Decision Date: June 11, 1998

Panel: Toby Vigod, Gerry Burch, Deborah Todd

Keywords: Forest Practices Code of British Columbia Act – Preamble, ss. 10, 39, 41(1), 43(1), 229(3); Operational Planning Regulation – ss. 1-7, 10, 13, 15, 26, 28, 30, 32, 72; de novo hearing; purpose of a forest development plan; definitions of “substantial compliance”, “area under the plan”, “fish stream”, “known”, “wildlife habitat area”, “identified wildlife”; roosevelt elk; trumpeter swans; marbled murrelet; Forest Act – s. 1; “unstable terrain;” watershed assessment; archaeological impact assessment; Forest Development Plan Guidebook; Fountain v. Parsons

This was an appeal by the Forest Practices Board of a determination by the District Manager approving a five year Forest Development Plan submitted by MacMillan Bloedel Limited (“MB”). The plan was approved during the period of substantial compliance with Code standards. On review, a Review Panel upheld the approval of the plan but remitted it back to the District Manager with a direction to obtain certain required signatures.

The Appellant appealed the approval of the plan on the grounds that it was not prepared and submitted in accordance with the Code and the Operational Planning Regulation (“OPR“), and the District Manager could not have been satisfied that it would adequately manage and conserve the forest resources of the area under the plan. It argued that the District Manager erred in his interpretation of “substantial compliance” and “area under the plan”, and in his finding that the contents of the plan met, or substantially met, the legislative requirements regarding various forest resources. The Appellant further argued that the public review and comment provisions of the Code and the OPR were not met. The Appellant sought an order rescinding the approval of the plan, and submitted that the Commission owed no curial deference to the decisions of the District Manager and the Review Panel.

The Commission found that, although the District Manager has technical expertise and “on the ground” experience in the subject area, most of the questions raised in the appeal were questions of law and the Commission was not constrained by the principle of deference on such questions. Further, new evidence had been presented to the Commission that was not before the previous decision-makers.

The Commission considered the meaning of “substantial compliance” and found that the District Manager’s interpretation was too generous. The Commission adopted a more restrictive definition and evaluated the plan according to this standard.

Regarding the scope of the plan, the Commission found that the District Manager erred in treating the words from the legislation, “area under the plan”, as a fluid concept that varies with the forest resource being considered. It found that the area under the plan and the plan are one and the same – it is the entire area to be developed over a five year period. However, the Commission noted that only certain sections of the OPR apply to the entire area of the plan: one must look to the specific provisions to ascertain whether forest resource information is required for the entire area, or a portion thereof.

Regarding the content of the plan, the Commission found that the plan met, or substantially met, the requirements of the OPR in relation to stream classification and operability information. It found that there was no violation of the legislation in relation to the identification of wildlife habitat and the identification of cultural heritage resources, given the definitions provided in the relevant sections. In addition, the Commission found that a watershed assessment was not required.

However, the Commission found that because the plan did not contain information on terrain stability outside of the proposed cutblocks, the plan might be in contravention of the OPR. To the extent that unstable terrain existed outside of the cutblocks, the plan would be deficient. However, there was insufficient evidence for the Commission to make a finding on this issue.

The Commission held that under s. 10(c)(ii) of the Code, the plan must specify the measures that will be carried out to protect only those forest resources that have been identified, described and assessed in accordance with the OPR for the area under the plan. The Commission found that the plan met this requirement in relation to those resources identified within the cutblocks, roads and adjacent areas, but no measures were specified, and no resources were identified outside of those areas. To the extent that there were forest resources outside of the areas affected by the proposed operations, the plan was deficient. However, without specific evidence on the plans failings in this regard, the Commission was not in a position to make a decision on these specific items.

As for the review and comment process, the Commission found that, although poorly organized, the plan met the substantive legislative provisions. Further, the changes which resulted from the initial public comment process did not need to undergo further public review and comment in this case.

When the District Manager evaluated the plan, the Commission accepted that some of his personal knowledge and expertise would come into play in the evaluation process. However, if his decision is based on any substantive information, that information should be contained in the plan. In this case, the Commission found no evidence that the District Manager researched or considered anything that should have been in the plan but was not.

However, on the question of whether the District Manager could have been satisfied that the plan would adequately manage and conserve the forest resources in the area to which the plan applies, it found the answer was less clear. Given that the District Manager and MB erred in their interpretation of the “area under the plan”, the Commission found it reasonable to believe that some resources that should have been identified and described were not. While MB and the District Manager may have considered these matters when planning the location of the individual cutblocks, the information was not in the plan. However, based on the information that was, in fact, contained in the plan, the Commission found that the District Manager reasonably could have been satisfied that the plan adequately managed and conserved the forest resources identified in the plan.

The Commission concluded that there might have been deficiencies in the plan but that, without better evidence, it was unable to rescind the entire plan on such a tentative basis. The appeal was dismissed.