Fourth Floor 747 Fort Street Forest Appeals Telephone ... · TFL 39 includes the Tsitika watershed. Weyerhaeuser described the area as having the highest environmental profile in

Forest Appeals Commission

Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1

APPEAL NO. 2000-FA-009 In the matter of an appeal under section 146 of the Forest Act, R.S.B.C. 1996, c. 157. BETWEEN: Weyerhaeuser Company Limited APPELLANT AND: Government of British Columbia RESPONDENT

BEFORE: A Panel of the Forest Appeals Commission Lorraine Shore Panel Chair Jeanette Leitch Member Geza Toth Member DATES OF HEARING: April 18, 19, 20, 25, 26, and May 30, 2001 PLACE OF HEARING: Victoria, B.C. APPEARING: For the Appellant: Peter Voith, Counsel For the Respondent: Bruce Filan, Counsel

APPEAL

This is an appeal brought by Weyerhaeuser Company Limited (“Weyerhaeuser”) against the June 30, 2000 Stumpage Advisory Notice for Tree Farm Licence (“TFL”) 39, Cutting Permit 820, with an effective date of June 1, 2000. The Stumpage Advisory Notice was issued by Stephen J. Edwards, Appraisal Coordinator. The stumpage appraisal contained in the Notice was based on helicopter logging on the upper east side of Block 3775, and conventional logging elsewhere, including on the upper west side. At issue in the appeal is whether the appraisal should be based on helicopter logging on the upper west side also. The Notice was confirmed by a Review Panel composed of Darrell Robb and Val Ciapponi in a decision dated November 2, 2000.

Weyerhaeuser appeals on the issue of whether it should have received a helicopter logging allowance in regard to the upper west side of Block 3775.

This appeal is brought before the Forest Appeals Commission (the “Commission”) pursuant to section 146(1)(a) of the Forest Act. The powers of the Commission are set out in section 149 of the Forest Act.

APPEAL NO. 2000-FA-009 Page 2

Powers of Commission

149 (2) On an appeal, the commission may

(a) confirm, vary or rescind the determination, order or decision, or

(b) refer the matter back to the person who made the initial determination, order or decision, with or without directions.

Weyerhaeuser asks the Commission to rescind the Review Panel’s decision and direct the Appraisal Coordinator to undertake a stumpage appraisal for Cutting Permit 820 on the basis of helicopter logging as the harvesting method for the upper west side of Block 3775.

BACKGROUND

Block 3775 is within TFL 39, located north of Campbell River on Vancouver Island. Weyerhaeuser is one of the largest timber companies operating on the B.C. coast, harvesting about 30% of the total production on the coast. It harvests approximately 1.2 million m3 of timber annually from the northern end of Vancouver Island, amounting to approximately 100 blocks per year. Between 20-25% of this harvesting is done by helicopter.

TFL 39 includes the Tsitika watershed. Weyerhaeuser described the area as having the highest environmental profile in the company. In the 1960s and 1970s, there was pressure to preserve the Robson Bight area of the watershed, which is famous for its rubbing beaches where killer whales come to rub their bodies in the rocky shallows. In 1982, the area around the mouth of the Tsitika watershed was protected as an Ecological Reserve. In the early 1990s, the Robson Bight Provincial Park was established.

The approximate location of what is now known as Block 3775 was initially identified in MacMillan Bloedel’s (now Weyerhaeuser) 1997 Forest Development Plan (“FDP”), where it was referenced as “opening 214”, and covered an area of about 36 hectares. The block is located in the north-west part of TFL 39 and tucked into a corner such that it is of little use to provide access to further timber stands. Entry is from the north and the block is bounded to the west and south by steep rock bluffs. The block spans David Creek, a non-fish bearing stream, which runs into Catherine Creek, a fish-bearing stream.

Without identifying specific sites in the plan area as to type of harvesting, the 1997 FDP proposed that harvesting would include two types of cable yarding (grapple and highlead), as well as a ground based method (shovel, also called hoe-chucking). Aerial yarding by helicopter was not proposed in the 1997 FDP.

A revised FDP was prepared by Weyerhaeuser in 1999, and approved by the District Manager of the Campbell River District of the Ministry of Forests on December 15, 1999. In this plan, which covers the years 1999-2004, what was previously


referred to as “opening 214”, was now identified as “Block 3775”, with a net area of 39.7 ha.

The 1999 FDP referred to the harvest methods as grapple yarding, heli-logging and hoe chucking, but it did not specify where on the block the particular method was to be used. The silvicultural system was recorded as “Clearcut with reserves” but this was subsequently changed to “Clearcut” under an approved amendment in May 2000.

On April 4, 2000, Weyerhaeuser submitted the Silviculture Prescription for the block prepared by G. A. Patrucco, a Registered Professional Forester with Weyerhaeuser. It was approved by the District Manager of the Ministry of Forests’ Campbell River District on April 7, 2000. The text of the Silviculture Prescription did not state the harvesting method. However, there was a multi-coloured map attached to the Silviculture Prescription that included identification of areas designated for particular yarding methods. The areas to be heli-logged were marked in blue on this map. The map showed both the upper east and upper west sides of the block coloured blue.

At the time the Silviculture Prescription was submitted, Weyerhaeuser had possessed other reports of relevance, whose preparation it had earlier commissioned. The first was a “Pre-Layout Terrain Assessment of Proposed Cutblock 214, Catherine Creek Watershed”, dated November 24, 1997 by Shelley Higman, a hydrology specialist with Weyerhaeuser. Consistent with the proposals in the 1999 FDP, the assessment noted that the intended harvesting methods were grapple, hoe forward, and helicopter, though, again, the designated areas applicable to each were not described.

The Pre-Layout Terrain Assessment raised concerns regarding harvesting the upper slopes on both the east side and west side of David Creek. The report stated that it was the author’s understanding that the upper east side was to be harvested by helicopter. There was no comparable statement in the report regarding the west side. Preparation of the terrain assessment was a requirement for the licensee but there was no requirement that it be submitted to the Ministry of Forests.

There were also two watershed assessments, both prepared for Weyerhaeuser in 1997. One of these was the Coastal Watershed Assessment Plan for the entire Tsitika drainage region, prepared in November 1997. The other was the Coastal Watershed Assessment Plan for the Catherine Basin, dated February 1997, prepared by Glynnis Horel, a geological engineer. The latter report identified as a primary concern in the basin the management of steep and potentially unstable terrain so as not to increase the natural frequency of landslides. Coastal Watershed Assessment Plans are not required to be attached to any of the licensees’ plans submitted for Ministry of Forests’ approval.

Preparation for logging also involved lay-out of the cutblock in the field. The lay-out included assessing the block for yarding purposes through the identification of deflection lines. The location of the deflection lines was plotted on the operational


map. In addition, cross section drawings were produced to estimate the potential for ground disturbance, known as “ground lead.”

Weyerhaeuser applied for Cutting Permit 820 on May 3, 2000. Its application for the cutting permit said that the application was consistent with the Operating Plan, FDP, Silviculture Prescription and the Forest Practices Code of British Columbia Act (the “Code”). Attached to the application were cutting plan maps in 1:5000 and 1:20000 scale. The attached map on which Block 3775 was outlined and labeled “Exhibit A”, included the information that 11.5 ha would be logged by helicopter. The black and white map showed a split line on both the east and west slopes, although there is no indication on the map of what this line represents.

Attached to the cutting permit application were the Coast Appraisal Data Sheets prepared by Alan Newbert, Technologist and Area Engineer II for Weyerhaeuser. The data sheets reflected Weyerhaeuser’s intention to log the upper slopes of both the east and west side of the block by helicopter. The data sheets did not include page 15, the Least Cost Assessment.

