Decision Date: February 28, 2012

Panel: Loreen Williams, Ken Long, Douglas VanDine

Keywords: Forest and Range Practices Act – s. 72; Forest Planning and Practices Regulation – ss. 57, 79(6); forest service road; drainage system; fish habitat; penalty; due diligence

Atco Wood Products Ltd. (“Atco”) appealed a determination issued by the District Manager (the “District Manager”), Arrow Lakes Forest District, Ministry of Forests and Range (now the Ministry of Forests, Lands and Natural Resource Operations) (the “Ministry”). The determination arose from an incident where sediment entered Blueberry Creek from a forest service road (the “Road”).

In June 2007, Atco obtained a cutting permit to harvest timber under a forest licence. Atco also obtained a road use permit that allowed it to use the Road to access and haul the timber harvested under the cutting permit. The road use permit required Atco to maintain the Road, including grading its surface and clearing ditches and culverts along the Road. Previously, the Ministry had maintained the Road. After receiving the road use permit, Atco began regular inspections of the Road.

In late September 2007, Atco performed spot grading at several locations along the Road, including near a crossing of Blueberry Creek. One week later, a Ministry Compliance and Enforcement Officer observed suspended sediment in Blueberry Creek. He also observed gravel ridges along both sides of the Road extending across the Creek crossing, and water flowing on the Road surface along the gravel ridges and into the Creek. The next day, the Ministry initiated an investigation. The Ministry notified Atco of the investigation two days after the incident was observed. One day after Atco was notified of the investigation, Atco’s Woodlands Manager attended at the site, and notified employees and contractors that hauling on the Road could only occur if it was not raining. Three days later, on the first weekday after a long weekend, Atco carried out remedial work at the site by breaching the gravel berms along the Road, and creating waterbars to direct water off of the Road surface. It also placed ballast on the Road surface over the Creek crossing.

In February 2010, the District Manager determined that Atco had contravened two sections of the Forest Planning and Practices Regulation (the “Regulation”) by failing to properly maintain the Road near Blueberry Creek. Specifically, the District Manager found that the Road’s drainage system was not functional, contrary to section 79(6)(b) of the Regulation, and that Atco had failed to maintain the Road in a manner that was “unlikely to harm fish or to destroy, damage or harmfully alter fish habitat”, contrary to section 57 of the Regulation. The District Manager also determined that Atco had not exercised due diligence as a defence to the contraventions, and he levied penalties of $2,000 against Atco for each of the contraventions, for a total penalty of $4,000.

Atco appealed to the Commission on the basis that there was insufficient evidence to support the District Manager’s findings of contraventions, and that the defence of due diligence applied as a defence to the contraventions. Atco requested that the Commission rescind the determination and the penalties, or alternatively, rescind the penalties.

The Commission found that the Ministry’s inspection and investigative practices in relation to the incident were poor. The Commission noted that the Ministry could have issued a warning or closed the Road when the incident was observed, but instead the Ministry continued with its investigation the next day. Nevertheless, the Commission found that the evidence supported the finding that Atco had failed to ensure that the Road’s drainage system was “functional”, contrary to section 79(6)(b) of the Regulation. Specifically, the Commission found that the gravel ridges observed along the sides of the Road were, on a balance of probabilities, caused by Atco’s grading of the Road, and the gravel ridges caused sediment-laden water on the Road surface to flow along the Road and into the Creek.

Regarding the defence of due diligence in relation to the contravention of section 79(6)(b), the Commission found that Atco had a proper system in place to prevent the contravention from occurring, and the grader operator was trained in and understood Atco’s system and its requirements. The Commission also found that Atco took reasonable steps to ensure the effective operation of its system, including undertaking regular inspections of the Road. In the vicinity of the Creek crossing, Atco had conducted at least four inspections between the time when the grading was completed and the incident was observed. The evidence established that the gravel ridges were small enough that they were difficult to notice. For all of those reasons, the Commission concluded that Atco had exercised due diligence, and therefore, Atco had a full defence to the contravention.

Regarding the second contravention, the Commission found that the evidence did not support a finding that Atco had contravened section 57 of the Regulation. The Commission found that the gravel ridges along the Road were small, were made during a fisheries “window” when work in or about a stream is least likely to cause harm to fish, and were made during a relatively dry period. In that context, the Commission found that the gravel ridges were “unlikely to harm fish or destroy, damage or harmfully alter fish habitat”, as contemplated by section 57. Focusing on the interpretation of the word “unlikely” in section 57, the Commission held that the situation did not create a real possibility or a reasonable expectation of harm to fish or fish habitat. Consequently, the commission concluded that Atco had complied with section 57 of the Regulation.

Accordingly, the determination and associated penalties were rescinded, and the appeal was allowed.