Decision Date: March 21, 2002
Panel: Lorraine Shore, Jeanette Leitch, Geza Toth
Keywords: Forest Act – s. 105(1), 146, 148, 148.1, 148.2, 148.3, 148.4, 148.5, 148.6, 149, 149.2, 150; stumpage advisory notice; helicopter logging; hearing de novo; Paul v. Forest Appeals Commission, 2001 BCCA 0537
Weyerhaeuser appealed a stumpage advisory notice that was issued by the Regional Appraisal Co-ordinator and confirmed by a review panel decision. The stumpage appraisal contained in the notice was based on helicopter logging on the upper east side of a cutblock, and conventional logging elsewhere, including on the upper west side of the cutblock. Weyerhaeuser appealed on the issue of whether it should have received a helicopter logging allowance in regard to the upper west side of the cutblock.
The Commission first considered the extent to which it could accept and rely upon the new information gathered after the Appraisal Co-ordinator’s determination. This involved an assessment of whether the hearings before the Commission are in the nature of a hearing de novo. The Commission concluded that a purposive interpretation of the Forest Act leads to the conclusion that the Legislature intended for appeals of specialized questions of forestry to come before the Commission, and that the Commission would have an opportunity to consider those questions from its own specialized perspective. Consequently, the Commission found that it could consider information that was before the decision-maker below, as well as new evidence, in making a decision in the appeal.
The Commission next decided whether harvesting methods other than heli-logging were “unsuitable” for the upper west side of the cutblock, under section 4.1 of the Coast Appraisal Manual. The Commission determined that conventional logging was unsuitable on the upper west side of the cutblock. Specifically, the Commission found that a conventional system would produce an unacceptable level of ground degradation, and a conventional method of road building would result in an unacceptable likelihood of slope failure. The evidence was undisputed that if there was a failure, the streams on the slope could transport material into a fish-bearing creek. Further, the Commission held that it would be inappropriate in this case to require a licensee to undertake extraordinary methods of road building to avoid the risk of slope failure, when the same benefit could be achieved by using helicopter logging. Accordingly, the Commission concluded that the stumpage determination contained in the notice should incorporate the appropriate cost estimates for helicopter logging of the area.
Therefore, the Commission rescinded the review panel decision, and remitted the matter back to the Regional Appraisal Co-ordinator to redetermine the appropriate stumpage rates for the cutting permit on the basis of helicopter logging as the harvesting method for the upper west side of the cutblock.
Accordingly, the appeal was allowed.