Appeals from the Forest and Range Practices Act
2011
2011-FOR-001(a) & 002(a)
Charles E. Kucera v. Government of British Columbia
Decision Date:
October 6, 2011
Panel: David
Searle, CM, Q.C.
Keywords:
Forest and Range Practices Act
- ss. 71, 72;
Woodlot Licence Forest Management Regulation
– s. 77(1);
penalty; remediation order; due diligence, silviculture
standards; site plan; woodlot licence; regeneration
Charles E. Kucera
appealed a determination and a remediation order issued
by the District Manager (the “District Manager”),
Columbia Forest District, Ministry of Natural Resource
Operations (the “Ministry”).
In the determination, the District Manager found
that Mr. Kucera contravened section
77(1) of the
Woodlot Licence Forest Management Regulation
(the “Regulation”)
by failing to achieve the stocking standards set out in
a site plan for a woodlot that Mr. Kucera harvested in
2001. The
regeneration was to have been completed within 7 years
of harvesting.
In 2009, a stocking survey of the woodlot
conducted by the Ministry found that the minimum number
of stems per hectare of the preferred species had not
been achieved.
The District Manager assessed a penalty of $1000
against Mr. Kucera for the contravention.
The District Manager also issued a remediation
order requiring Mr. Kucera to complete the regeneration
to the minimum stocking standards required in the site
plan by July 2011, or alternatively, have the original
stocking standards reviewed by a professional forester
and submit an amended plan.
Mr. Kucera did not
dispute that the minimum number of stems per hectare of
the preferred species was not been achieved by 2009.
He appealed on the basis that the defence of due
diligence applied to the contravention.
At the appeal hearing, Mr. Kucera agreed with the
Government that the appeal of the remediation order need
not proceed, because before the appeal was heard, the
order expired and a new stocking survey found that the
minimum number of preferred stems per hectare had been
achieved.
The
Commission found that Mr. Kucera had many years and many
opportunities to address the stocking requirement on the
woodlot, but he failed to do so.
Mr. Kucera argued that natural regeneration was
all that was needed, although he admitted that he had
cancelled an order for seedlings because he had
insufficient funds to pay for the seedlings and their
planting after paying his legal fees related to a civil
suit. He
also submitted that he could not work due to an injury
in 2001, but he provided no medical evidence to
establish the seriousness of the injury.
The Commission found that artificial regeneration
was required by the site plan.
The Commission considered the legal test for the
statutory defence of due diligence, and found that due
diligence did not apply in the circumstances of this
case. The
Commission concluded that the determination and the
penalty should be confirmed.
Accordingly, the appeals were dismissed.
2011-FOR-004(a)
Cindy Ling v. Government of British Columbia
Decision Date:
September 19, 2011
Panel: Gabriella
Lang
Keywords:
Forest Act
- ss. 96(1)(a), 97(4);
Scaling Regulation
– s. 6; check scale; log scaler; review of the record;
due diligence; procedural fairness
Cindy Ling appealed a review decision issued by the
District Manager (the “District Manager”), Sunshine
Coast Forest District, Ministry of Forests and Range
(the “Ministry”).
In the review decision, the District Manager
confirmed a determination that Ms. Ling had contravened
section 96(1)(a) of the
Forest Act
(the “Act”) by not following the scaling procedures set out in section 6
of the Scaling
Regulation.
Specifically, the District Manager concluded that
at least one load of logs scaled by Ms. Ling varied by
more than three percent in volume or value from the
check scale done by Ministry check scalers.
However, the District Manager imposed no penalty
for the contravention.
Ms. Ling has worked as an independent log scaler
for approximately 20 years.
Ms. Ling appealed the review decision on the basis that
the District Manager erred by failing to conclude that
new evidence she had provided showed incompetency, bias
and procedural errors by the Ministry check scalers, and
by failing to consider due diligence as a defence to the
contravention.
