IN THE SUPREME COURT OF BRITISH COLUMBIA

Transcription

1 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Between: And: Chingee v. British Columbia, 2016 BCSC 760 Harry Chingee Date: Docket: Registry: Prince George Plaintiff (1) Her Majesty the Queen in Right of the Province of British Columbia; (2) Canadian Forest Products Ltd.; (3) Conifex Mackenzie Forest Products Inc.; (4) Lakeland Mills Ltd.; (5) Mackenzie Fiber Management Corp.; (6) Winton Global Lumber Ltd.; (7) BC Ltd.; (8) BC Ltd.; (9) Dig Deep Ventures Ltd.; (10) Dollar Saver Lumber Ltd.; (11) Duz Cho Logging Ltd.; (12) EKO Logging Ltd.; (13) JEM Industries Inc.; (14) J.V. Logging Ltd.; (15) M.G. Logging and Sons Ltd.; (16) Chief and Council of McLeod Lake Indian Band and McLeod Lake Indian Band; (17) MJM Forestry Ltd.; (18) SDN Forest Ventures Inc.; (19) Treeco Timber Corp.; (20) Timberspan Wood Products Inc.; (21) Wayne Telford; (22) Loris Bedetti; and (23) Arnold Bremner Before: The Honourable Mr. Justice Verhoeven Reasons for Judgment Defendants Counsel for Plaintiff: Counsel for Defendant Her Majesty the Queen in right of the Province of British Columbia: Counsel for Defendant B.C. Ltd.: Place and Dates of Trial/Hearing: Place and Date of Judgment: J.M. Duncan M.K. Schmold J.D. Eastwood, Q.C. M.S. Oulton Prince George, B.C. February 16-19, 2016 Prince George, B.C. April 28, 2016

2 Chingee v. British Columbia Page 2 I. INTRODUCTION [1] The Province of B.C. and one of the other defendants, B.C. Ltd. ( 813 ) apply to strike out and dismiss the plaintiff s claims under Rule 9-5 (1)(a) or (d) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules], or alternatively to dismiss the plaintiff s claims under Rule 9-6 (summary judgment) of the Rules. [2] The plaintiff, Harry Chingee holds a guiding territory certificate issued by the Province under s. 59 of the Wildlife Act, R.S.B.C c He also holds or has an interest in two registered traplines issued by the Province under s. 42 of the Wildlife Act. In general terms, he complains of the effect of the logging activities on the lands to which the guiding territory certificate or the traplines relate, authorized by the Province and carried out by the other defendants. [3] The defendants other than the Province and the McLeod Lake Indian Band are all logging companies who carried out their logging activities pursuant to timber sales licences ( TSLs ) issued by the Province under the Forest Act, R.S.B.C c [4] The plaintiff claims damages. As pleaded the claims are based upon private nuisance, negligence, breach of contract, and breach of fiduciary duty. During the hearing the plaintiff abandoned a claim for breach of contract against the Province. [5] 813 and four other forestry defendants consent to the Province s application. These four other forestry defendants also consent to the application of 813. The remaining forestry defendants have not formally taken a position, but it can be safely assumed that they are awaiting the outcome of these applications. Among the forestry defendants only 813 adduced evidence for the hearing of the applications and actively participated in the hearing. [6] No trial date has been set. The parties have chosen to first proceed with the hearing of these applications.

3 Chingee v. British Columbia Page 3 II. BACKGROUND [7] The claim was originally filed June 13, The plaintiff sued 22 defendants other than the Province. During the hearing of these applications, I was informed by counsel for the plaintiff that the plaintiff s intention was to claim against everyone who had carried out logging activities on the lands covered by the guiding territory certificate or the traplines during the two years preceding the commencement of the action. The two years is based upon the Limitation Act, S.B.C c. 13, which in general provides for a two year limitation period to commence an action. [8] The plaintiff refers to the other defendants as Defendant Foresters in his pleadings. I will refer to them as the forestry defendants or the logging companies. [9] The guiding territory certificate relates to an area of about 196,000 hectares of land surrounding McLeod Lake and northeast of McLeod Lake, in the vicinity of the town of Mackenzie. Registered trapline 0716T011 (described in the Amended Notice of Civil Claim ( ANOCC ) as trapline no. 1 ) relates to lands that surround McLeod Lake. Registered trapline 0723T006 (described as trapline no. 2 ) relates to lands lying east of McLeod Lake, adjacent to trapline no. 1. [10] The area of the traplines is not in evidence. The maps in evidence show that they encompass large areas but they are substantially smaller than the area of the guiding territory. [11] The ANOCC refers (para. 40) to 20 listed TSLs logged by the defendants over various dates. The majority of the TSLs are alleged to have been logged between March 17, 2010 at the earliest and June 25, 2013 at the latest. The dates are less specific in several cases: para. 40 s, t, u, and v.1. What is apparent is that in most and perhaps all cases the defendants concluded their logging activities before the plaintiff commenced this action, and that following the completion of their activities they have had no further involvement with the lands. [12] In the ANOCC, the plaintiff alleges that 813 carried out its logging activities pursuant to TSL A84919 between October 21, 2011 and October 11, 2012.

