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Part One - Governance Toolkit (PDF)


 

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3.13  Forests


 

3.13.1. Background

First Nations have relied on forest resources to support our traditional and cultural activities throughout our history.  Many of our Aboriginal rights are associated with having access to the forested lands within our territories.  While use of the forests for economic purposes has always been part of our societies, in the modern era our Nations have been engaged in industrial logging and other activities.  This subject matter is linked to land management, land and marine use planning, water, environment, emergency preparedness, heritage and culture and wildlife.  There are also similarities with approaches and issues for other renewable and non-renewable natural resource areas, such as minerals and precious metals, oil and gas and fish, fisheries and fish habitat. 

For the most part, existing reserve lands in BC have limited or few forest resources, although there are some exceptions.  Forestry on reserve is governed under the Indian Timber Regulations (C.R.C., c.961) made under the Indian Act.  Off-reserve, management over the forests, including the granting of access to the resource by third parties, is a provincial responsibility and governed under the Forestry Act as amended from time-to-time.  How the province has managed the forest resource has varied quite considerably over the past 30 years, depending on the political stripe of the ruling government.  

Aboriginal title to the land includes the forests and other natural resources and any use of these resources would necessarily impact Aboriginal title and rights.  The Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 (“Haida”) case established that before granting third party interests or exploiting resources, the government has a duty to consult and accommodate First Nations’ interests in lands where Aboriginal title is claimed, even before the First Nation has proved Aboriginal title.  As a result of advances in the recognition of title and rights, there are now a number of forestry related agreements and arrangements between First Nations and the province that have been negotiated and implemented.  First Nations also have a governance interest in their traditional lands based on Aboriginal title and a role to play in land-use decisions, including having a say on the nature and scope of forest developments within traditional territories.  To date, however, there has not, with the exception of the Kunst’aa guu – Kunst’aayah Reconciliation Protocol (“Haida Protocol”), been any agreement for shared decision–making or shared jurisdiction over off-reserve forestry.  It is contemplated that there will be more in the future and shared decision-making should be part of such arrangements.  In addition to governance interests, First Nations also have economic interests with respect to the forestry-sector business ventures many First Nations are involved in.  These should, however, not be confused with governance interests and First Nations involved in negotiations should advocate for both interests to be properly accommodated.

For much of the province’s history, forestry has been an important part of the economy and, consequently, how forests have been managed to facilitate industrial logging has really guided land-use decisions on Crown land.  Forestry licences are quite powerful instruments and forestry interests have had significant influence on the landscape of the province.  For more detailed information on Tree farm Licenses (TFL) and other forest tenures, see the resource section below.

First Nations’ participation in the forest sector through economic or business opportunities granted in interim accommodation deals has grown significantly in the past ten years.  The current estimate is that First Nations collectively hold 17% of the total provincial annual harvest.  Over the past ten years, timber harvesting averaged 69 million cubic metres per year (reaching 90 million in 1987 and 2005).

Although First Nations are now actively operating provincial tenures in forest management, the legal obligation regarding how forestry is conducted on these tenures falls within the provincial legal framework of the Forest Act (R.S.B.C. 1996, c. 157), the Forest Practices Code of British Columbia Act (R.S.B.C. 1996, c. 159), Foresters Act (S.B.C. 2003, c. 19) and other affiliated legislation, regulations and policy.  First Nations are not practising governance or shared decision-making over these tenured economic opportunities.

On reserve, the limited forestry resources are governed in accordance with the antiquated Indian Timber Regulations.  All sectoral governance initiatives that deal with land also deal with forestry.  All comprehensive governance arrangements also deal with forestry governance on reserve or settlement lands.  Treaty arrangements can have additional provisions respecting governance off reserve or access to forestry resources for economic purposes.

