New Due Diligence Defence Provisions in BC’s Forest Practices Legislation

May, 2004

In January, 2005 an ELC student represented the Sierra Club at the first major appeal interpreting the new defence of due diligence under the new Forest and Range Practices Act.

This issue is quite significant because until recently due diligence was not a defence to administrative penalty cases. Government recently amended the legislation to allow companies to invoke the defence. Companies are now filing appeals based on this defence, and pushing the limits of the legislation, in an attempt to obtain favourable legal rulings that will define the scope of the defence for the future.

Appearing at the Forest Appeals Commission alongside legal counsel for the Council of Forest Industries, Weyerhaeuser, Government, and the Forest Practices Board, Jeanette Ettel argued that very high standards of behaviour are required before one can use the defence of due diligence in the context of the Act. Jeanette made the policy arguments that any other approach would devolve responsibility for the protection of Crown land to subcontractors, instead of to the company which has the resources and control necessary to ensure optimal compliance with the law.

Attached see the Statement of Points submitted to the Commission.

Please note that Jeanette has now graduated, and will be serving as a Clerk to the Supreme Court of Canada in September.

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