After receipt of the appraisal data sheets attached to the cutting permit application, the Campbell River District office of the Ministry of Forests asked Weyerhaeuser to submit the Least Cost Assessment. The authority for this request came from an April 1, 2000 amendment to the Coast Appraisal Manual. The manual was amended to state that a Least Cost Assessment may be required by the District Manager when an aerial system of yarding is proposed, and in such cases the licensee would be required to complete page 15 of the Coast Appraisal Data Sheet. Section 2.2 at paragraph 1 of the Coast Appraisal Manual further states that when the District Manager determines that an aerial system is the only harvest method that manages and conserves the forest resource, a Least Cost Assessment will not be required. According to Weyerhaeuser, this was the first it heard about the policy change. Weyerhaeuser had never submitted a Least Cost Assessment previously when it intended to helicopter log. Further, it had provided the same information in this application on pages 1-10 and 14 of the appraisal data sheets attached to the cutting permit as for applications which had involved helicopter logging in the previous year.

On May 12, 2000, Mr. Newbert submitted the Least Cost Assessment data sheet which set out two options. Option 1 was for helicopter logging on the upper slopes on both the east and west sides of the block. Option 2 was for helicopter logging on the east side and conventional logging on the west side. There were no entries to indicate that option 2 would involve additional “Development Costs” such as the construction of spur roads.

In his covering letter, Mr. Newbert said that the area on the east side, which was intended for helicopter logging, had been noted in a geotechnical report of November 1997 as being Class IV terrain and having a moderate risk of landslide. In regard to the west side, he said that this was an area of steep terrain and that Weyerhaeuser felt that reduction of ground disturbance as a result of helicopter logging addressed a valid environmental concern, including the stream bank impact


on two streams. He also noted that the approved Silviculture Prescription set out helicopter logging as the yarding method for this area. Mr. Newbert concluded the letter by stating that Weyerhaeuser would helicopter log both sides regardless of the appraisal consequences.

In or around May 19th, Weyerhaeuser was advised that the Ministry of Forests approved option 2 – helicopter logging on the east side but conventional logging on the west side. The District Manager issued Cutting Permit 820, dated May 31, 2000, to allow commencement of harvesting operations pursuant to Weyerhaeuser’s application. The permit was forwarded to the company with a covering letter dated June 1, 2000, noting that the permit would expire in two years. A copy of the “Exhibit A” map was attached. The District Manager forwarded the Coast Appraisal Data Sheets to the Vancouver Region head office for stumpage rate determination, because the Cutting Permit had been awarded effective June 1, 2000.

When notified of the Ministry’s decision to approve option 2, Mr. Newbert asked for a meeting to attempt to dissuade the Ministry of Forests from this option. No minutes were kept by either parties of this meeting which took place in early June, after the Cutting Permit was issued. Mr. Newbert said the cost to Weyerhaeuser of not receiving the cost estimate to helicopter log the upper west side was about $285,003, based on a $6.61/m³ difference in cost estimates between harvesting options 1 and 2 for the 43,117 m³ in the area proposed for harvest.

Following the meeting with the Forest Service, Mr. Newbert resubmitted the Least Cost Assessment data sheet (page 15), on June 15, 2000. His covering letter reiterated the considerations about steep terrain and stream bank impact and added that the log value and volume recovered from this area would increase significantly with helicopter logging. He also noted that the cutblock had an approved Silviculture Prescription and that the yarding method in the Silviculture Prescription matched that of Weyerhaeuser’s original appraisal submission dated May 3, 2000.

This resubmission did not alter the Ministry of Forests’ position that helicopter logging was not required on the upper west side of the block. On June 30, 2001, Stephen J. Edwards, Appraisal Coordinator, issued the Stumpage Advisory Notice in issue in this appeal. The Coast Appraisal Manual in effect at the time of the appraisal, is the April 1, 2000 manual which states at section 4.1:

The estimate of harvesting costs must be determined for the method of harvesting referred to in this manual, other than a method that the District Manager states is unsuitable for the cutting authority area, that will produce the appraisal least total operating cost estimate.

The stumpage calculation used option 2 in the estimation of operating costs. The Notice did not provide a cost estimate for helicopter logging on the upper west side of the block although it did provide for helicopter logging on the upper east side of the block.


On July 21, 2000, Weyerhaeuser applied for an Administrative Review of Mr. Edward’s stumpage appraisal determination. The Administrative Review upheld the determination in a decision dated November 2, 2000.

On November 24, 2000, Weyerhaeuser appealed the determination, as reviewed, to the Commission. Weyerhaeuser argues that, for environmental reasons, it is necessary to helicopter log the upper west side of the block, and therefore, the stumpage determination should incorporate the appropriate cost allowance (which is called, in appraisal terms, a “cost estimate”). It argues that conventional logging should be found “unsuitable” for the purposes of section 4.1 of the Coast Appraisal Manual.

Between the time it filed for the Administrative Review in July of 2000 and had its hearing before the Commission in April of 2001, Weyerhaeuser undertook further investigations and obtained further reports in relation to the upper west side of Block 3775.

Weyerhaeuser assigned Area Engineer Mason Harris, a Registered Professional Forester, to do a reconnaissance of the block in August 2000. The purpose was to determine the feasibility of logging the upper slopes on the west side conventionally by building additional spur roads. After compiling the information for the reconnaissance options in map form, Mr. Mason returned to the site accompanied by Ms. Higman, whose task was to determine the terrain risks associated with any proposed spur roads.

On April 2, 2001 the Ministry of Forests sent Paul Nuttall, Registered Professional Forester, and Glenn Barker, Forest Officer, to the site to review the suitability of conventional logging of the upper west side. They were accompanied by Scott Cosman, a geological engineer employed by the Ministry of Forests. His task was to provide professional expertise on the feasibility and impact of the construction of additional spur roads.

The additional information gathered as a result of these investigations became a contentious issue at the hearing of this appeal before the Commission, bringing into question the nature of the hearing before the Commission and the question it is to answer on this appeal.

At the time of the hearing, Weyerhaeuser had not yet harvested the areas on the east and west of the block which it intends to helicopter log.

ISSUES

There is no dispute that the upper east side of the block requires helicopter logging.

Weyerhaeuser raised two issues going to the merits of this appeal. The first is whether the District Manager made an erroneous decision when he determined that harvesting methods other than heli-logging were not “unsuitable” for the upper west side of the cutblock under section 4.1 of the Coast Appraisal Manual.


Weyerhaeuser phrased the second issue as “whether it was ‘illegal’ not to helicopter log that slope” given that, in its view, the Silviculture Prescription and Cutting Permit require heli-logging of that slope.

However, as noted above, another issue arose at the hearing of the appeal. The issue being the extent to which the Commission could accept and rely upon the new information gathered after Mr. Edward’s determination. This involved an assessment of the nature of the hearing before the Commission; specifically, whether the hearings are in the nature of a hearing de novo.

The Commission has framed the issues to be decided in this appeal as follows:

1. Whether the hearing before the Commission is a hearing de novo.

2. Whether conventional logging is “unsuitable” on the upper west side of Block 3775.

3. Whether helicopter logging of the upper west side of Block 3775 is a legally binding requirement both for operational purposes and for stumpage determination purposes.

RELEVANT LEGISLATION and POLICY

Stumpage Issues

A licensee harvesting Crown timber in British Columbia must pay a fee to the Crown known as stumpage. Section 105 of the Forest Act addresses the determination of stumpage rates. It states:

105 (1) Subject to the regulations made under subsections (6) and (7), if stumpage is payable to the government under an agreement entered into under this Act, the rates of stumpage must be determined and varied by an employee of the ministry identified in the policies and procedures referred to in paragraph (1)(b)

…

(b) in accordance with the policies and procedures approved for the forest region by the minister.

The “policies and procedures approved … by the minister” for the coastal region are found in the Coast Appraisal Manual. The provisions of this manual have been described as analogous to a regulation: Re MacMillan Bloedel Ltd. and the Appeal Board under the Forest Act (1984), D.L. R. (4th) 33 (B.C.C.A.).

Section 4.1 of the Coast Appraisal Manual requires that operating costs be calculated according to the “least cost” principle. Section 4.1 states in part:

…


The Appraisal Coordinator must estimate total operating costs for a cutting authority area in a manner which will produce the appraisal least total operating cost estimate for the cutting authority area.

