up period, the government should also compensate
these costs. If these start-up costs are not considered in a compensation package, limited
industry investment is likely to occur. Given the broad list of assets and extensive land
resources that are needed in order to create value and a competitive advantage for CR
businesses, a comprehensive and fair compensation policy built in consultation with the
industry is needed.
8
5. THE IMPORTANCE OF PROVIDING PROPERTY RIGHT SECURITY
Like all industries in a market-based economy, CR businesses operate in a competitive
environment. If that environment is insecure, investors will seek more stable options.
Similarly, if consumers believe the product being offered is inferior to that available
elsewhere, they will seek out more competitive alternatives. Insecure operating environments
can lead to: under-investment, business flight, and client flight.
To a great extent, security is determined by the degree to which tenure holders trust the
socio-political system in which their tenure rights have been granted (Haley and Luckert,
1990). In order to create a competitive business environment, government must create
stability and predictability for tenure holders. Specific to the CR industry, the government
should grant CR tenure holders the same rights, respect and consideration as other Crown
tenure users in BC.
Tenure holders who perceive their tenure to be insecure expect that the benefits of their
property rights will be limited by unpredictable government actions. Conversely, tenure
holders with secure property rights expect future changes affecting their arrangements will be
minor, beneficial, or non-existent (Haley and Luckert, 1990). Expectations of burdensome
changes to tenure provisions can lead to less enterprise investment, which eventually
translates into poorer business performance and ultimately an inefficient use of public
resources. Insecure property right arrangements can defeat the purpose of tenure allocation.
Greater security can be nurtured by creating tenures that provide:
•
Clear and reliable tenure rights and restrictions (Haley and Luckert, 1990);
•
Meaningful consultation with tenure holders; and,
•
Fair compensation (Schwindt, 1992).
Specific wording, clear intent of tenure provisions, and stability of tenure increase
security. Vague provisions and wording that leaves decisions to the discretion of the
government decrease stability. Clear rights also decrease environmental conflict (Ewert et. al,
2004). Where tenure provisions must be changed, adequate consultation with tenure holders
increases the probability of reaching solutions that meet the needs of all parties.
Compensation can also be an important factor in reaching a satisfactory solution. All of these
factors are discussed in the following sections of this report.
9
6. THE IMPORTANCE OF CONSULTATION
A government’s commitment to consultation with affected tenure holders can take many
forms. It can occur as mere tokenism or, conversely, be designed by the participants to
encourage communication which will shape the eventual outcome according to stakeholder
input (Buchy et. al, 2000). Consultation which includes: consultation with stakeholders before
decisions are made, procedures for participation, an exchange of information, an
understanding by all stakeholders of the potential effects on interests, an outline of those
circumstances where mediation or dispute resolution is appropriate, and a commitment to an
agreeable outcome, can help improve tenure security. Such an approach to consultation is
termed ‘consultation and accommodation’ in this report. If this type of consultation policy is
to improve the security and certainty of the CR tenures the government’s ability to make
tenure decisions at their sole discretion must be removed from the tenure contracts.
Such a precedent does exist between the government and the CR industry. In particular
the CR JSC committee established a venue for government and industry representatives to
exchange ideas and improve industry security. Among other initiatives the committee has
worked towards improving the transferability of tenures. A re-commitment by government to
a similar arrangement could improve tenure security and certainty in the future.
When changes to the provisions of a tenure contract must be made, consultation and
accommodation between government and tenure holders can improve the probability of
reaching a positive outcome. Consultation and accommodation:
•
Identifies the needs of the tenure holder, often leading to more innovative and efficient
solutions (Buchy et. al, 2000);
•
Clarifies appropriate forms of compensation in cases where alternative solutions
cannot be reached (Schmidt, 1992);
•
Allows the tenure holder to adapt to proposed changes over a longer time period,
thereby decreasing the likelihood of detrimental business effects; and,
•
Increases the overall confidence of business security, leading to potentially greater
investment and resource use efficiency.
7. THE ROLE OF COMPENSATION
Arguments for and against compensating the taking of resource interests exist.
Contractual entitlements to resources can be seen as property interests or merely as existing
10
only at the pleasure of the Crown in its legislative capacity. Proponents of treating resource
interests as property, emphasize the degree of security necessary for the resource holder
(Pearce, 1988). If the government wants to increases investment in an industry, security that
the government will compensate takings is integral. Conversely, opponents emphasize the
need of the government to protect the public interest and maintain the flexibility needed to
alter future resource allocations (Schwindt, 1992).
Government must typically play the dual roles of enhancing the business environment
while protecting the public interest. A clear and fair compensation policy can help increase
the security the business community needs, while upholding the government’s commitment to
protecting the public interest.
There are several reasons why a fair and clear compensation policy is advantageous to
government and the tenure holder. They are as follows:
•
Fairness requires that neither the burden nor the benefit of public policy accrue
disproportionately to an individual or a group. It plays an important ethical role, as
well as a critical role in economic decision making (Schwindt, 1992). Fairness
requires that where the burden has become disproportionately large for the
property holder, and the burden is a result of the government increasing overall
public welfare, the property holder be compensated. Compensation ensures that
the burden of government actions is dispersed over the public at large, rather than
concentrated on one individual.
•
Fairness affects demoralization costs. Demoralization cost reflects the unhappiness
of tenure holders, associated with an uncompensated taking and the effect the
uncompensated taking has on their future behaviour (Schwindt, 1992). Typical
demoralized behaviour may include a decrease in investment and production
activities, resulting in future declines in welfare. Thus a compensation policy
should consider the impacts of demoralization on both the immediate and longterm performance of the CR industry and its contributions to BC’s economy.
•
A clear compensation policy creates positive signals to resource tenure holders and
government (Schwindt, 1992). If compensation is inadequate, investors will fear
takings and may reduce their effort, leading to under investment. This in turn may
lead to an uncompetitive product and the flight of clients to more competitive
regions. Similarly, inadequate compensation may cause the government to favour
public over private use of land. As a consequence, government officials may
11
underestimate the social value associated with private use of land and take back
rights too readily. Similar distortions occur if over compensation exists. Holders of
rights may favour compensation and lobby the government to expropriate their
rights, or apply for lands that are more likely to be expropriated. In the face of an
inflated compensation policy, government may be hesitant to expropriate lands
because of the prohibitive costs, leading to a sub-optimal assignment of resources.
Thus, compensation policies should give appropriate signals to decision makers,
thereby maximizing social welfare (Knetsch, 1983).
•
A clear compensation policy can act as a useful transition tool. It gives commercial
operations and communities the opportunity to adjust to lost business and
employment. This could occur if a resource tenure was removed in favour of
creating a public park. Adequate compensation would give the individuals
impacted by the taking time to adjust to the changes and re-invest elsewhere in
their business without undue harm.
•
A clear and fair compensation policy gives the government the needed flexibility
to take rights from a holder when the taking increases public welfare, without
having detrimental effects on the security and investment environment of the CR
industry. An adequate level of compensation helps the government send security
signals to resource holders, while retaining the ability to re-allocate resources if
this increases public welfare.
•
A clear compensation policy responds to the requirements of international
agreements. Article 1120 of the North American Free Trade Agreement (NAFTA)
provides that parties may not nationalize or expropriate an investment of an
investor, either directly or indirectly, or take measures tantamount to
expropriation. Where expropriation is allowed compensation must be paid. Under
NAFTA, expropriation is not defined and in the past the expropriation provision
has been interpreted broadly – in one case including non-discriminatory regulatory
measures as expropriation (Campbell and Nizami, 2001). While NAFTA only
applies to foreign companies, such agreements should influence future policy
considerations at the local and provincial level. Tourism is a global industry –
tenure policy should reflect this reality.
Opponents of providing compensation for taking argue that the risks of such action are
no different than that for other market ventures. They suggest that tenure holders should
12
purchase insurance to protect from this risk in the same way they do for other market
situations. However, there is currently no established market for government taking insurance
(Dunlop, personal communication, 2005). Similarly, demoralization cost is not likely to abate
with the purchase of private insurance, especially if government action is viewed as
discriminatory (Schwindt, 1992).
When security cannot be provided in the tenure contract, compensation can be a useful
tool in the consultation and accommodation process. Compensation creates fairness, reduces
demoralization costs, and sends appropriate signals to the industry. Compensation also
provides governments with the flexibility required to meet public interest, without causing
undue harm to the industry.
8. CREATING A COMPETITIVE ENVIRONMENT: A COMPARATIVE ANALYSIS
To clarify the CR industry’s competitive position with respect to tenure agreements, the
following comparative analysis was conducted. It examines different public land tenure
agreements with respect to three overriding questions and then positions BC’s CR industry in
this regulatory regime. The driving questions in the analysis are:
•
What is the relative importance of a specific interest;
•
Who holds the interest; and,
•
How well do CR tenures in BC measure up against (i) other resource tenures in
BC and (ii) CR tenures in competitive regions?
The analysis uses four primary sources of information to inform the tenure comparisons.
These include an assessment framework built on key issues identified in existing reports and
publications, the details of tenure arrangements outlined in existing government documents,
survey interviews with tourism operators impacted by existing tenure agreements, and
personal interviews with business professionals providing CR operators with financial,
insurance and legal services.
A modified property rights framework guides the comparison of tenure arrangements in
various jurisdictions and business sectors. It specifically focuses on tenure factors associated
with: comprehensiveness, duration, transferability, rights to economic benefits, exclusiveness,
security, use restrictions, management stipulations, and operational controls. The analysis
explains those rights that affect security of tenure and shows discrepancies across resource
industries and/or regions. A complete analysis of each tenure type is provided in appendices 1
and 2. A description of the methods used to examine tenure provisions is given in appendix 4.
13
This section of the report summarizes those categories where noticeable differences
were discovered. In some cases, analysis categories were further broken down into subthemes for clarity. The categories and sub-themes summarized in this section include:
duration and renewability, transferability, exclusivity, public use, termination, and in-term
changes to contracts. The degree to which contracts and policies address the issues of
consultation and accommodation, and compensation is also examined.
Land dispositions in BC 10 , Alberta, Ontario, Yukon, Alaska, Parks Canada and the
federal lands administered by the United States Department of Agriculture (USDA) Forest
Service, and Bureau of Land Management (BLM) in the continental United States are
examined. Not every tenure type is analyzed in each region. Outside of BC, only those CR
tenures which are most commonly granted are considered. Within BC a broad sample of
common tenure types is considered, however the list is not exhaustive. Specifically, mining
tenures were not included in the analysis. This was due to the extensive differences between
mining and other industry tenures in BC, which made useful comparisons untenable. A list of
contracts, land use policies, legislative acts, and secondary information used in the report is
provided in appendix 6.
Duration and Renewability
The length of contract and security of renewal tends to be greater for leases and licences
while permits are usually granted for shorter periods and in many cases are not renewable.
However, variability in this category is great. The greatest level of tenure renewal security is
offered by LWBC’s ski hill master development agreement, the BC MOF forest licence and
tree farm licence, Yukon’s lease, some Canada Parks leases, and the United States
Department of Natural Resources (US DNR) lease and land use permit. By contrast, LWBC
can withhold renewal of CR leases and licences of occupation for any reason deemed
appropriate, thereby offering less security. Table 1 identifies the degree of government control
over tenure renewability.
While the duration of CR leases is greater than other CR tenure types in BC this does
not necessarily lead to increased security. Many CR operators hold multiple tenures, requiring
a lease for intensive improvements and licences and permits for the larger areas where the
recreation activities take place. Recognizing this weakness, LWBC has developed a policy
that increases the duration of licences of occupation to 30 years, where the tenure holder also
10
Appendix 7 describes the types of CR tenures in BC
14
retains a lease or freehold. However, lease holders who also hold temporary use permits, park
use permits, or guide outfitters permits do not have access to this increased security. In these
latter cases, security of tenure as a function of duration is limited by the shortest tenure held
by the CR operator. For example, if a CR operator has a long-term lease where a lodge is built
and acts as a staging ground for a river rafting company that operates on a two-year temporary
use permit, the business is only as secure as the two-year permit. As business viability
depends on the land area where the recreation opportunities occur, and this land is granted
under tenure types that have shorter durations, longer contracts are required for all CR tenure
types, if security and certainty is to be increased.
Individuals interviewed at BC lending institutions stressed the importance of duration
and renewability in securing financing for CR investment. As one professional lender
commented:
If a tenure is short term our financing in a lot of cases is not short term. The operator
could get punted off the property before the payment of the loan is completed.
Businesses can face serious difficulty when seeking financing, even if they hold a CR lease.
This is because CR tenures tied to leases (outside of licences) offer duration periods too short
to obtain financing. Longevity of tenure and increased probability of renewability not only
improve the likelihood of obtaining financing for a CR business, but also effect the CR
operator’s investment decisions. The types of investment required to successfully start up
and operate a business require a lengthy amortization period.
As one insurance broker stated, this can also affect an insurer’s willingness to insure an
operator:
Some of these folks put a lot of money into capital expenditures that really require a long
life line in order for them to recover their capital costs. So it is really difficult to charge
big enough fees to the public to utilize your services if you have to recover all of your
capital costs in 10 years. About 20 years is probably fairly realistic to amortize capital
costs and build that into a fee that the public can afford to pay. If you can’t recover your
capital costs you may put yourself in a position where a fire is a blessing in disguise. It
would be wonderful if the lodge burned down because my tenure expires tomorrow and I
want to get my money back. This creates an undesirable situation that is to nobody’s
benefit.
Without a contractual commitment to contract renewal, lending institutions are
less likely to lend money to start or expand a CR operation. A case study investigating
the impact of weak tenure security on investment opportunities in the Kootenays found
that current tenure provisions result in financing acquisition difficulties for CR
businesses in that region (Crane, 2005).
15
While CR tenures in BC include a provision for mid-term renewal, there is no certainty
that the government will renew the contract. Lack of contract renewal assurance also makes
it difficult for CR operators to undertake long-term planning – a key ingredient of any
successful business.
Table 1: Security of contract renewal••
Region
Issuing
Institution
BC
LWBC
Tenure contract and pertinent legislation
Government has Government
sole discretion offers mid-term
over renewal
renewal
√
X
√
X
X
√
X
√
X
√
X
√
√
X
√
X
√
X
√*
√*
X
X
X
X
CR licence of occupation
CR lease
CR temporary use permit
Other LWBC leases
Other LWBC licences of occupation
LWBC statutory right of way
Ski hill master development agreement
MWLAP
Park use permit commercial land use
Park use permit commercial recreation
Guide outfitters certificate
Guide outfitters licence
BC MOF
Forest licence
Tree farm licence
AB
Public Lands Recreational lease
Miscellaneous lease
Licence of occupation
ON
MNR
Land lease - tenure
YT Lands Division TLYA lease
YLA lease
X
Land use permit
√
CAN Parks Canada Lease
X
X
USA Forest Service Marina resort term special use permit
Ski area term special use permit
Outfitting and guiding SUP – priority
X
Outfitting and guiding SUP - temporary
X
BLM
Special recreation permit
X
AK
NPS
Commercial use licence
X
Concession permit
Land use permit
DNR
X
Commercial recreation permit
√
Lease
••
The tables in this section of the report summarize the degree to which provisions within a tenure
contract provide security to the tenure holder. An X indicates that the provision decreases the security of
the tenure contract, while a √ indicates that the provision increases the security of the tenure contract.
*renewal option occurs every 5 years
16
Transferability
Transferability of tenure is not consistent across regions or between tenure types.
Transferability ranges from outright transferable, to transferable with written consent, to not
transferable. Within BC, CR contracts administered by LWBC permit tenure holders
(regardless of tenure type) to transfer their permit with government consent, which “will not
be unreasonably withheld”. While the contracts for temporary use permit in BC allow transfer
or sub-licence, the CR land use policy prohibits this. Transferability of all other land use
contracts administered by the LWBC (with the exception of communication tenures and the
ski hill master development agreement) may be withheld at the minister’s sole discretion.
Similar to CR tenures administered by LWBC, the transfer of Ontario’s and Parks
Canada’s lease cannot be unreasonably denied by the government. Regardless of the type, BC
forestry permits are also transferable with few licensee requirements. Transferability of BC’s
park use permits, the guide outfitters certificate and licence, all Alberta CR tenures, the
Yukon’s two types of leases, the USDA forest service ski area temporary use permit, the
BLM recreation permit, and the CR tenures administered by Alaska’s national park service
are under similar constraints as most LWBC tenures, requiring government consent. Many
tenures studied are non-transferable. The Yukon land use permit, Parks Canada licence of
occupation, and most CR permits in the US and Alaska cannot be transferred. Details are
listed in Table 2.
Transferability is not as important in determining tenure security as duration,
renewability or termination provisions. However, transferability can affect lending institution
decisions. As one lender described:
If something were to happen to the principle of the business and he wasn’t able to run the
operation and wanted to sell the operation. …the ability to have that lease or tenure transfer to
the new owner – that would be very important. While it may not determine a negative or positive
result on the financing decision it would be important in our deliberations.
CR tenures in BC offer greater security with respect to transferability because the
government cannot unreasonably withhold permission to transfer the tenure. The
transferability provision in LWBC’s CR tenures is an example of the type of language clarity
and increased security that is required in tenure agreements in order to assist healthy industry
development.
17
Table 2: Transferability of tenure••
Region
Issuing
Institution
BC
LWBC
Right to transfer
Right to
will not be
sublicence will
Tenure contract and pertinent legislation unreasonably
not be
withheld
unreasonably
withheld
√
√
√
√
CR lease
√
√
*
*
Other LWBC leases
√
√
MWLAP
√
√
BC MOF
Forest licence
√
√
Tree farm licence
AB
Miscellaneous lease
√
√
ON
MNR
Land lease - tenure
YLA lease
Land use permit
√
√
Outfitting and guiding SUP - priority
Outfitting and guiding SUP - temporary
BLM
AK
NPS
Concession permit
Land use permit
DNR
Lease
••
The tables in this section of the report summarize the degree to which provisions within a tenure contract
provide security to the tenure holder. An X indicates that the provision decreases the security of the tenure
contract, while a √ indicates that the provision increases the security of the tenure contract.
* LWBC communication tenures include provision that prevents the government from unreasonably withholding
the transfer of tenure
Exclusivity
The majority of leases studied offer exclusive use of the land in a limited manner
(Table 3). When a tenure involves extensive improvements, control over the land tends
18
to be greater (ski hill master development agreement in BC, ski hill special use permit
on USDA Forest Service lands, forestry licences in BC). The CR land use policy in BC
guarantees exclusivity for leases and intensive licences of occupation used for primary
camps. However, unlike the CR lease, exclusivity is not supported by a similar clause
in licence contract. BC’s intensive licences of occupation for temporary camps,
extensive licences of occupation, and temporary use permits offer no security against
the granting of non-compatible tenures over the same area. The guide outfitters
certificate and licence in BC grant exclusive hunting rights over a defined area.
Many licences of occupation do not grant additional dispositions that are
incompatible with existing uses. BC’s licences do not make this guarantee and other
dispositions can be granted even if the compatibility is determined to be low. The CR
land use policy
States (p.57):
Where an application has low compatibility with an existing CR tenure(s), LWBC will
consult with the applicant and existing tenure holders to determine if there is potential to
actively manage the conflicts to achieve compatible management plans…
If the issues can be resolved to LWBC’s satisfaction, then the tenure may be processed
by LWBC with or without the support of the existing operator…
Low compatibility tenures are granted against the protests of existing operators. As one
CR operator pointed out:
…one of the higher non-compliant uses was a mix of cross-country skiing and
commercial snowmobiling, and the Crown in its infinite wisdom decided, despite our
protestations, to take a third of our licence area and overlap a commercial
snowmobiling tenure on top of it... It essentially destroyed the cross-country ski product
as we knew it, and suddenly lapsed into a commercial snowmobile tenure area. The two
just don’t mix. You are not going to get cross country skiing if there are snowmobiles
running. You will get snowmobilers snowmobiling if you have cross country skiers
present – that’s the problem.
Lending institutions emphasize the importance of exclusivity in securing lending. If an
overlapping tenure could have a significant effect on financial outlook of a CR business, this
situation would reduce the chances of lending institutions offering financial support to the
operation.
Licences of occupation-extensive use and permits administered by LWBC are one of the
few arrangements that allow the government to grant additional low compatibility tenures. In
order to increase tenure security and promote healthy business investment, CR tenure holders
19
need assurance from the government that low compatibility tenures will not be granted
without the existing tenure holder’s consent. If an area is already stressed and the economic,
Table 3: Degree of exclusivity granted by contract••
Region
Issuing
Institution
BC
LWBC
MWLAP
BC MOF
AB
Public Lands
ON
YT
MNR
Lands Division
CAN
Parks Canada
USA
Forest Service
Government
Tenure
can grant
Tenure contract and pertinent
grants
low - non
legislation
exclusive use compatible
tenures
X
CR licence of occupation - extensive
√*
CR licence of occupation - intensive
√
CR lease
X
√
Other LWBC leases
Ski hill master development
√**
Park use permit commercial land
Park use permit commercial
√***
√***
√**
Forest licence
√**
Tree farm licence
Recreational lease
Miscellaneous lease
√
Land lease - tenure
√
TLYA lease
√
YLA lease
Land use permit
√
Lease
Marina resort term special use
Outfitting and guiding SUP - priority
Outfitting and guiding SUP – temp
BLM
AK
NPS
Concession permit
Land use permit
DNR
√*
Lease
••
* for primary camps only
**exclusivity does include some restrictions
***exclusive guide and outfitters rights for a defined area
20
social or ecological carrying capacity of the land has been reached, even highly compatible
tenures could have negative effects on current tenure holders. For this reason, it is imperative
that a consultation and accommodation process be undertaken when the government is
considering new tenures in areas where tenures currently exist.
The security of CR tenures (all types) in BC is also reduced by a contract provision
which places CR tenure rights secondary to all subsisting grants and rights under the Coal
Act, Forest Act, Mineral Tenure Act, Petroleum and Natural Gas Act, Range Act, Wildlife Act
or Water Act. Supplemental to this provision is a clause that protects the government from any
responsibility for losses incurred by CR tenure holders as a result of dispositions or subsisting
grants or rights granted under the Acts listed above. In effect, land rights granted under these
other Acts supersede CR rights granted under the Land Act. There is also no formal process
for addressing the loss of CR tenure rights when dispositions are granted under these other
Acts. As one CR operator stated:
the current document language puts us at the back of the bus… there is no process by
which our interests are addressed with other resource decisions.
Public Use
Managing public access to Crown land is a complex issue. The public traditionally
believes that they have the right rather than the privilege to access Crown lands. Any attempt
to restrict access can be seen as an attempt to deny the public their fundamental right. A
public consultation process conducted by Lands BC (now LWBC) in 1991 found that the vast
majority of stakeholders commented on the importance of protecting public access to Crown
land. On the other hand, over-use of such resources can cause the short-term problem of
crowding and the long-term challenge of resource degradation (Healy, 1994). This process
can lead to the eventual erosion of CR tourism products, which depend on the extensive use
of those resources (McKercher, 1992).
In interviews conducted for this report, BC’s CR operators expressed concern about
unrestricted public access to the land where their tenure exists. This was especially the case
with respect to mechanized public use interfering with non-mechanized CR use.
Just over half of the tenure contracts examined in this study included provisions that
prohibit the tenure holder from blocking public access to, or passage over, the land. Table 4
lists those contracts that permit public access over the land. Of all the LWBC contracts
examined, only the CR tenures (all types) and the moorage licence of occupation include a
provision protecting public access. In fact, the CR lease administered by LWBC is the only
21
lease examined that includes this provision. Again the CR land use policy contrasts with the
contract language. The lease and licence of occupation-intensive use contracts do not allow
the tenure holder to interfere with public access to the land. However, the CR land use policy
gives the lessee or licensee a ‘high level of exclusivity’, allowing for limited or no access.
These types of discrepancies must be corrected if security in the CR industry is to be realized.
The ski hill master development agreement administered by LWBC prohibits the
developer from unreasonably withholding permission for other users to pass freely through
the controlled recreation area where that person will not use the improvements in the area.
However, the developer may restrict routes and activities of the user and outright refuse use to
persons associated with an operation which is in conflict or competition with the operations of
the developer.
Evidence of tourism product degradation caused by uncontrolled public access to
Crown Lands is apparent in BC. It is exemplified by one CR operator’s comments:
One day they [a local snowmobile group] had 18 snowmobilers up there. And it was late
season and we were kinda getting the squeeze for snow pack and these guys just came up
and boom and they destroyed a whole bunch of our terrain. And when they go over it it is
virtually done for a long time because they leave such big ruts in it we can’t ski on it. It
is just devastating to the business.
Public access over the land appears to extend to the use of improvements made by
tenured operators as well. One operator’s experience illustrates this particularly well:
I had an incident last winter where three snowmobilers snowmobiled to my lodge and
intruded into my lodge, and harassed clients and refused to leave. When I took that to
LWBC, it took several weeks to get a legal opinion and they said they weren’t sure that I
could even lock my buildings. They said your licence of occupation doesn’t really allow
you to lock your buildings.
While some CR operators surveyed in this study were able to provide examples where
they independently worked with public recreation groups to reach a resolution that met the
needs of both parties, most cases remain unresolved despite repeated attempts by the CR
operator to address the issue. A resource allocation system that includes public users must be
developed and implemented if the security of the CR industry in BC is going to be assured.
While LWBC regulates and considers conflicting uses of land by registered users, and
compliance officers monitor non-tenured CR users who are in trespass, no formal system is
currently in place to protect CR operators from conflicting and over use by the public.
22
Table 4: Contracts including provisions preventing tenure holders from blocking public
access to, or passage over, the land••
Region
Issuing
Institution
BC
LWBC
Contract permits
public use over
the land
X
X
X
CR lease
Other LWBC leases
X*
X**
MWLAP
X
Guide outfitters lease
BC MOF
Forest licence
Tree farm licence
AB
Miscellaneous lease
ON
MNR
Land lease - tenure
YLA lease
Land use permit
X
X
X
X
X
Outfitting and guiding SUP – temporary
X
BLM
AK
NPS
Concession permit
X
Land use permit
DNR
X
Lease
••
* The only LWBC licence of occupation outside of the CR licence of occupation that prohibits the licensee from
blocking public access over the land is the marina licence of occupation.
**The ski hill master development agreement allows the developer to place restrictions on the publics use and
limit passage to certain routes.
One of BC’s CR operators found a successful solution to protecting the quality of the
company’s tourism product. A cat ski operator consulted with community stakeholders,
government officials, and LWBC staff over several years in hopes of protecting the ski terrain
23
held under a licence of occupation. The challenge involved protecting the area from
degradation caused by public snowmobile use. With the support of BC lands (now LWBC),
the Ministry of Forests, the BC Snowmobile Association and local snowmobile clubs, the CR
operator was able to obtain an Order in Council. This process was challenging:
It was quite tricky. I think it was amazing that we got it because it actually had to go to
cabinet. It was presented to cabinet by someone from Lands, with all the supporting
paperwork. We had support from our own association… and we did have the Snowmobile
Association on board which I am not sure if it would have happened if we didn’t have them
[The Snowmobile Association] on board.
