Third Party: Forest Practices Board
Intervenor: Council of Forest Industries
APPEAL NO. 2005-FOR-004(b)

Pope and Talbot (P&T) appealed a contravention determination on the grounds that it exercised due diligence and the unauthorized harvesting was entirely the responsibility of its contractor. The logging involved a complex harvesting prescription for the management of caribou habitat and heli-skiing, and the FAC found that the risk that harvesting might deviate from operational plans was higher than usual. The FAC found that P&T gave too much discretion to its logging supervisory staff, the contractor and the sub-contractor in deciding how to implement the leave tree requirements of the silviculture prescription. In particular, P&T gave the contractor the responsibility to decide on the limits of the guy-line clearance areas and to select leave trees beyond these limits, without the benefit of clearance area boundary layout or leave tree markings. The FAC found that P&T did not take all reasonable steps to ensure that the contravention did not occur, and therefore the defence of due diligence was not established in this case.

P&T appealed the FAC’s decision to the BC Supreme Court on the grounds that it erred in apply the due diligence defence. The Board participated as an intervenor to make submissions on the proper test for due diligence. The court agreed with the Board’s submissions, and for this and additional reasons dismissed the appeal.

FAC Decision: http://www.fac.gov.bc.ca/forestPracCode/2005for004b.pdf

BC Supreme Court Decision: http://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc1715/2009bcsc1715.html