British Columbia Gazette Part II — B.C. Reg. 524/2004
B.C. Reg. 524/2004
British Columbia — Gazette
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Victoria, British Columbia, Canada
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Volume 47, No. 25
B.C. Reg. 524/2004
The British Columbia Gazette,
Part II
December 14, 2004
B.C. Reg. 524/2004, deposited December 3, 2004, pursuant
to the FOREST ACT [Sections 151 to 160]. Order in Council
1180/2004, approved and ordered December 2, 2004.
On the recommendation of the undersigned, the Lieutenant Governor,
by and with the advice and consent of the Executive Council, orders that the
Timber Harvesting Contract and Subcontract Regulation, B.C. Reg. 22/96
is amended as set out in the attached Schedule.
— M. de JONG,
Minister of Forests; S. BOND, Presiding Member of the Executive
Council.
Schedule
Section 1 of the Timber Harvesting Contract and Subcontract Regulation, B.C. Reg. 22/96,
is amended
(
a) by repealing the definition of "forestry revitalization
proposal" and substituting the following:
"forestry revitalization proposal" means a proposal
made under
Part 5, Division 5.1 that
(
a) changes the licence to which a replaceable contract
pertains,
(
b) varies the amount of work specified in a replaceable
contract pertaining to a licence held by the licence holder making the proposal, or
(
c) terminates a replaceable contract pertaining to a
licence held by the licence holder making the proposal
and includes any amended proposal made under sections
33.43 (1), 33.5 (5) or 33.51 (4); , and
(
b) by adding the following definition
"phase contribution amount" means the amount of
work to be performed annually under a timber harvesting contract expressed in
cubic metres per year, having regard to the tables in paragraphs (
a) and (
b) and determined in accordance with paragraph (c), (d), (e), (
f) or (g):
(
a) for the coastal area, the relative portion of a timber
harvesting operation attributed to each phase of the operation, is as set forth
in the following table:
Falling and Bucking
13%
Yarding, Skidding or Forwarding
32%
Loading
Hauling
15%
Dumping, Sorting and Booming
10%
Road Construction
20%
Road Maintenance
Total All Phases
100%
(
b) for the interior area, the relative portion of a
timber harvesting operation attributable to each phase of the operation, is
as set forth in the following table:
Bunching
20%
Processing
25%
Yarding or Skidding
13%
Loading
Hauling
19%
Miscellaneous (sorting, brush piling and others)
Road Construction
Total All Phases
100%
(
c) if the contract expresses the amount of work as a
percentage of the total amount of that type of work to be performed in a year,
the phase contribution amount is
A x B x C
where
is the percentage of work expressed in the contract reduced to a fraction,
is the aggregate of the percentages shown in the table in paragraph (
a) or
paragraph (
b) for the phases to be performed under the contract, reduced to a
fraction, and
is the allowable annual cut of the licence, or licences in a fibre basket
agreement,
to which the contract pertains;
(
d) if the contract expresses the amount of work as a
fixed volume of timber to be handled in a year, the phase contribution amount is
D x E
where
is the aggregate of the percentages shown in
the table in paragraph (
a) or paragraph (
b) for the phases to be performed under the contract, reduced to a fraction,
and
is the fixed volume, expressed in the contract in cubic meters of
timber;
(
e) if the contract expresses amount of work as a percentage
of work to be provided using a specified harvesting system, the phase contribution
amount is
F x G/H x I
where
is the percentage of work expressed in the contract, reduced to a fraction,
is the actual volume of timber harvested by the contractor in the calendar
years 2001 through 2003
using that particular harvesting system,
is the total volume of timber harvested under the licence, or licences in a
fibre basket agreement, to which the
contract pertains in the calendar years
2001 through 2003, and
is the allowable annual cut of the licence, or licences in a fibre basket
agreement, to which the contract pertains;
(
f) if the contract is
(
i) for part of a phase,
(ii) for a phase that is not listed in paragraph (
a) or (b),
(iii) a dedicated phase contract, or
(iv) a contract not described in paragraph (c), (
d) or (e),
the phase contribution amount is an amount that reflects
the amount of work to be performed under the contract relative to the total
amount of work to be performed under all phases of timber harvesting operations
under the licence, or the licences in a fibre basket agreement, to which the
contract pertains, determined in a manner consistent with the approach in paragraphs (c),
(
d) and (e);
(
g) if the contract allocates work with reference to a seniority system, the
amount of work attributable to each position in the seniority system is
M/N
where
is the amount of work for all positions in the seniority system determined in
accordance with
paragraphs (c), (d), (
e) or (f), as the case may be, and
is the number of positions in the seniority system;
Section 6 is amended
(
a) in subsection (1) by striking out "section 23, 25,
32 or 33.5" and substituting "section 23, 25, 32, 33.1, 33.43, 33.5 or 33.51", and
(
b) in subsections (2) and (3) by striking out "sections
23, 25, 25.2, 32 and 33.5" and substituting "sections 23, 25, 25.2, 32, 33.1,
33.43, 33.5 and 33.51" .
