2. In answer to this question, the Respondents, Mssrs. Bouman, Benson, Smith, Penner, Neilson and Keats, (the “Individual Respondents”) submit that the Court ought only to interfere with such a finding in rare circumstances, and that this case, far from meeting those criteria, justifies the full support of the Court.

3. The Board in this case was acting on complaints made by several concerned citizens (not on its own motion as Western’s argument seems to suggest), and heard five full days of testimony, some of which, the Individual Respondents will concede, supported Western’s position that its forestry activities would not harm the water supply, but much of which supported the finding of the Board that it had reason to believe these forestry activities did or were likely to endanger public health.

4. With respect, while Western’s argument subjects every detail of the Board’s written reasons to “painful scrutiny” and suggests that the Board exceeded its jurisdiction and misapprehended the facts, this argument relies largely on semantics and on an overly restrictive interpretation of the Health Act.

5. In response, the Individual Respondents submit that a purposive approach to both the Health Act and to the Order and Reasons of the Board support the Board’s actions and the dismissal of Western’s appeal.

II. Standard of Review

6. The Individual Respondents concede that with respect to the proper interpretation of the Health Act and the test to be applied thereunder, the standard of review is correctness.

7. With respect to the standard of review on the question of whether the Board had reason to believe a health hazard exists, the Respondents submit that a more deferential standard is appropriate.

8. The Appellant argues that because the Board does not have any particular expertise with respect to matters of health, little deference (if any) is required. However, this ignores the fact that the Board, in its capacity as Regional District and as the purveyor of water in the area, deals with water issues regularly, and in particular, has experience with the Watershed that the Court (and Western) do not have. Accordingly, there is some relative expertise which resides with the Board.

9. Moreover, the identity of the decision-maker as a political body which is generally entitled to significant deference in both its legislative and adjudicative decisions leads one to the conclusion that the legislature intended some deference to its decision.

10. Finally, as Western admits, the fact that the Board held five days of hearings and assessed credibility and weighed evidence throughout that hearing, is a factor in favour of a more deferential standard, as an appellate court (or reviewing court) should be slow to interfere with a tribunal’s findings of fact and the conclusions drawn from them.

11. Indeed, Western appears to admit that the standard of review is likely reasonableness simpliciter.

12. With respect to the Attorney General’s submission that the appropriate standard of review is correctness, with respect, this does not accord with the pragmatic and functional approach, nor with the precautionary scheme of the Health Act.

13. The Attorney General submits, correctly, that the Health Act is legislation which requires that a precautionary approach be taken in order to protect public health. However, the Attorney General then argues that this precautionary approach at the Board level mandates a correctness standard upon appeal.

14. In our submission, the precautionary approach to matters under the Health Act applies to all aspects of the Act, including s.102 appeals. The policy reasons in favour of a precautionary approach at the Board level apply equally to the Court, in that where issues of public health are at stake, one ought to approach the issue in a preventative fashion.[1]

15. Accordingly, the Individual Respondents submit that the appropriate standard of review is, at strictest, reasonableness simpliciter, which simply asks whether there is any line of analysis that could reasonably lead the Board from the evidence before it, to the finding that it had reason to believe a health hazard exists.

16. Regardless of the standard, however, the Individual Respondents submit that both the Appellant and the Attorney General have misstated the question the Court must ask in conducting its review.

17. In our respectful submission, the question is not, “on the evidence, did Western’s activities constitute a health hazard?”, as the Appellants state at paragraph 96, but rather whether the Board had “reason to believe” that Western’s activities constitute a health hazard.

18. This is the question that the Board was required to answer, and accordingly, it is the answer to this question which must be reviewed. Asking the Court to review a question on a higher standard than the Board was required to apply cannot be the proper approach, on any standard of review.

