Decision Date: May 31, 1999

Panel: David Omerod, Bruce Devitt, Geza Toth

Keywords: Forest Practices Code of British Columbia Act – s.45; Forest Road Regulation – s. 13, 18(1).

This was an appeal by Riverside against a decision of an review panel upholding a determination of the District Manager that Riverside caused a landslide which damaged the environment, contrary to s.45(1) of the Forest Practices Code of British Columbia Act (the “Code“), and that Riverside failed to install or maintain adequate road drainage structures as required by the Forest Road Regulation (“the Regulation“). Riverside sought an order from the Commission rescinding the review panel’s decision.

Riverside submitted that it did not contravene the Regulation by failing to install a ditch block at the culvert, as the requirements in the Regulation applied only to cross drain culverts and the culvert at issue was a stream culvert. Riverside also argued that the Regulation only applied to forest roads until their deactivation, temporarily or otherwise, and that as the road in question was temporarily deactivated, Riverside was under no obligation to ensure the functionality of the road’s drainage systems.

The Commission found that the culvert was clearly intended to carry a watercourse under the road, and as such it was a stream culvert. The Commission found therefore that the Regulation was applied in error. However, the Commission also found that the Regulation required Riverside to ensure that the drainage systems of the road were functional and that by failing to do so, Riverside contravened the Regulation.

Riverside contended that it did not cause a landslide which damaged the environment, contrary to s.45(1) of the Code, but rather that it was caused by severe the winter weather. Riverside also argued that at the time of the slide, all of the harvesting and road deactivation had been completed, and that it was therefore not actually carrying out a forest practice that could have led to the damage at the time of the slide. Riverside also submitted that even if its forest practices were causal factors in the landslide, s.45(1) was not applicable because it could invoke the defence in s.45(2) of the Code that a person who harms the environment while acting in accordance with a valid operational plan or permit does not contravene s.45(1).

The Commission found that on a balance of probabilities, the slide was caused by inadequate measures to maintain natural drainage in the aftermath of Riverside’s logging activity. The Commission did not accept Riverside’s argument that because the logging had been completed, it was not carrying out forest practices at the time of the slide, and therefore did not contravene s.45(1). The Commission found further that Riverside was not acting in full compliance with its approved plans and permits, and therefore the s.45(2) defence was not relevant.

The Commission found that Riverside had on-going responsibilities to prevent damage to the environment by meeting the requirements of the operational plans and permits, and held that Riverside damaged the environment in contravention of s.45(1) of the Code and contravened the Regulation by failing to ensure the functionality of the logging road’s drainage system. The appeal was allowed in part.