4 Chingee v. British Columbia Page 4 [13] The evidence of 813 is that TSL A84919 covers two blocks, totalling about 77.3 hectares in gross area. Its Response to Civil Claim states that it harvested timber pursuant to TSL A84919 starting in or around July 2012 and concluded its activities in or about late September The evidence on the application shows that it advised the Ministry of Forests that it had completed its obligations under the TSL on November 29, 2012, when it requested the return of its security deposit. [14] TSL A84919 provides that 813 as Licensee must not unreasonably interfere with the exercise of the following rights of use or occupation and listed two traplines, one of which is trapline no. 2, and the plaintiff s guiding territory certificate, No , and provided that the Licensee must notify that person or each of those persons at least 14 days before commencing activities on the cutting authority area. 813 s affidavit indicates that the notice to the plaintiff may possibly have been less than 14 days, as the letter to the plaintiff is dated July 11, 2012 and advised him that the anticipated start date will be during the week of July 16, The actual start date is not in evidence. The plaintiff does not plead any facts describing any consequence to the possible abbreviated notice. [15] There is no pleading or evidence that Mr. Chingee seriously objected to the logging activities carried out by 813 or any other forestry defendant at any time before or during those activities. In short, his complaint is made after the fact and concerns the overall consequences of the logging activities upon his interests. [16] On August 15, 2014, the plaintiff filed the ANOCC removing claims against eight forestry defendants, and recasting the claims somewhat. I was advised that the plaintiff had discontinued against these eight defendants upon being satisfied that they did not carry on logging activities on the relevant lands during the relevant time frame. Fourteen forestry defendants remain in the ANOCC. He added claims for breach of contract and breach of fiduciary duty against the Province. [17] On the fourth and final day of the hearing of these applications, after the applicants had completed their submissions, the plaintiff presented a draft proposed further amended NOCC [the Proposed AANOCC ] which removes claims against

5 Chingee v. British Columbia Page 5 two further forestry defendants. No application for leave to file the Proposed AANOCC has yet been filed. I understand that if the claims are not dismissed the plaintiff would seek leave to file the Proposed AANOCC. [18] While the original NOCC included defendants whose logging activities were conducted under other forms of Crown authorizations, all of the remaining forestry defendants conducted their logging activities pursuant to TSLs. [19] In the ANOCC, the plaintiff asserts breach of Aboriginal rights on behalf of the McLeod Lake Indian Band. However Chief Derek Orr of the McLeod Lake Indian Band has sworn an affidavit in these proceedings in which he denies that the traplines are held in trust for the Band, and denies that the plaintiff has authority to pursue claims or act on behalf of the Band. [20] In the Proposed AANOCC the plaintiff proposes to withdraw the assertion that trapline No. 1 is held in part in trust for the McLeod Lake Indian Band or that the Band has assigned Aboriginal rights relating to trapline No. 1 to him. On the hearing of the application, plaintiff s counsel indicated that these proposed amendments are prompted by the affidavit evidence of Chief Derek Orr. However the plaintiff now proposes to claim the benefit of Aboriginal rights to all of the lands covered by the guiding territory certificate or the traplines, either on his own behalf or on behalf of the Band. [21] Mr. Chingee s guiding territory certificate was issued July 14, 2009 and expires July 14, [22] The plaintiff s pleadings in the ANOCC are inconsistent as to ownership of the traplines. He pleads that he is the holder of trapline no. 1. He pleads in the alternative that he holds trapline no. 1 in trust for the McLeod Lake Indian Band and Frederick Inyallie. He says he is the holder of trapline no. 2 with Wesley Chingee, or alternatively he holds trapline no. 2 in trust for Jim Chingee and Wesley Chingee. The trapline no. 1 registration certificate in evidence was approved by a Regional Manager under the Wildlife Act on June 26, 1996 and was issued to Frederick

6 Chingee v. British Columbia Page 6 Inyallie and Harry Chingee representing the McLeod Lake Indian Band. The trapline no. 2 registration was approved June 17, 1998 and was issued to Harry Chingee, Jim Chingee, and Wesley Chingee. [23] For present purposes, it is sufficient for me to assume that the plaintiff has a beneficial ownership interest in one or both of the traplines. III. THE AMENDED NOTICE OF CIVIL CLAIM [24] The ANOCC is attached as Schedule A to these reasons. I have found it necessary to do so as it is not easy to discern the essential nature of the plaintiff s claims. The drafter seems to have made a concerted effort to render the pleadings broad, vague, and uncertain, through the use of words and phrases such as including but not limited to, in the alternative, and/or, or, and other, and phrases containing synonymous terms such as accommodation, consultation, and consideration. These types of devices can be useful and convenient in pleadings, but here they are carried too far. The Proposed AANOCC extends this practice. [25] The Proposed AANOCC is attached as Schedule B to these reasons. [26] As it stands, the ANOCC does not satisfy the basic purposes of pleadings. It does not clearly define the issues of fact and law to be determined by the court. [27] The plaintiff concedes that the lands encompassed by the guiding territory certificate and the traplines (the Lands, as defined in the ANOCC) are owned by the Province (ANOCC para. 29). He argues that the guiding territory certificate and the traplines constitute interests in land as profits à prendre or some other kind of property right (paras. 36, 37, 37.1). (The references to contractual rights can be ignored as the plaintiff has abandoned such claims.) [28] As I perceive it, the gist of the claim is centered on paras. 38, 43.1, 45, 46, 47, 52, and 57. The plaintiff contends that the logging activities carried out by the forestry defendants have reduced the wildlife on the Lands, compromised the vitality of the forest on the Lands and reduced the amount of forested area on the

