Forest Commission Annual Report 2010

Transcription

1 Forest AppeAls Commissio Aual Report 2010

2 Caadia Cataloguig i Publicatio Data British Columbia. Forest Appeals Commissio. Aual report Aual Issue for 1995 covers: Jue 15 to Dec. 31. ISSN = Aual report - British Columbia. Forest Appeals Commissio 1. British Columbia. Forest Appeals Commissio - Periodicals. 2. British Columbia. Forest Practices Code of British Columbia Act - Periodicals. 3. Forestry law ad legislatio - British Columbia - Periodicals. 4. Admiistrative remedies - British Columbia - Periodicals. I. Title. KEB345.A7F C KF1750.A55F67

3 Forest Appeals Commissio Fourth Floor, 747 Fort Street Victoria, British Columbia Telephoe: Facsimile: Mailig Address: P.O. Box 9425 St Prov Govt Victoria, British Columbia V8W 9V1 Hoourable Barry Peer Attorey Geeral Parliamet Buildigs Victoria, British Columbia V8V 1X4 Hoourable Steve Thomso Miister of Forests, Lads ad Natural Resource Operatios Parliamet Buildigs Victoria, British Columbia V8V 1X4 Dear Miisters: I respectfully submit herewith the aual report of the Forest Appeals Commissio for the period Jauary 1, 2010 to December 31, Yours truly, Ala Adiso Chair Forest Appeals Commissio

4 F O R E S T A P P E A L S C O M M I S S I O N A N N U A L R E P O R T Table of Cotets AR 2010 Message from the Chair 5 Itroductio 7 The Commissio 8 Commissio Membership 8 Admiistrative Law 10 The Commissio Office 10 Commissio Resources 10 Policy o Freedom of Iformatio ad Protectio of Privacy 10 The Appeal Process 11 Appeals uder the Forest Practices Code of British Columbia Act 11 Appeals uder the Forest ad Rage Practices Act 11 Appeals uder the Forest Act 12 Appeals uder the Rage Act 12 Appeals uder the Private Maaged Forest Lad Act 13 Appeals uder the Wildfire Act 13 Legislative Amedmets Affectig the Commissio 14 Evaluatio ad Recommedatios 15 Statistics 16 Summaries of Decisios 17 Appeals of Commissio Decisios to the Courts 32 APPENDIX I 34 Forest Practices Code of British Columbia Act 34 Forest ad Rage Practices Act 39 Forest Act 41 Rage Act 44 Wildfire Act 46 Admiistrative Review ad Appeal Procedure Regulatio (B.C. Reg. 12/04) 48 Private Maaged Forest Lad Act 52 Private Maaged Forest Lad Regulatio (B.C. Reg. 371/04) 53

5 F O R E S T A P P E A L S C O M M I S S I O N A N N U A L R E P O R T Message from the Chair Iam pleased to submit the sixteeth Aual Report of the Forest Appeals Commissio. Durig the past year, the Commissio has received, heard ad decided a variety of appeals that have a sigificat effect o the forest idustry, the eviromet, ad the ecoomy of British Columbia. Icluded i those appeals are issues ivolvig the salvage of isect-damaged timber, uauthorized timber harvestig that caused damage to a fish-bearig stream, road costructio costs, ad the amout of stumpage that licesees are obligated to pay whe harvestig Crow timber. I additio, a large umber of outstadig stumpage appeals that were beig held i abeyace to allow the parties time to egotiate, were settled without the eed for the Commissio to hear the appeals. I 2010, there was further expasio of the resposibilities of the geeral office which operates the Commissio, whe the admiistratio ad operatio of two tribuals was added to the office. The additio of these tribuals is attributable to the success of this shared services model. Havig oe office providig admiistrative support for a umber of tribuals gives each tribual greater access to resources while, at the same time, reducig admiistrative ad operatig costs ad allowig the tribuals to operate idepedetly of oe aother. The office ow operates ad supports the Fiacial Services Tribual. That tribual already existed, but was operated by the Miistry of Fiace. I 5 additio, a ew tribual was established i October of 2010, the Oil ad Gas Appeal Tribual. This tribual is more directly liked to the Commissio, as the Chair of the Commissio is also the Chair of the Oil ad Gas Appeal tribual, ad all members of the Commissio have also bee appoited to the ew tribual. The Commissio office ow admiisters eight tribuals: the Forest Appeals Commissio the Evirometal Appeal Board the Oil ad Gas Appeal Tribual the Commuity Care ad Assisted Livig Appeal Board the Hospital Appeal Board the Idustry Traiig Appeal Board the Health Professios Review Board, ad the Fiacial Services Tribual The Commissio s membership experieced several sigificat chages to its roster of qualified professioals durig the past year. A umber of valued members left the Commissio durig this reportig period, icludig the vice-chair of the Commissio, David Ormerod. Mr. Ormerod was iitially appoited to the Commissio i 1996 ad has bee a extremely valuable ad supportive tribual member over the years. I additio, two other log-term members left the Commissio: Phillip Wog, a member sice 2002, ad Margaret Eriksso, also a member sice 2002.

6 I am very pleased to welcome three ew members to the Commissio who will complemet the expertise ad experiece of the outstadig professioals o the Commissio. These ew members are R. O Bria Blackall, J. Toy Fogarassy ad Douglas VaDie. These ew appoitees were also appoited to the Oil ad Gas Appeal Tribual ad the Evirometal Appeal Board. I am very fortuate to have o the Commissio a wide variety of highly qualified idividuals icludig professioal biologists, foresters, agrologists, egieers, ad lawyers with expertise i the areas of atural resources ad admiistrative law, ad mediatio. All of these idividuals, with the exceptio of the Chair, are appoited as part time members ad brig with them the ecessary expertise to hear matters ragig from timber valuatio to evirometal damage arisig from forestry road costructio ad maiteace ad its impact o fish-bearig streams. Fially, I would like to take this opportuity to thak the members of the Commissio ad the staff for their cotiuig commitmet to the work of the Commissio. Ala Adiso Chair IN MEMORIAM Sadly, o December 26, 2010, Margaret Eriksso passed away after a courageous five-year battle with cacer. Margaret cotributed may years of service to both the Commissio ad the Evirometal Appeal Board, ad she cotiued to hear appeals ad write decisios eve as she fought cacer. The Commissio s members ad staff will remember ad miss Margaret s thoughtful ad pricipled approach to her work. 6

7 F O R E S T A P P E A L S C O M M I S S I O N A N N U A L R E P O R T Itroductio The Forest Appeals Commissio is a idepedet tribual that was established uder the Forest Practices Code of British Columbia Act (the Code ), ad is cotiued uder the Forest ad Rage Practices Act. The iformatio cotaied i this report covers the twelve-moth period from Jauary 1, 2010 to December 31, This report describes the structure ad fuctio of the Commissio ad how the appeal process operates. This report also cotais: the umber of appeals iitiated durig the report period; the umber of appeals completed durig the report period (i.e., fial decisios issued); the resources used i hearig the appeals; a summary of the results of appeals completed i the report period; a evaluatio of the review ad appeal processes; ad, recommedatios for amedmets to the legislatio, from which it hears appeals. Fially, a selectio of the decisios made by the Commissio durig the report period has bee summarized, legislative amedmets affectig the Commissio are described, ad the relevat sectios of applicable legislatio are reproduced. Decisios of the Commissio are available for viewig at the Forest Appeals Commissio office, o the Commissio s website, ad at the followig libraries: Legislative Library Uiversity of British Columbia Law Library Uiversity of Victoria Law Library British Columbia Courthouse Library Society West Coast Evirometal Law Associatio Law Library Detailed iformatio o the Commissio s policies ad procedures ca be foud i the Forest Appeals Commissio Procedure Maual, which may be obtaied from the Commissio office or viewed o the Commissio website. If you have questios, or would like additioal copies of this report, please cotact the Commissio at: Forest Appeals Commissio Fourth Floor, 747 Fort Street Victoria, British Columbia Telephoe: Facsimile: Website address: Mailig address: Forest Appeals Commissio PO Box 9425 St Prov Govt Victoria, British Columbia V8W 9V1 7

