COURT FILE NO.: 454/05
DATE: 20060127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, KLOWAK AND sWINTON JJ.
B E T W E E N:
ALAIN GUINDON IN HIS OWN RIGHT AND AS REPRESENTATIVE OF THE MEMBERS OF GORDON COSENS SURVIVAL GROUP; THE UNITED STEELWORKERS OF AMERICA, LOCAL 1-2995; AND GUY BOURGOIN AS THE REPRESENTATIVE OF ALL EMPLOYEES IN THE BARGAINING UNITS OF UNITED STEELWORKERS OF AMERICA, LOCAL 1-2955 AT THE TEMBEC INC. MILL IN OPASATIKA, THE TEMBEC INC. MILL IN KIRKLAND LAKE, THE DOMTAR INC. MILL IN CHAPLEAU AND LES INDUSTRIES (HEARST) TRI-CEPT INC. MILL IN HEARST
Applicants
- and -
THE MINISTER OF NATURAL RESOURCES, TEMBEC INC., and DOMTAR INC.
Respondents
James Fyshe, for the Applicants
William J. Manuel and Heather Mackay, for the Respondent Minister of Natural Resources
Christopher J. Matthews and Blair McCreadie, for the Respondent Tembec Inc.
Richard J. Charney and Jordan D. Winch, for the Respondent Domtar Inc.
HEARD at Toronto: December 9, 2005
SWINTON J.:
[1] This application for judicial review arises from a decision by the respondents Domtar Inc. and Tembec Inc. to restructure their lumber production facilities in several communities in northeastern Ontario. It concerns the extent to which communities and workers dependent on Ontario’s forests have a right to be consulted about important decisions affecting the way in which timber resources are processed.
[2] The applicants seek declaratory relief and an order of mandamus against the Minister of Natural Resources requiring him to perform certain duties under the Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25 (“the Act”). The central legal issue in this case is whether amendments are required to certain Forest Management Plans and licences under the Act before wood supply can be directed from some sawmills to other mills and before some mills can be closed.
Factual Background
[3] The first applicant, the Gordon Cosens Survival Group, is composed of representatives from six communities located near the Gordon Cosens Forest – Mattice-Val Cote, Opasatika, Val Rita-Harty, Kapuskasing, Moonbeam and Fauqier-Strickland. The Survival Group includes mayors, reeves, council member and administrators from these communities. The second applicant is the United Steelworkers of America, Local 1-2995, which represents employees of the two respondent companies in north-eastern Ontario.
[4] At the outset of the hearing in this matter, an order was made pursuant to rule 12.08 of the Rules of Civil Procedure to permit the proceeding in the name of a representative, as neither applicant is an incorporated body. As well, an order was made substituting the Minister of Natural Resources as a respondent in place of five individual respondents, who were employees of the Ministry. The style of cause has been amended to reflect these orders.
[5] On January 4, 2005, Domtar and Tembec announced an agreement known as “Project Fairway”, in which they agreed to exchange certain of their respective wood harvest allocations. Pursuant to their agreement, the wood supply from these allocations would be redirected to different sawmills, allowing for the consolidation of their manufacturing operations.
[6] More precisely, Domtar agreed to transfer to Tembec 157,000 cubic metres of its annual allocation from the Martel, Spanish and Northshore Forests in the Chapleau area. Tembec agreed to transfer to Domtar 157,000 cubic metres of its annual allocation from the Temiskaming and Temagami Forests in the Kirkland Lake area.
[7] This agreement resulted in significant changes to the operations of several sawmills. The Tembec sawmill in Kirkland Lake (“Kenogami”) was closed, and the timber supply was redirected to the Domtar sawmill in Elk Lake and the Tembec sawmills in Timmins and Cochrane. Domtar’s mill in Chapleau was closed, and the timber supply was redirected to the Tembec mill in Chapleau and the Domtar mill in Elk Lake. This resulted in a third shift being added to the operations of Tembec’s Chapleau mill and to Domtar’s Elk Lake mill. In addition, Tembec plans to open a facility for manufacturing finger jointed lumber in the Kenogami mill, with Domtar as a partner in the project.
