Decision Date: March 14, 2006

Panel: David H. Searle, C.M., Q.C.

Keywords: Forest and Range Practices Act – s. 71(2)(a)(i) and 52(1); the Land Act, S.B.C. 1908, c. 30 – s.80; land title; Crown land; highway creation

Isolde Elvira Schumann and David Allan Wills appealed a determination by the District Manager that the Appellants contravened section 52(1) of the Forest and Range Practices Act (the “FRPA”) by harvesting 15.632 cubic metres of timber from Crown land without authority. The District Manager imposed an administrative penalty of $350 for the contravention.

The Appellants asked the Commission to rescind the determination of contravention and the associated penalty. They also asked for an order for costs. The Appellants argued that the timber they harvested was from their own land.

The Government submitted that the Appellants harvested timber from Crown land; specifically a public highway that was created in accordance with the law as it stood in 1910. As such, this was Crown timber, and the Appellants contravened section 52(1) of the FRPA.

The Commission found that, in 1910, the Crown declared the creation of the public highway by notice in the Gazette. The Commission found that the creation of this highway complied with section 88 of the Land Act, S.B.C. 1908, c. 30 – the relevant legislation at that time. Further, according to section 87 of that Act, the “soil and freehold of every public highway” is vested in “His Majesty, His Heirs and successors.” Accordingly, the Commission found that the Crown had the authority to create the highway, and did create a highway through a portion of what is now the Appellants’ land.

In conclusion, the Commission held that the highway was properly created, is Crown land, and the timber harvested by the Appellants was Crown timber harvested without appropriate authorization, contrary to section 52(1) of the FRPA.

The Commission considered the factors set out in section 71(5) of the FRPA and found that a $350 administrative penalty was appropriate in the circumstances. In regards to the Appellants application for costs, the Commission found that there were no special circumstances that would justify awarding costs to the Appellants.

The appeal was dismissed. The application for costs was denied.