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 risk."
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 circumstances.
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 application.
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 Magazine
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