Forest Practices Code of BC Act

Ministry of Forests, Lands and Natural Resource Operations

PART 6 - COMPLIANCE AND ENFORCEMENT

DIVISION 4 - ADMINISTRATIVE REVIEW AND APPEALS

NOTE: This is not the current version of the Forest Practices Code. This document is available only as a reference for those sections repealed when the Forest and Range Practices Act came into force January 31, 2004.

For the current version click here

125.1 Definitions

125.1 In this Division:

"ministries" means the Ministry of Forests, the Ministry of Environment, Lands and Parks and the Ministry of Employment and Investment;

"review official" means

(a) for a review other than a review referred to in paragraph (b), a person employed in any of the ministries who is designated by name or title to be a review official by the deputy minister of that ministry, or

(b) for a review requested under section 128 (3) or (4), a person employed in the Ministry of Forests who is designated by name or title to be a review official by the deputy minister of the Ministry of Forests.

126. Determination not effective until proceedings concluded

126. (1) A determination that may be reviewed under section 127 does not become effective until the person who is the subject of the determination has no further right to have the determination reviewed or appealed.

(2) Despite subsection (1), the chief forester may order that a determination, other than a determination to levy a penalty under section 117 (1), 118 (4) or (5) or 119, is not stayed or is stayed subject to conditions, on being satisfied that a stay would be contrary to the public interest.

(3) Despite subsection (1), a determination is not stayed if the determination is made

(a) under section 123 (1), or

(b) under prescribed sections or for prescribed purposes.

127. Person affected by a determination may have it reviewed

127. (1) A person who is the subject of a determination under section 41, 82, 95 (2), 99 (2), 101 (2), 102 (3), 106 (1), 117 to 120, 123 (1), 162.1 (1), 162.2 (1) or (2) or 209.1 (3) may deliver, to the review official named in the notice of determination, a written request for a review of the determination. NEW

(2) The person must ensure that the request for review complies with the content requirements of the regulations.

(3) The person must deliver the request for review to the review official not later than 3 weeks after the date the notice of determination was given to the person.

(4) Before or after the time limit in subsection (3) expires, the review official may extend it.

(5) A person who does not deliver the request for review within the time specified loses the right to a review.

128. Forest Practices Board may have determination reviewed

128.(1) The board may request a review of

(a) a determination made under section 82, 95 (2) or 117 to 120,

(b) a failure to make a determination under section 82, 95 (2) or 117 to 120, and

(c) if the regulations provide and in accordance with the regulations, a determination under Division 5 of Part 3 with respect to approval of a forest development plan, range use plan or amendment to either of those plans.

(2) To obtain a review of a determination under subsection (1) (a), the board must deliver a request for review to the review official specified in the notice of determination, and to the person who is the subject of the determination, not later than 3 weeks after the date the notice was given to the person who is the subject of the determination.

(3) To obtain a review of a failure to make a determination under subsection (1) (b), the board must deliver a request for review to the review official referred to in paragraph (b) of the definition of "review official" in section 125.1, and to the person who would be subject to the determination, not later than 6 months after the occurrence of the event that would have been the subject of the determination.

(4) To obtain a review of a determination under subsection (1) (c), the board must deliver a request for review to the review official referred to in paragraph (b) of the definition of "review official" in section 125.1, and to the person who is the subject of the determination, not later than the prescribed period after the approval of the plan or amendment was given to the person who is the subject of the determination.

(5) The board must ensure that the request for review complies with the content requirements of the regulations.

(6) A time limit referred to in subsection (2) or (4) may be extended, before or after its expiry, by

(a) the regional manager, for the time limit in subsection (2), and

(b) the deputy minister of the Ministry of Forests, for the time limit in subsection (4).

(7) If the board does not deliver the request for review within the time specified, the board loses the right to a review.

129. Review

129. (1) A review official who receives a request for review must ensure that the review is conducted by one or more persons who

(a) are employed under the Public Service Act, and

(b) have not made the determination under review, or are not the persons who failed to make a determination, if the review is for that reason, or have not participated in an investigation on which the determination was based.

(2) The reviewer may decide the matter, based on one or more of the following:

(a) the request for review and the ministries' files;

(b) the request for review, the ministries' files and any other communication with persons the reviewer considers necessary to decide the matter, including communicating with the person or board requesting the review and with the person who made or failed to make the determination;

(3) After a request for review is delivered under section 127 or 128,

(a) the person who is the subject of the determination, or who would be the subject of a determination, if made,

(b) the board, if, under section 128, the board requested a review, and

must disclose the facts and law on which the person, board and government will rely at the review, if required by the regulations and in accordance with the regulations.

