Decision Date: September 28, 2021

Panel: Darrell Le Houillier

Keywords: Forest and Range Practices Act – ss. 51(1)(b), 52, 75(1), 110(2); unauthorized timber harvesting; unauthorized range development; administrative penalty; limitation period; notice of determination

Altherr & Schellenberg Cattle Co. (the “Appellant”) appealed a determination issued by the Resource Manager (the “Manager”), Cariboo-Chilcotin Natural Resource District, Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”). The Manager determined that the Appellant had contravened section 52 of the Forest and Range Practices Act (the “Act”) by cutting Crown timber without authorization at a site in Nazko Lake Provincial Park (the “Nazko Site”), and contravened sections 51(1)(b) and 52 of the Act by cutting Crown timber without authorization and building a fence on Crown land without authorization at a second site along Tzazati Mountain Forest Service Road (the “Tzazati Site”). The Manager levied a total penalty of $15,033.90 for the contraventions.

The Appellant is engaged in ranching. Along the Tzazati Mountain Forest Service Road (the “Tzazati Site”), the Appellant owns private land and holds a grazing lease on adjacent Crown land. At the Tzazati Site, the Appellant cleared its land and Crown land, and built a fence. The Appellant also had a range use plan on Crown land at the Nazko Site. The Appellant decided to replace an old fence at the Nazko Site. While doing so, the Appellant widened and cleared the fencing right-of-way.

On March 30, 2017, a Natural Resource Officer (“NRO”) with the Ministry received a complaint that land was being cleared along the Tzazati Mountain Forest Service Road. On April 5, 2017, the NRO and a Range Agrologist (“RA”) with the Ministry attended the Tzazati Site and noticed recent timber clearing beside the road. Using a global positioning system (“GPS”) device, they determined that the clearing had occurred on both a private lot and the adjacent Crown lands. On a subsequent site visit, they observed a newly built fence.

Meanwhile, on May 19, 2017, the Appellant emailed the RA to inform her that he was replacing the fence at the Nazko Site. On June 12, 2017, the RA met with a BC Parks Supervisor, and they compared pictures of the site. On June 15, 2017, Ministry staff and the BC Parks Supervisor inspected the Nazko Site and documented their findings.

On April 3, 2020, the Manager issued a determination setting out the findings of contraventions and the penalty amount. Also, on April 3, 2020, the Manager sent the determination to the Appellant by registered mail.

On appeal, the Appellant did not deny that it committed the contraventions. However, the Appellant contended that the penalty was not levied within the three-year limitation period in section 75(1) of the Act, which states that “The period during which an administrative penalty may be levied… is 3 years beginning on the date on which the facts that lead to the determination that the contravention occurred first came to the knowledge of an official.” The Appellant argued that the facts that led to the determination that the contravention occurred first came to the knowledge of an official on March 30, 2017, more than three years before the April 3, 2020 determination. Furthermore, even if April 5, 2017 was the date of knowledge, the determination was issued outside the three-year time limit because it was conclusively deemed to have been given to the Appellant on April 11, 2020, eight days after it was sent by registered mail, pursuant to section 110(2) of the Act.

The Commission considered the components of each contravention, the language in the relevant provisions of the Act, and the evidence regarding when various officials learned about the factual components of the contraventions. The Commission noted that the locations, nature, and circumstances of discovery of the contraventions at the two sites are significantly different from one another.

The Commission found that the contravention of section 52(1) at the Tzazati Site first came to the knowledge of an official on April 5, 2017. The complaint received on March 30, 2017 marked the beginning of the investigative process, but April 5, 2017 was the earliest date when an official confirmed that clearing had occurred on Crown land. At that point, an official had sufficient credible information to reasonably believe that timber had been cut on Crown land without authorization. The first knowledge by an official of the contravention of section 51(1)(b) at the Tzazati Site occurred afterwards, when officials observed a fence on the site.

Regarding the Nazko Site, the Commission found that the facts that lead to the determination that a contravention of section 52(1) had occurred first came to the knowledge of an official on either June 13 or 15, 2017, when an official had sufficient credible information to reasonably believe that Crown timber had been cut without authorization.

Next, the Commission considered when the penalty for the contraventions was “levied” as stated in section 75(1) of the Act. Based on the language in sections 71(6) and 75(1), the Commission held that a penalty must be “levied” within the three-year limitation period, but a notice of determination need not be received by the Appellant, either in fact or as deemed by section 110(2) of the Act, within that limitation period. In the present case, the penalty was levied when the Manager made the decision on April 3, 2020 to impose the penalty. Given that the facts that lead to the determination that the contraventions occurred first come to the knowledge of an official on or after April 5, 2017, the penalty was levied within the three-year limitation period.

Accordingly, the appeal was dismissed.