DIVISIONAL COURT FILE NO.: 143/03
DATE: 20030826
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.A. BLAIR R.S.J., BROCKENSHIRE J. and SOMERS J.
B E T W E E N:
EARTHROOTS COALITION
Applicant
- and -
MINISTER OF NATURAL RESOURCES
Respondent
Clayton Ruby and Robert Wright, for the Applicant
Dennis W. Brown Q.C. and James Kendik, for the Respondent
HEARD: April 11, 2003
REASONS FOR DECISION
R. A. BLAIR R.S.J.:
Background
[1] Earthroots Coalition is a non-profit conservation organization dedicated to the preservation of wilderness, wildlife and watershed with origins in the Temagami region of Ontario and a general focus on issues in this Province. It has a history of public advocacy in relation to these issues and is presently concerned about the construction or improvement of a logging road that crosses the Bob Lake Conservation Reserve near Temagami.
[2] The Minister of Natural Resources proposes to permit improvements to that road – known as the Eye Lake Road – for its use in transporting logs from other areas in the Temagami forest. On this application for judicial review, Earthroots Coalition seeks a declaration that the proposed clearing, construction or improvement, and use of the road are prohibited by Regulation 805/94 enacted under the Public Lands Act.[^1]
[3] The Bob Lake Conservation Reserve is designated as a conservation reserve under that Regulation (which is called the “Conservation Reserve Regulation”). Eye Lake Road crosses the Bob Lake Conservation Reserve, and provides the only practical route for transporting logs on trucks from various areas in the Temagami Forest to various mills on the other side of the Reserve. Through his approval of what is known as the 1999-2019 Forest Management Plan and the 2002-2003 Annual Work Schedule for the Temagami Forest, the Minister has given preliminary approval to the proposed construction or improvement and use. The Minister has not yet approved the specific road strategy authorizing the work, but has indicated he intends to do so.
[4] Earthroots Coalition seeks to prevent that from happening.
[5] I would dismiss their Application for the reasons that follow.
The Standard of Review
[6] The standard of review is reasonableness.
[7] The Minister of Natural Resources has very broad powers and responsibilities regarding public lands and forests under the Public Lands Act. Article 2 provides that he or she is charged with their management, sale and disposition. Under a related statute, the Crown Forest Sustainability Act[^2], the Minister also has broad powers and responsibilities relating to the management of forested Crown lands and the planning and licensing functions accompanying that management. The two pieces of legislation must be read together, in the context of this Application, in my view.
[8] Courts have consistently held that decisions made in the exercise of a discretionary statutory decision-making authority should be afforded deference, based on the “pragmatic and functional” approach first articulated by the Supreme Court of Canada in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R.1048 and reinforced in later cases such as Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1999] 1 S.C.R. 982, Pezim v. British Columbia (Supt. of Brokers), [1994] 2 S.C.R. 557, Canada (Director of Investigation and Research), v. Southam Inc., [1997] 1 S.C.R. 748, and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 1 S.C.R. 982. Most recently, the Supreme Court of Canada has re-examined the standard of review question in two cases, Law Society of New Brunswick v. Ryan, 2003 SCC 30 and Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19. Both cases emphasized the importance of the functional and pragmatic approach espoused in its earlier decisions.
[9] The pragmatic and functional approach involves an analysis of four factors, namely, (a) the presence or absence of a privative clause, (b) the relative expertise of the decision-maker, (c) the purpose of the Act in question as a whole and, in particular the provision under consideration, and (d) the nature of the problem under review. In my opinion, notwithstanding that what is involved is a matter of statutory and regulatory interpretation, these factors point towards the standard of reasonableness in this case.
[10] There is neither a right of appeal nor a privative clause under the statute. The first factor is therefore neutral. The Minister has very extensive authority and discretion under the Act, although his powers must be exercised in accordance with the regulations and the Act, and therefore he has substantial expertise – including dealing with his home legislation and regulations – in carrying out those responsibilities. This factor militates toward deference by the Court, as does the third factor which is to give effect to the wide-ranging purpose of public land use and conservation – in this case, that of Crown forest lands. Finally, the nature of the problem is one involving a discretionary ministerial decision concerning public policy issues.
