HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Short Title

This Act may be cited as "The Cave Protection Act".

Definitions

1  "cave" means a natural cavity in the earth that connects to the surface, often formed by dissolution of limestone; that is penetrable by humans, whether or not the entrance is naturally formed or made by humans, including any natural pit, sinkhole or other surface opening which is an extension or component of a cave;

"cave resource" means any material or substance occurring in caves, such as native animal life, native plant life, evidence of past human use over fifty years old, and tangible and intangible attributes associated with cultural traditions over fifty years old, paleontological deposits, sediments, minerals, speleogens, and speleothems.

"cave reserve" means a cave reserve designated under section 5;

"commercial entry" means an activity undertaken to exhibit a cave for which compensation is received by any person for goods, services, or both, rendered to customers or participants in that use or activity. Commercial entry includes activities whose base of operations is outside the boundaries of the premises, or provide transportation to or from the premises. Any person receiving compensation in conjunction with a use or activity who seeks to qualify as non-commercial shall have the burden of establishing to the satisfaction of the department that the fee or charge is strictly a sharing of actual expenses of the use or activity. A not-for-profit organization that charges only a nominal fee to cover administrative costs and conducts a use or activity at a frequency or magnitude that does not significantly contribute to the degradation of the cave and its resources is not conducting a commercial entry.

"minister" means the Minister of Environment;

"sinkhole" means a funnel-shaped, closed depression sometimes caused by the collapse of a cave passage below the surface of the ground;

"speleogen" means a relief feature on the walls, ceiling and floor of any cave which are part of the surrounding bedrock, including but not limited to anastomoses, scallops, meander niches, petromorphs and rock pendants;

"speleothem" means secondary mineral deposits generally of calcite; including stalactites, stalagmites, columns, draperies, flowstone, rimstome, helictites, and other features formed by precipitation processes.

Purpose

2  The purpose of this Act is to encourage and facilitate the protection and conservation of caves in the Province.

Registry

3  (1) The minister shall maintain a registry of caves and cave reserves.

(2) Notwithstanding the Freedom of Information and Protection of Privacy Act the Ministry is not required to disclose the location of caves in the registry.

(3) However the minister may disclose the information contained in the registry where such disclosure would further the purposes of the Act and would not create a substantial risk of harm, theft, or destruction of such cave.

(a) In assessing a request under this section the minister shall consider:

(i) Whether the requester is a research or educational institution.

(ii) Whether the applicant can provide satisfactory assurance that adequate measure will be undertaken to protect the confidentiality of the information and the security of the cave from destruction.

Cave Protection Advisory Board

4  (1) The Lieutenant Governor in Council, on the recommendation of the minister, may establish a cave protection advisory board to advise the minister respecting furthering the purpose and provisions of this Act.

(2) At least one half of the members of the cave protection advisory board shall be drawn from the public.

(3) The cave protection advisory board, at least once every two years or more often if it chooses, shall make recommendations to the minister and the legislature:

(a) stipulating which areas should be designated as cave reserves;

(b) regarding actions that should be taken to fulfill the purpose and provisions of this Act.

(4) A member of the cave protection advisory board shall be paid reasonable travelling and out of pocket expenses necessarily incurred in the discharge of duties.

Designation

5  The Lieutenant Governor in Council may designate land, surface and below, whether or not it is covered by water, as a cave reserve.

Commercial Entry

6  (1) Any person allowing or establishing commercial entry to a cave shall obtain from the ministry a permit to open the cave for public entry. The department shall charge a reasonable permit processing fee and adopt regulations.

(2)

(a) Any person that receives compensation in conjunction with a use or activity and seeks to be excluded from the permit requirement under subsection (1) shall have the burden of establishing to the satisfaction of the department that its use or activity does not constitute a commercial entry under this chapter.

(b) Commercial entry to caves shall be limited to operations in place at the time of the passage of this Act; provided the operations are in compliance with all applicable provincial and federal statutes and regulations. No new operations may be established until the adoption of regulations by the department to implement this section.

(c) Any person allowing commercial entry at the time of the passage of this Act shall file a declaration of the person's use with the ministry within sixty days of the enactment of this Act. Existing operations, as recognized by the ministry through the declaration, within one year of the adoption of regulations by the department, shall conform to the regulations and all applicable provincial and federal statutes, and regulations.

Prohibited Activities

7  (1) No person shall:

(a) dump, dispose, store or otherwise place any logging slash, land clearing refuse, soil, garbage, dead animals, sewage, or toxic substances harmful to cave life in a cave or cave reserve;

(b) discard litter or refuse in a cave or cave reserve;

(c) ignite in a cave any material that produces any product of combustion that is harmful to any naturally occurring organism in that cave;

(d) remove, deface or tamper with a notice installed by the minister;

(e) sell or offer for sale a speleothem;

(f) import or export speleothems for a gainful purpose;

(g) engage in rock quarrying in a cave;

(h) cause or risk an alteration in the course of or the amount of flow of water so as to affect that course or amount of flow of water in a cave reserve;

(i) cause or risk an alteration in the direction or velocity of wind so as to affect the stability of trees in a timbered cave reserve.