III. Statutory Interpretation of the Health Act

A. The Precautionary Principle

19. As the Supreme Court of Canada noted in R. v. Hape, “it is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law.” LeBel J., writing for the majority, elaborates on this principle:

The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result. R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 422, explains that the presumption has two aspects. First, the legislature is presumed to act in compliance with Canada's obligations as a signatory of international treaties and as a member of the international community. In deciding between possible interpretations, courts will avoid a construction that would place Canada in breach of those obligations. The second aspect is that the legislature is presumed to comply with the values and principles of customary and conventional international law. Those values and principles form part of the context in which statutes are enacted, and courts will therefore prefer a construction that reflects them.[2]

R. v. Hape, [2007] S.C.J. No. 26, 2007 SCC 26 at para. 53.

20. The Court in Hape also confirmed that this presumption applies not only to treaties and other forms of conventional international law, but also to customary international law.

R. v. Hape, supra at para. 54.

21. The Individual Respondents submit that the precautionary principle is a norm of customary international law, and therefore the presumption of compliance applies.

22. In the Spraytech decision of the Supreme Court of Canada, the majority of the Court said that “reading s.410(1) to permit the Town to regulate pesticide use is consistent with international law and policy.” The Court continued at paragraph 32:

Scholars have documented the precautionary principle’s inclusion “in virtually every recently adopted treaty and policy document related to protection and preservation of the environment” [cites omitted]. As a result, there may be “currently sufficient state practice to allow a good argument that the precautionary principle is a principle of customary international law [cites omitted].

114957 Canada Ltee (Spraytech, Societe d’arrosage) v. Hudson (Town), [2001] S.C.J. No. 42, 2001 SCC 40.

23. The definition of the precautionary principle set out in Spraytech and in international law, provides that where environmental and human health is at risk, lack of full scientific certainty should not be used as a reason for inaction. Rather, one must anticipate, prevent and attack the causes of the harm.

Spraytech, supra at para. 31.

24. Contrary to the argument of the Appellant, the Board’s adoption of this approach does not indicate that it made its finding without sufficient credible evidence. Rather, it simply indicates that the Board felt that it was not required to await scientific certainty before issuing an order.

25. In other words, the Board still had “reason to believe” that the activities would endanger public health. The “reason to believe” standard simply allows for action in the face of some uncertainty.

26. As will be demonstrated below, this approach is not only consistent with international law, but with a broad and purposive approach to the legislation, and to the very wording of the legislation itself.

27. Whether the precautionary principle’s status as customary international law would have required the Board to adopt this approach in making its decision need not be decided in this case. The Board did adopt this approach, and as in Spraytech, “in the context of the precautionary principle’s tenets, [the Board’s actions] fit well within the rubric of preventative action.”

Spraytech, supra at para. 32.

28. Although the facts in Spraytech differ in that the Town was exercising a legislative rather than an adjudicative function, the same principles of statutory interpretation apply. When interpreting the provisions of the Health Act, where possible, the interpretation should be consistent with international law – hence, with the precautionary principle.

29. Accordingly, the Individual Respondents submit that s.59 of the Health Act ought to be interpreted so as to permit the Board to take a precautionary approach to its determination as to whether it has reason to believe that the activities in question will endanger public health.

B.. A Broad and Purposive Interpretation

30. Indeed, this precautionary approach is also consistent with a broad and purposive interpretation of the Health Act.

31. Section 8 of the Interpretation Act provides that “every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”

Interpretation Act, R.S.B.C. 1996, c.238, s.8.

32. The Health Act is aimed at protection of public health, and it is difficult to imagine a subject more conducive to the precautionary principle and preventative action.

33. The Appellant argues that the decision of the Board is unreasonable because it was made in the absence of any medical or epidemiological evidence that water supplied to consumers post-treatment actually endangered public health.

34. With respect, this argument relies on an overly restrictive interpretation of the Health Act and one which does not accord with the purpose of the Act.

35. The Individual Respondents submit that the powers under the Health Act would be rendered impotent if they could only be exercised upon scientific proof that contamination had already occurred.

