Decision Date: June 13, 2014

Panel: Gabriella Lang

Keywords: Forest and Range Practices Act – ss. 52(1), 52(3), 53(1), 53(2) 71(5), 72; unauthorized timber harvesting; determination; land boundary; crown timber; due diligence; penalty

In this appeal, the Forest Practices Board (the “FPB”) challenges a District Manager’s finding that the Douglas Lake Cattle Company (“Douglas Lake”) had established a defence of due diligence to certain contraventions of the Forest and Range Practices Act (“FRPA”). The FPB argued that the District Manager had no evidence before him to establish this defence, and that the Commission should find that: (a) Douglas Lake did not establish the defence of due diligence; and (b) that a penalty ought to be levied against Douglas Lake for the contraventions.

This case involved the harvesting of timber from Douglas Lake’s private land in the Lillooet Land District. Douglas Lake was authorized to cut, mark and haul timber from its land. In 2010, it retained a contractor to harvest timber from its land. Douglas Lake had a long standing relationship with the contractor.

There is Crown land adjacent to the eastern boundary of the land. Douglas Lake did not inform the contractor of the boundaries of his land and provided no oversight of the harvesting operation. The contractor attempted to determine the boundaries, but the eastern boundary was not accurate. As a result, timber was harvested from Crown land without authority, contrary to section 52 of the FRPA.

The District Manager notified the contractor and Douglas Lake that their harvesting activities may have violated sections of the FRPA in relation to the unauthorized harvesting of Crown timber and failing to ascertain the boundaries of private land before harvesting. An opportunity to be heard was provided to these parties. Douglas Lake advised that its contractor would represent its interests, and provided no submissions on its own behalf.

Of relevance to this appeal, the District Manager determined that there were contraventions of the FRPA, but that Douglas Lake had exercised due diligence to prevent the contraventions. The District Manager made this finding despite the fact that neither Douglas Lake, nor the contractor on its behalf, raised this as a defence or provided any evidence in support. The District Manager’s conclusion was based, in part, on Douglas Lake’s long standing business relationship with the contractor, his reliance on the contractor, and the contractor’s admission of responsibility for the contraventions.

The test for due diligence is “whether the accused exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system.” The Commission found that no defences had been raised by the contractor or Douglas Lake at the opportunity to be heard, and no evidence of due diligence was provided during those proceedings. Further, Douglas Lake did not participate in the appeal, despite being invited to do so, and despite the fact that the issue of Douglas Lake’s due diligence was the only issue to be decided on the appeal. The Commission found that there was no evidence before it that Douglas Lake had exercised reasonable care, which, at a minimum would have required Douglas Lake to correctly mark the boundary of the land or ensure that someone did on its behalf. This ground for appeal was allowed.

On the question of penalty, the Commission found that a penalty should be assessed against Douglas Lake as the contraventions were preventable, there was harm to habitat values, there was financial gain from the harvest and sale of the Crown timber, and Douglas Lake had a previous contravention of a similar nature. The Commission referred the matter of the amount of the penalty back to the District Manager, with directions.

The appeal was allowed.