The Red Mountain Residents v. Property Owners Association, 2003 BCCA 195

Court of Appeal for British Columbia Citation: Red Mountain Residents v. Simpson, Dist. Mgr., Arrow Forest Dist., Min. of Forests, et al., 2003 BCCA 195 Date: 20030326 Docket: CA028989 Between: The Red Mountain Residents and Property Owners Association Petitioner ( Appellant ) And Brian Simpson, District Manager of the Arrow Forest District of British Columbia Forest Service of the Ministry of Forests, and the Regional Director, Ministry of Environment, Lands and Parks, Kootenay Region and Slocan Forest Products Ltd. Respondents ( Respondents ) Before: The Honourable Mr.

Justice Donald The Honourable Madam Justice Saunders The Honourable Mr. Justice Thackray K. McGee Counsel for the Appellant J.J.L. Hunter, Q.C. and S.P. Pike Counsel for the Respondent, District Manager Ministry of Forests and Regional Director Ministry of Environment G.C. Weatherill and K.C. Bourchier Counsel for the Respondent, Slocan Forest Products Ltd. Place and Date of Hearing: Vancouver, British Columbia 17 February 2003 Place and Date of Judgment: Vancouver, British Columbia 26 March 2003 Written Reasons by: The Honourable Mr.

Justice Donald Concurred in by: The Honourable Madam Justice Saunders The Honourable Mr. Justice Thackray Reasons for Judgment of the Honourable Mr. Justice Donald:

[ 1 ] This appeal is taken from a decision by Mr. Justice McEwan dismissing the appellant’s judicial review petition: 2001 BCSC 1142 . [ 2 ] The appellant’s members hold water licences, and Slocan Forest Products Ltd. (Slocan) holds a forest tenure for the same watershed in the Slocan Valley. The appeal addresses two issues: (

a) the cancellation, without consultation, of the Hasty/Aylwin Creeks Integrated Watershed Management Plan (the Plan), a plan arising from the Ministry of Forests’ and Ministry of Environment’s Integrated Water Management Planning Process (the Protocol); and (

b) a decision of the District Manager of the Arrow Forest District, Brian Simpson, to permit the building of a logging road in a watershed that supplies domestic water to the appellant’s members. [ 3 ] The appellant submits that it has a right, flowing from the doctrine of legitimate expectations, to be consulted about the cancellation of the Plan. On this basis it asserts that because it was not consulted, the cancellation of the Plan is invalid.

It further submits that the road permit should not have been issued without consultation, as required by the Plan. [ 4 ] For reasons that follow, I have concluded that the appellant cannot rely on the doctrine of legitimate expectations to resurrect the Plan cancelled by the government agencies which created it. Moreover, I have concluded that the issues surrounding the road permit are moot. [ 5 ] Mr. Justice McEwan’s reasons for judgment fully and fairly set out the circumstances and it is therefore unnecessary for me to describe them in full detail.

Background [ 6 ] The facts related to the legitimate expectations issue can be briefly summarized. In 1987 the Ministry of Forests and the Ministry of Environment developed the Integrated Watershed Management Planning Process (the Protocol), a protocol for integrated resource management with a view to establishing specific plans for watersheds.

For a while, the appellant participated in planning for the Hasty/Aylwin watershed pursuant to the Protocol, but eventually withdrew because it felt the process could not produce a plan that would adequately protect its members' interests. [ 7 ] In 1990, the Protocol gave rise to the Hasty/Aylwin Creek Integrated Watershed Management Plan. It was given a term to expire in 2010 subject to cancellation after consultation as follows: 3.

The HASTY/AYLWIN CREEKS IWMP will expire on June 30, 2010 or may be terminated or extended by mutual consent of the approving agencies in consultation with licensed resource users, the Hasty/Aylwin Creeks Technical Committee and/or other affected parties. [Emphasis added] [ 8 ] In 1991 the District Manager for the Arrow Forest District sent a copy of the Plan to the appellant with a letter saying that the road permit process giving access to Slocan for cutting purposes would be subject to the Plan. [ 9 ] This dispute arose in November 1997 when the District Manager granted Slocan a cutting permit for the watershed, and road access became a live issue.

By that time, the two Ministries had cancelled the Protocol which produced the Plan. I refer to the reviewing judge’s reasons: [17] On May 8, 1997 local representatives of the Ministries of Forests and Environment signed a memorandum, the text of which was as follows: Re: The 1987 Integrated Watershed Management Planning Process (IWMP) Agreement This memorandum cancels the 1987 agreement between the Ministry of Forests and the Ministry of Environment, Lands and Parks titled " Integrated Watershed Management Planning Process ".

This process will no longer be used to initiate "integrated resource planning in the community watersheds within the Slocan Valley". The agreement has been replaced by the process outlined in the FPC [Forest Practices Code] and the emerging KBLUP [Kootenay Boundary Land Use Plan]. Plans approved under the IWMP agreement will be respected, and if appropriate, should only be revised with due process. [18] In 1995 the Forest Practices Code had come into effect.

The Ministries of Forests, and of Environment, Lands and Parks have taken the position in this proceeding that the Forest Practices Code Act created a new forest management regime, including a revised scheme for water protection. The Water Act was amended to exclude the requirement that the Ministry of Environment approve stream crossings

at road construction sites because new standards had been included in the Forest Practices Code . The reason the 1987 Agreement was abandoned in 1997, according to the two Ministries, is that they took the view that it had been superseded by the Forest Practices Code . [ 10 ] On 8 October 1999 the District Manager granted the road permit to Slocan. In the Supreme Court, the appellant alleged that the permit was invalid because it was not issued in accordance with the Plan.