[8] A further restructuring occurred as a result of actions by Tembec that did not involve Domtar. Timber supplying the Tembec sawmill in Opasatika was redirected to its mills in Hearst and Kapuskasing, and the Opasatika mill was closed. The Hearst mill then added a third shift, which resulted in new hiring.
[9] According to the affidavits filed on behalf of Domtar and Tembec, the restructuring is necessary to deal with ongoing difficulties, including the unfavourable exchange rate between the Canadian and US dollars, the softwood lumber dispute between Canada and the United States, energy costs in Ontario, and forecasted reductions in wood supply in northeastern Ontario. They take the position that the restructuring is aimed at achieving greater economies of scale within their respective sawmill operations and is expected to have a positive impact on employment in the region. According to the Brian Nicks, Director, Sustainable Forest Management of Domtar Inc., nothing in the restructuring will affect the amount of forest resources being harvested from the affected forest management units.
[10] In contrast, Local 1-2995 maintains that the sawmill closures will cause a significant loss of bargaining unit jobs. The Survival Group maintains that the closure of the Opasatika mill will have a devastating effect on the town and surrounding communities.
The Legislative Framework
[11] Regulation of forest planning, harvesting operations, and processing facilities in Ontario is governed by the Crown Forest Sustainability Act. Section 1 sets out the Act’s purposes as follows:
The purposes of this Act are to 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.
[12] A “Crown forest” is defined in s. 3 to mean “a forest ecosystem or part of a forest ecosystem that is on land vested in Her Majesty in right of Ontario”. “Sustainability” is defined in s. 2(1) as “long term forest health”. Subsection 2(2) requires that sustainability shall be determined in accordance with the Forest Management Planning Manual, which must provide for the determination of sustainability in a manner consistent with the following principles:
Large, healthy, diverse and productive Crown forests and their associated ecological processes and biological diversity should be conserved.
The long term health and vigour of Crown forests should be provided for by using forest practices that, within the limits of silvicultural requirements, emulate natural disturbances and landscape patterns while minimizing adverse effects on plant life, animal life, water, soil, air and social and economic values, including recreational values and heritage values.
[13] In this case, two Planning Manuals are relevant – the September 1996 and June 2004 versions. The 1996 Manual was prepared in accordance with s. 68 of the Act and also in accordance with a “class environmental assessment of forest management” (“the Class A assessment”) made by the Environmental Assessment Board pursuant to the Environmental Assessment Act, R.S.O. 1990, c. E.18. The 1996 Manual was in effect when the Plans relevant to this application were written. The creation of a new Plan or amendments to existing Plans requested after January 1, 2005 must be done pursuant to the 2004 Manual.
[14] Part II of the Act deals with “management planning and information”. Pursuant to s. 7, the Minister may designate all or part of a Crown forest as a management unit for purposes of the Act. At present, there are 48 such units. A management unit is restricted to forests on lands owned by the Crown and does not include the towns, communities or people in the geographic area.
[15] The Minister must ensure that a Forest Management Plan (“the Plan”) is prepared for each management unit. The Plan must be prepared in accordance with the Manual and must include a description of the forest management objectives and strategies applicable to the unit and “have regard to the plant life, animal life, water, soil, air and social and economic values, including recreational values and heritage values” of the unit (s. 8 (1) and (2) of the Act).
[16] The Plan sets the strategic direction for the unit for the long term (20 years), while providing operational details regarding “forest operations” for the short term (5 years). The term “forest operations” is defined in s. 3 as “the harvesting of a forest resource, the use of a forest resource for a designated purpose or the renewal or maintenance of a forest resource, and includes all related activities”. All forest operations in the management unit must be conducted in accordance with the applicable Plan and an applicable work schedule approved by the Minister (s. 42).
[17] Each Plan contains a description of the management unit and considers several management alternatives for it. According to the affidavit of Steve Osawa, Senior Forest Management Planner with the Ministry, each management alternative emphasizes different management objectives and strategies and results in different volumes of wood being forecast as available for harvest. When determining the management alternative, the planning team conducts a socio-economic impact analysis. It then proposes a management alternative that is deemed to be sustainable, which is subject to public review. The management alternative chosen determines the “Available Harvest Area” (“AHA”), which guides where and how much timber will be harvested from the management unit.
