Decision Date: October 27, 1999

Panel: Howard Saunders

Keywords: Cutting of Crown timber without authorization; trespass; penalty; stumpage.

This was an appeal to the Board from an administrative review of the District Manager’s determination that the appellants had engaged in unauthorized harvesting of Crown timber contrary to section 138(1) of the Forest Act. The District Manager had assessed a combination of stumpage due and a penalty under section 139 for the contravention. The Review Panel upheld the determination.

The Board found that the Review Panel erred in concluding that there was negligence and failure to locate boundaries on the part of Mr. Montgomery and that this was a factor in the trespass by the logging contractor. The Board found, on the balance of probabilities, that the contractor knew the correct boundaries, altered the map he had been provided with, and intentionally trespassed onto Crown land, contrary to instructions as to where he was to log. Although the Board upheld the finding that Mr. Montgomery or Eagle Crest benefited from the unauthorized harvest, it found that the evidence did not support the determination that Mr. Montgomery or Eagle Crest knew about the trespass but did not disclose it.

The Board found that, in the circumstances, it was appropriate that no penalty be assessed against Eagle Crest or Mr. Montgomery. However, the Board also found that the Crown was entitled to full compensation for its timber, and that a stumpage and surveying assessment should be applied. The Board decided that the stumpage assessment should be made against Eagle Crest. The appeal was allowed in part.