Have you ever wondered, “Does this ski hill own this whole mountain?” or “How are they buying a mountain?”
In reality, many ski hills may be operating on Crown land, under a Crown land tenure.
Crown land can be allocated to private individuals or corporations for a wide variety of purposes, ranging from agriculture and industrial uses to recreation and tourism. But obtaining a Crown land tenure is not automatic. The application process involves completing a number of requirements, and the Crown has significant discretion when deciding whether to grant a tenure.
For this reason, getting a Crown land tenure application right the first time is important. Once an application has been denied, there may be limited options for fixing the application after the fact.
How Does the Crown Land Tenure Process Work?How does the Crown land tenure process work?
Applicants can request the use of Crown land by submitting an application to FrontCounter BC. Before submitting an application, applicants need to consider the Crown policies that apply to the proposed use of the land.
For example, if Crown land is being sought for commercial use, the applicable Land Use Operational Policy – Commercial General must be followed.
Taking the time to review the applicable Crown policies is an important part of preparing an application. Applications can, and have, been denied for failing to address relevant Crown policies.
Once an application is submitted, government staff may work with the applicant to make sure all required information has been provided. Depending on the proposed use, the application may also be referred for consultation if it impacts the interests of ministries, agencies, First Nations, other water users, community groups, or other parties.
Once consultations, comments and objections have been received, the Crown Lands Authorizations office completes a technical review. Additional information may be requested before a final decision is made by a Crown decision-maker.
Does an Applicant Have a Right to Receive a Crown Land Tenure?
The granting of a Crown land tenure is ultimately within the discretion of the Crown.
The legislative authority for Crown land tenure decisions comes from the Land Act, R.S.B.C. 1996, c. 245, particularly sections 10 and 11. These sections provide that the Crown “may” dispose of Crown land as the minister considers advisable in the public interest.
Case law interpreting these provisions makes it clear that the Land Act does not give an applicant a right to a licence of occupation or any other form of Crown land tenure. Rather, it is within the discretion of the Crown whether or not to grant a Crown land tenure: Redmond v. British Columbia (Forests, Lands, Natural Resources Operations and Rural Development), 2022 BCCA 72 at para. 11.
The fact that a person or corporation has applied for a Crown land tenure does not, on its own, mean that the tenure will be granted.
What Does the Crown Consider When Deciding Whether to Grant a Tenure?
Decision-makers are guided by the Crown Land Allocation Principles Strategic Policy.
The main principles that decision-makers abide by when deciding whether or not to allocate Crown land include:
- Crown land values are managed for the benefit of the public.
- Economic, environmental and social needs and opportunities are identified and supported.
- The interests of First Nation communities are recognized.
- Decisions are timely, well-considered, and transparent.
- Public accountability is maintained during the allocation of Crown land.
A key consideration for the Crown decision-maker is whether the tenure is in the “public interest.”
“Public interest” is a broad term. In Falkenstein v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 BCSC 421 at para. 56, the Court noted that “public interest” is not defined in the legislative scheme and allows the decision-maker to consider a wide range of considerations. There is no set list of factors that must be considered.
Because the Crown has broad discretion, the scope of what may be considered “in the public interest” is correspondingly wide, and there is limited opportunity to challenge a Crown land tenure denial.
What Can You Do If Your Crown Land Tenure Application Is Denied?
If a Crown land tenure is denied, applicants can choose to resubmit a new application for a different use, or they can seek judicial review of the decision-maker’s decision if they believe it contains errors. However, the decision-maker has significant discretion to grant or deny a Crown land tenure. What is in the “public interest” is very broad. It is because of this broad discretion that there is a limited opportunity for review of a Crown land tenure denial through Judicial Review before the BC Supreme Court.
Judicial Review is a review conducted by the BC Supreme Court to see if the Crown’s decision-maker was reasonable or correct, or whether the decision-making process was procedurally fair. A Judicial Review is sought by filing a petition with the BC Supreme Court.
A Judicial Review is different from the traditional appeal process for decisions made in a court. There are limits on what issues can be reviewed by the court, and the standard of review that the reviewing court can employ. The standard of review depends on the issue being reviewed.
Per the Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov], there is a presumption of reasonableness unless (1) the legislature expresses an intention that a different standard should apply, (2) it is a constitutional question, (3) a question of law of central importance to the legal system, or (4) a question of jurisdictional boundaries between two or more administrative bodies. The Administrative Tribunals Act, S.B.C. 2004, c. 45, does not apply to decisions regarding Crown land tenure, and as such, the applicable standard of review is reasonableness. The Judicial Review Procedure Act, R.S. B.C. 1996, c. 241 applies to the review of Crown land tenure decisions.
What Does the Court Consider on Judicial Review?
The factors a court will consider when conducting a reasonableness review are whether the decision is based on internally coherent reasoning that demonstrates a rational chain of analysis and is justified in light of the legal and factual constraints. Factors the court will consider include the governing statutory scheme, other relevant statutes or common law, the evidence before the decision-maker, the submissions of the parties, past practices and decisions of the administrative body, and the potential impact of the decision on the individual: Vavilov.
For questions of procedural fairness, the standard of correctness applies. The Court will consider the following factors in assessing the degree of procedural fairness owed in the context: the nature of the decision being made, the nature of the statutory scheme, the importance of the decision to the individual affected, the presence of any legitimate expectations, and the choices of procedure made by the decision-maker: Baker v. Canada (Minister of Citizenship & Immigration), 1999 CanLII 699 (SCC). From there, the Court will consider what specific procedures were required (i.e. notice, right to counsel, timeline, reasons, etc.), the basic principles of fairness being the right to know the case and have the opportunity to respond.
From there, the Court considers what specific procedures were required, such as notice, the right to counsel, timelines, or reasons. Procedural fairness involves the right to know the case being considered and the opportunity to respond.
Why Is It Important to Get a Crown Land Application Right the First Time?
It is recommended that applicants consult with a lawyer prior to the application for the allocation of Crown land, because the old adage “a stitch in time saves nine” is particularly applicable for Crown land tenure applications. Applicants may lose their opportunity to lease Crown land or lose an existing tenure that they have already invested in if applications for Crown land tenure are not completed with sufficient care or are adequately responsive to Crown policies. Trying to “fix” the application on Judicial Review is not often a possibility, due to the limitations on what a court can review on Judicial Review of a Crown land tenure decision.
When Should You Speak to a Lawyer?
Navigating Crown land tenures without legal advice can be difficult.
Applicants should consider consulting with a lawyer before applying for the allocation of Crown land. Doing so can help ensure that the applicable Crown policies and requirements have been properly addressed.
If you are in the process of applying for a Crown land tenure or your Crown land tenure has been denied, please contact Miranda Wardman at wardman@pushormitchell.com .
