Decision Date: March 24, 2010
Panel: David Ormerod
Keywords: Forest and Range Practices Act – s. 52(1); Forest Act – s. 84(1); unauthorized timber harvesting; timber mark; salvage logging; faller safety; procedural fairness; application for costs
Dory Antonsen appealed a determination of the District Manager, Columbia Forest District, that he contravened section 52(1) of the Forest and Range Practices Act (the “Act”) by harvesting Crown timber without authorization, and section 84(1) of the Forest Act by failing to properly hammer mark four loads of timber. The District Manager levied a penalty of $4,548.32 for the unauthorized timber harvesting, and a penalty of $400 ($100 per load) for the failure to mark the timber.
Mr. Antonsen received a forestry licence to cut in November 2004, and he commenced harvesting in December 2004. In his application for the licence, which became a schedule to the licence, Mr. Antonsen proposed to salvage dead or insect-damaged timber in order to improve ungulate winter range. He proposed to harvest up to 1000 m3 of timber, of which 80% would be dead or down larch and fir, and 20% would be interspersed live trees or larch and fir that was endangered due to insect infestation. He proposed to harvest the timber by single tree selection with retention of live trees, which involved hand falling.
The determination was issued following a series of inspections by the Ministry of Forests and Range (the “Ministry”), which resulted in the licence being suspended twice in 2005. In the first instance, the Ministry found unauthorized skid trail use, and in the second instance, the Ministry found that too much green timber was being harvested. A few days after the second suspension, the Ministry found that Mr. Antonsen was operating despite the suspension. The Ministry then issued a stop work order and seized a quantity of decked timber. The seized timber amounted to four truck loads, with a total scaled volume of 165.4 m3. The Ministry conducted a stump cruise of the harvest area and concluded that 143.48 m3 of timber was part of an unauthorized harvest. Approximately the same volume of cedar had been delivered to buyers under the licence.
Mr. Antonsen appealed on the basis that the determination resulted from a flawed investigation and decision-making process, and that faller safety was not properly considered by the District Manager. Mr. Antonsen argued that many of the green trees were harvested to ensure faller safety, as required by worker safety regulations, and some green trees showed evidence of insect infestation. He did not dispute that four loads of timber were transported without hammer marks, but he submitted that the timber marking contravention should be rescinded because the loads were seized by the Ministry.
The Commission found that the Ministry’s investigation and hearing processes were fair, and there was no evidence to support Mr. Antonsen’s contention that those processes were incomplete or unfair.
In addition, the Commission found that a substantial amount of the total volume harvested under the licence came from green trees, and from species other than larch and fir. The evidence showed that the stand of timber was dense and contained numerous snags and infested trees, which made it very hazardous in terms of faller safety. Based on the evidence, the Commission concluded that the application for the licence had proposed to harvest an unrealistic proportion of dead/endangered larch and fir, given the density and species mix of the timber and the amount of green trees that would need to be harvested in order to comply with faller safety regulations. The Commission also found that the licence made little provision for falling green timber in order to access the target timber.
The Commission found that, when the licence was issued, neither the Ministry nor Mr. Antonsen had realized that that the terms of the licence were unfeasible. The Commission noted that Mr. Antonsen was inexperienced as a licensee and had relied on a professional forester to prepare the licence application for him. However, the Commission found that Mr. Antonsen could have applied for an amendment to the licence once he recognized the difficulty of complying with it, or he could have sought approval from the District Manager to harvest more green timber than was contemplated in the licence, but he did neither. Consequently, the Commission found that Mr. Antonsen contravened section 52(1) of the Act.
After considering the factors set out in section 71(5) of the Act, the Commission found that the penalty for the unauthorized harvesting should be reduced to $716.43. Specifically, the Commission found that the penalty should not include an amount to remove the economic benefit Mr. Antonsen received as a result of the contravention. The Commission found that the Ministry failed to investigate the unauthorized harvesting in a timely manner, and this contributed to the volume of green timber that was harvested. The Commission calculated the penalty amount based on the amount of stumpage lost on the volume of 143.48 m3, as a result of green logs being billed at the stumpage rate for dead timber.
Regarding the timber marking contravention, the Commission found that Mr. Antonsen was incorrect in relying on the trucker to place the hammer marks on the timber. The Commission found that the law is clear that Mr. Antonsen was responsible for ensuring that the timber was properly marked before it was removed from Crown land. The Commission also found that the requirement to apply the timber mark did not cease to apply when the Ministry seized the timber. Consequently, the Commission confirmed that Mr. Antonsen contravened section 84(1) of the Forest Act with respect to the four loads. However, the Commission found that mitigating factors justified reducing the penalty to zero.
Accordingly, the appeal was allowed, in part. The Government’s application for costs against Mr. Antonsen was denied.