Westhaven Forestry Law Articles and Columns
Periodically, Jeff writes articles on legal matters of interest to the forest industry, and publishes them on this website. To view Jeff's articles, please click here.
Jeff also authors a column entitled "The Legal Perspective" for BC Forest Professional (BCFP), a publication of the Association of BC Forest Professionals. Jeff's columns are now reproduced on this site, and are directed more towards legal issues of interest to forestry professionals in BC. Jeff's BCFP columns are listed below:
"The Legal Perspective" from BC Forest Professional
Please click on the title of an article to review it:
September/October 2010 – Survival of the Average Efficient Operator and Licensee Neutrality
July/August 2010 – Requests for Proposals: Know What You’re Getting Into
March/April 2010 – Allegations of Professional Misconduct: What is Sufficient?
January/February 2010 – A Legal Triangle: Nooksack Dace, Species at Risk Act and Obiter Dictum
July/August, 2009 – The Roundtable Recommendations: An Approach Towards Public Policy
May/June, 2009 – Exercising Discretion in Troubled Times
January/February 2009 – Rate Arbitrations under Bill 13-Distinction Without a Difference
November/December 2008 – Third Party Enforcement of Professional Ethics
September/October, 2008 – Forestry Legislation and Greenhouse Gas
July/August, 2008 – The Futility of Fairness: Forestry Revitalization Proposals
May/June, 2008 – Introducing Bill 30: The Resource Road Act
January/February, 2008 - Managing Expectations: The Coastal Forest Action Plan.
November/December, 2007 – Reconciliation of Aboriginal Rights with Crown Sovereignty.
September/October, 2007 – Responsibility for Occupational Health and Safety: The Case of the Prime Contractor.
July/August, 2007 – Ignorance of the Law Is No Excuse, Part 2 (... But What About an Officially Induced Error?)
May/June, 2007 – Ignorance of the Law Is No Excuse (... But What About Ignorance of the Facts?)
March/April, 2007 - Professional Reliance and the Enforcement of Forest Practices.
January/February, 2007 - Due Diligence Under FRPA: Keeping it Real.
Articles
“The Forest and Range Statutes Amendment Act, 2007 (“Bill 18”) – Further Advances in Regulatory Discretion.”
Executive Summary: In May 2007 the provincial government of BC enacted the Forest and Range Statutes Amendment Act, 2007 (“Bill 18”). Among other things, this article examines how Bill 18 redefines “forest practice” under FRPA, changes the Minister’s authority to issue non-replaceable forest licenses, creates new requirements for management plan approvals under TFLs, provides for the postponement of cutting permit terms, and provides the government with more discretion not to issue road permits and cutting permits. The article also looks at new rules enacted in Bill 18 with respect to the delegation and sub-delegation of statutory powers and duties under the Forest Act and FRPA, and new timing requirements for various procedures under the Forest Act. The article focuses on how Bill 18 continues a trend in the Province of delegating legislative discretion over forest management on Crown lands from the Legislature to Cabinet.
To review or print the entire article, please click here.
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“Director and Officer liability under the Forest and Range Practices Act – the Case of Smurthwaite v. Government of British Columbia et al.”
Executive Summary: In Smurthwaite v. Government of British Columbia, the Forest Appeals Commission recently considered the personal liability of corporate directors and officers under the Forest and Range Practices Act. At issue in this case was the question of whether subsection 71(4) of FRPA would apply to attach personal liability to the sole director and officer of a corporate licensee for the noncompliance of that licensee. After it reviews an interesting factual background, the article looks at the Commission’s comments on the statutory prerequisites for imposing personal liability against corporate directors and officers, as well as the substantive nature of that liability. The liability of a director or officer is substantively different then that of a licensee for the acts of its contractors. Proof of a contravention on the part of a corporate licensee is not, in itself, proof of liability on the part of a director or officer of that licensee. However, the Commission appears to take the position that personal liability of corporate directors and officers under FRPA may arise on the basis of objective knowledge as well as on the basis of subjective knowledge: in other words, what a director or officer “should” or “ought” to have known about a contravention, as opposed to what he or she actually did know. Consequently, directors and officers may need to establish due diligence to avoid personal liability for the contraventions of corporate licensees.
To review or print the entire article, please click here.
“Hand-Written Changes to Simple Contracts – the Case of Cariboo-Chilcotin Helicopters Ltd. v. Ashlaur Trading Inc.”
Executive Summary: This article uses our Court of Appeal’s recent decision in Cariboo-Chilcotin Helicopters Ltd. v. Ashlaur Trading as a case study of certain aspects of contract law that are of particular importance to those in the forest industry who conduct business through the exchange of short form contracts. In particular, the article looks at the legal significance of hand written changes to a proposed form of contract, and how these changes can become binding (whether one of the parties appreciates it or not). The objective nature of contract formation is the focus of the article, though it also highlights how the law will treat contractual terminology that is specialized within a particular industry, but that may appear ambiguous to those outside of that industry.
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“Appeals to the Forest Appeals Commission On the Basis of Written Submissions—Advantages and Pitfalls”
Executive Summary: As the title suggests, this article examines the potential benefits and disadvantages associated with an appeal to the Forest Appeals Commission on the basis of written materials only. The article first reviews the procedure itself, and the factors the Commission may consider before it agrees to allow an appeal to proceed on the basis of written materials only. The benefits of the written appeal procedure are then considered in comparison to the oral hearing procedure. These include, most significantly, the potential cost savings, as well as the ability to better control the evidence that goes before the Commission, and reduced levels of stress for the parties. These benefits are then compared to the potential difficulties of the written procedure. In particular, the article looks at how conflicts of evidence could lead the Commission to order an oral hearing anyway, and how technical difficulties getting evidence before the Commission could, again, lead to an oral hearing or, worse, an unfavourable decision due to an lack of evidence. Then article concludes with a discussion of the circumstances that are appropriate for the written appeal procedure, and those that are not.
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“The Kalesnikoff Lumber Co. Ltd. Decision of the Forests Appeals Commission – Environmental Damage After the Plan is Approved”
Executive Summary: This article reviews the recent release of the long-awaited decision of the Forests Appeal Commission with respect to Kalesnikoff Lumber Co. Ltd.’s appeal of various contravention determinations that the Ministry of Forests and Range made against Kalesnikoff under s-s.45(3) of the Forest Practices Code of British Columbia Act with respect to its construction of a mainline forestry road. The article reviews the background of the contravention determinations, and the Commission’s decision to rescind all findings of contravention made against Kalesnikoff. The article then focuses on the Commission’s treatment of the “damage to the environment” provisions in subsection 45(3) of the Code, and the applicability of that commentary to the interpretation and application of similar provisions under subsection 46(1) of the new Forest and Range Practices Act. The article goes on to consider further implications of the Commission’s decision to the enforcement of forest practices requirements on Crown lands in British Columbia.
To review or print the entire article, please click here.
Note: To view or print the articles, you need the free Adobe Acrobat Reader, which can be downloaded here.
