Decision Date: July 22, 2004

Panel: Margaret Eriksson, Al Gorley, Robert Wickett

Keywords:  Forest Act – s. 105, 143, 145(5), 146; stumpage rate; Coast Appraisal Manual; jurisdiction; fettering of discretion

Western Forest Products appealed several stumpage advisory notices (“SANs”) issued by the Regional Appraisal Coordinator for cutting permits issued for Western’s Tree Farm Licence 25.

As a preliminary issue, the Government questioned the Commission’s jurisdiction to hear an appeal of the SANs.  The Government submitted that Western is really appealing a District Manager’s determination on the suitability of Sooke as a “point or origin” for calculating the distance Western hauls its logs.  The trucking costs attributed to Western’s operations by such determinations are used in calculating how much stumpage the company must pay to the Crown.  The Government contended that the District Manager is not an “employee” identified in the Coast Appraisal Manual (“CAM”) whose stumpage decisions may be appealed pursuant to section 146 of the Forest Act.

Western submitted that a SAN is a stumpage decision with many constituent components, including a District Manager’s point of origin determination. It submitted that it is appealing the Regional Appraisal Coordinator’s factoring of Western’s operating costs in setting the company’s stumpage rate.  Western further submitted that point of origin determinations can be a large factor in final stumpage rates and that, if those determinations cannot be questioned as part of a SAN appeal, then district managers could base such determinations on irrelevant or biased considerations and a licencee would have no recourse.

The Commission found that, despite the District Manager’s role in determining the suitability of different points of origin, it is the Regional Appraisal Coordinator who has ultimate authority and discretion, under the Forest Act and the CAM, to deem the point of origin for the purposes of the licencee’s stumpage rate calculation.  The Commission found, therefore, that is has jurisdiction to consider the issues of a particular point of origin as it figures in the assessment of truck hauling and towing costs in a stumpage rate calculation by a Ministry employee acting under section 105 of the Forest Act and the CAM.

The Commission concluded that it has jurisdiction to hear this appeal.