Decision Date: July 12, 2019

Panel: Alan Andison

Keywords: Forest and Range Practices Act – ss. 22(2), 46(1), 52(1), 74, 75(1); Forest Planning and Practices Regulation – s. 57; remediation order; administrative penalty; road construction; soil compaction; fish habitat; unauthorized harvesting; rule against multiple convictions; procedural fairness; limitation period

O’Brien and Fuerst Logging Ltd. (the “Company”) appealed a determination and a remediation order issued in September 2017 by the District Manager (the “Manager”), North Island – Central Coast Natural Resource District, Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”). The Manager determined that the Company had contravened the Forest and Range Practices Act (the “Act”) and the Forest Planning and Practices Regulation (the “Regulation”) while constructing logging roads on Haida Gwaii. The Manager levied penalties totalling $85,000 for the contraventions, and issued a remediation order to the Company.

The contraventions arose from the following circumstances. In July 2012, the Ministry issued a road permit to the Company. The road permit authorized the construction of roads to access cutblocks within a timber sale licence (“TSL”) area held by the Company. The TSL area was difficult terrain for road building and harvesting. Overall, the terrain was relatively flat, allowing water to collect. Higney Creek, a fish-bearing stream, flows within the TSL area. Roads in the TSL area crossed Higney Creek and its tributaries in six locations, and stream crossings were built as road construction progressed. Gravel was critical to road building in the area, but the Company had difficulty finding sufficient gravel to build the roads. It eventually found a good source of gravel outside of the TSL area. To access this gravel, the Company needed to build a new road outside of the TSL and road permit area.

In 2013, the Company applied to the Ministry for an amendment to the road permit, to allow the construction of a new road connecting the TSL area to the gravel source. The application was provided to a joint consultation body made up of members of the Haida Nation and the provincial government, which identified concerns regarding culturally significant values along the proposed road right-of-way. The Ministry denied the amendment application in June 2014.

In September 2014, the Company applied for a second route. However, the new route was within a protected Cedar Stewardship Area, and the Haida Nation did not support this application. As road building in the TSL area progressed, the Company brought in gravel from 55 kilometers away, and again asked the Ministry to approve the second route. The Ministry discussed the proposal with both the Haida Nation and the Company. The Ministry acknowledged that it had the authority to grant the road permit amendment even if the Haida Nation did not support it.

In November 2014, the Ministry sent the Company an unsigned and undated copy of a decision rationale for its pending decision. The rationale concluded that the road permit amendment application proposing the second route was acceptable. Regarding the Cedar Stewardship Area, the Ministry stated that a second decision – following a separate and distinct process – was required to address that area. However, no approved amendment to the road permit was issued to the Company.

On an unknown date, the Company’s employee began to construct a new road along the second route (the “Unauthorized Road”). To build the road, trees were cut, roots were removed, and gravel was removed from an unpermitted area. A small slide occurred during construction. The Company’s owner became aware that construction had begun, but did not tell the employee to stop. A few days after construction began, staff from the Ministry attended the site and issued a stop work order. The Ministry began an investigation of the Unauthorized Road. Shortly afterwards, the TSL area also became the subject of a Ministry investigation.

The Manager concluded that the Company had constructed the Unauthorized Road contrary to section 22(2) of the Act and, in doing so, harvested trees without authorization and damaged the environment contrary to sections 46(1) and 52(1) of the Act. The Manager also concluded that the Company failed to protect fish and fish habitat by introducing sediment into Higney Creek and its tributaries when building roads authorized by the road permit in its TSL area (the “Authorized Roads”), contrary to section 57 of the Regulation.

The Company appealed the determination and the remediation order. The Company agreed that it had constructed the Unauthorized Road contrary to section 22(2) of the Act. However, it submitted that the determination ought to be varied by rescinding the other two contraventions related to the Unauthorized Road, and by reducing or eliminating the associated penalties. Regarding the Authorized Roads, the Company objected to the determination of a contravention of section 57 of the Regulation, and it asked the Commission to rescind the contravention and associated penalty. Finally, the Company submitted that it had completed all of the necessary remedial work, and the remediation order should be rescinded.

The Commission first considered the three contraventions associated with the Unauthorized Road. The Commission found that there was some procedural unfairness in the process that led to the Manager’s decision on one of the contraventions, but the full hearing before the Commission cured the procedural unfairness. Based on the evidence, the Commission confirmed that the Company contravened sections 46(1) and 52(1) of the Act by building the Unauthorized Road. The Commission also found that the common law rule against multiple convictions did not apply to shield the Company from liability for those contraventions. However, the Commission held that, in determining the appropriate penalty, the Company should not be penalized multiple times for a single wrongful act. Based on the factors in section 71(5) of the Act, the Commission found that the penalty for the three contraventions should be reduced from $55,000 to $13,000.

Next, the Commission considered the contravention associated with the Authorized Road. The Commission found that there was some procedural unfairness in the process that led to the Manager’s decision on this contravention, but the full hearing before the Commission cured the procedural unfairness. Based on the evidence, the Commission confirmed that the Company contravened section 57 of the Regulation when building the Authorized Road. There was evidence that the manner of road construction would result in “additional harm” (i.e., additional sedimentation) to the stream than would otherwise occur simply by virtue of a forestry road. The evidence supported a finding that there was a “real possibility” or “reasonable expectation” of harm to fish or fish habitat. The Commission also found that the defence of due diligence did not apply to this contravention, and the three-year limitation period in the Act did not prevent the penalty or the remediation order from being issued. Based on the factors in section 71(5) of the Act, the Commission found that the penalty for the contravention should be reduced from $30,000 to $10,000.

Finally, the Commission considered the remediation order. Regarding the contravention of section 57 of the Regulation, the evidence was insufficient for the Commission to determine which remediation requirements were outstanding, and which were completed. Therefore, the requirements related to that contravention were sent back to the Manager for reconsideration. Regarding the Unauthorized Road, there was inadequate evidence to determine whether the Company had complied with the remediation requirements, and those remediation requirements were confirmed.

In summary, the Commission confirmed all of the contraventions, but varied the penalties. The total amount of the penalties was reduced to $23,000. The remediation order requirements regarding the Authorized Roads were referred back to the Manager with directions, and those regarding the Unauthorized Road were confirmed.

Accordingly, the appeal against the determination and penalty (2017-FRP-003) was allowed in part, and the appeal against the remediation order (2017-FRP-004) was denied.