7 Chingee v. British Columbia Page 7 Lands (para. 43.1). The logging activities have interfered with and injured the plaintiff s business or property interests (paras. 45, 46) which has caused loss and damage (para. 47). The loss and damage is not described with any precision but paras. 38, 52, 57, taken together, indicate that the damages claimed would relate to either the value of the claimed property interests of the plaintiff or possibly to loss of business income. (Paragraph 60, now abandoned, refers to loss of income.) [29] No specific facts are pleaded as to any particular loss or damage claimed. [30] The ANOCC is sprinkled with references to duties to accommodate, consult, and consider the plaintiff s interests: (paras. 41, 40.1, 42, 43, 44.1, 66.) However, these vague allegations are unconnected to any particular consequence or loss. Therefore as I have said the gist of the claim appears to relate to the effects of the timber harvesting activities themselves upon the economic interests the plaintiff, not the failure to consult, etc., standing alone. [31] Several aspects of the claims as pleaded are noteworthy: a) the plaintiff concedes that the Crown validly granted the TSLs pursuant to statutory authority and that the forestry defendants harvested the timber pursuant to TSLs validly granted to them. These admissions were made in paras. 41 and 43 of the original NOCC. In its application the Province challenged the apparent withdrawal of these admissions as reflected in paras. 41 and 43 of the ANOCC. In its filed Application Response the plaintiff reiterated its concessions. The plaintiff s draft Proposed AANOCC also reflects these concessions. b) Identical claims are made against every forestry entity who carried out harvesting activities on any part of the relevant land in the relevant time frame. There is no allegation of any specific actions of failures to act on the part of any forestry defendant or by the Province. There is no pleading specific to any forestry defendant.

8 Chingee v. British Columbia Page 8 c) There is no allegation that any forestry defendant breached any term of their TSLs or any statute or regulation; d) While is not so stated, it appears the plaintiff claims in nuisance against the Province as a party to the nuisance tort, in having permitted the forestry defendants to carry out timber harvesting activities: para. 42. [32] The applicants take the position that the court must deal with their applications on the basis of the existing pleadings. No doubt that is correct. Nonetheless, the Proposed AANOCC can be used as an indication of the nature of amendments that the plaintiff could potentially be permitted to make. IV. APPLICATIONS TO STRIKE THE ANOCC A. Legal Principles Striking Pleadings [33] I adopt my comments in Lessor v. Toll Estate, 2015 BCSC 427: [14] As noted, Ms. Tyler applies pursuant to Rule 9-5(1)(a) and (d) for an order striking the pleadings on the basis that they fail to disclose a reasonable cause of action, or, alternatively, that they constitute an abuse of process. On an application under Rule 9-5(1)(a), no evidence is admissible: Rule 9-5(2). [15] Pleadings must clearly define the issues of fact and law. Rule 3-1(2) requires that a notice of civil claim must: (2) (a) set out a concise statement of the material facts giving rise to the claim; (b) set out the relief sought by the plaintiff against each named defendant; (c) set out a concise summary of the legal basis for the relief sought; [16] I adopt my comments in Stoneman v. Denman Island Trust Committee, 2010 BCSC 636 (CanLII) concerning the purpose of pleadings: 16 The purpose of pleadings is to clearly define the issues of fact and law to be determined by the court. The issues must be defined for each cause of action relied upon by the plaintiff: Canadian Bar Assn. v. British Columbia, 2008 BCCA 92 (CanLII) at paras , citing Homalco Indian Band v. British Columbia, [1998] B.C.J. No (S.C.); and Keene v. British Columbia (Ministry of Children and Family Development), 2003 BCSC 1544 (CanLII).

9 Chingee v. British Columbia Page 9 17 In Homalco, K. Smith J. stated at para. 5: The ultimate function of pleadings is to clearly define the issues of fact and law to be determined by the court. The issues must be defined for each cause of action relied upon by the plaintiff. That process is begun by the plaintiff stating, for each cause, the material facts, that is, those facts necessary for the purpose of formulating a complete cause of action. [17] Chief Justice McLachlin emphasized in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII) [Imperial] that the plaintiff must clearly plead the facts upon which it relies in making its claim: [22] A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted. [emphasis added] [18] As observed by Justice Frankel in British Columbia (Director of Civil Forfeiture) v. Flynn, 2013 BCCA 91 (CanLII) at para. 10, the test for striking pleadings because they fail to disclose a reasonable cause of action is wellknown. In Imperial, McLachlin C.J.C. enunciated the test in these terms: [17] The parties agree on the test applicable on a motion to strike for not disclosing a reasonable cause of action under r. 19(24)(a) [now Rule 9-5(1)(a)] of the B.C. Supreme Court Rules. This Court has reiterated the test on many occasions. A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII), [2003] 3 S.C.R. 263, at para. 15; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial [19] In Cimaco International Sales Inc. v. British Columbia, 2010 BCCA 342 (CanLII) at para. 40, Justice Kirkpatrick provided the following guidelines for determining whether it is plain and obvious that a claim will fail: (1) whether there is a question fit to be tried regardless of complexity or novelty; (2) whether the outcome of the claim at trial is beyond a reasonable doubt; (3) whether serious questions of law or questions of general importance are raised or if facts should be known before rights are decided; (4) whether the pleadings might be amended; and (5) whether there is an element of abuse of process.

