Decision Date: February 28, 1997

Panel: Gerry Burch, Carol Roberts, Andrew Thompson

Keywords: Forest Practices Code of British Columbia Act – s.1, s.45(1) and (2)(a), s.118(1) and (2)(a), s.123(1); Administrative Remedies Regulation – s.4(2) and (3); Ministry of Forests Policy 16.10; Stopwork Order; Remediation Order.

Houston Forest Products (‘HFP’) is appealing a January 5, 1996, review decision upholding a Stopwork Order (‘SWO’), issued October 23, 1995, and a Remediation Order (‘RO’) issued November 1, 1995. The SWO was issued on the grounds that a Conservation Officer with the Ministry of Environment believed HFP had violated section 45(1) of the Code by causing sediment to be deposited in streams, thus damaging the environment. The RO required HFP to remediate the damage to the streams caused by the sedimentation. HFP appealed on the grounds that the SWO was invalid, because a SWO can only be issued if a ‘forest practice’ is occurring at the time the SWO is issued. HFP also argued that the RO was invalid because the senior official did not issue a notice of determination regarding the Code contravention, and a RO can only be issued when the senior official has determined that a provision of the Code has been contravened.

The Commission found that the wording of section 123(1) is clear; a contravention must be occurring at the time of the field inspection for a SWO to be issued. The onus is on the permitee or licencee to establish that their forest activity is completed or the operations have been voluntarily shut down, and that there are no plans to resume activity in the near future. This will ensure that the permitee or licencee has not merely ceased activity for the period when an official is on the site in question. The Commission found that there was no forest activity in the area, and no activity was scheduled to resume because HFP had voluntarily shut down their activities on October 19, 1995. Therefore, the Commission held that the SWO was invalid because no forest practice was occurring when the order was issued. The Commission further held that the RO was invalid because there is not sufficient evidence to independently assess the amount of siltation, the possible impairment of water quality and, ultimately, whether there actually was damage to the environment. The appeal was allowed.