[18] Each Plan contains information about the wood flowing to particular “forest processing facilities”, defined in the Act as a saw mill, pulp mill or any other facility where forest resources are processed. However, decisions about the disposition and licensing are not made in the Plan. The 1996 Manual states specifically that “the approval of a forest management plan is not an agreement to supply wood to a particular mill” (at p. A-115) and “approval of a forest management plan is not an agreement to make areas available for harvest for a particular licensee” (at p. B-28).
[19] Comprehensive public consultation is required during the creation of a Plan or upon the request for certain types of Plan amendments. The 1996 Manual directs that the Ministry must conduct public consultations at five formal stages of the planning process (s. 3.0).
[20] Section 11 of the Act permits the Minister to amend a Plan, but requires that such amendment only be made in accordance with the Manual. The Minister shall not allow an amendment unless satisfied that it “provides for the sustainability of the Crown forest”.
[21] The applicable process for amendments to Plans is set out in Part C, s. 2.0 of the 2004 Manual. It recognizes that “amendments could range from simple corrections to the text of a forest management plan to changes requiring comprehensive planning, public consultation and Aboriginal involvement” (p. C-5). Three categories of amendments are provided to reflect the range of potential changes: administrative, minor and major.
[22] According to clause 2.2, “any person” can initiate the planning process for an amendment by submitting a written request to the District Manager of the Ministry. The request must contain a brief description of the need for and nature of the proposed amendment and its rationale and significance. If new operations are proposed, they must be described and an outline must be given for the applicable planning requirements, including public consultation.
[23] After receipt of a request for amendment, the District Manager of the Ministry, in consultation with the Local Citizens Committee, conducts a review of the request to determine if it will be accepted and, if so, how the amendment should be categorized. Amendments categorized as “administrative” are corrections to the text of an approved Plan. There are no formal public consultation requirements for administrative amendments.
[24] Amendments categorized as minor involve changes to forest operations for which there is a limited or select public interest. The public and Aboriginal communities are given an opportunity to inspect the Ministry approved minor amendment.
[25] Major amendments involve significant changes to forest operations or generate greater public interest. There are two formal opportunities for public consultation and Aboriginal involvement in the preparation of a major amendment, as set out in Part C, s. 6.0 of the 2004 Manual.
[26] In considering whether an amendment will proceed and what categorization it should receive, the District Manager will consider:
the amount of planning and public consultation and Aboriginal involvement required;
whether there are legitimate time constraints which must be met;
the number of similar requests;
the information available at the time of the request regarding natural resource features, and uses and values potentially affected; and
the anticipated potential effects of the proposed operations.
[27] Anyone who wishes to harvest forest resources must have a Forest Resource Licence (“harvesting licence”), issued pursuant to Part III of the Act. A harvesting licence is required to harvest forest resources that have been designated as available for harvest from a management unit. The amount of forest resources harvested pursuant to a licence can not exceed the amount designated as available for harvest under a Plan.
[28] There are two types of harvesting licences. First, pursuant to s. 27(1), the Minister may grant a licence, without the approval of the Lieutenant-Governor in Council, for a term up to five years. These licences allow the licensee to harvest forest resources over an area identified in the licence, subject to terms and conditions set out in the licence.
[29] The second type of licence, issued pursuant to s. 26, is a “Sustainable Forest Licence” (“SFL”). These are twenty year licences, which must be reviewed every five years for compliance. These licences are normally issued to cover the entire management unit and allow the licensees to harvest all species of forest resources on the unit. The licensees are required to carry out activities that provide for the sustainability of the forest. Pursuant to s. 24 of the Act, the initial grant of an SFL requires the Minister to “give public notice in such manner as he or she considers appropriate of the intention to make the resources available” to be harvested or used for a designated purpose.
[30] Clause 3.1 of an SFL states that the forest resources harvested under it “are to provide a supply of forest resources to the following existing forest resource processing facilities: [named facilities] … and to the beneficiaries of forest resource supply commitments identified in Appendix ‘E’ hereto”. Appendix E, “Wood Supply Commitments”, states “the company shall comply with the following wood supply commitments” and goes on to say that the licensee is to “make available” annually specified quantities of wood to named facilities. In other words, Appendix E requires a licensee to comply with wood supply commitments made by the Ministry by requiring it to make specified volumes of wood available to mills named as beneficiaries.
