Decision Date: July 29, 2016

Panel: David H. Searle, Q.C., Les Gyug, Norman E. Yates

Keywords: Forest and Range Practices Act – ss. 21(1), 72; Forest Planning and Practices Regulation – definition of “altered forest landscape”, s. 1.1; timber harvesting; forest stewardship plan; visual quality objective; penalty; due diligence

Interfor Corporation (“Interfor”) appealed a determination issued by the District Manager (the “District Manager”), Sunshine Coast Natural Resource District, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The District Manager determined that Interfor contravened section 21(1) of the Forest and Range Practices Act (“FRPA”) by failing to achieve the results specified in its forest stewardship plan (“FSP”) with respect to a “partial retention” visual quality objective (“VQO”) for a cutblock on Stuart Island. The District Manager also determined that no defences applied, and levied an administrative penalty of $20,000 against Interfor.

Interfor holds a forest licence that includes the southeast side of Stuart Island, which is within a “scenic area” identified by the Ministry. Five levels of VQOs apply to timber harvesting in scenic areas, with “partial retention” being the middle level. Section 1.1(c) of the Forest Planning and Practices Regulation (the “Regulation”) defines “partial retention” as “consisting of an altered forest landscape in which the alteration, when assessed from a significant public viewpoint, is easy to see, small to medium in scale, and natural and not rectilinear or geometric in shape.” The Regulation does not define the altered area as a percentage of a landform. However, according to the Ministry’s Visual Impact Assessment Guidebook (the “Guidebook”), partial retention equates to a range of 1.6 to 7 percent for the visibly altered area of a landform.

Before it began harvesting, Interfor assessed the potential visual impact of different cutblock layouts based on information from site visits, public consultation, and visual impact modelling. When modelling the potential visual impact, Interfor considered the southeast side of Stuart Island to be one landform, and used visualizations of several cutblock layouts from two or three viewpoints. After selecting an initial cutblock layout, Interfor sought a peer review of its visual impact assessment. Based on comments from the peer reviewer, Interfor revised the proposed cutblock layout to reduce its size and improve its shape. Interfor prepared a revised visual assessment which was reviewed by the same peer reviewer. Although one of the three viewpoints exceeded the Guidebook’s maximum percentage of alteration for “partial retention” by 1.5%, the peer reviewer concluded that the partial retention VQO would be met from the significant public viewpoints. Interfor conducted harvesting based on that cutblock layout.

After harvesting was completed, the Ministry received a public complaint. Ministry staff inspected the cutblock from three viewpoints, which they chose themselves; they were unaware of the viewpoints Interfor had used for its visual impact assessment. Ministry staff also assessed the visual impact based on a different scale of landform than Interfor had used. Ministry staff concluded that the cutblock was “very easy to see,” “large” in scale, and the percentage alteration exceeded the range for partial retention from all three viewpoints. The Ministry then initiated a more detailed investigation.

Following an opportunity to be heard, the District Manager issued the determination and levied the penalty of $20,000.

Interfor appealed to the Commission on the basis that the District Manager erred in weighing the evidence. Interfor argues that the District Manager: relied on photographs taken from viewpoints that did not depict the entire southeast side of the island (i.e., the entire landform); relied on numerical assessments that were based on only part of the landform, which resulted in a higher percentage of altered area; and, failed to give sufficient weight to evidence from Interfor’s peer reviewer. Alternatively, Interfor argued that it exercised due diligence to prevent the contravention, by taking all steps that could reasonably be expected to achieve the partial retention VQO. Interfor requested that the Commission vary the determination to conclude that the partial retention VQO had been achieved. Interfor did not appeal the penalty.

First, the Commission considered whether Interfor met the partial retention VQO as required in the FSP, based on the definition of “partial retention” in section 1.1(c) of the Regulation. The Commission considered photographic evidence, as well as expert evidence from both parties. Based on the evidence, the Commission concluded that it did not when viewed from one significant public viewpoint, regardless of whether the landform was considered to be the entire southeast side of the island, or the smaller landform used in the Ministry’s assessment. The alteration of the forest landscape that was created by the cutblock was “very easy to see” rather than “easy to see”, was “large in scale” rather than “small to medium in scale”, and was “rectilinear” rather than “natural” in shape.

Next, the Commission considered whether Interfor had exercised due diligence to prevent the contravention. After reviewing the evidence regarding Interfor’s reasons for choosing the cutblock layout that was implemented, the Commission concluded that Interfor did not exercise due diligence.

The Commission confirmed the determination and the penalty. Accordingly, the appeal was dismissed.