Decision Date: February 26, 2021

Panel: Linda Michaluk

Keywords: Forest and Range Practices Act – ss. 52(1), 57(1); unauthorized trail construction; unauthorized timber cutting; administrative penalty; remediation order

George Buhler appealed a determination issued by the District Manager (the “Manager”), Selkirk Resource District, Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”).

Mr. Buhler owns land next to Crown land that is managed for timber harvesting under a woodlot licence. In 2012, Mr. Buhler and one of the owners of the company that holds the woodlot licence entered into a verbal agreement whereby the company could gain access to part of the woodlot that it intended to harvest next to Mr. Buhler’s land, and Mr. Buhler would construct a landing and a small road connecting his driveway to the landing. In return, Mr. Buhler was granted permission to collect firewood on that part of the woodlot. However, after Mr. Buhler cleared the landing and obtained some firewood, the company did not harvest that part of the woodlot.

Between 2012 and 2016, Mr. Buhler continued to access the woodlot. He cleared and removed saplings, seedlings, and brush, and opened trails including one for all-terrain vehicle (“ATV”) use.

In November 2016, after becoming aware of the extent of Mr. Buhler’s work on the woodlot, the company filed a complaint with the Ministry. The Ministry investigated and recommended that the Manager levy a fine for unauthorized harvesting on the woodlot, and issue a remediation order requiring Mr. Buhler to restore the ATV trail to its previous condition.

The Manager determined that Mr. Buhler had contravened section 52(1) of the Forest and Range Practices Act (the “Act”) by cutting, damaging or destroying Crown timber without authorization, and section 57(1) of the Act by constructing, rehabilitating, or maintaining a trail on Crown land without authorization. The Manager issued a remediation order requiring Mr. Buhler to remove the ATV trail and restore the underlying land. The Manager also levied a $400 administrative penalty against Mr. Buhler.

Mr. Buhler appealed the Manager’s decision. He submitted that the penalty was unjustified, and the remediation order was a waste of time and money.

After considering the parties’ evidence and submissions, the Commission confirmed that Mr. Buhler had contravened section 52(1) of the Act. Although Mr. Buhler held a firewood permit (also known as a free use permit) under the Forest Act, it only authorized him to cut dead and down trees for firewood. The firewood permit did not authorize him to cut, damage or destroy live trees. Mr. Buhler admitted that he removed small trees while clearing the ATV trail. The Commission held that it was irrelevant that those small trees were not, and may not have become, merchantable timber. Section 52(1) of the Act states that a person must not “cut, damage or destroy Crown timber” unless authorized to do so. It does not apply only to merchantable timber or mature trees; rather, it applies to Crown “timber” generally, which means all trees on Crown land, whether mature or immature.

The Commission also confirmed that Mr. Buhler had contravened section 57(1) of the Act. Although Mr. Buhler asserted that he did not “construct” the ATV trail because he only cleared small trees and brush from a pre-existing trail or historic skid road, the Commission found that section 57(1) the Act applies not only to constructing a trail, but also rehabilitating or maintaining a trail on Crown land. Clearing brush and small trees from a pre-existing trail or historic skid road to make it accessible for an ATV amounted to rehabilitating or maintaining the surface of that trail or road. Furthermore, although Mr. Buhler claimed that he had verbal approval from an owner of the company to make the trail accessible for ATVs, this was irrelevant. Section 57(1) of the Act states that written approval from the Minister is required prior to constructing, rehabilitating, or maintaining a trail. No such approval had been granted in this case.

The Commission then considered whether the defences of mistake of fact and/or officially induced error in section 72 of the Act applied to the contraventions. The Commission found that neither of those defences applied. Even if Mr. Buhler believed that an owner of the company could, and did, approve the tree removal and trail work, the defence of officially induced error did not apply because the owner of the company is not a Ministry official who could authorize such activities. Similarly, the defence of mistake of fact did not apply because it was unreasonable for Mr. Buhler to believe that the company’s owner could grant the necessary approvals.

Regarding the penalty, the Commission considered the factors in section 71(5) of the Act and agreed with the Manager that the contraventions were minor, given that they did not result in significant destruction of Crown timber, no merchantable Crown timber was cut, and there was no evidence of harm to wildlife habitat or other environmental values. The Commission confirmed the $400 penalty.

The Commission confirmed some of the requirements in the remediation order, but rescinded the requirement that Mr. Buhler remove 100 metres of trail “by de-compacting the running surface of the ATV trail, restoring any natural drainage, and restoring the natural profile of the land”. Given that the trail was built on a pre-existing road surface, the Commission held that any compaction, changes in the natural profile, and/or changes to drainage predated the work done by Mr. Buhler.

In conclusion, the Commission confirmed the Manager’s determination that Mr. Buhler had contravened sections 52(1) and 57(1) of the Act, and confirmed the $400 penalty, but varied the remediation order.

Accordingly, the appeal was allowed, in part.