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Appeals from the Wildfire Act - 2017


2016-WFA-002(a) Canadian National Railway Company v. Government of British Columbia (Forest Practices Board, Third Party)

Decision Date: November 2, 2017

Panel: Gregory J. Tucker, Q.C., John M. Orr, Q.C., Howard Saunders

Keywords: Wildfire Act – s. 25; Wildfire Regulation – s. 30; Forest Act – s. 103(3); wildfire; order; compensation; damages; Crown timber; other forest land resources, grass land resources

Canadian National Railway Company (“CNR”) appealed an order issued by the Deputy Fire Centre Manager (the “Manager”), Coastal Fire Centre, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). In 2014, one CNR’s railway trains ignited a wildfire that burned 171 hectares of Crown land near Williams Lake, BC. The burnt area was designated as winter habitat for mule deer pursuant to the Forest and Range Practices Act, and as an old growth management area under the Land Act. The Manager ordered CNR to pay compensation totalling $321,929.23 under section 25 of the Wildfire Act and section 30 of the Wildfire Regulation, for the value of mature Crown timber ($141,929.23), and other forest land resources and grass land resources ($180,000), that were damaged or destroyed as a result of the fire.

Specifically, the value of the mature Crown timber was determined pursuant to section 30(a) of the Wildfire Regulation, which points to the timber’s stumpage value under the Forest Act. Section 103(3) of the Forest Act states that the timber value is calculated by multiplying the volume of damaged or destroyed Crown timber by the stumpage rate that “would likely have applied to the timber … if rights to the timber had been granted under an agreement entered into under” the Forest Act. The Manager assessed the timber value based on the stumpage rate that would have applied if the burnt area was subject to a BC Timber Sales harvesting licence. The rest of the compensation was determined pursuant to sections 30(c) and (d) of the Wildfire Regulation, which specify that “other forest land resources” are valued at $5,000 per hectare for protected areas and $1,000 per hectare for areas that are not protected, and the value of “grass land resources” is $500 per hectare. The burnt area was mapped and assessed based on GPS coordinates taken from a helicopter, and GIS (geographic information system) data about the timber species and volume. Field assessments were carried out to determine the impact of the fire on habitat values, but not to measure the volume of Crown timber or other resources that were damaged or destroyed.

CNR appealed the determination. CNR requested that the Commission reduce the quantity of compensation it was ordered to pay. The issues on appeal were the size of the area in which Crown timber, other forest land resources, and grass land resources were “damaged” (rather than destroyed), the appropriate stumpage rate and type of harvesting agreement for calculating the value of the damaged or destroyed Crown timber, and whether an area may be treated as both “other forest land resources” and “grass land resources” for the purposes of calculating compensation.

The Commission considered the meaning of “damage” in the context of section 25(1) of the Wildfire Act. The Commission found that trees without visible signs of fire damage could have suffered damage from a fire, as a fire may weaken trees and make them more susceptible to insects or disease. However, invisible damage to a tree would need to be assessed by an arborist or botanist, and in this case, there was no such evidence. Consequently, based on the available evidence, the Commission concluded that the “damaged” timber in this case consisted of timber with visible damage from the fire. The Commission also held that, under the legislation, economic loss to the Crown is not a prerequisite for establishing “damage” to Crown resources. In addition, the Commission found that it may be difficult to assess visible damage to standing trees based on an aerial view alone, and that ground-based observations would be helpful in cases such as this. Although the purpose of the habitat assessment was not to assess the volume of damaged timber, it contained information about the burn intensity in different areas which supported a finding that not all of the mature Crown timber within the burnt area was damaged or destroyed. Based on the evidence, the Commission estimated that 96% of the mature Crown timber within the burnt area was damaged or destroyed.

Turning to the appropriate stumpage rate and type of harvesting agreement for the purpose of calculating the value of the damaged or destroyed Crown timber, the Commission found that the appropriate agreement type depends on the circumstances. Recent harvesting agreements in the area near the fire were BC Timber Sales licences, and the characteristics of the burnt area would not have supported a major tenure agreement. Consequently, the Commission concluded that a BC Timber Sales licence was the appropriate type of agreement for the purposes of determining the applicable stumpage rate in this case. In calculating the applicable stumpage rate, the Commission found that the Manager already applied a cost adjustment for cable yarding in some areas, but the Manager should have taken into account additional road construction costs. Consequently, the Commission reduced the stumpage rate that applied for the purpose of calculating the timber value. Applying that stumpage rate to 96% of the timber volume in the burnt area resulted in a value of $90,047.04 for the damaged or destroyed mature Crown timber.

Finally, based on the language in the legislation, the Commission concluded that “other forest land resources” and “grass land resources” are separate categories. Although “forest land” can contain areas of grass, the tree cover must drop below a particular threshold for the land to be categorized as “grass land”. Therefore, the burnt Crown land should be valued as either forest land or grass land, but not both. Based on the evidence, the Commission determined that compensation of $107,500 was due for “other forest land resources” and $6,050 was due for “grass land resources”.

Consequently, the total compensation owing was reduced to $203,597.04, and the appeal was allowed.