(2) No person shall without a permit:

(a) break, break off, crack, bum, or otherwise mark, remove, destroy, disturb, deface, mar, or harm the surface of a cave or any natural material in a cave, whether attached or broken, including speleothems, speleogens, palaeontological materials and sedimentary deposits;

(b) break, force, tamper with or otherwise disturb a lock, gate, door, or other obstruction designed to control or prevent access to any cave or cave reserve;

(c) remove, kill, harm, or otherwise disturb any naturally occurring organisms found within any cave, except for reasons of safety;

(d) excavate, remove, destroy, injure, deface, or in any manner disturb any burial grounds, historic or prehistoric resources, archaeological or palaeontological site, including relics, inscriptions, fossils, bones, remains of historical human activity in a cave or cave reserve;

(e) construct a structure, build a road, path or track in a cave reserve;

(f) engage in cutting or logging trees, mining, prospecting or claim staking in a cave reserve;

(g) obstruct or change natural water percolation in a cave reserve due to compaction or vegetation management;

(h) conduct a pesticide application in a cave reserve;

(i) fish, hunt, trap, net or snare any animal in a cave reserve;

(j) remove, destroy or impair any plant, animal, fossil or object of historical or scientific interest in a cave reserve;

(k) introduce to a cave reserve any plant or animal species.

This section shall not apply to a recognized cave rescue unit operating in response to an emergency.

Permits

8  (1) The minister or a person authorized in writing by the minister for the purpose, may issue a permit for activities within a cave or cave reserve, and may

(a) limit the application of the terms of a permit to a time period or location;

(b) require a permit holder to provide the minister with reports the minister considers necessary and proper; or

(c) impose other terms and conditions the minister considers necessary and proper.

The minister may cancel or suspend a permit issued under this section.

Notices

9  The minister may erect and maintain a notice referring to this Act on or near a cave or cave reserve, and no action for loss, damage or trespass shall be brought for anything done or omitted in good faith under this section.

Offences

10  (1) Every person who contravenes section (7) or the regulations is guilty of an offence and liable on summary conviction:

(a) for a first offence, to a fine of not more than one thousand dollars, to imprisonment for a term not exceeding sixty days or to both;

(b) for a second offence, to a fine of not more than five thousand dollars, to imprisonment for a term of not more than one hundred and twenty days or to both; and

(c) for a third or subsequent offence, in the case of a natural person, to a fine not exceeding five thousand dollars, to imprisonment for a term of not more than six months or to both; and

(2) In the case of a corporation, to a fine of not more than fifty thousand dollars.

(3) Where a person is convicted under this Act or the regulations for an offence, in addition to a punishment pursuant to subsection (l), the court may, having regard to the nature of the offence and the circumstances surrounding its commission make an order having any or all of the following effects:

(a) prohibiting the offender from doing any act or engaging in any activity that may result in the continuation or repetition of the offence;

(b) directing the offender to take such action as the court considers appropriate to remedy or avoid any harm to a cave reserve that results or may result from the act or omission that constituted the offence;

(c) directing the offender to publish, in the manner prescribed, the facts relating to the conviction;

(d) directing the offender to notify, at the offender's own cost and in the manner prescribed, any person aggrieved or affected by the offender's conduct of the facts relating to the conviction;

(e) directing the offender to post a bond or pay money into court in an amount that will ensure compliance with any order made pursuant to this section;

(f) directing the offender to submit to the minister, on application made by the minister within three years after the date of conviction, information with respect to the activities of the offender that the court considers appropriate and just in the circumstances;

(g) directing the offender to compensate the minister, in whole or in part, for the cost of any remedial or preventative action taken by or caused to be taken on behalf of the minister as a result of the act or omission that constituted the offence;

(h) requiring the offender to comply with such other reasonable conditions as the court considers appropriate and just in the circumstances for securing the offender's good conduct and for preventing the offender from repeating the offence or committing other offences.

Regulations

11  The Lieutenant Governor in Council may make regulations

(a) for the control or prohibition of any use, development or occupation of the land or natural resources in a cave reserve;

(b) for the control or prohibition of the dumping, deposit or emission within a cave reserve of any substance;

(c) for access to a cave reserve; and generally for any other matter or thing necessary or incidental to the protection of any cave or cave reserve.

Administration

12  Land designated as a cave reserve under this Act shall be under the jurisdiction of and administered by the minister.

Other Acts

13  This Act and the regulations apply to every cave reserve, notwithstanding any other Act or regulations.

 
Explanatory Note

The legislature finds that caves are unique landforms that often contain irreplaceable resources of immense natural and cultural value, including spiritual, aesthetic, and scientific value. The protection of these vulnerable resources is paramount for their survival for future generations as a valuable part of British Columbia's natural and cultural heritage. The biological and ecological resources often include unique subterranean habitats populated by specialized organisms, and the associated native flora and fauna living within entrances. Other resources often include mineral and bedrock formations, and paleontological or fossil deposits. Fossil deposits, which include remains of plants, animals, and surface debris preserved in caves, provide a unique record of the past climate and biota. Since all of these resources are vulnerable to destruction, their protection is warranted.