[31] Appendix F contains special conditions relating to the forest resources harvested under the licence. For example, the SFL issued to Spruce Falls Inc., a Tembec subsidiary, to harvest forest resources from the Gordon Cosens Forest requires that a specified volume of excess spruce, pine and balsam fir be made available to be “distributed annually amongst the following traditional forest resource processing facilities, based on the annualized SPF volume forecast in the 2000-2020 Forest Management Plan and as described below:
Forest Resource Processing Facility Percentage of Volume Available
Tembec Industries Inc. (Hearst) 34.91%
Tembec Industries Inc. (Timmins) 25.89%
Excel Forest Products 25.86%
Lecours Lumber Co. Ltd. 12.95%
Cayouette Cabinets 0.39%”
Excel Forest Products is the Opasatika mill closed by Tembec as part of the restructuring.
[32] Subject to complying with Appendix E and any special conditions in Appendix F, the licensee is entitled to harvest and utilize all the forest resources that are available for harvest under the Plan (see clause 3.2).
[33] Section 34 of the Act empowers the Minister to amend a harvesting licence. The process set out in s. 34 does not require public consultation. Moreover, pursuant to s. 35, the transfer, assignment, charge or other disposition of a harvesting licence must be approved by written consent of the Minister. Again, there is no requirement of public consultation.
[34] A Forest Resource Processing Facility Licence (“processing licence”), issued pursuant to Part VI of the Act, is required to construct, operate, increase the operating capacity of a forest resource processing facility, or convert a facility to another type of facility processing Crown forest resources (s. 53). According to the evidence, forest resource processing facilities typically use only one type of forest resource – for example, sawmills use only logs, while pulp and paper facilities normally use only chips produced from pulp quality logs. As processing licences do not deal with harvesting, there is no obligation to operate a processing facility in accordance with a Plan.
[35] Section 19 of O.Reg. 167/95 requires the holder of a processing licence proposing to change the forest resource supply requirements of the facility to submit a detailed business plan outlining the nature of the proposed changes. If the Ministry is not satisfied with the business plan, it may decline to issue a new licence or amend an existing one.
[36] Finally, Part VII of the Act permits the Minister to take steps to ensure compliance with the Act if he is of the opinion that there is non-compliance.
The Legislative Framework as Applied to this Case
[37] As stated above, the triggering mechanism for the amendment to a Plan is the written submission of a request setting out the proposed changes. The Ministry has not received a request to amend the applicable Plans, which are four in number: those for the Gordon Cosens, Iroquois Falls, Timiskaming, and Pineland-Martel Forests.
[38] Both Tembec and Domtar have submitted business plans to the Minister in connection with possible amendments to their processing licences. In the case of Tembec, this affects its Hearst and Chapleau facilities, while in the case of Domtar, it affects the Elk Lake sawmill.
[39] Because of the serious implications of Project Fairway for workers and the community, the applicants formally advised the Ministry of Natural Resources that amendments to the respective Forest Management Plans, harvesting licences and processing licences were required, and public consultation was necessary. The Ministry took the position that amendments to the Forest Management Plans and harvesting licences were not required and declined to hold public consultation, which led to this application for judicial review. The applicants seek declarations that amendments to the Plans and licences are required before Domtar and Tembec can restructure their operations, as well as an order in the nature of mandamus to require the Minister of Natural Resources to immediately begin the process of public consultation required by the Act before the Plans can be amended and to exercise his discretion to enforce the provisions of the Act against the two corporations, should any redirection of wood take place before public consultation and the amendment of the Plans and licences.
Issues and Analysis
The requirements for mandamus
[40] The applicants are seeking an order of mandamus. Before such an extraordinary order can be issued, the applicants must show:
There is a clear legal right to have the thing sought by it done and done in the manner and by the person sought to be coerced.
The duty must be actually due and incumbent upon the officer at the time of seeking the relief.
The duty must be purely ministerial in nature, plainly incumbent upon the officer by operation of law or by virtue of office, and concerning which the officer possesses no discretionary powers.