The Commission first considered whether the appeal
should be heard as a review of the record before the
District Manager, rather than a new hearing of the
matter. The
Commission found that it has broad discretion in how it
conducts hearings, and that a review of the record
before the District Manager was the appropriate way to
hear this appeal.
The Commission noted that its review of the
record would include considering the new evidence that
was presented to the District Manager, and his
assessment of that evidence.
Next, the Commission
considered whether the District Manager reasonably
determined that Ms. Ling had contravened section
96(1)(a) of the
Act. The
Commission found that the District Manager considered
the
new evidence provided by Ms. Ling, and considered her
submissions alleging incompetency, bias and procedural
errors by the Ministry check scalers.
The Commission held that the District Manager’s
interpretation and application of the evidence, as
demonstrated by his findings, was reasonable, and he did
not err in that regard.
The Commission also found that Ms. Ling had
admitted to at least one scaling procedure
contravention.
The Commission concluded that there was no basis
for rescinding or varying the review decision on those
grounds.
In addition, the Commission found that Ms. Ling did not
specifically raise defence of due diligence during the
review proceedings before the District Manager, and she
did not raise it the appeal proceedings until she
submitted her final reply to the Government’s
submissions.
Given that the appeal proceeded as a review of the
record, and that the Government had no opportunity to
respond to her submissions on the defence of due
diligence, the Commission rejected that ground for
appeal.
The appeal
was dismissed.
2008-FOR-010(a)
Jack Sebastian and the Suskwa Chiefs Economic Corporation v. Government of British Columbia
Decision Date:
September 2, 2011
Panel: Alan
Andison
Keywords:
Forest and Range Practices Act
- ss. 52(1), 71; unauthorized timber harvesting;
penalty; aboriginal rights; duty to consult;
Haida Nation v.
British Columbia (Minister of Forests), 2004 SCC 73;
R. v. NTC
Smokehouse [2006], 2 SCR 672
Jack Sebastian and the Suskwa Chiefs
Economic Development Corporation (the “Appellants”)
appealed a determination issued by the District Manager
(the “District Manager”), Skeena Stikine Forest
District, Ministry of Forests and Range (the
“Ministry”).
In the determination, the District Manager found that
the Appellants contravened section
52(1) of the
Forest and
Range Practices Act (the “FRPA”)
by harvesting timber from Crown land without
authorization.
Specifically, the Appellants harvested 1,238
cubic metres of timber from areas that were beyond the
boundaries identified in three forestry licences to cut.
One licence was held by Mr. Sebastian, and two
licences were held by Suskwa Chiefs Economic Development
Corporation (the “Corporation”).
For each of the contraventions, the District
Manager assessed a penalty of $500 against Mr.
Sebastian, and two penalties of $500 and $1500 against
the Corporation.
Mr. Sebastian is the chief executive
officer of the Corporation, which is a company formed by
six Gitxsan Houses to further their economic interests.
The Suskwa Chiefs applied, on behalf of the
Corporation, to the Ministry for two forestry licences
that would allow the Corporation to perform salvage
logging of dead and damaged timber along forest service
roads in the territory of one of the Gitxsan Houses.
Mr. Sebastian applied for the same kind of
licence, with the intent that the Corporation would
perform the work.
In 2006, the Ministry issued the three licences.
Each licence identified the harvesting
boundaries.
The Corporation’s employees or contractors harvested
under the licences from June to August 2006.
In mid-August 2006, the Ministry
notified Mr. Sebastian that the Corporation may have
harvested beyond the licence boundaries.
In response, Mr. Sebastian advised the Ministry
that all of the harvesting was an exercise of aboriginal
rights by the owners and stewards of the Gitxsan House’s
traditional territory.
In November 2008, the District Manager
issued the determination.
At no time did Ministry staff engage in any
consultation with Gitxsan representatives about their
asserted aboriginal rights or title, or how the
Ministry’s enforcement actions might impair those
rights.
The Appellants appealed the
determination on the basis that the Ministry had a duty
to consult with the Gitxsan about their aboriginal
rights during the investigation and enforcement
proceedings, and that the Ministry’s failure to do so
violated section 35(1) of the
Constitution Act, 1982.
