Decision Date: June 13, 2007

Panel: Cindy Derkaz

Keywords: Forest and Range Practices Act – s. 51, s. 71(5); fencing; Range Improvement Authorization; procedural fairness; penalty assessment

Rainer Albert Krumsiek and Gertrud Sturm-Krumsiek (the “Appellants”) operate a cattle ranch and hold a grazing licence covering a portion of Crown land. In 2004, they approached the Ministry of Forests and Range (the “Ministry”) with a proposal to fence a portion of the Crown pasture they used in order to prevent their herds from mixing with those of another licence holder. In 2005, the Ministry issued a Range Improvement Authorization (the “2005 Authorization”) for the construction of a four strand, smooth wire electric fence, which included requirements and specifications to be met when constructing the fence and provided a window of over five months for completion of the fence. The Ministry also supplied seven rolls of high tensile wire for construction of the fence.

The Appellants failed to construct the fence in accordance with the specifications before expiry of the 2005 Authorization. In particular, the Appellants constructed a single wire electric fence instead of the four strand fence specified in the Authorization. A second Range Improvement Authorization (the “2006 Authorization”) was issued in 2006 with similar specifications. As the Appellants again failed to complete construction of the fence in compliance with the specifications by the date specified in the 2006 Authorization, the District Manager issued a determination that the Appellants had contravened section 51(6) of the Forest and Range Practices Act (the “Act”) by failing to complete the fencing requirements set out in the 2005 Authorization.

The District Manager imposed a penalty of $830 for the contravention. The District Manager also included a remediation order in his determination, pursuant to section 51(7) of the Act, requiring the Appellants to remove certain unauthorized fencing materials.

The Appellants appealed the District Manager’s determination on several grounds. The issues raised in the appeal are summarized as follows:

• Whether there was a lack of procedural fairness such that the determination should be rescinded;
• Whether the Appellants contravened section 51(6) of the Act; and
• If so, whether the assessed penalty and remediation order are appropriate in the circumstances.

Regarding the first issue, the Commission found that there was no lack of procedural fairness in the proceedings below it. The Commission found no evidence that the Ministry had unreasonably refused to consider approving a single strand electric fence. The Commission found that, neither the Ministry’s delay in providing inspection reports, nor the short deadline for compliance, resulted in any prejudice to the Appellants. The Commission held that the District Manager’s refusal to postpone the opportunity to be heard in order to accommodate the Appellants’ witness did not amount to a breach of procedural fairness, as the witness was permitted to provide a written submission, which was considered by the District Manager. In addition, the Commission found that the appeal process had cured any deficiency that may have occurred in the process that led to the determination.

Turning to the second issue, the Commission determined that the evidence clearly showed that the Appellants built a fence on Crown land contrary to the specifications set out in the 2005 Authorization. Although the Appellants argued that they should not have been found to contravene section 51(6) because a single strand electric fence should have been approved, the Commission found that it does not have the jurisdiction to change the specifications set out in the 2005 Authorization. The determination of which type of fence is most suitable on Crown land is a policy issue for the Ministry to consider and not for the Commission to decide.

Finally, the Commission determined that simply providing specifications to a fencing crew, as the Appellants had done, without proper supervision did not satisfy the test for the defence of due diligence. Moreover, the District Manager’s safety concerns with respect to a single strand electric fence were reasonable, and the Ministry may properly take concerns about public and wildlife safety into account when making a determination.

Regarding the penalties, the Commission agreed with the District Manager’s conclusion that the Appellants deliberately contravened section 51(6) of the Act. Therefore, the Commission found that some form of deterrent penalty was appropriate, as was the Ministry’s determination that the value of the wire provided to the Appellants was an economic benefit to be recovered. Therefore, the Commission found the penalty of $830 to be reasonable. Similarly, the Commission determined that the remediation order issued by the District Manager was reasonable.

Accordingly, the determination of contravention of section 51(6), the penalty and the remediation order were confirmed. The appeal was dismissed.