36. Rather, the gravity of the subject-matter of public health requires that preventative action be taken before contamination actually occurs.

37. Moreover, the appellant’s approach which would take “out-of the-tap”, post-treatment water quality as the only relevant consideration:

a. Assumes that the water treatment plant is 100% effective 100% of the time. However, on the evidence before the Board, this is not the case;[3]

b. Ignores the fact that the water treatment plant is only one of the barriers in a multi-barrier water quality system. By definition, where water quality depends on a multi-barrier system, the irreversible damaging of one of those barriers must be taken as a serious threat to water quality generally. Indeed, when the Drinking Water Protection Act (DWPA)was enacted in 2001 in response to the Walkerton tragedy in Ontario, the legislative debates make it clear that the DWPA, and the Health Act which was amended at the same time, were intended to provide source to tap protection, not simply after-treatment protection.[4]

C. The Wording of the Health Act

38. This precautionary approach is also supported by the wording of the Health Act.

39. The power exercised by the Board in this case is granted by Section 59(1)(b) of the Health Act, which provides that the Board may make an order if it has “reason to believe that a health hazard exists”.

Health Act, R.S.B.C. 1996, c. 179.

40. In turn, a “health hazard” is a defined term which means “a condition or thing that does or is likely to endanger public health …”

41. Accordingly, the question that the Board had to answer is whether it had reason to believe that Western’s impugned activities were likely to endanger public health.

42. The Individual Respondents submit that each of the emphasized portions above must be given effect.

43. The standard of “reason to believe” which the Board must apply is something less than a balance of probabilities, but one which requires that there be some credible evidence to support a bona fide belief that the activities were likely to endanger public health.

44. Similarly, the fact that an order can be made where the activities are simply “likely to” endanger public health, points to a standard of something less than scientific certainty as the precautionary principle would also provide.

45. The use of the word “endanger” further qualifies the test to be applied under s.59. Specifically, to “endanger” simply means to expose something to harm or danger; it does not require that the harm necessarily come to pass. In other words, the condition or thing simply needs to create an increased risk to public health.

46. While the Individual Respondents concede that both the risk and the increase to the risk associated with the logging must be more than negligible, it is submitted that any non-negligible increase to the risk to public health which can be sufficiently connected to impugned activity can and should be considered a health hazard within the meaning of the Health Act.

47. This is so particularly when the public health risk at issue is a contamination of the water supply.

48. As the Attorney General submits, under the Health Act, a decision maker should consider both the magnitude and likelihood of the harm such that where there is even a small risk of widespread harm, action may be justified.

49. The Individual Respondents submit that the Appellant’s interpretation of the Health ct does not give effect to the meaning of each of these aspects of the Act, and therefore must be rejected.

50. With respect to the Health Act scheme, the Appellant argues that the jurisdiction of the medical health officer and the drinking water protection officer is broader than that of the Board, and suggests that the fact that neither of these officers made an order must be given significant weight.

51. However, if the Board could only make an order in circumstances that the Medical Health Officer would also make an order, the jurisdiction of the Board would be rendered meaningless.

52. The Legislature saw fit to provide a politically accountable body with the power to make orders under the Act, and it is submitted that this must be given effect.

53. Indeed, it is submitted that this parallel jurisdiction of the Board is supported by the facts of this case wherein the medical health officer has refused to even investigate complaints of a health hazard to drinking water.

Affidavit of Suzanne Senger, sworn September 6, 2007.

IV. The Findings of the Board

54. Applying the above principles and standard of review, the question is whether there was evidence before the Board that supports their finding that they had reason to believe that Western’s impugned activities were likely to endanger public health.

55. As a preliminary matter, when examining the Order and the Reasons of the Board, who are not legally trained, the Individual Respondents submit that the Court ought not to subject them to “painstaking scrutiny”.

Hammami v. College of Physicians and Surgeons of British Columbia, [1997] B.C.J. No. 1702 (S.C.) at para. 32.