A key component to the success of this agreement was a willingness by the CR operator to
maintain certain areas of the tenure area for snowmobile use, while protecting other sections
for ski clientele.
As land use intensifies conflicts among public use and private use are likely to
increase in frequency and severity. For this reason it is integral that the government address
the issue of public use on tenured lands. Public access to Crown land is important to the
general public and in most cases must be preserved (Ministry of Lands and Parks, 1991).
However protection of CR tenures is also needed in situations where public use has low to no
compatibility with existing activities or where increasing public use threatens the security of a
tenured business. As the cat ski/snowmobile example illustrates an effective consultation
process can result in innovative solutions to land use conflicts of this nature. Government
needs to take an active role in this process
Termination
All contracts and policies reviewed allow the government to terminate tenures due to
financial arrears or non-compliance. A number of contracts also permit the termination of
contracts for reasons of public interest or at the government’s discretion (Table 5). Only CR
leases and commercial land use park use permits protect CR tenure holders from termination
due to public interest in BC. All licences of occupation and temporary use permits
administered by LWBC include a provision stating:
if we require the Land for our own use or, in our opinion, it is in the public interest to
cancel this Agreement and we have given you
«NOTICE_CANCELLATION_PUBLIC_INTEREST» days’ written notice of such
requirement or opinion;… this Agreement will, at our option and with or without entry,
terminate and your right to use and occupy the Land will cease
24
Table 5: Government ability to terminate contracts due to public interest or government
discretion••
Region
Issuing
Institution
BC
LWBC
Contract allows
termination due
Tenure contract and pertinent legislation to public interest
or government’s
discretion
X
CR lease
X
Other LWBC leases
X
MWLAP
X
Guide and outfitters certificate
Guide and outfitters licence
BC MOF
Forest licence
Tree farm licence
X*
AB
X*
Miscellaneous lease
X*
ON
MNR
Land lease - tenure
YLA lease
Land use permit
X
X
X
X
Outfitting and guiding SUP – temporary
X
BLM
AK
NPS
Concession permit
Land use permit
DNR
X
Lease
••
*compensation must be provided
In contrast, all forestry tenures in BC, the ski hill master development agreement, the
Yukon leases, and Parks Canada leases and licences of occupation protect the tenure holder
from termination due to public interest. The BC guide and outfitters certificate and licence,
25
and the leases and land use permits in Alaska also do not provide for termination on the basis
of public interest. While Alberta does permit termination of contract in the interest of the
public, security of the tenure holder is increased through compensation provisions for such
termination.
The ability of the government to terminate a contract for public use can have serious
effects on both the CR operator’s investment decisions and a lending institution’s willingness
to finance a CR operation. As one lending institution employee stated when asked how the
government’s ability to terminate a contract due to public interest would affect a CR tenure
holder’s ability to acquire financing:
We would probably say that if they [the government] could do that we are not interested. If
we were depending upon the tenure to be in place for the health of the business then we
wouldn’t be interested in lending if that was one of the clauses in the contract.
Increasing the security for these contracts is especially important with respect to extensive use
tenures (licence of occupation, temporary use permit, CR park use permit) that are critical to
the success of many CR businesses.
In-term Changes to Contracts
The Land Act in BC allows the government to assume up to 1/20th of the land allocated to a
tenure if it is deemed to be necessary for making roads, canals, bridges or other public works.
All of the licences of occupation and leases administered by LWBC include provisions that
allow the government to make changes to user fees, the security deposit, and the amount and
type of insurance required. However, of all the LWBC land tenures only the CR tenures allow
the LWBC to make changes to the provisions of the contract within the term. After February
2005, CR contracts may include (and have included) a provision that allows LWBC to amend
management plans (MP) during the term of the tenure. Amendments are permitted if they
“address public safety concerns, land-use planning, lack of diligent use, carrying capacity and
other similar issues” (p.27). While the CR land use policy requires the government to give
tenure holders notice and an opportunity to voice their concerns, the government maintains
sole discretion in making these changes.
The USDA special use permits, the Alaska DNR land use permits and CR permits also
allow the government to make changes to the provisions of a contract. The BC guide and
outfitters certificate and licence authorize the government to make changes to contracts for
reasons of non-use or non-compliance. This can only happen after a hearing on the matter is
26
conducted. Many of the tenure arrangements examined do not allow significant changes to
such contracts without the agreement of both parties (Table 6).
Table 6: Ability of government to alter contract provisions within term••
Region
Issuing
Institution
BC
LWBC
Government can Government can
alter provisions
change fees
of contract
within term of
within term of
contract
contract
X
X
CR Licence of occupation
X
X
CR Lease
X
X
Other LWBC leases
X**
Ski Hill Master Development Agreement
MWLAP
Park Use Permit Commercial Recreation
X*
X*
X
BC MOF
Forest Licence
X
Tree Farm Licence
AB
Public Lands Recreational Lease
X***
Miscellaneous Lease Public
Licence of Occupation
ON
MNR
Land Lease - Tenure
YT Lands Division TLYA Lease
YLA Lease
Land use permit
X
USA Forest Service Marina Resort Term Special Use Permit
X
Ski Area Term Special Use Permit
X
Outfitting and Guiding SUP - priority
X
Outfitting and Guiding SUP - temporary
X
BLM
AK
NPS
Commercial Use Licence
Concession Permit
X
Land Use Permit
DNR
X
Commercial Recreation Permit
X***
Lease
••
*only for reasons of non-compliance or non-use and only after a hearing is conducted
**with restrictions on the 10th anniversary of the agreement
***every five years
27
This LWBC provision for CR tenures is unprecedented in Canadian tenure contracts and
could have significant effects on the health of the CR industry in BC. As one lender noted:
The government is then determining the likelihood of success of that business. If they
[the government] are cutting down the number of days they [the operator] can operate,
for example, they are probably cutting their[the operator’s] chance of profitability
down.
Without knowing that tenures will not undergo significant changes, or that an agreement by
both parties will be reached before changes to the tenure are made, many CR operators are
unable to accurately gauge the security of their tenure investments. Consequently, they may
be less likely to invest heavily in their future business operations.
Consultation
Included in the LWBC provision allowing the government to make in-term changes to a
CR tenure is a requirement for the government to notify and provide 60 days for the grantee
to inform the government of any concerns or provide a counter proposal. This is the standard
time period, but may be altered at LWBC’s discretion. Once LWBC has considered the
grantee’s concerns, it makes a determination and sends a final notice to the grantee outlining
the decision. At this stage, the grantee has 60 days to submit formal objections to LWBC.
Subsequent decisions take effect 12 months after notice, unless the matter is deemed to be
urgent. In urgent situations, the time frame is determined on a case-by-case basis. The
government, at its sole discretion, retains the right to make changes to the contract.
Leases and right of ways administered by LWBC require the agency to obtain consent
from the grantee before making changes to the contract. In addition the government must
obtain a tenure holders consent, which may be reasonably withheld, prior to making any
additional land dispositions. In the case of CR licences of occupation and special use permits,
the only reference to consultation before additional dispositions are granted appears in the CR
land use policy. The policy requires a disposition applicant to send a CR Operator Input Form
(CROIF) and a copy of the applicant’s management plan to the operator(s) in the application
area via registered mail. The current operator(s) then have 30 days to complete the CROIF.
This information is considered when LWBC makes its decision. All other licences of
occupation and temporary use permits administered by LWBC make no reference to
consultation prior to the granting of additional dispositions.
28
Table 7: Government requirements to consult tenure holder before takings occur or additional
dispositions are granted••
Region
Issuing
Institution
BC
LWBC
Consultation Government
however
must obtain
Tenure contract and pertinent legislation government
consent of
retains right to tenure holder
make changes
√
√
√*
CR Lease
√
√
Other LWBC leases
√
√
MWLAP
Guide and outfitters licence
√
BC MOF
Forest Licence
√
Tree Farm Licence
√
AB
√
Miscellaneous lease
√
ON
MNR
Land Lease - Tenure
YLA Lease
Land use permit
√**
Outfitting and Guiding SUP - priority
√**
BLM
AK
NPS
Concession Permit
√
Land Use Permit
DNR
√
√
Lease
••
*in order to grant new tenures
** government’s powers not clear
In contrast, the ski hill master development agreement may not be modified except as
provided in the agreement or by subsequent modification or agreement in writing between the
province and the developer. Forestry tenures in BC include similar provisions. If the
29
government is considering making changes to forest licence requirements for areas where
cutting permits are allowed, it must consult with the licensee and consider the comments
provided.
In general, the majority of leases require the government to consult the lessee if new
dispositions are made on the land, or changes are proposed to the contract (Table 7). In
addition, most tenures do not allow the government to make changes to the terms of the
contract without consent from the grantee. LWBC does include provisions that require the
government to notify a grantee of new dispositions, changes to regulations, and termination of
the contract. However, in all cases the government retains the right to make decisions at its
sole discretion.
None of the contracts or supporting policies adequately addresses the issue of
consultation, nor do they define what constitutes consultation. CR operators interviewed felt
that the LWBC consultation process was inadequate. One operator, who is threatened with the
taking of a portion of his tenure, illustrates the frustration felt by many CR operators
interviewed:
[There has been] very little consultation. Consultation is not a word that I would use. I
have been to two meetings where I have been told what the intent is.
Similar sentiments were expressed by other CR operators:
What is consultation? If it means that they have to talk to you… they have to tell you
what they are going to do, but they are going to do what they are going to do regardless
of the process. That probably meets the definition for consultation but it doesn’t give me
very much comfort.
A strong consultation process brings multiple stakeholders to the table. It often results in
creative and cost effective solutions to problems (Buchy et. al, 2000). A consultant who
works with many CR operators in BC provided a pertinent example:
We’re working on a situation where they [LWBC] say we don’t want you to ski in this
area because it is really critical [for goat habitat]. We’re saying OK, right beside us is a
provincial park, which doesn’t have goat habitat. And then we bring in Parks to say
we’d like to ski in there …there seems to be some willingness to look at that.
This example illustrates the type of innovative thinking brought about through consultation.
Consultation and accommodation allows the government to meet public interests, while
providing the security CR operators require for running more viable businesses.
30
Compensation
Of the contracts administered by LWBC, leases offer the greatest range of
compensation. Because leases only provide provisions for termination in the case of noncompliance and flooding, they leave the door open to compensation in other contract
termination cases. With respect to compensation for additional land dispositions, the
government must consult lease holders before granting additional dispositions. If lessees
cannot make appropriate arguments for material loss through the exercise of their rights under
the agreement, then a new tenure can be granted. Licences of occupation and temporary use
permits offer fewer avenues for compensation. Because provisions allow the government to
terminate the contract for reasons of public interest, there is little opportunity for
compensation as a result of contract termination. In addition, a pick clause 11 in the CR licence
of occupation, licence of occupation – river use, and temporary use permits for river use and
kayaking, allows the government to make changes to the disposition without compensation to
the lessee. This clause is unique to these four dispositions in BC. It is not in any of the other
licences of occupation administered by LWBC.
The Land Act includes provisions that permit the government or anyone acting under its
authority to occupy land under disposition for the purposes of mineral and gas extraction, as
well as water extraction and transport. In these cases, the government must pay the grantee
reasonable compensation. The government may also extract without compensation gravel,
sand, stone, lime, timber or other material that may be required in the construction,
maintenance or repair of a road, ferry, bridge or other public work.
If the annual allowable cut (AAC) in BC’s forest industry is reduced in one area, it must
be increased in another area to make up the loss. If AAC is decreased by more than 5% over a
tree farm licence (TFL) this decrease must be compensated.
The Alberta and Parks Canada leases and licences of occupation refer to the Alberta and
Canadian Expropriation Act respectively, when determining appropriate compensation. In
tenures where more improvements are allowed or expected, such as leases, a wider range of
compensation is provided for the occurrence of takings. However, many contracts make no
reference to compensation. Where compensation is addressed, what it constitutes is rarely
defined (Table 8).
11
A pick clause exists in the contract template and may or may not be inserted into an individual contract
31
Region
Issuing
Institution
Includes a no
compensation clause for
no fault termination
Includes a no
compensation clause
for other takings
Provides for
compensation for
takings/ termination
Table 8: Tenure holder’s right to compensation for government takings and no-fault contract
termination••
X
X
CR Lease
X
X
Other LWBC leases
X
√
X
MWLAP
Guide are outfitters licence
√
BC MOF
Forest Licence
√
Tree Farm Licence
√
AB
√
Miscellaneous lease
√
X*
√**
ON
MNR
Land Lease - Tenure
YLA Lease
Land use permit
√
√
√
√
Outfitting and Guiding SUP – priority
BLM
X
AK
NPS
X
Concession Permit
Land Use Permit
DNR
√***
Lease
••
* only refers to flooding of land
** only refers to the use of resources of the land for emergency uses
***right to compensation for improvements only
BC
LWBC
32
Unfair compensation can create demoralization costs that can have long-term negative
effects on the industry. In interviews conducted for this report, operators did not hide their
disappointment in the lack of compensation offered for government takings. An operator,
when asked if compensation was provided when the government granted a disposition for a
heliskiing outfit to conduct business over a significant portion of his tenure (effectively
closing off the area to his operation), replied:
Not at all. The tenure documents very clearly preclude any compensation. The tenure
documents state very clearly that the province at its own discretion can do these things.
That any rights that we have under this tenure are subordinate to any tenures granted
under the forest range act, under the wildlife act, under the coal act and so on. Forest
act you name it. All of these rights and tenures supersede what we have.
A fair compensation policy cannot merely include loss of intensive improvements, but
must also consider the importance of the wilderness product to the success of the CR
business. Government decisions that have a material impact on these natural elements should
be compensated if increased security is to be realized.
9. CR OPERATOR PERSPECTIVES ON IMPACTS OF TAKING, CONSULTATION AND
COMPENSATION POLICIES
For the purposes of this report, 61 CR operators were surveyed 12 to determine their
perspectives concerning:
•
How fairly they felt government would treat them in tenure decisions; and,
•
Their current level of demoralization with respect to CR tenure issues.
Their responses indicated that a high level of mistrust of government exists within the CR
industry. Only four percent of respondents strongly or somewhat agreed that ‘the government
treated the various resource industries with equality in matters related to tenure
arrangements’. One respondent commented:
Tourism tenures [are] last in line after every possible resource extraction industry.
Another respondent echoed this sentiment:
The government treats various resource industries such as logging and mining… with
much more preference. They have strong tenures that have enforcement and
compensation for loss etc. etc.
Fifty six percent of the operators somewhat or strongly agreed that it was ‘… likely that the
government will grant another tenure in my operating area that is not compatible with my
business’. Only 28% of respondents felt that ‘the government would consult them before
12
Complete results are listed in Appendix 3.
33
granting a non-compatible tenure’ over their tenured area. One respondent summed up the
concern regarding the government’s lack of commitment to consultation:
The government sends out referrals. Even if it is a non-compatible use that we strongly
object to because of negative repercussions on our business we are told "to work it out"
The onus is always on the original tenure holder to make sure they work things out and
to give up in order to accommodate "new and other users"
The theme of operator disillusionment with government was equally apparent with
respect to the provision of fair compensation. The vast majority of them felt that the
government would not compensate them fairly if the government terminated their tenure
(82%) or took back a portion of their tenure (82%). Respondents correctly pointed out that the
government did not have to compensate tenure holders for termination actions.
The level of frustration resulting from the lack of security offered by the current tenure
provisions was high among CR operators. This was exemplified by the following selection of
survey comments:
The government can cancel my tenure for any reason at anytime at their discretion, and
we are not allowed any compensation. All we get out of our tenure is the right to pay for
the use of public land.
We need to have tenures that are adaptable to a changing market (world-wide outdoor
tourism market) that may require our products to be modified to meet new consumer
trends. We also need certainty around our tenure areas in that we rely on wilderness
areas that are not stripped of natural resources. And if our business is impacted by
resource extraction, we need to be compensated according to our investment and income
loss.
The tenure language needs to have protection for the tenure holder. The tenure holder
should have a say in the termination or alteration of the tenure agreement, the
government can't hold all the cards. There needs to be language to protect the existing
tenure holder in the case of an overlapping application. At the present the onus of proof
is on the existing operator.
Basically there isn't any enforcement of LRMP or tenure violations. Sledders or ATVer's
roam at will completely disregarding any restrictions. We need more Compliance
officers and legislation with teeth in it.
The overwhelming feeling amongst respondents was one of demoralization. This
outlook may eventually lead to decreased investment, industry flight and an uncompetitive
environment for providing high quality tourism products. Without a government
commitment to improving the lack of security and fairness in existing tenures, it is quite
likely that the CR industry will be significantly constrained it its ability to fully contribute to
the province’s overriding goals.
34
10. RECOMMENDATIONS AND CONCLUSIONS
By granting property rights over Crown land, the government plays a key role in
promoting economic development. Private business access to Crown land can heighten public
welfare through increased employment and tax-revenues, and in the case of tourism, an influx
of external visitor spending. Conversely, such use can decrease opportunities for other public
welfare benefits to be realized. If government encourages private use, it is crucial that a policy
and management regime be created which supports such commercial operations. This report
has identified several areas where changes to existing tenure policies will increase land use
security and encourage business development for CR operators. In each case, the specifics of
implementing the recommendation should be negotiated via a working group of industry and
government representatives. General areas where improvements will increase tenure security
include:
•
Changes to contract provisions that improve fairness, clarity, stability, and
appropriate investment signals;
•
Consultation and accommodation between government and CR operators when
changes to tenures are contemplated; and,
•
Compensation to operators where government takings have a material effect on
business rights and interests, or where demoralization costs and unfavourable
perceptions of unfairness result.
Specific recommendations for improving current tenure provisions and CR land use
policy are:
1. Providing tenure operators the option of increasing the length of their CR tenure
contracts (including temporary use permits, park use permits and the guide outfitters
certificate) to better reflect lending institutions expectations. A more suitable contract
period would be 30 years. A more flexible and longer duration to tenure contracts will
alleviate unfavourable security issues and improve possibilities for acquiring financial
support from conventional lending institutions.
2. Guarantying contract renewal if the tenure holder meets contractual obligations
including a policy commitment by government to a fair processing time for contract
renewals. While the government guarantees a fair processing time for tenure
applications a comparable policy does not exist for tenure renewal. Lengthy turn
around times decrease the security of a tenure.
35
3. Limiting the disposition of additional tenures over land of low or moderate
compatibility to cases where consensus agreements between government, existing
tenure holders, and the tenure applicant can be realized. Conflicting tenure uses reduce
the viability of all tenure holders especially in situations involving non-mechanized
CR operations. Also important in the decision to grant new tenures is whether the
economic, social or ecological carrying capacity of the area has been reached. In this
case even highly compatible tenures could have negative effects on current tenure
holders. In these cases it is integral that government exercise a consultation and
accommodation process with current tenure holders, as they will be familiar with the
area in questions and its carrying capacity. A commitment to a consensus agreement
between tenure holders, the government and the tenure applicant when new
dispositions are being considered should be made in the CR land use policy and
supported by CR contracts. Where a consensus agreement is not possible the
government should commit to third party arbitration. An industry-government
working group should determine specifics surrounding which parties should pay for
third party arbitration.
4. Amending clause 5 in the CR tenure contract, which places CR tenure rights
secondary to all subsisting grants and rights under the Coal Act, Forest Act, Mineral
Tenure Act, Petroleum and Natural Gas Act, Range Act, or Water Act. To create the
proper investment environment and increase security the clause should secure CR
tenure rights. Where conflicts with other tenure rights exist, the clause should allow
for a consultation and accommodation process with all affected tenure holders to
occur.
5. Enhancing the equitability and value of CR tenures by managing the public use of
tenured land that is not compatible with the active dispositions. Public access is of
particular concern when motorized public use interferes with non-motorized tenured
use. Options to do this include: developing consultation and accommodation processes
that bring public parties and tenure holders together to arrive at shared solutions; and,
examining whether it may be appropriate to add a provision in some CR tenures
giving greater management control to a CR tenure operators. This provision could be
similar to that provided in article IV of the master development agreement. The
provision should apply in situations where public or private uses are permitted in
important portions of the tenure area.
36
6. Removing the following provision from clause 8 of the licence of occupation
agreement:
if we require the Land for our own use or, in our opinion, it is in the public interest to
cancel this Agreement and we have given you
«NOTICE_CANCELLATION_PUBLIC_INTEREST» days’ written notice of such
requirement or opinion this Agreement will, at our option and with or without entry,
terminate and your right to use and occupy the Land will cease.
Improve this clause by making the government’s ability to terminate a contract due to
public interests contingent on a successful consultation and accommodation process
and fair compensation. This could be accomplished by removing the above provision
from clause 8 and creating a separate clause to this effect.
7.
Amending the CR land use policy with respect to in-term changes to contracts,
making these changes contingent on agreement by both parties. This provision is
unprecedented in the Canadian contracts examined and creates potentially significant
adverse effects on the competitiveness of the province’s CR industry. By making interm changes to the contract contingent on agreement between parties government
can maintain the flexibility needed to make changes to the contract as they arise,
while ensuring certainty for the CR industry.
8. Developing a clear and fair consultation policy, in conjunction with the CR industry.
This should include: consultation with stakeholders before decisions are made,
procedures for participation, a systematic approach to exchanging information, an
effective approach to ensuring understanding by industry and government of the
potential effects on interests, an outline of those circumstances where mediation or
dispute resolution is appropriate, and a commitment to an agreeable outcome.
Consultation and accommodation should occur before the government changes
provisions of contracts, grants additional tenures over the land, removes a portion of a
tenure, or terminates a tenure for reasons other than non-compliance or financial
arrears.
9. Creating a clear compensation policy, in conjunction with industry representatives,
which addresses the importance of the extensive use of land on the health of CR
businesses. A fair compensation policy cannot merely include loss of intensive
improvements, but must also consider the importance of the wilderness product to the
success of the CR business. Government decisions that have a material impact on
these natural elements should be compensated if increased security is to be realized.
37
The compensation policy should address material impacts on the natural resource,
intensive improvements, trail networks and smaller infrastructure improvements,
business start-up costs, and the current value of future earnings. Specific details with
respect to a fair compensation policy should be determined in conjunction with CR
industry representatives.
These changes should be reflected in the tenure contract and CR land use policy.
An effective compensation policy should help society redirect resources from one use
to another with as few negative side effects as possible. In the process it should satisfy
fairness criteria, provide proper incentives to both public and private decision makers,
and be efficiently implemented (Schwindt, 1992).
The preceding recommendations will improve the security of CR tenures, send the right
signals to decision makers, and create a healthy investment environment. More importantly,
these suggestions will generate the missing balance between the development of the CR
industry and the needs of other resource users and residents. They will:
•
Increase tenure security for CR operators,
•
Strengthen the competitiveness of the tourism industry, and
•
Retain the flexibility needed by government to meet public interests.
38
REFERENCES
BC Government. 2005a. Throne Speech. Retrieved September 28, 2005 from
http://www.gov.bc.ca/bvprd/bc/content.do?brwId=%402Ic1GC%7C0YQtuW
&navId=NAV_ID_province&crumb=B.C.+Home&crumburl=%2Fhome.do
BC Government. 2005b. For British Columbia We’re Doubling Tourism. Retrieved
September 13, 2005 from http://www.bcliberals.com/media/Page35.pdf
Buchy, Marlene, Helen Ross & Wendy Proctor. 2000. Enhancing the information
base on participatory approaches in Australian natural resource management.
Land & Water Australia’s Social and Institutional Research Program.
Campbell, Karen & Yasmin Nizami. 2001. Security or Scarcity? NAFTA, GATT and
Canada’s Freshwater. West Coast Environmental Law.
Cormick, Gerald, Norman Dale, Paul Emond, S. Glenn Sigurdson, and Barry Stuart.
1996. Building Consensus for a Sustainable Future: Putting Principles into
Practice. Ottawa: National Roundtable on the Environment and Economy.
Crane, Reg. 2005. Nature Based Tourism In British Columbia: Implications of Land
Tenure Policy for Small Business Viability. Royal Roads University. May,
2005.
Dunlop, Bill. 2004. Personal Communication. Jardines Insurance. Calgary, AB.
Ewert, A.W., D.C. Baker, G.C. Bissex. 2004. Integrated Resource and Environmental
Management: the human dimension. CABI publishing. Cambridge MA.
Fisher, I. 1923. Elementary Principles of Economics. Macmillan, New York. Cited
from Haley and Luckert 1990.
Gunton, Tom. 1998. Forestry and Land use policy in British Columbia: The
Dynamics of Change. Environments. 25(2). 8-13.
Haley, David & Martin K. Luckert. 1989. Forest Tenures – Requirements, Rights and
Responsibilities: An Economic Perspective. The Forestry Chronicles. June.
180-182.
Haley, David & Martin K. Luckert.1990. Forest Tenures in Canada: A Framework
for Policy Analysis. Forestry Canada. Ottawa, Ontario
Heally, Robert G. 1994. The “Common Pool” Problem in Tourism Landscape. Annals
of Tourism Research. 21(3). 595-611.
Joint Steering Committee. 2005. A Brief to the Honourable Olga Ilich
Minister of Tourism, Sport and the Arts from Nature-based Tourism Sectors in
British Columbia. Unpublished.
39
Knetsch, Jack L. 1983. Property Rights and Compensation. Compulsory Acquisition
and other Losses. Butterworth & Co. Vancouver, BC.
Legislative Assembly of British Columbia. 2003. Speech from the Throne The
Honourable Iona Campagnolo Lieutenant Governor at the Opening of the
Fourth Session, Thirty-Seventh Parliament of the Province of British
Columbia February 11, 2003. Retrieved on September 13, 2005 from
http://www.legis.gov.bc.ca/37th4th/4-8-37-4.htm
LWBC, 2004. Service Plan Report. Retrieved July 25, 2005 from
http://www.lwbc.bc.ca/05media/reports/2003spr.pdf
LWBC, 2005a. Commercial Recreation Joint Steering Committee Terms of
Reference. Retrieved July 25, 2005 from
http://www.lwbc.bc.ca/02land/tenuring/commercialrecreation/tourism/tor.pdf
LWBC, 2005b. Priorities for CR Joint Steering Committee. Retrieved July 25, 2005
from
http://www.lwbc.bc.ca/02land/tenuring/commercialrecreation/tourism/priority
_list.pdf
LWBC, 2005c. Commercial Recreation Application Documents. Retrieved November
8, 2005 from
http://www.lwbc.bc.ca/02land/tenuring/commercialrecreation/index.html
McKercher, Bob. 1992. Tourism as a Conflicting Land Use. Annals of Tourism
Research. 19. 467-481.