The appraisal estimate of harvesting and transportation costs must be determined by using the criteria for determining the harvesting and transportation costs as set out in this manual.


…

[emphasis added]

Hearing Issue

The powers and procedures for appealing a decision to the Commission are found in sections 146 to 149.2 of the Forest Act. Section 150 addresses appeals to court from a Commission decision.

The following sections are relevant to a determination of the nature of a hearing before the Commission.

Determinations that may be appealed

146 (1) Subject to subsection (3), an appeal may be made to the Forest Appeals Commission from a determination, order or decision of

(a) a district manager or regional manager, under the provisions referred to in section 143 (1) (a) and (b),

(b) an employee of the ministry, under section 105 (1),

(c) the chief forester, under section 60 (2), 68, 70 (1), 77 (1) (a) or 112 (1), and

(d) the chief forester, by way of a determination under section 66 (4) (b) or (5) (b), of the area of Crown land described in that section.

(2) No appeal may be made under subsection (1) (a) and (b) unless the determination, order or decision has first been reviewed under Division 1 of this Part.

(3) If a determination, order or decision referred to in subsection (1) (a) is varied by the person conducting a review under section 145, the appeal to


the commission is from the determination, order or decision as varied under that section.

(4) If this Act gives a right of appeal, this Division applies to the appeal.

…

Appeal

148 (1) The commission, after receiving the notice of appeal, must

(a) promptly hold a hearing, or

(b) hold a hearing within the prescribed period, if any.

…

(3) Only the appellant and the government are parties to the appeal.

(4) The parties may

(a) be represented by counsel,

(b) present evidence, including but not limited to evidence that was not presented in the review under Division 1 of this Part,

(c) if there is an oral hearing, ask questions, and

(d) make submissions as to facts, law and jurisdiction.

(5) A person who gives oral evidence may be questioned by the commission or the parties to the appeal.

Order for written submissions

148.1 (1) The commission or a member of it may order the parties to an appeal to deliver written submissions.

(2) If the appellant does not deliver a written submission ordered under subsection (1) within the time specified in the order, the commission may dismiss the appeal.

(3) The commission must ensure that each party to the appeal has the opportunity to review written submissions from the other party and an opportunity to rebut the written submissions.

Interim orders

148.2 The commission or a member of it may make an interim order in an appeal.


Open hearings

148.3 Hearings of the commission are open to the public.

Witnesses

148.4 The commission or a member of it has the same power as the Supreme Court has for the trial of civil actions

(a) to summon and enforce the attendance of witnesses,

(b) to compel witnesses to give evidence on oath or in any other manner, and

(c) to compel witnesses to produce records and things.

Contempt

148.5 The failure or refusal of a person

(a) to attend,

(b) to take an oath,

(c) to answer questions, or

(d) to produce the records or things in his or her custody or possession,

makes the person, on application to the Supreme Court, liable to be committed for contempt as if in breach of an order or judgment of the Supreme Court.

Evidence

148.6 (1) The commission may admit as evidence in an appeal, whether or not given or proven under oath or admissible as evidence in a court,

(a) any oral testimony, or

(b) any record or other thing

relevant to the subject matter of the appeal and may act on the evidence.

(2) Nothing is admissible in evidence before the commission or a member of it that is inadmissible in a court because of a privilege under the law of evidence.

(3) Subsection (1) does not override an Act expressly limiting the extent to or purposes for which evidence may be admitted or used in any proceeding.


(4) The commission may retain, call and hear an expert witness.

Powers of commission

149 (1) On an appeal, whether or not the person who conducted the review confirmed, varied or rescinded the determination, order or decision being appealed, the commission may consider the findings of

(a) the person who made the initial determination, order or decision, and

(b) the person who conducted the review.

(2) On an appeal, the commission may


(b) refer the matter back to the person who made the initial determination, order or decision with or without directions.

(3) If the commission decides an appeal of a determination made under section 105, the commission must, in deciding the appeal, apply the policies and procedures approved by the minister under section 105 that were in effect at the time of the initial determination.

(4) The commission may order that a party pay any or all of the actual costs in respect of the appeal.

(5) After filing in the court registry, an order under subsection (4) has the same effect as an order of the court for the recovery of a debt in the amount stated in the order against the person named in it, and all proceedings may be taken as it if were an order of the court.

…

Order for compliance

149.2 If it appears that a person has failed to comply with an order or decision of the commission or a member of it, the commission, minister or appellant may apply to the Supreme Court for an order

(a) directing the person to comply with the order or decision, and

(b) directing the directors and officers of the person to cause the person to comply with the order or decision.


Appeal to the courts

150 (1) The appellant or the minister, within 3 weeks after being served with the decision of the commission, may appeal the decision of the commission to the Supreme Court on a question of law or jurisdiction.

(2) On an appeal under subsection (1), a judge of the Supreme Court, on terms he or she considers appropriate, may order that the decision of the commission be stayed in whole or in part.

(3) An appeal from a decision of the Supreme Court lies to the Court of Appeal with leave of a justice of the Court of Appeal.

DISCUSSION AND ANALYSIS

1. Whether the hearing before the Commission is a hearing de novo.

At the hearing, the Government acknowledged that a hearing before the Commission is a hearing de novo, but argued that the issue is whether the District Manager’s decision was reasonable in the circumstances. Weyerhaeuser said that by framing the issue in these terms, the Government is asking the Commission to give deference to the District Manager’s decision, which is inconsistent with the de novo jurisdiction of the Commission.

Following the conclusion of the hearing, counsel for the Government advised the Commission that the B.C. Court of Appeal had issued its decision in Thomas Paul v. The Forest Appeals Commission and The Attorney General of British Columbia and the Ministry of Forests, 2001 BCCA 0537. In that decision, Lambert J.A. said at paragraph 54:

If the Forest Appeals Commission has jurisdiction to decide questions of aboriginal title and aboriginal rights that jurisdiction must be regarded as conferred by the generality of s. 131(8)(d) [of the Code]. There is no similar provision with respect to the District Manager or the Administrative Review Panel, the former being authorized to make determinations about occurrences, and the latter to review them. But since the Forest Appeals Commission is not authorized to conduct hearings de novo on the very points which the District Manager was required to determine, but only to hear an appeal, the better assumption must be that the implication of jurisdiction to decide questions of aboriginal title and aboriginal rights, if it is to be made with respect to the Forest Appeals Commission, must also be made with respect to the District Manager and the Administrative Review Panel. [emphasis added]

To address the Court’s statements in Paul, the Commission took submissions from the parties on the relevance of the Paul decision to the issue in this appeal.


The Government acknowledges that the comment of Lambert J.A. was obiter dictum, in that it was not necessary for the determination of the case and was not a necessary step to the judgment of the Court. However, it argues that such a comment coming from the highest court in British Columbia is strongly persuasive and of great weight. Further, the Government submits that one cannot assume that Lambert J.A. did not actively consider the matter. The Government notes that the same judge considered the issue extensively in Dupras v. Mason (1994), 32 C.P.C. (3d) 126 in regard to appeals from decisions of the Chief Gold Commissioner under the Mineral Tenure Act.

The Government argues that, in accordance with section 148.6 of the Forest Act, the Commission may properly hear evidence of what was before the District Manager when he decided that cable yarding was not unsuitable, and then decide the reasonableness of that decision. It argues that the “information created by the Appellant in preparation for this appeal long after the District Manager made his decision should not be considered by the Commission when determining the reasonableness of the District Manager’s decision.” The Commission is only to hear an appeal, not to conduct a hearing de novo.

Weyerhaeuser submits that the comment of Lambert J.A. is in the nature of an assumption unsupported by any analysis or consideration. It argues that there were two issues in the Paul decision:

(1) a constitutional question – whether the provincial legislature has the constitutional authority to empower the Commission to decide questions of aboriginal rights and title, and

(2) a statutory interpretation question – if the provincial legislature has the constitutional authority to do so, whether it has empowered the Commission to decide such questions.