10 Chingee v. British Columbia Page 10 [20] A successful application under Rule 9-5(1)(a) can lead to an order striking the pleadings with leave to amend, or an order dismissing the claim outright. If the defect in the pleading may be cured by amendment, the court may grant leave to amend: Henry v. British Columbia (Attorney General), 2012 BCSC 1401 (CanLII) at para. 38. If, however, the claim is without legal foundation regardless of how it is pleaded the court may dismiss the claim: Henry at para. 38; Extra Gift Exchange Inc. v. Ernest & Twins Ventures (PP) Ltd., 2007 BCSC 426 (CanLII) at para. 22. B. The Claims in Nuisance [34] The tort of private nuisance consists of two elements. The plaintiff must establish a substantial, (meaning non-trivial) interference with the plaintiff s use or enjoyment of the plaintiff s land, and that the interference is unreasonable in all of the circumstances: Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation) 2013 SCC 13, at paras. 19, 24, 28 [Antrim]. [35] The reasonableness of the interference must be assessed in light of all of the relevant circumstances: Antrim, para. 25. Traditionally, the courts have assessed whether the interference is unreasonable by balancing the gravity of the harm against the utility of the defendant's conduct in all of the circumstances: Antrim, para. 26. While the focus of the reasonableness analysis is on the character and extent of the interference with the claimant's land (para. 28), the nature of the defendant s conduct is not irrelevant. Where the defendant can establish that his or her conduct was reasonable, that can be a relevant consideration, particularly in cases where a claim is brought against a public authority. A finding of reasonable conduct will not, however, necessarily preclude a finding of liability (paras. 29, 30). [36] In Antrim, the plaintiff asserted claims based upon the tort of private nuisance when highway construction permanently harmed the plaintiff s truck stop business. The Supreme Court of Canada held that in the case of activities carried out by a public authority for the greater public good, as in other private nuisance cases, the reasonableness of the interference must be assessed in light of all of the relevant circumstances, however the focus of that balancing exercise is on whether the interference is such that it would be unreasonable in all of the circumstances to require the claimant to suffer it without compensation (paras. 25, 38, 40).

11 Chingee v. British Columbia Page 11 a) Does the plaintiff have an interest in land to support a claim in private nuisance? [37] The plaintiff does not claim as owner of the lands. His asserted interests in the land are very limited. He claims as a licensee with certain rights specified by statute. His primary argument is that as holder of the guiding territory certificate and the trapline registrations, he holds interests in the lands that constitute profits à prendre. He also makes other, secondary and vague assertions as to interests in land, unsupported by any specific facts. At paras. 37, 37.1and 46 he refers to other property rights of the Plaintiff and other rights to use and occupy the Lands. In the Proposed AANOCC, he refers in para to substantial occupancy and in paras. 62, 63 and 64 he refers to the rights of the McLeod Lake Indian Band in relation to the Lands. [38] As noted by the Court of Appeal in Thomas v. Rio Tinto, 2015 BCCA 154, [Thomas] there is some uncertainty in Canadian law as to what occupiers of land, other than owners, may pursue claims in private nuisance (para. 38). [39] The Crown argues that neither the guiding territory certificate nor the registered traplines qualify as profits à prendre. [40] A profit à prendre is a right to enter on the land of another person and take some profit of the soil such as minerals, oil, stones, trees, turf, fish or game, for the use of the owner of the right. : British Columbia v. Tener, [1985] 1 S.C.R. 533, paras [41] A guiding territory certificate gives the holder exclusive control over the privilege of guiding hunters in the area covered by the certificate: Wildlife Act, section 59(3). However a further licence, a guide outfitter licence, is required to act as a guide for hunters of game: Wildlife Act, ss. 48 and 51. In effect, a guiding territory certificate, coupled with a valid and subsisting guide outfitter s licence, confers the right to conduct a guiding business over a specified area of land during the term of the certificate. Neither the guiding territory certificate nor the guide

12 Chingee v. British Columbia Page 12 outfitter s licence grants the right to hunt for game or to retain any game that has been killed. For those purposes a hunting licence is required: Wildlife Act, s. 11. [42] The Crown relies on Stafford v. British Columbia, [1996] B.C.J. No (S.C.) at para. 93 for the proposition that a Crown grant of guiding privileges by way of a guiding territory certificate is not property, or an interest in land. The plaintiff argues that this proposition is incorrect. [43] While the proposition appears quite correct to me, it is not necessary that I decide that question. In the appellate chambers decision in Bolton v. Forest Pest Management Institute (1985), 21 D.L.R. (4 th ) 242, at para. 21 [Bolton], Macfarlane J.A. stated that while the holder of a trapline registration has no proprietary rights in wildlife, the holder has a right to take wildlife from the lands covered by the registration, and that the registered trapline falls within the definition of a profit à prendre. The Crown argues that in that decision the court misconstrued the statutory privileges conveyed by a registered trapline under the Wildlife Act, and that a registered trapline is not a profit à prendre. However, the Crown and 813 concede that based upon that decision it is at least arguable that the registered traplines constitute profits à prendre. I note that Bolton was cited for this proposition by the Court of Appeal in Thomas at para. 55. [44] As noted, the plaintiff s pleadings as to the nature of the interests he holds are unclear, and inconsistent. Paragraphs 27 and 28 of the ANOCC assert that the plaintiff holds the registered traplines for his own benefit. Paragraphs 27.1 and 28.1 assert, inconsistently, that he holds the registered traplines in trust for others. This is a vital distinction given the apparent nature of plaintiff s claims for loss and damage. Moreover, as noted, beyond the guiding territory certificate and the registered traplines he vaguely asserts other property rights. [45] It is doubtful whether the plaintiff has pleaded facts supporting this element of the claim in nuisance, due in part to the lack of clarity of the pleadings.