Del Core v. Ontario College of Pharmacists (1985), 51 O.R. (2d) 1

56. The Individual Respondents submit that much of the Appellant’s quarrel with the Board’s Order and Reasons relies on semantics and a standard of perfection in drafting rather than on substance and the spirit and intent of the Order: see, for example, paragraphs 14, 28-29, 34, 61, 81-84, 104-105, and 114-128 of the Appellant’s written argument.

57. Turning to the evidence before the Board, the Appellant argues that there was no evidence before the Board that could have lead it to the conclusion that a health hazard exists, but that conversely, there was an abundance of evidence before it that there was no risk.

58. Leaving aside the issue that this imposes the wrong standard (it does not apply the “reason to believe” standard), this is a clear overstatement of the factual record.

59. The Board heard five days of testimony on this matter, much of which was in support of the Board’s finding. Although one of Western’s presenters referred to some of this evidence as “pop theories of forest hydrology”, the Board heard this evidence and was in a position to weigh credibility and the reliability of the evidence, and was entitled to rely on this evidence.

60. The following are some examples of the evidence before the Board on the hazard to water quality posed by the logging activities of Western:

a. Daniel Bouman testified as to the particularly unstable nature of the Watershed and further testified that logging activity on steep slopes and in riparian zones was likely to increase this instability, thus creating a greatly increased risk of slides of organic matter into the water supply;

b. Mr. Bouman further testified as to the ability of the Watershed to recover from logging activity, and the negative effect of this recovery on the water quality, and also testified that the riparian setbacks in the Forest and Range Practices Act were insufficient to protect water quality.

c. Mr. Penner, along with several others, testified as to the damage already caused to streams and culverts by Western’s forestry activity; and

d. Mr. Richmond, a retired professional forester, former university instructor in forestry, and former Chief Forester for the province of Saskatchewan, testified that “the projected logging operation in Chapman Creek Watershed increases the risk for maintenance of a sustainable community drinking water supply of adequate quality and quantity.”

61. In addition, the 2006 Triton Report, which defines a “hazard” as “a source of potential harm to the functioning of any aspect of the drinking water system or to human health” [emphasis added] describes the hazards associated with forestry activities in the Watershed as follows:

Forestry and forestry related activities, such as road construction, have the potential to affect runoff patterns and stream flow as well as increase the risk of erosion, landslides and mass wasting, thus increasing the sediment loading in the stream system and increasing turbidity levels in receiving waters. Inputs of organic material, light and nutrients into a stream system can also be altered, leading to changes in physical parameters such as temperature.

62. The author of this report, Dr. Watson, indicated that the future forestry activities in the watershed are considered high risk unless plans are in place to mitigate risk and to insure adverse impacts will not occur. Dr. Watson’s later opinion that the risk with respect to Western’s proposed activity were low, this opinion relied on an incomplete and inaccurate assessment of the terrain and characteristics of the Watershed. Specifically, many slopes were not calculated accurately, and he ignored the presence of several year-round streams.

63. Moreover, this later opinion relies on an assumption that the mitigation measures outlined in the original Triton report and overall “best management practices” would be implemented. Although there was evidence to the effect that many of these mitigation measures would be implemented, Dr. Watson was unable to describe the “best management practices” assumed to be implemented. Moreover, there was some evidence before the Board, as well as evidence subsequent to the Board hearing that indicates that there were issues with Western’s forestry practices, including their logging near streams and their road and bridge building activities.

64. In addition to the evidence set out above in support of the Board’s actions, which list is not intended to be exhaustive, but which, in our submission, is sufficient to justify the Board’s actions, some of the evidence referred to by the Appellant in support of their position was discredited in part, or at least brought into question by other evidence and testimony at the hearing.

65. As an example, Dr. Carson’s forceful opinion in favour of logging in the Watershed was contradicted in large part by his own earlier watershed restoration reports, which reports were provided to the Board at the hearing.