There must be a demand and refusal to perform the duty.
(Karavos v. Toronto (City),1947 326 (ON CA), [1948] 3 D.L.R. 294 (Ont. C.A.) at p. 297)
[41] The first issue is whether the applicants have shown that the Minister has a duty to act. In this case, the applicants argue that the Minister has two duties. First, they submit that amendments to the Plans must be obtained before Tembec and Domtar are permitted to redirect wood from the sawmills they have closed, and the Minister must carry out public consultation before the Plans can be amended. Second, they submit that Domtar and Tembec should have obtained approval for amendments to the Plans and the harvesting and processing licences before proceeding with the restructuring, and the Minister has a duty to enforce the Act against them.
Do the Applicants have standing?
[42] Tembec, in particular, raised the issue that the applicants had no standing to bring this application on the basis that they have no genuine interest in Project Fairway. The applicants argue that they have a genuine interest in the application of the forest management legislation, given that there is a right to public consultation before an amendment to the Plans. In the alternative, they argue that there is a genuine public interest in the proper administration of the Act, given the impact of the restructuring on communities and workers, and there is no other reasonable way for this matter to be brought before the courts.
[43] In Distribution Canada Inc. v. Minister of National Revenue (1993), 1993 2923 (FCA), 99 D.L.R. (4th) 440, the Federal Court of Appeal stated that “the jurisprudence does not clearly exclude the possibility of extending standing to a proceeding in mandamus where there is a public interest to be expressed and there is no other reasonable way for it to be brought to court” (at pp. 448-9). In that case, the Court held that it was unnecessary to determine the issue of standing, given its conclusion that the Minister had not failed to perform a statutory duty.
[44] As in Distribution Canada, I need not determine the standing issue, given my conclusion in this case that the Minister has not failed to perform a statutory duty, for the reasons set out below.
Is there a right to public consultation?
[45] The applicants argue that Part C of the Forest Management Planning Manual sets out in detail when an amendment to a Plan is required. In particular, they rely on the following passage from the 2004 Manual at p. C-5, clause 2.1:
This section describes the planning requirements for any change to an approved forest management plan or contingency plan. For any change to a forest management plan or contingency plan, an amendment will be prepared. An amendment to a forest management plan must be consistent with the long-term management direction for the management unit… (emphasis added)
In Algonquin Wildlands League v. Ontario (Minister of Natural Resources), [1998] O.J. No. 419, the Divisional Court held that compliance with the Manual is mandatory (at para. 53, var’d on other grounds, 1998 5756 (ON CA), [1998] O.J. No. 4331 (C.A.)).
[46] The applicants also rely on s. 55 of the Act, arguing that if the Minister is of the opinion that a forest operation is being conducted in a Crown forest in a manner that is contrary to a forest management plan, he must exercise his discretion to direct that the forest operation stop, establish limits or require changes to the forest operations, or amend the Plan.
[47] The applicants argue that the Act requires consideration of broad social and economic needs in determining the use of the forest (s. 1). They point out that the Plans specifically provide for supplies of timber to named mills as an objective, and therefore, any redirection of that timber and a closure of those mills must be a “change” within the meaning of the Manual, which triggers the amendment process and public consultation. In other words, in their submission the references in the Plans to the mills to which certain volumes of the harvested timber are to be delivered are mandatory requirements.
[48] The respondents argue that there has been no change requested to a Plan, as required by the Manual, nor is one required in the circumstances. They submit that amendments are usually undertaken in connection with the operational aspects of the Plan – for example, changes to access, harvest or renewal and tending treatments – and not to business decisions about processing forest products.
[49] To assist in the interpretation of the Act, the applicants relied on an affidavit of Gilles Bisson, a current member of the Legislature who represents the riding containing the Gordon Cosens Forest. He was a member of the legislative committee which held hearings on the Act prior to its enactment. In his affidavit, he expressed his opinion about the “understanding” of the legislative committee with respect to the requirement for public consultation under the Act and the application of the amendment procedure when the destination of harvested timber changed.
