Decision Date: February 19, 2008

Panel: Alan Andison

Keywords: Timber Harvesting and Silviculture Practices Regulation – s. 11, s. 14; stream protection; definition of stream; non-classified drainage or seepage

B&T Forest Products (“B&T”) is the holder of a Salvage Non-Replaceable Forest Licence in the Finger Lake Watershed, south of Vanderhoof, BC. A watercourse ran through Block 1 of Cutting Permit 1 within the licence area. B&T staff determined, before harvesting began, that the watercourse was not a stream and did not, therefore, require protection under forestry legislation. After harvesting, staff from the Ministry of Forests inspected the site and found running water within Block 1. The Ministry concluded that it was a stream and that B&T had contravened subsections 11(1) and 14(1) of the Timber Harvesting and Silviculture Practices Regulation (the “Regulation”) by failing to protect the stream during harvesting and road construction. A total penalty of $7,000 was imposed for the contraventions.

B&T appealed on the grounds that it did not contravene the Regulation because the watercourse in question was not a stream. B&T also invoked the defences of due diligence and mistake of fact, and argued that the penalty was too severe.

The first issue considered by the Commission was whether the watercourse within Block 1 was a “stream” within the meaning of the relevant legislation. To be a “stream” under the legislation in question a watercourse must have a continuous channel bed of at least 100 metres, with observable scour or alluvial deposits. The parties agreed that there was a stream above the boundary of Block 1. The Commission accepted that B&T intentionally adjusted the northern boundary of Block 1 so as to exclude that stream from the block. The parties also agreed that there was a dry channel bed with definable banks and alluvial materials 30 metres south of the northern boundary.

The dispute related to the wet area between the northern boundary and the dry channel. Because B&T’s witnesses had inspected the area prior to harvesting, whereas the government’s witnesses had not, the Commission gave more weight to B&T’s evidence that the wet area did not exhibit the characteristics of a stream before harvesting began and was more aptly described as a non-classified drainage or seepage. Therefore, the Commission determined that Block 1 did not contain a channel bed of 100 metres in length with scour or alluvial sediment, and that B&T did not contravene sections 11(1) and 14(1) of the Regulation. As a result, the defences invoked by B&T and the appropriateness of the penalty were not addressed.

Accordingly, the appeal was allowed.