Decision Date: June 22, 2017

Panel: Alan Andison

Keywords: Administrative Tribunals Act – s. 31(1); Forest Act – s. 105.2; stumpage rate; redetermination; log transport; appraisal transportation route; log dump

Canadian Forest Products Ltd. (“Canfor”) appealed eight stumpage rate redeterminations issued in 2017 by an employee of the Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The stumpage rates applied to timber harvested by Canfor under cutting permits (“CPs”) issued under a forest licence. Stumpage is a fee paid to the government for harvesting Crown timber. In determining stumpage rates for timber harvested in the Interior Region, the Ministry must apply the policies and procedures set out in the Interior Appraisal Manual (“IAM”). The original stumpage rates, which were determined in 2012 and 2013, were lower than the re-determined rates.

The re-determinations were issued in February 2017, after a delegate of the Minister of Forests, Lands and Natural Resource Operations (the “Minister”) directed the original stumpage rates to be re-determined under section 105.2 of the Forest Act. The Minister received submissions from Canfor before issuing the direction, and the Minister issued reasons for his direction. The Minister directed the Ministry employee to re-determine the stumpage rates by taking into account water transportation (lake tow) of the harvested logs for part of the distance from the CP areas (i.e., from a log dump on Williston Lake) to the point of appraisal, rather than based on truck haul for the entire distance. Lake tow is a lower cost transportation method than truck haul, and therefore, lake tow produced a higher stumpage rate. The direction to conduct the re-determinations was preceded by a 2015 decision of the Commission regarding several other stumpage appeals by Canfor involving the issue of water transportation from the same log dump on Williston Lake (Canadian Forest Products Ltd. v. Government of British Columbia, Decision Nos. 2014-FA-001(a) to 009(a)). The Commission’s decision was confirmed on appeal to the BC Supreme Court in November 2016 (Canadian Forest Products Ltd. v. British Columbia, 2016 BCSC 2202).

After Canfor appealed the re-determinations, the Government applied to the Commission for an order summarily dismissing the appeals pursuant to section 31(1) of the Administrative Tribunals Act. The Government argued that the appeals were not within the Commission’s jurisdiction because they were, in substance, seeking to challenge the Minister’s direction, and the Forest Act does not provide for appeals of Minister’s directions. The Government also submitted that the appeals raised the same issues that were addressed in the Commission’s 2015 decision. The Government argued that the appeals gave rise to an abuse of process, and/or their substance had been appropriately dealt with in another proceeding.

The Commission found that the appeals were within its jurisdiction. Section 105.2 of the Forest Act required the Ministry employee to take into account the information that formed that basis of the Minister’s direction, but the employee was not bound by the Minister’s opinion or the reasons for the Minister’s direction. The appeals were against the re-determinations, and not the Minister’s direction.

The Commission also found that the appeals were not an abuse of process or an attempt to re-argue issues that that had been appropriately dealt with in another proceeding. The Commission held that the process that led to the Minister’s direction did not take the place of the appeal process. In addition, the Commission held that its 2015 decision did not consider the argument that formed that basis of the current appeals. The current appeals raised an issue regarding the proper interpretation and application of a different section of the IAM than was considered in the Commission’s 2015 decision, and it would be unreasonable to expect Canfor to have raised that issue in the previous appeals.

For all of those reasons, the Commission denied the Government’s application to summarily dismiss the appeals.