[50] In my view, no weight should be given to this affidavit, as it provides no assistance in the interpretation of the Act, the Manual or the Plans. While legislative history may be available to show the mischief which the Legislature has sought to address in the legislation, the Supreme Court has cautioned against its use in interpreting statutes, given its inherent unreliability (R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761 at paras. 39-41). The words of Mr. Justice Cory aptly explain the limited utility of such evidence (at para. 41):
Nonetheless there are persuasive reasons advanced which support the position that legislative history or debates are inadmissible as proof of legislative intent in statutory construction. Many of these same reasons are also put forward to demonstrate that such materials should be given little weight even in those cases where they are admitted. The main problem with the use of legislative history is its reliability. First, the intent of particular members of Parliament is not the same as the intent of the Parliament as a whole. Thus, it may be said that the corporate will of the legislature is only found in the text of provisions which are passed into law. Second, the political nature of Parliamentary debates brings into question the reliability of the statements made. Different members of the legislature may have different purposes in putting forward their positions. That is to say the statements of a member made in the heat of debate or in committee hearings may not reflect even that member’s position at the time of the final vote on the legislation.
[51] In his affidavit, Mr. Bisson does not refer to debates of the Legislature or committee proceedings; rather, he provides his recollections and opinion. This is not a reliable way to determine the will of the Legislature as a whole, and his affidavit does not assist in the interpretation of the legislation.
[52] The focus of a Forest Management Plan is on the sustainability of the forest. Its purpose is to regulate “forest operations” in a Crown forest, a defined term which does not include the processing of harvested forest products at a particular sawmill (s. 3). Section 2 of the Act, which was quoted earlier, specifically defines “sustainability” in terms of the long term health of the forest.
[53] It is clear from the material before the Court that the needs and state of sawmills are a consideration in the development of a Plan. First, the Manual requires a description of the anticipated wood volume forecast to be received by each mill which relies on the management unit for its wood supply. Second, the Plans must also include objectives, which include the maintenance of wood supply to the sawmills in the region of the forest management unit. For example, in the Gordon Cosens Forest Plan, Objective B-2 states a target “to maintain current supply level of competitive cost wood fibre surplus to Spruce Falls’ requirement as outlined in Appendix E and F of the Sustainable Forest Licence”. Appendix F of the SFL referred to sets out an obligation to make available a percentage of surplus wood to Excel (Opasatika) and other mills, as set out earlier in these reasons.
[54] Nevertheless, the reference to such an objective in this Plan or comparable references in the other Plans does not require an amendment to the Plans in the circumstances of this case. The Plans are designed to ensure the sustainability of the Crown forest in the particular forest management units, with the planning process directed to determining a suitable level of harvesting from a Crown forest, taking into account the various interests in play. The Plans do not regulate the processing of harvested wood products.
[55] This conclusion is reinforced when one looks to s. 68 of the Act, which deals with the content of the Forest Management Planning Manual. Subsection 68(5) states that the Manual will require every Plan to contain management objectives that include “social and economic objectives, including harvest levels and a recognition that healthy forest ecosystems are vital to the well-being of Ontario communities”. However, it is telling that s. 68(3) sets out the provisions of the Manual, with clear emphasis on sustainability of the Crown forests:
68(3) The Forest Management Planning Manual shall contain provisions respecting,
(a) the contents and preparation of forest management plans, forest operations prescriptions and work schedules, including public involvement and decision-making processes;
(b) determinations of the sustainability of Crown forests for the purposes of this Act and the regulations in accordance with section 2;
(c) the requirement that management objectives in each forest management plan be compatible with the sustainability of the Crown forest; and
(d) the requirement that indicators be identified in each forest management plan to assess the effectiveness of activities in achieving management objectives and to assess the sustainability of the Crown forest.
[56] Moreover, the Manual makes it clear that the wood volume to be delivered to each mill is merely a forecast, explicitly stating that the approval of a Plan is not an agreement to make areas available for harvest to a particular licensee or an agreement to supply wood for a particular mill. The obligation to supply a particular mill is found in the harvesting licences, which are not incorporated by reference in the Plan, as the applicants argue. The reference to a harvesting licence in a Plan is for information purposes – to show the direction of the wood at the time the Plan is created – and to forecast the needs of the processing facilities.