In BC, First Nations have established the First Nations Forestry Council under the auspices of the BCAFN, the First Nations Summit and the Union of BC Indian Chiefs, to address forestry issues. The Council is politically accountable to the First Nations of BC.  Similar to the Energy and Mining Council, this body’s focus is off reserve, but by implication any discussion of jurisdiction would necessary have to include consideration of on-reserve governance.  The mission of the First Nations Forestry Council is to:

  • Implement processes to restore the land and ecosystem;
  • Advocate on forestry matters on behalf of First Nations communities;
  • Support First Nations in managing the mountain pine beetle epidemic through implementation of the BC First Nations Mountain Pine Beetle Action Plan, including addressing development and capacity issues at the community level;
  • Work with governments and others to ensure that First Nations’ needs, values and principles are factored into forestry-related policy and program development, including monitoring, evaluating, influencing and providing policy advice and research;
  • Promote forestry-related opportunities for First Nations;
  • Providing effective communications to First Nations, governments and the general public with respect to forestry-related matters and the mountain pine beetle infestation;
  • Working with partner organizations, such as the First Nations Leadership Council and others, to increase efficiencies and benefits to First Nations communities; and,
  • Advocate on forestry matters on behalf of First Nations communities.

Canada is prepared to relinquish control of on-reserve forestry and full First Nation control is feasible.  However, off-reserve, the province remains reluctant to recognize First Nation shared decision-making and jurisdictions within traditional territories, despite having made arrangements with the Haida Nation.  Part of the issue has to do with ensuring that the proper Aboriginal titleholder is dealt with and there is also some uncertainty as to how institutions of shared decision-making would operate in practice.

This subject matter is an area where First Nations are exploring options to develop governance based upon their inherent rights.  Given that the courts have already established that there is an Aboriginal right to cut timber for cultural purposes, Nations are looking to develop their own legal framework to regulate the harvesting of timber not only on their existing reserves but off reserve for cultural purposes (R. v. Sappier; R. v. Gray, [2006] S.C.R. 686; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2008 BCCA 107).

It should also be noted that when forest issues are discussed in treaty negotiations in BC, they are linked to issues of fire prevention on Crown lands and forest health.

 

3.13.2. Indian Act Governance

Section 93 of the Indian Act prohibits removal of wood from a reserve:

 

93.  A person who, without the written permission of the Minister or his duly authorized representative,

(a) removes or permits anyone to remove from a reserve

(i) minerals, stone, sand, gravel, clay or soil, or

(ii) trees, saplings, shrubs, underbrush, timber, cordwood or hay, or

(b) has in his possession anything removed from a reserve contrary to this section, is guilty of an offence and liable on summary conviction to a fine not exceeding five hundred dollars, or to imprisonment for a term not exceeding three months or to both

 

The Indian Timber Regulations apply to the cutting of timber on reserve lands or on reserve lands that have been surrendered under the Indian Act.  The Regulations stipulate that it is forbidden to cut timber on reserve or surrendered lands without a licence from the Minister.  The Regulations define different instruments relating to forest management on reserves.  There are three main types of instruments under this Regulation, depending of the type of operator and the object of the operation:

  • Permit to cut timber for Indian use: to a First Nations Council for band purposes or to a member or group of members of a First Nation to cut timber and fuel wood for his or their individual use.
  • Permit to cut timber for sale: to a First Nations Council or to a member or group of members of a First Nation, for sale.
  • Licences: to any other person or company (third parties) for any purpose (more specifically for sale).  When on surrendered, lands this can be issued by the Minister without the consent of the Council, but when it involves timber on reserve lands, no licence of this nature will be issued without the consent of Council.

 

Under the regime instituted by the Indian Timber Regulations, our Nations could be assigned various roles, such as participating in the drafting of cutting licences and permits.  However, the Minister and the Department are always responsible for signing such instruments and no rights under the Regulations arise without a permit or licence from the Minister.

Curiously, there is also the Indian Timber Harvesting Regulations (C.R.C.  SOR/2002-109) that creates different rules for First Nations identified on the Schedule.  Ministerial permits are still required, but exceptions are made for “band’s” harvesting on unallotted lands on reserve for use on reserve and for harvesting for use on their allotted lands by holders of Certificates of Possession.  Only one First Nation, the Tl’azt’en First Nation, is listed on the Schedule to this Regulation.

It should be noted that Aboriginal rights still exist on reserve lands.  As a result, any analysis of the impact of the Indian Timber Regulations must take into account any Aboriginal right to harvest timber under section 35 of the Constitution Act 1982, which, if established, would put the onus on the Crown to justify that these Regulations do not unduly restrict the Aboriginal right to harvest timber.  It is hard to imagine that in most First Nations timber was not harvested pre-contact in a manner that meets the test of Aboriginal rights established by the courts.