(4) If permitted by, and in accordance with, the regulations, the reviewer may refer to the commission a question of law raised in a review, if there is agreement to the referral by

(a) the person who is the subject of the determination or would be the subject of a determination, if made,

(b) the board, if, under section 128, the board requested the review, and

(5) The reviewer may make a decision

(a) confirming, varying or rescinding the determination under review,

(b) referring a determination or failure to make a determination back to the person who made it or failed to make it with or without directions, or

(6) The reviewer must give a written decision to the person who is the subject of the determination or, for a review of a failure to make a determination, the person who would be the subject of a determination, if made, and the board within

(a) the prescribed period after the request for review was recieved by the review official, or

(b) another period agreed to by

(i) the person who is the subject of the determination, or who would be the subject of a determination, if made,

(ii) the board, if, under section 128, the board requested a review, and

(iii) the government.

(7) Despite subsection (6) (a), if the reviewer determines that the request for review does not comply with the content requirements of the regulations, or that there was a failure to disclose facts and law required under subsection (3), the prescribed period under subsection (6) (a) does not begin until a request for review is received that does comply with those requirements, or the facts and law are disclosed as required under subsection (3).

130. Determinations that may be appealed

130. (1) Subject to subsection (3), a person who is the subject of a determination referred to in

(a) section 127, or

(b) section 129 (5) (c)

may appeal the determination to the commission.

(2) Subject to subsection (3), the board may appeal to the commission

(a) a determination referred to in section 128 (1) (a),

(b) a failure to make a determination referred to in section 128 (1) (b),

(d) any determination for which a review decision has been given under section 129 (6).

(3) No appeal may be made under subsection (1) or (2) unless the determination or failure to make a determination has first been reviewed under section 129.

(4) If a determination is varied by the reviewer, the appeal to the commission is from the determination as varied.

(5) If, as a result of a review of a failure to make a determination, the reviewer makes a determination, the appeal to the commission is from the determination made by the reviewer.

131. Appeal

131.(1) To initiate an appeal under section 130, the person referred to in section 130 (1) or the board, no later than 3 weeks after receiving the review decision under section 129 (6), must deliver to the commission a notice of appeal and

(a) in the case of a determination referred to in section 130 (1) (a) or 130 (2) (a), (c) or (d), enclose a copy of the determination, and

(b) in the case of the determination referred to in section 130 (1) (b) or (2) (b), enclose a copy of the reviewer's determination.

(2) If the appeal is from a determination as varied under section 129, the person or board bringing the appeal must include a copy of the review decision with the notice of appeal given under subsection (1).

(3) The person or board bringing the appeal must ensure the notice of appeal given under subsection (1) complies with the content requirements of the regulations.

(4) Before or after the time limit in subsection (1) expires, the chair or a member of the commission may extend it.

(5) If the person or the board does not deliver the notice of appeal within the time specified, the person or board loses the right to an appeal.

(6) On receipt of the notice of appeal, the commission must, in accordance with the regulations, give a copy of the notice of appeal to the ministers and

(a) to the board, if the notice was delivered

(i) by the person who is the subject of the determination, or

(ii) for an appeal of a failure to make a determination, by the person who would be the subject of a determination, if made,

(b) to the person who is the subject of the determination, if the notice was delivered by the board, or

(c) for an appeal of a failure to make a determination, to the person who would be the subject of a determination, if made, if the board delivered the notice.

(7) The government, the board, if it so requests, and the person who is the subject of the determination or would be the subject of a determination, if made, are parties to the appeal.

(8) At any stage of an appeal the commission or a member of it may direct that a person who may be affected by the appeal be added as a party to the appeal.

(9) After a notice of appeal is delivered under subsection (1), the parties must disclose the facts and law on which they will rely at the appeal, if required by the regulations and in accordance with the regulations.

(10) The commission, after receiving a notice of appeal, must

(a) promptly give the parties to an appeal a hearing, or

(b) hold a hearing within the prescribed period, if any.

(11) Despite subsection (10), if the commission determines that the notice of appeal does not comply with the content requirements of the regulations, or that there was a failure to disclose facts or law under subsection (9) or (14), the commission need not hold a hearing within the prescribed period referred to in subsection (10), but must hold a hearing within the prescribed period after a notice of appeal that does comply with the content requirements of the regulations is delivered to the commission, or the facts and law are disclosed as required under subsection (9) or (14).