Section 33.1 is repealed and the following is substituted:
Interpretation and disputes
33.1
(1) In this Division:
"conciliator" means a person appointed as both
mediator and arbitrator under subsection (8);
"fairness objection" means the inclusion in an
objection to a forestry revitalization proposal under
section 33.4 by an
impacted contractor of notice that the contractor believes the requirements
section 33.22 (
h) have not been met in respect of that contractor
and the reasons why the requirements have not been met;
"group of licences" means a group of licences as
defined in
section 1 of the Forestry Revitalization Act except that,
if licences shown for a group of licences in
Schedule 1 to the Act have
been eliminated or have been added to licences shown for another group of licences
in
Schedule 1 to the Act through
(
a) the acquisition of one or more licence holders by another licence holder,
(
b) the amalgamation of two or more licence holders, or
(
c) the transfer of licences,
the group of licences must reflect that elimination or addition;
"impacted contractor" means, in respect of a forestry revitalization proposal, a contractor with a replaceable contract in which the parties have specified the amount of work
(
a) as a percentage of the total amount of that type of work under the licence, or licences in a fibre basket agreement, to which the contract pertains, and the licence holder proposes to reduce that percentage,
(
b) as a fixed amount, and the licence holder proposes
to reduce the fixed amount of work by more than the percentage reduction under
the Forestry Revitalization Act in the allowable annual cut of the licence,
or licences in a fibre basket agreement, to which the contract pertains, or
(
c) in a manner other than as described in paragraph
(
a) or (b), and the licence holder proposes to reduce the amount of work by
more than the percentage reduction under the Forestry Revitalization Act
in the allowable annual cut of the licence, or licences in a fibre basket agreement,
to which the contract pertains;
"licence holder" means all licence holders for a group of licences or an ungrouped licence;
"minimum replaceable contract proportion" means the replaceable contract proportion for
(
a) a group of licences immediately before the order
of the minister under
section 3 (2) of the Forestry Revitalization
Act made in relation to the group of licences, or
(
b) an ungrouped licence on March 31, 2003;
"proportionate reduction" means the apportionment of the effect of
(
a) an order of the minister under
section 3 (2) of the
Forestry Revitalization Act , for a group of licences, and
(
b) that Act, for an ungrouped licence,
such that the amount of work to be performed under each
replaceable contract that pertains to a licence or licences in a fibre basket
agreement, other than a contract that is subject to a seniority system, is reduced
by a percentage equal to
A – B
where
is the allowable annual cut of the licence, or
licences in a fibre basket agreement, that the replaceable contract pertains
immediately before any reduction in allowable annual cut to that licence or
licences under the Forestry Revitalization Act , and
is the allowable annual cut of the licence, or
licences in a fibre basket agreement, that the replaceable contract pertains
immediately following all reductions in allowable annual cut to that licence or
licences under the Forestry Revitalization Act ;
"rejection threshold" , when used in relation
to contractors who have replaceable contracts that pertain to those licences
included by a licence holder in a forestry revitalization proposal, means
objection by either
(
a) more than one third of those contractors, or
(
b) sufficient of those contractors that they have in aggregate greater than one
third of the aggregate amount of work to be performed under all replaceable
contracts that pertain to the licences, in which the amount of work to be
performed under each contract is determined with regard to the phase
contribution amounts for the phases included in that contract;
"replaceable contract proportion" means, at any given time for an ungrouped
licence or a group of licences, the proportion determined by the formula
A/B
where
is the aggregate amount of work, to be performed under all replaceable
contracts pertaining to that ungrouped licence or group
of licences having
regard to the phase contribution amounts for phases under each contract, and
is the allowable annual cut of that ungrouped licence or the aggregate of the
allowable annual cuts of the group of licences;
"ungrouped licence" means an ungrouped licence as defined in
section 1 of the
Forestry Revitalization Act .
