Decision Date: January 22, 2007

Panel: David Ormerod

Keywords:  Forest Practices Code of British Columbia Act – ss. 70(3), 70(4)(e); Forest Act, R.S.B.C. 1979, c. 140 – ss. 129.3; silviculture obligations; free growing stand; woodlot licence

Allan Neville appealed a determination of the District Manager, Columbia Forest District, that Mr. Neville had contravened sections 70(3) and 70(4)(e) of the Forest Practices Code of British Columbia Act (the “Code”) by failing to establish a free growing stand on a cutblock that he had harvested under a woodlot licence.  The District Manager assessed penalties of $3000 and $2000, respectively, for each of the contraventions.

Mr. Neville’s woodlot licence was granted in 1985.  At that time, there were no legislated silviculture requirements for woodlot licence holders.  However, in December 1987, the Forest Act was amended to make woodlot licence holders responsible for silviculture on areas they harvested.  Mr. Neville argued that he had completed harvesting on the cutblock in question before those amendments came into force.  He also argued that the cutblock was free-to-grow, and that the silviculture survey on which the District Manager had relied contained errors.

Based on the evidence, the Commission found that all but 16 percent of the cutblock was harvested before the Forest Act was amended.  Consequently, Mr. Neville was responsible for establishing free-to-grow regeneration on only 16 percent of the cutblock.  Regarding that portion of the cutblock, the Commission found that the evidence established that the area was not free-to-grow within the time required.  Accordingly, the Commission found that Mr. Neville contravened the Code by failing to meet his silviculture obligations on the portion of the cutblock.  The Commission also found that the defence of due diligence did not apply, because Mr. Neville waited until 10 years after harvesting was completed to conduct a regeneration survey, and then waited another 8 years before doing a brushing treatment to remove competing vegetation.  Based on evidence of the estimated cost to achieve free-to-grow status on the entire cutblock, and then pro-rating those costs to cover 16 percent of the cutblock, the Commission concluded that a total penalty of $800 was appropriate in the circumstances.  Accordingly, the Commission varied the District Manager’s determination by reducing the total penalty to $800 from $5000.

The appeal was allowed, in part.