 

3.13.3. Sectoral Governance Initiatives

Provincial Forestry Initiatives

While not specifically governance oriented (no recognition of law-making authority or jurisdiction), there have been a number of significant forest-related initiatives that provide forestry opportunities for our Nations, and which have evolved from the recognition of our rights and title.  While many of our Nations feel these arrangements do not go far enough in recognizing the extent of our interests in forest resources, they are, nonetheless, options that many Nations have taken up. 

 

Provincial Agreements and Arrangements: The provincial government has developed the Forest and Range Agreements (FRA) and the Forest Opportunity Agreements (FRO) into the new Forest Consultation and Revenue Sharing Agreement (FCRS) as part of the renewal of the previous shorter-term arrangements.  This change also separates the governance function of revenue-sharing from the economic function of tenure.  Furthermore, in the new FCRS agreement there is an incentive built into how much provincial forest revenue will be shared with each First Nation, depending on the type of agreement with the ministry and government:  interim accommodation agreement, Strategic Engagement Agreement (SEA), Reconciliation Agreement or treaty.

New BC Crown Tenure:  First Nations Woodlands License (FNWL): Recent work done by the First Nations Forestry Council and the province of BC through its report of the Working Roundtable on Forestry: Moving Toward a High Value, Globally Competitive, Sustainable Forest Industry, has resulted in a new form of provincial forest tenure being developed specifically for First Nations communities.  This tenure is intended to deal with concerns raised about the short-term nature (five years) of previous tenure opportunities and about not allowing for incorporation of First Nations values and principles of stewardship.  The new FNWL allows for a longer term and is area-based, with the ability for licensees to write their own forest management plans, which will include First Nations stewardship values.

The Framework Agreement on First Nation Land Management (Framework Agreement)

As an aspect of land management, the Framework Agreement includes provisions regarding renewable and non-renewable resources on First Nation lands that are subject to a First Nation’s Land Code.   Included are all the interests, rights and resources that belong to that land, to the extent that these are under the jurisdiction of Canada and are part of that land.    These include forestry resources.  The Framework Agreement covers reserve lands and resources on reserve lands but not off reserve lands.  However, developing institutions of government and laws on reserve helps inform discussions and in negotiating broader arrangements with the Crown or third parties with respect to your natural resources, such as timber, located off reserve within your traditional territory.

If your First Nation has significant forestry resources on reserve, then the Framework Agreement and the First Nations Land Management Act (FNLMA) provide a mechanism to exercise jurisdiction of forestry on reserve lands.  For example, McLeod Lake First Nation, which gained access to sizable forestry resources as a result of its adherence agreement to Treaty 8, used the Framework Agreement to displace the Indian Act and the Indian Timber Regulations.   The adhesions to Treaty 8 are somewhat unusual.  Although these arrangements were made quite recently, they are not understood as being made through the BC treaty process.  For example, the Indian Act continues to apply to the Nation that adhered to Treaty 8, which is why options like FNLMA were and are available.

 

3.13.4. Comprehensive Governance Arrangements

All of the comprehensive governance arrangements provide jurisdiction over forestry and forested lands on reserve or settlement lands, as the case may be.

 

3.13.4.1. – Comprehensive Governance Arrangement - Comparative Charts

 

  General Jurisdiction:

Sechelt

The First Nation manages the forestry resources as the owner of the resource. (Sechelt Constitution  Part 1, Division (3), ss.1-4)

Westbank

Jurisdiction over preservation and management of forestry resource. (Part XII, s. 135)

Nisga’a

Nisga’a Lisims Government has law making authority in respect of the management of timber resources on Nisga’a Lands. (Ch. 5, ss. 6-8)

Tsawwassen

Tsawwassen has jurisdiction over management of forest resources on Tsawwassen Lands. (Ch. 8, s. 2)

Maa-nulth

Forestry resources, forest practices and range practices. (s. 9.2.1)

 

  Conflict of Laws:

Sechelt

Sechelt law prevails. (s. 38)

Westbank

Westbank law prevails. (Part XII, s. 140)

Nisga’a

Nisga’a law prevails. (Ch. 2, s. 13)

Tsawwassen

Tsawwassen law prevails. (Ch. 8, s. 3)

