Decision Date: August 15, 2010

Panel: Carol Brown

Keywords:  Forest and Range Practices Act – ss. 52(1), 53(2), 74; Forest Practices Code of British Columbia Act – s. 74(2); Forest Act – s. 84(1); consent order; remediation order; unlawful timber harvesting; property boundary

5C Cattle Company Ltd. (the “Appellant”) appealed a determination and a remediation order issued in August 2009 by the Operations Manager (the “Manager”), Quesnel Forest District, Ministry of Forests and Range (the “Ministry”).  In the determination, the Manager found that the Appellant contravened section 74(2) of the Forest Practices Code of British Columbia Act (the “Code”), sections 52(1) and 53(2) of the Forest and Range Practices Act (the “FRPA”), and section 84(1) of the Forest Act.  The Manager levied administrative penalties totalling $14,157.74 for the contraventions.  The Manager also issued the remediation order, which required the Appellant to remove an unauthorized fence, gates and signs from Crown land.

The contraventions arose from the following circumstances.  The Appellant held a grazing licence on Crown land.  In or about 2003, the Appellant reconstructed a fence on Crown land adjacent to the Appellant’s land.  The Appellant believed that the fence was on its property, as a previous fence was built in the same place in 1995 and it aligned with a fence on a neighbouring property.  The area between the fence and the Appellant’s property, approximately 4.5 hectares, was actually Crown land, and it was unlawfully harvested in 2006 on behalf of the Appellant.  The Appellant did not do a legal survey before erecting the fence, or before commencing timber harvesting.  The Appellant did not have a valid timber mark for the timber, and no stumpage was paid.

The Appellant appealed the determination and the remediation order, on the basis that the contraventions were not deliberate, and that the penalties were unreasonable.

The Commission decided to hear the appeals together, but the hearing was adjourned shortly after it began.  The parties indicated that they may be able to resolve the appeals.  Subsequently, the parties agreed to conclude the appeals by way of a consent order.

By consent of the parties, the Commission ordered that the contraventions were confirmed and the penalties were reduced to a total of $8,600.  The appeal of the remediation order was abandoned.

Accordingly, by consent, of the parties, the appeal of the determination was allowed, in part.