Weyerhaeuser points out that Lambert J.A. stated that the constitutional issue is not a question about the scope of the quasi-judicial powers of the Commission. Having found, on the first issue, that the province did not have the jurisdiction to empower the Commission to adjudicate aboriginal rights and title, then Lambert J.A. did not need to address the matter of the Commission’s capacity to adjudicate.

Weyerhaeuser further notes that neither of the other two judges addressed the de novo matter or made any reference to Lambert J.A.’s comment. Huddart J.A. provides an analysis of the Commission’s powers, but does not consider whether a hearing before the Commission is a hearing de novo.

Both parties agree that Lambert J.A.’s comment in Paul was obiter dictum in that it was not necessary to the decision. The Commission notes that Lambert J.A.’s conclusion was seemingly based on his review of section 131(12)(d) of the Code, which provides that the parties to an appeal “may make submissions on fact, law and jurisdiction.” His comments were not made in the context of characterizing the Commission’s hearing procedure for the purposes of determining the applicable


standard of review. It was one line, unsupported by analysis, in a 93-page decision.

Further, Lambert J.A. is the only judge to make specific reference to the matter. Donald J.A.’s decision is silent. Huddart J.A., writing in dissent, does not deal specifically with de novo jurisdiction, but does describe the Commission’s powers in broad terms.

In general, the nature of an appeal to a tribunal is to be determined through the interpretation of the relevant provisions of the tribunal’s enabling statute. The Commission finds that the relevant provisions of the Forest Act evince an intention on the part of the Legislature to allow the Commission to be flexible in how it handles appeals, and that it is open to the Commission to both hear new evidence and consider the findings of the decision-maker below, thus allowing the Commission to effectively conduct an appeal de novo. The relevant provisions of the Forest Act are as follows.

Section 146(1) states that an appeal may be made to the Commission from a determination, order or decision of a variety of government officials after that decision, determination or order has first been reviewed. It states:

146 (1) Subject to subsection (3), an appeal may be made to the Forest Appeals Commission from a determination, order or decision of

(a) a district manager or regional manager, under the provisions referred to in section 143 (1) (a) and (b),

(b) an employee of the ministry, under section 105 (1),

(c) the chief forester, under section 60 (2), 68, 70 (1), 77 (1) (a) or 112 (1), and

(d) the chief forester, by way of a determination under section 66 (4) (b) or (5) (b), of the area of Crown land described in that section.

Section 148(4)(b) states:

(4) The parties may

(a) be represented by counsel,

(b) present evidence, including but not limited to evidence that was not presented in the review under Division 1 of this Part,

(c) if there is an oral hearing, ask questions, and

(d) make submissions as to facts, law and jurisdiction.

[emphasis added]


Under sections 148.1 and 148.2, the Commission may order parties to deliver written submissions and may make an interim order in an appeal.

Section 148.4 provides the Commission with the same powers as the Supreme Court to summon and enforce the attendance of witnesses, to compel witnesses to give evidence and to require production of records.

Section 148.6 gives the Commission wide powers to admit evidence, including the power to retain, call and hear an expert witness. In Calgary General Hospital Board and Williams, (1982) 142 D.L.R. (3d) 736, the Alberta Court of Appeal said that similar powers under the Alberta Hospitals Act were “hardly consistent with a limited appeal on the record…” (at page 738-9).

Finally, section 149 enumerates the powers of the Commission on appeal and provides, in part, as follows:

(1) On an appeal, whether or not the person who conducted the review confirmed, varied or rescinded the determination, order or decision being appealed, the commission may consider the findings of

(a) the person who made the initial determination, order or decision, and

(b) the person who conducted the review.

Not only are these powers normally ones which are indicative of a de novo jurisdiction, but there is no practical purpose to be served in giving the Commission the power to hear fresh evidence and to retain, call and hear an expert witness if the Commission’s role is limited to that proposed by the Government, i.e., determining whether the decision of the District Manager was reasonable “in light of what was made known to him at the time of his decision.”

In addition, while the Legislature refers to the decision below in section 149(1), it provides the Commission with the power, in section 148(4)(b), to consider the findings of that decision-maker and to hear evidence not before him or her. In fact, one need look no further than section 148(4)(b) to support the conclusion that the Commission is not bound to hear matters as “true appeals.” It provides that a party may “present evidence, including but not limited to evidence that was not presented in the review under Division 1 of this Part.” On a plain reading of that subsection, the Commission finds that it is not bound to the record before the decision-maker below; it is entitled to go beyond a mere review for errors of fact, law and jurisdiction.

Finally, section 148(4)(d) states, in part, that a party may make submissions “as to facts.” Again, this suggests that the Commission will be involved in making fresh findings of fact, not simply taking the findings of the decision-maker appealed from as given.


In its submissions, the Government places considerable weight on the recent changes in the wording of the Commission’s powers under the Forest Act. Section 149(2) of the Forest Act now reads:

(2) On an appeal, the commission may


(b) refer the matter back to the person who made the initial determination, order or decision with or without directions.

Section 149(1) of the previous Forest Act contained the same provisions, in slightly different wording, but had a third provision:

(c) may make any other order that the appeal board considers appropriate in the circumstances.

The Government argues that the removal of former subsection 149(1)(c) of the Forest Act suggests an intention on the part of the Legislature to change the nature of appeals before the Commission. The Commission finds that it is unreasonable to conclude from the removal of that section that it was the Legislature’s intention to essentially convert appeals to the Commission to “true appeals.”

The Commission is of the view that, even with the statutory changes, the Commission still retains de novo powers. There are various provisions in the Forest Act which point to that conclusion.

First, under section 149(2), the Commission has retained the power to “confirm, vary or rescind” the decisions below. In British Columbia (Minister of Health) v. British Columbia (Environmental Appeal Board) [1996] B.C.J. No. 1531, Romilly J. made these observations regarding a similar power held by the Environmental Appeal Board under section 5(4) of the Health Act:

Under s. 5(4) of the Act, when hearing an appeal from a person ‘aggrieved by the issue or the refusal of a permit for a sewage disposal system’, the Board ‘may confirm, vary or rescind the ruling under appeal’. This legislation identifies a clear legislative intent to provide the Board a wide ambit of appellate authority. Unlike in other statutes, the Board is not limited to determining whether there are, for example, ‘errors of law’ or even ‘errors of mixed fact and law’; rather, it may ‘confirm, vary or rescind’, the decision of the statutory officer, and enjoys the widest possible scope of remedial powers.

[emphasis added]

The language “confirm, vary or rescind” in the Forest Act can be contrasted with the language employed in section 150 of the Act which provides for a statutory appeal


to the courts from a decision of the Commission merely on questions of law or jurisdiction. Clearly, the Legislature intended the Commission to have much broader powers on appeal than a court on a subsequent statutory appeal.

The Commission finds that a purposive interpretation of the Forest Act leads to the conclusion that the Legislature intended for appeals of specialized questions of forestry to come before the Commission, that the Commission would have an opportunity, should it so desire, to consider those questions from its own specialized perspective, and for the courts to provide a supervisory role, ensuring that no errors of law or jurisdiction are made by the Commission. Therefore, the better view of the amendment to the Forest Act, is that the Legislature was attempting to move the Commission down the “spectrum” away from pure appeals de novo, giving it the flexibility to decide appeals in a more efficient manner by relying on the findings below, and not necessarily conducting a true hearing de novo appeal in every case.

Thus, the Commission can consider information that was before the decision-maker below as well as new evidence in order to make a decision on the issues in the appeal.

2. Whether conventional logging is “unsuitable” on the upper west side of Block 3775 under section 4.1 of the Coast Appraisal Manual.

Under section 4.1 of the Coast Appraisal Manual, the Appraisal Coordinator must estimate total operating costs for a cutting authority area in a manner which will produce the least total operating cost estimate for the cutting authority area.

The critical portion of section 4.1 to this appeal is the following language:


“Cutting authority” is defined in section 1.3 of the Coast Appraisal Manual, and includes a cutting permit.