13 Chingee v. British Columbia Page 13 [46] Nevertheless, I conclude that, at least, based upon the registered traplines, if held as principal, to at least some extent, it is arguable that the plaintiff holds an interest in land sufficient to advance claims in nuisance. b) Could the plaintiff establish an unreasonable interference in all of the circumstances? [47] In my view, it is plain and obvious that the plaintiff cannot establish the second element of the nuisance claim: that the interference he complains of is unreasonable in all of the circumstances. [48] Against the backdrop of all of the circumstances, two key considerations combine to lead to this conclusion: the nature of the claims as pleaded, and the nature of the interests of the plaintiff in the context of the statutory scheme. I will first address this second consideration. i. The nature of the interests of the plaintiff in the context of the statutory scheme [49] The licences under the Wildlife Act upon which the plaintiff bases his claims are part of a sophisticated, complex, integrated scheme, designed to facilitate, accommodate and balance various conflicting objectives of the Province and the many users of the forested Crown lands in the Province of B.C. Both the objectives and the processes for achieving them are prescribed in detail in the relevant statutes and regulations. The TSLs are also a part of this larger scheme. [50] The manner in which the government regulates timber harvesting activities in the context of competing considerations and interests is set out in detail in the legislative scheme. [51] The Ministry of Forest and Range Act, R.S.B.C. 1996, c. 300 continues the Ministry of Forests and Range. The current name of the Ministry is Ministry of Forests Lands and Natural Resource Operations ( MFLNRO ). [52] Section 4 of the Ministry of Forests and Range Act, R.S.B.C c. 300, sets out the Crown s forest and range management objectives as follows:

14 Chingee v. British Columbia Page 14 The purposes and functions of the ministry are, under the direction of the minister, to do the following: (a) encourage maximum productivity of the forest and range resources in British Columbia; (b) manage, protect and conserve the forest and range resources of the government, having regard to the immediate and long term economic and social benefits they may confer on British Columbia; (c) plan the use of the forest and range resources of the government, so that the production of timber and forage, the harvesting of timber, the grazing of livestock and the realization of fisheries, wildlife, water, outdoor recreation and other natural resource values are coordinated and integrated, in consultation and cooperation with other ministries and agencies of the government and with the private sector; (d) encourage a vigorous, efficient and world competitive (i) (ii) timber processing industry, and ranching sector in British Columbia; (e) assert the financial interest of the government in its forest and range resources in a systematic and equitable manner. [53] As can be seen, realization of wildlife values is one of many considerations among the purposes and functions of the Ministry described in its legislation. Other objectives relate to maximizing forest productivity, timber harvesting, and recognizing the financial interests of the government. [54] Other legislation relevant to forest, range and wildlife matters includes the Wildlife Act, the Fisheries Act (BC), the Forest Act, the Range Act, the Forests Range and Practices Act, S.B.C. 2002, c. 69 [FRPA] and the Water Act. [55] Statutes dealing with the same subject matter should be interpreted in a manner which presumes harmony, coherence, and consistency between them: Bell Express Vu Limited Partnership v. Rex, 2002 SCC 42, at para. 27. [56] In its Notice of Application, the Province provides the following overview of the legislative scheme: i. Allocation and Apportionment of Timber Harvesting Rights 28. The main legislation governing the harvesting of Crown timber is the Forest Act. Under section 8 of that Act, the chief forester must determine an allowable annual cut for each timber supply area ( TSA ) in the province at least once every 10 years, subject to some exceptions. In determining the

15 Chingee v. British Columbia Page 15 allowable annual cut the chief forester must consider, among other things, the sustainability of timber production in the area, the implications for British Columbia of different rates of timber harvesting in an area, and the economic and social objectives of the government for the area, the region and British Columbia. 29. At this high level, the legislation is already contemplating the competing uses to which Crown land may be put, and the effects different rates of timber harvesting may have within the TSA and more broadly. The effects may include effects on wildlife. 30. Under section 10 of the Forest Act, the minister may specify a portion of the allowable annual cut for Crown land in a TSA to be available for granting under a form of agreement referred to in section 12 of the Act. The apportionment determines the extent of harvesting expected to be undertaken under each form of agreement. 31. Under section 12 of the Forest Act, various forms of tenure may be granted. Major licences may subsist for up to 25 years and require the licensee to carry out most of the forest planning work which precedes harvesting. 32. TSLs, on the other hand, subsist for up to 4 years and the forest planning work is done by BCTS, an administrative division of MFLNRO. The licences are usually acquired by competitive tender by BCTS Enterprise registrants, many of whom are smaller operators. 33. Importantly, a TSL must describe the area to be harvested and requires the holder to pay money to the government, whether or not the harvesting actually occurs. Forest Act, section 22 ii. Planning and Consultation in relation to Forestry Activities 34. Harvesting rights are subject to the planning processes set out in the Forests Range and Practices Act, S.B.C. 2002, c. 69 ( FRPA ) and the Forest Planning and Practice Regulation, BC Reg. 14/2004 ( Regulation ). Major licensees and Timber Sales Managers must prepare and obtain ministerial approval of a forest stewardship plan ( FSP ) before harvesting timber: see sections 3 and 52 of the FRPA. 35. Section 5 of the FRPA establishes the necessary requirements of an FSP. Section 5(b) requires an FSP to specify intended results or strategies related to government objectives or other objectives established under the FRPA. The holder of an FSP must also ensure that the intended results specified in the plan are achieved: see section 21 of the FRPA. 36. In addition, before harvesting, the holder of an FSP must prepare site plans identifying how government objectives will be met and the approximate locations of cutblocks and roads: see section 10 of the FRPA. The content of site plans is prescribed by section 34 of the Regulation.