(2) For the purposes of determining if a rejection threshold
under
section 33.41 (2) has been achieved, a replaceable contract does not include
a contract for hauling if
(
a) the amount of work is specified in the contract with reference to a
seniority system, or the work available to the contractor is otherwise subject
to a seniority system,
(
b) the seniority system is not changed by a forestry revitalization proposal,
and
(
c) the licence, or licences in a fibre basket agreement, to which the seniority
system pertains must not be affected by a forestry revitalization proposal in a
manner that would reduce the total amount of work available to the group of
contractors in the seniority system any more than would have occurred under
proportionate reduction.
(3) If a contractor who has a replaceable contract with a licence holder
disagrees with the licence holder on the
interpretation or application of any
part of this Division, including
(
a) the definition of "impacted contractor" and whether a contractor is an
impacted contractor,
(
b) the definition of "minimum replaceable contract proportion" and the
determination of that proportion,
(
c) the definition of "replaceable contract proportion" and the determination of
that proportion,
(
d) the definition of "proportionate reduction" and the calculation of
reductions to contracts under a proportionate reduction,
(
e) the definition of "rejection threshold"
and whether a rejection threshold has been properly determined in respect of
a forestry revitalization proposal, or
(
f) section 33.41 and whether a forestry revitalization proposal has been
accepted or rejected,
the contractor may, by written notice to the licence holder, commence a dispute.
(4) If any provision in this Division requires either a licence holder or a
contractor who has a replaceable contract with that licence holder to do
something or not to do something, and the licence holder or contractor
contravenes that requirement,
(
a) any contractor, if the licence holder has contravened the requirement, or
(
b) the licence holder, if a contractor has contravened the requirement,
may, by written notice to the other party, commence a dispute.
(5) If a dispute has been commenced in respect of those matters described in
subsection (3) (
b) or (c), all contractors who have replaceable contracts with
the licence holder are parties to the dispute.
(6) If a dispute has been commenced in respect of a matter described in
subsection (3) (d), all contractors who have replaceable contracts that pertain
to the licence that is subject to proportionate reduction are parties to the
dispute.
(7) If a dispute has been commenced in respect of those matters described in
subsection (3) (
e) or (f), all contractors who have replaceable contracts that
pertain to a licence included in the forestry revitalization proposal are
parties to the dispute.
(8) All disputes under this Division must be resolved
by mediation and arbitration under the system established in Division 2 of
Part
4 subject to sections 33.5 and 33.51 and to the following:
(
a) within 7 days of the commencement of a dispute the licence holder must
notify each contractor that is a party to the dispute as to the person the
licence holder proposes to appoint as a conciliator to resolve the dispute;
(
b) if there is more than one contractor that is a party
to the dispute, the notice under paragraph (
a) must list each contractor;
(
c) within 7 days of receiving a notice under paragraph (a), a contractor may,
by written notice to the licence holder, object to the appointment of the
conciliator proposed by the licence holder;
(
d) if one third or fewer contractors who are parties
to the dispute object under paragraph (
c) to the conciliator proposed by
the licence holder, that person is the conciliator for the dispute;
(
e) if more than one third of the contractors who are
parties to the dispute object under paragraph (
c) to the conciliator proposed
by the licence holder, or if the licence holder fails to give notice under paragraph
(a), any party to the dispute, by written notice to the other parties and to
the Deputy Minister of Forests, may request the deputy minister to appoint a
conciliator;
(
f) within 7 days of receiving a request under paragraph (
e) to appoint a
conciliator, the Deputy Minister of Forests or a person designated by the deputy
minister must appoint a registered mediator or a registered arbitrator to act as
conciliator;
(
g) mediation and arbitration proceedings must be conducted
by the conciliator described in paragraph (
d) or appointed under paragraph (f);
(
h) the person appointed as the conciliator for a dispute deemed to exist with
respect to a particular forestry revitalization proposal must act as conciliator
in respect of all disputes that arise with respect to the ungrouped licence or
group of licences to which the forestry revitalization proposal pertains.
(9) A notice given or delivered under this Division must
be given or delivered in accordance with
section 8 (13) (b).