8 F O R E S T A P P E A L S C O M M I S S I O N A N N U A L R E P O R T The Commissio The Forest Appeals Commissio is a idepedet admiistrative tribual, which provides a forum to appeal certai decisios made by govermet officials uder the Code, the Forest Act, the Forest ad Rage Practices Act, the Private Maaged Forest Lad Act, the Rage Act ad the Wildfire Act. The Commissio is also resposible for providig the Lieuteat Goveror i Coucil (Cabiet) with a aual evaluatio of appeal ad review processes, ad with recommedatios for amedmets to forest legislatio ad regulatios respectig reviews ad appeals. The Commissio makes decisios respectig the legal rights ad resposibilities of parties that appear before it ad decides whether the decisio uder appeal was made i accordace with the law. Like a court, the Commissio must decide appeals by weighig the evidece, makig fidigs of fact, iterpretig the legislatio ad commo law, ad applyig the law ad legislatio to the facts. I carryig out its fuctios, the Commissio has the power to compel persos or evidece to be brought before the Commissio. The Commissio also esures that its processes comply with the commo law priciples of atural justice. Appoitmets to the Commissio ad the admiistratio of the Commissio are govered by the Admiistrative Tribuals Appoitmet ad Admiistratio Act. Commissio Membership Commissio members are appoited by the Lieuteat Goveror i Coucil (Cabiet) uder sectio 194(2) of the Code. The members appoited to the Commissio are highly qualified idividuals, icludig professioal foresters, professioal biologists, professioal egieers, professioal agrologists ad lawyers with expertise i the areas of atural resources ad admiistrative law. These members apply their respective techical expertise ad adjudicatio skills to hear ad decide appeals i a fair, impartial ad efficiet maer. The members are draw from across the Provice. Commissio membership cosists of a full-time chair, oe or more part-time vice-chairs, ad a umber of part-time members. The legth of the iitial appoitmets ad ay reappoitmets of Commissio members, icludig the chair, are set out i the Admiistrative Tribuals Appoitmet ad Admiistratio Act, as are other matters relatig to the appoitees. This Act also sets out the resposibilities of the chair. Durig the preset report period, the membership of the Commissio chaged. Three members appoitmets expired ad three ew members were appoited. Durig the year, the Commissio cosisted of the followig members: 8

9 MEMBER PROFESSION FROM Chair Ala Adiso Lawyer Victoria Vice-Chair Gabriella Lag (from ) Lawyer Campbell River David Ormerod (util ) Professioal Forester Victoria Members R. O Bria Blackall (from ) Professioal Egieer/Geoscietist Charlie Lake Carol Brow Lawyer/CGA/Mediator Price George Robert Camero Professioal Egieer North Vacouver Moica Dao-Schaffer Professioal Egieer West Vacouver Bruce Devitt Professioal Forester (Retired) Esquimalt Margaret Eriksso (util ) Lawyer Vacouver J. Toy Fogarassy (from ) Geoscietist/Lawyer Vacouver Les Gyug Professioal Biologist Westbak James Hackett Professioal Forester Naaimo R.G. (Bob) Holtby Professioal Agrologist Westbak Blair Lockhart Lawyer/Professioal Geoscietist Vacouver Ke Log Professioal Agrologist Price George David Searle, C.M., Q.C. Lawyer (Retired) North Saaich Douglas VaDie (from ) Geological & Geotechical Egieer Victoria Reid White Professioal Biologist/Civil Egieer Telkwa Robert Wickett Lawyer Vacouver Loree Williams Lawyer/Mediator West Vacouver Phillip Wog (util ) Professioal Egieer Vacouver 9

10 Admiistrative Law Admiistrative law is the law that govers public officials ad tribuals that make decisios affectig the rights ad iterests of people. Admiistrative law applies to the decisios ad actios of statutory decisio-makers who exercise power derived from legislatio. The goal is to esure that officials make their decisios i accordace with the priciples of procedural fairess/atural justice by followig proper procedures ad actig withi their jurisdictio. The Commissio is govered by the priciples of admiistrative law ad, as such, must treat all the parties ivolved i a hearig before the Commissio fairly, givig each party a chace to explai its positio. Appeals to the Commissio are decided o a case-by-case basis. Ulike a court, the Commissio is ot boud by its previous decisios; preset cases of the Commissio do ot ecessarily have to be decided i the same way that previous oes were. The Commissio Office The office provides registry services, legal advice, research support, systems support, fiacial ad admiistrative services, traiig, ad commuicatios support for the Commissio. The Commissio shares its staff ad its office space with the Evirometal Appeal Board, the Oil ad Gas Appeal Tribual, the Commuity Care ad Assisted Livig Appeal Board, the Health Professios Review Board, the Hospital Appeal Board, the Idustry Traiig Appeal Board, ad the Fiacial Services Tribual. Each of the tribuals operates idepedetly of oe aother. Supportig eight tribuals through oe admiistrative office gives each tribual access to resources while, at the same time, cuttig dow o admiistratio ad operatio costs. I this way, expertise ca be shared ad work ca be doe more efficietly. Commissio Resources The fiscal 2010/2011 budget for the Forest Appeals Commissio was $359,000 The fiscal 2010/2011 budget for the shared office ad staff was $1,318,000 Policy o Freedom of Iformatio ad Protectio of Privacy The appeal process is public i ature. Hearigs are ope to the public, ad iformatio provided to the Commissio by oe party must also be provided to all other parties to the appeal. The Commissio is subject to the Freedom of Iformatio ad Protectio of Privacy Act ad the regulatios uder that Act. If iformatio is requested by a member of the public regardig a appeal, that iformatio may be disclosed, uless the iformatio falls uder oe of the exceptios i the Freedom of Iformatio ad Protectio of Privacy Act. Parties to appeals should be aware that iformatio supplied to the Commissio will be subject to public scrutiy ad review. I additio, the ames of the parties i a appeal appear i the Commissio s published decisios which are posted o the Commissio s website, ad may appear i this Aual Report. 10

11 F O R E S T A P P E A L S C O M M I S S I O N A N N U A L R E P O R T The Appeal Process Appeals uder the Forest Practices Code of British Columbia Act There are o loger ay decisios or determiatios made uder the Code that are appealable to the Commissio. However, as other statutes refer appeals to the Commissio, the Code is still importat because it both establishes the Commissio, ad sets out the basic powers ad procedures to be employed by the Commissio o a appeal (uless otherwise specified). Specifically, the Commissio is established uder Part 9 of the Code. This part cotais the provisios settig out the structure, orgaizatio ad madate of the Commissio, icludig its madate to submit this Aual Report. The geeral powers of the Commissio o a appeal remai i Part 6 of the Code, with additioal powers ad procedures further detailed i Part 3 of the Admiistrative Review ad Appeal Procedure Regulatio, B.C. Reg. 12/04. The appeal powers ad procedures set out i sectios 131 to 141 of the Code apply to appeals filed agaist decisios made uder the Forest ad Rage Practices Act, the Forest Act, the Rage Act ad the Wildfire Act. The Private Maaged Forest Lad Act does ot icorporate those Code provisios. 11 Appeals uder the Forest ad Rage Practices Act The Forest ad Rage Practices Act provides for the cotiuatio of the Commissio uder sectio 194 of the Code. As oted above, it also icorporates the Commissio s powers ad procedures as set out i the Code. Part 6, Divisio 4 of the Forest ad Rage Practices Act sets out the decisios that are appealable to the Commissio, which iclude the followig: approval of a forest stewardship pla, woodlot licece pla or a amedmet; authorizatios regardig rage stewardship plas; approvals, orders, ad determiatios regardig rage use plas, rage stewardship plas or a amedmet; suspesios ad cacellatios regardig forest stewardship plas, woodlot licece plas, rage use plas or rage stewardship plas, ad permits; orders regardig rage developmets; orders relatig to the cotrol of isects, disease, etc.; orders regardig uauthorized costructio or occupatio of a buildig o Crow lad i a Provicial forest; orders regardig uauthorized costructio of trail or recreatio facilities o Crow lad;

12 determiatios regardig admiistrative pealties; remediatio orders ad stopwork orders; orders regardig forest health emergecies; orders relatig to the geeral itervetio power of the miister; orders regardig declaratios limitig liability of persos to govermet; relief grated to a perso with a obligatio uder this Act or operatioal pla; coditios imposed i respect of a order, exemptio, coset or approval; ad, exemptios, coditios, ad alterative requiremets regardig roads ad rights of way. Prior to a appeal, a official who makes a determiatio may correct certai errors i the determiatio withi 15 days after the determiatio was made. I additio to this correctio process, there is a iteral admiistrative review process. If a perso is subject to certai specified determiatios listed i the Forest ad Rage Practices Act, ad that perso requests a review, a review must be coducted. However, this review is oly available if there is evidece that was ot available at the time of the origial determiatio. The Forest Practices Board may also require a review of specified determiatios listed uder the Forest ad Rage Practices Act, if it receives coset from the perso who is the subject of the determiatio. Either the determiatio, or a decisio made after completio of a review of the determiatio, may be appealed to the Commissio by the Forest Practices Board or by a perso subject to the determiatio. Appeals uder the Forest Act Appealable decisios uder the Forest Act are set out i sectio 146 of that Act ad iclude certai determiatios, orders ad decisios made by district or regioal maagers, timber sales maagers, employees of the Miistry of Forests ad Rage, ad the Chief Forester. Appealable decisios iclude matters such as the determiatio of stumpage ad the suspesio of rights uder a licece or agreemet. Certai decisios of the Chief Forester, or a employee of the Miistry of Forests ad Rage, may be appealed to the Commissio without prior review (e.g., stumpage determiatios). However, determiatios, orders or decisios made by a district or regioal maager, or a timber sales maager, must be reviewed by a reviewer before they may be appealed. If the perso who is subject to the decisio, or the perso i respect of whose agreemet a decisio is made, disagrees with the review decisio, that perso may appeal the review decisio to the Commissio. Appeals uder the Rage Act The decisios made uder this Act that may be appealed to the Commissio iclude the followig: orders deletig lad from the Crow rage described i a licece or permit; orders by the district maager, or the miister, reducig the umber of aimal uit moths or quatity of hay set out i the licece or permit; orders requirig the holder of a licece or permit to refrai from usig all or part of the Crow rage; 12 orders exemptig, or refusig to exempt, a licece or permit holder from a obligatio to use aimal uit moths;

