Decision Date: August 12, 2014

Panel: Alan Andison

Keywords: Forest and Range Practices Act – s. 108; free growing stand; wildfire; consent order

In 2010, wildfires burned the vegetation on six cut blocks in the Quesnel District that Tolko Industries Ltd. (“Tolko”) had harvested. Tolko did not cause or contribute to the cause of the wildfires. On three of the cut blocks, fire destroyed lodgepole pine seedlings that had naturally regenerated. The other three cut blocks were recently harvested and little natural regeneration was present, but Tolko had planned to allow natural regeneration of lodgepole pine on those cut blocks.

In 2012, Tolko applied for relief under section 108 of the Forest and Range Practices Act (“FRPA”), from its obligation under section 29 of the FRPA to establish a free growing stand on each of the cut blocks. Section 108 of the FRPA provides the Minister with discretion to relieve a person from an obligation to establish a free growing stand, or provide funding to help the person achieve the obligation, if the person satisfies the Minister that the obligation cannot be met without significant extra expense related to an event causing damage. Tolko asserted that its obligation to establish a free growing stand on each cut block could not be met without significant extra expense, because the wildfires had forced Tolko to abandon its plans to naturally regenerate the cut blocks. The District Manager, acting as a delegate of the Minister, refused to grant relief to Tolko.

Tolko appealed to the Commission on the basis that the District Manager erred in interpreting and applying section 108 of the FRPA. Tolko claimed that it would have achieved free growing stands of lodgepole pine on the cut blocks using natural regeneration if the fires had not occurred. Tolko submitted that the fires burnt existing seed, seedlings, and duff layers, leaving exposed and blackened soil. As a result, natural regeneration was no longer a viable method for regeneration, and Tolko would have to manage the cut blocks more actively, including undertaking site preparation and tree planting. Tolko argued that section 108(4) of the FRPA required the Minister to provide sufficient funding to replicate the growth potential that existed on the six cut blocks before the fires. Tolko asserted that it would have to incur approximately $1.4 million in extra expenses to establish free growing stand on the damaged cut blocks.

After the appeals were filed, the parties requested that the appeals be held in abeyance to allow the parties time to negotiate a resolution. Ultimately, the parties agreed to settle the appeals without the need for a hearing before the Commission.

By consent of the parties, the Commission ordered that:

1. the appeals were allowed and the determinations were set aside; and
2. the Minister grant funding to Tolko under section 108(4) of the Act in respect of the six remaining cut blocks, in the amount of $1,092,407.70.