Section 33.2 is amended
(
a) by repealing subsection (1) and substituting the
following:
(1) Subject to subsection (4), after receipt of an order
from the minister under
section 3 (2) of the Forestry Revitalization
Act for a group of licences, or after June 21, 2004 for an ungrouped
licence, a licence holder may make one or more forestry revitalization proposals
regarding the replaceable contracts pertaining to those licences to
(
a) vary the amount of work specified in, or to terminate,
one or more of those replaceable contracts, or
(
b) change a contract such that it pertains to a different
licence. ,
(
b) in subsection (3) by striking out "for a licence
in a group of licences and after September 1, 2004 for an ungrouped licence",
(
c) in subsection (4) by striking out "A licence holder
must not" and substituting "Subject to subsection (5), a licence holder must
not" , and
(
d) by repealing subsection (5) and substituting the
following:
(5) Despite subsection (4), the licence holder may include
a licence in more than one forestry revitalization proposal if
(
a) the licence was included in an order under
section
3 of the Forestry Revitalization Act and was either included in a forestry
revitalization proposal or was subject to proportionate reduction under
section 33.6, and
(
b) the licence holder receives a subsequent order from
the minister under
section 3 of the Forestry Revitalization Act in respect
of that licence.
(6) A forestry revitalization proposal may include licences
from the coastal area or licences from the interior area, but not both.
Section 33.21 is repealed and the following substituted:
Maximum replaceable contract reduction
33.21
(1) Subject to subsection (2), the total
effect of the reduction in allowable annual cut for an ungrouped licence or
for a group of licences under the Forestry Revitalization Act as
(
a) proposed in all forestry revitalization proposals
made by the licence holder for that ungrouped licence or group of licences and
accepted or deemed to be accepted under this Division, and
(
b) imposed by proportionate reduction under
section 33.6
must not result in the replaceable contract proportion
being less than the minimum replaceable contract proportion.
(2) The minister may by order permit the effect of the reduction in allowable annual cut for an ungrouped licence or a group of licences to be applied in a manner that results in the replaceable contract proportion being less than the minimum replaceable contract proportion.
(3) If, as a result of a proportionate reduction or of one or more forestry revitalization proposals, or both, in respect of an ungrouped licence or a group of licences, the proportion of timber harvesting services to be carried out by contractors under replaceable contracts with the licence holder is less than
(
a) the minimum replaceable contract proportion, or
(
b) some other proportion ordered by the minister under subsection (2),
the amount of work in each replaceable contract that pertains
to the ungrouped licence or group of licences is increased proportionately such
that the replaceable contract proportion equals the minimum replaceable contract
proportion, or some other proportion ordered by the minister under subsection (2).
Section 33.22 is repealed and the following substituted:
Contents and delivery of forestry revitalization proposal by a licence holder
33.22 A licence holder in making a forestry revitalization
proposal must do the following:
(
a) make the proposal in writing;
(
b) specify the licences that are included in the proposal;
(
c) list each contractor with a replaceable contract that pertains to a licence included in the forestry revitalization proposal and show the amount of work specified in each contract;
(
d) specify how the licence holder proposes that the amount of work specified in each replaceable contract will be increased or decreased, if at all, and the proposed date of increase or decrease;
(
e) specify those replaceable contracts that the licence holder proposes to terminate, if any, and the proposed date of termination;
(
f) specify any proposed changes to a replaceable contract to cause it to pertain to a different licence and the proposed date of change;
(
g) describe how the forestry revitalization proposal takes into account the AAC reduction criteria;
(
h) apply the AAC reduction criteria fairly, impartially and without regard to any past disagreements between the parties;
(
i) include enough information to allow a contractor acting reasonably to determine if and how the licence holder is complying with
section 33.21;
(
j) deliver the proposal to each contractor with a replaceable contract that pertains to a licence that is included in the forestry revitalization proposal.
Section 33.4 is amended
(
a) by repealing subsection (1) and (2) and substituting
the following:
(1) If a contractor believes a forestry revitalization
proposal received from a licence holder under
section 33.22 does not comply
with the AAC reduction criteria, the contractor may give written notice of the
objection to the licence holder within 30 days of delivery of the proposal
to that contractor.
(2) A notice under subsection (1) must explain why the
contractor believes the proposal does not comply with the AAC reduction criteria. , and
(
b) by adding the following subsection:
(5) If an impacted contractor who objects to a proposal
under subsection (1) believes the proposal does not meet the requirements of
section 33.22 (
h) in respect of that contractor, that contractor may
include a fairness objection in the notice under subsection (2).
