Decision Date: December 14, 2007

Panel: David H. Searle, C.M., Q.C.

Keywords: Forest and Range Practices Act – ss. 50(1), 72(a); cattle grazing; trespass; due diligence

In 2005, the District Manager, 100 Mile House Forest District, Ministry of Forests and Range (the “Ministry”) found that Mr. Miller and Miller Ranches Ltd. (the “Appellants”) had contravened section 50(1) of the Forest and Range Practices Act (the “Act”) by permitting their cattle to graze on Crown range without authorization on three separate occasions in 2004. The District Manager imposed a penalty of $1,000 for the contravention.

The Appellants appealed the District Manager’s determination on the basis that they exercised due diligence. They asked that the Commission rescind the determination and the penalty.

The Commission found that the Appellants had established the defence of due diligence. Given the severe drought in 2004, it would have been unreasonable to expect the Appellants to focus their resources on fencing. The Appellants did what a reasonable person would be expected to do to avoid the trespasses: they asked the Ministry for a renewal of the Temporary Grazing Permit that had been granted in 2002 so that they would have more range available for their cattle, they conducted an air borne survey of their range to determine available feed and water, they shipped 400 head of cattle to Horsefly, they rotated their cattle throughout their land, they contacted highway officials to request that the ineffective mud-plugged cattle guards be cleaned, they placed salt on the ranch to keep the cattle there, and they drove cattle that had wandered off back to their property. The Commission also considered the fact that the fencing required to prevent the trespasses would have been very expensive to build, and the Appellants had been unable to reach an agreement with adjacent private land owners over sharing the cost of the fencing.

Accordingly, the determination and the penalty were rescinded. The appeal was allowed.