[11] Thus, the foregoing factors weigh in favour of deference being shown to the Minister’s decisions, and signal a reasonableness standard of review.
[12] Is the Minister’s decision reasonable in the circumstances, then?
Law and Analysis
[13] Eye Lake Road is a “tertiary” road, in the jargon of the forestry industry. That means it is a road used for relatively short periods of continuous use (1-5 years), repeated at regular intervals over a long period of time. Tertiary roads are not routinely maintained during intervals of non-use, nor are they physically abandoned, as they will again be utilized to access resources in accordance with approved forest management cycles. Eye Lake Road was first constructed in 1965 to provide access to mature forest resources and haul timber from the area between Lake Temagami and Cross Lake. It was last used for forestry purposes in 1991 and has not had continual use and maintenance since. This explains it’s frequently narrow and somewhat overgrown appearance, as indicated in the materials in the record. It also helps to explain the different nomenclature applied to the road by the parties in this case (the Applicant insisting it is a “trail” and therefore arguing that what is proposed involves the “construction” of a new road; and the Respondent describing the present way as an existing road and submitting that what is proposed as a “clearing” and “improvement”).
[14] On behalf of the Earthroots Coalition Mr. Ruby takes an interpretive approach to the problem that focuses on the language of sections 1 and 2 of the Conservation Reserve Regulation – its only sections – which read as follows:
The lands described in the Schedules are designated as conservation reserves with the purpose of protecting natural heritage areas and natural features on public land and preserving traditional public land uses including wildlife viewing, hunting, fishing, walking, snowshoeing, cross country skiing and boating.
Land within a conservation reserve shall not be used for mining, commercial forest harvest, hydro-electric power development, the extraction of aggregate and peat or other industrial uses.
[15] He submits that the clearing, construction or improvement, and the use of Eye Lake Road for purposes of logging transportation across the Bob Lake Conservation Reserve contravenes both of these provisions. It cannot be said, he contends, that such use is consistent with the purpose of “protecting natural heritage areas” or with the purpose of “preserving traditional public land uses”, and therefore it violates section 1. In addition, it constitutes a use of the Reserve lands for “commercial forest harvest . . . or other industrial uses”, and therefore flouts the provisions of section 2.
[16] For the Minister, on the other hand, Mr. Brown submits that the Minister’s decision about the proposed work and use of the road must be considered in a broader context, consisting of not only the language of the Conservation Reserve Regulation, but also the provisions of the Public Lands Act and the Crown Forests Sustainability Act taken together, and the Minister’s role and responsibilities in respect of Crown forest management under this entire legislative rubric. The language of sections 1 and 2 of the Conservation Reserve Regulation, as applied to the circumstances of this case, must be interpreted in this context.
[17] I agree that the broader approach is in order.
[18] Looked at in isolation, the language of sections 1 and 2 may appear to be supportive of the Applicant’s position. Arguably, at least, the use of Eye Lake Road for the transportation of forest products across the Bob Lake Conservation Reserve is a use for “commercial forestry harvest” or for “other industrial uses”: see, for example, Newfoundland and Labrador Wildlife Federation v. Newfoundland (2001), 33 Admin. L.R. (3d) 68 (Nfld. S.C.) at 84-85, paras. 23-25. Moreover, although there is no explicit evidence in the record that environmental harm will be caused by the proposed construction or improvement and use of Eye Lake Road, there is ample environmental literature that maintains the use of roads in environmentally sensitive areas has an impact on those areas in terms of wildlife and plant habitat degradation and fragmentation, soil erosion and waterway impacts and generally increased pressure on natural resources: see, Federation of Ontario Naturalists, “Roads and Their Impacts,” End of the Road: Ontario’s Roadless Wilderness (1997); Global Forest Watch Canada, Canada’s Forests at a Crossroads: An Assessment in the Year 2000 (2000), at 26; United States Department of Agriculture Forest Service, Forest Roads: A Synthesis of Scientific Information (June 2000), at 4.7. In that sense, there is a tension between the use of roads in Reserve areas for logging purposes and the general conservation purposes articulated in the Conservation Reserve Regulation.