13 orders relatig to the suspesio of all or some of the rights grated uder a licece or permit, ad orders refusig to reistate suspeded rights; orders relatig to the cacellatio of a licece or permit where rights were uder suspesio; decisios that forage or Crow rage will ot remai available to a licece holder; ad, amedmets to a grazig licece or grazig permit reducig the umber of aimal uit moths due to o-compliace with the licece or permit, or o-compliace with a o-use agreemet. Prior to filig a appeal, the perso affected by the order, decisio or amedmet may request a review, provided that there is evidece that was ot available at the time of the origial order, decisio or amedmet. Either the order, decisio or amedmet, or the decisio made after completio of a review of the order, decisio or amedmet, may be appealed to the Commissio. A appeal may be filed directly to the Commissio agaist a miister s order issued uder sectio 15(2) of the Rage Act, which relates to a proposal for a licece or permit. Appeals uder the Private Maaged Forest Lad Act The requiremets for appeals uder the Private Maaged Forest Lad Act are set out i sectio 33 of that Act. That sectio creates a right of appeal to the Commissio for persos who are subject to certai orders, decisios or determiatios of the Private Maaged Forest Lad Coucil, icludig: determiatios that a perso has cotraveed the Act or the regulatios; remediatio orders; stop work orders; otificatios to the assessor regardig cotravetios; ad, requests of the Coucil to rescid or vary orders, decisios or determiatios. Appeals uder the Wildfire Act Part 3, Divisio 3 of the Wildfire Act sets out the decisios that may be appealed to the Commissio. It provides that the perso who is subject to certai orders may appeal either the order, or the decisio made after the completio of a review of the order, to the Commissio. The Forest Practices Board may also request a review of those same orders, provided that it receives coset from the perso who is the subject of the order. Further, it may appeal the order, or the decisio made after the completio of the review of the order, to the Commissio. The orders that may be appealed are as follows: orders to abate a fire hazard; orders determiig that a perso caused or cotributed to a fire or to the spread of a fire; orders requirig a perso to pay the govermet s costs for fire cotrol ad the costs related to the loss of Crow resources as a result of the fire, as determied by the miister; cotravetio orders; admiistrative pealties ad cost recovery orders; remediatio orders ad admiistrative pealties resultig from a failure to comply with a remediatio order; ad, stop work orders. 13

14 F O R E S T A P P E A L S C O M M I S S I O N A N N U A L R E P O R T Legislative Amedmets Affectig the Commissio I this report period, there were o legislative chages that affected the types of appeals the Commissio hears, or that affected the Commissio s powers or procedures. Durig this report period, the decisios that could be appealed to the Commissio were made by staff i the Miistry of Forests ad Rage, ad later, the Miistry of Natural Resource Operatios. After the report period cocluded, but before this report was published, resposibility for those decisios was trasferred to the Miistry of Forests, Lads ad Natural Resource Operatios. However, those chages will ot affect the Commissio s madate, powers or procedures i respect of appeals. Further, as part of the govermet reorgaizatio that occurred o October 25, 2010, the Attorey Geeral was give the statutory authority uder the Costitutio Act as the Miister resposible for the activities of the Forest Appeals Commissio ad its sister tribuals, the Evirometal Appeal Board ad Oil ad Gas Appeal Tribual. 14

15 F O R E S T A P P E A L S C O M M I S S I O N A N N U A L R E P O R T Evaluatio ad Recommedatios Uder the Admiistrative Review ad Appeal Procedure Regulatio ad sectio 197 of the Code, the Commissio is madated to aually evaluate the review ad appeal process ad idetify ay problems that have arise. The Commissio also makes recommedatios o amedmets to the legislatio respectig reviews ad appeals. The Commissio is pleased to report that o problems have bee idetified i either the review or the appeal process durig the past year. Accordigly, the Commissio is ot makig ay recommedatios i relatio to either of these processes at this time. 15

16 F O R E S T A P P E A L S C O M M I S S I O N A N N U A L R E P O R T Statistics Forest Appeals Commissio The followig tables provide iformatio o the appeals filed with the Commissio ad decisios published by the Commissio, durig the report period. The Commissio publishes all of its decisios o the merits of a appeal, ad most of the importat prelimiary ad post-hearig decisios. The Commissio also issues upublished decisios o a variety of prelimiary matters that are ot icluded i the statistics below. A total of 12 appeals were filed with the Commissio i No appeals were filed uder the Forest ad Rage Practices Act, oe appeal was filed uder the Forest Practices Code of British Columbia Act, four were filed uder the Forest Act, six appeals were filed uder the Wildfire Act, ad oe appeal was filed uder the Rage Act. The total umber of appeals closed without a hearig durig the reportig period was 18. Of this umber, eight appeals were closed due to jurisdictio/stadig; ad 10 were withdraw or abadoed. A total of 65 appeals were completed i 2010.* The Commissio issued 57 decisios i 2010, icludig 49 coset orders. Appeals Ope Appeals at period start 106 Ope Appeals at period ed 53 Appeals filed Appeals filed uder the Code/Forest ad Rage Practices Act 1 Appeals filed uder the Forest Act 4 Appeals filed uder the Private Maaged Forest Lad Act 0 Appeals filed uder the Rage Act 1 Appeals filed uder the Wildfire Act 6 Total appeals filed 12 Appeals Closed Withdraw, abadoed, jurisdictio/stadig 19 Fial Decisio 46 Total appeals closed 65 Hearigs held o the merits of appeals Oral hearigs completed 5 Writte hearigs completed 6 Total hearigs held o the merits of appeals* 11 Published decisios issued Fial decisios Code/Forest ad Rage Practices Act 5 Forest Act 2 Private Maaged Forest Lad Act 0 Rage Act 0 Wildfire Act 1 Coset orders Code/Forest ad Rage Practices Act 1 Forest Act 38 Private Maaged Forest Lad Act 0 Rage Act 0 Wildfire Act 10 Total published decisios issued 57 *Note: hearigs held ad decisios issued i 2010 do ot ecessarily reflect the umber of appeals filed i

17 F O R E S T A P P E A L S C O M M I S S I O N A N N U A L R E P O R T Summaries of Decisios Jauary 1, 2010 ~ December 31, 2010 Appeals are ot heard by the etire Commissio; rather appeals are heard by a pael of the Commissio. The Chair of the Commissio will decide whether a appeal should be heard ad decided by a pael of oe, or by a pael of three members of the Commissio. The size ad compositio of the pael geerally depeds upo the type(s) of expertise eeded by the Commissio members i order to uderstad the issues ad adjudicate the appeal i a fair ad impartial maer. Uder all of the statutes uder which the Commissio is empowered to hear appeals, the Commissio has the power to cofirm, vary or rescid the decisio uder appeal ad to sed the matter back to the origial decisio-maker with or without directios. I additio, uder the Private Maaged Forest Lad Act the Commissio may make ay other order it cosiders appropriate. Whe a appellat is successful i covicig the pael that the decisio uder appeal was made i error, or that there is ew iformatio that will chage the decisio, the appeal is said to be allowed. If the appellat succeeds i obtaiig some chages to the decisio, but ot all that was asked for, the appeal is said to be allowed i part. Whe a appellat fails to establish o a balace of probabilities that the decisio is icorrect o the facts or i law, ad the Commissio upholds the origial decisio, the appeal is said to be dismissed. 17 The Commissio also has the power to order a party or iterveor to pay the costs of aother party or iterveor. A applicatio for costs may be made at ay time i the appeal process, but will ot ormally be decided util the hearig cocludes ad the fial decisio is redered. It is importat to ote that the Commissio ecourages parties to resolve the issues uder appeal either o their ow or with the assistace of the Commissio. For appeals uder the Forest Act, a special procedure has bee put i place i accordace with a memoradum from the former Miistry of Forests ad Rage ow the Miistry of Forests, Lads ad Natural Resource Operatios. Upo receipt of a Notice of Appeal uder the Forest Act, the Commissio will hold the appeal i abeyace for 30 days to allow the parties the opportuity to eter ito discussios to resolve the issues uder appeal. Regardless of the statute, may appeals are resolved without the eed for a hearig. Sometimes the parties will reach a agreemet amogst themselves ad the appellat will simply withdraw the appeal. At other times, the parties will set out the chages to the decisio uder appeal i a coset order ad ask the Commissio to approve the order. The coset order the becomes a order of the Commissio. The Commissio has icluded descriptios of some coset orders i the summaries. It is also importat to ote that the Commissio issues may decisios each year, some