Section 33.42 is repealed and the following substituted:
Fairness objections
33.42
(1) If a forestry revitalization proposal
in respect of the coastal area is not rejected under
section 33.41 (2)
within 30 days after the last day the proposal is delivered to a contractor,
(
a) the forestry revitalization proposal is deemed to
be accepted and each contract entered into by the licence holder in respect
of the licences in the proposal is deemed to be amended or terminated as provided
for in the proposal, and
(
b) if one or more impacted contractors who objected
to the proposal have made a fairness objection under
section 33.4 (5),
a dispute is deemed to exist between the licence holder and each impacted contractor
who objected to the proposal and who made a fairness objection.
(2) For a dispute deemed to exist under subsection (1),
(
a) the sole issue is whether a forestry revitalization
proposal deemed to be accepted meets the requirements of
section 33.22 (
h) with respect to the impacted contractors who have made fairness objections,
(
b) the conciliator may have regard to other forestry
revitalization proposals made by the licence holder, and
(
c) if the conciliator concludes that the requirements
section 33.22 (
h) are not met in respect of one or more of the impacted contractors
who have made fairness objections, the licence holder is liable to those impacted
contractors for damages in an amount determined by the conciliator in accordance
with
section 33.7.
(3) If a forestry revitalization proposal in respect
of the interior area is not rejected under
section 33.41 (2) within
30 days after the last day the proposal was delivered to a contractor, and
(
a) if no impacted contractor who objected to the proposal
has made a fairness objection, the forestry revitalization proposal is deemed
to be accepted and each contract entered into by the licence holder in respect
of the licences in the proposal is deemed to be amended or terminated as provided
for in the proposal, or
(
b) if one or more impacted contractors who objected
to the proposal has made a fairness objection under
section 33.4 (5),
a dispute is deemed to exist between the licence holder and those impacted contractors,
which dispute must be resolved in accordance with
section 33.51 (9)
and (10).
Section 33.43 is repealed and the following substituted:
Rejection of proposal
33.43
(1) If a forestry revitalization proposal
is rejected under
section 33.41 (2) within 30 days after the last day the
proposal was delivered to a contractor, the licence holder may, within 30 days
after receipt of the last notice of objection under
section 33.4, by written
notice to all contractors who received the forestry revitalization proposal,
(
a) elect proportionate reduction,
(
b) make an amended forestry revitalization proposal, or
(
c) commence mediation and arbitration proceedings under
section 8.
(2) The licence holder is deemed to have elected proportionate
reduction if the licence holder, in accordance with subsection (1), does not
(
a) elect proportionate reduction,
(
b) make an amended forestry revitalization proposal, or
(
c) commence mediation and arbitration.
Section 33.5 is repealed and the following substituted:
Dispute resolution proceedings for
a forestry revitalization proposal on the coast
33.5
(1) If a licence holder commences mediation
and arbitration referred to in
section 33.43 (1) (
c) because
a forestry revitalization proposal in respect of licences in the coastal area
was rejected, a single dispute is deemed to exist, as of the date of commencement,
between the licence holder and all impacted contractors who have delivered notices
of objection to the licence holder under
section 33.4 (1).
(2) The following apply to mediation or arbitration commenced
in respect of a dispute deemed to exist under subsection (1):
(
a) a licence holder must deliver a notice of the dispute resolution proceedings to each contractor with a replaceable contract that pertains to a licence included in the forestry revitalization proposal, and to each union whose members may be affected by the disposition of the dispute;
(
b) the following may take
part in the mediation or arbitration as an intervenor to the extent permitted by the conciliator:
(
i) a contractor who is entitled to receive notice under
paragraph (a), and who is not an impacted contractor who delivered a notice
of objection under
section 33.4 (1);
(ii) a union that is entitled to receive notice under paragraph (a);
(
c) the conciliator must determine
(
i) if the forestry revitalization proposal is consistent with the AAC reduction criteria, and
(ii) if the requirements of
section 33.22 (
h) have been
met in respect of a contractor who is a party to the dispute and has made a
fairness objection under
section 33.4 (5),
and in making a determination under subparagraph (
i) or (ii), the conciliator may have regard to other forestry revitalization proposals made by the licence holder.
