LEGAL HISTORY AND STATUS OF ROSE SWANSON

The Secwepemc and Syilx people have been harvesting plants, engaging in cultural practices and enjoying the views of the valley from Rose Swanson for generations. It sits within the traditional territories of these two First Nations.

For more than a century Mounts Rose and Swanson have given the settler families of Armstrong and Spallumcheen a wilderness for recreation and enjoyment.

 In the 1930’s, the civic and business leaders in the Armstrong  Board of Trade (now the Chamber of Commerce) asked the Minister of Lands to protect Mounts Rose and Swanson for the community. The Minister started the conservation process by removing the Mountain from the area that could be granted to homesteading settlers or companies. The Mountain became a Provincial Forest Reserve. 

 In 1952, Spallumcheen pushed to have the peaks officially named Mount Rose and Mount Swanson, and the mountain as a whole was referred to as Rose Swanson Park. The peaks were registered in the BC legislature and the Province started taking steps to establish the mountain as a park for the use, recreation and enjoyment of the public.

 By the 1980s, Spallumcheen and Armstrong finally had it established as a Reserve at Rose Swanson Park. This is a kind of official designation under the Land Act for the "Use, Recreation and Enjoyment of the Public" (UREP). The Reserve status lasts indefinitely – there is no time limit and it does not expire. Legally, it is an “encumbrance” against the land of Rose Swanson and it cannot be ignored or compromised.

A UREP Reserve is similar to an “easement” over land. The landowner must respect the easement. On Rose Swanson, the public has the right of Use, Recreation and Enjoyment of Mounts Rose and Swanson. Any other uses of the land, including a Timber License, must respect the UREP Reserve – a Timber License is ‘subject’ to the UREP Reserve.

 In the mid-nineties, it appears that all parties interested in Rose Swanson “forgot” about the UREP. Tolko held the timber license and planned some logging. Public outcry and protest led to the designation of the Rose Swanson Sensitive Area (nobody remembered that there was already an existing UREP Reserve).

The Rose Swanson Sensitive Area is 712 hectares covering most of the Crown land at Rose Swanson. It was the first Sensitive Area created by the BC government in October 1996 and is one of only 3 ever created. It came into legal force on April 30, 1997 and remains in force today. (The other two Sensitive Areas have since been made into provincial parks).

The Sensitive Area gives paramount consideration and protection to the public’s rights of recreation at Rose Swanson. That means that these rights come before other kinds of use on the mountain. Recreational use does not have to be balanced with other interests – the recreational rights come first – they are paramount. All other activities are secondary to the public’s enjoyment of recreation at Rose Swanson.

The Objectives of the Sensitive Area Order are to: 

• Maintain and enhance trail network for use by recreationalists. 
• Protect the visual quality of the area. 
• Maintain recreation values by limiting timber harvesting to low-impact silvicultural systems. 
• Protect area against vandalism and timber theft.

Does the Sensitive Area Order mean no logging on the mountain? 

Sort of. Timber harvesting can only occur if it is complementary to “maintaining and enhancing” the network of trails. In order to “maintain recreational values”, any complementary logging has to be “low impact silvicultural systems” that would not detract from the paramount recreational values, including the right to views from the trails and summits unspoiled by logging within the 712 hectares. Clear cut blocks are definitely not permitted.

At this point there are two overlapping protections of Rose Swanson – the UREP Reserve on all of the mountain that is not private land and the Sensitive Area Order over the 712 hectares on the southeast portion of the mountain.

 The Township of Spallumcheen has long supported the community's recreational use of Rose Swanson.  The Official Community Plan refers to the importance of the mountain for its panoramic visits ans and the beauty of the viewpoints.  The Official Community Plan, adopted in 2011 states that the Township "will pursue the establishment of an interpretive forestry trail at Mount Rose Swanson and will explore options to obtain “park” status for the area ... to maintain Mount Rose Swanson for future public use and to preserve its natural qualities."

