Decision Date: November 27, 2018

Panel: Jeffrey A. Hand

Keywords: Wildfire Act – s. 7(3); Wildfire Regulation – s. 12.1(3); fire hazard abatement order

Anderson Pacific Forest Products Ltd. (“Anderson”) appealed a fire hazard abatement order issued under the Wildfire Act by the Fire Centre Manager (the “Manager”), Coastal Fire Centre, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The order required Andersen to undertake fire hazard abatement in an area where it had harvested timber.

Anderson held a Timber Sale Licence that authorized it to harvest timber in a cutblock located approximately four km away from Port Renfrew on Vancouver Island. The cutblock is located in a very wet biogeoclimatic ecosystem zone, which is characterized by significant precipitation and humidity, mild winters, and a long growing season. The northeast boundary of the cutblock is adjacent to a highway.

Andersen commenced harvesting on the cutblock in June 2014. In August 2014, Ministry staff inspected the site, and observed large amounts of woody debris (“slash”) along the highway. In September 2014, Ministry staff again inspected the site, and observed slash piles close to the highway. Andersen completed its harvesting operations on the cutblock in late 2014.

Andersen retained a Forest Professional, Kelly McKinnon, to prepare a burn plan to reduce the woody debris left on the cutblock. Andersen created piles of debris, and Mr. McKinnon designated some of the piles to be burned, and others to be left unburned to aid in site regeneration. The first burn was performed in April 2015, but the piles did not burn sufficiently. Andersen undertook a second burn in November 2015, which mainly involved piles located along the in-block roads that were used during harvesting. A large pile adjacent to the highway was not burned, because of concern that smoke from that pile could reduce visibility on the highway.

In early 2016, the Ministry requested that Anderson prepare a fire hazard assessment for the cutblock. In March 2016, Mr. McKinnon prepared a fire hazard assessment for Anderson, based on the process outlined in a Ministry document titled, “A Guide to Fuel Hazard Assessment and Abatement in British Columbia” (the “Guide”).

Mr. McKinnon reviewed the British Columbia Fire Risk Map in the Guide, which shows the fire risk rating for areas across BC. Areas with severe or high risk are typically located in and around urban areas, due to the risk to infrastructure and public safety associated with fires close to urban areas. On that map, the cutblock area was designated as a severe risk due to its proximity to Port Renfrew. However, the Guide also stated that local topographic features and their effect on fire spread and direction may reduce potential wildfire impacts. Mr. McKinnon considered the risk of fire ignition at the cutblock to be low, rather than severe, due to the wet conditions associated with the local biogeoclimatic zone.

Next, based on the Guide, Mr. McKinnon determined the fuel hazard present on the cutblock, based on the dominant wood species, the tonnes of debris per hectare, and the slope and aspect of the cutblock. Based on those factors, together with Mr. McKinnon’s assessment that the fire risk for the local biogeoclimatic zone was low, Mr. McKinnon concluded that the fuel hazard threshold for the cutbliock was low, and no further fire hazard abatement was necessary.

In April 2016, Andersen provided Mr. McKinnon’s fire hazard assessment to the Ministry. In September 2016, staff from the Ministry’s Wildfire Management Branch assessed the fire hazard at the cutblock, and tried, unsuccessfully, to arrange a site visit with Mr. McKinnon and a representative of Anderson to discuss the matter.

In April 2017, a Forest Protection Technician with the Wildfire Management Branch conducted a fire hazard assessment at the cutblock. He concluded that further fire hazard abatement was required; namely, unburnt piles and remaining slash should be removed, mainly between in-block roads and the highway.

In May 2017, staff from the Wildfire Management Branch met with Mr. McKinnon and a representative of Anderson. Mr. McKinnon and Anderson’s representative asserted that the risk of fire ignition was low, and no further abatement was required.

In June 2017, the Manager issued the order, requiring Anderson to abate the fire hazard on the cutblock by December 1, 2017.

Andersen appealed the order to the Commission. Anderson raised a number of arguments, but its main argument was that the risk of fire ignition and spread at the cutblock was very low due to the wet site and local weather conditions, and no further abatement was required. Anderson requested that the order be rescinded, or alternatively, that the order be varied because it was overly broad.

The Commission considered expert evidence from both parties. The Commission accepted the Ministry’s expert evidence that there was an unacceptable number of unburned slash piles and significant areas of dispersed Cedar slash, particularly along the in-block roads. There was also evidence of human activity in the cutblock which increased the concern over the risk of ignition, and the corresponding risk to adjacent interface values. The Commission found that the Cedar slash presented a heightened risk of ignition, and the risk would persist while the slash slowly degrades. Based on the evidence, the Commission concluded that there was an increased risk of a wildfire starting in the cutblock, and if one ignited, it would spread quickly and present increased challenges for fire suppression.

Consequently, the Commission concluded that a fire hazard remained on the cutblock, and an order pursuant to section 7(3) of the Wildfire Act was required to abate the fire hazard. However, the Commission also found the language in the order was imprecise and overly broad, as it seemed to cover the entire cutblock, whereas the slash accumulations and unburned piles of concern were mainly located between the highway and the in-block roads. The Commission sent the order back to the Manager with directions to vary the order to make it more specific.

Accordingly, the appeal was allowed, in part.