Environmental Law Alert
Sunshine Coast Logging: Win or Loss?
In our last newsletter we reported that, on August 11, the Sunshine Coast Regional District (SCRD) made a precedent-setting order under the
Health Act. The order restricted logging by Western Forest Products (WFP) in the Chapman Creek Watershed, due to concerns that the logging would impact the region’s drinking water. On October 9, BC Supreme Court Justice Bruce Butler overturned the SCRD’s order. In the media, the outcome was largely portrayed as a failure for the environmental movement.
But let us be clear: this was not a loss for the environment nor for the powers of local government. While West Coast would, of course, rather have seen the SCRD’s order upheld, it is probably unrealistic to hope that a never-before tested legal tool would be fully successful on its first attempt. Although WFP did get most (although not all) of its logging done in the end, the SCRD and the BC Supreme Court (BCSC) have both affirmed that local governments have an important role to play in regulating logging in watersheds that supply drinking water.
Until the SCRD’s order and the BCSC decision, the conventionally accepted legal wisdom was that while local governments provide drinking water, they have no authority to protect it, by, for example, controlling logging. It was the provincial government that regulated logging, as well as other lucrative royalty-paying businesses (such as mining, oil and gas development, etc.). BC’s forestry laws, for example, declare that logging companies need not concern themselves with public health if doing so would “unduly restrict the supply of timber…”
Far from a loss, then, Justice Butler’s decision in
Western Forest Products v. Sunshine Coast Regional District is a wake-up call for the forest industry and for the provincial government; if they develop logging plans that put public drinking water at risk, local governments can and will intervene.
Justice Butler did find that in this case the SCRD did not present enough evidence to prove that the logging was a threat to public health. Justice Butler took a narrow view of the evidence required to prove a health hazard, holding that in cases of this type only experts are well-placed to assess these risks. He ruled that the SCRD acted unreasonably in rejecting the views of several experts, in favour of evidence of apparently unqualified members of the public and videos made without the benefit of expert interpretation.
Justice Butler’s approach does pose certain challenges for local governments seeking to use the
Health Act. For this reason, Daniel Bouman, Executive Director of the Sunshine Coast Conservation Association (SCCA), and five other residents of the Sunshine Coast, are appealing his decision to the BC Court of Appeal. For updates on this appeal, visit the
SCCA website (www.thescca.org).
However, even without the appeal, Justice Butler accepted that local governments do have the power to investigate and address health hazards. His judgment opens new doors for members of the public and local governments concerned not just with drinking water protection, but also air pollution, pesticides and other situations that threaten public health.
Future local governments using the Health Act power will benefit from the SCRD’s experience; they will hire their own experts to help them assess evidence and determine whether there is a health hazard occurring. The next time a local government makes an order under the
Health Act, it will not be so easily appealed. Logging companies and the provincial government should take notice: local governments are watching them.
West Coast has prepared a backgrounder for local governments and members of the public on what powers local governments have under the
Health Act. It can be accessed at
www.wcel.org/wcelpub/2007/14262.pdf.
– Andrew Gage
Contents:
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