16 Chingee v. British Columbia Page Under sections 11 and 18 of the FRPA, FSPs and site plans must be made available to the public in accordance with the Regulation. Additionally, s. 21(1)(d) expressly provides that those who publish notice of their FSP must make reasonable efforts to meet with First Nations affected to discuss the FSP before submitting it for approval. iii. Coordinating Wildlife and other Objectives 38. Section 149 of the FRPA empowers the Lieutenant Governor in Council to specify objectives in relation to subjects which include timber and wildlife. Section empowers the Lieutenant Governor in Council to make regulations authorizing the minister responsible for the Wildlife Act to, among other things, establish ungulate winter ranges and wildlife habitat areas. Section empowers the Lieutenant Governor in Council to make regulations that ensure consistency amongst these objectives. 39. Statutory objectives are prescribed in the Regulation: see sections These include objectives for timber (s. 6) and wildlife (ss ). In particular, section 6(a) states that an objective is to maintain and enhance a valuable commercial timber supply from the forests of British Columbia. 40. Section 7 of the Regulation expressly states that government s objectives for wildlife should not unduly [reduce] the supply of timber from British Columbia s forests while [conserving] sufficient wildlife habitat for the survival of the species at risk, the survival of regionally important wildlife, and the winter survival of ungulate species. Other objectives for wildlife in ss , expressly limit those objectives so as to not unduly [reduce] the supply of timber from British Columbia s forests. 41. The scheme addresses the regulation of wildlife and timber harvesting in other ways, including the following: (a) Under section 11 of the Forest Act, the right to Crown timber may be granted only in accordance with the Act and regulations, subject to the Land Act and to the Park Act. Harvesting rights, for the most part, may not be granted over timber in a park: see section 9 of the Park Act, R.S.B.C. 1996, c. 344, and may be suspended in an area designated under Part 13 of the Forest Act. These provisions allow the Crown to prevent or suspend harvesting in sensitive areas. Lawful trapping and hunting, on the other hand, are for the most part permitted in parks. (b) Section 46 of FRPA prohibits forest practices that result in damage to the environment, as defined by s. 3 of the Regulation. (c) Under section 67 of the Regulation, no harvesting is permitted in a wildlife tree retention area. (d) Under section 69 of the Regulation, timber harvesters must comply with general wildlife measures. (e) Section 70 of the Regulation obliges timber harvesters not to damage or render ineffective resource features and wildlife habitat features. Wildlife habitat features are defined in section 11 of the Government Actions Regulation, BC Reg. 582/2004, and include

17 Chingee v. British Columbia Page 17 specific features central to wildlife growth and development (e.g. bird nests, fisheries and marine sensitive features); however, these regulations are subject to s. 2(1)(b) of the Government Actions Regulation, which requires the minister to be satisfied that any order would not unduly reduce the British Columbia timber supply or constrain timber harvesters abilities to exercise their rights to harvest. 42. Section 75 of the Forest Act provides that no agreement under the Act prevents or impedes government from using, or granting the use of, Crown land for any purpose the minister considers compatible with timber harvesting. [57] The Forest Planning and Practices Regulation, B.C. Reg. 14/2004 [FPPR] sets out various objectives for Forest Stewardship Plans in relation to soils, timber, wildlife, water, fish, biodiversity, visual quality, and cultural heritage resources. The sections dealing specifically with timber and wildlife are as follows: Objectives set by government for timber 6 The objectives set by government for timber are to (a) maintain or enhance an economically valuable supply of commercial timber from British Columbia's forests, (b) ensure that delivered wood costs, generally, after taking into account the effect on them of the relevant provisions of this regulation and of the Act, are competitive in relation to equivalent costs in relation to regulated primary forest activities in other jurisdictions, and (c) ensure that the provisions of this regulation and of the Act that pertain to primary forest activities do not unduly constrain the ability of a holder of an agreement under the Forest Act to exercise the holder's rights under the agreement. Objectives set by government for wildlife 7 (1) The objective set by government for wildlife is, without unduly reducing the supply of timber from British Columbia's forests, to conserve sufficient wildlife habitat in terms of amount of area, distribution of areas and attributes of those areas, for (a) the survival of species at risk, (b) the survival of regionally important wildlife, and (c) the winter survival of specified ungulate species. (2) A person required to prepare a forest stewardship plan must specify a result or strategy in respect of the objective stated under subsection (1) only if the minister responsible for the Wildlife Act gives notice to the person of the applicable (a) species referred to in subsection (1), and