18 that are published ad others that are ot. Therefore, ot all of the decisios made by the Commissio betwee Jauary 1, 2010 ad December 31, 2010 have bee icluded i this Aual Report. Rather, the Commissio has selected a few of its decisios to be summarized i this report that reflect the variety of subjects ad issues that come before the Commissio i ay give year. As has bee oted i the Message from the Chair, the subject matter ad the issues ca vary sigificatly i both techical ad legal complexity. The summaries have bee orgaized accordig to the statute uder which the appeal was filed. Fially, these summaries are a iterpretatio of the decisios by Commissio staff ad may be subject to a differet iterpretatio. For a full viewig of all published decisios issued durig this report period, ad summaries of those decisios, please refer to the Commissio s web page. Appeals uder the Forest Practices Code of British Columbia Act ad the Forest ad Rage Practices Act Too may healthy gree trees harvested uder a licece that targeted isectdamaged timber 2008-FOR-005(a) Dory Atose v. Govermet of British Columbia Decisio Date: March 24, 2010 Pael: David Ormerod Dory Atose received a forestry licece to harvest timber i November I his applicatio for the licece, which became a schedule to the licece, Mr. Atose proposed to salvage dead or isectdamaged timber i order to improve ugulate witer rage. He proposed to harvest up to 1000 m 3 of timber, 18 of which 80% would be dead or dow larch ad fir, ad 20% would be iterspersed live trees or larch ad fir that was edagered due to isect ifestatio. He proposed to harvest the timber by sigle tree selectio with retetio of live trees, which ivolved had fallig. Followig a series of ispectios by the Miistry of Forests ad Rage (the Miistry ), the licece was suspeded twice i I the first istace, the Miistry foud uauthorized skid trail use, ad i the secod istace, the Miistry foud that too much gree timber was beig harvested. A few days after the secod suspesio, the Miistry foud that Mr. Atose was operatig despite the suspesio. The Miistry the issued a stop work order ad seized a quatity of decked timber. The seized timber amouted to four truck loads, with a total scaled volume of m 3. The Miistry coducted a stump cruise of the harvest area ad cocluded that m 3 of timber was part of a uauthorized harvest. Approximately the same volume of cedar had bee delivered to buyers uder the licece. The District Maager, Columbia Forest District, foud that Mr. Atose cotraveed sectio 52(1) of the Forest ad Rage Practices Act (the Act ) by harvestig Crow timber without authorizatio, ad sectio 84(1) of the Forest Act by failig to properly hammer mark four loads of timber. The District Maager levied a pealty of $4, for the uauthorized timber harvestig, ad a pealty of $400 ($100 per load) for the failure to mark the timber. Mr. Atose appealed o the basis that the determiatio resulted from a flawed ivestigatio ad decisio-makig process, ad that faller safety was ot properly cosidered by the District Maager. Mr. Atose argued that may of the gree trees were harvested to esure faller safety, as required by worker safety regulatios, ad some gree trees showed evidece of isect ifestatio. He did ot dispute that four loads of timber were trasported without hammer marks, but he submitted that the timber markig

19 cotravetio should be rescided because the loads were seized by the Miistry. The Commissio foud that the Miistry s ivestigatio ad hearig processes were fair, ad there was o evidece to support Mr. Atose s cotetio that those processes were icomplete or ufair. I additio, the Commissio foud that a substatial amout of the total volume harvested uder the licece came from gree trees, ad from species other tha larch ad fir. The evidece showed that the stad of timber was dese ad cotaied umerous sags ad ifested trees, which made it very hazardous i terms of faller safety. Based o the evidece, the Commissio cocluded that the applicatio for the licece had proposed the harvest of a urealistic proportio of dead/edagered larch ad fir, give the desity ad species mix of the timber ad the umber of gree trees that would eed to be harvested i order to comply with faller safety regulatios. The Commissio also foud that the licece made little provisio for fallig gree timber i order to access the target timber. The Commissio foud that, whe the licece was issued, either the Miistry or Mr. Atose had realized that the terms of the licece were ufeasible. The Commissio oted that Mr. Atose was iexperieced as a licesee ad had relied o a professioal forester to prepare the licece applicatio for him. However, the Commissio foud that Mr. Atose could have applied for a amedmet to the licece oce he recogized the difficulty of complyig with it, or he could have sought approval from the District Maager to harvest more gree timber tha was cotemplated i the licece, but he did either. Cosequetly, the Commissio foud that Mr. Atose cotraveed sectio 52(1) of the Act. After cosiderig the factors set out i sectio 71(5) of the Act, the Commissio foud that the pealty for the uauthorized harvestig should be reduced to $ Specifically, the Commissio foud 19 that the pealty should ot iclude a amout to remove the ecoomic beefit Mr. Atose received as a result of the cotravetio. The Commissio foud that the Miistry failed to ivestigate the uauthorized harvestig i a timely maer, ad this cotributed to the volume of gree timber that was harvested. The Commissio calculated the pealty amout based o the amout of stumpage lost o the volume of m 3, as a result of gree logs beig billed at the stumpage rate for dead timber. Regardig the timber markig cotravetio, the Commissio foud that Mr. Atose was icorrect i relyig o the trucker to place the hammer marks o the timber. The Commissio foud that the law is clear that Mr. Atose was resposible for esurig that the timber was properly marked before it was removed from Crow lad. The Commissio also foud that the requiremet to apply the timber mark did ot cease to apply whe the Miistry seized the timber. Cosequetly, the Commissio cofirmed that Mr. Atose cotraveed sectio 84(1) of the Forest Act with respect to the four loads of timber. However, the Commissio foud that mitigatig factors justified reducig the pealty to zero. u Accordigly, the appeal was allowed, i part. The Govermet s applicatio for costs agaist Mr. Atose was deied. What costitutes accurate data i a licesee s submissio that is used to determie stumpage rates? 2008-FOR-006(a) Aisworth Lumber Co. Ltd. v. Govermet of British Columbia Decisio Date: October 29, 2010 Pael: Margaret Eriksso Aisworth Lumber Co. Ltd. ( Aisworth ) appealed a determiatio ad otice of pealty issued i July 2008 by the District Maager, Cascade Forest District, Miistry of Forests ad Rage uder

20 sectio 71(2) of the Forest ad Rage Practices Act. I the determiatio, the District Maager foud that Aisworth had cotraveed sectio of the Forest Act by failig to submit accurate iformatio i the appraisal data submissios it provided to the Miistry for use i determiig the stumpage rate applicable to timber harvested uder a cuttig permit. Specifically, the District Maager foud that Aisworth did ot provide accurate iformatio i the secod set of detailed egieerig cost estimates ( ECEs ) it had submitted regardig the costructio of oe road ad recostructio of portios of aother road ad associated spurs. The District Maager held that although Aisworth ultimately submitted a third ad fial ECE that was accurate, Aisworth kew whe it submitted the secod iaccurate ECE that it would ot be carryig out all of the work proposed i that ECE. The Maager foud that Aisworth had kowigly filed the iaccurate secod ECE, which was uchaged from Aisworth s iitial ECE, despite the Miistry questioig the accuracy of Aisworth s iitial ECE. The first ad secod ECEs totalled $811,015 ad were based o the estimated cost of the work cotemplated while the roads were uder costructio, whereas the fial ECE totalled $613,480 ad was based o the actual cost of the work completed. The District Maager levied a pealty of $1,500 for the cotravetio. Aisworth appealed to the Commissio o the basis that the secod ECE was accurate withi the meaig of sectio of the Forest Act, because the ECE reflected the costs that Aisworth expected to icur, at the time whe the roads were still uder costructio ad the actual costs had ot yet bee determied. Alteratively, Aisworth submitted that eve if the ECE was iaccurate ad there was a cotravetio of sectio 105.1, o pealty should have bee levied. The Commissio cosidered the meaig of the word accurate i sectio of the Forest Act, i 20 the cotext of the legislative scheme icludig sectio 105(1) of the Forest Act ad the relevat sectios of the Iterior Appraisal Maual ( IAM ). The Commissio foud that the IAM requires licesees to provide ECEs i their appraisal data submissios as a forward-lookig exercise, ad these estimates reflect those of a otioal average operator. I this cotext, accurate meas coformig... with a give stadard, as defied i the Caadia Oxford Dictioary. The Commissio oted that sectio 2.2 of the IAM establishes a process whereby the licesee will be otified if a district maager is of the view that there is a omissio or error i the licesee s data submissios, ad the licesee may the revise its submissios. Turig to the facts i this case, the Commissio foud that whe the Miistry expressed cocers about Aisworth s iitial ECE, the Miistry did ot specifically ask Aisworth to submit its actual costs to date, or did the Miistry refer to ay sectio of the IAM that requires a licesee to update its ECEs based o actual costs icurred at the date of the iformatio request. I the absece of a specific referece to which part of the formulae i the IAM Aisworth had failed to meet, or a specific request from the Miistry for actual detailed egieerig costs to date, the Commissio was uable to coclude that the iformatio submitted i Aisworth s secod ECE was iaccurate. The Commissio held that the secod ECE reflected Aisworth s estimates of the egieerig costs that a otioal average operator would icur at the site. Oly after the costructio was complete ad site coditios were kow were the actual costs kow ad Aisworth was able to submit its fial ECE, which reflected its actual costs. The Commissio cocluded that the estimates i the secod ECE were accurate at the time they were submitted, ad therefore, Aisworth did ot cotravee sectio of the Forest Act. u Accordigly, the determiatio ad pealty were rescided, ad the appeal was allowed.