[19] Thus it could be said that the language of the Conservation Reserve Regulation invites applications of this nature. It might have been preferable had the regulator seen fit to say expressly that roads crossing reserve areas and already existing for purposes of hauling timber would be permitted to continue to be used for such purposes, but no such specific provision exists in the Conservation Reserve Regulation. I do not think this is fatal to the Minister’s interpretation, however.
[20] The Minister has an obligation, in the public interest, to balance all of the competing factors that come into play in the course of carrying out the mandate to manage and plan for the use of public lands and forests in the Province. The language of sections 1 and 2 of the Conservation Reserve Regulation cannot be read literally and strictly, and in isolation from the overall legislative framework that governs the Minister’s role in this regard. The sections must be considered in the context of and in conjunction with the entire enabling legislative scheme including the Public Lands Act and the Crown Forest Sustainability Act.
[21] Provisions within a regulation should be read in the context of the regulation and the enabling Act as a whole: R. Sullivan, Driedger on the Construction of Statutes, Butterworths, 1994, at p. 246. From the perspective of the two pieces of relevant legislation here being read together, the following passage from another text by the same author, R. Sullivan, Statutory Interpretation, Irwin Law, 1997, at 124, is instructive:
A legislature may enact more than one statute on the same subject or may enact provisions in one statute that touch on a matter dealt with in another. A single legislative scheme may be embodied in more than one enactment. Statutes, or portions of statues, that deal with the same subject or contribute to an integrated scheme are said to be in pari material. These statutes are read together as if they were part of a single Act.
[22] Chief Justice McLachlin encapsulates the present approach to statutory interpretation – albeit in a Charter context – in R v. Sharpe 2001 SCC 2, [2001] 1 S.C.R. 45, at 75, para. 33, in these words:
Much has been written about the interpretation of legislation (see, e.g., R. Sullivan, Statutory Interpretation (1997); R. Sullivan, Driedger on the Construction of Statutes (3rd. ed. 1994); P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000)). However, E.A. Driedger in Construction of Statutes (2nd ed. 1983) best captures the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87, Driedger states: “Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”
[23] Adopting this purposive approach to the interpretation of statutory and regulatory language, the Court does not ignore the language which is at the center of the interpretative exercise, and invent its own wording, but rather examines the subject language in the broad context of its overall legislative scheme and the object of that scheme. In this case, the “Act” must be taken to mean both the Public Lands Act and the Crown Forest Sustainability Act, and the words of the Regulation are to be read “in their entire context and in their grammatical and ordinary sense harmoniously with” the scheme and object of that legislative framework and the intention of the legislature in that regard.
[24] The context and the scheme and object of the legislative framework arising in this case involve both the protective and conservation edicts of the Conservation Reserve Regulation and forestry management and planning provisions of the two pieces of legislation. At the heart of this framework, in terms of Crown forests, lies the Minister’s power to designate all or part of a Crown forest as a management unit under the Crown Forest Sustainability Act and the obligation of the Minister, having done so, to ensure that a forest management plan is prepared and put in place for every such unit[^3]. In Algonquin Wildlands League v. Ontario[^4], the Divisional Court underlined the broad purposes of the Crown Forest Sustainability Act and the centerpiece nature of the forest management plan in giving effect to those purposes. At paras. 13 – 14 of that decision Archie Campbell J. observed:
The CFSA represents a fundamental shift in focus from the old CTA [Crown Timber Act]. The CFSA focuses not so much on the cutting or harvesting of timber as on the broader forest value of sustainability, defined as the long term health of the Crown forest, s. 2(1). The forest is regarded not just as a source of wood fibre but as a forest ecosystem (s. 3). The central objective and purpose of the Act is to provide for the sustainability of the Crown forest and, to achieve that objective, to manage Crown forests to meet the social, economic, and environmental needs of present and future generations. (s. 1).