66. In addition, the Coastal Watershed Assessment Procedure (CWAP) was heavily criticized in its methodology by, among others, Tony Richmond, a retired forester.

67. Finally, the Appellants rely on the fact that they received permits under the applicable forestry legislation, which in turn required that they conduct a CWAP. However, in addition to the problems identified with the CWAP report, it is important to note that there are no water quality standards set out in the Forest and Range Practices Act (FRPA) or any of the acts which relate specifically to forestry.

68. Although FRPA has “goals and objectives” associated with water quality, these are simply objectives, not standards. Moreover, these objectives only apply where they do not “unduly restrict the flow of timber”. Accordingly, forestry activity that negatively affects water quality will still be permitted under FRPA if prohibiting or regulating those activities would affect the supply of timber.

69. Once again, this is not an exhaustive description of the evidence, both for and against the Order, but rather simply a demonstration that there was indeed evidence before the Board to support their findings with respect to the health hazard.

70. Moreover, the conflicting evidence on some points, including by the same witnesses, supports the limited role of the appellate court in this case, as the Board was required to weigh vast amounts of evidence and issues of credibility arose.

71. Accordingly, based on the standard of review outlined above, the Individual Respondents submit that the decision of the Board withstands scrutiny and ought to be upheld.

V. The Scope and Effect of the Order

72. The Appellant argues that the effect of the Order made by the Board is to prohibit logging of any kind, including the removal of felled logs, in any of the relevant cutblocks, whether within or outside the Watershed.

73. However, with respect, this relies on an overly formalistic view of the Order, and does not accord with forestry practices and standards or with the facts in this case.

74. The Individual Respondents submit that viewing the Order as a whole, and keeping in mind the facts of this case and the fact that the Board is a political body with no legal training, the intent of the Order is clear.

Paragraph 1

75. Paragraph 1 of the Order accords with the evidence before the Board that logging on steep slopes would cause a significant risk to water quality and to public health.

Paragraph 2

76. The Appellant argues that the effect of paragraph 2, which prohibits the completion of road D1000, is to effectively prohibit the removal of the logs which had already been felled, and in fact to prohibit much of the other logging, because they were to use the rock from D1000 to build the other required roads.

77. However, Mr. Ternan’s affidavit simply indicates that the failure to complete D1000 would make the removal of the felled logs “more difficult”. There is no evidence supplied by Western to indicate what this increased difficulty would entail.

78. With respect to the rock, Mr. Bouman deposes that there is rock available from other sources in the area. Accordingly, the Individual Respondents submit that this aspect of the order would not preclude the building of additional roads, it would simply make it more difficult.

Paragraphs 3 + 4 + 9

79. These paragraphs make it clear that the intent of the Order is not to preclude the removal of logs which have already been felled or otherwise prepared for removal by helicopter.

Paragraph 5

80. This paragraph is supported by the evidence which demonstrated that forestry activity in heavy rainfall periods increased the risk to water quality and human health.

Paragraph 6

81. This paragraph is supported by evidence which demonstrates that logging debris in streams is a significant risk to water quality.

82. The Appellant argues that this paragraph effectively prohibits any and all otherwise permitted activity within and even outside the Watershed.

83. The Appellant argues, relying on Mr. Ternan’s affidavit, that a watercourse is so ill-defined and so foreign to the forestry industry, that it effectively renders any logging activity impossible.

84. The Appellant further argues that the broad definition of “forestry activity” would preclude the road building necessary, and would even preclude driving over existing roads which come within 30 metres of a riparian zone.

85. With respect, in addition to ignoring the spirit and intent of the Order, this argument is inconsistent with the industry standards.

86. Firstly, the definition of “stream” in the Forest and Range Practices Regulation (the Regulation) specifically incorporates the term “watercourse”, essentially equating the two terms. Accordingly, it seems inconceivable that Mr. Ternan would not be familiar with the term watercourse, and able to identify them for the purposes of planning Western’s activities within the watershed.

