VICTORIA – In early December, the Forest Practices Board issued an important report about the adequacy of government enforcement of forest practices laws. Made in response to an ELC submission made on behalf of Sierra Club, the Board’s report recommends that government change the way that it investigates forest practices contraventions, in cases where companies claim the “due diligence” defense.
ELC Articling Student Melinda Skeels says, “The report makes it clear that government is not doing a thorough job of enforcing forest practices legislation. In two-thirds of the cases examined by the Board, officials did not even interview the person who committed the alleged contravention. The Board has shown that if government really wants to protect the forests of this province, it will have to do a better job of investigating problems.”
In 2002 the BC government changed the law to allow companies to use the defence of “due diligence” – a defence that allows you to escape liability if you have taken all reasonable care to avoid breaching the Forest and Range Practices Act.
However, in two Forest Appeals Commission cases, ELC students discovered that government had either not interviewed the person who actually cut down the trees, or had not called them as witnesses. In other words, the best witnesses were not being interviewed or called.
This led to a concern that investigation of the specific facts of contraventions was not as thorough as it should be. Disproportionate weight appeared to be given to the fact that companies had good “standard operating procedures” and “environmental management systems.” However, this didn’t necessarily take into account what was actually occurring on the ground when the law was broken.
The ELC argued that forest companies apparently were being able to invoke the “due diligence” defense merely by giving general evidence about their standard operating procedures and environmental management systems. The disproportionate weight put on theoretical operating systems raised the question of whether enforcement measures were as rigorous as they should be.
ELC student Marisa Cruickshank’s complaint argued that government should routinely require companies claiming the “due diligence” defence to supply first-hand evidence from the person who cut the trees. Marisa argued that these field personnel are the ones with direct knowledge of the contravention, and can provide evidence about whether the procedures and systems were actually – not theoretically – implemented.
The Board Report
The Forest Practices Board did a random survey of cases, and discovered that In 10 of 15 cases, government investigators did not interview the individual or individuals who had direct knowledge of the contravention.
The Board recommended that this change — that officials should, in most cases, interview the individuals who have first‐hand knowledge of the contravention, including fallers and machine operators.
The Board also recommended that government investigators and district managers bear in mind that it is not sufficient for a company to simply show that they have a system designed to prevent commission of the breach. Before they can establish “due diligence” the company must also actually operate the system with all reasonable care.
Rob Duncan of Sierra Club expressed satisfaction with the report from British Columbia’s independent public watchdog over forest practices.
“Government administration of the law has been opening up the door to non-compliance, rather than rigorously protecting key forest values,” says Duncan. “Companies should not be able to establish due diligence without producing the explanation of the person who actually cut down the trees. This Report shows the need for Government to get serious about enforcing its laws.”
Read Forest Practices Board December 2007 Report: Government Enforcement and the Due Diligence Defence (PDF)
Link to Sierra Club, BC Chapter’s Media Release