Decision Date: November 20, 2003

Panel: Alan Andison, Kristen Eirikson, James Hackett

Keywords: Forest Act – ss. 149(2); Forest Practices Code of British Columbia Act – ss. 41(1), 41(3); marbled murrelets; forest development plan; forest ecosystem network

This was an appeal by the Forest Practices Board (“FPB”) of an administrative review panel decision confirming the approval of a forest development plan (the “Plan”) for five licences for a group of forestry corporations. Specifically, the decision addressed the approval of certain cutblocks within the Plan that overlapped, or were situated within, areas identified as draft Forest Ecosystem Networks (“FENs”) in previous forest development plans.  The FENs were developed, in part, because they contained marbled murrelet habitat or suitable habitat.  The FPB requested either that the approval of all the overlapping cutblocks be set aside, or alternately, that the five cutblocks containing the most significant overlaps with the draft FENs be set aside.

The issues in this appeal were: whether hearings before the Commission are properly de novo hearings or hearings on the record; whether the Plan was prepared and submitted in accordance with section 41(1)(a) of the Forest Practices Code of British Columbia Act (the “Code”); and, whether the Plan adequately manages and conserves marbled murrelets in the area under the Plan, in accordance with sections 41(1)(b) and 41(3) of the Code.  In determining a response to the third issue, the Board considered a number of sub-issues including: whether marbled murrelets are a “forest resource,” as defined in the Code; the meaning of  “adequately manage and conserve” in the context of section 41(1)(b) of the Code; whether the District Manager properly considered marbled murrelet habitat outside the boundaries of the cutblocks, roads and other developments proposed in the Plan; and, whether the Plan approval meets the requirements of section 41(1)(b) with respect to marbled murrelets.

The Commission unanimously found that in deciding the issues in an appeal, it may consider information that was before the District Manager and the review panel, as well as new evidence that the parties may present at the hearing.  The Commission’s enabling legislation indicates that the Commission may choose to conduct a hearing as a hearing de novo.

With regards to the preparation of the Plan in accordance with section 41(1)(a), the majority of the Commission found that the Husby Group was not required to include information about draft FENs or potential wildlife habitat areas (“WHAs”) or old growth management areas (“OGMAs”), and so Husby’s failure to include this information in the Plan did not breach the Code.  The Commission held that the District Manager did not err in finding that the Plan was prepared in accordance with the Code.

Regarding the issue of whether the Plan adequately manages and conserves marbled murrelets, the Commission identified that marbled murrelets are a “forest resource” under the Code.  In addition, the Commission found that the District Manager was obliged to consider whether the Plan adequately managed and conserved marbled murrelets, even if the Plan was not required to include information about draft FENs, potential WHAs or OGMAs.  The Commission also found that the proper question before the District Manager was whether the plan would “adequately” rather than perfectly, manage and conserve forest resources in the area under the Plan, including marbled murrelets.  The question of whether the Plan would adequately manage and conserve the marbled murrelet involved a risk-based analysis.

The Commission also held that the Code requires the District Manager to consider whether the Plan meets its requirements in “the area to which it applies.”  In this case, the Commission found that the District Manager properly considered the possibility of suitable nesting habitat for marbled murrelets that lay outside the Plan areas.  In addition, the Commission found that the Ministry of Forests had knowledge of the draft FENs, and data on the status of marbled murrelet populations in the area under the Plan.  Furthermore, the knowledge about the draft FENs and marbled murrelets was held to be relevant to the District Manager’s decision under the Code.  Although the Identified Wildlife Management Strategy (“IWMS”) recommends that areas should be set aside after WHAs have been identified and accepted, and no WHAs had been approved when the Plan was approved, the Commission found that the District Manager still had discretion under the Code to reject cutblocks on the basis of protecting marbled murrelet habitat, when he considered the Plan.

In conclusion, the majority of the Commission held that, with the exception of 5 cutblocks, the District Manager properly concluded that the Plan met the requirements of section 41(1)(b) of the Code.  Accordingly, the Commission confirmed that, with the exception of the 5 significant overlapping cutblocks indicated, the Plan will adequately manage and conserve marbled murrelets.  Accordingly, the Commission ordered that the Plan shall be varied to exclude the approvals of those cutblocks.

The minority of the Commission would have found that the District Manager did not comply with section 41(1)(a) of the Code, when he approved a plan that did not meet the requirements of section 10(1)(c)(ii) of the Code.  The minority held that the District Manager’s decision was not just unreasonable with respect to the 5 cutblocks with the largest intrusion in the draft FENs, but with respect to all of the cutblocks that encroached upon the draft FENs.  In addition, the minority found that there was not proper evidence before the District Manager for him to approve these cutblocks and satisfy his duty under section 41 of the Code.  Furthermore, there was not sufficient information before the Commission to determine that any of the 51 cutblocks should properly be approved for cutting.

The appeal was allowed in part.