87. Moreover, based on the definition of stream in the Regulation, and based on his assessment of maps and knowledge of the area, Mr. Bouman calculated that only a small portion of the cutblocks would be affected if logging within 30 metres was prohibited.

Affidavit of D. Bouman, sworn September 6, 2007.

88. With respect to the road building activity, the FRPA and the Regulations permit road building, even within riparian reserves, which are the highest level of protection for streams under the FRPA. Accordingly, it is common practice to permit road building and road driving in areas otherwise protected from forestry activity.

89. The Individual Respondents submit that the Order was intended to adopt the definition of stream in the Regulations and to permit road construction and road driving in these riparian areas, and accordingly,

90. In the alternative, if the Court finds that this activity is precluded by paragraph 6, the Individual Respondents submit that the Court should use its jurisdiction to vary as opposed to rescind this aspect of the Order so as to comply with the above-referenced intent.

Paragraph 7 + 8

91. The Appellants argue that these paragraphs exceed the jurisdiction of the Board in that they purport to regulate as opposed to terminate the health hazard.

92. However, the Individual Respondents submit that these provisions are indeed aimed at terminating the health hazard. This is so because the risk associated with the remaining forestry activity would be reduced by the monitoring indicated therein, thus removing the “likelihood” that public health will be endangered. Since it is the risk – the endangerment – which is the definition of a health hazard, it is appropriate to terminate that risk by less restrictive means than outright prohibition.

Paragraph 10

93. As the Board noted at paragraph 16 of its Reasons, the burning of logging debris may affect air and water quality in the Watershed, which would constitute a health hazard. Accordingly, it is appropriate that the Order reflect this finding.

VI Reasonable Apprehension of Bias

94. The argument with respect to reasonable apprehension of bias will primarily be left to the Respondent, Sunshine Coast Regional District; however, the Individual Respondents submit, in brief, the following:

a. The Board had no choice but to “constitute itself” as a Local Board of Health to investigate the Complaint – see the provisions of the Health Act;

b. The Health Act specifically contemplates (and indeed requires) that this political body is to act as the Local Board of Health;

c. The Health Act also provides that an investigation into whether a health hazard exists can be initiated by information supplied by “any officer of the local board”; and

d. The Order, on its face, dispels any notion of bias, since it specifically permits logging in the area some of the directors had previously indicated they did not want any logging.

VII. Conclusion

95. The Individual Respondents submit that, applying the above-referenced standard of review, the Board’s Order ought to be upheld.

96. Specifically, the interpretation and approach of prudent avoidance adopted by the Board was correct and in accordance with principles of international law and with the purpose and words of the Health Act.

97. Moreover, there was sufficient evidence before the Board to support its “reason to believe” that the impugned activities of Western endangered public health.

98. Accordingly, the Individual Respondents respectfully submit that the appeal be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

September 7, 2007 ______________________________________

Robin J. Gage

Counsel for the Individual Respondents

[1] The Attorney General cites the powers of child protection officers as analogous to the powers of the Board and argues that the Court offers a “sober second look” at the removal of the child, who may have been removed based on the precautionary approach to child protection. However, in contrast to the situation of a child protection officer, the Board in this case held a five day hearing into the matter. Moreover, the power of review in s.102 of the Health Act is a statutory appeal, whereas the “presentation hearing” under the Child, Family and Community Services Act is the first hearing, and may well be the first opportunity for the parent to present his or her case.

[2] While this presumption can be rebutted where the legislature shows an unequivocal and unambiguous intent to default on its international obligations, the Individual Respondents submit that these cases will be rare.

[3] In this respect, contrary to the argument put forth by the Appellant, it makes little difference to public health whether the error which caused the water treatment plant not to operate at 100% was a human error or a mechanical error.

[4] There was also evidence before the Board that the addition of chlorine to organic compounds through water treatment, which is required in increasing amounts as turbidity and the presence of organics in the water increases, may react to form carcinogenic compounds which, in itself, could pose a hazard to human health.