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Supreme Court of Canada Decisions

Her Majesty the Queen in Right of the Province of British Columbia v. Western Forest Products Limited and Forest Appeals Commission No. 33378

Decision Date: March 11, 2010

Court: SCC; Chief Justice McLachlin, Justice Abella, Justice Rothstein

Cite: Docket No. 33378

Her Majesty the Queen in Right of the Province of British Columbia (the “Province”) sought leave from the Supreme Court of Canada to appeal a decision of the BC Court of Appeal, which had allowed an appeal by Western Forest Products Limited (“Western”) and had restored a decision of the Forest Appeals Commission.

At stake was the Commission’s decision in Western Forest Products Ltd. v. Government of British Columbia, Decision No. 2004-FA-003(c), dated September 21, 2005.  The decision involved an appeal by Western of a determination by the District Manager, Ministry of Forests and Range, that a log dump used by Western near Jordan River was a suitable log dump for the purposes of determining the stumpage rate applicable to timber harvested by Western near Jordan River.  The issue before the Commission was whether, in determining the stumpage rate, the log dump at Jordan River was “unsuitable” for the purpose of calculating Western’s transportation cost estimates under the Coast Appraisal Manual (the “CAM”).

The Commission found that the stumpage rate should be determined based on Western using a log dump in Sooke rather than one at Jordan River, despite the fact that the Jordan River log dump involved a shorter truck hauling distance and was the one that Western actually used for timber harvested in that area.  The Commission accepted evidence provided by Western’s witnesses that the concept of licensee neutrality is a fundamental principle in stumpage appraisals under the CAM.  The Commission held that, under the CAM, harvesting costs are to be estimated independent of the actual circumstances of a particular licensee, and are to be based upon what would be done by a notional average operator.  There was undisputed evidence that the Jordan River log dump’s capacity is limited and that Western fully utilized the log dump, such that the log dump had no capacity to serve other licensees.  On that basis, the Commission concluded that the Jordan River log dump was not suitable for use by a notional average operator, and it would be unfair to appraise all other licensees in the area to another log dump but appraise Western to Jordan River. 

The Province appealed the Commission’s decision to the BC Supreme Court.  In British Columbia (Minister of Forests and Range) v. Forest Appeals Commission, 2007 BCSC 696, the Court held that the issue before the Commission was a question of law, and that the appropriate standard of review lay between reasonableness simpliciter and correctness, but closer to reasonableness simpliciter.  Further, the Court determined that the evidence of the witnesses before the Commission appeared to be more argument and conclusion than statements of fact.  Regarding the Commission’s finding that the Jordan River log dump is unsuitable for the purposes of determining the applicable stumpage rate, the Court found that the concepts of licensee neutrality and “notional average operator” are not expressly used in the CAM.  Rather, those concepts were repeatedly referred to by Western’s witnesses.  The Court held that the Jordan River log dump only becomes unsuitable if the concepts of “licensee neutrality” and “notional average operator” are read into the CAM to defeat what would otherwise be the result of a plain and unambiguous reading of section 4.1 of the CAM.  The Court found that applying the concept of licensee neutrality to find that Western should pay stumpage as if it were trucking logs to a further log dump in Sooke simply because other licensees cannot use Jordan River produced an absurd result.  Therefore, the Court found the Commission’s decision unreasonable and ordered that the decision was stayed. 

Western appealed to the BC Court of Appeal.  In Western Forest Products Limited v. British Columbia and the Forest Appeals Commission, 2009 BCCA 354, the Court held that the judge below did not have the benefit of Dunsmuir v. New Brunswick, 2008 SCC 9, which requires the application of a standard of reasonableness to the Commission’s decision.  The Court also held that the case turned on the exercise of discretion under section 4.1 of the CAM regarding whether a log dump is “unsuitable”, and this question engaged the Commission’s technical expertise in stumpage appraisal, even though the question could be characterized as one of law (i.e. the interpretation of the CAM, which is a form of subordinate legislation).  Applying the standard of reasonableness, the Court found that the Commission’s decision was reasonable.  Specifically, the Court held that there was evidence to support the principle of licensee neutrality which the Commission had applied, and it was not unreasonable for the Commission to have accepted that evidence, especially in light of section 148.6 of the Forest Act which permits the Commission to accept evidence even if that evidence may be inadmissible in a court.  The Court also held that the Commission’s decision was consistent with the scheme and tenor of the CAM, and was within the range of acceptable outcomes available to the Commission.  Accordingly, the Court allowed Western’s appeal and ordered that the Commission’s decision was restored. 

The Province sought leave from the Supreme Court of Canada to appeal the judgement of the Court of Appeal.  The Province’s application was dismissed without reasons, and with costs to Western. 

Attorney General of British Columbia and Ministry of Forests v. Thomas Paul (Forest Appeals Commission, Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General of Saskatchewan, Attorney General of Alberta and First Nations Summit, Intervenors) SCC 55

Decision Date: October 3, 2003

Court: S.C.C. McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.  

