A recent decision of the British Columbia Supreme Court has
given an unexpected boost to the status of BC's Forest
Practices Board (Board). In Western Canada Wilderness Committee
v. British Columbia, two environmental advocacy groups
(referred to as WC2), challenged the Minister of Environment's
decision not to issue 'Section 7 Notices' under the
Forest Planning and Practices Regulation (Regulation) in
relation to Coastal Douglas Fir (CDF).
Among other things, section 5(1) of the Forest and Range
Practices Act (FRPA) requires that before the Ministry of
Forest, Lands and Natural Resource Operations (FLNRO) may approve a
forest stewardship plan (FSP) to authorize timber harvesting
activities, the FSP must specify intended results and strategies in
relation to "objectives set by government." In turn,
various objectives set by government are specified in the
Regulation. The government's objective for wildlife under
section 7(1) of the Regulation is "to conserve sufficient
wildlife habitat ... for ... the survival of species at
Since FRPA requires an FSP to include intended results and
strategies to conserve sufficient wildlife habitat for the survival
of a species at risk, and since there was no dispute that CDF was a
species at risk, WC2 was presumably of the view that any FSP with
areas of CDF must preserve that CDF. However, government hedged its
bet with respect to wildlife habitat protection: section 7(2) of
the Regulation provided that before the objective specified in
section 7(1) applied to a FSP, the Minister first had to give a
so-called 'Section 7 Notice' to the person required to
prepare the FSP. The Minister had not issued any Section 7 Notices
with respect to CDF, so the substantive issue in this case was
whether the Minister was required to do so under the
All statutory discretion, such as that at issue in this case, is
subject to review by the courts one way or another. If, as in this
case, there is no statutory right of review or appeal that is
specific to the exercise of discretion at issue, then a procedure
called 'judicial review' is potentially available.
Essentially, if a party has a sufficient legal interest in the
exercise of a statutory discretion, and no specific right of review
or appeal is otherwise available, then that party may apply under
the Judicial Review Procedure Act to have a court review
the exercise of discretion for legal validity.
Importantly, here can be no "adequate alternative
remedy" (that is, some other way to challenge the decision at
issue). Traditionally, an 'adequate' alternative remedy has
meant an 'equally effective' alternative remedy, and if an
applicant for judicial review failed to pursue any available
adequate alternative remedy, the court would decline its
Getting back to the Board, FRPA contemplates that the Board will
(among other things) investigate public complaints and make
recommendations to government based upon its investigations. The
Board cannot bind the government to the Board's
recommendations, or otherwise lawfully compel the government to
take any particular action. It can only recommend.
On the other hand, a court may make orders in a judicial review
proceeding that does compel government to act in a particular way.
While courts will rarely order government to take any particular
positive action, courts will often strike down the government's
exercise of a statutory discretion, or make formal declarations as
to the legality of the government's conduct, and government is
compelled adhere to these decisions.
Since government often does listen to recommendations of the
Board, the court nevertheless held in this case that a complaint to
the Board was an adequate alternative remedy to judicial review,
and that WC2 was required to pursue a complaint to the Board before
it was entitled to seek judicial review (ultimately, in the name of
judicial efficiency, the court went on to determine the substantive
issue against WC2 in any event). The court's conclusion that
the Board's public complaint process is an adequate alternative
remedy to judicial review would seem to suddenly make the Board
into a much bigger watchdog.
Previously published in the BC Forest Professional
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