(3) If the conciliator determines under subsection
(2) that the forestry revitalization proposal is consistent with the AAC reduction
criteria and meets the requirements of
section 33.22 (h), the forestry
revitalization proposal is deemed to be accepted and each contract entered into
by the licence holder in respect of licences in the proposal is deemed to be
amended or terminated as provided for in the proposal.
(4) If the conciliator determines under subsection
(2) that the forestry revitalization proposal is consistent with the AAC reduction
criteria, but that the requirements of
section 33.22 (
h) have not
been met with respect to one or more impacted contractors who made fairness
objections,
(
a) the forestry revitalization proposal is deemed to
be accepted and each contract entered into by the licence holder in respect
of licences in the proposal is deemed to be amended or terminated as provided
for in the proposal, and
(
b) the licence holder is liable to those impacted contractors
for damages in an amount to be determined by the conciliator in accordance with
section 33.7.
(5) If the conciliator determines under subsection
(2) that the forestry revitalization proposal is not consistent with AAC reduction
criteria, the licence holder may, within 30 days of the determination by
the conciliator and by written notice to each contractor with a replaceable
contract that pertains to the forestry revitalization proposal,
(
a) impose the forestry revitalization proposal,
(
b) make an amended forestry revitalization proposal, or
(
c) elect proportionate reduction.
(6) A licence holder is deemed to have elected proportionate reduction if the holder
(
a) has not imposed the forestry revitalization proposal,
(
b) made an amended forestry revitalization proposal, or
(
c) elected proportionate reduction
within 30 days of the determination under subsection (2) that the proposal is not consistent with the AAC reduction criteria.
(7) If a licence holder imposes the forestry revitalization proposal under subsection (5) (a),
(
a) that proposal is deemed to be accepted and each contract
entered into by the licence holder with respect to the licences held by the
licence holder and included in the proposal is deemed to be amended or terminated
on the date provided in the proposal, and
(
b) the licence holder is liable to any impacted contractor
who objected to the proposal for damages in an amount determined by the conciliator
in accordance with
section 33.7.
(8) If a licence holder makes an amended forestry revitalization
proposal, under subsection (5), in respect of licences, and a rejection threshold
of contractors gives the licence holder written notice of objection to the amended
forestry revitalization proposal under
section 33.4,
(
a) despite
section 33.43, that proposal is deemed to
be accepted, and each contract that is entered into by the licence holder with
respect to the licences held by the licence holder and included in the proposal
is deemed to be amended or terminated on the date provided in the proposal, and
(
b) the licence holder is liable to each impacted contractor
who objected to that proposal in an amount determined by the conciliator in
accordance with
section 33.7.
(9) If a licence holder makes an amended forestry revitalization
proposal, under subsection (5), in respect of licences, and a rejection threshold
of contractors does not give the licence holder written notice of objection
to the amended forestry revitalization proposal under
section 33.4
(
a) that proposal is deemed to be accepted and each contract entered into by the licence holder with respect to the licences held by the licence holder and included in the proposal is deemed to be amended or terminated on the date provided in the proposal,
(
b) the conciliator may determine if the amended forestry
revitalization proposal meets the requirements of
section 33.22 (h),
on the application of any impacted contractor who made a fairness objection
in relation to that proposal within 30 days after receipt of the amended forestry
revitalization proposal from the licence holder, and
(
c) if the conciliator makes a determination under paragraph
(
b) that the amended proposal does not meet the requirements of
section 33.22 (
h) in respect of one or more of the impacted contractors who objected, the licence
holder is liable in damages to those contractors in an amount to be determined
by the conciliator in accordance with
section 33.7.
11 The following
section is added:
Dispute resolution proceedings for a forestry revitalization proposal for the interior
33.51
(1) If a licence holder commences mediation
and arbitration referred to in
section 33.43 (1) (
c) because
a forestry revitalization proposal in respect of licences in the interior area
was rejected, a single dispute is deemed to exist, as of the date of commencement,
between the licence holder and all impacted contractors who have delivered notices
of objection to the licence holder under
section 33.4 (1).
