Decision Date: August 22, 2005

Panel: Alan Andison

Keywords: Forest Practices Code of British Columbia Act – ss. 96(1) and (2), 117 (1) and 4(a) and (b); unauthorized harvesting; timber salvage; appropriate penalty.

James Darwin appealed two separate determinations by the District Manager, that he contravened sections 96(1) and (2) of the Forest Practices Code of British Columbia Act (the “Code“).  In the first determination, the District Manager found that Mr. Darwin was responsible for illegally harvesting and removing approximately 479 m³ of Crown timber from the Smith Inlet area.  The District Manager levied a penalty of $30,000 for the contraventions.  In the second determination, he found that Mr. Darwin was responsible for illegally harvesting and removing 599 m³ of Crown timber from the Moses and Hardy Inlet areas.  The District Manager levied a penalty of $12,500 for the contraventions.  A review panel upheld the first determination.  No review was sought for the second determination.  Mr. Darwin requested that both determinations be rescinded, or in the alternative, that the Commission determine that the penalties are excessive in the circumstances.

With regard to the first determination, the Commission found that the evidence submitted by the Government established that most of the logs in Mr. Darwin’s possession had been illegally harvested.  The Commission did not accept Mr. Darwin’s submission that he had found the logs as part of his salvage operation.

With regard to the second determination, the Commission found that there was no evidence to support the possibility that the logs originated from a log spill, theft involving a licensee’s boom, or a natural source.  The Commission also found that Mr. Darwin did not provide a credible explanation for how he obtained the wood.

The Commission found it unlikely, in both cases, that the logs would have been harvested by someone else and left behind on the beach or floating on the water, given the value of the wood, as well as the effort and danger involved in removing it.

Further, the Commission found no evidence that Ministry staff were harassing Mr. Darwin and attempting to drive him out of business, or that he was treated differently from any other salvor.

The Commission found that the penalties were reasonable in the circumstances.  The Commission found that although the penalty in the second determination was at the low end of the scale, it was appropriate as general deterrence.  Although it was Mr. Darwin’s second contravention of this nature, specific deterrence was not deemed necessary, as Mr. Darwin is permanently out of the salvaging business.

Accordingly, the appeals were dismissed.