The road has now been built and so the appellant seeks only a declaration that the Plan is still in force because it has not been cancelled in the manner provided, that is, after consultation with licensed resource users which include the appellant’s members. The declaration would, it is argued, serve the purpose of guiding the resolution of further disputes over road building in the watershed. [ 11 ] The second part of the appeal concerns the District Manager’s decision authorizing Slocan to build the road through a wetland area. Wetlands are protected as Riparian Management Areas in the statutory scheme.

Forest Road Regulation s. 4(2) read at the material time as follows: A road must be located outside a riparian management area, except for crossings, unless in the opinion of the district manager, (

a) no other practicable option exists, or (

b) locating the road outside the riparian management area will create a higher risk of sediment delivery. [ 12 ] The District Manager had to decide whether to locate the road about 100 metres above the original route, as recommended by the appellant’s experts, or to allow the road to go through the wetlands, as recommended by Slocan’s expert on the basis that the upper route posed a greater hazard to water quality and flows. He concluded on the basis of the information before him, including data collected by his own staff, that the road should proceed as originally proposed. [ 13 ] The appellant alleges that the District Manager erred in law in the

interpretation and application of Regulation 4(2) in that he acted on a risk rather than a certainty in authorizing a road through a riparian management area. The appellant further alleged that the District Manager erred in jurisdiction by effectively delegating his decision to Slocan’s expert and by refusing to reconsider his decision on fresh evidence submitted by the appellant said to refute the basis of that decision. [ 14 ] The appellant moved for an interlocutory injunction pending the hearing of the petition. It was refused.

The road is now in place and the appellant does not now seek an order that the road be altered in any way. In answer to the objection that this aspect of the appeal is moot, the appellant says that the proper construction of the regulation will assist in the resolution of future disputes over road-building in the watershed. Legitimate Expectations [ 15 ] The appellant argues that the doctrine of legitimate expectations affords it: (

a) the right to retention of the Plan as the operative scheme for consultation generally, and (

b) the right to be consulted in relation to the specific problem of the contested road permit. [ 16 ] The doctrine was defined by the Supreme Court of Canada in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City) , 1990 CanLII 31 (SCC) , [1990] 3 S.C.R. 1170 at 1204: [the doctrine of legitimate expectations] is simply an extension of the rules of natural justice and procedural fairness. It affords a party affected by the decision of the public official an opportunity to make representations in circumstances in which there otherwise would be no such opportunity.

The court supplies the omission where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation. [ 17 ] The appellant cites no authority for the proposition that the doctrine gives rise to a substantive entitlement to a particular mechanism for consultation. The law intervenes only to supply a procedural remedy.

In the present matter, those government agencies that created the Plan saw no need to continue it as other planning processes, particularly the Forest Practices Code and the Kootenay Boundary Land Use Plan , evolved and covered the same ground. [ 18 ] The appellant complains that the Plan provided better avenues for consultation than the processes which replaced it.

However, even assuming that to be true, the appellant failed to persuade me that it has lost the opportunity to be consulted and have its voice heard on matters which affect its interests in the watershed. [ 19 ] The appellant claims that it was unaware that the Ministries had terminated the Plan until shortly before the petition was heard. I cannot accept this assertion.

On 19 September 1997 the Regional Water Manager of the Ministry of Environment wrote to the appellant and said: The IWMP process was developed and utilized for data acquisition and planning needs prior to the adoption of the Forest Practices Code (FPC) and associated guidelines. As such the IWMP has in essence been supplanted by the FPC.

[ 20 ] This, in my view, removes any reasonable basis for an expectation that the Plan would provide a consultative framework for this controversy. [ 21 ] The doctrine of legitimate expectations requires an expectation and no other opportunity to make representations. The record in this case is full of letters, reports, submissions and the like from the appellant to the government agencies concerning Slocan’s road access to the watershed. In his written decisions the District Manager recites the representations from the appellant and says that he took them into account.

I conclude that the appellant failed to establish the constituent elements of the doctrine both in relation to the Plan and the road permit. The Wetlands Issue [ 22 ] Turning to the District Manager’s decision on the route through the wetlands, I think that the objection that the issues are moot is unanswerable. The road is in place and the appellant does not want it changed on the reasoning that more road building may further endanger water quality.

The question whether the District Manager misconstrued s. 4(2) of the Road Regulations has been rendered academic by a subsequent amendment to the Operational Planning Regulations [am. B.C. Reg. 201/2002, Sch. B, s. 16(

a) and (b)] by adding under the heading “Riparian Classes of Wetlands” sub-s.(3) and (4) of s. 62:

(3) Despite subsection (1), for any wetland or portion of a wetland, the district manager may vary the widths referred to in that subsection.

(4) Despite subsection (2), for a wetland referred to in that subsection or a portion of that wetland, the district manager may (

a) require a riparian reserve zone or a riparian management zone, and (

b) specify the widths of those zones. [ 23 ] Even if the District Manager erred in his

interpretation of the strict language of s. 4(2), a determination by this court to that effect would serve no practical purpose for future reference because the District Manager now has a much wider discretion in resolving disputes over roads through wetlands. I conclude that the appellant cannot fit this aspect of the appeal within any of the exceptions to the rule against entertaining academic questions: Borowski v.

Canada , [1989] 1 S.C.R. 343 . [ 24 ] The allegations that the District Manager delegated his power of decision to Slocan’s expert and that he wrongly refused to give effect to relevant new evidence on reconsideration are rendered moot by the completion of the road. No practical purpose would be served by making a determination with respect to these points of argument. [ 25 ] For the above reasons and for the reasons of the reviewing judge with which I am in substantial agreement, I would dismiss the appeal. _________________________________ The Honourable Mr.

Justice Donald I AGREE : _____________________________________ The Honourable Madam Justice Saunders I AGREE :

_____________________________________ The Honourable Mr. Justice Thackray