Keywords:Forest Act – ss. 138, 139; quantum of penalty; reliability of stump cruise data; use of sample loads; scale grade estimates;
Mr. Wapple appealed a Review Panel decision which confirmed a determination made against Mr. Wapple for the unauthorized harvesting of Crown timber in 1995 (pre Code). The Review Panel reduced the original stumpage calculation and penalty but added scaling charges for a total penalty of $33,805.15. Mr. Wapple sought an order further reducing the amount of stumpage and penalty on the grounds that the Panel based the stumpage and penalty calculation on average small business sales over a twelve month period rather than determining the actual percentages of different log grades harvested by Mr. Wapple. He also submitted that the silviculture levy should be reduced because the area was a partial-cut rather than clear-cut, and therefore did not require reforestation.
The Board upheld the silviculture levy, which was based on averages from recent sales, as it found that the area did require reforestation. However, the Board found that the Review Panel erred in concluding that an estimate of log grades was unnecessary in this case. Despite the difficulty of determining the actual percentages of different grades based on either stump cruise or scale grades, the Board found that, in the circumstances, the scale grades should be the basis for the stumpage and penalty assessment. Accordingly, the Board reduced the total stumpage and penalty assessed by the Review Panel from $33,805.15 to $28,757.81. The appeal was allowed.