18 Chingee v. British Columbia Page 18 (b) indicators of the amount, distribution and attributes of wildlife habitat described in subsection (1). (3) If satisfied that the objective set out in subsection (1) is addressed, in whole or in part, by an objective in relation to a wildlife habitat area or an ungulate winter range, a general wildlife measure, or a wildlife habitat feature, the minister responsible for the Wildlife Act must exempt a person from the obligation to specify a result or strategy in relation to the objective set out in subsection (1) to the extent that the objective is already addressed. (4) On or after December 31, 2004, a notice described in subsection (2) must be given at least 4 months before the forest stewardship plan is submitted for approval. [58] Section 27 of the FPPR provides that the Minister may balance various objectives when determining whether to approve an FSP, stating: 27 On request of a person who submits a forest stewardship plan for approval, the minister may balance established objectives, results, strategies or other plan content when making a determination under section 16 [approval of forest stewardship plan or amendment] of the Act. [59] The Province argues that the evidence it adduced for these applications shows that the Plaintiff was consulted and his interests accommodated pursuant to the scheme established by the Forest Act and Forest and Range Practices Act. The evidence is not admissible on the 9-5(1)(a) application. I will refer to it below in the context of rule 9-5(1)(d). But what is important here is that the statutory scheme provides for consultation of interested parties before timber harvesting occurs (see para. 37 of the Province s Notice of Application above). FSPs and site plans must be made available to the public: ss. 11 and 18 of the FRPA. The site plans prepared must be quite specific: s. 10(2) of the FRPA is as follows: (2) A site plan must (a) identify the approximate locations of cutblocks and roads, (b) be consistent with the forest stewardship plan, this Act and the regulations, and (c) identify how the intended results or strategies described in the forest stewardship plan apply to the site.

19 Chingee v. British Columbia Page 19 ii. The nature of the claims as pleaded [60] The plaintiff s claims are based upon his asserted property interests, which arise from and are based upon the same legislative scheme as the TSLs the forestry defendants relied upon in conducting their activities. [61] The plaintiff challenges no part of the legislative scheme. No challenge was or is brought to the administrative legality of the TSLs. [62] As noted, the claims are identical against all forestry defendants. No complaint is made concerning any specific activities of any particular TSL holder and forestry defendant. Every single person or entity who carried out logging activities on any lands touched by the plaintiff s licenced interests is sued. The plaintiff does not identify anything specific done by any forestry defendant that is beyond exercising their lawful harvesting rights under the TSLs. No facts are pleaded as to any specific breach of the terms of the TSLs. [63] The plaintiff s claims as pleaded (under all causes of action) are centred on the effects of logging in general. If the plaintiff s claims are permitted to proceed, there would be no reason that he could not seek to add other parties who may have carried on timber harvesting activities at later dates on some part of the vast areas in question. [64] I agree with the submission of the Province that in the circumstances of this case, on the pleadings of the plaintiff, his challenge is to the timber harvesting activities themselves, as they relate to his licences. However, the extent and scope of these activities and the manner and degree to which they are to be balanced against other objectives such as preservation or enhancement of wildlife are all matters dealt with in the statutory scheme and are matters of government policy. [65] The question, then, is whether in such circumstances the plaintiff could potentially establish that the timber harvesting activities of the forestry defendants as permitted by government is an unreasonable interference with his interests as a guiding territory certificate holder, guide outfitter, or registered trapline holder.

20 Chingee v. British Columbia Page 20 [66] Under the scheme, it is ultimately the Province as owner of the lands and as government that is the arbiter of competing interests in its lands. In effect, the plaintiff would be seeking to have the court review and reconsider after the fact the decisions made by various statutory decision makers within a highly policy driven context, in order to seek to establish that the end result of the decisions is an unreasonable interference with his own licensed interests, when he made no timely objection to the activities. In my view, the plaintiff is bound to fail in establishing this element of the claim in nuisance on the facts as pleaded. c) The Proposed Amendments - Nuisance [67] The Proposed AANOCC adds a reference to Trespass in the heading to the section heading to the Nuisance section. Plaintiff s counsel advised that the reference to trespass falls within the ANOCC s references to other property rights in paras. 37, 45, 46. [68] An action in trespass to land must be supported by the claimant s possession of the land in question: Lewis N. Klar, Tort Law, 5 th ed. (Toronto: Carswell, 2012 at 112.) In the case of Crown land, possession of the land will not give a claimant sufficient interest to maintain an action in trespass unless the plaintiff is in possession with the privity or concurrence of the Crown: p Thus the plaintiff would likely fail to establish standing to claim in trespass. The defendants would have no trouble establishing that their activities on the lands were not a wrongful interference, as they were expressly licensed to conduct them. It is plain and obvious that the proposed claim in trespass is bound to fail. [69] Another proposed amendment (para. 41.1) refers to alleged TSL terms: (1) a requirement to give 14 days notice to the plaintiff prior to commencement of activities, and (2) a requirement that the licensee must not otherwise unreasonably interfere with [ ] the proprietary interests of other interest holders, including but not limited to the plaintiff. No facts are pleaded in relation to these points. No consequences of any breach are pleaded.

