FORESTRY LAW

FEBRUARY 12, 2013

Overview

• Administrative law and judicial review of administrative decisions

• Historical and legal developments in forest management in Ontario

• Legal framework for managing forests in Ontario, and key cases

• Forest management planning in Ontario

Administrative Law and Judicial Review

• Administrative law – rules governing decision-making under statutes by government officials and agencies

• Examples of decisions subject to judicial review: development project approvals by Cabinet or ministers, environmental assessments, decisions by tribunals, municipal land‑use approvals

• Judicial reviews vs. appeals vs. legal actions

Administrative Law and Judicial Review

• Procedural Fairness:– nature of the decision to be made– relationship between decision maker and

individual– effect of the decision on individual's rights– Generally, fairness requires, at a minimum,

notice before a final decision is made and an opportunity to be heard.

• Decisions vs. Recommendations

Administrative Law and Judicial Review

• Privative Clauses

• Standard of Review (reasonableness or correctness)

• Legality of a decision vs. ruling on the merits

Administrative Law and Judicial Review

• Common grounds for judicial review– decisions outside statutory powers– failing to consider relevant considerations or

considering irrelevant considerations– unlawful fettering of discretion– real or apprehended bias– breach of procedural fairness rules– exercising discretion for improper purpose or

in bad faith– unlawful subdelegation of discretionary power

Historical and legal developments in forest management in Ontario

• Biodiverse Carolinian forest (south of Sarnia - Hamilton) reduced to fragments

• Disappearance of white and red pine forests from Ottawa Valley (St Lawrence-Great Lakes) in mid-1800s

• 60 m tall, 8 m circum. old-growth pines

• Loss of genetic diversity, biodiversity

Historical and legal developments in forest management in Ontario

• Battle for Temagami in 1970s

• 1973 Teme-augama Anishnabai filed cautions on titles in land registry

• Supreme Court: Anishnabai have aboriginal right, lost due to adhesion to Robinson Huron Treaty

• Cutting rates too high by 1989

• Multistakeholder process led to land use designations, protected areas, new reserve in 2002

Historical and legal developments in forest management in Ontario

• Commercial boreal logging by 1940s

• Endangered Spaces Campaign

• “Lands for Life” lnitiative of Harris government in 1997 led to 378 new protected areas (Kawartha Highlands, Wabakimi, Woodland Caribou)

• 9.2 % of Ontario protected from logging, mining by 2004

Historical and legal developments in forest management in Ontario

• Crown Timber Act 1849 – Forest as source of timber and pulpwood– Management of logging of Crown forests

• Forest Management Act 1947 – Timber management plans– Forest companies gain rights to harvest – Companies also responsible for forest

regeneration– Concerns about enforcement/sustainability

Historical and legal developments in forest management in Ontario

• Class Environmental Assessment for Timber Management 1994– Environmental Assessment Board– Over 4 years of hearings– Board imposed new series of legal

requirements for forest operations– Local citizens advisory committees– Old-growth forest conservation strategy– Crown Forest Sustainability Act 1994

Crown Forest Sustainability Act 1994

• Purposes s. 1 “provide for the sustainability of Crown forests and, in accordance with that objective, to manage Crown forests to meet social, economic and environmental needs of present and future generations”

• Sustainability defined s. 2.(1) “long term Crown forest health”

Crown Forest Sustainability Act 1994

• Purposes s.2.(3) – “1. Large, healthy, diverse, and productive

Crown forests . . . should be conserved”– “2. Long term health vigour . . . should be

provided for by using forest practices that . . . emulate natural disturbances and landscape patterns while minimizing adverse effects . . .”

Crown Forest Sustainability Act 1994

• Forest health s.3 “means the condition of a forest ecosystem that sustains the ecosystem’s complexity while providing for the needs of the people of Ontario”

Crown Forest Sustainability Act 1994

• S.8.(1) “Minister shall ensure that a forest management plan is prepared for every management unit”

• (2) “A forest management plan shall, in accordance with the Forest Management Planning Manual,– describe the forest management objectives and

strategies . . .– have regard to the plant life, animal life, water,

soil, air and social and economic values . . .”

Crown Forest Sustainability Act 1994

• S.42.(1) “A person shall not conduct forest operations in a Crown forest except in accordance with, (a) an applicable forest management plan . . . (b) an applicable work schedule approved by the Minister

Crown Forest Sustainability Act 1994

• S.68.(2) “The Minister shall ensure that every forest management plan complies with the Forest Management Planning Manual”

Crown Forest Sustainability Act 1994

S.68.(3) “The Forest Management Planning Manual shall contain provisions respecting, (a) the contents and preparation of forest management plans . . . including public involvement and decision-making (b) determinations of [forest] sustainability

(c) requirement that management objectives . . be compatible with [forest] sustainability

(d) Requirement that indicators be identified”

Summary Questions • What are the main management objectives

for forests under Ontario’s legislation? Are those objectives mutually compatible?

• How does Ontario’s legislation and manual balance the competing goals? Do any have priority?

• Is Crown Forest Sustainability Act a model statute for sustainable development of natural resources generally?

Algonquin Wildlands League v. Ontario

• What was the nature of this legal proceeding?• What was Algonquins Wildlands League

complaining about? • In what ways was the Ontario government

found to be out of compliance with the CFSA (in Wildlands League)? Why do you think it was disobeying the law?

• What is the mandatory/directory argument about?

Algonquin Wildlands League v. Ontario

• Why was the chronology of the coming into force of the Manual important?

• Why did the Court decide that the Manual could not provide for its own phasing in?

• Why was it important that the Forest Management Plans were inconsistent with the Manual?

• What standard of review did the Court apply?• What do you think about regulating

sustainability indicators?

Canadian Forest Products v. British Columbia

• British Columbia sued CanFor for damages when CanFor burned down a provincial forest

• Describe the legal theory of B.C.’s case• Why didn’t Supreme Court agree that B.C. is

entitled to environmental damages?• What is parens patriae? • Based on CanFor, could City of Ottawa sue

Yazaki a car parts distributor that used untreated shipping crates for damage to ash trees by the invasive Emerald ash borer?

Canadian Boreal Forest Agreement

• “Working together in the marketplace and on

the ground to support governments in the realization of a stronger, more competitive forestry industry and a better protected, more sustainably managed Boreal Forest”

• A voluntary agreement between 21 forest companies and nine environmental organizations (DSF, CPAWS, Forest Ethics)

• Applies to 76 million hectares from NL to BC

Canadian Boreal Forest Agreement

Commitments • Accelerate completion of the protected spaces

network for the Boreal Forest that represents the diversity of ecosystems within the Boreal region

• Develop and accelerate implementation of plans to protect species at risk in the Boreal Forest, with a priority focus on Boreal caribou

• Implement world-leading, on-the-ground sustainable forest management practices that best reflect the principles of ecosystem-based management

Canadian Boreal Forest AgreementCommitments

• Take action on climate change as it relates to forest conservation and forest product life cycles

• Take action to improve the prosperity of the Canadian forest sector and the communities that depend on it

• Work to achieve recognition in the marketplace for the environmental performance of the participating companies

Canadian Boreal Forest AgreementDraft Northeast Ontario Plan

• 2.2 million hectares to be available for forestry

• 800,00 hectares in Abitibi River forest to be protected

• Ontario is supportive, but hasn’t signed

• Federal government concerned about species at risk

• Greenpeace has pulled out