BY BILL PHILLIPS
A guide/trapper has lost his bid to sue forest companies for logging in his guiding territory.
Harry Chingee, who holds a guiding territory certificate covering approximately 196,000 hectares of land owned by the province surrounding McLeod Lake and northeast of McLeod Lake, sued the province as a “party to nuisance and in negligence and breach of fiduciary duty.” He also sued a large number of forest companies for nuisance and negligence. He also proposed to add a claim against the forestry defendants in trespass.
The suit was dismissed and Chingee appealed the ruling, which has now been dismissed.
The basis of Chingee’s complaint was that logging activity in his guiding territory and on his traplines has caused damage to the value of his tenures or the business they support. Logging was authorized by the province and carried out by the forestry defendants pursuant to Timber Sale Licences. He claimed the forestry defendants failed to give him required notice of intended logging activity, failed to consult meaningfully with him before harvesting, and failed to reasonably accommodate his statutory interests when they logged pursuant to their licences, according to Appeals Court Justice Harris. Chingee alleged that, contrary to their licences, the forestry companies unreasonably interfered with his tenures. Unreasonable logging practices, including clear cut logging, occurred on the lands, thereby reducing wildlife, compromising the vitality of the forest by destroying non‑merchantable and non‑commercial trees and brush, reducing the amount of forested area available for trapping and guiding, and causing damage to his tenures because of the time it could take for the forest to regenerate.
“Chingee rests his appeal principally on an argument that the judge failed to appreciate that, in his pleadings, he alleged sufficient material facts to demonstrate that although the forestry companies were authorized to harvest timber, they exercised their rights unreasonably by adopting logging practices, such as clear cutting, that were not necessary under their licences and which had the result of unreasonably damaging his continuing interest in the areas logged,” wrote Harris. “In short, they exercised their authorized right to harvest in an unauthorized manner; both by failing to consult him beforehand and adopting unreasonable logging methods resulting in damage to him. The judge was wrong, he says, to characterize the claim as a complaint about the consequences of authorized logging.”
The appeals court didn’t agree.
“In my view, given the complex policy interests, priorities, and considerations in play when the ministry, as required by legislation, administers and allocates rights and interests in the province’s forestry and wildlife resources, it is not tenable to hold that the province owes certain statutory tenure holders a fiduciary duty – a duty requiring the province to put those tenure holders’ interests above all others, including holders of other statutory licences (e.g., TSLs) and, generally, society as a whole (the public interest),” wrote Harris in dismissing the appeal June 29.