Western Canada Wilderness Committee v. Manitoba, (2013) 288 Man.R.(2d) 216 (CA)

• Judge: Steel, Beard and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 06, 2012
• Jurisdiction: Manitoba
• Citations: (2013), 288 Man.R.(2d) 216 (CA);2013 MBCA 11

Wilderness Com. v. Man. (2013), 288 Man.R.(2d) 216 (CA);

      564 W.A.C. 216

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. FE.021

Western Canada Wilderness Committee (applicant/appellant) v. The Government of Manitoba (respondent/respondent)

(AI 12-30-07771; 2013 MBCA 11)

Indexed As: Western Canada Wilderness Committee v. Manitoba

Manitoba Court of Appeal

Steel, Beard and Monnin, JJ.A.

January 31, 2013.

Summary:

Manitoba, through the issuance of several licences under several statutes, authorized a company to construct an all season road on Crown land, through Grass River Provincial Park, for the purpose of transporting logs from a location outside of the park to a rail bed on the other side of the park. To lay a foundation for the road, the company had to cut down a number of trees. The approval of the project coincided with a decision by Manitoba to prohibit logging in provincial parks (Parks Act, s. 7(6); Forest Act, s. 15.1). A public interest environmental citizen group moved for a declaration of the meaning of "logging" as used in s. 15.1(1) of the Forest Act.

The Manitoba Court of Queen's Bench, in a decision reported at 277 Man.R.(2d) 127, stated that the real issue was whether the authorization for the road's construction constituted a "commercial timber cutting right ... that authorizes logging on land in a provincial park" as used in the s. 15.1(1) prohibition and concluded that it did not. The public interest group appealed.

The Manitoba Court of Appeal dismissed the appeal. The court refused to order costs.

Courts - Topic 584

Judges - Duties - To determine issues - Manitoba authorized a company to construct a road on Crown land through a provincial park for the purpose of transporting logs from a location outside of the park to a rail bed on the other side of the park - To lay a foundation for the road, the company had to cut down a number of trees - The project's approval coincided with a prohibition by Manitoba against logging in provincial parks (Parks Act, s. 7(6); Forest Act, s. 15.1) - A public interest environmental citizen group moved for a declaration of whether the building of a road used primarily for logging related purposes constituted "logging" and, therefore, violated the logging ban as set out in the Provincial Parks and the Forest Act - The applications judge stated that the real issue was whether the authorization for the road's construction constituted a "commercial timber cutting right ... that authorizes logging on land in a provincial park" as used in the s. 15.1(1) prohibition and concluded that it did not - The public interest group appealed, asserting that the judge failed to answer the question put to him - The Manitoba Court of Appeal rejected the assertion - Courts had to deal with the true substance of an issue and should not be diverted by the form - This was especially true where a party was seeking a discretionary remedy such as a declaration - See paragraphs 23 and 24.

Crown - Topic 6878

Crown lands - National and provincial parks - Restriction or prohibition of activities within (incl. development) - Manitoba authorized a company to construct a road on Crown land through a provincial park for the purpose of transporting logs from a location outside of the park to a rail bed on the other side of the park - To lay a foundation for the road, the company had to cut down a number of trees - The project's approval coincided with a prohibition by Manitoba against logging in provincial parks (Parks Act, s. 7(6); Forest Act, s. 15.1) - A public interest environmental citizen group moved for a declaration of whether the building of a road used primarily for logging related purposes constituted "logging" and, therefore, violated the logging ban as set out in the Provincial Parks and the Forest Act - The applications judge stated that the real issue was whether the authorization for the road's construction constituted a "commercial timber cutting right ... that authorizes logging on land in a provincial park" as used in the s. 15.1(1) prohibition and concluded that it did not - The Manitoba Court of Appeal affirmed the decision - The court also agreed with the judge's conclusion that, even if the matter was treated as one of judicial review, the Minister's interpretation of his home statute was not only reasonable, it was correct - The primary and dominant purpose in granting timber cutting rights was the salvage of the cut timber from the road construction and not to authorize harvest for the purpose of commercial sale of the forest product - See paragraphs 23 to 53.

