I just noticed an Order in Council was passed effective May 30, 2007, that makes significant changes to a licensee’s legislative obligation to establish a free-growing stand. OIC 338 creates B.C. Reg. 152/2007 under the authority of the Forest and Range Practices Act (“FRPA”), and amends the Forest Planning and Practices Regulation (the “Regulation”).
This OIC appears to legislatively overturn the decision of the Forest Appeals Commission in Weyerhaeuser v. British Columbia (Ministry of Forests), Appeal Nos.2004-FOR-020(a) & 025(a) (“Weyerhaeuser”). In Weyerhaeuser, the Commission held that the phrase “per hectare” in the context of determining whether an operational unit was free to grow meant the average number stems per hectare calculated over the entire unit, and did not imply a standard applicable to each and every hectare within the unit as the government had argued. OIC 338 has now added a new subsection 46.11(1) to the Regulation, and it expressly states that a person who is obliged to establish a free growing stand “must ensure that the obligation is fulfilled on each hectare within the net area to be forested”.
OIC 338 also attempts to carve out a couple of exceptions to this rule with a new subsection 46.11 (2) though, unfortunately, the tortured language used in this provision makes the applicability of these exceptions something akin to reading tea leaves. If “the stocking within a standards unit conforms to the applicable stocking standards” then “an area” within “the standards unit” is not required to meet the stockings standards in two circumstances. To me, that’s sort of like a traffic law that says those who are not speeding are allowed to speed in two circumstances.
Anyway, the two circumstances are (A) where “the area” is less then a hectare, or (B) when the free growing stand is established: (i) “the area” is at least 1 hectare but less then two and (ii) the portion of the standards unit occupied by these areas does not exceed 5% of the standards unit. Perhaps there’s some industry standard that existed prior to Weyerhaeuser that this is an attempt to reflect (if anyone knows as such, please drop me an email). But it just doesn’t seem to hang together. I spoke with my former reporting partner at Davis & Co, Garry Mancell, RPF, about the matter, and we ended up at the conclusion that it only works if the reference to "the stocking within a standards unit" in the introductory language of subsection (2) means the stocking within the standards unit on average. In other words, it's as if we are supposed the read the word "average" in between the word "the" and the word "stocking". If so, the exceptions to the rule in subsection (1) only apply when, on average, the stocking standards are still met in the standards unit, and either the area at issue is less then a hectare, or the areas are not less than one hectare but not more than two and, on aggregate, do not exceed 5% of the standards unit.
Read this way, subsection 46.11(2) even makes sense. However, this interpretation relies upon a pretty big leap of faith: it requires one to read language into the statute that is simply not there and that is, even worse, seemingly contrary to the goal of subsection 46.11(1) (under subsection (1), the idea is that conformity with stocking standards for free to grow purposes now means conformity in every hectare--not on average). All I know is that I would not want my case before the Forest Appeals Commission to rest on the interpretation of subsection 46.11(2).
Fortunately, OIC 338 also added a new section 97.1 to the Regulation to provide for some potential relief from the requirements of section 46.11, and it is much easier to understand. Section 97.1 is structured similarly to section 107 of FRPA regarding compliance declarations. It allows a licensee who has met a free growing obligation “to the extent that is practicable” to give the district manager a declaration to this effect. The declaration is also required to describe how much of the obligation was not met and why. Upon submission, the licensee is deemed to have fulfilled the obligation unless Minister orders otherwise within 15 months after the licensee submitted its declaration. Presumably, a licensee would still apply for free growing declarations under s.107 of FRPA where it has fully satisfied the obligation.
The commentary in this blog is general in nature and does not constitute legal advice. Persons requiring further information or advice should contact Jeff Waatainen at 250.758.9485 or jeff@bcforestrylaw.com
