Land Owner Rights Forest Service Road Right-of-Way Access declared as a Forest Service road. FSRs are used to provide access to provincially managed forests on Crown land.

Introduction While most FSRs do not impact private land, there are situations where a road must cross private Providing access to Crown land for property because of geophysical approved logging operations is an restrictions or road design important responsibility of the requirements. When this occurs, Ministry of Forests. Legal forest the ministry establishes a FSR access is provided in accordance right-of-way. with the Forest Act, with consideration being given to long- A right-of-way is a strip of land on term fibre flow, employment, which a FSR exists or will be revenue for the Crown, and constructed to provide access for sustainable management of the approved logging operations. province’s forest resource. The ministry seeks to provide access for timber harvesting via the route that best satisfies Legal Access environmental, regulatory and socio-economic expectations. The process for securing legal access In exploring various rou t e to Crown forest land throu g h al t e r natives, one of the key factors private land right-of-way is guided taken into account is that of land by the Fo r est Act and other fores t ownership. The objective of the management priorities of the mi n i s t r y in this reg a r d is to locate Cr own. Under the Act, regional or Fo r est Service roads so they do not district Forests staff, in consultation conflict with private prop e rt y . with ministry engineering personnel, select the most appropriate rou t e A Forest Service road (FSR) is a road to access Crown timber. There are constructed, modified or maintained two main alternatives for gaining by the Ministry of Forests under legal access: provisions of the Forest Act or is

page 2 1.Right-of-way agreements for An agreement for temporary temporary access through access of three years or longer is means of a contractual one of two types. According to the agreement with the land specific situation, an agree m e n t owner. may req u i r e use of only a porti o n of the land. In these situations, a 2.Dedication of right-of-way, su r vey is req u i r ed to identify the which means that the Ministry ar ea to be used and access is of Forests acquires ownership limited to the surveyed area. In of the private land or a portion other situations, the right-of-way thereof. Under section 121 ag r eement allows use of various of the Forest Act, this option pa r ts of the entire prop e r ty and no provides permanent access legal survey is req u i re d . through the Crown’s negotiation for ownership Tem p o r a r y access for less than of the land. th r ee years falls into two categories. One category applies in a situation where there is no Temporary Access: existing road and the volume of timber typically is small. In these instances, a legal survey is not Th e re are diff e rent options req u i r ed and the ministry arra n g e s under contractual right-of-way the agreement with the prop e rt y a g reements, where temporary ow n e r . The other situation applies access is re q u i red and the land is when there is an existing road and retained by the owner. A key a Small Business Forest Enterprise aspect of these alternatives is the Pr ogram (SBFEP) agreement is in length of time for which place. The small scale private sector t e m p o r a ry access is re q u i red. In operator can arrange the situations where the agre e m e n t contractual agreement with the for temporary access is for thre e land owner, using a ministry years or longer, the agre e m e n t contract form. must be re g i s t e red with the Land Title Office. Agreements for less Another alternative for access than three years of access do not involves situations where the land n o rmally re q u i re re g i s t r a t i o n .

page 3 is owned and retained by a well-established corporation, with the expectation that corporate ownership will be retained for a long time. The mi n i s t r y can arrange a right-of-way agreement with the owner, with no obligation for a legal survey or registration in the Land Title Offi c e .

Temporary Access Alternatives

Access for three years or longer

1A 1B

legal survey no legal survey

right-of-way agreement right-of-way agreement on portion of property over entire property

register in Land Title Office register in Land Title Office

Access for less than three years

2A 2B (no existing road) (existing road)

no legal survey SBFEP agreement

right-of-way agreement

no registration with Land Title Offi c e

3 Corporate Owner (land retained by corporation)

no legal survey long-term right of way agreement no registration with Land Title Office Acquisition investigations will be by Dedication undertaken on the location of the proposed access.

