Third Party: Forest Practices Board
APPEAL NO. 96/07
The appeal was about the validity of a stop work order issued to prevent damage to the environment, caused by sediment management issues relating to road construction (bridge and culvert placements). The decision-maker also issued a remediation order specifying actions that would remedy the situation. Houston argued that it was not carrying out a forest practice because the work had been completed at the time the orders were issued. The Board argued that the FAC should take a broad interpretation of “carrying out a forest practice” when considering section 45 of the Code, which both orders were based upon. The FAC found that there was no activity in the area and no activity was scheduled to resume, thus, there was no legal authority or practical need for the stop work order. It found that the Code provision for remediation orders requires an actual finding of contravention, whereas the evidence in this appeal was a conservation officer’s opinion that it “appears that fish habitat may have been negatively affected.” This was contrasted to the Waste Management Act, which authorizes proactive prevention orders if harm to the environment “may occur.”
Appeal allowed.
FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/96-07.pdf
Third Party: Forest Practices Board
APPEAL NO. 96/08
The appeal concerned the meaning of “damage” to Crown timber in section 96 of the Code. Rustad’s logging caused minor damage to 32 trees by scarring or gouging, and the issue was whether it was substantial enough to amount to a contravention. The Board concurred with the views of the Ministry in this case, that “damage” is used broadly, and encompasses injury to non-economic as well as economic values. The FAC agreed, and found that section 96 prohibits means damage in the ordinary sense of the word, and is not restricted to damage related to economic loss. It confirmed the contravention, and agreed with the review panel that no penalty was warranted in the circumstances.
Appeal dismissed.
FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/96-08.pdf
Third Party: Forest Practices Board Intervenor: Friends of Clayoquot Sound
APPEAL NO. 96/02(b)
The appeal issue was in regards to double jeopardy and quantum of penalty in relation to Interfor’s failure to maintain a forest road leading to liquefaction and sedimentation. Failure to meet a requirement of the Forest Road Regulation was automatically a contravention of the Act, so Interfor was found to have contravened both. The Board argued that the ‘double jeopardy’ issue raised by Interfor based on the Supreme Court of Canada’s Kienapple principle against double convictions for the same act in the criminal law setting, does not apply to administrative schemes such as the Code. The FAC agreed and dismissed the appeal, but reduced the penalty from $10,000 to $7,500.
Appeal allowed in part.
FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/96-02b.pdf
Third Party: Forest Practices Board
APPEAL NO. 96/03
Prior to bringing this appeal to the FAC, Weldwood had appealed a stop work order (SWO) issued by a forest official to a ministry review panel. The SWO had been issued due concerns about the presence of an aboriginal grave site within an approved cutblock, and requirements to stop or modify operations around previously unidentified cultural heritage features. The review panel vacated the SWO because it found that the official should not have found a contravention of the Code provision referenced in the SWO: however, it went on to find that Weldwood failed to promptly notify the District Manager of the previously unidentified feature, which was a contravention.
The Board joined the FAC appeal to make submissions about the nature of stop work orders, their issuance and recording. The FAC agreed that SWOs are preventative measure where there is evidence suggesting that contraventions of the Code or regulations may be occurring. The FAC agreed with the Board that if SWOs are equated with contraventions and are overturned every time a contravention is not later proven, then officials in the field will be discouraged from using them. The FAC overturned the review panel’s finding of a separate contravention, and confirmed the original stop work order. It also found that, by the time the appeal was heard, Weldwood had complied with the terms of the original SWO by filing an acceptable archaeological report. It agreed with the Board that the issuance of SWOs should not be published by the ministry as if they were determinations of contravention.
Appeal allowed.
FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/96-03.pdf
Third Party: MacMillan Bloedel Ltd. Intervenor: Sierra Club of British Columbia
APPEAL NO. 96/04
The Board appealed the approval of a forest development plan (FDP) on Vancouver Island. It was the first appeal of a FDP, and raised questions as to what constituted “the plan,” and whether it met the transitional period test for “substantial compliance” with Forest Practices Code requirements for fish streams, wildlife, cultural heritage resources, unstable terrain, and public review and comment. The Board argued that limited information and confusing content meant the FDP did not meet the content requirements, and therefore the FDP approval decision which required the district manager to be satisfied that the plan would adequately manage and conserve forest resources of the Crown. The FAC acknowledged that while there may be deficiencies in the plan, gaps in evidence and argument led it to dismiss the appeal.
Appeal dismissed.
FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/96-04b.pdf
Third Party: Forest Practices Board
APPEAL NO. 96/05
This appeal raised issues concerning whether due diligence is available as a defence to an administrative contravention determination. The Board did not take a position on the facts in this appeal, but argued that as a matter of law that while due diligence is not a defence to a contravention, evidence that all reasonable care was taken should be taken into account in determining the penalty amount. The Board’s position was that a person should not be allowed to profit from breaking the law, and the public should be compensated for the lost value of its timber and the cost of restoration, regardless of whether due diligence was exercised. The FAC ruled that due diligence is not a defence to a contravention and penalty determination under the Code, and that MacMillan Bloedel did not exercise all reasonable care to avoid the contravention. It also commented that the Ministry should take steps to ensure that timber is not left to deteriorate in trespass situations, as was the case in this appeal.
Appeal dismissed.
FAC Decisions: http://www.fac.gov.bc.ca/forestPracCode/96-05b.pdf (due diligence issue) and http://www.fac.gov.bc.ca/forestPracCode/96-05c.pdf (penalty amount issue).
Third Party: Forest Practices Board
APPEAL NO. 96/12
This appeal concerned whether disturbance caused by yarding operations to the banks of a watercourse was a contravention to section 11 of the Timber Harvesting Practices Regulation. The FAC found that there was insufficient evidence to determine that the watercourse met the definition of “stream” due to the requirements that it have “continuous definable banks” and an “alluvial sediment bed,” so it reversed the contravention determination.
Appeal allowed.
FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/96-12.pdf
Third Party: Forest Practices Board
APPEAL NO. 96/06
Houston appealed a determination that its operations had caused “damage to environment” contrary to section 45 of the Code. Houston and the Ministry of Forests later made a joint submission in support of a consent order that there was insufficient evidence to conclude that there had been damage to the environment. The Board took no position on the joint submission.
Consent Order: http://www.fac.gov.bc.ca/forestPracCode/96-06.pdf
APPEAL NO. 95/02
This was the first appeal heard by the FAC. Tolko and the Forest Practices Board both appealed a review panel decision concerning a contravention finding of a district manager that Tolko damaged a riparian area. The sole member of the ministry review panel appointed to hear Tolko’s initial appeal was the district manager for the adjacent forest district. The Board argued that it is improper for a district manager to review a determination made by another district manager, as it gives rise to a reasonable apprehension of bias. Instead of a district manager acting as the review official, the review should be made up of panels of three which could include staff from the central office of the Ministry of Forests and perhaps a district manager. The FAC disagreed, and dismissed the Board’s appeal.
Tolko’s appeal was based on procedural fairness issues in the ministry processes leading up to the contravention and penalty determinations. The FAC agreed that there were some flaws in the procedure followed, but found that its own appeal process could cure those. As Tolko did not call any evidence to refute the substance of the contraventions, the FAC dismissed its appeal.
Appeal dismissed.
FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/95-02.pdf
