Decision Date: June 27, 2017
Panel: Alan Andison
Keywords: Forest and Range Practices Act – s. 58.2; Forest Practices Code of British Columbia Act – s. 67(1); Forest Road Regulation – s. 9(1)(c)(iv); landslide; forest road; contravention; administrative penalty; consent order
Weyerhaeuser Company Ltd. (“Weyerhaeuser”) appealed a determination issued by the District Manager (the “Manager”), Okanagan Shuswap Natural Resource District, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The Manager determined that Weyerhaeuser contravened section 9(1)(c)(iv) of the Forest Road Regulation (the “Road Regulation”), section 67(1) of the Forest Practices Code of British Columbia Act (the “Code”), section 37 of the Forest Planning and Practices Regulation (the “Planning Regulation”), and sections 46(1) and 52(1) of the Forest and Range Practices Act (“FRPA”). The Manager levied administrative penalties totalling $14,500 against Weyerhaeuser for the contraventions.
The matter arose from a landslide that occurred in April 2012, in the vicinity of Sugar Lake about 50 km east of Vernon, BC. Between August 2011 and February 2012, Tolko Industries Ltd. (“Tolko”) harvested a cutblock in the area. Originally, the harvesting rights for the cutblock were held by Weyerhaeuser, which had constructed the logging road to the cutblock in 2002 and 2003. The harvesting rights were transferred to Tolko in 2004, and the road permit was transferred to Tolko in 2005.
Tolko reported the landslide to the Ministry after being alerted to it by a resident. The landslide occurred downslope from the area Tolko had harvested, and the associated road. The landslide caused soil and timber to slide downhill, causing scouring of a stream channel, soil damage, and the loss of Crown timber and regenerating trees.
Following an investigation by Ministry staff, and after giving Weyerhaeuser (and Tolko) an opportunity to be heard, the Manager concluded that Weyerhaeuser’s road construction was a primary cause of the landslide. An inadequate number and placement of drainage structures on the road directed increased water flows towards the area where the slide originated. Consequently, Weyerhaeuser contravened the Code and the Road Regulation, which were in force when the road was built.
In addition, the Manager found that Tolko’s clearcut logging of the cutblock also contributed to the landslide by increasing the timing and peak flow of runoff during a period of warm weather. However, the Manager found that the landslide, and resulting damage to Crown timber and the environment, were potential liabilities to Weyerhaeuser that were accruing as of the date when it transferred the harvesting rights and road permit to Tolko. As such, Weyerhaeuser also contravened the FRPA and the Planning Regulation, despite that fact that this legislation was not in force when the road was built.
In addition, the Manager concluded that Weyerhaeuser did not take all reasonable care to prevent the contraventions, and therefore, the defence of due diligence did not apply. The Manager imposed the following penalties: $2,000 for contravening section 9(1) of the Road Regulation; $500 for contravening section 67(1) of the Code; $5,000 for contravening section 37 of the Planning Regulation; $5,000 for contravening section 46(1) of the FRPA; and, $2,000 for contravening section 52(1) of the FRPA.
Weyerhaeuser appealed the determination to the Commission.
Before the appeal was heard, Weyerhaeuser and the Government negotiated an agreement to resolve the appeal. They agreed that, although Weyerhaeuser made best efforts in constructing the logging road, Weyerhaeuser had contravened section 67(1) of the Code in the circumstances related to the landslide. In constructing the logging road, Weyerhaeuser allowed water to flow onto potentially unstable slopes and soil material, in contravention of section 9(1)(c)(iv) of the Road Regulation. The parties agreed that a penalty of $8,000 was appropriate in the circumstances. Consequently, the Commission ordered that the determination was varied, and the total penalty was reduced from $14,500 to $8,000, in accordance with the parties’ agreement.
By consent of the parties, the appeal was allowed in part.