The Ministry of Forests seized four logs in the possession of Mr. Paul, a registered Indian, who planned to use the wood to build a deck on his home.  Mr. Paul asserted that he had an aboriginal right to cut timber for house modification and, accordingly, section 96 of the Code, a general prohibition against cutting Crown timber, did not apply to him.  Both the District Manager and an Administrative Review Panel agreed that Mr. Paul had contravened section 96.  Mr. Paul appealed to the Forest Appeals Commission, which decided, as a preliminary matter of jurisdiction, that it was able to hear and determine the aboriginal rights issues in the appeal.  Mr. Paul appealed to the B.C. Supreme Court, which concluded that the Legislature had validly conferred on the Commission the power to decide questions relating to aboriginal title and rights in the course of its adjudicative function in relation to contraventions of the Code.  Mr. Paul then appealed to the Court of Appeal, the majority of which set aside the decision, holding that s. 91(24) of the Constitution Act, 1867, which gives Parliament exclusive power to legislate in relation to Indians, precluded the Legislature from conferring jurisdiction on the Commission to determine questions of aboriginal title and rights in the forestry context.  The province appealed to the Supreme Court of Canada.

In a unanimous decision, the Supreme Court of Canada held that the province has legislative competence to endow an administrative tribunal with capacity to consider a question of aboriginal rights in the course of carrying out its valid provincial mandate.  The Code is valid provincial legislation in relation to development, conservation and management of forestry resources in the province, and there was no suggestion that the law’s effects on Indians are so significant as to reveal a pith and substance that is a matter under exclusive federal competence.  As a law of general application, the Code applies ex proprio vigore to Indians, to the extent that it does not touch on the “core of Indianness” and is not unjustifiably inconsistent with section 35 of the Constitution Act, 1982.  The effect of the Code is to prescribe that Indians who face an administrative penalty under the Code will first raise an aboriginal rights defence before the Commission, as opposed to before a superior court judge.  This effect has not been shown to have a substantial impact upon Indians qua Indians. 

The doctrine of interjurisdictional immunity relates to the exercise of legislative powers -- that is, the power of a province to apply its valid legislation that affects matters under federal competence.  The majority of the Court of Appeal erred in applying the doctrine in the context of an adjudicative, not legislative, function.  In determining a question of aboriginal rights, a provincially constituted tribunal would be applying constitutional or federal law in the same way as a provincial court, which is also a creature of provincial legislation.  Tribunals must take into account all applicable legal rules, both federal and provincial, in applying their enabling legislation.

A determination by an administrative tribunal, such as the Commission, is very different from both extinguishment of a right and legislation in relation to Indians or aboriginal rights.  First, any adjudicator, whether a judge or a tribunal, does not create, amend, or extinguish aboriginal rights.  Second, the Commission’s decisions do not constitute legally binding precedents, nor will their collective weight over time amount to an authoritative body of common law.  They could not be declaratory of the validity of any law.  Moreover, as for constitutional determinations respecting sections 91(24) or 35, the Commission’s rulings would be reviewable, on a correctness basis, in a superior court on judicial review.

To determine if a tribunal has the power to apply the Constitution, including section 35 of the Constitution Act, 1982, the essential question is whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law.  If it does, the tribunal will be presumed to have the concomitant jurisdiction to interpret or decide the question at issue in light of section 35 or any other relevant constitutional provision.  There is no persuasive basis for distinguishing the power to determine section 35 questions from the power to determine other constitutional questions, and practical considerations will not suffice generally to rebut the presumption that arises from authority to decide questions of law. Here, the Commission has the power to decide questions relating to aboriginal rights arising incidentally to forestry matters.  Section 131(8) of the Code permits a party to “make submissions as to facts, law and jurisdiction.”  The Commission thus has the power to determine questions of law and nothing in the Code provides a clear implication to rebut the presumption that the Commission may decide questions of aboriginal law.  Any restriction on the Commission’s remedial powers is not determinative of its jurisdiction to decide section 35 issues, nor is the complexity of the questions.

The appeal was allowed.






28974 Attorney General of British Columbia and Ministry of Forests - v. - Thomas Paul, Forest Appeals Commission - and between - Forest Appeals Commission - v. - Attorney General of British Columbia and the Ministry of Forests, Thomas Paul (B.C. (Civil)

CORAM:  Gonthier, Major and LeBel JJ.

The application for leave to appeal by the Attorney General of British Columbia and the Ministry of Forests is granted. The application for leave to appeal by the Forest Appeals Commission is dismissed without prejudice to the Applicant's rights to apply for leave to intervene in the appeal by the Attorney General of British Columbia and the Ministry of Forests.

The summaries provided on this site are an interpretation of the decisions by Commission staff and may be subject to different interpretation.


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