Ministry of Lands and Parks. 1990. Commercial Backcountry Recreation on Crown
Land in British Columbia - A public discussion paper. Province of British
Columbia.
Ministry of Lands and Parks. 1991. Summary of Public Comments - Commercial
Backcountry Recreation on Crown Land in British Columbia. Province of
British Columbia.
Olich, Olga. 1995. 2005/06 – 2007/08 Service Plan Update, Ministry of Tourism,
Sport, and the Arts. Retrieved September 15, 2005 from
http://www.bcbudget.gov.bc.ca/sp/tsa/
Pearce, Peter H. 1988. Property Rights and the Development of Natural Resource
Policies in Canada. Canadian Public Policy. XIV(3). 307-320.
Schwindt, Richard. 1992. Report of The Commission of Inquiry into Compensation
for the Taking of Resource Interests. Province of British Columbia
Scott, Anthony & James Johnson. 1983. Property Rights: Developing the
Characteristics of Interests in Natural Resources. The UBC Department of
Economics. Paper # 88.
40
Tourism British Columbia. 2003. The Value of Tourism, Building tourism with
insight. Retrieved September 13, 2005 from
http://www.tourism.bc.ca/PDF/Value2003%20Book_FINAL.pdf
Weber, Robert Philip.1990. Basic Content Analysis. Second Edition. Sage University
paper series on quantitative applications in the social sciences. Series #07-049.
Sage Publications Inc. Newbury Park, CA.
Williams, M.V.1993. Growth Management in Community Tourism Planning. School
of Resource and Environmental Management. Report number 139.
Wilderness Tourism Association. 2005. Securing a Land Base for Tourism.
Retrieved April 27, 2005 from
http://www.wilderness-tourism.bc.ca/docs/Value_of%20_Tourism.pdf
41
Appendix 1
Comparative Analysis
The following table lists the specific provision where the property rights information was found. For more information see Legend
Region
Issuing
Institution
BC
Lands and
Water Inc.
Comprehensiveness
Tenure may Tenure may be
be used for used for more
than specific
Tenure contract/ more than
one resource activity
legislation
CR Licence of
Occupation
CR Lease
CR Licence of
Occupation Intensive use
2.1, 4.1f,k
2.1, 4.1f,k
2.1, 4.1f,k
2.1
2.1
2.1
Duration
Transferability
Sublicense No
Length of term Renewable Renewable Tenure
takeback
greater than 10 during term at expiration transferable allowed
applied for
with consent with
of term
years
transfer/
consent
sublicense
2.3
2.3
2.3
2.3
2.3
2.3
n/a
7.1
n/a
7.1
n/a
7.1
7.1
7.1
7.1
7.4
7.4
7.4
Limits to Economic Benefits
Ownership of
No application fees No use fees No
management intensive
(including:
improvements
fees (*=
consultation with
remains with
security
First Nations,
Leesee
deposit)
Registration Fees,
Economic feasibility
studies etc.)
4.1ss,tt, lwbc
4.1ss, lwbc
4.1.tt, .uu, lwbc
3.1
3.1
3.1
CR Licence of
Occupation non-profit
intensive use
CR Licence of
Occupation River User
2.1, 5.1.d,i
2.1
2.3
2.3
n/a
9.1
9.1
9.4
lwbc
CR Licence of
Occupation Sport Fishing
2.1, 4.1f,k
2.1
2.3
2.3
n/a
7.1
7.1
7.4
4.1.tt, .uu lwbc
3.1 (flat fee)
CR temporary
use permitRiver User
2.1, 5.1.d,i
2.1
2 years
(CKF)
(CKF)
n/a
9.1
9.1
9.4
lwbc
2.1, 4.1f,k
2.1
2.3
2.3
n/a
7.1
7.1
7.4
4.1.tt, .uu, lwbc
Option to
purchase land
4.1xx.ii,
5.1ee,ff
no
6.1*
4.1ww.ii
3.38 (if
minister
considers
advisable)
6.1*
4.1xx.ii, 5.1.cc,
dd
3.1,6.1
no
4.1xx.ii, 5.1.cc,
dd
no
5.1.j
no
6.1*
4.1xx.ii,
5.1.bb,cc
no
3.1, 3.2, 3.3
3.1, 3.2, 3.3,
7.3*
5.1.j
no
no
3.1 (flat fee)
6.1*
3.1, 3.2, 3.3, 3.1, 3.2, 3.3,
3.4
3.4, 7.3*
CR Temporary
use permit - Sea
Kayaking
2.1, 5.1.d,i
Agriculture lease
with option to
2.1, 4.1.f,
purchase
.h, .k, 5.1.k
2.1
2 years
(CKF)
(CKF)
n/a
9.1
9.1
9.4
lwbc
3.1, 3.2, 3.3
3.1, 3.2, 3.3,
7.3*
5.1.j
4.1.f
lwbc-lup
lwbc-lup
n/a
7.1
7.1
7.4
4.1.kk-ll (land
survey), lwbc
3.1
6.1*
4.1.oo.ii, 5.1.yz
Aquaculture
lease
unregisterable
4.1.f
lwbc-lup
lwbc-lup
n/a
7.1
7.1
7.4
4.1.p, lwbc
3.1
6.1*
4.1.u.ii, 5.1.k-l
2.3
3.38 (if
minister
considers
advisable)
4.2.a, 4.5.a
lwbc-lup
lwbc-lup
n/a
7.1
7.1
7.4
lwbc
3.1
6.1*
4.1.o.ii, 5.1.i-j
no
2.1, 4.1.f, .j
Communication
Sites Licence of
Occupation
2.1, 4.1.f,.k
Communication
sites statutory
right of way
lwbc-lup
n/a
2.1, 5.1b,e
lwbc-lup
2.1, 5.1.b.I,
5.1.e
lwbc-lup
4.3 (2.1,
5.1b,e)
4.3, lwbc -lup
7.1
7.4
lwbc
3.1
6.1*
4.1s, 5.1k,l
2.1, 4.1f,k
4.1f
lwbc-lup
lwbc-lup
n/a
7.1
7.1
7.4
lwbc
3.1
6.1*
4.1n, 5.1i,j
no
2.1, 5.1b,e
lwbc-lup
2.1, 4.1.g,
4.1.j
2.1, 4.1.g
lwbc-lup
lwbc-lup
n/a
7.1
7.1
7.4
lwbc
3.1 (flat fee)
6.1*
4.1.n.ii, 5.1.m,n
no
2.1, 4.1.k,
5.1.b.i, 5.1.e
lwbc-lup
4.1f
4.1f
lwbc-lup
lwbc-lup
n/a
7.1
7.1
7.4
lwbc
3.1
6.1*
4.1s, 5.1j, 5.1k
no
2.1, 5.1b,e
lwbc-lup
3.38 (if
minister
considers
advisable)
2.1, 4.1f,j
4.1f
lwbc-lup
n/a
2.3
2.1, 4.1.f,j
4.1.f
lwbc-lup
lwbc-lup
n/a
7.1
4.1k, 5.1i, 4.1k, 5.1i,
7.1
7.1
Note: Rows should be read from left to right and continue on the subsequent page. Columns are read from top to bottom and continue every other page.
7.1
7.1
4.1.o.ii, 5.1.j-k
4.3, lwbc -lup
7.1
7.1
6.1*
4.3 (5.1.b,
e)
n/a
n/a
3.1
2.1,
5.1.h,l,p,
6.1.d, lwbc6.1.a,d,e,l
lup
4.3(4.1.m,
5.1.b.i,
5.1.e, .t-.x) 4.3, lwbc -lup
lwbc-lup
lwbc-lup
lwbc
6.1.d, lwbclup
lwbc-lup
lwbc-lup
7.4, 7.5
2.1,
5.1.h,l,p,
6.1.a,d,e,l
4.1f
2.1, 4.1f
7.1
lwbc-lup
2.1,
4.1.l,.t,.u,
5.1.b.i,
5.1.e, 5.1.w.bb
lwbc-lup
2.1,
5.1.h,l,p,
6.1.d, lwbc6.1.a,d,e,l
lup
4.1.l,.t,.u,
5.1.b.i,
5.1.e, 5.1.v.aa
lwbc-lup
2.1, 4.1f,k
2.1, 4.1f,k
7.1
4.1.l,.t,.u,
5.1.b.i,
5.1.e, 5.1.w.bb
Industrial
Licence of
Occupation
Moorage
Licence of
Occupation
Utility Licence of
Occupation
Utility Statutory
Right of Way
lwbc-lup
lwbc-lup
4.3 (4.1.l,
5.1b, 5.1bbee)
4.3 , lwbc-lup
Industrial Lease
Standard Lease
Unregisterable
4.1.f, 4.2.a
2.1, 4.1l,t,u,
5.1b,e,xz,aa-cc
no
3.38 (if
minister
considers
Quarry Licence
of Occupation
2.1, 4.1.k
Exclusiveness
Exclusive use Sole property
of area under of area under
tenure
tenure
7.4
4.1bbb, eee, lwbc
3.1
6.1*
4.1iii, 5.1dd, ee
7.4
lwbc
3.1
6.1*
7.4
lwbc
3.1 (flat fee)
6.1*
4.1p, 5.1k, 5.1l
4.1p.ii, 5.1.l,
5.1.m
4.3 (4.1q,r,
5.1e,i,x-cc) 4.3, lwbc -lup
no
4.3 (2.1,
5.1b,e)
lwbc-lup
no
5.1.b.i, 5.1.e
lwbc-lup
Appendix 1
No disposal of No
termination
portion of
due to
Tenure contract/ tenure
financial
legislation
arrears
CR Licence of
Occupation
CR Lease
50.1.a, lwbclup 9.7
50.1.a, lwbclup 9.7
CR Licence of
50.1.a, lwbclup 9.7
CR Licence of
intensive use
CR Licence of
50.1.a, lwbclup 9.7
4.6.d, 4.7.
50.1.a, lwbclup 9.7
CR Licence of
CR temporary
50.1.a, lwbclup 9.7
4.6.d, 4.7.
50.1.a, lwbclup 9.7
8.1
8.1
8.1
8.1
8.1
8.1
8.1
No
termination
due to noncompliance
8.1
8.1
8.1
8.1
4.5, 8.1
Security
No termination
due to public
interest/ no
cause
Length of
notice by
government
before
termination
greater than
3 mo.
Government
cannot alter
contract fees
within term
8.1
some
provision
for 60 days
(8.1)
5.1.q
(flooding)
some
provision
for 60 days
(8.1)
3.2, 6.5.a,
6.7.a
1.8, lwbclup 9.7
4.1w
some
provision
5.1.p
for 60 days
(flooding), 8.1 (8.1), 8.2
3.2, 6.5.a,
6.7.a
1.8, lwbclup 9.7
4.1.g/h,x,y,
5.1.r
3.2, 6.5.a,
6.7.a
1.8, lwbclup 9.7
1.8, 4.7,
lwbc-lup
9.7
4.1.g/h,x,y,
5.1.r
some
provision
5.1.p
for 60 days
(flooding), 8.1 (8.1), 8.2
provision
for 60 days
8.1
(8.1)
some
provision
5.1.o
for 60 days
(flooding), 8.1 (8.1), 8.2
3.5, 6.5.a,
6.7.a
3.4,7.2.a
5.1.g,n
3.4,7.2.a
1.8, 4.7,
lwbc-lup
9.7
5.1.g,n
3.4. 6.5.a,
6.7.a,
1.8
4.1g, .p, .t,
5.1.o
1.8, 4.1.q
4.1g
8.1
4.5, 8.1
8.1
some
provision
for 60 days
(8.1)
8.2 (60
days)
8.1
8.1
Aquaculture
lease
unregisterable
8.1
8.1
no reference
8.2 (60
days)
3.2, 6.7
8.1
8.2 (60
days)
3.2, 6.5.a,
6.7.a
no reference
8.2 (60
days)
3.2, 6.5.a,
6.7.a
Communication
Sites Licence of
Occupation
Communication
sites statutory
right of way
Industrial Lease
50.1.a
50.1.a
50.1.a
8.1
8.1
8.1
8.1
8.1
8.1
Industrial
Licence of
Occupation
Moorage
Licence of
Occupation
50.1.a
8.1
8.1
Quarry Licence
of Occupation
50.1.a
8.1
8.1
Standard Lease
Unregisterable
Utility Licence of
Occupation
Utility Statutory
Right of Way
50.1.a
8.1
8.1
no reference
no
reference 3.2,3.4,6.5,6.7
8.1
no
reference 3.2,3.4,6.5,6.7
8.1
8.2 (60
days)
3.2, 6.5.a,
6.7.a
8.1
8.2 (60
days)
6.5
50.1.a
8.1
8.1
no reference
50.1.a
8.1
8.1
8.1
50.1.a
8.1
8.1
no reference
4.1
e,n,o,p,v,ww
environmental
schedule
r,v,w,z,aa,ss,
4.1.xx.iv,
5.1.i,j,k,l,
environmental
schedule
4.1.e,or,v,w,z,aaii,ss, 4.1.xx.v,
5.1.i,j,k,l,
environmental
schedule
4.6.c,
5.1.f,j,q,r
5.1.t.ii
1.8, lwbclup 9.7
4.5, 8.1
4.1e,o,p,q,r,w,
ss,
environmental
schedule
1.8, 4.7,
lwbc-lup
9.7
3.2, 6.5.a,
6.7.a
some
provision
for 60 days
(8.1)
8.1
4.1g/h, ,x,y,
5.1i,s
4.1.g/h,x,y,
5.1.q
3.5, 7.2.a
5.1.m
(flooding)
50.1.a
1.8, 5.1.dd,
lwbc-lup
9.7
4.6.c, 5.1.f,j,s,
5.1.u.ii
4.1.e,or,v,w,z,aadd,ff-ii,ss,
4.1.xx.v,
4.6.d, 4.7.
CR Temporary
use permit - Sea 50.1.a, lwbcKayaking
lup 9.7
Agriculture lease
with option to
purchase
50.1.a
8.1
Use
restrictions
Management stipulations
Do not
No
Government Improvements No
to land allowed Environment/ Improvements have to
cannot
maintain
required
with restrictions cultural
change
external
Protection
restrictions
licences
requirements
on contract
and/or
within term
insurance
5.1.g,n
4.1.e,m-o,
u.iv,
1.8
1.8
4.1g,h, 4.2.b,
4.5
4.1.e, 4.1.o.v
1.8
4.1g,h
4.1e
Consultation
before
changes to
regulations/
fees
Consultation
Consultation Consultation Consultation
before tenure
before other before
disposal of termination
tenures are
portion of
granted in
tenure
area
appendix 73 of lwbclup
lwbc-lup 9.7
4.1z
4.1.jj-mm,
6.6.a
2.1
4.1m,n
1.12, lwbclup 9.7
4.1y
4.1ii-kk
2.1
4.1uu
1.12, lwbclup 9.7
4.1.z
4.1.jj-pp,
5.1.m,
6.6a
4.1.n
4.1.m, vv
1.12, lwbclup 9.7
4.1.z
4.1.jj-pp,
5.1.m,
6.6a
4.1.n
4.1.m, vv
7.1.a,
3.8, 3.10, 4.1,
4.6, 5.1.m
none
none
none
4.1.jj-pp,
6.6a
7.1.a,
4.1.n
3.7, 3.9, 4.1,
4.6, 5.1.m
4.6.c, 5.1.f,j,q,
3.7, 3.9, 4.1,
5.1.s.ii
none
7.1.a,
4.6, 5.1.m
4.1.oo.iv,
4.1.u,
environmental management 4.1.ee- management
schedule
plan schedule .hh, 6.6.a
plan
4.1g,h, 4.2.b,
4.5.b,
4.1.e, 4.1.o.v
1.8
Operational controls
No periodic
No
audits/
management
plans, written inspections
status reports required
required
none
none
none
none
6.6.a
management
plan
4.3.a
Compensation
Compensation Compensation
for other takings for loss of
improvements
5.1f,p,dd,
50.1.a.ii
8.1
5.1q,8.3a
lwbc-lup 9.7
8.1
5.1s, 8.3a
lwbc-lup 9.7
8.1
5.1.p, 8.3.a
5.1.f,o,
50.1.a.ii
no reference
8.1
5.1.p, 8.3.a
5.1.f,o,
50.1.a.ii
no reference
no reference
5.1.e,f
no reference
5.1g,j,r 50.1.a.ii no reference
5.1.k,r
lwbc-lup 9.7
appendix 71.12, lwbc- 3 of lwbc4.7, lwbclup 9.7
lup
lup 9.7
8.1
8.2.a
4.8, 6.1.f,
50.1.a.ii
4.1.m, vv
appendix 71.12, lwbc- 3 of lwbclup 9.7
lup
lwbc-lup 9.7
8.1
5.1.o, 8.3.a
5.1.f,n,
50.1.a.ii
no reference
5.1.k,u
appendix 71.12, lwbc- 3 of lwbclup 9.7
lup
4.7, lwbclup 9.7
8.1
8.2.a
4.8, 6.1.f,
50.1.a.ii
no reference
5.1.k,t
1.12, lwbclup 9.7
4.7, lwbclup 9.7
8.1
8.2.a
4.8, 6.1.f,
50.1.a.ii
no reference
8.1
8.3.a
5.1g, m,
50.1.a.ii
no reference
1.12, lwbclup 9.7
4.1.mm
1.12
5.1.e, .f
no
reference
4.1.s
1.12
5.1e,f
no
reference
8.1
8.3.a
5.1g, 50.1.a.ii
no reference
1.12
no
no reference reference
8.1
8.3.a
5.1.f, 50.1.a.ii
no reference
1.12
5.1e,f
no
reference
8.1
8.3.a
5.1.g, 50.1.a.ii
no reference
5.1e,f
no
reference
8.1
8.3a
5.1g, 50.1.a.ii
no reference
1.12
no
8.1
8.3a
5.1f, 50.1.a.ii
no reference
4.1.m, 4.9
6.6.a
management
4.1.l,
plan
4.1.m, 4.9
6.6a
management
plan
6.6a
management
plan
4.1l
4.1e
1.8
4.1.f
4.1.e, 4.1.n.v,
5.1.i-l
none
6.6a
management
plan
4.1.l
1.12
no
8.1
8.3a
5.1f, 50.1.a.ii
no reference
1.8
4.1g
4.1.e
4.1o
6.6
4.1l,m
4.1n,q
1.12
no
8.1
8.3a
5.1f, 50.1.a.ii
no reference
4.1bb
4.1qq-tt,
6.6a
management
plan
4.1ggg
1.12
no
reference
8.1
5.1q, 8.3
5.1g, p,
50.1.a.ii
no reference
none
6.6
4.1n
1.12
8.1
8.3a
5.1f, 50.1.a.ii
no reference
none
6.6.a
4.1.n
1.12
8.1
8.2.a
5.1.g, 50.1.a.ii
no reference
8.2 (60
days)
3.2, 6.5, 6.7
1.8
8.2 (60
days)
8.2 (60
days)
3.2, 6.5, 6.7
3.2, 6.5.a,
6.7.a
1.8
4.1g
1.8
4.1g,k,l, 5.1.j,k
4.1e
4.1.e,m,
4.1.p.v,
management
plan
management
plan
4.1l
1.12
4.1g,h
4.1e,l-o,u,x4.1g,s,t,w,aa,c
z,iii(iv),
c,eee,
environmental
5.1k,l,m,n,s
schedule
none
6.6.a
Compensation
for no-fault
tenure
termination
5.1e,f
no
no
5.1.e,f
reference
Appendix 1
Region
Issuing
Institution
Comprehensiveness
than specific
legislation
Duration
Transferability
Sublicense No
takeback
applied for
with consent with
of term
years
transfer/
consent
sublicense
4.1.y-z, lwbc
6.1*
4.1.cc.ii, 5.1.r,s
7.4
4.1.y-z, lwbc
3.1 (flat fee
or %age)
6.1*
4.1.dd.ii,iv,
5.1.p,q
no
5.1.b.i,
5.1.e,k-o
lwbc-lup
7.4
4.1.y-z, lwbc
3.1 (flat fee
or %age)
6.1*
4.1.cc.ii, 5.1.q.r
no
5.1.b.i,
5.1.e,l-p
lwbc-lup
6.1*
4.1.oo.ii,
5.1.x,y
3.38 (if
minister
considers
advisable)
2.1, 4.1.f,l
4.1.f
lwbc-lup
lwbc-lup
n/a
7.1
7.1
7.4
2.1, 4.1.f,l
4.1.f
lwbc-lup
lwbc-lup
n/a
7.1
7.1
Energy
Production Right
of Way
2.1, 4.1.f,l
4.1.f
lwbc-lup
lwbc-lup
n/a
7.1
7.1
Golf Lease
2.1, 4.1.f,j
Grazing Lease
2.1, 2.4.a,
3.1, 5.1.g,j,
6.1.k
2.4.a
lwbc-lup
2.3
2.3
8.1
8.1
8.4
5.1.ll, lwbc
4.1
7.1*
5.1.oo.ii,
6.1.y,z
Quarrying Lease 2.1, 4.1.f,j
4.1.f
lwbc-lup
2.3
n/a
7.1
7.1
7.4
4.1.m,z,aa
3.1 (flat fee
+ royalty)
6.1*
4.1.dd.ii,
5.1.y,z
n/a
16.01,
16.02
10.01
none
5.12, 13.02.c
5.05, .06,
.07
6.01.b.iii, .iv,
15.06,
17.01, .02
3.03, 6.06,
19.01a
Ski Hill Master
Development
Agreement
Ministry of
Water, Land Park use permit
and Air
commercial land
Protection use occupancy
Park Use Permit
Commercial
Recreation
guide outfitters
certificate
guide outfitters
licence
lwbc-lup
n/a
7.1
7.1
Exclusiveness
tenure
tenure
3.38 (if
minister
considers
advisable)
Energy
Production
Licence of
occupation
lwbc-lup
Option to
purchase land
3.1 (flat fee
or %age)
Energy
Production
Lease
4.1.f
Ownership of
(including:
improvements
fees (*=
consultation with
remains with
security
First Nations,
Leesee
deposit)
Registration Fees,
studies etc.)
7.4
4.1.kk-ll, lwbc
3.1
3.38 (if
minister
considers
advisable)
3.38 (if
minister
considers
advisable)
4.3 (5.1.b.i,
5.1.e,m-q) 4.3, lwbc -lup
4.3 (4.1.k,l,
5.1.b.i,
5.1.e,s-w) 4.3, lwbc -lup
5.3 (5.1.l,
6.1.b.i,
6.1.e,t-x,
6.2)
4.3 (5.1.b.i,
5.1.e,s-w) 4.3, lwbc -lup
3.06.b, 4.01,
7.01, 7.03,
4.02, 4.03,
17.02 (in base
13.02f,
area)
21.09
10.01,
14.01t
10.01
2.01
18.01,
18.02
1.01
1.01
Q&A
9.01
9.01
5.01
5.01
5.01
pup-fees
3.01, 10.01
22*
6.01r
no
7.01c
7.01c
1.01
1.01
Q&A
7.01
7.01
5.01q
5.01q
no
pup-fees
3.01
22*
improvements
not allowed
5.01h
no
1.02, 5.01o,
6.01a,d
6.01d
no
no
4
4
n/a
62
n/a
no
no reference
69
no
n/a
no
no
1
no
no
1
no
no
62
n/a
no
start of document
69
no
n/a
no
no
no reference
No
15.04
guaranteed
AAC for
timber supply
area(ttsqr)
No
7.02, 1.01 schedule A
1.01 schedule A
???
1.02.a, 1.09.11, 1.19
BC Ministry of
Forests and
Range
Forest Licence
Forest Service
Special Use
Permit
Tree Farm
Licence
AB
Public Lands
Recreational
Division
Lease
Miscellaneous
lease Public
lands and
Forests
License of
Occupation
5.3, lwbc -lup
1.01
1.01
1.01
2.02
1.02
1.03, 152
n/a
no reference
no
reference
no
reference
1.02
1.02
1.01
6.14
(cutting
permit),
(ttsqr), 152
1.b, 3, 35
1.b, 77 (with
ministers
consent)
no reference
15
4, 35
4, 77 (with
ministers
consent)
(start of
document)
5, 35
5, 77 (with
ministers
consent)
varies
depending on
purpose
15
15
4.54
7.01
4.54
no
reference
n/a
4.54
12.01,
12.06
15
43
43
15
10, 43
15
6, 43
10, 43
6, 43
None
6.02
4.02, 10.07
10.02,11*
13.01,02,03
no reference
7.03, 3.04 schedule A
4.03
no reference
3.01
None
4.08
4.07 (waste
fee) 10.01
(stumpage)
10.02
15.01, 15.02
No
1.12,
2.08.e.iii,
11.01,.04,
.05
none
acd (amount
determined by
competitive bid)
2
atlrp*
62
no
20.1.1, 25
25
none
acd (amount
determined by
competitive bid)
1
atlrp*
12, 62
18 (for
homesteads)
20.1.1, 25
25
none
acd (amount
determined by
competitive bid)
3
atlrp*
62
no
20.1.1, 25
25
None
Appendix 1
No disposal of No
termination
portion of
due to
financial
legislation
arrears
Energy
Production
Lease
50.1.a
8.1
No
termination
8.1
Security
No termination
due to public
interest/ no
cause
no reference
Length of
notice by
government
before
termination
greater than
3 mo.
8.2 (60
days)
Government
cannot alter
contract fees
within term
3.4, 6.5.a,
6.7.a
Use
restrictions
Do not
No
cannot
maintain
required
change
external
Protection
restrictions
licences
requirements
on contract
and/or
within term
insurance
4.1.h, r-u, management
6.6.a
plan
4.1.aa
1.12
4.1.q
6.6.a
plan
4.1.bb
1.12
4.1.q
6.6.a
plan
4.1.aa
1.12
4.1.q
4.1.cc-ff.