When the most appropriate rou t e • The owner is next provided with to access Crown timber cros s e s the results of an engineering private land because no other road location survey. The survey viable alternative exists, the district confirms the road’s location and regional managers may within the property, its authorize right-of-way acquisition proximity to buildings or other to facilitate forest access. improvements and provides some indication of the impact The ministry determines the of the road on the value of the optimal method of securing access property. A legal survey follows, th r ough analysis of many factors which describes the position such as the urgency to gain legal and extent of the proposed access, length of time for which right-of-way in legal terms and access is req u i r ed, volume of timber provides a reference plan for to be accessed, volume of traffic on land title registration purposes. the road, secondary industrial users, potential for non-industrial use, • Next, the reference plan is used funding, costs, legal access by a property negotiator with al t e r natives, licensee agree m e n t s , the Ministry of Forests to justification for the acquisition and estimate the impact of the road the disposition or pref e r ence of the on the value of the property. land owner. Consideration of these This estimate includes the factors may direct ministry offi c i a l s impact of any improvements on to request dedication of legal access. the property, such as buildings or roads, that cannot be successfully removed from the The Steps: right-of-way. This estimate may involve property appraisals or other specialized studies. • After determining that a • The next step occurs when the proposed Forest Service road property negotiator contacts may impact private property, the ministry notifies the property owner that further

page 5 the land owner to explain the At the formal request of the acquisition process. At that ow n e r , the matter of time, the owner is provided compensation amount will be with a copy of the ref e r ence plan de t e r mined by the Exprop r i a t i o n and an estimate of Compensation Board. compensation required to offset 3. No agreement reached: the effects of right-of-way If no agreement can be reached acquisition on the utility and regarding dedication of the value of the property. The right-of-way and the owner has the opportunity to compensation level, the ministry seek clarification, ask questions may expropriate or legally take of the negotiator, and can possession of the land in the request an independent right-of-way pursuant to the property appraisal. Expropriation Act. There are three possible outcomes Compensation will be at this point: determined by the Expropriation Compensation 1. Owner agrees to offer:The Board upon the formal request offer letter and reference plan of the owner. are signed by the owner and property negotiator. When the Established in 1988, the plan for the right-of-way is Expropriation Compensation Board deposited in the appropriate Land Title Office, the owner’s is an independent agency with title to the land within the authority under the Expropriation right-of-way is removed or Act to determine the amount of extinguished and compensation compensation for expropriated land is paid to the land owner. and costs to be paid if there is a disagreement on these issues during 2. Owner agrees to dedicate the expropriation. Information about the land, but disputes compensation board and the act can be obtained by level: In this instance, the calling (250) 387-4321 or visiting owner may enter into an the board’s website at agr eement with the ministry that http://www.ecb.gov.bc.ca allows dedication of the right-of- way area, even though there is no agreement on compensation.

page 6 Dedication

Ministry determination of dedication option

Initial contact with land owner

Engineering road location survey

Legal survey

Property negotiator estimates land value

Estimate provided to land owner

Owner makes decision

Accepts offer Agrees to dedication, No agreement, not compensation refer to ECB level and then refer to ECB Frequently Asked comparing the land owner’s entire Questions property with similar properties recently sold on the open market in the area. The following questions are those most frequently asked by land Additional compensation may owners af fected by a right-of-way be offe r ed for useable land compensation and/or im p r ovements contained within ex p r opriation situation. the right-of-way, such as buildings or roads, and/or the loss of utility How is the amount of of the remaining land. compensation determined? Q How does a land owner The value of the land taken is know if the offered usually determined by estimating Qcompensation amount is the market value of the owner’s fair value? whole parcel of land before the dedication or taking, and the The ministry is committed to value of the land remaining after paying fair compensation for the taking. The diffe r ence is securing legal access. The usually the amount of ministry’s property negotiators are co m p e n s a t i o n offered, but in no fully accredited land appraisers case will the compensation be less and may also seek the advice of than the average per acre value of independent appraisers and other the owner’s land times the area of professionals to determine fair the right-of-way. The market compensation. Land owners are value estimates are determined by encouraged to ask questions and request explanations on any

page 8 aspects that are not clear, and not excluded, the value of the may also seek legal advice at their merchantable timber may be own discretion and expense. included on the land appraisal.

