Decision Date: June 1, 2015

Panel: Jeff A. Hand, Les Gyug, Howard Saunders

Keywords: Forest and Range Practices Act – ss. 21(1), 52(1), 52(3), 72; unauthorized timber harvesting; penalty; due diligence; double jeopardy; R. v. Kienapple, [1975] 1 S.C.R. 729

McBride Community Forest Corporation (“McBride”) appealed a determination of contravention and penalty issued by the District Manager (the “District Manager”), Prince George District, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”).

McBride is a corporation wholly owned by the Village of McBride. In 2007, McBride entered into a long term (25-year) community forest agreement with the Province of BC, which granted McBride exclusive rights to harvest Crown timber on approximately 60,000 hectares in the Robson Valley. Under this agreement, McBride was required to manage the community forest in accordance with its forest stewardship plan (“FSP”).

One of the ways that McBride harvests timber is through its Small Market Logger Program. Under that program, McBride issues contracts to local loggers, granting them the authority to harvest timber in a defined area within the community forest. McBride retains responsibility for forest management, but the small market logger is responsible for logging, transporting and marketing the timber. McBride receives a fee for each cubic metre of wood sold.

In December 2010, a small market logger, Mr. Goodell, requested that McBride allow him to harvest timber within the community forest. For this to occur, McBride was required to obtain a cutting authority for the specific area to be harvested, from the Ministry.

McBride’s General Manager, a professional forester, prepared a site plan, which included a map that identified the boundaries of the proposed cutblock. The site plan and map also identified, amongst other things, the presence of an old-growth management area (“OGMA”) adjacent to the cutblock. No harvesting was to occur within the OGMA, which formed the south western boundary of the cutblock. The site plan stated that “This block is consistent with the measures to retain biodiversity as stated in the FSP….”

In December 2010, the Ministry issued a cutting permit to McBride.

In March 2011, McBride entered into a contract with Mr. Goodell, allowing Mr. Goodell to cut and remove timber in the cutblock identified in the site plan. Mr. Goodell carried out harvesting from March 11 to 29, 2011.

On April 19, 2011, Ministry staff conducted a routine inspection of the cutblock, and found no evidence of boundary marking. After reviewing maps and GPS data, and conducting additional site visits, Ministry staff concluded that Mr. Goodell had cut and removed 176 trees from an area of 0.9 hectares within the OGMA. Ministry staff also conducted an investigation to determine what steps McBride had taken to ensure that Mr. Goodell harvested within the cutblock boundaries.

Following an opportunity to be heard, the District Manager determined that McBride, as the holder of the community forest agreement and the cutting permit, had contravened sections 52(1) and 52(3) of the Forest and Range Practices Act (“FRPA”) as a result of the unauthorized cutting and removal of timber from Crown land by Mr. Goodell. Also, given that the timber was within the OGMA, the District Manager found that McBride had contravened section 21(1) of the FRPA by not ensuring that the intended results of its FSP were achieved. The District Manager further found that McBride had failed to exercise due diligence to prevent the contraventions from occurring. The District Manager levied a penalty of $3,000, and issued a remediation order to McBride.

McBride appealed the determination to the Commission on the basis that:

• it exercised due diligence, and could not have reasonably anticipated the “reckless and willful acts” of Mr. Goodell;
• the Ministry did not provide sufficient evidence that section 21(1) of FRPA was contravened;
• determining a contravention of both 52(1) and 52(3) of FRPA is an unnecessary “piling on of charges”; and
• the District Manager made several errors and assumptions, and any penalty is not in the public interest.

McBride requested that the Commission rescind the determination, or alternatively, vary the penalty amount. McBride did not challenge the remediation order.

First, the Commission considered whether McBride contravened sections 21(1), 52(1) and 52(3) of the FRPA. McBride argued that it was impossible to precisely determine the boundary of the OGMA because the scale of the map (1:30,000) appended to its FSP is too small to allow proper boundary identification. Based on that map, McBride argued that an unauthorized harvest into the OGMA could not be confirmed. However, the Commission found that the intent of McBride’s FSP is to maintain the OGMA, and McBride was obligated to take reasonable steps to identify the OGMA boundary. Further, when McBride prepared its site plan map to obtain a cutting permit, it did so at a detailed scale of 1:10,000 which clearly identifies the OGMA boundary. Having prepared the site plan map with that degree of precision, McBride could not now say that the OGMA boundary was unidentifiable. In addition, the Ministry’s evidence confirmed that the boundaries of unauthorized harvesting area were identified with simple GPS coordinates taken on the ground and transferred to the site plan map. Based on the evidence, the Commission found that 176 trees were cut and removed from the OGMA, which constitutes the cutting and removal of timber in contravention of sections 52(1) and (3) of the FRPA. The evidence also established that McBride failed to maintain the OGMA contrary to the intended result of its FSP, in contravention of section 21(1) of FRPA.

Next, the Commission considered whether McBride exercised due diligence to prevent the contraventions from occurring, such that it was not liable for the contraventions pursuant to section 72 of the FRPA. The test for due diligence requires McBride to establish that it took all reasonable steps to avoid the contravention. This assessment may include consideration of a contractor’s behaviour and the foreseeability of the contravention itself. The evidence established that McBride identified the OGMA in the site plan and site plan map, but did not mark the OGMA boundary on site, nor did it instruct Mr. Goodell to do so. McBride’s staff had one meeting with Mr. Goodell before work commenced, but that meeting was not on site, and the OGMA boundary was not discussed in any detail. McBride’s staff did not attend the site before Mr. Goodall commenced work. Mr. Goodell testified that he was aware of the presence of the OGMA from the site plan map. He estimated the boundary distance using the map scale, and then estimated the distance on site. Although McBride argued that the boundary should have been visibly discernable due to a difference in stand type between the OGMA and the area to be harvested, the Commission found that there was no discernable difference in stand type between those areas.

Based on the evidence, the Commission found that McBride’s confidence in Mr. Goodell’s ability to determine the boundary, which was based on the fact that McBride had no previous problems with Mr. Goodell, was McBride’s only means of avoiding the unauthorized harvesting. There was minimal contact between McBride and Mr. Goodell, and no supervision of his work. The Commission found that this, combined with not marking the boundary, amounted to a lack of due diligence to avoid the foreseeable contraventions from occurring.

Next, the Commission considered whether the penalty was appropriate in the circumstances. McBride submitted that the penalty was not in the public interest, because McBride is a non-profit corporation set up to fund community projects in the Village of McBride. However, the Commission found that the benefits that McBride, and the Village of McBride, receive from McBride’s harvesting operations cannot be at the expense of the public interests in responsible harvesting and protecting Crown resources including the OGMA. After considering the factors listed in section 71(5) of the FRPA, the Commission found that the penalty was reasonable in the circumstances.

Finally, the Commission considered whether it was appropriate to find that McBride had contravened both sections 52(1) and 52(3) of the FRPA. Based on the common law rule against multiple convictions, also known as “double jeopardy,” McBride argued that it should not have been found to have both cut and removed Crown timber without authorization. Specifically, R. v. Kienapple, [1975] 1 S.C.R. 729, established that, in criminal matters, a person should not be found guilty of two offences arising out of one crime. However, the Commission noted that it has previously held that the Kienapple principle does not apply to administrative penalties under forestry legislation. The Commission also found that, in the present case, one penalty was imposed for the contraventions, and therefore, the penalty resulted in no unfairness to McBride.

Accordingly, the appeal was dismissed.