Maa-nulth

Federal or provincial law prevails. (s. 9.2.2)

 

3.13.5. BC First Nations’ Laws/By-laws in Force and Other Activities

Sectoral Governance Initiatives

 

First Nation By-law Description

McLeod Lake Indian Band (Tsekani)

 

McLeod Lake Indian Band Forest Practices Code Act

 

Comprehensive Governance Arrangements

 

First Nation By-law Description

Huu-ay-aht First Nations

 

Resource Harvesting Act

Ka:’yu:’k’t’h’/Chek’tles7et’h’ First Nations

 

Resources Harvesting Act

Nisga’a Nation

 

Nisga'a Forest Amendment Act, 2010

Toquaht Nation

 

Resource Harvesting Act

Tsawwassen First Nation

 

Harvest Agreement

Uchucklesaht Tribe

 

Resources Harvesting Act

Ucluelet First Nations

 

Resources Harvesting Act

 

Other Activities

Harvesting — British Columbia      

http://www.for.gov.bc.ca/hfp/publications/00001/1-harv-index.htm

Area harvested (ha) on Crown land from 81/82 to 97/98, by region

Year

Cariboo

Kamloops

Nelson

P. George

P. Rupert

Vancouver

TOTALS

81/82a

 

 

 

 

 

 

 

82/83a

 

 

 

 

 

 

 

83/84

27 313

30 182

19 299

62 590

24 236

24 608

188 228

84/85

35 444

31 113

21 842

56 287

27 850

25 917

198 453

85/86

41 652

33 473

22 471

57 163

21 546

34 092

210 397

86/87

48 527

31 014

21 673

57 470

30 807

36 973

226 464

87/88

56 960

40 457

27 618

61 631

11 195

41 108

238 969

88/89

53 936

33 810

26 448

57 704

30 742

34 816

237 456

89/90

47 902

18 043

15 882

59 990

30 459

21 858

194 134

90/91

33 459

21 747

17 115

37 395

19 213

23 083

152 012

91/92

37 812

21 954

15 239

44 966

17 388

28 991

166 350

92/93

42 267

27 113

21 350

56 120

19 979

29 772

196 601

93/94

34 672

26 881

29 210

42 431

20 789

27 930

181 913

94/95

29 857

22 608

16 534

42 142

21 503

27 362

160 006

95/96

33 819

25 026

17 575

38 202

19 479

30 768

164 869

96/97

41 982

27 379

19 112

46 157

21 893

22 516

179 039

97/98

36 056

21 064

15 103

46 619

14 093

21 539

154 474

a. Data reported as sum of Crown and private land harvested - Data source: MoF annual reports.To download the Excel data file for this table, click here. Back to Harvesting Contents

 

Forest Consultation and Revenue Sharing Agreements (FCRSA)

 

British Columbia has introduced a new type of forestry agreement, the Forest Consultation and Revenue Sharing Agreement (FCRSA) that provides First Nation communities with economic benefits, which return directly to the community and are based on harvest activities in the traditional territory. The changes to the revenue-sharing model will reflect what is happening ‘on the ground’ in First Nations communities so that, for the first time, communities will see more direct economic benefits returning from harvest activities taking place in their traditional territory. As the forest sector recovers, the amount of revenues shared with First Nations will increase.

 

Click through the hotlinks to view copies of the Forest Consultation and Revenue Sharing Agreements B.C. has signed with First Nations to date.


 

Forest and Range Agreements    

http://www.for.gov.bc.ca/haa/fn_agreements.htm

These agreements, introduced in 2003, provide for revenue-sharing and forest tenure opportunities. The timber volume comes from unlogged timber from existing forest licences and from timber that will be made available once the province-wide timber reallocation process is completed. The Ministry's approach to negotiating Forest and Range Agreements is outlined in the Strategic Approaches to Accommodation Policy .