Forests and Forest Products - Topic 2406

Forest regulation - General - Crown lands (incl. conservation reserve) - [See Crown - Topic 6878 ].

Practice - Topic 8331.1

Costs - Appeals - Costs of appeal - Public interest - Manitoba authorized a company (Tolko) to construct a road on Crown land through a provincial park for the purpose of transporting logs from a location outside of the park to a rail bed on the other side of the park - To lay a foundation for the road, the company had to cut down a number of trees - The project's approval coincided with a prohibition by Manitoba against logging in provincial parks (Parks Act, s. 7(6); Forest Act, s. 15.1) - A public interest environmental citizen group moved for a declaration of whether the building of a road used primarily for logging related purposes constituted "logging" and, therefore, violated the logging ban as set out in the Provincial Parks and the Forest Act - The applications judge dismissed the motion - The public interest group appealed - The Manitoba Court of Appeal dismissed the appeal, but refused to award costs - The public interest group was a non-profit charitable organization that had a legitimate dispute as to the interpretation of legislation - Before accessing the courts, it contacted various officials attempting to determine the basis of their authority to issue the licences, permits and agreements to Tolko - It was given a variety of answers, none of which were relied on by Manitoba in its arguments before the court - The public interest group also acted responsibly in obtaining a legal opinion which supported its concerns, even though the court ultimately disagreed with that opinion - The determination of that issue was in the public interest to guide all concerned, including Manitoba and all interested stakeholders - See paragraph 54.

Words and Phrases

Logging - The Manitoba Court of Appeal considered the meaning of "logging" as used in s. 15.1(1) of the Forest Act, R.S.M. 1987, c. F-150; C.C.S.M., c. F-150 - See paragraphs 23 to 40.

Cases Noticed:

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 24].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 25].

Newfoundland and Labrador Wildlife Federation v. Newfoundland (Minister of Environment and Labour) et al. (2001), 201 Nfld. & P.E.I.R. 284; 605 A.P.R. 284 (T.D.), refd to. [para. 38].

Garwood v. Garwood Estate (2007), 225 Man.R.(2d) 30; 419 W.A.C. 30; 2007 MBCA 160, refd to. [para. 44].

Towers Ltd. v. Quinton's Cleaners Ltd. et al. (2009), 245 Man.R.(2d) 70; 466 W.A.C. 70; 2009 MBCA 81, refd to. [para. 44].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 48].

Springfield (Rural Municipality) v. Provincial Municipal Assessor (Man.) (1991), 76 Man.R.(2d) 72; 10 W.A.C. 72 (C.A.), leave to appeal refused (1992), 139 N.R. 400; 78 Man.R.(2d) 240; 16 W.A.C. 240, refd to. [para. 49].

Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al. (2012), 427 N.R. 110; 2012 FCA 40, refd to. [para. 51].

Sheldon Inwentash and Lynn Factor Charitable Foundation v. Minister of National Revenue (2012), 432 N.R. 338; 2012 FCA 136, refd to. [para. 51].

Statutes Noticed:

Forest Act, R.S.M. 1987, c. F-150; C.C.S.M., c. F-150, sect. 15.1(1) [para. 15].

Provincial Parks Act, S.M. 1993, c. 39; C.C.S.M., c. P-20, sect. 7(6) [para. 13].

Authors and Works Noticed:

Côté, Pierre-André, The Interpretation of Legislation in Canada (3rd Ed. 2000), p. 344 [para. 39].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 25].

Counsel:

D.G. Newman, Q.C., and T.C. Andres, for the appellant;

G.E. Hannon, I.J. Wiebe and J.R. Koch, for the respondent.

This appeal was heard on September 6, 2012, by Steel, Beard and Monnin, JJ.A., of the Manitoba Court of Appeal. Steel, J.A., delivered the following judgment for the court on January 31, 2013.