The object of the Act is to accommodate a variety of interests including wildlife, conservation, recreation, logging, wilderness preservation and jobs, and to sustain the forest for multiple uses for future generations. The machinery to achieve sustainability is a publicly accountable planning process based on a statutory instrument called the Forest Management Planning Manual, containing objective indicators and determinations of sustainability against which the public can monitor the performance of the Ministry. The new regime of forest management is based on the principle that sustainability for future generations should be based on the objective indicators set out in the Manual, and not on individual opinions about what is good for the forest.
[25] The Bob Lake Reserve is within the Temagami Management Unit (the “TMU”), established under the Crown Forest Sustainability Act. There is a forest management plan in place governing the TMU. The Minister has granted licenses to harvest forestry resources within the TMU pursuant to section 27 of that Act and the inability to use the Eye Lake Road could adversely affect some of those licenses. Moreover, in June 1997, the Temagami Land Use Plan (the “TLUP”) was approved pursuant to that Act, following a lengthy consultative process involving public input from all stakeholders (including the Earthroots Coalition). Access was one of the key issues debated during this process and in connection with the preparation of the TLUP, and there is no record of anyone having objected to the use of Eye Lake Road during the course of the consultation process. The Plan sought, amongst other things, to balance the need for road access for various uses, and sustaining various values and uses that depend upon remote and semi-remote conditions. Commercial timber harvesting is not permitted within a Protected Area such as Bob Lake; however, while land use direction and allowable activities in such Areas generally do not permit motorized road or trail access, there are provisions for crossing to be allowed in linear portions of Protected Areas.
[26] The proposed construction or improvement, and use, of Eye Lake Road are pursuant to allocations approved in the 1999-2019 Forest Management Plan. The allocations require approximately 2.3 years for harvest and initial renewal activities (i.e. site preparation and planting). Only minor repair work will be necessary to the Road – consisting of brushing and grading of the road surface and the repair of two stream crossings – to prepare it for its use by the licensed logging company
[27] It is in the context of the foregoing framework and policy rubric that the Minister’s discretionary decision and the requirements of sections 1 and 2 of the Conservation Reserve Regulation must be reviewed. When the purposive words “protecting natural heritage areas and natural features on public land” and “preserving traditional public land uses” of section 1, and the limiting words “commercial forest harvest” and “other industrial uses” of section 2 are examined in this light, it is reasonable, in my view, to interpret the Conservation Reserve Regulation as not prohibiting the clearing, construction or improvement, nor the use of existing access routes to and from commercial forest areas for purposes of hauling timber from those areas. Indeed, if the strict and literal interpretation advanced by the Applicant were accepted it might well have the effect of partially defeating the objectives of the forest management plan and related policies put in place in relation to the Minister’s responsibilities over the same Crown forests under the Crown Forest Sustainability Act.
[28] It follows that in my opinion the exercise of the Minister’s discretion in permitting the clearing, construction or improvement, and the use of the Eye Lake Road for its continued purpose as a tertiary logging route to and from the commercial forest areas adjacent to the Bob Lake Conservation Reserve is not unreasonable.
Disposition
[29] The Application is therefore dismissed.
[30] The Minister does not seek costs if successful. There will therefore be no order as to costs.
R. A. Blair R.S.J.
I agree : ___________________________
Brockenshire J.
I agree : ___________________________
Somers J.
Released: August 26, 2003
COURT FILE NO.: 143/03
DATE: 20030826
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.A. BLAIR R.S.J., BROCKENSHIRE J. and SOMERS J.
B E T W E E N:
EARTHROOTS COALITION
Applicant
- and –
MINSTER OF NATURAL RESOURCES
Respondent
REASONS FOR DECISION
R.A. BLAIR R.S.J.
Released: August 26, 2003
[^1]: The Public Lands Act. R.S.O. 1990, c.P.43. [^2]: The Crown Forest Sustainability Act, 1994, S.O. 1994, c.25, as amended. [^3]: The Crown Forest Sustainability Act, ss. 7-9. [^4]: Algonquin Wildlands League v. Ontario (Minister of Natural Resources), [1998] O.J. No. 419, at paras. 13-15; appeal allowed in part on other issues 1998 5756 (ON CA), [1998] O.J. No. 4331 (C.A.).```