 In 2013, BC Timber Sales (BCTS) became the licensee instead of Tolko. BCTS wrote an amendment to the Forest Stewardship Plan in 2014 that altered the protections of the public’s rights of recreation. Whether intentional or accidental, between January 2014 and January 2021, BCTS and the Ministry of Forests, Lands, Natural Resources Operations and Rural Development (MFLNRO) gave the Township of Spallumcheen and concerned residents the impression that the Sensitive Area designation had expired. It hadn’t – in fact is has no expiration date and is still in effect.

BCTS made no mention of Rose Swanson Sensitive Area in their 2018 Forest Stewardship Plan and planned a harvest that was inconsistent with the terms of the Sensitive Area Order protecting Rose Swanson’s recreational values.

In 2020, BCTS produced a map showing 10 proposed cut blocks and BCTS staff were seen on the mountain flagging trees. Luckily, the local residents once again stepped up to protect their rights on Rose Swanson. A group of individuals started to talk about their concerns and started digging through old files to find proof of the protections put in place. One community member used all of that history and started her own legal action, which got the attention of the Ministry and BCTS.

By February 2021, BCTS and the MFLNRO acknowledged that the 2018 Forest Stewardship Plan and proposed harvest plans were unlawful because the Forest Stewardship Plan did not comply with the Objectives the government had set out in the Rose Swanson Sensitive Area Order back in 1997.

 So we are all caught up – now what is happening?

BCTS and MFLNRO have said that they will fix the unlawful Forest Stewardship Plan  by amending it to include the Rose Swanson Sensitive Area Objectives. The law also requires BCTS to explain how they will achieve the Objectives set by government in a detailed plan called “Results and Strategies”.

In June 2021, BCTS published a draft Amendment to the Forest Stewardship Plan  that now includes the Objectives set by government for Rose Swanson. They also drafted Results and Strategies and have shared these for public review and comment by the July 30, 2021 deadline.

We have until July 30th to send our comments to BCTS on the draft Amendment. This is just the Amendment to the Forest Stewardship Plan and their explanation of how they will make sure that any logging does not infringe our rights to public recreation. This isn’t a consultation on proposed cut blocks – that will come later.

If the proposed Amendment does not honour and respect the public’s right of recreation or the public’s recreational values, we are entitled to oppose the Results and Strategies. The feedback we give to BCTS will presumably affect the final version of the Amendment which will go to the District Manager of MFLNRO for approval. The District Manager cannot approve the Amendment unless it conforms to the law.

An amendment that puts recreational values below timber harvest values is not lawful – even a plan that treats recreation values as equal to harvesting rights and tries to balance one against the other is not lawful – remember that recreation values are paramount.

Then, after the Amendment has been approved, BCTS can start to draw up new harvest and operational plans that follow the Amendment and Forest Stewardship Plan.

The Results and Strategies describe two Zones – Zone 1 and Zone 2 – and has two different approaches. This means that recreation in Zone 2 is assumed to be less affected by logging. We think that creating two classes of recreational uses and downgrading the rights of people using the whole mountain is based on outdated ideas of the public’s recreation on the mountain. We need to tell BCTS that the public uses all different parts of the mountain, not just the two hiking trails that leave from the parking lot. We also need to tell BCTS that we don’t just use the mountain as a place to get some exercise, but that we value many things about the mountain – the views, the calm, the biodiversity, habitat protection, access to an intact forest etc. A trail through a cut block isn’t good enough.

 Good question. Over the last 25 years there have been changes to the forestry industry with new legislation (the Forest Practices Code was replaced  by the Forest and Range Practices Act  and a new process for licensing logging (BC Timber Sales was established). None of these things changed the legal protection of the mountain. In fact, the new legislation says clearly that the Sensitive Area continues under the new law. But it seems, in this period of change, the public’s legal rights to recreation were forgotten, or ignored, or misplaced… 

Under the law no one can reduce or interfere with the protections of the Sensitive Area. The only change that is allowed is that the Minister can ban any non-recreational use from the Sensitive Area. That means that the Minister can order that there shall be no timber harvest at all at Rose Swanson, not even the “low impact” harvest mentioned in the Sensitive Area Order done to maintain and enhance the network of trails.

 Click here to find an easy to use template for responding to BCTS as well as a link to the BCTS map and information package.