There is no dispute that heli-logging is expensive. It does not produce the “least total operating cost estimate” when compared with other methods, such as conventional logging.

In accordance with section 4.1 of the Coast Appraisal Manual, in order to determine whether the Stumpage Advisory Notice should contain a cost estimate for heli-logging, rather than the less expensive conventional method, the Commission must first determine whether conventional logging is unsuitable in light of all of the information which has been placed before the Commission.


Both Weyerhaeuser and the Government provided lengthy and detailed arguments on this issue.

Before going into the evidence, it is helpful to summarize the parties’ positions.

The Government argues that its decision was appropriate in that there were various suitable conventional alternatives to helicopter logging of the upper west side. Conventional logging of the whole of the west side was not limited to using grapple yarders standing on the existing road. One conventional logging alternative was a different cable method, which used a higher tower and wider landing areas based on the existing road. This would mitigate ground lead and accessibility concerns indicated by deflection lines, thereby maximizing timber harvested. The Government proposes that another suitable conventional method was the building of spur roads. The upper slopes would then be reached by grapple yarders positioned along this road.

Weyerhaeuser argues that the hazards both from the harvesting itself and from the instability caused by building conventional roads to access the timber are such that the only environmentally safe way to harvest the timber is by helicopter logging. Weyerhaeuser further says that if it were to log conventionally, additional spur roads would have to be built by unconventional methods. This would be an unwarranted expense and there would still be an unacceptable risk of slope failure.

It is useful to look at the information available to the District Manager and the situation as Weyerhaeuser saw it at the time it made the cutting permit application before considering the further information placed before the Commission.

Information available at the time of the District Manager’s decision

As far as Weyerhaeuser was concerned, the intention to heli-log the upper portions of both the east and west sides of the block was already integral to its overall forest management scheme for the block when it applied for Cutting Permit 820 on May 3, 2000. The application stated that it was consistent with the Operating Plan, FDP, Silviculture Prescription, and the Code. It is Weyerhaeuser’s view that it made it clear in the FDP and the Silviculture Prescription that it intended to heli-log the upper west side and that the Ministry of Forests’ approval of those plans indicated acceptance of that intent. It argues that its intention to log the upper slopes of both the east side and the west side of the block by helicopter was conveyed in the maps attached to the Silviculture Prescription and to the cutting permit application, though such information was not required on those maps.

Weyerhaeuser’s Area Engineer, Mason Harris, testified that Weyerhaeuser decided to heli-log the upper slopes on both the east and west sides of the block mainly because of concerns over terrain stability. Hoe chucking would be used on the flatter valley bed, with grapple yarding on the lower slopes. Mr. Harris stated that he had concluded that grapple yarding was not suitable for the steep upper slopes because of deflection problems. In particular, he explained that the deflection was such that there would be “ground lead.” As a result, logs would hit other felled logs


and stumps and would gouge into the ground. This could cause soil disturbance and rutting in the ground, which would concentrate water flow, and it could also disturb existing stumps, as well as increase the amount of breakage to the timber. Ground lead would not occur with helicopter logging where the timber is lifted straight up.

At the hearing, Mr. Harris identified the deflection lines drawn on the operational map attached to the Silviculture Prescription. He then explained the associated cross sectional line drawings that were used to determine the amount of ground lead. Each of these drawings showed three upward sloping lines. One line corresponded to the ground contour. Another represented the straight line between where the cable was attached to the grapple yarder on the road and its upper attachment known as a tail hold or toe hold. The third was an estimate of the amount of sag that would occur in the cable. Mr. Harris explained that it was Weyerhaeuser’s practice to use three points and six per cent deflection to plot this line. He said that this method emphasized the sag in the upper portion where the cable was most likely to be too close to the ground.

Mr. Harris further testified that the slope of the terrain indicated that some pockets of timber would be isolated if cable yarding was used. He also explained that timber would be inaccessible in places where the slope changed from concave to convex. He told the Commission that he came to the conclusion that there should be a split, with the lower slope being logged using grapple yarding and the upper slope by helicopter logging. He stated that he considered the idea of additional spur roads a “non-starter.”

He also testified that other types of cable yarding from the existing road using a higher cable from a tower were dismissed as impractical. Mr. Harris explained that, in his opinion, the larger landing areas associated with towers were inappropriate and there was a lack of suitable sites to anchor the upper end of the cable. He said there was a lack of backspar trees to use as tail-holds because of shallow soils, especially since most of the trees were hemlock or balsam, which have less rooting strength than Douglas fir. As far as rock bolts were concerned, he stated that he considered these were not practical for such a small amount of timber, especially as there were safety issues connected with the risk of bolts failing. He said that helicopter logging would maximize timber recovery as well as being suitable for environmental reasons.

Mr. Newbert was responsible for preparing and submitting Cutting Permit 820 and the associated Coast Appraisal Data Sheets on behalf of Weyerhaeuser. He testified that he only submitted pages 1-10 as well as page 14, a culvert worksheet, and he omitted pages 11-13 and page 15 because there was no data pertaining to those pages. He testified that he had never previously had to submit a Least Cost Assessment sheet (page 15) in connection with planned helicopter logging. He also said that there were sometimes things in the data sheets that needed clarification and this usually occurred through follow-up discussions with Ministry of Forests’ staff. In this case, he said there was no discussion about helicopter logging; the first he heard about a problem was when the Ministry of Forests asked


Weyerhaeuser to submit the Least Cost Assessment sheet. He said that this indicated to him that the District Manager had made up his mind that helicopter logging was not the only way to harvest.

Mr. Newbert said that, in his opinion, any change from helicopter logging would impact on the Silviculture Prescription because it had been prepared under the assumption of logging the upper west side by helicopter. He acknowledged that the terrain assessment was only definitive with respect to the east side. Mr. Newbert said that he submitted page 15 as required, but also tried to dissuade the Ministry of Forests from going with option 2. Mr. Newbert said that he could not remember any request from the Ministry of Forests for terrain information to back up the data sheet. He also said that he believed that the Ministry of Forests’ officials did not really want any more information because they had already made up their mind to go with option 2. His attempts to dissuade the Ministry from this decision included the covering letters he sent with the submissions of page 15 on May 12 and June 15, respectively. He also requested a meeting in order to express his concern to the Ministry of Forests that Weyerhaeuser’s decision to helicopter log should be respected because it was based on 60 engineering days on the ground and extensive operational knowledge. Mr. Newbert testified that Weyerhaeuser would helicopter harvest regardless of the appeal because it felt that was the best way to access the timber in the block and minimize the environmental impact.

Glenn Barker was the Forest Officer of the Ministry of Forests responsible for dealing with the cutting permit application and Coast Appraisal Data Sheets submitted by Weyerhaeuser. He stated that when he received the application, and also Mr. Newbert’s letter of May 12, 2000, he was of the view that conventional yarding had not been maximized on the west side. In regard to the east side, there was a geotechnical report, and the Ministry generally accepts a licensee’s submission if there is professional information supporting it. There was no such report for the west side.

Mr. Barker was of the opinion that the conventional method that could bring out the most timber was a tower from the original road. He also said that he believed there was opportunity to build spur roads to place the yarding system further up the hill. He described these roads as “stump spurs” involving switchbacks. He confirmed that his assessment came from examining contours on the map rather than from on-the-ground inspection as he had not, at that time, visited the site.

Mr. Barker said that he asked Weyerhaeuser on or about May 19th if it would like to include spur roads in option 2 but did not receive a positive response. He testified that the inclusion of additional roads in option 2 would have raised the operating costs for that option and lowered the stumpage payable by Weyerhaeuser. Mr. Barker said that he advised Mr. Newbert of his view and told him that the District Manager was looking for a compelling reason to allow helicopter logging. He said that he told him they were looking for a professional report such as that supporting the decision for the east side. He stated that Mr. Newbert’s response was that the Ministry of Forests should accept the word of the professional engineers that conventional logging was unsuitable in the area.