2015-WFA-001(a) Madeline Oker v. Government of British Columbia

Decision Date: May 2, 2017

Panel: Maureen Baird, Q.C.

Keywords: Wildfire Act – ss. 5(1), 27; Wildfire Regulation – s. 2(1); fire suppression costs; cost recovery order; administrative penalty; open fire; fuel break

Madeline Oker appealed a determination issued by the Deputy Fire Centre Manager (the “Manager”), Kamloops Fire Centre, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The determination arose from the following circumstances. In late August or early September 2012, Ms. Oker and another person burned some debris piles on Crown land near Fort St. John. On September 13, 2012, a wildfire ignited in that area. Firefighters from the Ministry extinguished the fire, which burned approximately 8.7 hectares of land.

Following an investigation by Ministry staff, the Manager offered Ms. Oker an opportunity to be heard prior to determining whether she had contravened the Regulation. She did not respond to the invitation.

Based on evidence provided by Ministry investigators, the Manager determined that the wildfire was likely caused by a flare up of embers from one of the debris piles. The Manager determined that Ms. Oker had contravened sections 5(1) and 10(3) of the Wildfire Act (the “Act”), respectively, by not complying with the requirements in section 21(1) of the Wildfire Regulation (the “Regulation”) with respect to lighting, fueling or using an open fire, and by lighting debris piles on fire when open fires were prohibited. The Manager levied an administrative penalty of $600 against Ms. Oker for the contraventions, and ordered her to pay the Ministry’s fire suppression costs of $113,776.78.

Before the appeal was heard, the Government advised that there was insufficient proof that Ms. Oker had contravened section 10(3) of the Act. Accordingly, the Commission rescinded that portion of the determination, and the appeal proceeded based on the issue of whether there was a contravention of section 5(1) of the Act.

Ms. Oker submitted that she did not contravene section 5(1) of the Act. She also submitted that the Manager had made various errors, including failing to consider relevant information, failing to speak with her regarding the circumstances of the fire, and relying on flawed or unreliable information from Ministry investigators. In addition, she argued that there was a lack of procedural fairness in the Manager’s decision-making process, and the Ministry investigators were biased, among other things. She requested that the contravention be rescinded, the administrative penalty be waived, and the order to pay fire suppression costs be reduced or eliminated.

The appeal was conducted as a new hearing of the matter, in which both parties had an opportunity to present document evidence, examine and cross-examine witnesses, and make arguments on the facts and the law. As such, the Commission found that the appeal hearing cured any procedural errors that the Manager may have made, including the alleged failure to consider relevant information.

In addition, the Commission found that Ms. Oker provided no submissions or evidence regarding the allegations of bias, and therefore, that ground for appeal was either abandoned or was not made out.

In her testimony, Ms. Oker admitted that she lit several debris piles, and one of those debris piles was the origin of the wildfire. She testified regarding how she tended the fires she had lit, and only lit them in the evening when it was cooler and there was no wind. She also advised that she had water nearby when she was burning the debris piles, she made a fuel break around each fire using a rake, and she poured water on the fires afterwards. However, she did not check the fire hazard rating or the weather report before she lit the fires. She believed that an underground tree root caused the wildfire but she admitted that, at the time, she did not know roots could cause fires to spread, and she did not feel the ground to see if it was still hot before she left the area.

Based on Ms. Oker’s evidence and the evidence of the Ministry’s investigators, the Commission found that Ms. Oker had contravened section 21(1)(b) of the Regulation by lighting a fire when it was unsafe to do so, based the conditions when she lit the debris piles. Those conditions included high temperatures, low humidity, wind, extremely dry ground conditions, and a very high fire danger rating. The Commission also found that she contravened section 21(1)(c) of the Regulation by not establishing a fuel break around the debris piles. Photographs showed no evidence of a band of bare soil around the burn piles. Instead, the photographs showed burnt vegetation right up to the ashes of the debris pile. Further, the Commission found that she contravened section 21(1)(e) of the Regulation by not ensuring that the fire was adequately extinguished before she left the burn area. Consequently, the Commission concluded that she had not met the requirements of sections 21(1)(b),(c), and (e) of the Regulation contrary to section 5(1) of the Act.

Next, the Commission considered whether Ms. Oker had established the statutory defences of due diligence or mistake of fact. The Commission found that Ms. Oker had failed to make inquiries about the fire danger rating or the weather conditions before lighting the debris piles. Although she may have believed she took sufficient steps to establish a fuel break around the burn area and extinguish the burnt debris piles, the Commission found that neither the defence of due diligence nor mistake of fact applied based on the evidence.

Finally, the Commission reviewed the factors to be considered when assessing administrative penalties under section 27(3) of the Act, and concluded that the $600 administrative penalty was on the low end of the range regardless of whether it applied to one contravention or two, and was reasonable in the circumstances. Regarding the order to pay the Ministry’s fire suppression costs, the Commission found that although Ms. Oker was experiencing financial hardship and may be unable to pay those costs, the legislation does not recognize an inability to pay as a basis for not ordering a person to pay for fire suppression costs. Therefore, both the penalty and the order to pay fire suppression costs were confirmed.

Accordingly, the appeal was dismissed.


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