6.6.a
3.4, 3.5
4.1.mm
5.1.t
5.1.ff-kk,
7.6.a
3.3
4.1.s
4.1.t,-w,
6.6.a
6.01.b.iii, .iv,
1.08 (with 6.04, 8.01-03, 7.06e, 14.01b,
consent)
14.01m,
14.01.j. n
3.03.b
3.05.b,
6.01.b,
6.02.b,
13.01.g.vi,
14.01.e.iii
4.1g,o,p
50.1.a
8.1
8.1
8.1
8.2 (60
days)
3.4, 6.5.a,
6.7.a
1.8
4.1g,o,p
Energy
Production Right
of Way
50.1.a
8.1
8.1
no reference
8.2 (60
days)
3.4, 6.5.a,
6.7.a
1.8
Golf Lease
50.1.a
8.1
8.1
no reference
8.2 (60
days)
3.2, 6.5.a,
6.7.a
1.8
Grazing Lease
50.1.a
9.1
9.1
no reference
9.2 (60
days)
4.2, 7.5.a,
7.7.a
Quarrying Lease
50.1.a
8.1
8.1
no reference
8.2 (60
days)
3.2, 3.5, 6.5.a,
6.7.a
12.06 (with
consent)
Park use permit
commercial land
use occupancy no reference
Park Use Permit
Commercial
Recreation
no reference
guide outfitters
certificate
61.1
guide outfitters
licence
61.1
Forest Licence
Forest Service
Special Use
Permit
Tree Farm
Licence
8.01
15.01,
15.02.d
2.02, 15.01,
15.02.d
no reference
no
reference
5.08
1.8
4.1.e,m,n,rbb,ii, 4.1.oo.iv
5.1.e,m,n,q,r,uee, 5.1.iv
4.1.e,n,s,
4.1.dd.iv,
environmental
4.1g,q,r, 5.1.n
schedule
5.1.g, 50.1.a.ii
no reference
no
8.1
8.3
5.1.j, 50.1.a.ii
no reference
5.1.e,f
no
reference
8.1
8.3, but not
5.1.j, 5.1.k
5.1.g, 50.1.a.ii
no reference
1.12
5.1.e,f
no
reference
8.1
8.3, but not
5.1.k, 5.1.l
5.1.g, 50.1.a.ii
no reference
5.1.mm
1.12
6.1.e,f
no
reference
9.1
9.3, but not
6.1.l, k.1.m
6.1.g but not
6.1.dd, 50.1.a.ii no reference
3.4, 4.1.k,l
4.1.bb
1.12
5.1.e,f
no
reference
8.1
8.3, but not
5.1.k, 5.1.l
5.1.g, 50.1.a.ii
5.09, 6.01b
5.10,
E.4.01.e
1.08
21.09
12.06
15.01
no reference
21.11, 50.1.a.ii no reference
management
plan
7.01a
no reference
12.04
management
plan
6.01.d
55.1
91
3.02, 4.08
no
reference
6.01j
6.01.g,m,n,
r(iv)
none
4.02,4.03
9.01
9.01
9.01
9.01
3.02,4.08
no
reference
5.01h
5.01e,k,l,
6.01c
none
61.1
61.1
no
61.2
no
no
no
yes
no
4.02, 4.03
no
reference
61.1
61.1
no
61.2
no
no
no
yes
no
51.c
55.1
91
4.78.1
n/a
7.105,111
2.02,03
no specific
reference -see
section 13
8.00
requires road
building etc,
(ttsqr)
6
9.01
no
reference
4.78.1
n/a
82
82 (60
days)
1, 10.2
15.2
10.2
15.2
2.2, 2.3,
81
Recreational
Lease
Miscellaneous
lease Public
lands and
Forests
25, 26
11, 81
11, 26, 81
82
11 (30
days), 82
(60 days)
License of
Occupation
25, 26
81
26,81
82
82 (60
days)
2.2, 26, 81
7.105,111
10.2
2.35.b
15.2
Compensation
improvements
8.3
12.01
15.03, 4.78.1 (only
11.130,131 allows for
suspension)
, 132
Compensation
for no-fault
tenure
termination
8.1
no reference
permit is for
permit is for
3.01 1.02 improvements
improvements schedule
to land
no reference
to land
A
no reference schedule A
Consultation
before tenure
before other before
tenures are
portion of
granted in
tenure
area
no
reference
12.01
no
reference
25, 26
4.1g,o,p,
5.1.n
1.8, 5.1.k 5.1.f,o,s, 6.1.o
no
no reference reference no reference no reference
1.09, 1.10,
1.11, 1.14,
1.15, 1.19
4.1g,o,p
4.1.e,i,m,n,x,
4.1.dd.v
environmental
schedule
4.1.e,i,m,n,x,
4.1.cc.v
environmental
schedule
12.01
13.05,
4.78.1 (only
11.130,131 allows for
suspension)
, 132
Consultation
before
changes to
regulations/
fees
4.1.q
1.8
Energy
Production
Licence of
occupation
Ski Hill Master
Development
Agreement
4.1.e,i,m,n,x,
4.1.cc.iv,
environmental
schedule
No periodic
No
audits/
management
required
no reference
5.1.e,f
no
no reference no reference reference
no
no
no
2.04
6.11
6.11
no
no
reference no reference no reference reference
no reference
no reference
no reference
no reference
no reference
no reference
no reference
no reference
no reference
no reference
no reference
no reference
no reference
no reference
no reference
n/a
n/a
4.60.6.2
4.60.92
no reference
no reference
no reference
requires road
building etc,
(ttsqr)
1.06
2.02,.03,.07,.
16,.17.21,.25,
6.01, 9.02
4.06.b
1.12
1.12
1.16, 6.13
n/a
n/a
4.60.6.2,3
17.08
4.60.92
54
none
no
reference
atlrp
5, 69
n/a
atlrp
atlrp
no reference
82
82
82
6, 77
54
5 (as
stipulated in
contract)
no
reference
atlrp
9, 69
n/a
atlrp
atlrp
no reference
82
82
82
77
54
none
no
reference
atlrp
69
n/a
atlrp
atlrp
no reference
82
82
82
no specifc
reference
3, 77
6.08
Appendix 1
Region
Issuing
Institution
ON
Ministry of
Natural
Resources
YT
Lands
Division
Comprehensiveness
than specific
legislation
Land Lease Tenure
8, 21, 22a,
tdrp lease
tool kit
8
TLYA Lease
use B, a-f?,
3
B
YLA Lease
use B, a-f?,
3
B, 3
land use permit
CAN
License of
Occupation
Forest Service Marina Resort
Term Special
Use Permit
(priority)
(temporary)
Ski Area Term
Special Use
Permit
Special Use
Permit for
Outfitting and
Guiding
Special Use
Permit for
Outfitting and
Guiding
Bureau of special
Land
recreation
Management permit
2.01.a,
3.03, 3.05
2.01.a,
2.05, 3.07
unclear,
III.D, XIV.D
unclear,
III.D, XI.F.2
X (fact sheet 6) no reference
2.03 (with
consent)
2.01.a
start of
document
start of
document
start of
document,
II.M, III.D
start of
document
start of
document,
II.M, III.D
start of
document
13, 11
National Parks
Commercial Use
start of
Service
License
document
AK
upto 20 years
5 years,
renewable for
up to 60
5 years,
renewable for
up to 60
13
3.1(NPCR)
18.1 (NPCR)
I.D (30
years)
Lease
14, 16
4
11c
no reference
3
no reference
14
7
7
24
24
24
no reference
2
no reference
45
no
22, 40
40
7
7
24
24
24
no reference
2
no reference
49
no
22, 44
44
no
reference
no
reference
none
none
n/a
fact sheet 6
fact sheet 6
21.2
21.8
no (fact sheet
6)
no (fact
sheet 6)
no (fact sheet
6)
no
application through
public solicitation or
request for
start of
proposals
document
7.02
12.01
no
no
application through
public solicitation or
request for
start of
proposals
document
7.02
12.01
no
start of
document,
3.04
3.03
n/a
Master
Development Plan
may be required
(start of document),
XIII.L
XIV.G (not
always
required)
XI
no
I.E,I.F, IV.B
I.E,I.F, IV.B
I.E, I.F
(cannot
materially
effect)
3.3(NPCR) 3.3(NPCR)
no
reference
9.01
no
reference
9.01
X (not
X (not
renewable renewable) VI.B, VII.B
5 years
I.D (6
months
prior)
I.D (6
months
prior)
9.01
9.01
VIII
V.A
no reference no reference
VII.C
Master
Development Plan
(start of document)
VI, VI.A,
VI.B
XI.E
X.A
no
I.E, I.F
(cannot
materially
effect)
II.E
n/a
no reference
IV.A
III.J
VI.G
no
III.B, I.G
I.G
I.H.2
II.E
n/a
no reference
IV.A
III.J
VI.G
no
III.B, I.G
I.G
VII.B, C
VII.A
I.H.2
I.D (not
I.D (not
1 year or less renewable) renewable)
1
as a separate
agreement no reference no reference
11
I.D, IX.A
Concession
2.a,
1 (they could
Permit
2.a
Add1.B.III.A.1
be 10 yrs)
Department of
top of
Natural
top of
document (5
6, ss3
years)
Resources Land Use Permit document, 6
Commercial
1, (short term
Recreation
seasonal use
Permit
for up to 5
application
7
2,3
years)
Exclusiveness
tenure
tenure
11
I.D
start of
document,
2 years (start
(A.36.CFR.5.3) of document)
Option to
purchase land
18a
I.D, IX.A (6
months
prior)
2932.42 (1
day- 10
years)
Ownership of
(including:
improvements
fees (*=
consultation with
remains with
security
First Nations,
Leesee
deposit)
Registration Fees,
studies etc.)
18a
Parks Canada
Lease
USA
X (fact
sheet 6)
Duration
Transferability
Sublicense No
takeback
applied for
with consent with
of term
years
transfer/
consent
sublicense
no
2932.51
4, 2932.54
4
n/a
16, a
5
d
no reference
no
b,8,13
b
B.3
B.3
A.4, B.3
A.4, B.3
n/a
start of document
B.9.b
B.9.b
n/a
no
B.2
B.2
add1.8.a
add1.8.a
9
1.3.d
no
reference
1.4.b
5.a.1
no reference
8.b.2
no
2.b
2.b
ss 19
ss 19
16
16
n/a
ss19
ss1a,b
ss17*
ss15
no
3,4,13,14
13,14
23
23
24
24
n/a
no reference
28a,b
no reference
11
no
14, 19-21
20
B.14
B.14
6
5,6
no
no reference
2.a
25*
21.a, 22, 90
no
10.a,b, 15
10.a,b, 15
Appendix 1
No disposal of No
termination
portion of
due to
financial
legislation
arrears
Land Lease Tenure
TLYA Lease
YLA Lease
land use permit
Lease
License of
Occupation
Marina Resort
Term Special
Use Permit
Ski Area Term
Special Use
Permit
Special Use
Permit for
Outfitting and
Guiding
Special Use
Permit for
Outfitting and
Guiding
special
recreation
permit
no reference 11.1, 16.1
23
23
no
3.05
I.G.2
I.H.2
II.N
no
no reference
8.a.1
Land Use Permit no reference
Commercial
Recreation
Permit
no reference
application
Lease
5, 52
Security
No termination
due to public
interest/ no
cause
14.01,
14.02
14.01,
14.02
V.G.3, V.H
VI.D.3.d
IV.D.3.d
IV.D.3.d
1
A.5, B.7
8.a.2-3,
1.7
Length of
notice by
government
before
termination
greater than
3 mo.
Government
cannot alter
contract fees
within term
Use
restrictions
Do not
No
cannot
maintain
required
change
external
Protection
restrictions
licences
requirements
on contract
and/or
within term
insurance
16
22b
10.1 (30
days for fire
or damage)
4
no
reference
9
10
tdrp tool kit
5, 48
no reference
no
reference
no reference
no
reference
9, 10, 11, 14
15-20, 25-30
none
no reference
no
reference
no reference
no
reference
5, 52
no
no reference reference no reference no reference
Commercial Use
no reference
License
Concession
Permit
5, 48
No
termination
14.01, 14.02
14.01, 14.02
III.A, IX.A
I.D, III.A,
VIII.A
VI.A.1,2,
VI.B
VI.A.1,2,
VI.B
1
A.5, B.7
8.a.2
none
none
no
reference
14.01 (30
days + )
14.01 (30
days + )
IX.A, XIV.O
IX.B,
VIII.A
VIII.B,
VIII.C (6
mo for
public use)
VI.A.5
VI.A.5
1
A.5, B.7
8.a.1
18
18
none
28
17, 22, 29
22
no
reference
no
reference
no reference
no
no
no
no
no reference
I.G.1
I.H.1, II.D
(if in favour
of permit
holder),
no reference
XI.J
no reference
no reference
1 (length of
notice not
stipulated 2932.31 (d.2)
no
reference
no
reference
no reference
no reference
tdrp tool
kit
Consultation
before
changes to
regulations/
fees
4.1 (for
change to
fees)
Consultation
before tenure
before other before
tenures are
portion of
granted in
tenure
area
Compensation
for no-fault
tenure
termination
Compensation
improvements
no
no reference
22b (for
flooding)
14b,c for
improvements
no reference
42
no
no reference
no reference
no reference
no reference
46
no
no reference
no reference
no reference
no reference
no
no reference
no reference
no reference
no reference
9.10,11,14
15-20, 25-30
none
no reference
6 (review
no
every five
reference
years)
6 (review
no
every five
reference
years)
21.7, 21.8
7.2-7.10, 7.12,
7.15-17, 8.1,
9.1, .2, .5,
10.5, .6, 11.4,
.11, .12, 12.1,
.4, 14, 15.2,
16, 17, 18, 19,
none
no
reference
3.4, .5, 4.5,
21.6, 21.9
4
2.06
2.05, 3.01.e,
3.04, 5.01,
5.02.a,b, 5.03,
13.01.f
As agreed
upon in
contract
2.01.b,
11.01.a
7.01.a
6.01.b
n/a
15.4
15.4
15.4
15.4
15.4
15.4
2.07
2.04, 3.01.e,
3.06,
5.01,02,03,04
12.02, 13.01.f
As agreed
upon in
contract,
7.01.b
2.01.b,
11.01.a
7.01.a,
16.01.a
6.01.b,
16.01.b,c,e
n/a
15.4
15.4
15.4
15.4
15.4
15.4
II.B, start of
document
IV.E, XII.C, .E,
XIII.A, .B, .E- III.A, schedule
c
.I, .L
IV.H
III.B
8.1a
no
X.C (if
termination is
due to public
no reference
intetrest)
no reference
no reference
III.B, IV.F,
VI.B.5, ,
no
XI.B
VIII.C (if
termination is
due to public
no reference
intetrest)
no reference
no reference
III.C, V.I
II.A
XI.I, XI.J
III.A, schedule
c
V.F
I.G, II.B,C,
II.E, III.C,
I.I, II.D
II.L, II.O, III.F,
III.F.1, III.G,
V.A, V.C-H
none
III.I
II.A-C, IV.C
I.G, IV.F
no reference
I.G
no
reference
no reference
VI.F
III.B
no reference
I.E
I.I, II.D
II.L, II.O, III.F,
III.F.1, III.G,
V.A, V.C-H
none
III.I
II.A-C, IV.C
I.G, IV.F
no reference
I.G
no
reference
no reference
VI.F
III.B
no reference
no
reference
15 (unclear)
7, 15, 16
none
c
16
2932.55
no reference
b
no
reference
1
no reference
no reference
no reference
B.15
none
start of
document,
B.5, B.10
B.7
no
no
reference no reference no reference reference
no reference
B.7
no reference
no reference
1.3.e, 1.4.a,
1.B.III.A.9
none
6, 1.D.I-II
7.b.1, 7.c.2,
1.4.b, II.B.2,
II.B.III.A.5
2.b, 1.3.c,
1.A.I.6,
1.B.III.E.1
1.5.a.3
no
reference
no reference
8.b.1
8.b.1
8.b.1
15
end of
document
no
no reference
no reference
no reference
no reference
13
end of
document
no
no reference
no reference
no reference
no reference
I.E
no
reference
5.a.1 (not
mentioned
8.a.3 (15- under the fees
no
30days)
section)
reference
ss 16
(insurance
end of
no
reference requirements) document
no
reference
No periodic
No
audits/
management
required
29
2.b (in year 6
none
21.a
21.a
none
21.a
of lease)
30
LEGEND: numbers in cells refer to the specific provision which was referenced for the property
rights characteristics sub-theme in the corresponding column. Regular type style refers to the
contract referenced in the corresponding row, bold type style refers to the legislative act
which governs the industry in the corresponsing row, and italic type style refers to
secondary sources. The secondary sources used are listed on the left and in Appendix 6.
no reference
(likely not)
2.e
5c, ss4 (very
strict
guidelines)
only
temporary
portable
camps 3a, 3b
as outlined in
development
plan
fact sheet 6=
ttsqr=
ckf=
lwbc=
lwbc-lup=
5a,b, 7-11,
ss5-ss7
none
ss16
ss2, ss13,
ss18a
4-6,8-10,
12,15,16
none
25?
29
no refernce
4, 22, 26
none
24
4, 26.c
2.a, 13
30
no reference
n/a
http://www.emr.gov.yk.ca/lands/info/fact_sheets/fact_sheet_six_landusepermits.pdf
pup fees=
timber tenure system quick reference, Cortex Consulting 2001
Q&A=
Comparison of Key features document
ACD=
http://www.lwbc.bc.ca/01lwbc/leg/docs/fees-land.pdf
ATRLP=
LWBC Land Use Policy: Commercial Recreation (or applicable LUP)
NPCR=
@ http://www.lwbc.bc.ca/01lwbc/policies/policy/land/com_rec.pdf
11.1, 11.2.c
11.1, 11.2.c
11.1, 11.2.c
(compensation (compensation (compensation
for
for
for
improvements improvements improvements
n/a
only)
only)
only)
http://wlapwww.gov.bc.ca/bcparks/info/pup_fees.pdf
http://wlapwww.gov.bc.ca/bcparks/info/pup_fees_q&a.pdf
http://www3.gov.ab.ca/srd/land/docs/LS1_application.doc
http://www.alberta-canada.com/td/files/pdf/atrl.pdf
http://laws.justice.gc.ca/en/N-14.01/SOR-92-25/text.html
Appendix 2
Descriptive Analysis of Tenures
Comprehensiveness
Dispositions within LWBC
All LWBC contracts, with the exception of the Ski Hill Master Development
Agreement (MDA) limit the activities allowed to those negotiated in the management
plan. Thus the extent of the permitted activities is unique to each contract. The tenure
holder can offer as many products as they would like under their tenure as long as
they are agreed upon in the management plan. If the tenure holder wishes to add
activities to their management plan they can apply for an amendment to do so. LWBC
contracts also include provisions that prohibit extractive uses of the land such as
logging.
The MDA does not specifically state which activities are permitted, except to state
that the developer may conduct, subject to prior rights, recreation activities on the
land. These activities must be spelled out in the agreement.
Other dispositions in BC outside of LWBC
The Ministry of Water, Land and Air Protection (MWLAP) park use permits (PUPs)
limit land use to those activities described in the management plan. The guide
outfitters certificate allows guided hunting over a specified area. The guide outfitters
licence specifies area, species and quotas. The MFR forest licence limits use of the
land to timber extraction and the construction of improvements which are required in
the process of extraction. The tree farm licence provides the licensee with more
control through a provision that grants management rights over the land. Control is
not absolute however, as the licensee must consider other uses in the management
plan.
CR dispositions outside of BC
Land use in Alberta is limited to those activities outlined in the management plan.
However, the Public Lands Act includes a provision that allows the tenure holder to
add additional activities to the management plan with the government’s consent.
The Ontario lease and the Yukon lease and land use permit (LUP) are limited to the
uses outlined in the contract. CR contracts administered in the Yukon also explicitly
restrict the tenure holder from undertaking any extractive activities.
The Parks Canada lease and licence of occupation also limit activities to those
outlined in the contract. The agreements do not include rights to mines and minerals.
Similar to the Alberta lease, additional activities can be added to the lease through a
written proposal to the government, which may be accepted at the government’s
discretion.
CR dispositions in the US
Each USDA Forest Service special use permit (SUP) outlines the permitted activities
at the beginning of the document. The ski hill and marina development SUPs permit
those activities required to build and maintain an inclusive resort. All SUPs issued by
48
the Forest Service include provisions prohibiting the use of vegetation and rights to
water. The BLM special recreation permit (SRP) requires the permit holder to list all
proposed activities and limits resource use to the those activities listed. Use of timber
by a BLM SRP permit holder is prohibited.
The commercial use licence (CUL) and concession permit (CP) administered by the
NPS in Alaska limits permitted activities to those agreed upon and referred to in the
contract. Alaska’s Department of Natural Resources (DNR) land use permit (LUP)
and commercial recreation permit (CRP) define those activities permitted on the land
and include provisions prohibiting the use of live timber and the improvements for
activities outside of those outlined in the contract. The DNR lease requires the lessee
to submit a development plan to the government outlining the proposed use of the
land. Only those uses approved by the lessor may be undertaken. Entitlement to the
land under the lease excludes rights to extractive resources.
Duration and Renewability
Of the three types of commercial recreation tenures in BC the lease provides the
greatest duration. Leases can be granted for up to 30 years, while licences are initially
granted for ten years, however after mid-term renewal can be renewed for 30 yrs. CR
TUPs are granted for two years and are renewable at the end of the term for an
additional 2 years if LWBC accepts the proposed management plan. Only the CR
leases, CR licences, and the quarrying lease include a provision in the contract which
stipulates that the tenure is renewable. The renewal clause states that renewal will
occur only if LWBC considers it appropriate. Unlike all other leases and licences
administered by LWBC the grazing lease states that the LWBC shall not be obliged to
extend the term or issue a new lease upon the expiration of the lease. While tenure
replacement information is not provided in most LWBC contracts it can be found in
the corresponding land use policy. LWBC allows renewal requests to be made at the
midterm of the existing contract, however renewal will be granted at the LWBC’s sole
discretion.
The duration of the MDA is 60 years. A replacement request can be made at the midterm of the contract, and barring no event of default outstanding the government will
offer the lessee a replacement contract.
PUPs are usually granted for 1 year, however the government is looking at increasing
the length of term to 5 years. The permit holder must request a renewal of the permit
30 days prior to expiration, which may be granted at the sole discretion of the
government. The guide outfitters certificate is issued for up to 10 years and is
renewable after 5 years for a maximum of 10 more years. Guide outfitters licences are
issued for one year.
FLs and TFLs are replaceable. A TFL is granted for a 25-year term and is replaceable
every five years, while the term of a FL is no more than 20 years and is also
replaceable every 5 years. If the licensee has satisfactorily performed the existing
49
contract up to the time of the offer the government must tender a replacement
contract.
An Alberta lease is granted for 10 years, while the duration of a licence varies
depending on the purpose of the licence. Each of these dispositions is renewable at the
government’s discretion. An Ontario lease is granted for up to 20 years and the
decision to issue a new lease is within the government's absolute discretion; the lessee
has no right to, nor reasonable expectation for the granting of a new lease based on
prior use of the premises. The two forms of Yukon land leases are granted for 5 years
but are renewable for up to 60 years. Renewal is subject to the lessee having
performed and observed all of the covenants and conditions. The Yukon LUP contract
makes no mention of renewability, however long term use is granted.
A Canada parks lease can be granted for a maximum of 42 years, however renewal,
on such terms and conditions as the government thinks fit, must be for terms that do
not exceed 21 years in the aggregate, where the initial term of the lease and the terms
of all renewals do not exceed 49 years. Some leases also include a provision for
perpetual renewal. A licence can also be granted for up to 42 years, however the
contract and regulations make no reference to the renewability.
The four types of land use permit issued by the US Parks service differ in length of
term and renewability. The Marina SUP is issued for 30 years but is not renewable.
By contrast, the holder of a ski hill SUP may apply for renewal six months prior to
expiration. The priority SUP for guiding and outfitting can be issued for 5 years and is
renewable, while the temporary SUP has a term of less the 1 year and is not
renewable. The BLM SRP can be issued for anywhere from 1 day to 10 years and is
renewable at the end of the term at the government’s discretion.
The Alaska NPS CUL is granted for 2 years and may not be renewed. The NPS CP
can be granted for up to 10 years and is renewable at the government’s discretion.
Alaska’s DNR LUP is granted for 5 years and may be renewed if the conditions of the
permit have been met and if the activity does not conflicts with other land uses
planned by the DNR. The DNR CRP is issued for 1 year and no preference right for
long term use or conveyance of the land is granted or implied by the issuance a
permit. The DNR lease is granted for 10 years and no later than one year prior to the
lease expiration the lessee may apply for renewal.
Transferability
According to CR contracts, BC CR tenure holders (regardless of tenure type) can
transfer their permit with consent, which “will not be unreasonable withheld”.
However, the CR Land Use Policy contradicts the temporary use permit contracts by
not allowing permits to be transferred or sublicenced. In comparison transferability
and sublicencing of all other land use contracts administered by the LWBC (with the
exception of communication tenures and MDAs) may be withheld at the minister’s
sole discretion.
50
Transferability of BC PUPs are under similar constraints as LWBC tenures. The guide
outfitters certificate is transferable with the government’s permit. The licence contract
states that it is non-transferrable, however this is contrasted in the Wildlife Act which
permits transfer with the government’s permission. Regardless of the type, BC
forestry licences are transferable with few licensee requirements.
The transferability of Ontario’s land lease is similar to BC’s recreation tenures and
cannot be unreasonably denied by the government. All of Alberta’s CR tenures and
the Yukon’s two types of leases require consent from the government in order to be
transferred. The Yukon LUP is not transferable. The Parks Canada lease is
transferable however the government may withhold consent if the land was in an
undeveloped state prior to the issuance of this lease, and the lessee has not fulfilled
any contractual or regulatory obligations to develop the Land. Parks Canada’s licence
of occupation is non-transferable.
With few exceptions CR tenures in the US and Alaska cannot be transferred. The
USDA Forest Service ski area SUP, BLM RP, and the Alaska NPS CP and DNR lease
can be transferred, however consent is required but not guaranteed
Rights to Economic Benefits
Contracts and corresponding legislation, in general, do not explicitly state the amount
of charges associated with a tenure. This information can often be found in the land
use policy. Almost all contracts include an application fee, however some contracts
are awarded through a competitive process after a government request for proposals
and in these instances may not require an application fee. The degree to which
comprehensive studies and consultation with other stakeholder groups is required
during the application process also varies greatly. In general, the more comprehensive
a tenure and the greater the improvements permitted, the more in depth the application
process.
All commercial uses of public lands investigated have user fees. Different methods of
fee calculation are used. Many of the contracts use a flat fee that is paid annually.
Others charge a percentage (1) based on the value of the land, or (2) based on
occupancy or client use. Many of the LWBC contracts include provisions for both
types of user fees, where the actually fee structure is determined on a contract to
contract basis.
With the exception of Ontario leases and Yukon leases, all agreements require a
security deposit. Tenures issued by the USDA Forest Service only require security
deposits in some instances. Very few land use contracts include options to purchase
the land. BC’s Land Act does include a provision that allows the minister to sell the
land to a lessee if the minister considers the sale of the land advisable. The
agricultural lease with an option to purchase contains a clause to this effect and BC’s
MDA contains provisions permitting the sale of lands at the base of the ski hill to the
51
developer. The miscellaneous lease used in Alberta allows for the sale of land in the
case of homesteads, and the Ontario lease includes a provision which allows for the
sale of the land to the lessee, however this needs to take place as a separate
agreement.