If the land owner feels the Can the land owner harvest ministry has not offered fair timber in the right-of-way? compensation, he/she may requestQ Are there conditions that that the acquisition proceed apply to this logging? according to the requirements of If the timber is private, the owner the Expropriation Act. The can harvest it until an agreement ministry will make an advance on compensation is reached. payment based upon its However, removing timber will compensation estimate, according reduce the amount of the offer. If to the Act’s requirements. If the the timber is to be removed by land owner is still unsatisfied, the land owner after the offer is he/she may request a review of accepted, the owner or his agent the matter by the Expropriation will have to apply to the Compensation Board. If the board appropriate Ministry of Forests determines that a higher district office for a timber mark compensation is warranted, the and pay stumpage fees. ministry will be ordered to pay the additional amount specified. How much land is usually The board may also order that a required for a right-of-way? part or all of the owner’s costs Q A 20 metre wide right-of-way is associated with the appeal be considered to be the minimum paid by the ministry. Thus, the requirement for proper road ministry undertakes to make a maintenance (i.e. cleaning out reasonable and equitable offer at ditches, loose rock and slide the outset. material), future widening Will the owner be (possibly to public road standards) compensated for any timber and the possible inclusion of future Q in the right-of-way? utilities (i.e. telephone or power lines) within the right-of-way. This depends upon whether or not the timber was excluded or excepted from the original grant of land from the Crown. If it was

page 9 Is a Forest Service road the Who is responsible for road Qsame as a public road? Q maintenance? A Forest Service road constructed Road maintenance is the or maintained under Section 66 of responsibility of the industrial the Forest Practices Code of British user(s) of the road. If the road is Columbia Act, the Forest Act, or a not being used for industrial former act, is not a public purposes, it will be maintained to highway. Such a road may be environmental and safety open for public use, depending standards by the ministry under upon safety and environmental the Forest Practices Code considerations determined by the regulations. This maintenance ministry’s district manager for the does not necessarily include snow area. It is always open to residents ploughing. requiring access to their property. Can an access road be built to Is a permit needed to use join with the Forest Service Q the roa d ? Qroad in the right-of-way? A permit is not required unless Yes – as long as a safe location the road will be used for can be found. It is necessary to industrial purposes such as secure the written consent of the hauling logs, fuel, etc. ministry’s district manager and engineering officer. Arrangements to connect to a Forest Service road can be made in the ministry’s

page 10 original offer to purchase the The Ministry of Forests regional right-of-way. engineering officer can only certify that the road meets the Can the property be requirements of the Land Title subdivided and use the Act, Regulation 334/79 (Highways Q Fo r est Service road for access? Access Alternatives Regulation). Yes, on the conditions that: For more information, property owners are encouraged to contact • the subdivision meets all the the district development criteria normally required by the technician of the Ministry of provincial or other approving Transportation and Highways or officer; municipal approving officer. • the Forest Service road, from Can the land owner be held its junction with the public liable if there is an accident road system through to the Qon a Forest Service road subdivision, meets the within the boundaries of the re q u i rements of Land Title Act, private land? regulation 336/79, section 15, which re q u i res a 7.5-metre or The land owner is not legally 9 . 0 - m e t re wide ru n n i n g responsible unless he or she is s u rface, and is certified as such involved in or causes an accident. by the ministry ’s re g i o n a l After the right-of-way is engineering officer; and established as a Forest Serv i c e road and becomes the pro p e rt y • a safe location can be found of the Crown, certain sections to junction with the Fore s t of the Motor Vehicle Act c o m e S e rvice ro a d . into eff e c t .

page 11 For more information, contact:

Ministry of Forests Resource Tenures and Engineering Branch Property Services Section 1450 Government Street, 3rd floor P.O. Box 9510, STN PROV GOVT Victoria, British Columbia V8W 9C2 Phone: (250) 387-8654 Fax: (250) 387-6445