Decision Date: November 13, 2007

Panel: Alan Andison

Keywords: stumpage rate; Forest Act – s. 105; Interior Appraisal Manual; development costs; changed circumstance reappraisal; effective date; presumption against retrospectivity; presumption of consistent expression; jurisdiction

Canadian Forest Products Ltd. (“Canfor”) appealed the stumpage rate determination set out in a Stumpage Advisory Notice (“SAN”) issued by the Timber Pricing Officer, Northern Interior Forest Region, Ministry of Forests and Range (the “Ministry”). The SAN set out a reappraised stumpage rate for Canfor’s cutting permit. The reappraisal was triggered when the Ministry determined that there had been a “changed circumstance”, as defined in the Interior Appraisal Manual (“IAM”). The reappraised stumpage rate was higher than the rate set in the original SAN, and the reappraised rate was effective from January 16 to March 31, 2005.

Canfor asked the Commission to rescind the reappraisal SAN and to direct the Timber Pricing Officer to adjust the reappraisal SAN to reflect the reappraisal date submitted by Canfor. Canfor argued that the effective date for the reappraisal was incorrect, and the reappraised rate cannot apply to timber that has already been scaled.

The Commission first considered whether section 103 of the Forest Act (the “Act”) precluded the Ministry from redetermining the stumpage rate for timber that had already been scaled. The Commission found that there was nothing in section 103 that limits the timing of the determination or redetermination of stumpage rates. Therefore, section 103 does not fix stumpage rates at the rates that applied on the date on which the timber was scaled.

The Commission then considered whether section 2.4.1 of the IAM, as amended on April 1, 2006, applied to this changed circumstance reappraisal, even though the original appraisal occurred prior to April 1, 2006, under a previous version of the IAM. The Commission found that since the changed circumstance in this case was not identified until after the April 1, 2006 amendment came into force, the April 1, 2006 version of the IAM applied to determine the effective date of the reappraisal. The Commission found that section 2.4.1, as amended, was intended to operate retrospectively by tying the effective date to the most recent appraisal or reappraisal of the cutting authority prior to the changed circumstance reappraisal, even if the most recent appraisal or reappraisal was carried out prior to April 1, 2006.

Finally, the Commission considered whether the principle of consistent expression required that the changed circumstance reappraisal provisions of the IAM be applied in a manner that was consistent with the interpretation adopted by the Coast Forest Region for the equivalent provisions in the Coast Appraisal Manual (the “CAM”). The Commission found that, while the policies and procedures set out in the CAM and the IAM may have some similarities, they also have differences, which is precisely why the Act contemplates that the Minister may approve different policies and procedures for different regions of the Province.

Accordingly, the Commission confirmed the stumpage determination issued by the Timber Pricing Officer and dismissed the appeal.