Greater variance in regards to ownership over improvements exists and is described in
greater detail below.
Leases and licences administered by LWBC allow the tenure holder to remove all
improvements from the land upon the termination of the contract if the tenure holder
is not in default of the agreement. TUPs require the permit holder to remove all
temporary improvements from the land at the end of each season and upon the
expiration of the permit.
On the expiration or earlier termination of the MDA, the developer must peaceably
quit, surrender, yield up and deliver the controlled recreation area and the
improvements, and those access routes in the controlled recreation area, to the
province, in a safe, clean, sanitary and orderly condition and in good repair.
Improvements and access routes in the controlled recreation area include the
moveable recreation improvements. Improvements made at the base of the mountain
are made on areas that will be sold to the developer.
The MWLAP commercial LUP allows the permit holder to remove all improvements
within 30 days of the expiration of the permit, unless otherwise advised in writing by
the province. The commercial recreation PUP does not allow improvements to be
made to the land. The guide outfitters certificate and licence nor the Wildlife Act refer
to improvements on the land.
Upon the expiration of a FL or TFL all cutting permits will immediately terminate,
and title to all improvements, including roads and bridges, constructed by the licensee
under the authority of the licence will vest in the government, without right of
compensation to the licensee. The licensee may not take away any improvements or
remove any timber unless authorized to do so. If a road permit expires or is
surrendered, cancelled or otherwise terminated, all improvements, including roads and
bridges, constructed under the authority of the road permit will vest in the
government, without right of compensation to the licensee, unless otherwise specified
in the road permit.
CR dipsositions outside of BC
The leases and licences in Alberta allow the grantee to, within a period of 30 days
after the lease or licence has been cancelled or has expired, remove from the land all
chattels and buildings, provided that the Lessee is not indebted to the government.
After 30 days the lessee may not remove or dismantle any fence or building without
the lessor's consent.
52
The Ontario lease permits the lessee to remove improvements from the premises
provided that the lessee notifies the lessor of the lessee's desire to do so within 60
days after the expiration of the lease. After giving notice the Lessee has 12 months
from the expiration of the lease to remove, at the expense of the lessee, any or all
improvements. If the lessee does not inform the lessor of the desire to remove the
improvements within 60 days all improvements become the automatic property of the
crown.
Yukon land leases require the lessee to remove any improvements from the land
within 90 days. Any improvements that are not removed may be appraised and
auctioned off by the government. After expenses and administrative costs are paid the
remaining proceeds from the sale must be paid to the lessee. The Yukon LUP only
allows temporary improvements to be made to the land, which must be removed upon
the expiration of the permit.
Licences and leases administered by Parks Canada require the contract holder to
remove all improvements from the land within 30 days of the expiration of the
contract. If the contract holder has not removed improvements by this time the
government may do so at the contract holders expense.
The USDA Department of Forests, upon termination or revocation of a marina resort,
ski area, or outfitting guiding SUP, can require the holder to sell or remove all
structures and improvements, except those owned by the United States, within a
reasonable time prescribed by the authorized officer. If a marina resort or ski area
SUP is revoked for reasons of public interest the United States can purchase the
improvements, remove them, or have the permit holder to remove them at the permit
holders expense. The BLM special recreation permit makes no reference to the
ownership of improvements once the contract has terminated.
The NPS CP in Alaska requires the permit holder to remove all improvements from
the land within 30 days of contract termination. Any improvements not removed by
the permit holder will be removed by the government at the permit holder’s expense.
The CUL issued by the NPS does not allow improvements.
Alaska’s DNR LUP and CRP allow the construction of temporary camps. All
components of these camps, personal property (i.e. camp gear, fuel containers, etc.),
hazardous substances and solid waste and debris must be removed from state owned
land on or before the end of each seasonally authorized term of use or on or before
permit termination. The lease agreement, unless otherwise agreed to in writing by the
commissioner, requires the lessee to remove from a former leasehold all personal
property, including above-ground tanks, transportable buildings, equipment,
machinery, tools, and other goods, not belonging to the state, within 30 days after
termination of the lease and all buildings and fixtures not belonging to the state,
within 60 days after termination of the lease. If the lessee does not remove the
improvements within the required time the improvements become property of the
state and any costs associated with their disposal will be cost to the lessee.
53
Exclusiveness
Extensive licences and TUPs in BC do not grant exclusive use and occupancy of the
Land. In addition the documents for both these forms of tenure state that any rights
granted are subject to existing rights granted under other statutes and that LWBC may
make other dispositions over the land without compensation. Unique to CR tenures
(all types) and the moorage licence of occupation is a provisions that protects public
access over the land. This provision is not in any of the other leases or licences
administered by LWBC.
LWBC’s land use policy for CR includes a lengthy section (appendix 7) outlining the
procedure for granting new dispositions over the land. While the current tenure
holders must be consulted and given a copy of the applicants management plan, the
government can grant the new disposition without compensation and without the
consent of current tenure holders even if it is determined that compatibility is low, as
long as any issues can be resolved to LWBC’s satisfaction.
Leases include the following provision: “We will provide you with quiet enjoyment
of the Land”. This grants the lessee the right to exclusivity, with the exception of
existing rights granted under other statutes. Lessee’s are also given the right to
reasonably withhold consent for new dispositions. Though not supported in the
contract the CR land use policy grants intensive CR licences of occupation (primary
camps only) the same rights to exclusivity.
The MDA is unique in that the controlled recreation area, which is part of the master
development plan, is granted to the developer via a licence of occupation. Like other
licences the controlled recreation area is subject to prior rights. However because of
the controlled recreation area designation this licence offers a much greater degree of
exclusivity than other licences granted by the LWBC. While the government is able to
grant other dispositions over the land the lessee can stop the granting of dispositions
by withholding written consent. In addition the developer has the exclusive right to
make improvements, and control access routes and the recreation area. Subject to this
control the developer agrees to not unreasonably withhold permission for other users
to pass freely through the controlled recreation area where that person will not use the
improvements in the area. However, the developer may restrict routes and activities of
the user and out right refuse use to persons associated with an operation which is in
conflict or competition with the operations of the developer.
The commercial land use PUP retains the right of the province to grant further rights
in respect of the Park and Permit Area, provided that such rights do not unreasonably
impede, obstruct or compete with the rights of the permit holder under the permit. The
commercial recreation PUP does not give the permit holder exclusive use and
occupancy of the permit area. In addition, the permit holder must not interfere with
public access in or to the permit area or interfere with the activities or operations of
any other person in the permit area. Finally, the province retains the right to grant to
any person the right to enter upon and use the permit area, or any part of it, for any
54
purpose. The guide outfitters certificate grants exclusive hunting rights over a given
area.
FLs in BC require the licensee to permit all authorized user or occupiers to access the
land, however they are given exclusive right to an assigned amount of the annual
allowable cut (AAC). TFLs grant the licensee exclusive right to harvest timber from
assigned lands. TFL licence holders must allow authorized users to access the area
and must include provisions in the management plan for the integration of the
licensee’s activities with the use of the licence area for purposes other than timber
production.
Alberta leases and licences do not have any provisions with respect to exclusivity of
tenure, however the Public Lands Act affords the minister the authority to grant more
than one disposition over the same land. The Ontario lease and the Public Lands Act
make no reference to exclusiveness of land use nor to the right of the government to
grant additional dispositions over the land. Leases in the Yukon guarantee the right to
vacant possession of the land with the exception of public works projects. However
the LUP does not grant exclusive use nor tenure over the land.
Parks Canada’s licence is similar to BC’s commercial recreation licence in the terms
of exclusivity. The government reserves the right to grant other dispositions over the
land and the licensee must allow the public to pass freely over the land. The lease
makes no reference to exclusiveness, however an employee of Parks Canada stated
that the term ‘lease’ legally grants the lessee exclusive use of the land.
Of the three USDA Forest Service SUPs included in this study all are non-exclusive
and include provisions to protect public access to the tenure area. However, the degree
of protection from other use varied from permit to permit. The marina SUP provides
no restrictions with respect to non-exclusive use, while the ski area SUP states that
additional dispositions must not materially affect the permit holder. The guide and
outfitters SUP allows others to use the permit area in any way that is not inconsistent
with the holder's rights and privileges under the permit, after consultation with all
parties involved. The BLM SRP is also non-exclusive, and permit holders must not
block land access to the public. When new applications are received all authorized
users of the land are notified by the BLM.
Neither the NPS CP nor the CUL in Alaska allow for exclusive use. The CUL does
not grant the licensee preferential or exclusive right to conduct business in any NPS
administered area. The tenure holder’s authority to provide visitor services under the
terms of the CP contract is non-exclusive.
Alaska’s DNR LUP and CRP forbid the permit holder from restricting the ability of
any users to use or access state land or public water in any manner. In addition, the
permits are subject to all existing rights and the government reserves the right to grant
additional authorizations to third parties for compatible uses on or adjacent to the land
covered under the authorization. Authorized concurrent users of state land; their
agents, employees, contractors, subcontractors and licensees, shall not interfere with
55
the operation or maintenance activities of authorized users. Alaska’s lease is subject to
reasonable concurrent uses but only provides protection for public use of navigable
water bodies.
Termination
Every tenure includes provisions for termination of the contract due to noncompliance (including financial arrears). Variation occurs surrounding the
government’s ability to terminate the contract because of ‘public interest’ or for nofault reasons. Within BC, LWBC leases and rights of way do not include provisions to
terminate the contract due to public interests, while licences and TUPs do. The MDA
only includes termination provisions due to non-compliance and also includes an
extensive list of government actions that could be taken before termination of the
agreement would occur.
The Parks BC commercial land use PUP, the Forest Act and Parks Canada’s lease and
licence only include provisions for termination due to non-compliance by the grantee.
Conversely, the commercial recreation PUP includes a provision for termination due
to public interest. The guide outfitters certificate and licence can only be terminated
for reasons of non-use or non-compliance.
CR leases and licences in Alberta allow the government to terminate the contract for
any reason, however compensation must be given for no-fault termination. The
Ontario lease only makes one reference to no-fault termination of the lease. Similar to
the LWBC leases, the Ontario lease includes a provision that permits the province to
flood the area and thereby terminate the contract without compensation. Neither of the
Yukon CR leases have provisions that allow for termination in the interest of the
public.
Each of the USDA Forest Service SUPs allows for termination due to public interest,
however the Outfitting and Guiding SUP does state that reasons must be ‘specific’
and ‘compelling’. Similarly, the NPS in Alaska allow for termination due to public
interest. Of the three types of tenure granted by the Alaska DNR only the commercial
recreation permit has a provision for termination in the public interest.
In Term Changes to Contact
There are three types of changes within the contract term that the comparative
analysis looked at. Governments right to take a portion of the tenure, alter contract
fees, and alter regulations. In many cases a contract would address all of these issues
in one provision.
The Land Act includes a provision that allows the government to resume up to 1/20th
of the land allocated to a tenure if it is deemed to be necessary for making roads,
56
canals, bridges or other public works. All of the licences and leases administered by
LWBC include provisions that allow the government to make changes to user fees,
the security deposit, and the amount and type of insurance required. Prior to February,
2005 all of the LWBC contracts included a general provision that prevented the
contract from being modified except by a subsequent agreement in writing between
the parties. CR contracts after February 2005 may include a provision which allows
LWBC to amend Management Plans (MP) during the term of the tenure under certain
conditions. Amendments are permitted if they address public safety concerns, landuse planning, lack of diligent use, carrying capacity and other similar issues. The
temporary use permits (sea kayaking and river use) already include these provisions.
None of the other contracts and policies administered by LWBC include this
provision.
The boundaries in a MDA can be changed, however both parties must agree to the
proposed changes. With some restrictions the province can change fees on the 10th
anniversary of the agreement. The agreement may not be modified except in writing
between the province and the developer.
Other dispositions in BC outside of the LWBC
The two types of PUPs issued for MWLAP do not include provisions for the taking of
a portion of the tenure or for changes to contract regulations, however it is important
to note that the contracts are currently only issued for one year, and are therefore too
short to make altering worthwhile. The government can, in its sole discretion, change
fees on the anniversary date of the agreement and alter the requirements of insurance
at any time. The guide outfitters certificate and licence may be amended for reasons of
non-compliance.
The FL includes a provision to alter the boundaries outlined in the contract if a court
of competent jurisdiction determines that activities or operations under or associated
with the licence will unjustifiably infringe on an aboriginal right and/or title, or treaty
right. The TFL allows the government to take lands/volumes of timber away from the
grantee for a number of reasons including: granting a wood lot licence, removing
timber that remains uncut or not removed by the grantee, and removing timber or
granting additional permits for a timber type not specified in the agreement. For these
reasons the government is permitted to remove 0.5% of the volume of the AAC each
year. For both licences the government can adjust the stumpage fees and the annual
rent.
The BC FL allows the government to make changes to the type of timber, terrain, and
the part of the timber area the grantee can access, during the contract term. The TFL
does not permit changes to the contract unless agreed to between the parties.
CR tenures outside of BC
In Alberta, regardless of the type of disposition, the government is able to withdraw
land from the contract at any time, in accordance with the Public Lands Act. The
miscellaneous land lease allows the government to make changes to fees every five
years. The other Alberta dispositions make no reference to changes in fee structure.
The government can only make changes to regulations at the renewal of a disposition.
57
Yukon land leases are subject to boundary changes as may be shown by survey to be
necessary. The leases make no reference to the governments ability to change fee
structures or regulations during the term of the lease. The Yukon LUP makes no
reference to the government’s ability to make changes to the terms of the contract.
Parks Canada may remove a portion of a licence or enter the land for the purpose of
administration of the park or for any other public purpose. The government is not able
to do this in the case of a lease, and in both cases is not able to alter the fees or
regulations of the contract within the contract term.
The marina resort and ski area SUPs administered by the USDA Forest Service allow
the government to alter the terms of the permit to reflect changing times and
conditions, and to incorporate land use allocation decisions made as a result of
revision to forest land and resource management plans. In addition, the authorized
officer, at his or her sole discretion, can amend the terms of the permit to remove
authorization to use any national forest lands not specifically covered in the master
development plan and/or not needed for the use and occupancy authorized by the
permit. The ski area SUP includes additional provisions, which allow the government
to make changes to the management plan that benefit the permit holder or are required
to protect threatened or endangered species.
The priority outfitting and guiding SUP includes a provision which allows for the
reduction in the authorized use if the holder has utilized less than 70 percent of the
assigned amount in each of three consecutive years, unless the non-use was approved.
As the temporary outfitting and guiding SUP is only granted for 1 year this provision
is not included. The temporary and priority SUPs allow the government, at its
discretion, to amend in whole or in part such actions as deemed necessary or desirable
to incorporate new terms that may be required by law, regulation or as a result of
other management decisions.
The BLM SRP makes no reference to changes to tenure regulations or taking of a
portion of the tenure, however the Federal Regulations for Permits for Recreation on
Public Lands allows the government to change fees at their discretion.
The Alaska division of the NPS reserves the right to terminate all or any portion of a
concession permit in order to protect area visitors, and protect, conserve and preserve
area resources. Neither the CP nor the CUL permit the government to change fees or
regulations during the term of the contract.
The LUP and CRP administered by the DNR in Alaska permit the authorized officer to
modify the stipulations of the contract or use additional stipulations as deemed
necessary. The permit holder will be advised before any such modifications or
additions are finalized. For the LUP the DNR may also require a reasonable increase
in insurance coverage, and will review this on an annual basis. The fees for the lease
issued by the DNR can be altered on the 5th anniversary of the contract. The lease may
only be modified if agreed by both parties in writing.
58
Use Restrictions
Use restrictions limit the way in which an asset may be used. In this study use
restrictions were measured by the degree to which improvements to the land are
allowed.
In the majority of cases improvements are allowed to the land, with specifics usually
outlined in the contract or a management plan. Allowed improvements range from
temporary to large scale superstructure improvements such as ski hills and resort
villages. For the most part temporary use permits allow only limited temporary
improvements. However, the commercial recreation PUP in BC and the CP in Alaska
do not allow any improvements. Licences and leases allow for more extensive
improvements. As the type of improvements are determined on a contract to contract
basis, an examination of contract templates and policies or acts does not give a very
accurate indication as to the degree of improvements allowed.
Management Stipulations
If an application includes use of hazardous materials or hazardous activities, an
approved Environmental Management Plan must be developed and becomes part of
the contract between the parties. All contracts include pick clauses that provide
protection for archaeological material on or under the land, and prevent the use of
toxic substances, movement of beach materials, and the destruction of the land. In
addition, all contracts include a provision requiring the restoration of the surface of
the land as nearly as may reasonably be possible to the same condition as it was on the
commencement date.
Wildlife guidelines are currently being developed, which will become part of LWBC
assessments for CR tenures.
Many of the LWBC leases, licences and the energy production right of way include a
pick clause that requires the grantee to build a fence over an area and in a time frame
requested by the government. With the exception of the MDA no other improvements
are required by LWBC contracts.
All of the LWBC contracts require the grantee to carry insurance. In addition many of
the dispositions, and all of the CR dispositions (with the exception of the sea kayaking
and river user TUPs and the river user licence) can require the grantee to carry
additional permits and licences.
The MDA requires the developer to include an environmental schedule, not under
take activities that lead to the destruction of the land, follow the Contaminated Site
Regulations of the Environmental Management Act, and minimize any adverse
environmental impact of the development. Improvements must be constructed in
phases in accordance with the resort master plan and the phasing schedule. The
agreement also requires the developer to insure all aspects of the development and
hold all permits, licences, consents and authorities issued by any government agencies
59
or regulatory authorities that are necessary or of advantage in connection with its
business and operations.
The commercial land use occupancy and commercial recreation PUPs require the
permit holder to remove from the permit area and the park all garbage, debris and
effluent, not remove, destroy, damage, disturb or exploit any natural resource any
archaeological or cultural artefact found in or on the permit area, and not cause or
permit wilful or voluntary waste, spoil, damage or destruction within the permit area.
Neither of these permits require improvements, however both require the permit holder
to obtain insurance. The guide outfitters certificate and permit are bound by the
Wildlife Act and must comply with vegetation and endangered species regulations.
Up until Jan. 31, 2004 all forest licences and tree farm licences had to adhere to the
forest practices code, which outlines environmental regulations pertaining to the
logging industry. Any activities already approved under the existing forest practices
code may continue and are governed by the Forest Practices Code of British
Columbia Act and its regulations, however after a transition period, which ends in
December of 2005, a licensee may only submit an operational plan under the new
Forest and Range Practices Act.
Both licences include provisions which allow the government to make changes to the
contract and cut area due to aboriginal land claims. The FL and TFL require the
licensee to build roads, bridges and other infrastructure. Some older tree farm licences
require the licensee to build a processing plant for the extracted timber. A cutting
permit is required to cut timber under both licences.
CR contracts outside of BC
All CR contracts administered by the Alberta government prohibit the grantee from:
allowing the accumulation of waste material, debris, refuse or garbage on public land;
permitting any condition which may cause danger by fire to life, property or forest
growth; engaging in any act that may injuriously affect watershed capacity; causing
injury to the bed or shore of any river, stream, watercourse, lake or other body of
water or land in the vicinity of that public land; or the creation of any condition on
public land which is likely to result in soil erosion. None of the Alberta contracts
explicitly require improvements to be made to the land, however the miscellaneous
lease may include stipulations in specific contracts.
The Ontario land lease requires the lessee to maintain the land in a clean, sanitary and
fire-safe condition and dispose of all garbage in an approved manner and comply with
all municipal, regional, provincial and federal government environmental acts and
regulations. The Ontario lease includes pick clauses that require the lessee to build
improvements as outlined and following a timeline in an improvement schedule. A
pick clause is also included, which requires the lessee to acquire insurance.
The two leases from the Yukon prohibit the lessee from causing forest fires and
building structures below the high water mark. Any detrimental environmental
changes that occur as a result of the lessee’s actions must be repaired. Each lease also
includes extensive regulations on the use and handling of fuels and hazardous
60
chemicals. No improvements are required nor are insurance or additional permits
mentioned in the contracts. The Yukon LUP includes detailed pick clauses for the
following environmental issues: fuel use and storage, explosives use, wildlife habitat,
vehicle travel times (to protect surface during thawing of permafrost), road and trail
building, forest fire protection, disposal of solid and liquid waste, disposal of chemical
and toxic waste, protection for water courses and fish habitat, and erosion control and
prevention. The land use permit does not require improvements or insurance.
The lease and licence issued by Parks Canada include the following environmental
regulations: proper disposal of waste on or in the land; preservation of archaeological
resources; compliance with applicable environmental law, or in accordance with
generally accepted environmental practices if there is no applicable environmental
law; compliance with an environmental assessment; and the use of contaminants in
strict compliance with applicable environmental law. Grantee’s must abide by
improvement construction as outlined in the contract. Improvement requirements are
outlined on a contract by contract basis. Insurance and the acquisition of permits
required under the Canada National Parks Act must be obtained by the grantee.
The USDA Forest Service marina resort and outfitting and guiding SUPs include the
following environmental regulations: proper disposal of waste; protection of the land
and environment from damage; fire suppression; strict adherence to regulations
surrounding the storage and use of hazardous materials; compliance with local, state
and federal environmental laws; water pollution; pesticide use; protection of
archaeological and paleontological resources; and habitat protection for threatened,
endangered and sensitive species. Contrarily, the ski area SUP only mentions the
protection of archaeological and paleontological resources, and habitat protections for
threatened, endangered, and sensitive species.
The marina resort and ski area SUPs both require the construction and maintenance of
improvements. The guide and outfitters SUP does not require any improvements. All
of the permits issued by the USDA Forest Service require the permit holder to have
insurance.
The BLM SRP requires the permit holder to prevent fires and water pollution, and
protect archaeological, historical and cultural values. Permit holders must carry
insurance.
None of the contracts in Alaska require improvements. The Alaska NPS CUL does
not include any specific environmental regulations, however it does require the
licensee to leave the licence area in substantially the same condition as it was prior to
the activities authorized by the licence. The concession permit requires protection of
archaeological resources, regulations surrounding the use of hazardous chemicals,
conduct of operations with a leave-no-trace ethic, and proper waste disposal. The
Alaska DNR land use and commercial recreation permits have very stringent
environmental regulations. These include not damaging vegetation, not disturbing the
soil or levelling the ground, fire prevention, regulations surrounding use and storage
of hazardous materials, restrictions on the operation of vehicles so as to protect
ground vegetation, the protection of archaeological and paleontological resources, and
61
proper waste and wastewater disposal. The DNR lease includes regulations
surrounding fire prevention, erosion prevention, hazardous material use and storage,
protection of the land, and compliance with existing and future environmental laws.
The CUL does require the licensee to carry insurance and external licences or permits
required by local and state governments. The DNR LUP and lease require the grantee
to acquire insurance, however the CRP does not.
Operational Controls
All of the LWBC applications require that a management plan is submitted with the
application. Management plans must be re-submitted if they are altered during the
term of the tenure. CR licences require additional submissions to allow LWBC to
monitor client days and audit books. Similar clauses exist in the CR TUPs, quarrying
licence and lease, and the golf lease. All of the LWBC contracts include a free field
clause which would allow an LWBC representative to enter the land to inspect the
improvements and land. The communications sites licence requires the licensee to
provide travel for the LWBC representative conducting the inspection.
The MDA requires the developer to submit financial information and allows the
government to audit the developer’s books and inspect the land and improvements.
Dispositions in BC outside of the LWBC
Both of the PUPs issued for MWLAP require the submission of a management plan
and allow the government to enter the land at any time for the purpose of inspection.
Guides and outfitters must submit guide reports at the end of each season. In addition,
wildlife officers may enter and inspect camps.
In addition to management plans forestry legislation requires further reporting by FLs
and TFLs. Both contracts require the licensee to submit additional reports annually at
the ministries request. The TFL lays out additional reporting requirements. Upon the
expiration of management plan the licensee must submit a timber supply analysis, and
once this is approved, a draft management plan.
The FL does not include a provision for the ministry to inspect the land or the
improvements, however the TFL does allow the ministry to inspect the land in
accordance with the Waste Assessment Manual, to determine the amount of
merchantable timber that was not removed by the licensee.
The Alberta Tourism Recreational Process requires all applicants to submit a detailed
information package outlining the applicants business plan, proposed improvements
and development of the land, and environmental and cultural considerations. The
recreational and miscellaneous leases, and the licence permit the government to enter
the land for the purpose of inspecting the land and the improvements.
The Yukon leases and the LUP permit the government to inspect the land and the
improvements. The Yukon lease requires a review of the management plan every five
62
years, while the LUP includes provisions that require campsite plans, final plans upon
expiration of the contract, reclamation plans, and remediation plans in the case of
hazardous substances spills.
Parks Canada’s lease and licence require submission of plans before any
improvements can be undertaken on the land and permits the government to inspect
the lands and improvements. The licence includes additional clauses that require the
keeping and submission of financial reports.
The USDA Forest Service marina resort SUP requires the permit holder to submit an
operation plan. The ski area SUP requires the permit holder to submit a master
development plan, a site development schedule, which lists the improvements to be
completed and completion dates, and an annual operating plan. The guide and
outfitters SUP requires an annual or five-year operating plan, itineraries for each trip,
and financial reports. All of the USDA TUPs permit the government to inspect lands
and improvements as well as audit the permit holders financial information.
The BLM SRP require an operation plan and permits the BLM to examine any books,
documents, papers, or records pertaining to the SRP.
The Alaska NPS CUL requires an extensive list of reports to be submitted to the
government. These include gross receipt reports, guiding activity summary reports,
and a big game commercial services board transporter activity report. The CP requires
an annual financial report, operational reports, environmental plans, and an annual
activity report.
The DNR LUP requires the permit holder to supply a day use activity report, an
annual report, and a completion report upon the expiration of the permit. The DNR
CRP requires a day use activities report and the DNR lease requires a development
plan.
The NPS CP allows the government to conduct annual operations and contract
compliance evaluations, audit the business records of the permit holders, and inspect
business operations. All of the DNR contracts allow the government to conduct land
inspections. In addition the DNR lease permits the government to audit the lessee’s
business records.
Consultation
All of the LWBC contracts include a general provision that requires the grantee and
the government to act in a sensible manner, which considers the other party, when
acting on provisions in the contract. However where the agreement states that the
grantee or LWBC can act on their sole discretion neither party is required to consult,
or take into consideration the other parties concerns. In addition to this provision all
CR contracts issued after February 2005, will include a provision that allows the
government to alter the management plan (this could include taking a portion of the
tenure away from the tenure holder). Included in this provision is a requirement for
63
the government to notify the grantee and provide 60 days (this is a standard time
period and may be altered at LWBC’s discretion) for the grantee to inform the
government of any concerns or provide a counter proposal. Once the LWBC has
considered the grantee’s concerns they will make a determination and send out a final
notice to the grantee outlining their decision. At this stage, the grantee has 60 days to
submit a formal objection to LWBC if they do not agree with the final notice. The
decision will take effect 12 months after notice, unless the matter is deemed to be
urgent, in which case the time frame will be determined on a case by case basis.