[57] While the applicants place great emphasis on the words “any change” in the Manual, that term must be understood in context. The Plans are concerned primarily with forest operations – that is, how much wood is available to harvest and precisely where and how in the forest it is to be harvested. In this case, the redirection of the wood supply from one sawmill to another reflects decisions made outside the forest management planning process, which have no impact on the operational or strategic portions of the applicable Plans. The total planned volume of wood supplied under each of the Plans is still required and intended to be utilized. Forest operations proposed in the Plans will not change, nor will there be any impact on any Crown forest’s sustainability.
[58] Therefore, as the applicants have failed to show that amendments to the Plans are necessary because of the redirection of the wood supply, the Minister is not required to hold any public consultation about the restructuring.
Is a competitive process required for the transfer of a harvesting licence?
[59] The arrangement for the transfer of wood supply in the Chapleau area calls for Domtar to surrender its harvesting licence, and for Tembec to acquire it. The applicants argue that s. 24(2) of the Act requires that a competitive process occur before the Minister may issue a new licence, and such a process has not been initiated.
[60] Section 24 has no application here, as it applies only when the Minister decides to open a new area for harvesting (s. 24(1)). Section 35 is the governing section in this case, as it deals with the transfer, assignment, charge or other disposition of a forest resource licence. It provides that a transfer requires the written consent of the Minister, and the evidence indicates that such approval has been obtained. There is no requirement for public consultation before such a transfer.
[61] While the applicants also argued that s. 25, the supply agreement provision, was in issue, there are no supply agreements in issue, and therefore, s. 25 has no application to the facts of this case.
Does the Minister have a duty to enforce the Act?
[62] If the Minister is of the opinion that a forest operation is being conducted in a Crown forest in a manner that is contrary to the applicable Plan, the Minister is empowered to stop the forest operations (s. 55).
[63] Tembec concedes that it may be necessary to amend certain processing licences as a result of the restructuring in order to address the increased volume of wood being processed at certain mills. Domtar argues that there is no need for amendments, since its mills were operating below productive capacity. In any event, representatives of the two corporations have been engaged in discussions with the Ministry since January, 2005 about the need for licence amendments, and business plans have been submitted, as required by the O. Reg. 167/95, s. 19(2). If amendments are necessary, there is no requirement of public consultation.
[64] Therefore, as in an earlier case in which Local 1-2995 unsuccessfully sought to prevent a mill closure, the applicants have failed to show that the Minister has refused to exercise his discretionary powers with respect to enforcement (I.W.A./I.B.A. Canada, Local 2995 v. Ontario, [2002] O.J. No. 5202 (Ont. Div. Ct.)).
Conclusion
[65] Given that the applicants have failed to show that the Minister has refused to exercise a public duty, there is no basis to make an order of mandamus. Therefore, the application for judicial review is dismissed.
[66] If the parties are unable to agree with respect to costs, the respondents may make written submissions within 21 days of the release of this decision, with the applicants’ response to be made within 14 days thereafter.
Swinton J.
Then J.
Klowak J.
Released: January 27, 2006
COURT FILE NO.: 454/05
DATE: 20060127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, KLOWAK AND SWINTON JJ.
B E T W E E N:
ALAIN GUINDON IN HIS OWN RIGHT AND AS REPRESENTATIVE OF THE MEMBERS OF GORDON COSENS SURVIVAL GROUP; THE UNITED STEELWORKERS OF AMERICA, LOCAL 1-2995; AND GUY BOURGOIN AS THE REPRESENTATIVE OF ALL EMPLOYEES IN THE BARGAINING UNITS OF UNITED STEELWORKERS OF AMERICA, LOCAL 1-2955 AT THE TEMBEC INC. MILL IN OPASATIKA, THE TEMBEC INC. MILL IN KIRKLAND LAKE, THE DOMTAR INC. MILL IN CHAPLEAU AND LES INDUSTRIES (HEARST) TRI-CEPT INC. MILL IN HEARST
Applicants
- and -
THE MINISTER OF NATURAL RESOURCES, TEMBEC INC., and DOMTAR INC.
Respondents
REASONS FOR JUDGMENT
Swinton J.
Released: January 27, 2006