The Western Canada Wilderness Committee (“WCWC”) appealed a decision of a chambers judge setting aside the WCWC’s petition for judicial review of a Ministry of Forests District Manager’s decision (“DM”) that a logging cutback referred to in a Forest Development Plan (“FDP”) met the requirement of s.41(1) of the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c.159 (the “Code”) as it related to the spotted owl, in that the FDP would “adequately manage and conserve the forest resources of the area to which it applied”. The appeal was dismissed.

Administrative law – Environmental issues – Forest practices – Precautionary principle – Wildlife habitat – Spotted Owl – Judicial review – Compliance with legislation – Standard of review – Patent unreasonableness

Western Canada Wilderness Committee v. British Columbia (Ministry of Forestry, South Island Forest District), [2003] B.C.J. No. 1581, British Columbia Court of Appeal, July 8, 2003, Prowse, Ryan, and Huddart JJ.A.

The Western Canada Wilderness Committee (“WCWC”) appealed a decision of a chambers judge dismissing its petition for judicial review of a decision of a Ministry of Forests District Manager. In her decision, the DM found that one of the four cutblocks referred to in a Forest Development Plan (“FDP”) submitted by Cattermole Timber (“Cattermole”) met the requirements of s.41(1) of the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159 (the “Code”) solely as it related to the spotted owl. In the result, the DM found that Cattermole’s FDP for that one cutblock would “adequately manage and conserve the forest resources of the area to which it applies”. WCWC sought judicial review of the decision, arguing that the DM erred in her interpretation and application of s.41(1) of the Code in relation to a forest resource (the spotted owl) which is in danger of extirpation (localized extinction).

The Petitioner was dismissed and the chambers judge upheld the DM’s decision, rejecting WCWC’s submission that the DM’s decision was patently unreasonable. He also rejected WCWC’s submission that the DM erred in failing to apply the precautionary principle, or other international law principles, in reaching her decision.

On appeal, the court agreed that the standard of review with respect to the question of statutory interpretation was correctness and the standard of review of the decision itself was whether it was patently unreasonable. However, the critical decision in this case was whether the substance of the decision was patently unreasonable. The fundamental issue was one of application of s.41(1) to the facts rather than the interpretation of the section per se. In the pragmatic and functional approach, as described in Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, 223 D.L.R. (4th) 599, the standard of review is determined by considering four contextual factors (privative clause/right of appeal, nature of the question, expertise of tribunal, and purpose of the legislation and the particular provision in question). Taking into account the contextual factors, and in the absence of an error in law, the legislature intended the courts to apply the most deferential standard of review to a DM’s decision under s.41(1); that is, the standard of patent unreasonableness.

The question of whether Cattermole’s FDP would adequately manage and conserve the spotted owl, in accordance with s.41(10), involved a risk-based analysis, which is essentially what was undertaken by the DM. Whether a FDP provides for adequate management and conservation of a forest resource is ultimately a fact-driven judgment call which the legislature intended to leave to those in the field who are familiar with the application of the Code and other statutes which govern forest resources and their management. In the event that the decision of a DM is lacking in rational foundation, the courts may be called to intervene.

With respect to the precautionary principle, the applicability of the principle was raised before the DM but she did not state whether she took it into account in reaching her decision. The precautionary principle was referred to in 114957 Canada Ltee (Spraytech, Societe d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241 as follows:

In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attach the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

The precautionary principle was not incorporated into the Code nor did s.41(1) preclude the approval of a FDP if there was an element of risk to a forest resource. In her decision, the DM did recognize that the question of whether the method of proposed harvesting would enhance owl habitat was not susceptible to strict proof and that caution was therefore required. Although she may not have given full effect to the precautionary principle, her decision reflected a degree of caution akin to that reflected in the precautionary principle. The court was unable to find that her failure to give full effect to the precautionary principle in her decision rendered an otherwise reasonable decision patently unreasonable. The chambers judge did not err in upholding her decision and the appeal was dismissed.

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