Leases and right of ways administered by LWBC require the LWBC to obtain consent
from the grantee, which may be reasonably withheld, prior to making any additional
dispositions over the land. In the case of CR licences and TUPs, reference to the
consultation process before additional dispositions are granted is made in the CR land
use policy. The policy requires a disposition applicant to send a CR Operator Input
Form (CROIF) and a copy of the management plan to the operators in the application
area via registered mail. The current operator will then have 30 days to fill out the
CROIF, which will be taken into consideration when LWBC makes their decision. All
other licences and TUPs administered by LWBC do not refer to a consultation process
before additional dispositions are granted.
The only reference to consultation as a result of tenure termination is in reference to
termination due to financial arrears or non-compliance. Under these circumstances
LWBC must provide the tenure holder with 60 days notice.
The MDA constitutes the entire agreement between the province and the developer
and may not be modified except as provided in the agreement or by subsequent
modification or agreement in writing between the province and the developer. The
province can only make additional dispositions over the land comprising of the
controlled recreation if they receive prior written consent from the developer. The
boundaries of the controlled recreation area can be changed upon the agreement of
both parties. Consultation provisions are similar to other LWBC dispositions if the
contract is cancelled due to financial arrears or non-compliance. However, the MDA
provides additional government responses to non-compliance by the developer,
leaving termination as a last and unlikely resort.
Dispositions in BC outside of LWBC
The BC PUP and Park Act make no reference to consultation before changes to
contract provisions, additional dispositions, taking of a portion of the park use permit
area, or termination of the PUP. The guide outfitters licence and certificate make no
reference to consultation, however there is a lengthy hearing process if the
government is considering altering or terminating a licence or certificate for reasons
of non-compliance.
If the government is considering making changes to FL requirements for areas where
cutting permits are allowed they will consult with the licensee and will consider their
comments. The government will consult the TFL holder and consider any
recommendations made by the licensee before deleting an area of scheduled land. In
addition, in both cases, the government may amend a cutting permit only with the
consent of the licensee.
64
Alberta cannot make changes to a disposition during the term. In the case of a new
disposition being granted the applicant must obtain consent from the current tenure
holder.
The only reference to consultation made in the Ontario land lease is when calculating
the annual rent, in which case a mediator will be used to reach a mutually agreed upon
solution.
None of the dispositions granted by the Yukon make reference to consultation with
the grantee. While the contracts issued by Parks Canada also do not make reference
directly to consultation, in any instance where a taking or acquisition occurs without
the contract holder’s consent the Expropriation Act will apply. For this reason it
would be in the government’s interest to consult the tenure holder before any type of
change to the contract.
Of the three permits issued by the USDA forest service only the guide and outfitters
SUP makes reference to consultation. The government must consult permit holders
before making other dispositions over the land. The BLM will contact tenure holders
when additional permit applications are received.
The Alaska NPS CP requires the government to undertake good faith negotiations if
franchise fees need to be adjusted. The Alaska DNR permits require the government
to advise the permit holder before any contract stipulation modifications or additions
are finalized. The DNR lease may only be modified if agreed to in writing by both
parties.
Compensation
Leases offer the most in the way of compensation. Because leases only provide
provisions for termination in the case of non-compliance and flooding the lease leaves
the door open to compensation in all other cases of contract termination. With respect
to compensation for additional dispositions on the land the government must consult
lease holders before granting additional dispositions. If the lessee cannot make an
argument for material loss as a result of the disposition than the disposition can be
granted. However, the contract only prevents the lessee from seeking compensation if
the disposition does not have a material effect in the exercise of the lessee’s rights
under this Agreement.
Licences and TUPS offer less avenues for compensation. Because provisions allow
the government to terminate the contract for reasons of public interest there is little
avenue for compensation as a result of contract termination. In addition, a pick clause
in the CR licence, licence of occupation – river use, and TUPs for river use and
kayaking allows the government to make changes to the disposition without
compensation to the lessee. This clause is unique to these four dispositions in BC – it
is not in any of the other licences of occupation outside of these four. Similar to the
lease, the tenure only prevents the licensee from seeking compensation if a disposition
65
in the lessee’s tenure area has a material effect in the exercise of the tenure holder’s
rights under this Agreement.
The Land Act includes provisions that permit the government or anyone acting under
their authority to occupy land under disposition for the purpose of mineral and gas
extraction, and water extraction and transport. In this case the government must pay
the grantee reasonable compensation. The government may also extract gravel, sand,
stone, lime, timber or other material that may be required in the construction,
maintenance or repair of a road, ferry, bridge or other public work, without
compensation.
The MDA provides for compensation in the case of other dispositions if the lessee has
reasonably not consented to the disposition. The contract makes no other mention of
compensation in the event of termination (termination of the contract is very unlikely
– see section on termination) or losses of improvements or other takings.
The MWLAP PUP for commercial land use does not allow for compensation in the
case of contract termination or cancellation. The BC PUP for commercial recreation
makes no reference to compensation. The guide outfitters certificate and licence, and
the Wildlilfe Act make no reference to compensation.
In forestry there are no provisions for no-fault tenure termination. In cases where
AAC is reduced in one area, it must be increased in another area to make up the loss.
If AAC is decreased by more than 5% over a TFL this decrease must be compensated.
In Alberta leases and licences are pursuant to the Public Lands Act. In the case of a
new disposition the applicant must negotiate compensation with the tenure holder. In
the case of all other terminations in whole or part, with the exception of termination
because the land is irrigable, the government must provide compensation, and when
an agreement on the terms of compensation cannot be agreed upon provisions of the
Expropriation Act are applied. The Ontario Lease only makes two references to
compensation. The first, if government floods the lease area the government is not
responsible for providing compensation (all LWBC tenures include this provision as
well). Second, in the case of contract termination where the lessee does not remove
improvements within 60 days the government takes ownership of the improvements
and does not have to provide compensation to the lessee. Ontario’s Public Lands Act,
makes few references to compensation. If the government enters and alters an area in
the case of an emergency compensation will be provided following the Expropriation
Act. Also, if resources from the land are used in the building of a road, and there is not
a provision in the lease or licence contract for this, compensation must be given to the
lessee. The Yukon leases make no reference to compensation. Parks Canada leases
and licences apply the Expropriation Act to takings or acquisitions of an interest in
public lands where the holder of the interest does not consent.
US Forest Service lands provide for compensation in the case of ski hills and marina
developments if termination is due to public interest, however contracts for guide
66
outfitting make no reference to compensation. Similarly, the BLM SUP, and
corresponding guidelines make no reference to compensation for taking. The Alaska
NPS include a regional stipulation that allows a CUL to be revoked at any time at the
discretion of the superintendent without compensation. Alaska’s NPS CP includes a
sweeping provision that in the event of suspension or termination of the contract for
any reason or expiration of the contract, no compensation of any nature is due to
tenure holder, including, but not limited to, compensation for personal property, or for
losses based on lost income, profit, or the necessity to make expenditures as a result of
the termination. Of the three permits issued by DNR in Alaska for commercial
recreation only the lease makes reference to compensation for takings. If a portion or
the lease in its entirety is taken by condemnation than the lessor maintains the right to
all forms of compensation, except those for improvements made to the land by the
lessee, which will go to the lessee.
67
Appendix 2
Descriptive Analysis of Tenures Matrix
Region
Issuing
Institution
BC
Lands and
Water Inc.
Duration
Comprehensiveness
Tenure may be Tenure may be Length of term Renewability
Tenure contract/ used for more used for more
legislation
than one
than specific
resource
activity
CR Licence of
Occupation
CR Lease
CR Licence of
CR Licence of
intensive use
CR Licence of
CR Licence of
CR temporary
CR Temporary
use permit - Sea
Kayaking
Agriculture lease
with option to
purchase
Aquaculture
lease
unregisterable
Communication
Sites Licence of
Occupation
no
no
no
no
no
no
no
no
no
no
no
unique to
each contract
unique to
each contract
unique to
each contract
unique to
each contract
unique to
each contract
unique to
each contract
unique to
each contract
unique to
each contract
unique to
each contract
unique to
each contract
unique to
each contract
Conditions
Transferability
Tenure
Sublicense
transferable
allowed with
consent
Exclusiveness
Ownership of
Option to
Exclusive use Sole property public use
intensive
purchase land of area under of area under
improvements
tenure
tenure
remains with
Leesee
10 years
yes, consent yes, consent
At
can be removed
will not be
mid-term for government's will not be
unreasonably unreasonably upon termination
soleup to 30
of contract
be witheld
be witheld
discretion
years
30 years
no
no
no
protected
At
can be removed
will not be
government's will not be
soleof contract
be witheld
be witheld
discretion
no
yes (except
for rights
under other
acts)
yes
protected
10 years
At
can be removed
will not be
soleup to 30
of contract
be witheld
be witheld
discretion
years
no
no
no
protected
10 years
At
can be removed
will not be
soleup to 30
discretion
years
of contract
be witheld
be witheld
no
no
no
protected
10 years
At
can be removed
will not be
soleup to 30
of contract
be witheld
be witheld
discretion
years
no
no
no
protected
10 years
At
can be removed
will not be
soleup to 30
of contract
be witheld
be witheld
discretion
years
no
no
no
protected
2 years
if government yes, consent yes, consent
can be removed
will not be
will not be
accepts
management unreasonably unreasonably upon termination
of contract
be witheld
be witheld
plan
end of term
no
no
no
protected
2 years
if government yes, consent yes, consent
can be removed
will not be
will not be
accepts
management unreasonably unreasonably upon termination
of contract
be witheld
be witheld
plan
end of term
no
no
no
protected
30 years
yes, at
yes, at
government's government's can be removed
upon termination
sole
sole
of contract
discretion
discretion
yes
yes
yes
no
mid-term
yes, at
yes, at
At
government's government's government's can be removed
upon termination
sole
sole
soleof contract
discretion
discretion
discretion
no
yes
yes
no
mid-term
yes, will not yes, will not
At
can be removed
be
be
government's
soleof contract
witheld
witheld
discretion
no
no
no
restricted
30 years
30 years
mid-term
no
n/a
Appendix 2
Security
termination due to Government
Government
Tenure contract/ public interest/ no can take a
can alter
legislation
cause
portion of a
contract fees
tenure
within term
CR Licence of
Occupation
CR Lease
CR Licence of
CR Licence of
intensive use
CR Licence of
CR Licence of
CR temporary
CR Temporary
use permit - Sea
Kayaking
Agriculture lease
with option to
purchase
Aquaculture
lease
unregisterable
Communication
Sites Licence of
Occupation
yes
no
yes
yes
yes
yes
yes
yes
no
no
yes
1/20th of land
(and
additional
lands after
Feb. 2005)
1/20th of land
(and
additional
lands after
Feb. 2005)
1/20th of land
(and
additional
lands after
Feb. 2005)
1/20th of land
(and
additional
lands after
Feb. 2005)
1/20th of land
(and
additional
lands after
Feb. 2005)
1/20th of land
(and
additional
lands after
Feb. 2005)
1/20th of land
(and
additional
lands after
Feb. 2005)
1/20th of land
(and
additional
lands after
Feb. 2005)
1/20th of land
1/20th of land
1/20th of land
yes
yes
yes
yes
yes
yes
yes
yes
no
no
no
Government
Consultation before
can change
changes to regulations/
restrictions on fees
contract within
term
Consultation
Consultation before Consultation before
other tenures are
disposal of portion of
granted in area
tenure
Compensation
Consultation before Compensation Compensation for
tenure termination for no-fault
other takings
tenure
termination
Compensation
for loss of
improvements
no
for mineral, gas and
water extraction only
yes
process to express
CR operator input
process to express
concerns (governmment form (government concerns (governmment 60 days notice
(includes no-fault
still retains sole
still retains sole
still retains sole
termination)
discretion)
discretion)
discretion)
requires tenure
process to express
holder's consent
process to express
concerns (governmment
which may be
concerns (governmment
still retains sole
60 days notice (for
reasonably
still retains sole
discretion)
fault termination)
withheld
discretion)
n/a
water extraction or
where material affect
can be shown
no reference
yes
process to express
CR operator input
process to express
(includes no-fault
still retains sole
still retains sole
still retains sole
termination)
discretion)
discretion)
discretion)
no
no
yes
process to express
process to express
CR operator input
(includes no-fault
still retains sole
still retains sole
still retains sole
termination)
discretion)
discretion)
discretion)
no
no
yes
process to express
CR operator input
process to express
(includes no-fault
still retains sole
still retains sole
still retains sole
termination)
discretion)
discretion)
discretion)
no
no
yes
process to express
CR operator input
process to express
(includes no-fault
still retains sole
still retains sole
still retains sole
termination)
discretion)
discretion)
discretion)
no
no
yes
process to express
CR operator input
process to express
(includes no-fault
still retains sole
still retains sole
still retains sole
termination)
discretion)
discretion)
discretion)
no
no
no
no
n/a
water extraction or
can be shown
no reference
yes
yes
no
no
no
process to express
CR operator input
process to express
still retains sole
still retains sole
still retains sole
(includes no-fault
discretion)
discretion)
termination)
discretion)
requires tenure
holder's consent
which may be
reasonably
60 days notice (for
withheld
n/a
fault termination)
n/a
n/a
requires tenure
holder's consent
which may be
reaonably withheld
n/a
requires consent
from both parties
no
n/a
60 days notice (for
fault termination)
n/a
water extraction or
can be shown
no reference
n/a
60 days notice
(includes no-fault
termination)
no
water extraction only no reference
Appendix 2
Region
Issuing
Institution
Duration
Comprehensiveness
legislation
than one
than specific
resource
activity
Communication
sites statutory
right of way
Industrial Lease
Industrial
Licence of
Occupation
Moorage
Licence of
Occupation
Quarry Licence
of Occupation
Standard Lease
Unregisterable
Utility Licence of
Occupation
Utility Statutory
Right of Way
Energy
Production
Lease
Energy
Production
Licence of
occupation
Energy
Production Right
of Way
no
no
no
no
no
no
no
no
no
no
no
unique to
each contract
unique to
each contract
unique to
each contract
unique to
each contract
unique to
each contract
unique to
each contract
unique to
each contract
30 years
30 years
10 years
10 years
10 years
30 years
10 years
unique to for as long as
each contract
required
unique to
each contract
unique to
each contract
30 years
10 years
unique to for as long as
each contract
required
Conditions
Transferability
Tenure
Sublicense
transferable
allowed with
consent
Exclusiveness
Ownership of
Option to
intensive
improvements
tenure
tenure
remains with
Leesee
mid-term
yes, will not yes, will not
At
can be removed
be
be
government's
soleof contract
witheld
witheld
discretion
no
no
no
protected
mid-term
yes, at
yes, at
At
upon termination
sole
sole
soleof contract
discretion
discretion
discretion
no
yes
yes
no
mid-term
yes, at
yes, at
At
upon termination
sole
sole
soleof contract
discretion
discretion
discretion
no
no
no
restricted
mid-term
yes, at
yes, at
At
upon termination
sole
sole
soleof contract
discretion
discretion
discretion
no
no
no
protected
mid-term
yes, at
yes, at
At
upon termination
sole
sole
solediscretion
discretion
discretion
of contract
no
no
no
restricted
mid-term
yes, at
yes, at
At
upon termination
sole
sole
soleof contract
discretion
discretion
discretion
no
yes
yes
no
mid-term
yes, at
yes, at
At
upon termination
sole
sole
soleof contract
discretion
discretion
discretion
no
no
no
restricted
mid-term
yes, at
yes, at
At
upon termination
sole
sole
soleof contract
discretion
discretion
discretion
no
no
no
protected
mid-term
yes, at
yes, at
At
upon termination
sole
sole
soleof contract
discretion
discretion
discretion
no
yes
yes
no
mid-term
yes, at
At
yes, at
sole
soleupon termination
sole
discretion
discretion
of contract
discretion
no
no
no
restricted
mid-term
yes, at
yes, at
At
upon termination
sole
sole
soleof contract
discretion
discretion
discretion
no
no
no
restricted
Appendix 2
Security
Government
can alter
legislation
cause
portion of a
contract fees
tenure
within term
Communication
sites statutory
right of way
Industrial Lease
Industrial
Licence of
Occupation
Moorage
Licence of
Occupation
Quarry Licence
of Occupation
Standard Lease
Unregisterable
Utility Licence of
Occupation
Utility Statutory
Right of Way
Energy
Production
Lease
Energy
Production
Licence of
occupation
Energy
Production Right
of Way
no
no
yes
yes
yes
no
yes
yes
no
yes
no
1/20th of land
1/20th of land
1/20th of land
1/20th of land
1/20th of land
1/20th of land
1/20th of land
1/20th of land
1/20th of land
1/20th of land
1/20th of land
no
no
no
no
no
no
no
no
no
no
no
Government
Consultation before
can change
contract within
term
no
no
no
no
no
no
no
no
no
no
no
Consultation
other tenures are
granted in area
tenure
n/a
requires consent
from both parties
requires tenure
holder's consent
which may be
reasonably
withheld
n/a
government may
authorize
n/a
government may
authorize
n/a
n/a
n/a
n/a
n/a
n/a
n/a
n/a
government may
authorize
requires tenure
holder's consent
which may be
reasonably
withheld
government may
authorize
requires tenure
holder's consent
which may be
reasonably
withheld
requires tenure
holder's consent
which may be
reasonably
withheld
government may
authorize
requires tenure
holder's consent
which may be
reasonably
withheld
n/a
Compensation
other takings
tenure
termination
60 days notice (for
fault termination)
Compensation
for loss of
improvements
n/a
water extraction or
can be shown
no reference
n/a
60 days notice (for
fault termination)
n/a
water extraction or
can be shown
no reference
n/a
60 days notice
(includes no-fault
termination)
no
n/a
60 days notice
(includes no-fault
termination)
no
n/a
60 days notice
(includes no-fault
termination)
no
n/a
60 days notice (for
fault termination)
n/a
water extraction or
can be shown
no reference
n/a
60 days notice
(includes no-fault
termination)
no
n/a
60 days notice
(includes no-fault
termination)
no
water extraction or
can be shown
no reference
n/a
60 days notice (for
fault termination)
n/a
water extraction or
can be shown
no reference
n/a
60 days notice
(includes no-fault
termination)
no
n/a
water extraction or
can be shown
no reference
n/a
60 days notice (for
fault termination)
Appendix 2
Region
Issuing
Institution
Duration
Comprehensiveness
legislation
than one
than specific
resource
activity
Golf Lease
Grazing Lease
MWLAP
no
no
unique to
each contract
unique to
each contract
Quarrying Lease
no
Ski Hill Master
Development
Agreement
no
unique to
each contract
Any
recreational
activity
subject to
prior rights
no
activities
described in
management
plan
no
activities
described in
management
plan
Park use permit
commercial land
use occupancy
Park Use Permit
Commercial
Recreation
Guide outfitters
certificate
Guide outfitters
licence
30 years
20 years
no
yes
yes
no
mid-term
yes, at
yes, at
At
upon termination
sole
sole
soleof contract
discretion
discretion
discretion
no
yes
yes
no
30 years
mid-term
60 years
mid-term
mid-term
yes, at
At
yes, at
soleupon termination
sole
sole
discretion
of contract
discretion
discretion
no
no
no
protected
mid-term
yes, at
yes, at
At
government's government's government's
sole
sole
solediscretion
discretion
discretion
n/a
no
no
no
protected
yes, at
yes, at
At
government's government's government's
sole
sole
solediscretion
discretion
discretion
no reference
no
yes
yes
n/a
nonnontransferrable transferrable
no reference
no
n/a
n/a
n/a
no
no
no
yes (for AAC)
restricted
no
no
management management
control
control
restricted
1 year
1 year
up to 10
years
mid-term
no
specifies
species and
area
1 year
no
20 years
Forest Service
Special Use
Permit
Tree Farm
Licence
mid-term
n/a
no
no
no
Exclusiveness
Ownership of
Option to
intensive
improvements
tenure
tenure
remains with
Leesee
yes, at
yes, at
At
upon termination
sole
sole
soleof contract
discretion
discretion
discretion
n/a
no
Transferability
Tenure
Sublicense
transferable
allowed with
consent
yes, at
yes, at
At
upon termination
sole
sole
soleof contract
no
discretion
discretion
discretion
hill are
guarenteed if yes, consent yes, consent surrendered to
will not be government, base
will not be
contractual
of mountain
yes, at base
obligations unreasonably unreasonably
improvements will
of hill
witheld
witheld
are met
BC Ministry of
Forests
Forest Licence
Conditions
25 years
n/a
every five
years
guarenteed if
contractual
obligations yes, with few yes, with few
are met
constraints
constraints
every five
years
yes, with few yes, with few
constraints
constraints
every five
years
guarenteed if
contractual
obligations yes, with few yes, with few
are met
constraints
constraints
yes
yes
no
yes
yes
restricted
Appendix 2
Security
Government
can alter
legislation
cause
portion of a
contract fees
tenure
within term
Golf Lease
Grazing Lease
Quarrying Lease
no
no
no
1/20th of land
1/20th of land
no
no
1/20th of land
no
boundaries
on 10th
can be
changed but anniversary
with
both parties
restrictions
must agree
Government
Consultation before
can change
contract within
term
no
no
no
Consultation
other tenures are
granted in area
tenure
requires tenure
holder's consent
which may be
reasonably
withheld
requires tenure
holder's consent
which may be
reasonably
withheld
requires tenure
holder's consent
which may be
reasonably
withheld
Compensation
other takings
tenure
termination
Compensation
for loss of
improvements
n/a
water extraction or
can be shown
no reference
n/a
water extraction or
can be shown
no reference
60 days notice (for
fault termination)
n/a
water extraction or
can be shown
no reference
only allowed if
only allowed if agreed to agreed to in writing only allowed if agreed to 60 days notice (for
in writing by both parties by both parties in writing by both parties fault termination)
n/a
yes (for overlapping
tenures)
no reference
n/a
n/a
n/a
n/a
n/a
n/a
60 days notice (for
fault termination)
60 days notice (for
fault termination)
Ski Hill Master
Development
Agreement
no
Park use permit
commercial land
use occupancy
no
no
no
no
n/a
no reference
n/a
n/a
no
no reference
no reference
Park Use Permit
Commercial
Recreation
yes
no
no
no
n/a
no reference
n/a
n/a
no reference
no reference
no reference
n/a
lengthy hearing
process for noncompliance
no reference
no reference
no reference
no reference
no reference
no reference
n/a
Guide outfitters
certificate
no
no
no
no
no
n/a
n/a
Guide outfitters
licence
no
no
no
no
n/a
n/a
n/a
lengthy hearing
process for noncompliance
Forest Licence
no
for reasons of
oboriginal title
yes
no
n/a
n/a
must obtain tenure
holder's consent
no reference
no
for reasons of
oboriginal title
oboriginal title
/ 0.5% per
year for
various
reasons
Forest Service
Special Use
Permit
Tree Farm
Licence
must obtain tenure
holder's consent
n/a
yes
no
n/a
n/a
must obtain tenure
holder's consent
yes if taking greater
than 5% of AAC
no reference
than 5% of AAC
no reference
n/a
than 5% of AAC
no reference
Appendix 2
Region
Issuing
Institution
AB
Public Lands
Division
Duration
Comprehensiveness
legislation
than one
than specific
resource
activity
Recreational
Lease
Miscellaneous
lease Public
lands and
Forests
License of
Occupation
ON
YT
Ministry of
Natural
Resources
Land Lease Tenure
YLA Lease
Land use permit
no
10 years
10 years
unique to
each contract unique to use
License of
Occupation
Forest Service Marina Resort
Term Special
Use Permit
Ski Area Term
Special Use
Permit
Transferability
Tenure
Sublicense
transferable
allowed with
consent
Exclusiveness
Ownership of
Option to
intensive
improvements
tenure
tenure
remains with
Leesee
yes
At
government's yes, upon
government
soleconsent
discretion
yes, upon
government
consent
can be removed
upon termination
of contract
yes
At
government
soleconsent
discretion
yes, upon
government
consent
yes
At
government
soleconsent
discretion
yes, upon
government
consent
yes
yes, cannot yes, cannot
At
can be removed
be
be
government's
soleof contract
witheld
witheld
discretion
no
yes
yes
no
can be removed
upon termination
yes, for
of contract
homesteads
yes
yes
no
can be removed
upon termination
of contract
no
no
no
no reference
yes, as
separate
agreement
yes
yes
no
no
unique to
each contract
no
5 years but
unique to renewable for yes for upto
60 years
60 years
each contract
guarenteed if
yes, upon
contractual
obligations government
are met
consent
yes, upon
government
consent
can be removed
upon termination
of contract
no
yes
yes
no
no
6 years but
unique to renewable for yes for upto
60 years
60 years
each contract
guarenteed if
yes, upon
contractual
obligations government
consent
are met
yes, upon
government
consent
can be removed
upon termination
of contract
no
yes
yes
no
no
unique to
each contract
no
can be removed
upon termination
of contract
no
no
no
no reference
yes, if
contracutal
obligations
are met
can be removed
upon termination
of contract
no
yes
yes
no
no
can be removed
upon termination
of contract
no
no
no
protected
can be
removed/sold
upon termination
of contract
no
no
no
protected
can be
removed/sold
upon termination
of contract
no
no
no
protected
20 years
long-term'
use
no
n/a
nontransferrable
unique to
each contract
up to 42
years
yes (some
include
perpetual
renewal
on terms the
government
thinks fit
yes, if
contracutal
obligations
are met
unique to
each contract
all activities
required to
maintain an
inclusive
resort
all activities
required to
maintain an
inclusive
resort
up to 42
years
n/a
nontransferrable
Parks Canada
Lease
USA
no
activities
described in
management
plan
Lands Division
TLYA Lease
CAN
no
activities
described in
management
plan
Conditions
no
no
no
no
30 years
30 years
no reference
no
end of term
n/a
no reference
yes, upon
government
consent
yes, upon
government
consent
Appendix 2
Security
Government
can alter
legislation
cause
portion of a
contract fees
tenure
within term
Recreational
Lease
yes (with
compensation)
Miscellaneous
lease Public
lands and
Forests
yes (with
compensation)
License of
Occupation
yes (with
compensation)
yes
no reference
yes
every five
years
yes
no reference
Government