(2) The following apply to mediation or arbitration commenced
in respect of a dispute deemed to exist under subsection (1):
(
a) a licence holder must deliver a notice of the dispute resolution proceedings to each contractor with a replaceable contract that pertains to a licence included in the forestry revitalization proposal, and to each union whose members may be affected by the disposition of the dispute;
(
b) the following may take
part in the mediation or arbitration as an intervenor to the extent permitted by the conciliator:
(
i) a contractor who is entitled to receive notice under
paragraph (a), and who is not an impacted contractor who delivered a notice
of objection under
section 33.4 (1);
(ii) a union that is entitled to receive notice under
paragraph (a);
(
c) the conciliator must determine
(
i) if the forestry revitalization proposal is consistent
with the AAC reduction criteria, and
(ii) if the requirements of
section 33.22 (
h) have been
met in respect of a contractor who is a party to the dispute and has made a
fairness objection under
section 33.4 (5),
and in making a determination under subparagraph (
i) or (ii), the conciliator may have regard to other forestry revitalization proposals made by the licence holder.
(3) If the conciliator determines under subsection
(2) that the forestry revitalization proposal is consistent with the AAC reduction
criteria, and
(
a) meets the requirements of
section 33.22 (h), the
forestry revitalization proposal is deemed to be accepted and each contract
entered into by the licence holder in respect of licences in the proposal is
deemed to be amended or terminated as provided for in the proposal, or
(
b) does not meet the requirements of
section 33.22 (h), subsection (10) will apply.
(4) If the conciliator has determined under subsection
(2) that the forestry revitalization proposal is not consistent with AAC reduction
criteria, the licence holder may, within 30 days of the determination by
the conciliator and by written notice to each contractor with a replaceable
contract that pertains to the forestry revitalization proposal,
(
a) make an amended forestry revitalization proposal, or
(
b) elect proportionate reduction.
(5) If a licence holder has not made an amended forestry
revitalization proposal, or elected proportionate reduction, within 30 days
of the determination under subsection (2) that the proposal is not consistent
with the AAC reduction criteria, the licence holder is deemed to have elected
proportionate reduction.
(6) If, in respect of an amended forestry revitalization
proposal made under subsection (4),
(
a) a rejection threshold of contractors gives a licence
holder written notice of objection to the proposal under
section 33.4, and
(
b) at least one of those contractors is an impacted contractor
the licence holder, by written notice to all contractors who received the proposal, must
(
c) elect proportionate reduction, or
(
d) refer the proposal to the conciliator.
(7) If a licence holder refers the amended forestry revitalization
proposal to a conciliator under subsection (6), subsection (2) will
apply, except that if the conciliator determines that the forestry revitalization
proposal is consistent with the AAC reduction criteria, but that the requirements
section 33.22 (
h) have not been met with respect to one or more
impacted contractors who made fairness objections,
(
a) the forestry revitalization proposal is deemed to
be accepted and each contract entered into by the licence holder in respect
of licences in the proposal is deemed to be amended or terminated as provided
for in the proposal, and
(
b) the licence holder is liable to those impacted contractors
for damages in an amount to be determined by the conciliator in accordance with
section 33.7.
(8) If
(
a) the conciliator has determined under subsection
(2) that the amended forestry revitalization proposal referred under subsection
(6) is not consistent with the AAC reduction criteria, or
(
b) the licence holder has not elected proportionate
reduction or referred an amended forestry revitalization proposal to the conciliator
under subsection (5),
the licence holder is deemed to have elected proportionate reduction.
(9) For a dispute deemed to exist under
section 33.42
(3), the sole issue is whether a forestry revitalization proposal deemed to
be accepted meets the requirements of
section 33.22 (
h) with respect
to the impacted contractors who have made fairness objections.
(10) If
(
a) for a dispute deemed to exist under
section 33.42
(3), the conciliator determines that the requirements of
section 33.22 (
h) are not met in respect of one or more of the impacted contractors who have made
fairness objections to the forestry revitalization proposal, or
(
b) the conciliator has determined under subsection
(2) that the forestry revitalization proposal is consistent with the AAC reduction
criteria, but that the requirements of
section 33.22 (
h) have not
been met with respect to one or more impacted contractors who made fairness
objections to the proposal,
the licence holder may, within 30 days of the determination and by written notice to those contractors,
(
c) amend the forestry revitalization proposal with respect
to those impacted contractors only, or
(
d) elect to pay damages to those impacted contractors
in respect of whom the conciliator has found that the requirements of
section 33.22 (
h) have not been met, in an amount determined by the conciliator in accordance
with
section 33.7.