 

Date Signed

First Nation

Region

Location

Revenue Sharing (000,000) 1 

Total Timber Volume m3 (000) 

2009/03

Takla Lake #3

Northern Interior

Prince George

1.52

n/a

2009/03

Shackan

Southern Interior

Merritt

.28

30

2009/03

Hupacasath

Coast

Port Alberni

.57

n/a

2009/03

Tsilhqot'In Nation B-6
(May 2009 Amendment)

Southern Interior

Williams Lake

7.7

844

2009/03

Tsay Key Dene Band

Northern Interior

Prince George

.337

9

2009/03

Penticton

Southern Interior

Penticton

2.2

236

2008/10

Mowachaht_Muchalaht

Coast

Gold River

1.29

77

2008/10

Nicoman

Southern Interior

Lytton

.271

29

2008/10

Okanagan

Southern Interior

Vernon

4.14

n/a

2008/08

Gwawaenuk

Coast

Port McNeill

.088

30

2008/09

Williams Lake

Southern Interior

Williams Lake

1.195

130

2008/08

Popkum

Coast

Chilliwack

.075

n/a

2008/07

Ditidaht

Coast

Port Alberni

1.61

173

2008/07

Cook's Ferry

Southern Interior

Spences Bridge

.701

117

2008/01

Matsqui

Coast

Matsqui

.526

32

2008/01

Tsawataineuk
(
March 2008 Amendment )

Coast

Campbell River

1.225

73 incl abt

2008/02

Klahoose

Coast

Campbell River

.714

50

2008/02

Coldwater

Southern Interior

Merritt

1.794

207

2008/03

Nooaitch

Southern Interior

Merritt

.466

50

2008/03

Tlazten

Northern Interior

Fort St James

3.56

TBD

2008/04

Haida

Coast

Massett

9.49

n/a

2008/04

Ahousaht

Coast

Tofino

4.34

n/a

2008/04

Peters

Coast

Chilliwack

.295

18

2008/04

Lower Nicola

Southern Interior

Merritt

2.37

257

1 Revenue Sharing is over a 5 year period.
2 Revenue Sharing is over a 6 year period.
3 Denotes Squamish FRA is over a 1 year period.
4 Denotes this agreement is a Westbank IM Agreement extension.
5Denotes Takla FRO is over a 9 month period.
6Reflects only the additional volume authorized under this agreement (i.e., excludes direct award agreement volume).
7Denotes Tsey Keh Dene FRO is over a 2 year period.
B-# Denotes the number of bands participating in the Forest and Range Agreement.
+ abt Denotes this agreement has an Area Based Tenure associated with it. The Woodlot volume is EXCLUDED from the Timber Volume value. Please refer to the Agreement for specifics.
incl abt Denotes this agreement has an Area Based Tenure associated with it. The Woodlot volume is INCLUDED with the Timber Volume value. Please refer to the Agreement for specifics.

 

Direct Awards

http://www.for.gov.bc.ca/haa/fn_agreements.htm

In May 2002, an amendment to the Forest Act allowed the Minister of Forests to invite First Nations to apply for forest licences without competition. The timber volume for these licences comes from beetle-kill and fire-damaged timber as well as from unlogged timber from other forest licences. The following is a link to the Ministry's Direct Award Policy.

Date Signed

First Nation

Region

Location

Total Timber Volume m3 (000)

2011/02

Simpcw (North Thompson)

Southern Interior

Barriere

500

2011/02

Upper Nicola

Southern Interior

Merritt

300

2011/03

Westbank3yr

Southern Interior

Kelowna

53

2011/01

Westbank

Southern Interior

Kelowna

75

2010/12

Lytton

Southern Interior

Lytton

1425

2010/10

Simpcw (North Thompson)

Southern Interior

Barriere

599

2010/09

Ktunaxa Nation Council

Southern Interior

Cranbrook

77

2010/09

Bonaparte

Southern Interior

Cache Creek

495

2010/08

Nadleh Whut'en

Northern Interior

Fraser Lake

375

2010/07

Penticton

Southern Interior

Penticton

102

2010/07

Stellat'en

Northern Interior

Fraser Lake

375

2010/06

Moricetown

Northern Interior

Smithers

154

2010/04

McLeod Lake

Northern Interior

McLeod Lake

4000

2010/05

Lillooet Tribal Council (St'at'imc)

Southern Interior

Lillooet

3000

2010/03

Canim Lake

Southern Interior

Canim Lake

100

2010/03

Upper Similkameen

Southern Interior

Keremeos

15

2010/03

Alexandria (?Esdilagh)

