Decision Date: October 8, 2014

Panel: Alan Andison

Keywords: Forest and Range Practices Act – ss. 107(1) and (4); free growing stand; silviculture survey; consent order

Stella-Jones Canada Inc. (“Stella Jones”) appealed a determination (the “Determination”) that was issued by the District Manager (the “District Manager”), Kootenay Lake Forest District, Ministry of Forests, Lands and Resource Operations (the “Ministry”). The District Manager issued the Determination on the basis of his finding that Stella Jones had failed to fulfil an obligation in respect of establishing a free growing stand on four cut blocks, until a further independent silviculture survey had been completed for the cut blocks in question. Stella Jones’ obligation to establish free growing stands flowed from Free Growing Declarations made by Stella Jones under section 107(1) of the Forest and Range Practices Act (“FRPA”).

In the Determination, the District Manager provisionally found that Stella Jones had failed to fulfil its obligation to establish a free growing stand because there was a significant discrepancy between Stella-Jones’ survey results and the Ministry’s survey results of the number of trees on the blocks in question. The survey data reported by Stella Jones showed that there were more trees on each of the blocks than was required under the Site Plan requirements. The Ministry’s survey, on the other hand, showed that there were fewer trees on each of the blocks than was required under the Site plan requirements. The District Manager found that the differences between the Stella and the Ministry’s surveys were significant, and that the only “unbiased or fair conclusion to this matter require[d] a further independent survey of the blocks in question.” The District Manager found that, as there was insufficient snow free opportunity to re-survey the blocks prior to the end of the declaration period, it was appropriate to reject Stella Jones’ Free Growing Declarations at the time, in order to allow for the opportunity to re-survey the blocks once the sites were snow free. The District Manager also stated that he would select an appropriate qualified and independent surveyor, and would use the results of this survey to determine the final outcome of this case.

Stella Jones appealed the Determination on several grounds, including that the District Manager failed to address the defence of due diligence. Prior to a hearing of the appeal, the parties negotiated an agreement with respect to the appealed Determination. With the parties’ consent, the Commission ordered that the appeal be allowed, and the Determination be set aside.