Consultation before
can change
contract within
term
no
no
no
Consultation
other tenures are
granted in area
tenure
n/a
must obtain tenure
holder's consent
n/a
must obtain tenure
holder's consent
n/a
must obtain tenure
holder's consent
Compensation
other takings
tenure
termination
Compensation
for loss of
improvements
n/a
government
retains right
yes (unless
land is
irragable)
yes, for other
dispositions
no reference
n/a
government
retains right
yes (unless
land is
irragable)
yes, for other
dispositions
no reference
n/a
government
retains right
yes (unless
land is
irragable)
yes, for other
dispositions
no reference
not for
government
yes (for emerency
flooding,
retains right in
situations or
cases of flooding otherwise no
resource extraction) no reference
reference
(hydro)
Land Lease Tenure
yes (for Hydro
purposes)
no reference no reference no reference
n/a
n/a
n/a
TLYA Lease
no
no reference
n/a
no reference
n/a
no reference
no reference
no reference
YLA Lease
no
no reference
n/a
no reference
n/a
no reference
no reference
no reference
no reference
no reference
n/a
no reference
no reference
no reference
no reference
no reference
Applies Canada
Expropriation Act
Applies
Canada
Expropriation
Act
Applies Canada
Expropriation Act
Applies
Canada
Expropriation
Act
Land use permit
Lease
no
no
no
no
n/a
n/a
n/a
Applies
Canada
no (w/o consent
government must Expropriation
Act
compensate)
Applies
Canada
no (w/o consent
government must Expropriation
Act
compensate)
License of
Occupation
no
yes
no
no
n/a
no reference
n/a
Marina Resort
Term Special
Use Permit
yes
with
restrictions
no
with
restrictions
no reference
no reference
no reference
no reference
yes
no reference
no reference
Ski Area Term
Special Use
Permit
yes
with
restrictions
no
with
restrictions
no reference
no reference
no reference
no reference
yes
no reference
no reference
Appendix 2
Region
Issuing
Institution
Duration
Comprehensiveness
legislation
than one
than specific
resource
activity
Special Use
Permit for
Outfitting and
Guiding
Special Use
Permit for
Outfitting and
Guiding
Bureau of
Land
Management Special
recreation permit
National Parks
Service
Commercial Use
License
Concession
Permit
AK
Department of
Natural
Resources Land Use Permit
Commercial
Recreation
Permit
application
Lease
no
no
unique to
each contract
unique to
each contract
5 years
1 year
no
unique to
each contract
up to 10
years
no
unique to
each contract
2 years
no
unique to
each contract
no
unique to
each contract
no
unique to
each contract
activities
described in
development
plan
10 years
5 years
1 year
10 years
yes
no
Conditions
Transferability
Tenure
Sublicense
transferable
allowed with
consent
nonno reference transferrable
nonno reference transferrable
At
government
soleconsent
discretion
end of term
no
n/a
nontransferrable
Exclusiveness
Ownership of
Option to
intensive
improvements
tenure
tenure
remains with
Leesee
no
can be
removed/sold
upon termination
of contract
no
no
no
protected
no
can be
removed/sold
upon termination
of contract
no
no
no
protected
yes, upon
government
consent
no reference
no
no
no
protected
no
n/a
no
no
no
no reference
yes, upon
government
consent
can be removed
upon termination
of contract
no
no
no
no reference
no
can be removed
upon termination
of contract
no
no
no
protected
no
no
no
protected
no
yes
yes
no
yes
At
government
soleconsent
discretion
yes
guarenteed if
contractual
obligations
nonare met
transferrable
no
nontransferrable
no
can be removed
upon termination
of contract
yes, upon
government
consent
yes, upon
government
consent
can be removed
upon termination
of contract
n/a
no later than
1 year prior to
expiration
no reference
Appendix 2
Security
Government
can alter
legislation
cause
portion of a
contract fees
tenure
within term
Government
Consultation before
can change
contract within
term
Consultation
other tenures are
granted in area
tenure
Compensation
other takings
tenure
termination
Compensation
for loss of
improvements
Special Use
Permit for
Outfitting and
Guiding
yes (reason
must be specific
and compelling)
with
restrictions
no
with
restrictions
no reference
yes
no reference
no reference
no reference
no reference
no reference
Special Use
Permit for
Outfitting and
Guiding
yes (reason
must be specific
and compelling)
with
restrictions
no
with
restrictions
no reference
no reference
no reference
no reference
no reference
no reference
Special
recreation permit
no
no
yes
no
n/a
yes
government will
inform tenure
holder when new
applications are
received
n/a
n/a
no reference
no reference
no reference
Commercial Use
License
yes
no
no
no
n/a
no reference
n/a
no reference
no reference
no reference
no reference
Concession
Permit
yes
yes
no
no
n/a
no reference
no reference
no reference
no
no
no
Land Use Permit
no
no reference
no
yes
government must notify
tenure holder
no reference
no reference
n/a
no reference
no reference
no reference
Commercial
Recreation
Permit
application
yes
no reference
no
yes
government must notify
tenure holder
no reference
no reference
no reference
no reference
no reference
no reference
no reference
yes, on 5th
anniversary
no
written consent must be
obtained from both
parties
n/a
no reference
n/a
no
no
yes
Lease
no
Appendix 3
Complete questionnaire results
number of respondents
Questions
1 I have enough control over the natural resources
in my tenure area to secure the resource needs of
my business
2 My tenure allows me to offer enough activities to
make my business adaptable to the changing
needs of the tourism market
3 The duration of my tenure is long enough to
establish and invest in a long term growth
strategy for my business
4 Government control over the transferability of
my tenure does not limit the competitiveness of
my business
5 The application fees and required consultations,
assessments etc. did not hinder my ability to
obtain this tenure
6 The required tenure user, management and
security deposit fees do not unduly restrict my
business viability
7 The lack of ownership over the improvements I
have made to the land does not limit the type of
or level of investments in improvements I am
willing to make
8 There is enough certainty surrounding the
multiple resource uses allowed to occur
concurrently within my tenure area to allow me
to run my business
9 The restrictions on other resource users in the
area are sufficient to preserve the resources I
need to run my business
10 It is unlikely that the government will terminate
my tenure before it is due to expire
11 It is unlikely that the government will take a
portion of my tenure before it is due to expire
percentage of respondents
strongly Somewhat
somewhat strongly
neutral
Total
disagree disagree
agree
agree
strongly somewhat total
somewhat strongly
neutral
disagree disagree disagree
agree
agree
total
agree
31
15
6
8
1
61
50.8
24.6
75.4
9.8
13.1
1.6
14.8
13
17
11
17
3
61
21.3
27.9
49.2
18.0
27.9
4.9
32.8
34
10
8
7
2
61
55.7
16.4
72.1
13.1
11.5
3.3
14.8
23
17
14
6
1
61
37.7
27.9
65.6
23.0
9.8
1.6
11.5
17
13
12
16
3
61
27.9
21.3
49.2
19.7
26.2
4.9
31.1
12
11
13
21
4
61
19.7
18.0
37.7
21.3
34.4
6.6
41.0
29
12
14
4
2
61
47.5
19.7
67.2
23.0
6.6
3.3
9.8
24
18
11
8
0
61
39.3
29.5
68.9
18.0
13.1
0.0
13.1
31
19
7
4
0
61
50.8
31.1
82.0
11.5
6.6
0.0
6.6
6
6
20
26
3
61
9.8
9.8
19.7
32.8
42.6
4.9
47.5
9
14
18
17
3
61
14.8
23.0
37.7
29.5
27.9
4.9
32.8
Appendix 3
Questions
12 It is unlikely that the government will change the
restrictions on my tenure before it is due to expire
13 It is likely that the government will grant another
tenure in my operating area that is not compatible
with my business
14 If the government terminated my tenure they
strongly Somewhat
somewhat strongly
neutral
Total
disagree disagree
agree
agree
somewhat strongly
neutral
agree
agree
total
agree
14
17
16
13
1
61
23.0
27.9
50.8
26.2
21.3
1.6
23.0
6
10
11
24
10
61
9.8
16.4
26.2
18.0
39.3
16.4
55.7
would give me appropriate notice
15 If the government took back a portion of my
tenure they would give me appropriate notice
16 If the government changed the restrictions on my
11
19
20
11
0
61
18.0
31.1
49.2
32.8
18.0
0.0
18.0
14
17
21
9
0
61
23.0
27.9
50.8
34.4
14.8
0.0
14.8
tenure they would give me appropriate notice
17 If the government granted another tenure in my
tenured operating area that was not compatible
with my business they would give me appropriate
notice
18 The government treats the various resource
industries with equality in matters related to
tenure arrangements
19 The terms of my tenure increase my ability to
11
21
20
9
0
61
18.0
34.4
52.5
32.8
14.8
0.0
14.8
20
16
12
12
1
61
32.8
26.2
59.0
19.7
19.7
1.6
21.3
39
10
9
2
1
61
63.9
16.4
80.3
14.8
3.3
1.6
4.9
28
11
10
7
5
61
45.9
18.0
63.9
16.4
11.5
8.2
19.7
15
12
24
7
3
61
24.6
19.7
44.3
39.3
11.5
4.9
16.4
5
17
25
7
7
61
8.2
27.9
36.1
41.0
11.5
11.5
23.0
8
16
24
13
0
61
13.1
26.2
39.3
39.3
21.3
0.0
21.3
4
7
15
23
12
61
6.6
11.5
18.0
24.6
37.7
19.7
57.4
10
8
18
22
3
61
16.4
13.1
29.5
29.5
36.1
4.9
41.0
obtain financing for my business
20 The terms of my tenure increase my ability to
acquire insurance to protect my business
21 The terms of my tenure make acquiring the
insurance I need to protect my business cost
prohibitive
22 The guidelines that regulate the improvements I
am allowed to make in my tenure area are
appropriate
23 The size of my tenure allows me to run my
business in an effective manner
24 The guidelines that protect environmental and/or
cultural resources in my tenure area allow me to
run my business in a competitive manner
Appendix 3
Questions
25 The regulations the government used to control
my tenure do not keep me from running my
business in a competitive manner
26 The government would consult me before
strongly Somewhat
somewhat strongly
neutral
Total
disagree disagree
agree
agree
somewhat strongly
neutral
agree
agree
total
agree
14
12
19
16
0
61
23.0
19.7
42.6
31.1
26.2
0.0
26.2
considering terminating my tenure
27 The government would make sure my business
interests are met before considering terminating
my tenure
10
18
12
16
5
61
16.4
29.5
45.9
19.7
26.2
8.2
34.4
25
23
10
1
2
61
41.0
37.7
78.7
16.4
1.6
3.3
4.9
considering taking back a portion of my tenure
interests are met before considering taking back a
portion of my tenure
considering changing the conditions of or
restrictions on my tenure
interests are met before considering changing the
conditions of or restrictions on my tenure
considering granting another tenure in my
operating area that is not compatible with my
business
interests are met before considering granting
another tenure in my operating area that is not
compatible with my business
34 The government would compensate me fairly if
13
20
14
12
2
61
21.3
32.8
54.1
23.0
19.7
3.3
23.0
26
21
11
2
1
61
42.6
34.4
77.0
18.0
3.3
1.6
4.9
18
18
17
8
0
61
29.5
29.5
59.0
27.9
13.1
0.0
13.1
27
19
13
2
0
61
44.3
31.1
75.4
21.3
3.3
0.0
3.3
14
18
12
16
1
61
23.0
29.5
52.5
19.7
26.2
1.6
27.9
26
20
10
5
0
61
42.6
32.8
75.4
16.4
8.2
0.0
8.2
42
8
8
2
1
61
68.9
13.1
82.0
13.1
3.3
1.6
4.9
42
8
10
1
0
61
68.9
13.1
82.0
16.4
1.6
0.0
1.6
42
9
8
2
0
61
68.9
14.8
83.6
13.1
3.3
0.0
3.3
my tenure was terminated
35 The government would compensate me fairly if a
portion of my tenure was taken back
36 The government would compensate me fairly if
the they changed the conditions of/or restrictions
on my tenure
Appendix 4
Methodology
This study includes three components: A CR perception questionnaire, semistructured key informant interviews, and a policy analysis of grey literature. The
research objectives and the methodology used in each component are described
below.
The purpose of the research is to establish whether articles and policies within
land tenure contracts and supporting policies and legislation address takings and
compensation in a manner that creates an equitable and competitive business
environment for the province’s tenured commercial recreation enterprises.
More specific objectives related to meeting the research purpose include:
1) Determining what type of security with respect to takings exists in CR
tenures when compared to other sectors that rely on land tenure for business
viability.
2) Determining what type of compensation is provided to CR businesses with
respect to government actions that result in negative takings when compared to
other BC industry sectors that rely on land tenure.
3) Determining the perceived consequences the current takings and
compensation articles within tenure policies have on the overall
competitiveness of the CR industry.
4) Determining the extent to which the takings and compensation aspects of
BC’s current tenure process put the CR industry at a competitive disadvantage,
when compared to approaches used in other jurisdictions (e.g. Yukon, Alberta,
Alaska etc.) competing for the province’s market share.
5) Determining the type of security CR permits in provincial park systems
offer with respect to takings and compensation when compared to CR Crown
land tenure contracts in BC.
Research Design
Policy Analysis
In order to describe and compare tenure contracts and policy as a basis for
policy analysis, it is useful to disaggregate them into a number of components which
can be described as tenure dimensions or characteristics (Haley and Luckert, 1990). A
list of property rights characteristics that could be used to compare tenures was
81
initially developed by Scott and Johnson (1983). Haley and Luckert (1990) and
Schwindt (1992) have used modified versions of these property rights characteristics
to compare the competitiveness of forestry tenures across Canada and the rights of
forestry and mining tenure holders in BC, respectively. Haley and Luckert rationalize
this classification system in the following way:
The classification system has been adopted because it is thought
that these categories best describe attributes of property rights as they
apply to forest tenures. Furthermore, in classifying property rights, there
is the question of which restrictions placed on tenure holders may be
considered specific to forest tenures and which restrictions are part of
the more general legal framework within which any property rights are
granted. This study considers those restrictions which affect forest tenure
holders’ decisions, but not the more legal restrictions which affect all
property holders. (p.4)
This study has modified the list used in Haley and Luckert’s study to better
reflect the CR industry.
The characteristics were further broken down into sub-themes in order to
operationalize the characteristics and further disaggregate the policies and contracts
being analysed (Weber, 1990). Table 1 provides a list of the characteristics and subthemes used.
CR land dispositions in British Columbia (BC), Alberta, Ontario, Yukon, Alaska,
and the federal lands administered by the United States Department of Agriculture
(USDA) Forest Service, and Bureau of Land Management (BLM) in the continental
United States are examined. The study also looks at the BC Ministry of Forests
(MOF) forest licence and tree farm licence, Parks Canada’s lease and licence of
occupation, and a wide selection of other land dispositions administered by LWBC.
Not every tenure type is analyzed in each region. Outside of BC, only those CR
tenures in specific competitive regions, which are most commonly granted, are
considered in the analysis. Within BC a broad and representative sample of common
tenure types is considered, however the list is not exhaustive. For a list of contracts,
legislative acts, and secondary information used in the study refer to appendix 6.
82
Table 1: Property rights characteristics and sub-themes
Comprehensiveness
Duration
Transferability
Limits to Economic
Benefits
Exclusiveness
Security
Use restrictions
Management
Stipulations
Operational Controls
Consultation
Compensation
Tenure may be used for more than one resource
Tenure may be used for more than one activity
Length of term greater than 10 years
Renewable during term
Renewable at expiration of term
Tenure transferable with government consent
Sublicence allowed with government consent
No government take back applied for transfer or sublicence
No application fees
No use fees
No security deposit/ management fees
Ownership of intensive improvements remains with lessee
Option to purchase land
Exclusive use of area under tenure
Sole property of area under tenure
No disposal of portion of tenure
No termination due to financial arrears
No termination due to non-compliance
No termination due to public interest or for no cause
Length of notice by government before termination greater
than 3 months
Government cannot alter contract fees within term
Government cannot change restrictions on contract within
term
Improvements to the land allowed with restrictions
No environmental/ cultural protection requirements
No improvements to land required
Do not have to maintain external licences and/or insurance
No management plans/ written status reports required
No periodic audits/inspections required
Consultation before changes to regulations/fees
Consultation before other tenures are granted in the area
Consultation before disposal of portion of tenure
Consultation before tenure termination
Compensation for no-fault tenure termination
Compensation for other takings
Compensation for loss of improvements
Information for each category was collected in the following order:
1. Analysis of the tenure contract
2. Analysis of corresponding land use policies and legislative acts (e.g.
Commercial recreation land use policy, Parks Act, Public Lands Act, etc.)
83
3. Analysis of secondary information available on the ministry/department/crown
corporation website which administers the tenure
4. Questions posed to government staff
The analysis initially searched the tenure contracts. If information pertaining to a
category could not be found in the tenure contract the corresponding land use policy
was analyzed, and so forth. Not all of the categories are complete for every contract.
In some cases, there was no known secondary reference. In other cases attempts to
contact government staff were unsuccessful. It is important to note that as the
gathering of information moves away from the tenure contract rights and regulations
become less clear and disputes and inefficiencies are more likely to occur. For this
reason the security realized from a provision stated explicitly within a contract is
likely greater than when a reference is found in a secondary source.
The tenure contracts used in the study are for the most part templates. As a result
pick clauses and free field provisions, which may or may not end up in an individual
contract are considered in the analysis. Individualized provisions, which are
determined on a case-by-case basis, are not included in the analysis.
As information on a sub-characteristic was found the reference to the provision
was added to a matrix that compares all of the tenures examined in the study
(appendix 1). Though this matrix allows for a detailed description of provisions, and
allows the reader and researcher to refer back to the tenure to read the provision
directly, the size of the matrix makes comparisons cumbersome. For this reason, the
matrix has been simplified (appendix 2) and has been further broken down into tables
(see section 8) where a single characteristic is compared across tenure types.
Interview Method
The study included phone interviews of key informants on issues of takings and
their influence on contract security. Phone interviews were used due to the remote
location of many of the CR operations. Numbers and types of informants are listed in
Table 2. Interview templates are listed in appendix 5.
84
CR Experience Interview
Eight tenured CR operators with direct experience with government takings were
interviewed. Initial interviewees were identified by other commercial recreation
association members as individuals that have had experiences of taking and/or conflict
to do with land use. Additional interviewees were identified using a snowball
technique. Interviews were conducted and recorded over the phone and transcribed at
a later date.
Interviewees were asked to describe, in detail, their experience with takings. The
interview consisted of a series questions based around forms of takings. If the
interviewee did not have an experience with a particular type of taking the interviewer
would move on to the next question. If the interviewee did have an experience with a
particular type of taking the interviewer would ask semi-structured questions to attain
more detail from the interviewee about their experience. Additional questions were
asked to ascertain the degree of consultation and compensation that occurred
throughout the taking process.
Professional Interviews
Professional interviewees included insurance brokers, bank lenders, and a lawyer.
They were identified by commercial recreation members as individuals that have had
experience working for commercial recreation operators. As with the CR experience
interviews the professional interviews were conducted and recorded over the
telephone and transcribed at a later date.
The goal of the interviews was to ascertain to what degree the various property
rights characteristics affected lending and insurance based decisions. Interviews were
close ended, however where the interviewee felt that a property right characteristic
would affect their professional decisions they were asked to expand on why this was
so.
Table 2: Key Informants interviewed
Type of Interview
CR Operator
Experience
Insurance Broker
Bank Lenders
Lawyers
Number
8
2
2
1
85
Survey Method
The goal of the perception questionnaire was to measure industry disillusionment
and the degree to which CR operators perceived they were being treated unfairly by
government. The questionnaire was based on the property rights used in the policy
analysis. Respondents were asked thirty-nine close-ended questions on how likely
they thought different types of government action would be, with respect to their
tenure, in instances of takings, consultation, and compensation. Room for comment
was provided where appropriate. Appendix 5 includes a template of the questionnaire
used in the study. Complete questionnaire results are listed in Appendix 3.
Respondents were asked to respond to questions using a five-point scale: strongly
disagree, somewhat disagree, neutral, somewhat agree, strongly agree.
Perception questionnaires were e-mailed to commercial recreation operators
belonging to the following associations:
•
35 members of the BCROA
•
14 members of the BCHSSOA or the Backcountry Lodges of BC
•
150 WTA members
•
20 CR associations that belong to the WTA who distributed to their members.
Because the 20 associations belonging to the WTA independently sent the
questionnaire to their members the total number of questionnaires received by CR
operators is unknown, however the number of questionnaires sent out was greater than
200. Table 3 lists the breakdown of respondents.
Table 3: Breakdown of CR perception questionnaire respondents
additional
CR type
responses
services
% of total
cat/heli ski/hiking
12
19.67
river/ocean use
12
1
19.67
backcountry lodge
8
3
13.11
self-propelled backcountry
7
6
11.48
fishing
5
3
8.20
guide outfitters
5
8.20
snowmobiling/ATV
4
6.56
wildlife viewing
2
3
3.28
horseback riding
1
3
1.64
outdoor education
1
1
1.64
adventure tours
1
1.64
unidentified
3
4.92
TOTAL
61
20
100.00
86
Initial e-mails were sent out from July 5th-20th, 2005. The initial response was
weak. During August three more requests to fill out the questionnaire were sent out to
association members. Due to the voluntary nature of response the process was selfselecting and the questionnaires received cannot be considered a random-sample. A
total of 61 responses were received. Respondents represented a wide variety of CR
operator types.
Data Analysis
Policy Analysis
Policy and contract provisions were grouped into the property rights subcharacteristics mentioned above. Provisions were then compared across regions and
industries. The researcher looked for common trends as well as discrepancies amongst
contracts. Wherever possible the researcher attempted to compare similar tenure
types. For example, leases were compared to other leases, while licences of
occupation were compared to other licences. The analysis was focussed on comparing
all the contracts in the study to CR contracts administered by LWBC in BC.
While the analysis is qualitative the sub-characteristics lend some quantitative
aspects. A summary table for each characteristic was created to allow for easy
comparison. These tables are accompanied by text summary of findings in section 8
of this report. For specific reference to the provisions used in the analysis see
appendix 1.
Interview Analysis
Interview results were used to give context to the policy analysis findings.
Specific experiences highlight how weaknesses of current policies have affected
tenured CR operators, and shed light on which policies aid CR operators or where
solutions to CR concerns have been realized. Due to the small number of interviews
conducted no attempts were made to code and categorize responses, nor generalize
experiences to a broader population.
Survey Analysis
Surveys were returned and stored in an anonymous fashion. Basic statistics were
calculated using Microsoft Excel. Complete findings are listed in Appendix 3.
87
Appendix 5
Interview and questionnaire templates
SIMON FRASER UNIVERSITY
CENTRE FOR TOURISM POLICY
AND RESEARCH
FACULTY OF APPLIED SCIENCES
BURNABY, BRITISH COLUMBIA
CANADA V5A 1S6
Telephone: (604) 291-3074
Fax:
(604) 291-4968
SIMON FRASER UNIVERSITY
Dear Commercial Recreation Operator
This research concerning the impact of current land-use tenure arrangements on commercial
recreation operations is being conducted by Simon Fraser University’s Centre for Tourism
Policy and Research in partnership with several nature based tourism associations in British
Columbia *
As a current commercial recreation operator we would appreciate your views on a variety
tenure issues affecting the competitiveness of BC’s tourism businesses. Would you kindly
complete the following survey and send it back to the project’s lead researcher Aaron Heidt, at
one of the following addresses (email: [email protected], fax: 604-291-4968) by Tuesday, July
19th. To ensure the validity of the study please only fill out and send the survey in once.
Your participation in this survey is voluntary, and you may choose not to respond to any
question or terminate the questionnaire at any time. When a survey may require comments or
opinions about your employer or company the SFU ethics policy requires me to inform you that
your employer has not been approached for approval of this survey and that by submitting this
survey you are giving consent to participate in this study.
All information that you provide in this survey will be kept strictly confidential in accordance
with Simon Fraser University’s research ethics guidelines. However, the medium of response
(email) may not allow for absolute and guaranteed confidentiality. Any personal identifying
information you provide will be used only to contact you for survey purposes. Your responses
will be stored in a secure manner. Individual records will be identified using a confidential
code for data analysis and all records will be destroyed once the data analysis is complete. Your
responses will be combined with those of several other respondents to provide an overall
understanding of experiences relating to current land use tenure arrangements.
Your participation in this research is very important to us, and we appreciate the valuable time
you are sharing to complete this survey. If you have any questions or concerns about the
interview content or use, please feel free to contact Dr. Peter Williams, Director of the Centre
for Tourism Policy and Research at Simon Fraser University at 604-291-3074 or
[email protected]
Thank you for your time. I look forward to your hearing your views on this important matter.
Sincerely,
Aaron Heidt
*
The following organizations have financially committed to this research: Association of Canadian Mountain
Guides (ACMG), Back Country Lodges Association of BC, (BCLABC), Commercial Bear Viewing Association
of BC (CBVA), Guide Outfitters Association of BC (GOABC), BC Helicopter and Snowcat Skiing Operators
Association (BCHSSOA), BC River Outfitter Association (BCROA) and Wilderness Tourism Association of BC
(WTA)".
88
What type of tenure do you currently hold? CR Lease
How long have you held your current tenure for? less than 5 years
Have you held any other tenures in the past? yes
If yes, what type? CR Lease
What type of commercial recreation business are you involved with (provide a short description)?