21 Chingee v. British Columbia Page 21 [70] The Proposed AANOCC also refers extensively a provincial government document, A Practical Guide to Effective Coordination of Resource Tenures (the Guide ). The proposed pleading states: Although the Guide is not itself policy, the Guide refers to Crown expectations of the Defendant Foresters as follows: a. The licensee must give other tenure holders at least 14 day s advance notice before commencing activities on the Lands. b. The licensee must meaningfully consult the Plaintiff prior to commencement of harvesting. c. The licensee must reasonably accommodate the interests of other tenure holders such as the Plaintiff. [71] Again, however, no specific facts or consequences of any alleged breach are pleaded. As a result, no cause of action is made out. The lack of any specifics even in the proposed pleading further confirms that the plaintiff s real complaint is with the scope or scale of the timber harvesting activities in general. [72] The plaintiff s proposed pleadings centred on the Guide do not support the plaintiff s case that the timber harvesting activities are an unreasonable interference with his interests. The existence of the Guide underscores the multi-use and multiuser nature of the Crown s lands and the nature of the Crown s efforts to balance competing uses and interests. [73] The plaintiff also proposes at para to allege that the forestry defendants have clear-cut the lands rather than employing other more reasonable harvesting methods which were reasonably available and which would not have harmed or would have lessened the harm to the Plaintiff s profit à prendre and other rights of use and occupation. There are again no facts pleaded, and no specifics, about this. The other methods are not indicated. Why or how one method of harvesting versus another would transform non-nuisance harvesting into tortious interference is not explained. Clearly, this late proposed amendment is a desperate effort to introduce something of substance into the pleading. However, in the context of the plaintiff s complaint which is centred on harvesting in general, and without any relevant

22 Chingee v. British Columbia Page 22 specific facts, I conclude that the plaintiff s Proposed AANOCC continues to fail to plead a potentially viable cause of action in nuisance. C. The Claims in Negligence [74] The plaintiff pleads that the harvesting activities of the forestry defendants have caused damage to his business interests (ANOCC, paras. 48, 52, 53, 57). He pleads loss of value of his business interests: ANOCC, paras. 52, 57. He pleads that the Crown and its agents and servants had a duty of care to take all reasonable steps to ensure that the Plaintiff and the business interests of the Plaintiff were not harmed by the Defendant Foresters harvesting activities (para. 50) and a breach of this duty: para. 51. [75] Other than the harvesting activity in general, no specific facts are pleaded as to what the Province or the other defendants did or failed to do which could constitute the negligence complained of. On these pleadings the Province and the forestry defendants would have no idea as to what claims are being made against them. The essence of the claim is simply that the Province should not have allowed harvesting activities by the other defendants, who should not have carried them out. 1. The Claims in Negligence against the Province [76] A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant s breach: Mustapha v. Culligan of Canada Ltd SCC 27, at para. 4. [77] Thus, the first question is whether the pleadings support a duty of care owed by the Province to the plaintiff. The duty of care must be connected to the alleged breach and damage, of course. [78] The plaintiff concedes that the asserted duty of care is novel. No cases have been cited in which a holder of a guiding territory certificate or registered trapline issued by the Province has established a duty of care by the Province to the holder

23 Chingee v. British Columbia Page 23 to prevent loss caused by other activities expressly permitted by the Province on the same lands, nor in any similar or analogous circumstance. [79] In this case, the factors giving rise to the required relationship of proximity must arise out of the relevant statute, or here, the statutory scheme: Cooper v. Hobart, 2001 SCC 79, at paras. 30, 43. [80] The appropriate analysis is summarized in Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, at paras : 66 The first and central question is whether the pleadings, assuming the facts alleged to be true, support a duty of care on Alberta to members of the plaintiff class. This requires us to determine first whether Alberta and the class members were in a relationship that gave rise to a prima facie duty of care, based on foreseeability and proximity. If a prima facie duty of care is established, the second step is to ask whether it is negated by policy considerations: See Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.); City of Kamloops v. Nielsen, [1984] 2 S.C.R. 2; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at para. 30; and Reference re Broome v. Prince Edward Island, 2010 SCC 11, [2010] 1 S.C.R. 360, at para The claim raised in this case has not been previously recognized as giving rise to a duty of care. Therefore, we must examine whether it meets the foregoing requirements for imposing a duty of care in negligence: Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, at para In this case, as in Broome, the plaintiff class relies on provincial statutory obligations as the source of a private duty of care. The allegation, in essence, is that statutory and regulatory duties brought Alberta into a relationship of proximity with members of the class, whom it was reasonably foreseeable would be affected by failure to discharge these duties in a nonnegligent manner. The Cooper analysis applies to claims grounded in statutory duties. As the Court, per Cromwell J., stated in Broome, at para. 13: [13] [The Anns/Kamloops ] test is the appropriate one even though the appellants mainly rely on statutory duties. Such duties do not generally, in and of themselves, give rise to private law duties of care. The Anns/Kamloops test determines whether public as well as private actors owe a private law duty of care to individuals enabling them to sue the public actors in a civil suit. 69 Determining whether a duty of care lies on the government proceeds by "review of the relevant powers and duties of the [government body] under the Act": Cooper, at para. 45. See also Broome, at para. 20; Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83, at para In this case, the legislative scheme does not impose a duty on the Crown to act in relation to the class members with respect to the accommodation charges. A review of the relevant provisions discloses a