Decision Date: March 22, 2022

Panel: Michael Tourigny

Keywords: Forest and Range Practices Act – ss. 21(1), 72; contravention; administrative penalty; officially induced error; due diligence

Burns Lake Community Forest Ltd. (“BLCF”) appealed a determination that it had contravened section 21(1) of the Forest and Range Practices Act (“FRPA”) by harvesting timber in a manner that was inconsistent with the results and strategies in its forest stewardship plan. The determination was issued by the District Manager (the “Manager”), Coast Mountains Natural Resource District, in the Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”). The Manager levied a penalty of $3,500 against BCLF for the contravention.

BLCF held a Long Term Community Forest Agreement (the “Agreement”) that provided timber harvesting rights on certain areas covered by the Lakes North Sustainable Resource Management Plan (the “SRMP”). The SRMP contained objectives for managing biodiversity values including old growth trees and landscape connectivity. A Ministerial Order provided that the objectives in the SRMP were land use objectives under the FRPA. Consequently, the land use objectives in the SRMP applied to timber harvesting under the Agreement.

BLCF’s approved forest stewardship plan (the “Plan”) for the areas it managed under the Agreement incorporated an objective from the SRMP that required BLCF to maintain habitat connectivity by keeping areas shown on a map in a “contiguous mature and old forest condition”. The Plan provided an exemption from that requirement “where 50% or more of the total mature and old [trees] are composed of dead pine trees, and only where harvesting of these dead pine trees maintains connectivity.”

In March 2018, BLCF requested a redesign of the areas being maintained for old growth connectivity because they included a large amount of pine trees, many of which had been killed by a beetle infestation. The Ministry denied the request.

In June 2018, BLCF applied for a cutting permit to harvest several cut blocks, one of which (the “Block”) was within the areas maintained for old growth connectivity. The Ministry issued the cutting permit. In January 2019, BLCF’s began harvesting the Block. At that time, the Block contained 56% mature forested areas (i.e., forested areas greater than 100 years old) and less than 50% dead pine.

After an investigation, the Manager found that BLCF failed to comply with the results and objectives in the Plan when it harvested the Block. The Manager found that the Block was ineligible for harvesting according to the Plan, because the area being maintained for old growth connectivity did not contain the 70% mature and old trees that was a prerequisite for harvesting. Also, the Block did not fall within the exemption in the Plan, because the Block primarily contained spruce trees and not the requisite 50% dead pine trees.

On appeal, BCLF requested that the Commission rescind the Manager’s finding that it contravened section 21(1) of the FRPA. BLCF submitted that its harvesting of the Block met the requirements in the Plan because it had no adverse effects on the old growth connectivity areas. BLCF also submitted that its harvesting of the Block was not conducted for economic gain. Alternatively, BLCF submitted that it was not liable for the contravention because the defences of due diligence and officially induced error applied. BLCF further argued that it was the victim of a biased investigation by the Ministry.

The Commission found that BLCF had contravened section 21(1) of the FRPA when it harvested the Block. The Plan clearly prohibited harvesting within old growth connectivity areas containing less than 70% mature trees, and the exemption in the Plan did not apply because less than 50% of the trees in the Block were dead pine. In determining whether there was a contravention, it was irrelevant that the harvesting caused no adverse effects and that BLCF did not benefit financially.

The Commission also found that BLCF did not take reasonable care to avoid the contravention. A licensee in similar circumstances, acting reasonably, would have done more to avoid the contravention. Therefore, the defence of due diligence did not apply. In addition, the defence of officially induced error did not apply. BLCF provided evidence that the Ministry had historically refused to grant cutting permits that did not meet the objectives of a forest stewardship plan. However, BCLF’s evidence fell short of proving that issuing a cutting permit for the Block constituted “advice” from the Ministry for purposes of establishing the defence of officially induced error in relation to the contravention of section 21(1).

Finally, the Commission found that BLCF’s allegations of unfairness or bias by the Ministry were unsupported by the evidence and lacked a legal foundation.

Consequently, the Commission confirmed the determination and the penalty. The appeal was dismissed.