(11) If a licence holder amends a forestry revitalization
proposal under subsection (10), and one or more of the impacted contractors
in respect of whom the proposal was amended objects to the amendment, the conciliator
may, on the application of any of those impacted contractors made within 30 days
after receipt of the amended forestry revitalization proposal from the licence
holder, determine if the amended forestry revitalization proposal meets the
requirements of
section 33.22 (h).
(12) If the conciliator makes a determination under subsection
(11) that the amended proposal does not meet the requirements of
section 33.22 (
h) in respect of one or more impacted contractors, or if the licence holder fails
to make an amended forestry revitalization proposal under subsection (10) (
c) or to elect damages under paragraph (10) (d), the licence holder is
liable for damages to those contractors in an amount to be determined by the
conciliator in accordance with
section 33.7.
(13) The amended forestry revitalization proposal made
under subsection (10) (c), or if an amended proposal is not made, the forestry
revitalization proposal described in subsection (10) (
a) or (b),
as the case may be, is deemed to be accepted and each contract entered into
by the licence holder in respect of licences in the proposal is deemed to be
amended or terminated as provided for in the proposal.
Section 33.6 is amended
(
a) in subsection (1), by striking out "under
section
33.43" and substituting "under
section 33.43 (1) (c)",
(
b) in subsection (3) by striking out "under
section
33.43 or 33.5" and substituting "under
section 33.43, 33.5 or 33.51" , and
(
c) by adding the following:
(5) If proportionate reduction is elected, deemed elected
or implemented, the parties to a replaceable contract must amend their contract,
if necessary, to reflect that reduction.
Section 33.7 is repealed and the following substituted:
Damages
33.7
(1) If an impacted contractor is entitled
to receive damages from a licence holder under either
section 33.5 or 33.51,
the amount of damages payable by the licence holder must equal
X – Y
where
is the damages that the conciliator determines would be
payable based on a wrongful termination of a replaceable
contract with an amount of work equal to the difference between
(
i) the amount of work each year that would be available to that
contractor based on a proportionate reduction, and
(ii)
the amount of work each year as proposed for that contractor in the
forestry revitalization proposal,
which determination is to be made without reference to
any requirement by the contractor to mitigate the loss
associated with that difference whether under the Forestry
Revitalization Trust or otherwise, and
is the amount of mitigation funds that a contractor will
receive under the Forestry Revitalization Trust based on a
reduction in amount of work equivalent to the difference between
(
i) the amount of work each year that would be available to that
contractor based on a proportionate reduction, and
(ii)
the amount of work each year as proposed for that contractor in the
forestry revitalization plan.
(2) Except as provided in subsection (1), a licence
holder is not liable to a contractor or subcontractor for any damages or other
remedy arising directly or indirectly from a reduction in the amount of work in,
or termination of, a replaceable contract, that takes place as a result of this
Division.
(3) A contractor is not liable to a subcontractor
for any damages or other remedy arising directly or indirectly from a reduction
in the amount of work in, or termination of, a replaceable contract, that takes
place as a result of this Division.
(4) A contractor or subcontractor, within 90 days of
receiving notice that the amount of work under the contract or subcontract has
been reduced under this Division, may terminate a replaceable contract or
subcontract, by written notice to the licence holder or contractor, without
incurring any liability to the other party.
Section 44 is amended
(
a) the volume of timber deemed to be harvested
under a phase contract, other than a phase contract for logging road
construction, logging road maintenance and logging access road construction, is
calculated by applying the formula
M x P
where
is the aggregate of the phase contribution amounts for the phases
included in the contract divided by the allowable
annual cut of the licence to which the contract pertains, and
is the volume of timber harvested under the phase contract,
(
b) the volume of timber deemed to be harvested
under a phase contract for logging road construction, logging road maintenance
or logging access road construction is calculated by applying the formula
(R ÷
S) where
is the volume of timber harvested under the licence,
is the total cost for the appropriate phase contract in the year of
construction or maintenance, as the case may be, and
is the total cost incurred by the licence holder for all phases of
the timber harvesting operation on the licence, and
Schedule 5 is amended
(
a) in
section 2 by striking out "60 days" and substituting
"30 days" , and
(
b) in
section 4 by adding "and must be resolved in accordance
with
Part 5, Division 4 of the regulation" after ", a rate dispute
is deemed to exist" .
16 The heading for
Schedule 21 is repealed and the following is substituted:
Standard Provision — Replacement of Subcontract
on Licence, Transfer, Subdivision or Consolidation
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