Mr. Barker acknowledged that he had not made a visit to the site when considering Weyerhaeuser’s application. He said that, in reaching the conclusion that helicopters were not required to access the timber, he had reviewed the FDPs, which did not indicate a need for helicopter logging. He said he knew of the existence of the Coastal Watershed Assessment Plans, but did not review them. Mr. Barker also stated that he discussed the application with Paul Nuttall, Operations Manager with the Ministry of Forests.

Mr. Nuttall, Registered Professional Forester, was responsible for preparing information for the District Manager to assist with his determination of whether or not conventional logging was suitable for the upper west side. Mr. Nuttall stated that he reviewed the 1997 and 1999 FDPs, and found nothing in the plans that said helicopters were to be used to log the upper west side. He acknowledged that the text of the 1999 FDP referred to the geotechnical report dated November 13, 1997, but said that he had not read that report. Mr. Nuttall examined the text of the Silviculture Prescription and concluded that it did not identify any sensitive areas which would require special management. He also reviewed the map attached to the Silviculture Prescription, but he primarily looked at the contours and the shape of the valley.

Mr. Nuttall said that his interpretation of the map contours was that the valley shape was concave in the lower slopes and rose towards steep bluffs. He did not observe any convexity. He concluded that the shape did not pose problems for conventional logging. He said he thought it would have been helpful to see the deflection line data but did not, at that time, see Weyerhaeuser’s drawings. He said he had personal experience in plotting deflection lines but he did not visit the site for that purpose prior to the District Manager’s determination. He didn’t visit the site until April 2001 in preparation for the appeal hearing.

In advising the District Manager, Mr. Nuttall provided information on the FDP and the logging methods proposed in the plan, the Silviculture Prescription, the cutting permit application letters and the reasons that Weyerhaeuser gave for helicopter logging. He agreed that the District Manager had asked what harvest methods had been approved in the FDP. Mr. Nuttall said he advised the District Manager that the FDP specified three logging methods, but made no reference to where each method was to occur. Mr. Nuttall said he also told the District Manager that there was a terrain assessment for the east side, but not for the west side. Mr. Nuttall also testified that he concluded that, as far as both the 1997 and 1999 FDPs were concerned, the Coastal Watershed Assessment Plan did not make any relevant points with respect to helicopter logging.

The District Manager was the person with the authority under section 4.1 of the Coast Appraisal Manual to make the decision on whether or not helicopter logging was the only method suitable for harvesting the upper west side. The District Manager said that, prior to making his decision, he sought the opinions of his staff and reviewed the documents such as the FDP and the Silviculture Prescription. He stated that he questioned his staff as to whether there was a concern for sensitive soil types and sensitive stream sites. He said he was told that the text of the


Silviculture Prescription gave no indication that helicopter logging was necessary. The District Manager also said that concerns expressed in the Silviculture Prescription concerning fisheries and riparian management zones were worded in such a way that he read them as referring to conventional logging. As a result of the information provided he concluded that, without justifiable reasons for helicopter logging, conventional logging was the most appropriate method of harvesting.

Discussion of the District Manager’s determination in light of information available at the time of decision

Based on the information before the District Manager, it is understandable how he reached the decision that he did. In his evidence, the District Manager acknowledged that helicopter logging is generally less intrusive. He also acknowledged that he had approved the Silviculture Prescription with the attached map which indicated helicopter logging, but said that he could also have approved other systems of logging. The District Manager confirmed that he was not given the Coastal Watershed Assessment of Catherine Basin, although he was told that the Silviculture Prescription referred to it, nor was he given a terrain report, the deflection lines, or fish or field reports.

Witnesses for both Weyerhaeuser and the Government said that, normally, their working relationship was a good one. On this occasion, however, it is apparent that Weyerhaeuser was surprised that its assessment of the need for helicopter logging was not unquestioningly accepted. At the same time, the Ministry of Forests was frustrated that Weyerhaeuser was not producing evidence to back up its assertion that helicopter logging was necessary.

The Government argues that there is an obligation on a licensee to put forward complete and comprehensive documentation to the District Manager to support the proposed method of logging before there is a stumpage rate determination. The Commission agrees. Both the License Agreement and the Coast Appraisal Manual require the licensee to submit all relevant information required for adjudication and administration. Further, the licensee has the information. Not only is it incumbent on the licensee to provide supporting information at the time it makes the application for a cutting permit and submits its data appraisal sheets, but a licensee who wishes the benefit of a particular cost estimate should be prepared to provide further information when such is required by the District Manager.

With one exception, documents in the possession of the Ministry of Forests at the time the District Manager made his decision were not clear that Weyerhaeuser intended to use helicopter logging on the upper west side of the cutblock nor that it was appropriate to do so because of site specific conditions. The 1997 FDP did not list aerial as one of the methods of logging which would be used. However, at the time that plan was prepared in 1997, the exact boundaries of the cutblock had not been determined and it was not certain that the area in question would be included. Ms. Higman’s Pre-Layout Terrain Assessment of November 24, 1997 stated her understanding that the east side was to be harvested by helicopter. There is no


such comparable statement regarding the west side, although Ms. Higman testified that she was operating on the assumption that the west side would also be logged by helicopter. This evidence came to light during the hearing: it was part of the new information relevant to the determination of the suitability of conventional logging.

The 1999 FDP did specify that three methods would be used—grapple, helicopter and hoe chuck. However, it did not specify where in the cutblock the methods would be used.

The map attached to the Silviculture Prescription is the only exception. The text of the Silviculture Prescription document does not include the method of harvesting. However, the colour-coded map which Weyerhaeuser attached to it clearly shows that Weyerhaeuser intended to helicopter log both sides of the cutblock. This document was submitted by Weyerhaeuser on April 4, 2000 and approved by the District Manager on April 7, 2000. The same map information was submitted with Weyerhaeuser’s application for Cutting Permit 820.

Information available subsequent to the District Manager’s determination

Following the issuance of the Stumpage Advisory Notice, Weyerhaeuser began to compile information to support heli-logging the upper west side. Weyerhaeuser’s Area Engineer Mr. Harris, Ms. Higman, a hydrology specialist with Weyerhaeuser who is a professional engineer and professional geoscientist, and Ms. Horel, a professional engineer who is expert in terrain stability issues, were all involved in further investigations and analysis of the site.

Mr. Harris went to the site in August 2000 to prepare two options for additional spur roads, including the associated deflection lines for cable yarding from the roads. He stated that the purpose of the reconnaissance was to consider other methods for conventional logging. After Mr. Harris plotted his two options for spur roads on maps of the block, he returned to the site in August, this time accompanied by Ms. Higman. Ms. Higman had been asked to look at the feasibility of harvesting the whole area conventionally. In particular, the purpose of her visit was “to determine if a road could be built on the moderate sloping terrain defining the mid-cutblock elevations such that the entire West Side could potentially be harvested by conventional methods.”

Ms. Higman was the author of the original Pre-Layout Terrain Assessment of the block (then known as cutblock 214) on November 24, 1997. The site visit to assess the feasibility of the proposed roads in 2000 was thus a return visit to the site for Ms. Higman. She observed that both roads would be across slopes of 45-70% steepness, and across numerous streams and seepage areas. She concluded that, in either option, road construction methods would be primarily non-conventional, and each option would require some full bench end-haul. In her opinion, if either road was built conventionally, there would be a high likelihood for fillslope failure. Asked about the likelihood for failure associated with non-conventional construction, Ms Higman told the Panel that her feasibility study was for conventional methods


but that, in general terms, the risk would be reduced from high to low in some areas and high to moderate in others if non-conventional road construction methods were used. Both Mr. Mason and Ms. Higman also emphasized that these roads would have to be deactivated after logging was complete: they would not be of use to any future harvesting and their deactivation would add costs to the operation.