#
Questions
1
I have enough control over the natural
resources in my tenure area to secure
the resource needs of my business
My tenure allows me to offer enough
activities to make my business
adaptable to the changing needs of the
tourism market
The duration of my tenure is long
enough to establish and invest in a long
term growth strategy for my business
Government control over the
transferability of my tenure does not
limit the competitiveness of my
business
The application fees and required
consultations, assessments etc. did not
hinder my ability to obtain this tenure
The required tenure user, management
and security deposit fees do not unduly
restrict my business viability
2
3
4
5
6
Choose the
answer from the
drop down menu
that most closely
represents your
viewpoint
Additional Comments: If you have any further
information you wish to share on this issue, or any
specific tenure requirements that you feel relate to this
concern, please record them in this column.
neutral
neutral
neutral
neutral
neutral
neutral
89
#
Questions
7
The lack of ownership over the
improvements I have made to the land
does not limit the type of or level of
investments in improvements I am
willing to make
There is enough certainty surrounding
the multiple resource uses allowed to
occur concurrently within my tenure
area to allow me to run my business
The restrictions on other resource users
in the area are sufficient to preserve the
resources I need to run my business
It is unlikely that the government will
terminate my tenure before it is due to
expire
take a portion of my tenure before it is
due to expire
change the restrictions on my tenure
before it is due to expire
It is likely that the government will grant
another tenure in my operating area
that is not compatible with my business
If the government terminated my tenure
they would give me appropriate notice
8
9
10
11
12
13
14
Choose the
answer from the
drop down menu
that most closely
represents your
viewpoint
neutral
neutral
neutral
neutral
neutral
neutral
neutral
neutral
90
#
Questions
15 If the government took back a portion of
my tenure they would give me
appropriate notice
16 If the government changed the
restrictions on my tenure they would
give me appropriate notice
17 If the government granted another
tenure in my tenured operating area
that was not compatible with my
business they would give me
appropriate notice
18 The government treats the various
resource industries with equality in
matters related to tenure arrangements
19 The terms of my tenure increase my
ability to obtain financing for my
business
20 The terms of my tenure increase my
ability to acquire insurance to protect
my business
21 The terms of my tenure make acquiring
the insurance I need to protect my
business cost prohibitive
22 The guidelines that regulate the
improvements I am allowed to make in
my tenure area are appropriate
Choose the
answer from the
drop down menu
that most closely
represents your
viewpoint
neutral
neutral
neutral
neutral
neutral
neutral
neutral
neutral
91
#
Questions
23 The size of my tenure allows me to run
my business in an effective manner
24 The guidelines that protect
environmental and/or cultural resources
in my tenure area allow me to run my
business in a competitive manner
25 The regulations the government used to
control my tenure do not keep me from
running my business in a competitive
manner
26 The government would consult me
before considering terminating my
tenure
27 The government would make sure my
business interests are met before
considering terminating my tenure
before considering taking back a portion
of my tenure
considering taking back a portion of my
tenure
Choose the
answer from the
drop down menu
that most closely
represents your
viewpoint
neutral
neutral
neutral
neutral
neutral
neutral
neutral
92
#
Questions
before considering changing the
conditions of or restrictions on my
tenure
considering changing the conditions of
or restrictions on my tenure
before considering granting another
tenure in my operating area that is not
considering granting another tenure in
my operating area that is not
34
The government would compensate me
fairly if my tenure was terminated
35 The government would compensate me
fairly if a portion of my tenure was taken
back
36 The government would compensate me
fairly if the they changed the conditions
of/or restrictions on my tenure
Choose the
answer from the
drop down menu
that most closely
represents your
viewpoint
neutral
neutral
neutral
neutral
neutral
neutral
neutral
93
# Questions
Comments
37 Are there terms of your current
tenure document that you feel
unfairly limit the competitiveness of
your business?
38 If yes, what specific changes to the
terms of your current tenure
document do you feel would be
required to address this issue(s)?
39 Are there any tenure compliance
tools used by the government that
you feel are not effective in creating
compatible use of public lands?
94
The following statement was similar for all the phone interviews listed below:
My name is Aaron Heidt and I am a graduate student in the School of Resource and Environmental Management at Simon Fraser University
in British Columbia. I sent you an e-mail about my research on the security of commercial recreation land-use tenures and the rights of
tenure holders to compensation for government taking.
Thank-you for responding to my e-mail.
Before we begin I would like to remind you that your participation in this interview is voluntary and you may choose not to respond to any
question or terminate the interview at any time. When an interview may require comments or opinions about your employer or company, the
SFU ethics policy requires me to inform you that your employer has not been approached for approval of this interview and that by
answering questions over the telephone you are giving consent to participate in this study.
All information that you provide in this interview will be kept strictly confidential in accordance with Simon Fraser University’s research
ethics guidelines. Any personal identifying information you provide will be used only to contact you for interview purposes. Your response
will be stored in a secure manner. Individual records will be identified using a code for data analysis and all records will be destroyed once
the data analysis is complete. Your responses will be combined with those of several other respondents to provide an overall understanding
of experiences relating to security of commercial recreation tenure contracts.
Your participation in this research is very important to us, and we appreciate the valuable time you are sharing to complete this interview. If
you have any questions or concerns about the interview content or use, please feel free to contact my supervisor Dr. Peter Williams, Director
of the Centre for Tourism Policy and Research at Simon Fraser University at 604-291-3074 or [email protected]
Would you like to continue with the interview? Do you have any questions before we begin?
95
CR EXPERIENCE TELEPHONE INTERVIEW
What type of tenure do you currently hold?
How long have you held your tenure for?
Have you held any other tenures in the past?
If yes, what type?
What type of commercial recreation business are you involved with?
QUESTIONS
If yes,
YES
NO COMMENTS:
1. Have you ever had an
experience with the termination of
your tenure?
a) Were you compensated?
(If no skip to b) If yes, was the compensation
question 2) fair?
c) Were you consulted?
d) Do you feel the consultation
process was adequate?
e) Were you given advance
notice?
f) Was the notice adequate?
If yes,
2. Have you ever had an
experience with the government
taking a portion of your tenure?
question 3) fair?
96
QUESTIONS
notice?
YES
NO COMMENTS:
3) Have you ever had an
changing the provisions of your
tenure?
If yes,
question 4) fair?
notice?
4) Have you ever had an
granting a tenure you felt was not
compatible with your tenure over
the same area and time period?
If yes,
question 5) fair?
97
QUESTIONS
notice?
YES
NO COMMENTS:
5. Have you had an experience
with your current or past tenure
contracts where you were unable
to acquire financing as a direct
result of the terms of your tenure
contract?
contract(s) where you were
unable to acquire the insurance
you were seeking as a result of
terms in your tenure contract?
contract(s) where the terms of the
contract resulted in an increase in
cost (or, if this is your first policy,
a cost that is prohibitive to
business start-up) of your
insurance premium?
98
INSURANCE AGENCY TELEPHONE INTERVIEW
1
2
3
4
5
6
To a great
extent
Somewhat
Marginal
Completely
#
Please state to what degree the following
commercial recreation tenure contract
characteristics affect the insurance premiums/
availability/ scope of coverage/ deductible
amount of CR tenure holders
The degree of control over different resource uses
Comprehensiveness (forests, minerals, water etc) in tenure area
The degree to which the contract allows the tenure
holder to adjust activities to meet market needs
The length of the contract
Duration
Assurance that the contract can be renewed
The ability of the tenure holder to sell the contract to a
willing buyer
Transferability
The ability of the tenure holder to sublicense a portion
of the tenure
Not at all
How long have you worked in the insurance business for?
What size of commercial recreation businesses do you generally insure?
Do you insure CR operations in BC exclusively or do you insure CR operators in other regions as well?
If the contract characteristic
influences the insurance premiums/
availability/ scope of coverage/
deductible amount of the CR tenure
holder's insurance policy please
briefly state in what way
The tenure application fee and associated
Limits to economic consultation and feasibility studies required in the
7 benefits
application process
8
User fees
9
Management fees and security deposit
Ownership of intensive improvements (lodges, fences
10
etc.)
Ownership of extensive improvements (trail networks,
11
viewscapes etc.)
99
12 Exclusiveness
13
14
15 Security
16
17
18
19
20
21 Use restrictions
22 Size specifications
Management
23 stipulations
24
To a great
extent
Somewhat
Marginal
Not at all
Completely
#
The sole right to use the resources in a particular
area for any purpose
area for commercial recreation purposes
Restrictions on other users that protect the resource
for recreation use
Ability of government to terminate contract due to
financial arrears
non-compliance of tenure holder to contract
regulations
public interest or for no cause
The length of notice government gives to tenure
holder before contract is terminated
Governments ability to change the regulations of the
contract
Governments ability to change the fees outlined in the
contract
The ability of the tenure holder to make
improvements to the land without restriction
The size of the area under the tenure
The extent of environmental, cultural protection and
other environmental regulations
The requirement of the tenure holder to hold external
licenses
100
25
26
27
28
29
30
31
32
33
To a great
extent
Somewhat
Marginal
Not at all
Completely
#
Government requirements for management plans
Operational controls from tenure holder
Government's ability to audit and/ or inspect tenure
holders site
Degree to which the government consults tenure
holder about changes to the tenure contract
Consultation
holder about the termination of tenure contract
holder about granting additional tenures in the area
Degree to which the government compensates the
tenure holder for changes in contract regulations
Compensation
tenure holder for contract termination
tenure holder for intensive improvements
tenure holder for extensive improvements
101
Comments:
34
Are any tenure contracts looked upon more
favourably by insurance agencies (license of
occupation, leases, park use permits)?
35
Are any resource industries (forestry, mining,
aquaculture, commercial recreation, oil and gas, etc.)
more favourably treated by insurance agencies?
36
If yes, to what degree is this treatment a reflection of
terms of their tenure contracts?
LENDING INSTITUTION TELEPHONE INTERVIEW
Completely
To a great
extent
Somewhat
Marginal
characteristics influence the ability of CR tenure
#
holders to acquire financing
1 Comprehensiveness (forests, minerals, water etc) in tenure area
2
3 Duration
4
5 Transferability
willing buyer
None
How long have you been in the lending business for?
What size of commercial recreation businesses do you generally lend to?
Do you lend to CR operations in BC exclusively or do you lend to CR operators in other regions as well?
influences the ability of the tenure
holder to obtain financing please
102
6
Limits to economic
7 benefits
8
9
10
11
12 Exclusiveness
13
14
15 Security
16
17
18
Completely
To a great
extent
Somewhat
None
Marginal
#
of the tenure
consultation and feasibility studies required in the
application process
User fees
etc.)
viewscapes etc.)
for recreation use
financial arrears
regulations
103
Completely
To a great
extent
Somewhat
Marginal
None
#
19
Governments ability to change tenure provisions
20
contract
21 Use restrictions
22 Size specifications The size of the area under the tenure
Management
23 stipulations
24
licenses and/or insurance
25 Operational controls from tenure holder
26
holders site
27 Consultation
28
29
30 Compensation
tenure holder for changes in contract regulations
31
tenure holder for contract termination
32
tenure holder for intensive improvements
104
Somewhat
To a great
extent
Completely
Somewhat
To a great
extent
Completely
Marginal
#
None
tenure holder for extensive improvements
33
Comments:
34
Are any tenure contracts (license of occupation,
leases, park use permits) more likely to be denied
financing because of the tenure provisions?
35
Are any resource industries (forestry, mining,
more favourably treated by lending institutions?
36
LEGAL PROFESSIONALS TELEPHONE INTERVIEW
Marginal
To what degree do the following property rights
characteristics influence the right of the tenure
#
holder to compensation for government taking
1 Comprehensiveness (forests, minerals, water etc) in tenure area
2
None
What type of experience do you have working with CR operators?
influences the right of the CR tenure
holder to compensation please briefly
state in what way
105
5 Transferability
6
Completely
To a great
extent
Marginal
None
Somewhat
#
3 Duration
4
willing buyer
of the tenure
state in what way
Limits to economic consultation and feasibility studies required in the
7 benefits
application process
8
User fees
9
10
etc.)
11
viewscapes etc.)
12 Exclusiveness
13
14
for recreation use
15 Security
financial arrears
16
regulations
106
17
18
19
20
21
22
23
24
25
26
27
28
29
Completely
To a great
extent
Marginal
None
Somewhat
#
Governments ability to change the regulations of the
contract
contract
Use restrictions
Size specifications The size of the area under the tenure
Management
stipulations
licenses and/or insurance
Operational controls from tenure holder
holders site
Consultation
state in what way
107
30 Compensation
Completely
To a great
extent
Marginal
None
Somewhat
#
Degree to which the government addresses
compensation in the tenure contract
state in what way
Comments:
35
As a whole do any tenure contracts afford the tenure
holder greater rights to compensation (license of
occupation, leases, park use permits)?
Do any resource industries (forestry, mining,
have a greater right to compensation (or have
received a greater degree of compensation in the
past)?
36
34
108
Appendix 6
Contracts, Legislative Acts and Secondary Information used in Comparative
Analysis
Contracts Administered by Lands and Water BC Incorporated prior to July 2005
•
Agriculture Lease with Option to Purchase
•
Aquaculture Lease – Unregisterable
•
Commercial Recreation Lease
•
Commercial Recreation of Licence of Occupation
•
Commercial Recreation Licence of Occupation – Intensive Use
•
Commercial Licence of Occupation – Non Profit Intensive Use
•
Commercial Recreation Licence of Occupation – River Use
•
Commercial Recreation Licence of Occupation – Sport Fishing
•
Commercial Recreation Temporary Use Permit – River Use
•
Commercial Recreation Temporary Use Permit - Sea Kayaking
•
Communication Sites Licence of Occupation
•
Communication Sites Statutory Right of Way
•
Energy Production Lease
•
Energy Production Licence of Occupation
•
Energy Production Right of Way
•
Golf Lease
•
Grazing Lease
•
Industrial Lease
•
Industrial Licence of Occupation
•
Moorage Licence of Occupation
•
Quarrying Lease
•
Quarry Licence of Occupation
•
•
Standard Lease – Unregisterable
•
Utility Licence of Occupation
•
Utility Statutory Right of Way
Contracts Administered by BC Ministry of the Environment (was Ministry of Water,
Land and Air Protection)
•
Guide Outfitters Certificate
•
Guide Outfitters Licence
•
Park Use Permit – Commercial Land Use Occupancy
•
Park Use Permit – Commercial Recreation
Contracts Administered by BC Ministry of Forests and Range (was Ministry of
Forests)
•
Forest Licence
•
Tree Farm Licence
Contracts Administered by Alberta Public Lands Division
•
•
Miscellaneous Lease Public Lands and Forests
•
Recreation Lease
109
Contracts Administered by Ontario Ministry of Natural Resources
•
Land Lease – Tenure
Contracts Administered by Yukon Lands Division
•
Lands Use Permit
•
Lease (Territorial Lands (Yukon) Act the Territorial Lands Regulation)
•
Lease (Yukon Lands Act and Lands Regulation)
Contracts Administered by Parks Canada
•
Lease
•
Contracts Administered by the USDA Forest Service
•
Marina Resort Term Special Use Permit
•
•
Special Use Permit for Outfitting and Guiding
Contracts Administered by the USDI Bureau of Land Management
•
Special Recreation Permit
Contracts Administered by the USDI National Parks Service (Alaska division)
•
•
Concession Permit
Contracts Administered by the Alaska Department of Natural Resources
•
Commercial Recreation Permit Application
•
Land Use Permit
•
Lease
Land Use Policies in BC
•
Land and Water BC Aggregate and Quarry Materials Land Use Policy
(http://www.lwbc.bc.ca/01lwbc/policies/policy/land/aggregates.pdf)
•
Land and Water BC Agriculture Extensive Land Use Policy
(http://www.lwbc.bc.ca/01lwbc/policies/policy/land/agriculture_ex.pdf)
•
Land and Water BC Aquaculture Land Use Policy
(http://lwbc.bc.ca/01lwbc/policies/policy/land/aquaculture.pdf)
•
Land and Water BC Commercial – General Land Use Policy
(http://lwbc.bc.ca/01lwbc/policies/policy/land/com_general.pdf)
•
Land and Water BC Commercial Alpine Ski Land Use Policy
(http://lwbc.bc.ca/01lwbc/policies/policy/land/skiing_alpine.pdf)
•
Land and Water BC Commercial Recreation Land Use Policy
(http://www.lwbc.bc.ca/01lwbc/policies/policy/land/com_rec.pdf)
•
Land and Water BC Communication Sites Land Use Policy
(http://lwbc.bc.ca/01lwbc/policies/policy/land/communication_sites.pdf)
•
Land and Water BC Grazing Land Use Policy
(http://lwbc.bc.ca/01lwbc/policies/policy/land/grazing.pdf)
•
Land and Water BC Industrial – General Land Use Policy
(http://lwbc.bc.ca/01lwbc/policies/policy/land/industrial_gen.pdf)
•
Land and Water BC Oil and Gas Land Use Policy
110
•
(http://lwbc.bc.ca/01lwbc/policies/policy/land/oil_gas.pdf)
Land and Water BC Utilities Land Use Policy
(http://lwbc.bc.ca/01lwbc/policies/policy/land/utilities.pdf)
Legislative Acts in BC
•
Forest Act
•
Forest and Range Practices Act
•
Land Act
•
Parks Act
•
Wildlife Act
Legislative Acts in Alberta
•
Expropriation Act
•
Public Lands Act
Legislative Acts in Ontario
•
Expropriation Act
•
Public Lands Act
Legislative Acts in Yukon
•
Territorial Lands Act
Legislative Acts in Canada
•
Canada National Parks Act
•
Expropriation Act
Regulations in the United States of America
•
Public Lands Act – Interior
Statutes in Alaska
•
Alaska Land Act
Secondary Resources
•
Alberta Tourism Recreation Leasing Process 1999 (http://www.albertacanada.com/td/files/pdf/atrl.pdf )
•
Alberta Lands Application
(http://www3.gov.ab.ca/srd/land/docs/LS1_application.doc)
•
National Parks of Canada Lease and Licence of Occupation Regulations 1991
(http://laws.justice.gc.ca/en/N-14.01/SOR-92-25/text.html)
•
Timber Tenure System Quick Reference, Cortex Consulting 2001
(http://www.cortex.org/TimberTenSysWeb_Nov2001.pdf)
•
Yukon Lands Info Fact Sheet 6
(http://www.emr.gov.yk.ca/lands/info/fact_sheets/fact_sheet_six_landuseperm
its.pdf)
•
BC Park and recreation area regulation
(http://wlapwww.gov.bc.ca/bcparks/info/pup_fees.pdf)
•
Provincial Park Use Permit fees Q&A
(http://wlapwww.gov.bc.ca/bcparks/info/pup_fees_q&a.pdf)
111
Appendix 7
Forms of Crown Land Allocation
Land and Water BC Tenures 1
Investigative Permit
An investigative permit grants the right to carry out specified activity(s) for a short term,
but does not allow the construction of any improvements on the land. An investigative
permit may be issued to allow for the investigation of project feasibility. An investigative
permit may be issued to any proponent requiring access to the land for appraisals,
inspections, analyses, inventories, surveys or other investigations of Crown land or its
natural resources, or where otherwise required.
Commercial activity is not permitted under an investigative permit unless specifically
provided for in a land use program. Some land use programs allow limited “proof of
concept” and/or pilot-scale sales at LWBC’s discretion.
The investigative permit must be used diligently and is not to be used for the sole purpose
of holding the land for potential future application. A permit may be cancelled for nondiligent use.
The permit holder must allow public access to the area without interference, and must
recognize that overlapping and layering of tenures may be authorized by government.
LWBC will consult with the permit holder before issuing any other lease, licence or
permit for any purpose over the investigative permit site.
An investigative permit does not guarantee any future tenure.
The maximum term for an investigative permit is 2 years. Investigative permits may be
replaced when there are legitimate business requirements for a longer investigative
period. Investigative permits cannot be assigned to a third party.
LWBC may require the results of the investigations to be reported.
Temporary Permit
A temporary permit grants the right to carry out specified activity(s) for a short term.
A temporary permit may be issued for any temporary uses (including one-time events and
sustained or repeated use of Crown land), where a business is better served by such a
permit than by a license of occupation. Temporary permits may also cover a general area
comprising multiple areas of use in the form of a blanket permit.
1
This information was taken from the LWBC website:
(http://lwbc.bc.ca/01lwbc/policies/policy/land/crown_land_allocation.pdf) on July 30th, 2005.
112
A temporary permit does not grant exclusive use. The tenure holder must allow public
access to the area without interference and must recognize that overlapping and layering
of tenures may be authorized by government.
The maximum term for a temporary permit is 2 years. Temporary permits are
replaceable. Replacement of tenures is at LWBC’s discretion. LWBC may decline to
replace a tenure, or may alter the terms and conditions of a replacement tenure, if, for
example, the existing tenure is not in good standing, if development contemplated in an
approved management plan has not been completed, or where it is deemed to be in the
public interest.
Works Permit
A works permit may be issued to construct a road, non-commercial airstrip, bridge or trail
over the land. This permit does not entitle the applicant to deny to any person the right to
use the road, non-commercial airstrip, bridge or trail.
The standard term for a works permit is 2 years and the maximum term is 10 years.
Works permits may be replaced.
A licence of occupation may be issued where minimum improvements are proposed or
where short term tenure (e.g., 5 to 30 years) is required. A licence of occupation may also
be used: where it is in the best interest of the Crown to allow high demand areas or
parcels to be used by numerous users (e.g. communication sites on mountain tops); when
the land is located in remote areas and legal survey costs required for lease or right of
way are prohibitive; or, when the Crown wishes to retain a greater degree of control in
the management of the land than permitted by a disposition of a leasehold interest. A
licence of occupation may also be used to allow development to proceed while an
applicant is awaiting completion of survey requirements for a lease or right of way.
A licence of occupation conveys fewer rights than a lease. It conveys non-exclusive use
for the purpose described, is not a registerable interest, and does not require a survey.
The tenure holder may be given the right to modify the land and/or construct
improvements as specified in the tenure document. The tenure holder may, in accordance
with section 65 of the Land Act, take legal actions against any unlawful acts by
individuals interfering with the holder’s right to use the land as authorized by the tenure
(e.g., stealing personal property, damaging improvements). However, a licence of
occupation does not confer a right to the exclusive use and occupancy of the land. A
licence of occupation does not allow the tenure holder to curtail public access over the
licence area except where it would impact the licensees’ right to use the land as per the
licence document (e.g. improvements placed on the land may be locked or gated).
Government may authorize overlapping and layering of tenures.
The standard term for a licence of occupation is 10 years, though some programs may
have shorter minimum terms. A maximum term of 30 years is available under some land
use programs.
113
In most cases, tenure holders may apply for a tenure replacement following the mid-term
of the tenure. Replacement of tenures is at LWBC’s discretion. LWBC may decline to
replace a tenure, or may alter the terms and conditions of a replacement tenure, if the
existing tenure is not in good standing, if development contemplated in an approved
management plan has not been completed, or where it is deemed to be in the public
interest.
Lease
A lease should be issued where long term tenure is required, where substantial
improvements are proposed, and/or where definite boundaries are required in order to
avoid land use and property conflicts. A legal survey will be required at the applicant’s
expense to define the tenured area.
The tenure holder has the right to modify the land and/or construct improvements as
specified in the tenure document. The tenure holder is granted the right to exclusive use
and enjoyment of the area. The tenure holder also has the right to exclude or charge the
public for use of the land and/or improvements, when this is consistent with the terms of
the lease. The lessee may, in accordance with section 65 of the Land Act, take legal
action against trespassers to the lease area.
The standard term for a lease is 30 years. A maximum term of 60 years is available in
some land use programs.
Leases of area over 520 ha must be approved on behalf of the Minister by the LWBC
Board or Directors in accordance with the LWBC Delegation Agreement.
In most cases, tenure holders may apply for a tenure replacement at any time following
the mid-term of the tenure. Replacement of tenures is at LWBC’s discretion. LWBC may
decline to replace a tenure, or may alter the terms and conditions of a replacement tenure,
if the existing tenure is not in good standing, if development contemplated in an approved
management plan has not been completed, or where it is deemed to be in the public
interest.
Right of Way
A statutory right of way is normally used to authorize linear uses of Crown land for
transportation, communication, energy production and utility developments (e.g. roads,
power lines, cable telecommunications, oil and gas pipelines etc.). A legal survey will be
required at the applicant’s expense to define the tenured area.
A statutory right of way can be registered in the land title office The tenure holder is
granted a legal right of passage over the land for a specific purpose. It generally does not
confer the right to exclusive use and enjoyment of the area, but does provide the tenure
holder with certainty respecting access to the land and use of the improvements.
Exclusive use may be granted where required for safety reasons. The tenure holder may,
in accordance with section 65 of the Land Act, take legal action against individuals
interfering with the holder’s right to use the land as authorized by the tenure (e.g.,
stealing personal property, damaging improvements).
114
Statutory rights of way for major activities are normally issued for “so long as required”.
Shorter tenures may be issued where the use is of a shorter duration as defined under a
specific program policy.
Easement
An easement is a non-possessing interest held by one person in another person's land
whereby the first person is accorded partial use of such land for a specific purpose.
An easement is used to authorize linear uses where no legal interest in the land is
required. An easement can be granted for any purpose necessary for the operation and
maintenance of the grantee's undertaking, including a right to flood. Easements may be
used when selling Crown land if there is a need to register a linear corridor for the use of
a third party against the title.
It does not confer the right to exclusive use and enjoyment of the area, nor the right to
exclude the public from the land except as provided in the document (e.g. for safety
purposes).
Ministry of Water Land and Air Protection Tenures
BC Park Use Permit
By legislation, a permit is required for many types of commercial use, and land use/land
occupancy that take place in parks and protected areas designated under the Park Act, the
Environment and Land Use Act or the Protected Areas of British Columbia Act. There are
five types of park use permits (PUP) that can used for the purposes of commercial
recreation: Interim PUP, non-exclusive PUP, exclusive/limited PUP, exclusive with
moderate facilities PUP, exclusive with major facilities PUP. Interim permits are issued
for one year to allow a developer to create a lodge development and management plan.
Non-exclusive PUPs are issued for non-exclusive CR activities with no or minimal
facilities, and can be issued for 1-5 years. The exclusive/limited PUP is issued for
exclusive use, with no or minimal facilities, and can be issued for up to 10 years.
Exclusive with moderate facilities PUPs for the most part grant exclusive rights for CR
activities, and permit the development of facilities with a low level of investment.
Duration is for up to 10 years. The exclusive with major facilities PUP offers exclusive
rights for CR activities and allows the development of facilities with a high level of
investment. Duration is for up to 20 years. With the exception of the interim permit all
PUPs offer mid-term renewal. Each permit may allow for differing levels of activity
impact, and motorized or non-motorized use, however the higher the activity impact the
greater the permit fees.
Guide Outfitters Certificate 2
The guide outfitter licence is issued annually and allows the guide outfitter to operate a
guiding business. Without a licenced guide outfitter there can be no business. A licenced
2
This information was taken from the Fish and Wildlife Branch website:
(http://wlapwww.gov.bc.ca/fw/home/becoming_guide_outfitter.htm) on October 16th, 2005.
115
guide outfitter may apply to a regional manager for a guide outfitter certificate which
gives him or her the exclusive guiding privileges in a guide area for a period not
exceeding 10 years. Guide outfitter certificates are granted for an exclusive guide area
with clearly defined and legally described boundaries. The guide areas vary considerably
in size and availability of big game species. The certificate may be renewed any time
after the fifth anniversary for a further 10 years. The certificate does not confer any
property rights on the holder, and only the rights of the person named on the certificate
are recognized by the province. Under section 61 of the Wildlife Act, a regional manager
has the power to suspend, cancel or refuse to renew a guide outfitter’s licence or
certificate.
116

Towards Greater Tenure Security for Commercial Recreation

Transcription

Similar documents

16 MONTH LEASE SPECIAL

5145 BUEHLERS DRIVE ∙ MEDINA, OH THE SHOPPES AT RIVER

pdf - HaveSiteWillTravel.com

for lease - Godin Property Brokers

for lease - Godin Property Brokers

Map 8c Area from which Beckford`s Tower is Visible (Landmark 2)

Prime Retail Location For Sale/Lease Former Ken Jones Ski Mart 15

Yateem Legacy Shopping Center

Carphone Warehouse headquarters

Listing Flyer - Former Crusty`s Pizza