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British Columbia Crown Land Right-of-Way (3-BC-b)

Information current as of 2018
In British Columbia, a developer may need a Statutory Right-of-Way or Easement from the Ministry of Forests, Lands and Natural Resources Operations (Ministry) to access Crown lands for public or private utility development including electric transmission lines. Land Act, RSBC 1997, c. 245 s. 40. Typically, the Ministry issues a Statutory Right-of-Way to authorize linear uses of Crown land for utility developments – including electric transmission. The Ministry may issue an Easement instead of a Right-of-Way where a designated dominant tenement precludes issuance of a Right-of-Way. British Columbia Ministry of Forests, Lands and Natural Resources Operations – Land Use Operation Policy. The Ministry of Forests, Lands and Natural Resources Operations administers the Land Act, RSBC 1997, c. 245 and is responsible for the sale, lease, and license of Crown lands throughout British Columbia. The Ministry may issue tenure for the use of provincial Crown land for the disposition of Crown land by lease; license of occupation, right-of-way and easement under the Land Act. British Columbia Ministry of Transportation and Infrastructure – Crown Land Tenure Webpage.


Crown Land Right-of-Way Process

3-BC-b.1 – Crown Land Tenure Application

The developer must submit a complete online British Columbia – Crown Land Tenure Application (Application) via the FrontCounter BC web portal. An Application should include the written consent of any Crown lessee, licensee or statutory right-of-way holder across whose tenure the development is to be built, in addition to consents from various agencies with jurisdiction if appropriate. Land Use Operation Policy at p. 8; Land Act, RSBC 1997, c. 245 s. 32.


3-BC-b.2 to 3-BC-b.4 – Review Application Materials for Completeness

The Ministry reviews the Application materials for administrative and technical completeness. If the Application complies with the Land Act and is accepted the Ministry must publish the Application on a publicly accessible website. Land Act, RSBC 1997, c. 245 s. 32. The Ministry may also require the developer (applicant) to publish notice of the Application in accordance with Land Act, RSBC 1997, c. 245 s. 33.

3-BC-b.5 – Review Crown Land Status

After acceptance of a complete Application, the Ministry staff review the Crown Land in question to determine the status of the specific area to ensure all areas are available for disposition under the Land Act and to identify any potential issues. Land Use Operation Policy at p. 8.

3-BC-b.6 – Comment on the Application

Any person may comment on the Application within 30-45 days from the time of notice of the Application. Land Use Operation Policy at p. 8; Land Act, RSBC 1997, c. 245 s. 33.

3-BC-b.7 to 3-BC-b.10 – Review Application Materials for Approval

The Ministry must review the Application for approval. The Ministry considers comments on the Application when making a determination. The Ministry notifies applicant (developer) of the decision in writing. If the Ministry approves the Application, the Ministry offers tenure documents to the applicant (developer). Land Use Operation Policy at p. 9. The developer must satisfy all pre-conditions before the Ministry will sign the Crown Land Tenure authorizing a Statutory Right-of-Way or an Easement.

3-BC-b.11 – Appeal Decision (Optional)

A developer may petition for judicial review by the Supreme Court of British Columbia within 60 days of the decision by the Ministry. Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 57. The Court has discretion to review the petition or not. If the Court finds procedural unfairness, abuses of authority, or unreasonable findings, then it may invalidate the decision and/or remand the matter to the Ministry with instructions for a rehearing. Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, s. 5, 7. The Ministry may or may not reach a different decision upon rehearing the matter.

The Court has limited ability to review administrative decisions. It cannot set aside a finding of fact “unless there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable.” Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 59. The Court cannot set aside discretionary decisions unless they are “patently unreasonable.” For example, it could not overturn a decision because it did not prefer the outcome, but it could overrule a decision “exercised arbitrarily or in bad faith.” Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 59.


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