05/09/2014 01:44 EDT | Updated 07/09/2014 05:59 EDT

B.C. judge dismisses environmental groups' application over endangered trees

VANCOUVER - A B.C. Supreme Court judge has dismissed an application by environmental groups claiming the province fails to adhere to its own laws in protecting endangered coastal Douglas fir trees.

Justice Gordon Weatherill sided with the government in ruling that the application for judicial review filed by the Western Canada Wilderness Committee and ForestEthics Solutions Society was premature.

Weatherill said in a decision released Friday that the groups should have first applied to the Forest Practices Board, which conducts independent audits and investigations to determine if the province is complying with laws to protect endangered forests.

"Although the recommendations are not binding on the government, such a process is still an adequate remedy that should be sought before seeking judicial review," Weatherill said in his written ruling.

He said the government officially recognized in 2006 that coastal Douglas fir are a species at risk and created policies to balance the competing concerns of the logging industry and those pushing for environmental protection and aboriginal interests.

The issue involves interpretation of the Forest and Range Practices Act and its regulations and whether the government has a mandatory legal duty to issue so-called section 7 notices to logging companies, the judge said.

"If issued, these notices would, in effect, prevent logging operations that will impact the remaining 275 hectares of old-growth (coastal Douglas fir) in the coastal region."

The environmental groups sought judicial review of the government's failure to issue the notices to logging companies operating on Crown land on southern Vancouver Island but also the Gulf Islands and the Sunshine Coast. However, lawyers for the Forests Ministry and the Environment Ministry argued that step is discretionary, not mandatory.

Weatherill agreed that the notices are up to the government's discretion because it is required to balance the needs of various parties as part of the complex law.

He noted that part of the act requires logging companies intending to harvest timber or construct a road on Crown land to prepare a forest stewardship plan, which must be approved by the government.

Weatherill also detailed the environmental concerns involved, saying that at one point, coastal Douglas fir was dominant, covering as much as 2,555 square kilometres on the B.C. coast.

"Now, only a small fraction of these trees and their related ecosystem remain in an old-growth state. According to estimates, approximately as little as 20 square kilometres of these trees remain, and about 2.75 square kilometres are old-growth."

Torrance Coste, spokesman for the Western Canada Wilderness Committee, said the dire state of the forest is exactly why the groups took the drastic step of going ahead with court action instead of the Forest Practices Board.

Coste said British Columbia should have introduced legislation 30 years ago to protect the area after increased development on southern Vancouver Island led to large-scale deforestation that now means 99 per cent of the ecosystem has been removed.

"It's one step above extinction, and this ruling proves that that's perfectly legal in this province. The province does state that it's proud of its policies, proud of its oversight and should be held up as an example to the world."

While forestry provides employment and First Nations need to get their fair share from the resource, a mere one-per-cent remainder of old-growth forest is not an example of balance for all sides, Coste said.

British Columbia needs a stand-alone endangered species law to ensure forests aren't logged to extinction and wildlife, including the mountain caribou and spotted owl, are able to recover, he said, adding Alberta is the only other province without specific legislation to protect endangered species.

"The ruling's disappointing but it points to the larger failings in the way our laws are written in that they're not strong enough when it comes to protecting endangered species."

The environmental groups are considering whether to file an appeal of the decision.