(12) A party may

(a) be represented by counsel,

(b) present evidence, including but not limited to evidence that was not presented in the review under section 129,

(d) make submissions as to facts, law and jurisdiction.

(13) The commission may invite or permit a person to take part in a hearing as an intervenor.

(14) An intervenor may take part in a hearing to the extent permitted by the commission and must disclose the facts and law on which the intervenor will rely at the appeal, if required by the regulations and in accordance with the regulations.

(15) A person who gives oral evidence may be questioned by the commission or the parties to the appeal.

131.1 Referral of questions of law

131.1 A hearing regarding a question of law referred under section 129 (4) must be conducted in accordance with the regulations.

132. Order for written submissions

132. (1) The commission or a member of it may order the parties to deliver written submissions.

(2) If the party that initiated the appeal fails to deliver a written submission ordered under subsection (1) within the time specified in the order, the commission may dismiss the appeal.

(3) The commission must ensure that every party to the appeal has the opportunity to review written submissions from the other parties and an opportunity to rebut the written submissions.

133. Interim orders

133. The commission or a member of it may make an interim order in an appeal.

134. Open hearings

134. Hearings of the commission must be open to the public.

135. Witnesses

135. The commission or a member of it has the same power as the Supreme Court has for the trial of civil actions

(a) to summon and enforce the attendance of witnesses,

(b) to compel witnesses to give evidence on oath or in any other manner, and

136. Contempt

136. The failure or refusal of a person

(a) to attend,

(b) to take an oath,

(d) to produce the records or things in his or her custody or possession,

makes the person, on application to the Supreme Court, liable to be committed for contempt as if in breach of an order or judgment of the Supreme Court.

137. Evidence

137. (1) The commission may admit as evidence in an appeal, whether or not given or proven under oath or admissible as evidence in a court,

(a) any oral testimony, or

(b) any record or other thing

relevant to the subject matter of the appeal and may act on the evidence.

(2) Nothing is admissible in evidence before the commission or a member of it that is inadmissible in a court by reason of a privilege under the law of evidence.

(3) Subsection (1) does not override an Act expressly limiting the extent to or purposes for which evidence may be admitted or used in any proceeding.

(4) The commission may retain, call and hear an expert witness.

138. Powers of commission

138. (1) On an appeal of a determination or of the confirmation, variance or rescission of a determination, the commission may consider the findings of

(a) the person who made the determination that is being appealed, or

(b) the reviewer.

(2) On the appeal, the commission may

(a) confirm, vary or rescind the determination appealed from, or

(b) refer the matter with or without directions back to the person

(i) who made the initial determination, or

(ii) in the case of a determination made under section 129 (5) (c), the reviewer who made the determination.

(3) On considering a question of law referred to the commission under section 129 (4), the commission may decide the question of law and the decision is binding

(a) on the reviewer for the purposes of the review in question, and

(b) on the commission for the purposes of an appeal concerning the determination or the failure to make a determination that was subject of the review in question.

(4) The commission may order that a party or intervenor pay another party or intervenor any or all of the actual costs in respect of the appeal.

(5) After filing in the court registry, an order under subsection (4) has the same effect as an order of the court for the recovery of a debt in the amount stated in the order against the person named in it, and all proceedings may be taken as if it were an order of the court.

139. Decision of commission

139. (1) The commission must make a decision promptly after the hearing, and give copies of the decision to the ministers, the parties and any intervenors.

(2) On the request of any of the ministers or a party, the commission must provide written reasons for the decision.

(3) The commission must make a decision within the prescribed period, if any.

140. Order for compliance

140. If it appears that a person has failed to comply with an order or decision of the commission or a member of it, the commission or a party may apply to the Supreme Court for an order

(a) directing the person to comply with the order or decision, and

(b) directing the directors and officers of the person to cause the person to comply with the order or decision.

141. Appeal to court

141. (1) The minister or a party to the appeal, within 3 weeks after being served with the decision of the commission, may appeal the decision of the commission to the Supreme Court on a question of law or jurisdiction.

(2) On an appeal under subsection (1), a judge of the Supreme Court, on terms he or she considers appropriate, may order that the decision or order of the commission be stayed in whole or in part.

(3) An appeal from a decision of the Supreme Court lies to the Court of Appeal with leave of a justice of the Court of Appeal.

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