The Government argued that the
District Manager had no duty to consult in this case.
It submitted that the Appellants are a
corporation and its director/officer, and they were
engaged in a commercial forestry operation outside the
scope of any aboriginal rights.
In addition, the District Manager had no
jurisdiction to consider claims of aboriginal rights in
an enforcement proceeding.
Moreover, any duty of consultation that may have
existed was met, because representatives of the Gitxsan
obtained the licences and agreed to the licence terms.
The Commission found that the
aboriginal rights being asserted are held by the Gitxsan
as a group, and the harvesting was carried out by Mr.
Sebastian and the Corporation as the Gitxsan’s
representatives.
Further, the Commission found that the decision
in R. v. NTC
Smokehouse [2006], 2 SCR 672, applies in this case,
and it indicates that corporate entities may rely on a
First Nation’s claim of aboriginal rights as a defence
to a regulatory proceeding.
Consequently, the Commission held that the
Appellants could rely on any aboriginal rights claimed
by the Gitxsan as a defence to the enforcement action,
because the Appellants were acting on behalf of and with
the full authority of the Gitxsan when they applied for
the licenses and undertook the harvesting.
Next, the Commission considered the
test set out in
Haida Nation v. British Columbia (Minister of Forests),
2004 SCC 73 (“Haida”),
and whether a duty to consult with the Gitxsan was
triggered by the Ministry’s investigation and
enforcement proceedings.
The Commission held that a duty to consult with
the Gitxsan was triggered because: (1) the Crown, as
represented by the Ministry, knew of the existence of
the Gitxsan’s claims of aboriginal rights, including
title, in relation to the lands where the harvesting
occurred; and (2) the Crown contemplated conduct that
might adversely affect the Gitxsan’s aboriginal rights.
Specifically, the Commission found that the Crown
knew that the Gitxsan claimed aboriginal title,
including a right to the land itself and to govern the
forest resources, on the lands where the contraventions
occurred.
The Commission noted that according to
Haida, the
Crown is entitled to manage resources pending the
resolution of aboriginal rights claims, but the Crown
may not do so in a manner that deprives the aboriginal
claimants of the benefits of the resources.
The Commission held that the Ministry’s
investigation and enforcement proceedings had the effect
of penalizing the Appellants, and consequentially the
Gitxsan, for harvesting timber that they claim to own
and claim to have a right to manage.
The Ministry’s action sent a clear message to all
Gitxsan that they will face penalties for harvesting
timber in areas where they assert title unless they seek
and receive Crown authorization for harvesting.
The Commission held that it was irrelevant that
that the Appellants held licences for some of the areas
they harvested, because the effect of the enforcement
actions on the asserted aboriginal rights was the same
as if they had proceeded to harvest without ever holding
any licences in the area; namely, the penalties were for
unauthorized timber harvesting, not for violating the
terms of the licences
per se.
In addition, the Commission found that the
enforcement actions proceeded without any consideration
of the effects of the penalties on the Gitxsan’s claim
of title to the area, and the District Manager proceeded
without any consultation with the Gitxsan.
The Commission then considered whether
the Appellants’ claim that consultation was required
amounted to a collateral attack on the Province’s
validly enacted regulatory scheme.
The Commission found that the Appellants’ claim
was not a collateral attack on the Province’s forestry
legislation.
Rather, the Appellants were asserting a valid defence,
arising from constitutionally recognized rights, to a
finding of contraventions and the issuance of penalties
under the Forest
and Range Practices Act.
Finally, the Commission considered
what remedy was appropriate in the circumstances.
The Commission held that its powers on an appeal
are limited to what is provided in its enabling
legislation, and the Commission has no jurisdiction to
declare the District Manager’s determination to be a
nullity as requested by the Appellant.
Given that no consultation occurred before the
determination was made, the Commission found that the
determination and the associated penalties should be
rescinded.
Accordingly, the appeal was allowed.
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