Decision Date: October 10, 2006

Panel: David Ormerod

Keywords: Forest Practices Code of British Columbia Act ss. 96(1), 97(2); Forest and Range Practices Act s. 71.

William and Gordon Podgorenko (the “Appellants”) appealed a determination by the District Manager, Kootenay Lake Forest District (“KLFD”), that the Appellants had contravened sections 96 and 97(2) of the Forest Practices Code of British Columbia Act (the “Code”).  The District Manager had imposed a penalty of $10,810.60 for cutting timber on Crown land without authority in contravention of section 96.  No penalty had been imposed for the contravention of section 97(2), which requires a person to ascertain the boundaries between private and Crown land before removing timber from the private land.

The Appellants submitted that they had not harvested or removed timber from Crown land.  They suggested that a number of other persons could have been responsible for the illegal harvesting that had occurred and provided evidence that woodcutters had been active in the area.

The Respondent submitted that there was sufficient circumstantial evidence to support a finding that the Appellants had harvested the timber.  It argued that the slope between the Appellants’ land and a road running through Crown land was too steep for the timber to have been removed except through the Appellants’ land.

The Commission found insufficient evidence to support the determination that the Appellants were responsible for the illegal harvesting.  Maps and aerial photographs demonstrated that it was possible for the timber to have been removed along routes that did not cross the Appellants’ land.  The Commission felt that William Podgorenko was a credible and consistent witness, and it accepted his evidence that he had not crossed the boundary between his land and Crown land.  As a result, the Commission was unconvinced that the Appellants had harvested timber on Crown land.

In relation to the contravention of section 97(2), the Appellants submitted that a survey had been conducted on their behalf in 1994 and a ribbon had been hung at the boundary between their land and Crown land.  However, the Appellants provided no evidence of that survey, and evidence given by a B.C. Land Surveyor indicated that no ribbon was there when he conducted a survey for the Ministry of Forests in 1996.  Furthermore, the Appellants had been in a boundary dispute with the Ministry since 1994 that was not settled until 1996.  As a result, even if the ribbon had been hung, the boundary should have been marked out using the posts installed in the 1996 survey.  Consequently, the Commission affirmed the contravention of section 97(2).

The Commission considered the factors set out in section 71(5) of the Forest and Range Practices Act when determining the penalty that should be levied for this contravention.  Although no harvesting of Crown timber resulted from the failure to properly establish the boundary, the contravention was more serious because the Appellants were aware of the KLFD’s concerns that the boundary be marked.  Given the previous dispute over the boundary with Crown land, their failure to properly ascertain it suggested a deliberate disregard for their legal responsibility.  However, there was a lack of evidence that the Appellants had harvested near this boundary.  Based on all of these considerations, the Commission imposed a penalty of $2000.

Accordingly, the Commission rescinded the contravention of section 96 of the Code and its associated penalty.  The Commission confirmed the contravention of section 97 of the Code but varied the determination by imposing a penalty of $2000.  The appeal was allowed in part.