Recent changes to the Wildfire Regulation: What does it mean for forestry operators in British Columbia?‎

On April 24, 2023, the Government of British Columbia made amendments to the Wildfire Regulation, BC Reg 38/2005 (the “Regulation”) under the Wildfire Act, [SBC 2004] c 31 (the “Act”). Some of the key amendments relate to fire control cost recovery, new documentation requirements when extinguishing fires, new fuel break requirements and additional fire watcher responsibilities. The full changes to the Regulation may be found here.

These changes are important for forestry operators because:

• those using debris pile burning as a means to carry out fire hazard abatement no longer have an exemption from fire control cost recovery orders made by the Crown;
• it may be more difficult to establish a defence of due diligence if a wildfire occurs as a result of debris pile burning;
• fuel breaks are now required around the entire cutblock when carrying out fire hazard abatement; and
• there are new requirements for fire watchers when carrying out “high risk activities”.

What are the key changes?

Fire control cost recovery

Under the Act, a person who has caused or contributed to a wildfire or to the spread of a wildfire may be ordered to pay the government’s costs to fight the fire. In certain circumstances, section 29 of the Regulation provides exemptions from fire control cost recovery orders.

Under section 29(b) of the Regulation, a person is exempt from paying the government’s fire control costs if:

• the person, through their acts or omissions, did not willfully cause or contribute to the start or spread of the fire; and
• the fire that gave rise to the government’s fire control costs resulted from timber harvesting, silviculture treatments, road construction, road maintenance or road deactivation by a person holding an agreement or licence under the Forest Act and who is not in arrears for the annual rent payable for the agreement or licence.

Previously, it was not clear whether debris pile burning for hazard abatement could be considered either a timber harvesting or silviculture activity under section 29(b), such that it would provide a forest licensee with an exemption from recovery of the government’s fire control costs if a fire accidentally escaped in those circumstances.

However, the amendments to the Regulation now expressly provide that the cost recovery exemption in section 29(b) (now section 29(1)(b)) will not apply when the wildfire is caused by the use of an open fire, such as debris pile burning carried out for fire hazard abatement.

The effect of the change is that the use of fire, such as debris pile burning, is now clearly not protected from cost recovery orders, even if it is carried out as part of timber harvesting or silviculture treatments.

Extinguishing a fire

While the Regulation previously provided that a person who lights, fuels or uses a category 3 open fire ensured that the fire is extinguished by the date specified in the burn registration, a new requirement to document the actions taken to confirm that the fire is extinguished and to provide that documentation at the request of an official has been added in section 22(2.1) of the Regulation with the recent amendments.

This documentation requirement will be a critical element in establishing a due diligence defence if a fire escapes from a debris pile.

Fuel breaks

With the amendments, when Category 3 open fires are used by qualified holders for hazard abatement in a cutblock, a fuel break is now required around the entire cutblock under section 22(1)(e), not just around the burn area or each debris pile, as was previously required.

Fire watcher requirements

The amendments also bring in new requirements for fire watchers when engaging in “high risk activities” under section 6(4) of the Regulation. While a fire watcher was previously required under this provision, the amendments now require that a fire watcher must:

• be reasonably able to see all areas of the high risk activity at all times during the time the fire watch is required. This change means that a fire watcher’s view of the high risk activities may not be impeded, and the fire watcher may not travel between different sites to monitor different high risk activity sites. There must be as many fire watchers as required to reasonably see all areas of the high risk activity at all times during the time the fire watch is required;
• be dedicated to patrolling and watching for smoke and fire on all areas of the high risk activity site and not carry out any other duties unrelated to being the fire watcher;
• have at least one fire fighting hand tool and access to a fire suppression system if one is required; and
• report any fire.

What do the changes mean for you?

Debris pile burning is a practical reality for forestry operators obliged to carry out fire hazard abatement. The amendments to the Regulation impose additional requirements on those carrying out fire hazard abatement activities and, if a fire does escape, it may be more difficult to establish a due diligence defence and there is an increase risk of being required to pay the government’s fire control costs, which can be extensive.

Forestry operators must ensure that they are complying with these new requirements when carrying out high risk activities or fire hazard abatement. We recommend having standard operating procedures reviewed by legal counsel to reduce the risks of non-compliance and fire control cost recovery orders.

If you have questions about how these or other changes to the Regulation impact your operations, contact one of your DLA Piper Forestry team members.