21 Uauthorized timber harvestig damages a fish-bearig stream 2009-FOR-003(a) Rick Bulle v. Govermet of British Columbia Decisio Date: August 11, 2010 Pael: Ala Adiso Rick Bulle appealed a determiatio issued by the District Maager, South Islad Forest District, Miistry of Forests ad Rage. The District Maager determied that Mr. Bulle cotraveed sectios 52(1) ad 52(3) of the Forest ad Rage Practices Act (the FRPA ) by cuttig ad removig Crow timber without authority. The District Maager levied admiistrative pealties of $1250 per cotravetio, for a total pealty of $2,500. A review decisio issued by a Miistry official cofirmed the District Maager s determiatio ad the pealties. The Miistry s ivestigatio ito the matter bega after it received a aoymous tip allegig that Mr. Bulle had cut Crow timber adjacet to a power lie behid Fay Bay, BC, ad had used his skidder to trasport the log to a private property owed by a acquaitace of Mr. Bulle. Miistry officials had atteded at the site ad foud a bucked widfall tree o Crow lad, sigs of machie etry ito the forest, ad drag marks leadig dow a Forest Service road to a trail, across a fish-bearig stream, ad further dow the trail to a bucked Douglas Fir log matchig the bucked widfall. Ivestigators also foud that a cedar log embedded i the stream bak had bee cut, ad there were drag marks leadig dow a trail to the property owed by Mr. Bulle s acquaitace. A cedar log matchig the log embedded i the stream was foud lyig adjacet to the acquaitace s property, ad Mr. Bulle s skidder was parked o or adjacet to the property. Miistry ivestigators iterviewed several eighbours, who asked to remai aoymous, that claimed to have heard a chaisaw ad skidder operatig, ad see Mr. Bulle s truck ad skidder parked o the acquaitace s property, o the day of the cotravetios. The Miistry also iterviewed Mr. Bulle, but he eded the iterview shortly after beig askig about the vehicle he was drivig o the day of the cotravetios. Mr. Bulle appealed to the Commissio o the basis that he did ot commit the cotravetios. He requested that the Commissio overtur the decisio. At the appeal hearig, Mr. Bulle submitted that the allegatios made by the aoymous iformats were false. He also provided letters from several people statig that they had asked Mr. Bulle to cut trees o their private property prior to the date of the cotravetios, ad that he was out of tow the day after the cotravetios occurred. The Commissio reviewed the evidece provided by the parties regardig the circumstaces of the cotravetios, ad whether there was sufficiet evidece to establish that Mr. Bulle committed the cotravetios. The Commissio foud, o a balace of probabilities, that Mr. Bulle was resposible for the cotravetios. I particular, the Commissio held that it was very ulikely that someoe other tha Mr. Bulle cut the logs ad used his skidder, or aother skidder, to move the logs. The Commissio foud that, o or about the day after the cotravetios occurred, Miistry ivestigators observed distict ad recet drag marks leadig from the uauthorized harvestig sites to the site where Mr. Bulle s skidder was parked. No others skidders were observed i the area durig that time, ad Mr. Bulle testified that he removes the battery from his skidder whe he is ot usig it. Mr. Bulle testified that he is a experieced logger, ad he ows the skidder that was observed parked ear his acquaitace s property. Further, the sawdust ad cuts observed by the ivestigators were very recet, ad the logs foud ear the property of Mr. Bulle s acquaitace matched the timber that 21

22 was cut without authority. I additio, Mr. Bulle was vague as to his whereabouts o or shortly before the date of the cotravetios, despite clearly recallig other evets that occurred aroud that time. Further, he provided o useful evidece, i the form of documets or corroboratio from other persos, regardig his whereabouts or activities o the date of the cotravetios. The Commissio put little weight o the allegatios made by aoymous iformats, as it was impossible to assess the credibility or reliability of their evidece. However, the Commissio cocluded that the other evidece was sufficiet to establish that it was more likely tha ot that Mr. Bulle committed the cotravetios. Next, the Commissio reviewed each of the factors set out uder sectio 71(5) of the FRPA, ad cocluded that the pealties were appropriate i the circumstaces. I particular, the Commissio foud that the evidece established that removig the cedar log from the stream bak ad draggig logs through the stream chael had caused serious damage to fish habitat i the stream. u Cosequetly, the Commissio held that the determiatio ad the pealties should be cofirmed. The appeal was dismissed. Parties egotiate settlemet over trespass oto Crow Lad 2009-FOR-004(a) & 2009-FOR-005(a) 5C Cattle Compay Ltd. v. Govermet of British Columbia Decisio Date: August 15, 2010 Pael: Carol Brow 5C Cattle Compay Ltd. (the Appellat ) appealed a determiatio ad a remediatio order issued i August 2009 by the Operatios Maager (the Maager ), Quesel Forest District, Miistry of Forests ad Rage. I the determiatio, the Maager foud that the Appellat cotraveed sectio 74(2) of the Forest Practices Code of British Columbia Act (the Code ), sectios 52(1) ad 53(2) of the Forest ad Rage Practices Act (the FRPA ), ad sectio 84(1) of the Forest Act. The Maager levied admiistrative pealties totallig $14, for the cotravetios. The Maager also issued the remediatio order, which required the Appellat to remove a uauthorized fece, gates ad sigs from Crow lad. The cotravetios arose from the followig circumstaces. The Appellat held a grazig licece o Crow lad. I or about 2003, the Appellat recostructed a fece o Crow lad adjacet to the Appellat s lad. The Appellat believed that the fece was o its property, as a previous fece was built i the same place i 1995 ad it aliged with a fece o a eighbourig property. The area betwee the fece ad the Appellat s property, approximately 4.5 hectares, was actually Crow lad, ad it was ulawfully harvested i 2006 o behalf of the Appellat. The Appellat did ot do a legal survey before erectig the fece, or before commecig timber harvestig. The Appellat did ot have a valid timber mark for the timber, ad o stumpage was paid. The Appellat appealed the determiatio ad the remediatio order, o the basis that the cotravetios were ot deliberate, ad that the pealties were ureasoable. The Commissio decided to hear the appeals together, but the hearig was adjoured shortly after it bega. The parties idicated that they may be able to resolve the appeals. Subsequetly, the parties agreed to coclude the appeals by way of a coset order. By coset of the parties, the Commissio ordered that the cotravetios were cofirmed ad the pealties were reduced to a total of $8,600. The appeal of the remediatio order was abadoed. u Accordigly, by coset, of the parties, the appeal of the determiatio was allowed, i part. 22

23 Nocompliace with reportig requiremets leads to pealties 2009-FOR-006(a) & 2009-FOR-007(a) Meadow Creek Cedar Ltd. v. Govermet of British Columbia Decisio Date: April 7, 2010 Pael: Ala Adiso Meadow Creek Cedar Ltd. ( Meadow Creek ) appealed a determiatio ad a remediatio order issued by the District Maager, Kooteay Lake Forest District, Miistry of Forests ad Rage. The District Maager determied that Meadow Creek had cotraveed sectio 46 of the Timber Harvestig ad Silviculture Practices Regulatio (the Regulatio ) 21 times by failig to report forest cover ivetory for 21 separate opeigs. The District Maager levied admiistrative pealties of $100 per cotravetio, for a total pealty of $2,100. The remediatio order required Meadow Creek to submit the required reportig by May 15, Meadow Creek did ot dispute that it was resposible for the cotravetios, or did it claim ay statutory defeces. Meadow Creek appealed o the basis that the pealties would be detrimetal to the compay s survival, ad that the reportig had sice bee completed ad steps had bee take to keep the reportig up-to-date. Meadow Creek requested that the Commissio reduce the pealties. The Commissio foud that the remediatio order should be cofirmed because the evidece established that the order was warrated whe it was issued. I particular, Meadow Creek had received several warigs that it was out of compliace with its reportig requiremets, ad it remaied out of compliace whe the remediatio order was issued. The Commissio foud that the fact that the reportig had sice bee completed was irrelevat to whether the remediatio order should have bee issued. 23 I additio, the Commissio foud that the pealties were appropriate i the circumstaces. The Commissio foud that ecoomic hardship is ot oe of the factors which must be cosidered whe levyig a pealty. Further, the Commissio held that the evidece established that the cotravetios were repeated, cotiuous ad deliberate, ad that a pealty was eeded to provide both specific deterrece agaist Meadow Creek ad geeral deterrece to discourage others who may cosider failig to report. The Commissio foud that the pealty of $100 per cotravetio was omial, ad was appropriate give that Meadow Creek had o previous cotravetios of this ature, Meadow Creek derived o ecoomic beefit from the cotravetios, ad the cotravetios caused o damage to public forest resources. The Commissio held that it was irrelevat that Meadow Creek had sice completed the reportig, ad the Commissio oted that there was evidece that Meadow Creek cotiued to be o-compliat with certai reportig requiremets while the appeals were beig heard. Cosequetly, the Commissio cofirmed the pealties. u Accordigly, the appeals were dismissed. Appeals uder the Forest Act All of the appeals decided uder this Act i 2010 related to stumpage rates. A stumpage rate is the amout of moey that a perso (the licesee) must pay to the Govermet for harvestig Crow timber. The Miistry of Forests ad Rage (ow the Miistry of Forest, Lads ad Natural Resource Operatios) determies the rate that a licesee must pay, ad advises the licesee of the rate i a stumpage advisory otice or a stumpage adjustmet otice. Sectio 105 of the Forest Act states that these rates must be determied, redetermied or

