Decision Date: December 22, 2004

Panel: David Ormerod

Keywords: Ministry of Forests Act – s. 4(e); Forest Act – ss. 105; stumpage rate determination, Interior Appraisal Manual (IAM); reappraisal; appraisal expiry date.

Esker Lake Forest Management Ltd. appealed a stumpage rate determination of the Timber Pricing Co-ordinator for the Northern Interior Forest Region (“NIFR”), Ministry of Forests (“MOF”) for Woodlot Licence 1722, blanket salvage Cutting Permit S (“CP S”). The determination was appealed on the grounds that the MOF had failed to extend the appraisal expiry date to April 30, 2005 in accordance with Amendment No. 12 of the Interior Appraisal Manual (the “IAM”), and further, that the NIFR applied Amendment Nos. 11 and 12 in an inconsistent and unfair manner.

On the first ground, the Commission found that the Government correctly denied the Appellant’s request for an extension of the appraisal expiry date to April 30, 2005. The Commission found the last appraisal for CP S expired on June 30, 2004. Pursuant to section 2.3.2 of the IAM in effect at the date of the last extension letter, cutting permits must be reappraised at the anniversary date of the cutting authority and thus, CP S required a reappraisal effective July 1, 2004. Section 105(1) of the Forest Act provides that the Government must apply the IAM in effect on the effective date. The July 1, 2004 IAM did not include Amendment Nos. 11 and 12, which took effect from August 1, 2004 and September 1, 2004, respectively. There is no evidence these Amendments were to have retroactive effect. Therefore, the Amendments could not be applied to the CP S reappraisal, and the Commission upheld the Governments decision to deny the Appellant an extension of the appraisal expiry date to April 30, 2005.

On the second ground, the Commission found that the NIFR applied the IAM systematically and equitably. The Forest Act and the IAM do not specify a time limit on the completion of an appraisal. Thus, the NIFR did not breach any statutory requirement by delaying the reappraisal of CP S by nearly three months. Amendment Nos. 11 and 12 were not known on July 1, 2004 and consequently, the delay in completion of the appraisal did not alter the rates of stumpage due. The outcome may have compromised the Appellant’s ability to harvest beetle-damaged timber, but it was reached in accordance with the statutory requirements. Accordingly, the appeal was dismissed.