Ms. Higman testified that she estimated that the cost of non-conventional road construction would be 2-3 times higher than conventional. She also stated that, even with using non-conventional construction, there was still a moderate risk of failure in the seepage areas. Further, Ms. Higman said there would be unacceptable levels of ground lead disturbance if conventional cable yarding were used from the proposed roads without some additional measure such as the use of backspar trees, rock bolting or the construction of another spur road in addition to those suggested in the reconnaissance options. In order to avoid this, there were four options—helicopter log, use backspar trees which could be difficult where the trees were not likely deeply rooted, build an additional spur road, or exclude the areas from the harvesting plan. While Ms. Higman concluded that, technically, roads could be built, in terms of forest stewardship and economics, she stated that it was not practical.

The risks associated with building the spur roads were also addressed by Ms. Horel. In addition, she gave evidence on terrain stability concerns associated with conventional logging and the role of helicopter yarding in reducing problems. Ms. Horel had already authored several reports relevant to this block. The first was the Coast Watershed Assessment Plan of Catherine Basin, dated February 23, 1997. The second was the Rainfall Shutdown Guidelines for Landslide Hazards, dated April 25, 2000. In August 2000, she investigated the influence of harvest methods on terrain stability for Block 3775. She prepared a letter on March 7, 2001 with the heading “Re: Influence of harvest method on terrain stability cutblock 3775 (#214) Catherine Creek Basin, Tsitika Watershed”, which was signed with her professional seal. The letter was supplemented on April 8, 2001 by photographs of slides which had occurred elsewhere after logging or road construction.

In her evidence, Ms. Horel said that Block 3775 is in the region that experiences the greatest rainfall and the greatest number of landslides. In the specific area of the block, there is evidence of a number of old slides. Studies have shown that where terrain exhibits natural landslides, that terrain is more likely to experience landslides after harvesting than terrain that does not exhibit natural landslides. Ms. Horel noted that the Coastal Watershed Assessment Plan for Catherine Basin identified terrain stability as the primary management concern for this basin.

Ms. Horel said that there are a number of factors which can contribute to terrain instability. One is storm intensity, in that there is a higher incidence of slope failures when there is 100 mm or more rain in a 24-hour period. Other factors flow from logging, such as loss of root strength due to root decay after trees are removed, or disruption of the surface root mat. The method of logging can disturb the root mat including yarding tracks, backspar trails, surface traffic from machines and drainage from roads.


Ms. Horel said that helicopter logging eliminates the yarding tracks and road drainage which can lead to landslides. She knew of no specialist who would say that helicopter logging is not a preferable method of logging. When conventional logging is used, there will be roads cut into slopes, and that will pose a risk of drainage from the roads. Ms. Horel said there are measures which can be taken to disperse water, such as the use of sub-drains, but drains tend to become plugged.

Ultimately, Weyerhaeuser concluded that the two road building options investigated were not realistic. The roads did not enhance yarding, and special road construction techniques would be needed. Even with special construction techniques there would still be a moderate risk of slope failure, and Weyerhaeuser produced statistics to show that it does not build roads where there is even a moderate hazard risk.

The Ministry of Forests eventually sent three forest officers to the site on April 2, 2001. At that time, the ground was covered with snow. These Forest Service personnel were Glenn Barker, Forest Technologist with 24 years experience in the field, Operations Manager Paul Nuttall, and Scott Cosman, a Geological Engineer who worked as a watershed specialist in the Campbell River office.

The purpose of Mr. Cosman’s visit to the site was similar to that of Ms. Higman; he was to assess the feasibility of constructing additional spur roads. His role was to provide evidence for the Ministry of Forests as an expert in terrain stability. In Mr. Cosman’s view, roads could be built with low risk to access the timber in the cutblock if they were designed to control the factors that could cause failure. He acknowledged that, on his visit to the site, he could not observe the factors that would cause concern because of the snow cover; instead, he based his view on the concerns expressed in Ms. Higman’s report. He said the seepage zones that Ms. Higman identified were potential problems, as were the debris flow deposits on the slope. He said that these could be addressed by following the recommendations made by Ms. Higman. Her recommendations included using rock blankets (also called rock buttresses) which could be used to prop up a slope, full bench end-haul construction and engineered fill. Mr. Cosman also suggested that water control measures, such as armouring inlets and outlets and using French drains, could be utilized.

Initially, Mr. Cosman said that the road could be built conventionally. However, at the hearing it became clear that the methods he was proposing to deal with potential slope failure (rock buttressing, engineered fill and French drains) were, in fact, methods which are not commonly used, particularly on a spur road. He identified places where he had seen such construction techniques, but he conceded that he had never seen such techniques on a spur road. When it was suggested to Mr. Cosman that it would take 40 to 50 days to build the sort of road he was proposing, Mr. Cosman said he was suspicious of that assessment, but acknowledged that he could not make an assessment because he did not know the soil conditions or the thickness of the debris deposits and his estimate “would not reflect reality.”


On the site visit in April 2000, Mr. Nuttall collected deflection line data. He used a clinometer to ascertain slope grades. He found the slopes to be concave to uniform, not convex. Mr. Barker stated that his visit to the site at that time did not alter his view of the shape of the valley. He likewise described the slope shape on the west side as being concave to uniform. He said that he had seen blocks that would be far more difficult to log.

Mr. Nuttall prepared deflection line drawings based on the same map locations for the lines as those originally prepared for Weyerhaeuser. His drawings differed from those produced by Weyerhaeuser because he used two points instead of three, and eight per cent deflection rather than six per cent deflection. He concluded that there would be negligible ground disturbance and not a lot of breakage using conventional cable yarding. His interpretation of the deflection line data was that it supported his original opinion that deflection did not present any difficulty in cable yarding the slope. He believed that there was a good likelihood that the slope could be logged using the existing roads. He testified that his site visit confirmed his view that cable yarding using a tower and larger land sites would be better than grapple yarding. He identified two areas which would be good locations for landings, and also identified some trees that would be suitable for tail holds.

Discussion of the suitability of conventional logging in light of subsequent information

Both parties accept that helicopter logging is a more environmentally friendly method of logging in that it lessens the amount of ground disturbance from logging itself, and it eliminates the necessity of building roads into the particular area where logging is occurring. There is no dispute that the building of roads is one of the more serious causes of slope failure, and even after the road is deactivated, it still could be considered to be non-productive forest land.

The question is not whether helicopter logging would be better for the upper west side of Block 3775. It would be. Pursuant to section 4.1 of the Coast Appraisal Manual, the question is whether the method that would produce the least total operating cost estimate, i.e., conventional logging, is unsuitable for this area. On the whole of the evidence, the Commission is of the view that Weyerhaeuser has demonstrated that conventional logging would be unsuitable for the upper west side of this block. The reasons are as follows.

With respect to terrain stability, the area in which the cutblock is located is one of the highest rainfall areas in Weyerhaeuser’s North Island Timberlands Unit. There is evidence of numerous naturally occurring landslides in the area, and the Commission accepts that this can be an indicia of unstable terrain. Although the various witnesses did not agree on the degree of steepness of the slope on the west side, the Commission accepts that this is a steep slope, particularly in the north end of the slope. It is also a wet slope with approximately 15 streams occurring over it. In one area of the slope, there are five streams occurring within a distance of 120 metres.


The Government proposed two “conventional” methods that it argues could be used instead of heli-logging: spur roads and a modified cable method.

With respect to spur roads, the Commission accepts that roads could be built to log the upper west side of the block. In her report of November 3, 2000, Ms. Higman says, at page 4 under Conclusions and Recommendations:

Road could be constructed to access the timber on the upper slopes on the West Side of Cutblock 3775. Two options were examined. However, with either option, road construction methods would be primarily non-conventional to reduce the potential for fillslope and cutslope failures. If either of the two options were built conventionally, there would be high likelihood for fillslope failure. Such roads would be temporary or short term, and must be deactivated immediately following harvesting. It is my understanding that neither option would be used to develop future wood. Although technically, such a road(s) can be built, in terms of forest stewardship and economics, it does not seem practical to build such a road(s).