24 varied i accordace with the policies ad procedures approved by the Miister of Forests ad Rage. Those policies ad procedures are cotaied i two mauals, oe for the iterior forest regio, ad oe for the coastal forest regio. For the iterior, stumpage rates must be calculated i accordace with the Iterior Appraisal Maual ( IAM ). For the coast, stumpage rates must be calculated i accordace with the Coast Appraisal Maual ( CAM ). The cotet of these mauals have the force of law uder sectio 105 of the Forest Act ad the Commissio is required to apply them uder sectio 149(3) of the Forest Act. Parties settle appeals followig BC Court of Appeal decisio upholdig Commissio s decisio o a similar appeal 2005-FA-007(a) & 2005-FA-008(a) Wester Forest Products Ic. v. Govermet of British Columbia Decisio Date: November 2, 2010 Pael: Ala Adiso Wester Forest Products Ic. ( Wester ) appealed two stumpage determiatios issued by the Regioal Appraisal Coordiator (the Coordiator ), Forest Regio, Miistry of Forests ad Rage, for two cuttig permits o Vacouver Islad. Wester appealed o the basis that the Coordiator erred by usig a log dump at Jorda River rather tha the Otter Poit log dump as the appraisal log dump ad poit of origi, ad by usig the haul distace to Jorda River, i the stumpage determiatios. At the parties request, the appeals were held i abeyace for several years, pedig the outcome of court proceedigs ivolvig some of the Commissio s decisios i other appeals ivolvig the same or similar issues. I oe of those decisios, the Commissio had cocluded that the Jorda River log dump was ot suitable for use by a otioal average operator, ad it would be ufair to appraise the stumpage rate applicable to Wester s cuttig authorities based o Jorda River as the poit of origi, whe all other licesees i the area were appraised to aother log dump (see Wester Forest Products Ltd. v. Govermet of British Columbia, Decisio No FA-003(c), issued September 21, 2005). That decisio was appealed to the BC Supreme Court ad the to the BC Court of Appeal. I August 2009, the BC Court Appeal released its decisio i Wester Forest Products Ic. v. HMTQ, 2009 BCCA 354, which upheld the Commissio s decisio. The Provice the sought leave from the Supreme Court of Caada to appeal that judgemet. O March 11, 2010, the Provice s applicatio for leave was dismissed. Followig the coclusio of those court proceedigs, the parties agreed to settle the appeals. By coset of the parties, the Commissio ordered that the stumpage determiatios be rescided ad remitted back to the Coordiator for redetermiatio utilizig Otter Poit as the appraisal log dump, with appropriate haul distaces ad poits of origi. u Accordigly, the appeals were allowed. Icreased harvest of beetle-killed pie affect stumpage rate calculatios i the BC Iterior 2009-FA-013(a) Stoes Bay Holdigs Ltd. v. Govermet of British Columbia Decisio Date: March 1, 2010 Pael: James Hackett Stoes Bay Holdigs Ltd. ( Stoes Bay ) appealed a adjusted stumpage rate that was determied by the Timber Pricig Coordiator (the Coordiator ), Norther Iterior Forest Regio, Miistry of Forests ad Rage. The adjusted stumpage rate applied to sawlogs harvested uder Stoes Bay s timber sale licece ( TSL ) A77792, ad scaled betwee December 15, 2005 ad April 30,

25 Whe logs are scaled, they are classified by grade based o their size ad quality for the purposes of maufacturig. O April , the Miistry chaged the log gradig rules for the BC Iterior due to the icreasig harvest of lodgepole pie timber killed by the moutai pie beetle, ad the fact that, although this timber was dead ad dry, it could still be maufactured ito useful forest products. The rule chages affected the calculatio of stumpage rates. The adjusted stumpage rate was determied accordig to a calculatio that used the gree sawlog fractio GLF. At issue i this appeal was the iformatio used by the Maager to calculate the GLF. A higher GLF results from usig a higher percetage of gree sawlogs (ad correspodigly, a lower percetage of dead ad dry trees). A higher GLF leads to a higher adjusted stumpage rate. Stoes Bay submitted that the Maager should have cosidered the level of beetle ifestatio o the cuttig authority area to estimate the volume of dead ad dry timber for the purpose of calculatig the GLF. Stoes Bay also submitted that the Maager should have cosidered iformatio from aother TSL located ear to TSL A77792, before calculatig the GLF for TSL A Alteratively, Stoes Bay argued that the Commissio should order the Miistry to use the forest district average as the GLF for TSL A Regardig the issue of whether the Maager should have cosidered the extet of the beetle ifestatio o TSL A77792 before he calculated the GLF, the Commissio foud that beetle attack levels were a poor predictor of the volume of dead ad dry timber o a TSL. I that regard, the Commissio accepted the Maager s statistical evidece, which showed a weak correlatio betwee the level of beetle attack ad the volume of dead ad dry timber. The Commissio also cocluded that the Maager acted reasoably i calculatig the GLF for TSL A77792 based o data from two TSLs which were located close to TSL A77792 ad exhibited similar stad characteristics to TSL A The Commissio cocluded that there was o basis to also use scale data from aother TSL selected by Stoes Bay or the district average GLF. u Accordigly, the appeal was dismissed. Bridge upgrade ad road developmet costs appealed 2009-FA-014(a) Atco Wood Products Ltd. v. Govermet of British Columbia Decisio Date: September 16, 2010 Pael: David Ormerod Atco Wood Products Ltd. ( Atco ) appealed a stumpage rate determiatio issued i September 2009 by the Timber Pricig Coordiator (the Coordiator ), Souther Iterior Forest Regio, Miistry of Forests ad Rage. I determiig the stumpage rate, the Coordiator rejected six egieered cost estimates ( ECEs ) i Atco s appraisal data submissios for cuttig permit ( CP ) 28 of forest licece A Three of the ECEs were for upgradig existig bridges o a forest service road. The other three ECEs were for terrai stability field assessmets associated with Atco s developmet of a loggig road, extedig from the existig forest service road, pursuat to a road permit issued uder the forest licece. Atco used both roads whe harvestig timber uder its forest licece. All of the ECEs were for work completed before Jue The ECEs were ot icluded i ay of Atco s appraisal data submissios util July 2009, whe it applied for CP 28. Atco did ot iclude the ECEs i its appraisal data submissios for earlier cuttig authorities because applyig the ECEs towards the stumpage rates for those cuttig authorities would have resulted i egative stumpage rates, ad 25