Southern Interior

Quesnel

250

2009/12

Coldwater

Southern Interior

Merrit

250

2009/10

Red Bluff 15yr

Southern Interior

Quesnel

1125

2009/09

Snuneymuxw 1yr

Southern Interior

Naniamo

11

2009/07

Nooaitch

Southern Interior

Merrit

100

2009/07

Shuswap 5yr

Southern Interior

Invermere

23

2009/05

Ktunaxa Nation5yr

Southern Interior

Cranbrook

100

2009/05

Nicomen 5yr

Southern Interior

Lytton

20

2009/03

Shaken

Southern Interior

Merritt

75

2009/01

Lower Nicola 5yr

Southern Interior

Merrit

35

2009/01

Wispering Pines/High Bar/Little Shuswap/Shuswap 15yr

Southern Interior

Kamloops

3000

2009/01

Cook's Ferry 5yr

Southern Interior

Merrit

39

2009/01

Lower Similkameen 5yr

Southern Interior

Keremeos

30

2008/12

Siska

Southern Interior

Lytton

75

2008/11

Mowachaht/Muchalaht

Coast

Gold River

200

2008/11

Lower Similkameen 3yr

Southern Interior

Keremeos

56

2008/10

Tl'etinqox-t'in (Anaham)10yr

Southern Interior

Williams Lake

2490

2008/10

Kwicksutaineuk/Ah-kwa-mish

Coast

Alert Bay

4

2008/10

Snaw-naw-as

Coast

Lantzville

15

2008/10

Malahat

Coast

Mill Bay

15

2008/09

Williams Lake

Southern Interior

Williams Lake

300

2008/05

Lower Nicola 5yr

Southern Interior

Merrit

378

2008/05

Canoe Creek

Southern Interior

100 Mile House

390

2008/05

Xats'ull (aka Soda Creek)

Southern Interior

Williams Lake

150

2008/03

Canoe Creek

Southern Interior

100 Mile House

175

2008/02

Esketemc

Southern Interior

Williams Lake

740

2008/01

Bonaparte

Southern Interior

100 Mile House

250

2008/01

Osoyoos

Southern Interior

Osoyoos

47

B-# Denotes the number of bands participating in the Direct Award Agreement.
+ abt Denotes this agreement has an Area Based Tenure associated with it. Please refer to the FRA for specifics.
#-yr Denotes Mtn Pine Beetle Agreement is over a # year period.
1 Not a Direct Award Agreement. Direct award of forest licence (over one year) to further September 2002 Direct Award Agreement, pursuant to section 47.3 of the Forest Act.
2 Reflects volume from this agreement. Additional volumes became available through subsequent agreements.
3 Maximum volume amended as a result of Sliammon First Nations Interim Measures Agreement dated April 11, 2006.

 

3.13.6. Resources

  • BC First Nations Forestry Council

Suite 615, 100 Park Royal South

West Vancouver BC V7T 1A2

Phone:         604-921-4488

Fax:              604-921-4401

Email: admin@fnforestrycouncil.ca

www.fnforestrycouncil.ca


  • National Aboriginal Forestry Association:

Suite 300, 396 Cooper Street

Ottawa, ON  K2P 2H7

Phone:         613-233-5563

Fax:              613-233-4329

Email: nafa@web.ca

www.nafaforestry.org

  • The National Aboriginal Forestry Association (NAFA) was established to promote sustainable forestry as a necessary condition for Aboriginal economic development, the repair of environmental degradation, and the restoration of cultural and community spiritual health for Aboriginal people across the country.
  • Indian and Northern Affairs Canada

Terrasses de la Chaudière

10 Wellington, North Tower

Ottawa, ON K1A 0H4

Toll Free:     1-800-567-9604

Fax:              1-866-817-3977

Toll Free:     1-866-553-0554

www.ainc-inac.gc.ca

  • Indian Timber Regulations
  • Indian Timber Harvesting Regulations (C.R.C.  SOR/2002-109)
  • Section 93 of the Indian Act prohibits removal of wood
  • Province of British Columbia

Ministry of Forests, Lands and Natural Resource Operations

PO Box 9049 Stn Prov Govt

Victoria, BC V8W 9E2

www.gov.bc.ca/for/index.html

 

Ministry of Aboriginal Relations and Reconciliation

PO Box 9100 Stn Prov Govt

Victoria, BC V8W 9B1

www.gov.bc.ca/arr

 

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