Decision Date: March 28, 2006

Panel: Alan Andison, Cindy Derkaz, Katherine Lewis

Keywords: Forest and Range Practices Act ss. 108(2) and 108(4); Forest Planning and Practices Regulation s. 96(1.1); silviculture; free growing stand; seedling mortality; drought; meaning of “an event causing damage”

Tolko Industries Ltd. (“Tolko”) appealed two determinations made by the District Manager denying Tolko’s request for funding to fulfill its obligation to establish free growing stands on cut blocks in the Kamloops Forest District. The requests arose due to a high incidence of seedling mortality attributed to drought conditions in the area in the summer of 2003. The District Manager denied Tolko’s requests on the basis that a drought was not “an event causing damage” as provided for in section 96(1.1) of the Forest Planning and Practices Regulation. At the hearing, Tolko elected to proceed with the appeal of only one of the determinations. Tolko requested that the Commission vary the District Manager’s determination by finding that the 2003 drought was “an event causing damage” and that Tolko was entitled to funding pursuant to section 108(2) of the Forest and Range Practices Act.

The Commission found that the District Manager erred at law when he determined that the drought was precluded from the definition of “an event causing damage.” It further found that “an event causing damage” does not need to change an area permanently or otherwise significantly change the area of ground on which a licensee has an obligation to establish a free growing stand. A drought can, for its duration, render an area ill-suited for the establishment of a free growing stand. However, the Commission found that it had heard insufficient evidence to decide whether the drought that occurred in 2003 was itself “an event causing damage.” Therefore, the Commission was not prepared to make a finding that Tolko was entitled to funding.

The District Manager’s determination was rescinded and the appeal allowed.