Her Majesty the Queen in Right of
the Province of British Columbia v. Western Forest Products Limited and
Forest Appeals Commission No. 33378
March 11, 2010
SCC; Chief Justice
McLachlin, Justice Abella, Justice Rothstein
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,
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 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
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
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
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
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
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
is to prescribe that Indians who face an administrative penalty under the
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
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.
SUPREME COURT OF CANADA -- JUDGMENTS IN LEAVE APPLICATIONS
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.