Third Party: Forest Practices Board
APPEAL NO. 2012-FRP-003

West Fraser appealed a determination finding that it contravened FRPA by failing to achieve a visual quality objective near Bowron Lakes Provincial Park. The appeal centred on the due diligence defence and sought to revisit issues canvassed in the BC Supreme Court decision in Pope and Talbot, to which the Board was a party (discussed below, under 2007). These issues include the role of foreseeability in the due diligence analysis and the importance of foreseeability of the precise cause of the problem. This case involved reliance on computer modelling of the predicted visual impacts of logging, and what the decision-maker found to be inadequate monitoring of the actual visual impacts during harvesting. The appeal was later withdrawn by West Fraser.

Appeal withdrawn.

Third Party: Forest Practices Board
APPEAL NO. 2012-FRP-006

The appeal relates to a district manager's refusal to approve Babine's forest stewardship plan amendment that proposed a result or strategy for the visual quality objective for an area visible from Babine Lake. The district manager refused to approve the amendment because it did not meet the legal approval test. Babine claimed that the test was wrongly applied. The Board took the position that the district manager’s decision was correct because the proposed result or strategy did not conform to the legal requirement to be measurable or verifiable. During a recess at the hearing of the appeal, Babine and the government agreed to a settlement by revising the result or strategy to make it more measurable and verifiable. The Board concluded that the revisions did not go far enough but, rather than object to the settlement, the Board withdrew from the appeal.

Appeal allowed.

Consent Order: http://www.fac.gov.bc.ca/forestAndRange/2011for006a.pdf

Third Party: Forest Practices Board
APPEAL NO. 2012-WFA-002b

In 2012, the Board joined an appeal relating to a wildfire that escaped from private land to Crown land. A government official ordered the landowner to pay the government’s fire-control costs of $861,356. At issue for the Board was the scope of the manager’s authority to make such an order. The manager decided that his authority was limited to ordering the owner to pay all of the costs or none of the costs. The Board seeks to encourage fair and equitable application of legislation and in this case, the Board was concerned that the manager’s “all or nothing” interpretation could lead to unfair costs orders in some situations. The Board argued that managers have the discretion to order payment of something less than the full costs of fire control, in appropriate circumstances.

In December 2014, the FAC denied the individual’s appeal, but agreed with the Board on the interpretation point, saying: “Had this Panel decided to order less than the full amount of fire-control costs, this Panel would not have hesitated to do so, mainly as a common sense interpretation of the Wildfire Regulation based on the arguments put forward by the Board.” In January 2015, Mr. Unger appealed the FAC decision to the BC Supreme Court. In December 2015, the government and Mr. Unger reached a settlement and the appeal was abandoned.

Appeal dismissed.

FAC Decision: http://www.fac.gov.bc.ca/wildfireAct/2012wfa002b.pdf

Audit – ARC/140
August 2012

RECOMMENDATIONS

1. In the audited watersheds, the risk of harmful substances reaching the water supply intake is much higher downstream of the two storage lakes. However, because of the varying risk in watersheds throughout the province, it can be difficult for practitioners to determine the probability that the harmful material will reach the intake.
   
   Government should provide guidance on the implementation of the practice requirement to not cause material that is harmful to human health to be deposited in, or transported to, water that is diverted for human consumption by a licensed waterworks, recognizing the variable risks within and between watersheds, of the harmful material reaching the intake.
   
   
2. Streams, wetlands and other areas with riparian function require protection from cattle impacts. Government should ensure that all watercourses and areas with riparian function are protected to the extent that range use does not materially impair their function.

Response to Recommendations

Audit – ARC/141
August 2012

REQUEST

The Board requests that the licensee report back to the Board by December 31, 2012, on the progress made in reporting required information for current and past activities in accordance with regulatory requirements.

Response to Request

Audit – ARC/139
July 2012

RECOMMENDATION

BCTS-CR should assess the potential environmental risk of the activities carried out by the various TSL holders and determine whether a monitoring/remediation strategy is required to minimize impacts which have occurred or to reduce the likelihood of impacts in the future.

Response to Recommendation

Special Report – SR/42
June 2012

RECOMMENDATIONS

1. Confirm its assumptions about how much additional area will be salvage harvested by the forest industry and develop a monitoring system to track whether those assumptions are being borne out;
2. Use the best information and projections currently available to conduct a broadly framed cost-benefit analysis of options to restock or not restock areas that may be NSR in the beetle affected region; and
3. Carry out the survey and inventory work necessary to inform the future decisions that must be made; particularly those related to determination of the allowable annual cut in the beetle affected region.

Response to Recommendations

Special Investigation – SIR/36
June 2012

RECOMMENDATIONS

1. Government should develop and maintain a process for tracking OGMA values and incursions that can be updated by licensees or government staff.
2. Government should provide appropriate oversight of non-spatial orders (where non-legal OGMAs have not been identified) to ensure that required attributes are available on the land base and, if they are not, that required recruitment stands have been identified.
3. Government should create a uniform and consistent way of identifying and recording values within OGMAs and of making the information available to all Crown land tenure holders and agencies that administer those tenures.
4. Government should review the conditions of orders to ensure that, if fully exercised, provisions for harvesting or road construction do not materially alter the effectiveness of OGMAs.
5. Government should ensure all Crown land tenure holders are required to protect or mitigate the impacts of their activities in OGMAs.
6. Government should develop and implement a strategy to assess the effectiveness of spatial and non-spatial old-growth retention.

Response to Recommendations

Complaint Investigation – IRC/181
May 2012

RECOMMENDATION

The Ministry of Environment should assess the fences that were installed near the water troughs in 2009 to determine whether any modifications to make them more wildlife friendly are necessary.

Response to Recommendation

Complaint Investigation – IRC/182
May 2012

RECOMMENDATIONS

The Ministry of Environment should assess the fences that were installed near the water troughs in 2009 to determine whether any modifications to make them more wildlife friendly are necessary.

1. MCC, or the government if MCC’s licence is still suspended, should employ a qualified professional to review roads where construction did not follow the engineering designs and, if necessary, prepare a mitigation strategy for those roads.
2. Government should assess the potential environmental risk of the roads in the Healy Creek drainage and coordinate a maintenance/deactivation strategy involving all resource users.
3. Government should examine its policies to ensure it has the ability to act quickly where there is an imminent high risk to the environment or a forest resource, whether or not a negative impact has occurred.
4. Government should explore its options, including intervention under section 77 of FRPA, for ensuring outstanding silviculture obligations on FL A30171 are met and free growing is achieved within the timelines specified in MCC’s FSP.

Response to Recommendations