Decision Date:     April 30, 2009 (Decision No. 1996-FAB-001(a))
September 15, 2009 (Decision No. 1996-FAB-001(b))

Panel: Rob Kyle, Carol Roberts, Shelley Nitikman

Keywords: Consent order; unauthorized timber harvesting; aboriginal rights; costs

Sonny Lulua appealed a decision issued in January 1996 by the Deputy Chief Forester, Ministry of Forests, finding that Mr. Lulua had cut and removed trees from Crown land without authority, in contravention of section 138 of the former Forest Act, R.S.B.C. 1979. Mr. Lulua appealed to the former Forest Appeal Board. The timber harvesting occurred in 1994 and involved 30.6 cubic metres of timber.

Mr. Lulua is a member of the Xeni Gwet’in First Nation. In his submissions to the Deputy Chief Forester, Mr. Lulua claimed an aboriginal right to cut timber on Crown land if the timber is used to construct housing for aboriginal people. The Deputy Chief Forester found insufficient evidence to support Mr. Lulua’s claim of an aboriginal right to cut the timber. Mr. Lulua appealed to Forest Appeal Board (the “Board”), and continued to claim an aboriginal right to harvest the timber for the purposes of housing.

The Board commenced a hearing of the appeal in May 1996. At the start of the hearing, Mr. Lulua requested an adjournment of the appeal on the basis that he intended to proceed to the B.C. Supreme Court for a declaration that sections of the Forest Act were unconstitutional to the extent that they infringed a constitutionally protected aboriginal right to harvest timber for housing, as well as a declaration as to the existence, nature and extent of that aboriginal right.  The Board granted the adjournment pending the outcome of the court proceedings.

Over the next few years, the Board granted several further adjournments pending the outcome of other litigation involving aboriginal rights. Once that litigation concluded, the parties sought a further adjournment for the purpose of attempting to negotiate a settlement of the appeal.

Before the Board heard the merits of the appeal, the parties negotiated a settlement. By consent of the parties, the Board ordered that the Deputy Chief Forester’s decision be reversed, and that the Deputy Chief Forester shall pay Mr. Lulua’s costs of the appeal (Decision No. 1996-FAB-001(a)).

Subsequently, by consent of the parties, the Board confirmed that the parties had agreed upon a quantum of costs, and the Deputy Chief Forester had paid costs of $38,428.64 to Mr. Lulua (Decision No. 1996-FAB-001(b)).

Accordingly, the appeal was allowed, and Mr. Lulua’s application for costs was granted.