The Commission accepts this as an accurate statement of the reality of the situation. Mr. Cosman essentially accepted Ms. Higman’s assessment, although he claimed that there would be low risk if the roads were designed to control the factors that would cause failure. However, as noted above, the methods that would be needed to control the factors are not “conventional.”

With respect to cable yarding, the feasibility of this method using existing roads involved several considerations. Integral to these considerations was interpretation of deflection line data. Deflection lines provided an indication of timber accessibility and of the amount of ground lead and consequent disturbance of the soil. The evidence suggested that cable logging using grapple yarders on the existing road would neither maximize timber recovery nor minimize ground disturbance. Witnesses for the Government suggested that using higher towers would be better. While this suggestion was backed up by one visit to the site, considerably more preparatory work would normally be expected to make such a plan operational. The existence of suitable tailholds at the block boundary and suitable landing areas for towers would have to be verified. In addition, a different set of deflection lines would be required, since yarding would be unlikely to follow the same tracks as plotted for grapple yarding and would likely cross the slope.

To varying degrees, there was conflicting evidence under each heading. In the Commission’s view, the site specific conditions favour Weyerhaeuser’s position. As stated above, the Commission accepts that a road could be built to access the timber on the west side. However, as noted above, the methods that would be needed to control the factors are ones which are not commonly used on spur roads. Overall the Commission prefers the evidence of the Weyerhaeuser witnesses in regard to the likelihood of slope failure from harvesting and/or road construction, and the practicalities of building a road across the west side. The reasons for this finding are as follows.


Ms. Higman visited the site at least twice, and the observations in her reports make it clear that she made a detailed study of the west side. By contrast, the Ministry of Forests’ expert witness made one visit to the site at a time when snow covered the ground. The Commission accepts that the snow covering would prevent him from observing, among other things, the seepage zones which Ms. Higman identified. In addition, Weyerhaeuser’s expert witnesses had considerably more experience and qualifications to make the assessments they did. Both Ms. Higman and Ms. Horel produced reports that had their professional seals on them. Ms. Higman had done 270 terrain assessments in her career; Ms. Horel had done 150-200 terrain assessments, as well as 25-30 Coastal Watershed Assessment Plans. Mr. Cosman had not done any terrain assessments and his background, until 1997, was not in the forest industry.

Further, the Government’s witnesses were not consistent in their reasons for opposing Weyerhaeuser’s position. Mr. Barker believed there was opportunity to build a couple of stump spurs or switchbacks in order to place the yarding system further up the hill. Mr. Nuttall did not believe additional roads were required. He believed the slope could be logged using the existing roads and cable yarding that employed towers. While there was no evidence on the amount of time which Weyerhaeuser spent laying out the disputed portion of the cutblock, the evidence was that Weyerhaeuser normally spends 40 to 60 “man-days” laying out a block. Mr. Harris visited the site several times.

In making a determination pursuant to section 4.1 of the Coast Appraisal Manual as to whether the least cost method is unsuitable, it must be remembered that the test is “unsuitability” not “impossibility.” Whereas it would be possible to use a conventional system of logging to access the timber in question, the Commission finds it would not be appropriate for both environmental and practical reasons. The Commission finds that a conventional system would produce an unacceptable level of ground degradation, and a conventional method of road building would result in an unacceptable likelihood of slope failure. The consequences of slope failure cannot be ignored. While the slope leads into David Creek, a non fish-bearing stream, that creek in turn leads into Catherine Creek, which is fish-bearing. The evidence was undisputed that if there was a failure, the streams on the slope could transport material into the fish-bearing creek. Further, it is simply not appropriate in these circumstances to require a licensee to undertake extraordinary methods of road building to avoid the likelihood of slope failure when the same benefit could be achieved by using helicopter logging. Those unconventional methods may be suitable on a permanent main line road, but here Weyerhaeuser was dealing with a short spur road to access a relatively small amount of timber.

For the reasons set out above, the Commission has determined that conventional logging is unsuitable on the upper west side of Block 3775 under section 4.1 of the Coast Appraisal Manual. Accordingly, the stumpage determination contained in the Stumpage Advisory Notice should incorporate the appropriate cost estimates for helicopter logging this area, which will likely result in a lower stumpage payable by Weyerhaeuser since there is no dispute that helicopter logging is much more costly than conventional logging.


3. Whether helicopter logging of the upper west side of Block 3775 is a legally binding requirement both for operational purposes and for stumpage determination purposes.

In its submissions to the Commission, Weyerhaeuser asks the Commission to go further than making a determination that the Stumpage Advisory Notice is wrong. It argues that the Silviculture Prescription and the Cutting Permit require helicopter logging and, therefore, it would be illegal to log the upper west side by conventional methods. It says, further, that the Ministry of Forests errs when it fails to take into account the harvesting methods set out in these documents when making its stumpage determination.

Weyerhaeuser submits that this issue has been dealt with in prior cases, including Canadian Forest Products Ltd. v. British Columbia (Ministry of Forests) (1998), 55 B.C.L.R. (3d) 221 (B.C.C.A.) (hereinafter Canfor)and Weyerhaeuser Company Limited v. The Province of British Columbia (Ministry of Forests), (Forest Appeal Board, Appeal No. 99-FAB-01, May 23, 2000) (unreported), but that the Ministry of Forests keeps trying to revisit the issue. In the Canfor decision, the B.C. Court of Appeal said that the cutting authority cannot be divorced from the legislation, the regulation and the plans.

In light of the Commission’s decision under issue 2, it is unnecessary to address this issue. Further, the Commission notes that the cases cited by Weyerhaeuser dealt with a differently worded Coast Appraisal Manual. When those decisions were issued, section 4.1 of the Coast Appraisal Manual required a determination as to whether methods of harvesting or transportation were “possible under the cutting authority.” Now section 4.1 requires the determination to be made based on of the least cost method unless such method is one that the District Manager states is “unsuitable.”

However, the Commission is concerned that the comments made in previous jurisprudence regarding the relationship between stumpage appraisals, the legislation and the planning documents have not resulted in any apparent attempt to harmonize the procedures and requirements.

The case now before the Commission indicates that the Ministry’s appraisal procedures are still not taking into account the legislation and operating plans in the possession of the Ministry. Stephen Edwards, Appraisal Coordinator in the Vancouver Regional head office, testified that the calculations to determine the stumpage are done in accordance with the Coast Appraisal Manual. Mr. Edwards agreed that section 4.1 of the Coast Appraisal Manual requires the Appraisal Coordinator to consider only the cutting authority (which in this case is the Cutting Permit), but he said that, in fact, he only looks at the Coast Appraisal Data Sheet submitted and does not look at the cutting permit. He agreed he would not be aware if the yarding method set out in the data sheet was inconsistent with the Code or the Forest Act. He further stated that the Appraisal Coordinator must rely on the District Manager’s decision concerning suitability of the harvesting method for the cutting authority, as approved in the Coast Appraisal Data Sheet.


The Commission recommends that the Ministry of Forests harmonize the procedures and requirements for stumpage appraisals with the legislation and the planning documents.

DECISION

Section 149(2) of the Forest Act provides that the Commission may confirm, vary or rescind the determination, order or decision, or refer the matter back to the person who made the initial determination, order or decision with or without directions.

The Commission has determined that conventional logging is unsuitable, and therefore, the Least Cost Appraisal made under section 4.1 of the Coast Appraisal Manual is not appropriate in this circumstance.

The Commission rescinds the Review Panel decision of November 2, 2000 and remits the matter back to the Regional Appraisal Coordinator to redetermine the appropriate stumpage rates for Cutting Permit 820 on the basis of helicopter logging as the harvesting method for the upper west side of Block 3775.

The appeal is allowed.

Lorraine Shore, Panel Chair Forest Appeals Commission

Jeanette Leitch, Member Forest Appeals Commission

Geza Toth, Member Forest Appeals Commission

March 21, 2002

Documents

Fourth Floor 747 Fort Street Forest Appeals Telephone ... · TFL 39 includes the Tsitika watershed. Weyerhaeuser described the area as having the highest environmental profile in