Judicial Review Decisions

  • Her Majesty the Queen in Right of the Province of British Columbia as represented by the Minister of Forests, Lands and Natural Resource Operations v. The Forest Appeals Commission and Western Forest Products Inc.

    June 19, 2014
    File Numbers:
    BCSC 2534  

    Decision Date: June 19, 2014

    Court: B.C.S.C., Justice Ehrcke

    Citation: 2014 BCSC 2534

    This decision by the BC Supreme Court addressed an application to intervene in an appeal by the Province against a decision of the Commission.

    The Commission’s decision in Western Forest Products Inc. v. Government of British Columbia (Decision Nos. 2013-FA-001(a) and 002(a), issued December 2, 2013), concerned the stumpage rate that Western Forest Products Inc. (“Western”) must pay for harvesting Crown timber. Western had appealed two stumpage determinations issued by the Timber Pricing Coordinator (the “Coordinator”), Coast Forest Region, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The appeals arose from a disagreement between Western and the Ministry about the proper interpretation and application of an extended road amortization agreement in the context of the Coast Appraisal Manual and the Forest Act. Western’s appeals to the Commission were allowed.

    The Province appealed the Commission’s decision to the BC Supreme Court. The Province raised four main issues in the appeal to the Court: (1) whether there was a reasonable apprehension of bias because the Commission member who decided the appeal is employed by a forest industry association and his work includes lobbying the government on forestry matters; (2) whether the Commission exceeded its jurisdiction in reviewing the Ministry’s exercise of a contractual authority in relation to the extended road amortization agreement; (3) if the Commission had jurisdiction to review the stumpage determinations, did it exceed its jurisdiction by failing to give deference to the Coordinator; and (4) whether the Commission erred in its interpretation of the Coast Appraisal Manual, the extended road amortization agreement, and the Forest Act.

    Before the appeal was heard by the Court, the Coast Forest Products Association and Council of Forest Industries (the “Applicants”) applied to intervene in the Province’s appeal against the Commission’s decision regarding stumpage rates in Western Forest Products Inc. v. Government of British Columbia (Decision Nos. 2013-FA-001(a) and 002(a), issued December 2, 2013). The Applicants are industry associations and their members are primarily forest companies. Western Forest Products Ltd. (“Western”), a respondent in the court proceeding, is a member of the Coast Forest Products Association.

    The Applicants sought intervener status so they could make submissions on: (1) whether the Commission was obligated to defer to the discretionary decisions made by Ministry officials in the context of determining stumpage rates; and, (2) the interaction between the Coast Appraisal Manual, the professional obligations of forestry professionals, and section 105.1 of the Forest Act as it relates to the stumpage regime. They submitted that those issues were of general concern and importance to their members, and they could offer a unique and useful perspective to the Court.

    The Province opposed the application for intervener status. Western and the Commission consented to the application.

    The Court found that the Applicants lacked a direct interest in the appeal. In addition, the Court found that although Western had not yet provided its submissions to the Court on the merits of the appeal, the Applicants’ proposed submissions were similar to Western’s previous submissions to the Commission. On that basis, the Court concluded that the Applicants’ perspectives did not differ significantly from Western’s, and their intervention would not bring a unique perspective to the proceedings. The Court dismissed the application to intervene.