26 therefore, the statutory miimum stumpage rate would have applied ad Atco would have received limited compesatio for the ECEs. Based o coversatios with Miistry staff, Atco staff believed that the ECEs could be held back ad applied to a future cuttig permit, such as CP 28, that would have a positive stumpage rate. The Coordiator rejected the ECEs o the basis that CP 28 was ot the first tributary cuttig authority for the forest licece, ad there was o exteded road amortizatio agreemet ( Agreemet ) betwee Atco ad the Miistry i respect of CP 28 or ay other cuttig authorities issued uder the forest licece. O appeal to the Commissio, Atco ackowledged that it had o Agreemet with the Miistry regardig the ECEs, but argued that the Iterior Appraisal Maual (the IAM ) did ot require it to have a Agreemet i order to claim ECEs that pertai to a forest service road. Alteratively, Atco submitted that if the IAM did require a Agreemet, the the Miistry should redetermie the stumpage rate uder sectio 2.5 of the IAM to prevet Atco from sufferig a iequity. The Govermet submitted that the IAM required a Agreemet because CP 28 was ot the first tributary cuttig authority i this case, ad sectio 2.5 could ot be used to retroactively create a Agreemet. First, the Commissio cosidered whether the first tributary rules for road developmet cost amortizatio apply to the ECEs relatig to the upgrade of bridges o the forest service road. The Commissio foud that the three ECEs pertaiig to bridge upgrades o the forest service road were either ew developmet or developmet occurrig uder the authority of a road permit or cuttig permit, ad therefore, those ECEs were ot covered by the requiremets i the IAM to allocate certai road 26 developmet costs to the first fully appraised tributary cuttig authority. The Commissio also held that othig i the IAM expressly prohibits the type of costs i the three bridge-related ECEs from beig icluded i the appraisal ad oted that those ECEs had ot bee icluded i ay previous appraisal. For all of those reasos, the Commissio cocluded that the three ECEs pertaiig to the upgrade of bridges o the forest service road should have bee icluded i the appraisal of CP 28. Next, the Commissio cosidered whether the IAM could be applied to allow the iclusio of the other three ECEs, which pertaied to developmet of the loggig road uder a road permit, i the appraisal of CP 28. The Commissio held that sectio 2.5 of the IAM cotemplates circumstaces where the licesee ad the Coordiator agree that a stumpage rate should be redetermied, ad i this case the parties did ot agree. Cosequetly, the Commissio cocluded that sectio 2.5 did ot apply i this case. I summary, the Commissio cocluded that the ECEs associated with upgrades of the bridges o the forest service road should have bee allowed i the appraisal of CP 28, but the Coordiator correctly rejected the ECEs for developmet of the loggig road uder Atco s road permit. The Commissio referred the matter back to the Coordiator with directios to redetermie the stumpage rate for CP 28 to accout for the ECEs associated with the forest service road. u Accordigly, the appeal was allowed, i part. Applicatio for a six-year extesio of time to file a appeal deied 2010-FA-002(a) & 2010-FA-003(a) Wester Forest Products Ic. v. Govermet of British Columbia Decisio Date: October 12, 2010 Pael: Ala Adiso Wester Forest Products Ic. ( Wester ) appealed two separate stumpage rate determiatios

27 issued i 2004 by the Regioal Appraisal Coordiator (the Coordiator ), South Islad Forest District, Miistry of Forests ad Rage. The determiatios were reappraisals that applied to sawlogs scaled betwee February 29 ad March 31, 2004, pursuat to two cuttig permits ( CPs ) held by Wester o Vacouver Islad. I August 2010, Wester appealed the determiatios o the grouds that the Coordiator erred by usig the Jorda River log dump rather tha the Otter Poit log dump as the appraisal log dump ad poit of origi, ad by usig the haul distace to Jorda River, i the reappraisals. Wester submitted that its objectio to usig Jorda River was cofirmed i a BC Court Appeal decisio released i August 2009 (Wester Forest Products Ic. v. HMTQ, 2009 BCCA 354) ( Wester ). Wester applied to the Commissio for a extesio of time to file the appeals, because the appeals were filed after the expiry of the three-week statutory appeal period. Before the Commissio accepted the appeals, it requested submissios from the parties o whether the applicatios for a six-year extesio of time should be grated. Wester submitted that the applicatios should be grated. It submitted that that the Commissio had previously grated extesios ad accepted other appeals filed by Wester pertaiig to similar determiatios issued i Wester argued that the preset appeals were iadvertetly omitted from the group of appeals it filed i 2005 ad 2006 ivolvig similar determiatios. I additio, Wester explaied that it had expected the Miistry to correct ad reissue the preset determiatios after the Court issued its decisio i Wester, ad Wester was ot otified by the Miistry util July 2010 that the determiatios would ot be reissued. Further, Wester submitted that gratig the extesios would ot prejudice the Govermet. The Govermet submitted that Wester s excuses were isufficiet to warrat extesios of time, ad that gratig extesios i these circumstaces would cause prejudice to the Govermet. The Commissio foud that Wester s delay i filig these appeals was likely due to error or iadvertece, as it had filed a umber of appeals of similar determiatios i 2005 ad The Commissio held that, although the preset appeals could still be heard together with the appeals filed i 2005 ad 2006, which had bee held i abeyace at the parties request, other factors weighed i favour of deyig the extesios of time. Specifically, the Commissio foud that the Govermet would be prejudiced due to the ucertaity created by acceptig the appeals after such a legthy delay. The Commissio also held that acceptig the appeals whe the legthy delay was caused simply by iadvertece or error would defeat the purpose of the limitatio period. u Accordigly, the applicatios for a extesio of time were deied, ad the appeals were rejected as out of time. Appeals uder the Private Maaged Forest Lad Act Durig the report period, there were o decisios issued o appeals from determiatios made uder the Private Maaged Forest Lad Act. Appeals uder the Rage Act Durig the report period, there were o decisios issued o appeals from determiatios made uder the Rage Act. 27

28 Appeals uder the Wildfire Act Questio of liability for a forest fire caused by a sag tree fallig o a power lie 2009-WFA-002(a) Telus Mobility Ic. v. Govermet of British Columbia Decisio Date: October 4, 2010 Pael: David H. Searle, CM, QC; Les Gyug; Blair Lockhart Telus Mobility Ic. ( Telus ) appealed a cotravetio order issued by the Fire Cetre Maager, Kamloops Fire Cetre, Miistry of Forests ad Rage (the Miistry ). The evets that led to the appeal arose from a forest fire that occurred i July Telus has a licece to maitai a power lie alog the Chuwhels Moutai Forest Service Road. The power lie supplies electricity to a mobile telephoe mast operated by Telus. I the early afteroo of July 3, 2006, a dead tree or sag blew dow o the power lie, causig the power to go out. A cotractor of Telus resposible for maitaiig the power lie was alerted to the power failure ad wet to the site. He foud a sag o the power lie at approximately kilometre 4.1, ad removed it. He replaced a fuse, ad power was restored. There is o suggestio that this sag caused a fire. Later that afteroo, he was agai otified of a power failure. However, as he drove to the site this time, he was stopped by Miistry officials because of the fire, which occurred at approximately kilometre 4.4 o the power lie. The fire was caused by a sag (ot the oe that was removed) fallig o the power lie. The power lie fell to the groud ad igited the fire, which grew to over 380 hectares i size. The Fire Cetre Maager determied that Telus had failed to maitai its utility lie equipmet as required uder sectio 10(a) of the Wildfire Regulatio (the Regulatio ). He also ordered Telus to pay the Govermet s costs of fire cotrol ad for damaged or destroyed Crow timber resultig from the fire. Those costs totalled over $2 millio. At the parties request, the Commissio heard oly the issue of liability. Ay issues regardig the quatum of costs would be decided later i a separate hearig, if ecessary. Telus requested that the Commissio set aside the cotravetio order o the basis that Telus did ot cotravee sectio 10(a) of the Regulatio, or alteratively, that Telus exercised due diligece. There was o dispute that the power lie s desig ad costructio was i accordace with applicable stadards. Nor was there ay dispute that the fire was caused whe a sag fell o the power lie, causig two isulators to break, so that the lie fell to the groud. Telus argued that sectio 10(a) of the Regulatio does ot impose a duty with respect to vegetatio maiteace; rather, it imposes a maiteace obligatio with respect to equipmet, apparatus ad material oly. The Commissio first cosidered whether Telus failure to remove the sag before it fell o the power lie amouted to a cotravetio of sectio 10(a) of the Regulatio. The Commissio held that sectio 10(a) of the Regulatio deals with the risk of igitio o, or adjacet to, the site. The wordig of sectio 10(a) specifically refers to the site ad ot just the equipmet. The Commissio foud that, for igitio to occur, both the equipmet ad the site combie to produce the appropriate coditios. The evidece established that trees or sags fallig o overhead power lies are a kow source of potetial lie failure ad fire, ad that fire prevetio measures i utility trasmissio operatios typically iclude a vegetatio maagemet program ivolvig regular right-of-way ispectios, brush removal, ad 28

