Decision Date: May 10, 2002

Panel: Lorraine Shore

Keywords: Forest Practices Code of British Columbia Act – s. 67(2)(d); leave trees; silviculture prescription; diameter at breast height; diameter at stump height

The Appellant appealed the District Manager’s determination that the Appellant had harvested trees in contravention of s. 67(2)(d) of the Forest Practices Code. Specifically, the District Manager found that 28 trees which should have been retained had been cut, contrary to the Silviculture Prescription. The District Manager imposed a penalty of $1,344. The determination was confirmed in a review decision.

The Appellant denied having cut the number of leave trees claimed by the District Manager. The Appellant argued that the District Manager’s determination was based on incorrect and/or irrelevant assumptions. He submitted that the District Manager could not prove that the trees which were cut exceeded the diameter for leave trees specified in the Silviculture Prescription, and that he should not have extrapolated the trees’ diameter at breast height based on their diameter at stump height. He also argued that the District Manager assumed that the standing trees were which were sampled were reflective of the cut trees.

The Commission agreed that the best evidence of the diameter at breast height of the felled trees would be the trees themselves. Given that the trees were no longer available, the Commission considered whether the evidence concerning the estimate was sufficient on a balance of probabilities, to show that the contravention had occurred. Based on all the evidence the Commission found that 27 trees had been cut contrary to the Silviculture Prescription. The Commission therefore reduced the penalty to $1,296.

The appeal was dismissed.