Decision Date: October 23, 2003
Panel: Alan Andison, Kristen Eirikson, Bruce Devitt
Keywords: Forest Practices Code of British Columbia Act – ss. 1 – definition of “determination”, 17, 41; Operational Planning Regulation, ss. 1, 14, 18, 20; terrain stability; watershed assessment; Coastal Watershed Assessment Procedure; conditional approval.
An administrative review panel confirmed the District Manager’s decision to approve a forest development plan (the “Plan”) for five licences for a group of forestry corporations. The Plan includes cutblocks in the Tartu watersheds and the Naden watershed, both located on the Queen Charlotte Islands/Haida Gwaii.
For the Tartu watersheds, the issues before the Commission were whether the District Manager made a “determination” under the Operational Planning Regulation that a Coastal Watershed Assessment Procedure (“CWAP”) was necessary for these watersheds before the Plan was submitted for approval, and whether the District Manager had authority under the Code to give conditional category A approval of the cutblocks in these watersheds.
For the Naden watershed, the issues before the Commission were whether the Plan was consistent with the results and recommendations of a CWAP, in accordance with the Operational Planning Regulation, and if not, whether the District Manager had authority to give conditional category A approval for a cutblock. If the District Manager did not have such authority, then the next issue was whether setting aside the approval of a cutblock is appropriate in light of events subsequent to the conditional approval of that cutblock.
With regard to the Tartu watersheds, the majority of the Commission found that the evidence before it did not support the conclusion that the District Manager had formed the opinion that the risks associated with the proposed developments warranted obliging the licensee to carry out a CWAP. Therefore, the Commission held that a District Manager did not determine, prior to the submission of the Plan, that a CWAP was necessary for the Tartu watersheds. The Commission further found that the District Manager had ensured adequate protection for the forest resources in the Tartu by making a CWAP a condition of approval of the Plan. Therefore, the Commission upheld the approval of the cutblocks in this watershed by the District Manager.
With regard to the Naden watershed, a majority of the Commission found that there the statement of consistency with a CWAP provided in the Plan was inaccurate, and that the District Manager has an obligation to ensure that Code requirements are met, even where a plan has been approved by a professional. The Commission held that the portion of the Plan referring to one cutblock does not comply with the Regulation. The Commission further found that it was not sufficient for the District Manager to give conditional Category A approval of that cutblock, and rescinded the District Manager’s approval of that cutblock.
The Commission rescinded the approval of one cutblock in the Naden watershed.
The minority of the Commission would have found that the District Manager determined that a CWAP was necessary for the Tartu area, and that it had not been carried out prior to his conditional approval. Therefore, under the Code and Regulations, it was not within his authority to grant conditional approval to the Plan for this area.
The appeal was allowed, in part.