29 idetificatio ad removal of sags that may fall oto power lies. The obligatios o a trasmissio utility operator uder sectio 10(a) of the Regulatio iclude both prevetive ad reactive maiteace. There was o evidece that Telus had a program of prevetive vegetatio maagemet for the power lie. For those reasos, the Commissio cocluded that Telus cotraveed sectio 10(a) of the Regulatio. Next, the Commissio cosidered whether Telus exercised due diligece i dischargig its obligatios uder sectio 10(a) of the Regulatio. The Miistry s evidece was that the sag that caused the fire had bee dead for a umber of years, ad was both visibly dead ad a predictable hazard. The Commissio foud that this evidece showed a lack of prevetive maiteace by Telus to maitai equipmet i a maer that reduces the likelihood of producig a igitio source. The Commissio held, therefore, that Telus had failed to establish due diligece as a defece to the cotravetio. Cosequetly, the Commissio cofirmed the Fire Cetre Maager s fidig that Telus cotraveed sectio 10(a) of the Regulatio ad that it failed to establish due diligece as a defece to the cotravetio. u The appeal was dismissed o the issue of liability. Order ad pealty for causig forest fire rescided because it was issued out of time 2009-WFA-003(a) Solaa Cosultat & Ivestmet Corp. v. Provice of British Columbia (Forest Practices Board, Third Party) Decisio Date: Jauary 13, 2010 Pael: Ala Adiso Solaa Cosultat & Ivestmet Corp. ( Solaa ) appealed a order issued by the Fire Cetre Maager, Southeast Fire Cetre, Miistry of Forests ad Rage, that Solaa had cotraveed sectio 6(3)(b) of the Wildfire Regulatio by carryig out a high risk activity whe there was a risk of a forest fire startig or spreadig, without havig a adequate fire suppressio system at the activity site. The fire occurred o August 16, 2007, ad started i a cut block where Solaa was doig mechaical site preparatio with a excavator. The coditios at the site were dry ad hot. The tracks ad/or scarificatio head of the excavator struck rocks, causig hot metal fragmets to igite fie dry fuels. The fire suppressio system o site cosisted of oe five-gallo had pump tak with water, three te-poud chemical fire extiguishers, oe five-poud chemical fire extiguisher, ad two shovels. The machie operator oticed the fire, ad attempted to report it to four differet offices of the Miistry, without success. He attempted to build a fire guard to cotrol the fire, util Miistry air takers arrived. The fire evetually bured approximately hectares of immature forest. The Miistry estimated that the et loss of Crow stumpage reveues due to the damage caused by the fire was $93,060.96, after recovery through salvage loggig. The Provice did ot seek to recover its fire suppressio costs from Solaa. The Fire Cetre Maager foud that Solaa was liable for the cotravetio ad had ot established the defece of due diligece. He ordered Solaa to pay a admiistrative pealty of $5,000. Solaa appealed the order o the grouds that it had followed idustry stadards, ad had adequate fire suppressio equipmet o site at the time of the fire. Solaa also argued that the Miistry s slow respose time to the fire cotributed to the fire spreadig rapidly. Before the appeals were heard, the parties reached a agreemet to settle the appeal. Specifically, the Provice ackowledged that the facts which led to the order agaist Solaa came to the attetio of a Miistry official o August 16, 2007, but the Fire 29

30 Cetre Maager s order was ot issued util August 19, 2009, which is i excess of the two-year limitatio period set out i sectio 33 of the Wildfire Act to issue a order for a cotravetio of the Act. Cosequetly, by coset of the parties, the Commissio rescided the order agaist Solaa. u Accordigly, the appeal was allowed. Applicatio for pre-hearig productio of documets grated i part 2009-WFA-004(a) Louisiaa-Pacific Caada Ltd. v. Govermet of British Columbia Decisio Date: February 16, 2010 Pael: Ala Adiso Louisiaa-Pacific Caada Ltd. ( Louisiaa- Pacific ) appealed a cotravetio order ad admiistrative pealty/cost recovery order issued by the Fire Cetre Maager, Southeast Fire Cetre, Miistry of Forests ad Rage. The evets pertaiig to the appeal ivolved alleged cotravetios of the Wildfire Act that occurred i As a prelimiary matter, Louisiaa-Pacific applied to the Commissio for a order that the Govermet produce four documets that Louisiaa- Pacific had previously requested from the Govermet. The Govermet had declied to produce the documets o the grouds that they were irrelevat to the appeal. The four documets were: correspodece i 2009 from the Fire Cetre Maager relatig to bur piles; policies ad procedures used by the Southeast Fire Cetre i 2007; radio logs from a fire icidet i October 2006; ad documets dated October 26, 2006, regardig a fire escape. I decidig whether to grat the applicatio, the Commissio applied the followig 30 test: whether there is a reasoable possibility that the iformatio sought would be useful to the applicat durig the applicat s preparatio ad presetatio of their case before the Commissio. The Commissio foud that oly oe of the four documets met this requiremet; amely, the policies ad procedures used by the Southeast Fire Cetre i The Commissio held that those documets may have bee used by staff at the Southeast Fire Cetre, durig the time of the evets that led to the appeal. The Commissio ordered the Govermet to disclose this documet to Louisiaa- Pacific several weeks before the appeal hearig. The Commissio deied Louisiaa-Pacific s applicatio with respect to the other three documets. u Accordigly, the applicatio was grated, i part. Appeals arisig from fire caused by campers rejected due to late filig 2010-WFA-001(a) to 2010-WFA-006(a) Joe Kraljic et al. v. Govermet of British Columbia Decisio Date: Jue 16, 2010 Pael: Ala Adiso Joe Kraljic ad five other campers (the Appellats ) appealed six review decisios issued by the District Maager, Rocky Moutai Forest District, Miistry of Forests ad Rage. The District Maager cofirmed six determiatios that the Appellats had cotraveed sectios 3(1) ad 5(1) of the Wildfire Act by failig to properly extiguish a camp fire. The District Maager also cofirmed pealties of $1,000 agaist each of the Appellats. The Appellats were o a multi-family campig trip ear Gold Bay i July 2008 whe the fire started. The District Maager foud that the campers failed to properly extiguish a fire i their group fire pit, ad that hot ash from the fire pit caused a wildfire o July 21, The Miistry dispatched attack crews ad aircraft to extiguish the fire.

31 The Appellats filed their appeals o April 27, 2010, approximately seve moths after the review decisio was issued i September 2009, ad ie moths after the iitial determiatios were issued. The statutory time limit for filig a appeal is three weeks from the date of the decisio beig appealed. The Appellats requested that the Commissio grat them a extesio of time to appeal, pursuat to sectio 131(4) of the Forest Practices Code of British Columbia Act. Before the appeals were accepted, the Commissio requested submissios from the parties o whether to grat the extesio of time. The Govermet objected to gratig the extesio of time. The Appellats submitted that the delay was a result of them beig told by Miistry staff that they would eed to hire a lawyer for a appeal, ad that all costs associated with the appeal process would be their costs. They submitted that it took them moths to avigate govermet websites ad do research which led them to realize that they could represet themselves i a appeal ad that they would ot have to bear the costs of the appeal process. The Commissio foud that the reasos provided by the Appellats for the delay were ot sufficietly compellig to grat a legthy extesio of time. The Commissio held that its power to exted the time for filig a appeal should ot be exercised lightly. The purpose of the time limit is to provide fiality to admiistrative proceedigs, ad people are expected to be diliget i pursuig a appeal. The Commissio foud that both the review decisio ad the origial determiatios cotaied clear ad accurate istructios o how to iitiate a appeal, icludig the time limit for filig a appeal. The Commissio oted that the Appellats had followed the istructios for requestig a review of the determiatios. The Commissio also oted that it has a website, ad its office ca be reached by telephoe through the Govermet s geeral telephoe directory. The Commissio foud the Appellats claims that it took them moths to fid out that they could represet themselves i a appeal ad would ot have to pay for the appeal process were implausible i the circumstaces. u Accordigly, the applicatios for a extesio of time were deied, ad the appeals were rejected as beig out of time. 31

32 F O R E S T A P P E A L S C O M M I S S I O N A N N U A L R E P O R T Appeals of Commissio Decisios to the Courts Jauary 1, 2010 ~ December 31, 2010 British Columbia Supreme Court Durig this report period, there were o judgmets released by the Court o appeals of Commissio decisios. British Columbia Court of Appeal Roald Edward Hegel ad B.C. Ltd. v. British Columbia (Miistry of Forests ad the Forest Appeals Commissio) Decisio date: Jue 10, 2010 Court: BCCA; Justices Newbury, Huddart, ad Sauders Cite: 2010 BCCA 289 Roald Edward Hegel ad B.C. Ltd. (the Appellats ) sought a review of a decisio by a Chambers Judge i the BC Court of Appeal deyig leave to appeal a decisio of the BC Supreme Court. The BC Supreme Court had dismissed a appeal from a decisio of Forest Appeals Commissio which foud that the Appellats had cotraveed the Forest Practices Code of British Columbia Act (the Code ). The decisio at stake was the Commissio s decisio i Roald Edward Hegel ad B.C. Ltd. v. Govermet of British Columbia, Decisio No FOR-009(a), issued o October 12, The Appellats had appealed a determiatio by the District Maager, Miistry of Forests ad Rage, that they cotraveed sectios 96(1) ad 97(2) of the Code by failig to ascertai the boudaries of their private property ad harvestig Crow timber without authority. The District Maager levied admiistrative pealties totalig $132, The Appellats appealed to the Commissio o the grouds that they had exercised due diligece i attemptig to locate the property boudaries, that they were operatig uder a mistake of fact regardig the boudaries, that their actios resulted from a officially iduced error, ad that the pealty was excessive. The Commissio cosidered a great deal of evidece regardig the boudaries of the Appellats private property, icludig moder ad historical survey reports, ad cofirmed the District Maager s determiatio except for makig a mior adjustmet to the pealty amout. The Appellats appealed the Commissio s decisio to the BC Supreme Court. The Appellats raised four grouds for appeal. With respect to the first groud of appeal, the trial judge cocluded that the Commissio made o error of law i reachig its coclusio about the locatio of the orther boudary of the Appellats property ad i cocludig that the alleged area of ulawful harvestig was Crow lad. As to the secod groud 32