Canadian Lawyer

May 2008

The most widely read magazine for Canadian lawyers

Issue link: https://digital.canadianlawyermag.com/i/50803

Contents of this Issue

Navigation

Page 5 of 63

regional wrap-up if those contractors run afoul of the law, says a forestry law specialist. "You can't contract out due diligence," Daniel R. Ben- nett of Bull Housser & Tupper LLP told forest con- sultants, licensees, and lawyers representing forest companies at a recent Con- tinuing Legal Education Society of B.C. seminar. "That's one of the biggest issues," he said. Today, most licensees working on B.C. Crown lands contract out log- ging phases from stump to dump. Bennett said the licensee "has to make sure that due diligence was done no matter what. You have to retain self-power." He cited the case of a heavy- L equipment contractor arriv- ing to work near a stream who found a flag from a restricted fish-bearing portion of the 6 M AY 2008 www. C ANADIAN mag.com awyers representing holders of licences to work on B.C. public forest lands should ensure their clients have con- ducted proper due diligence on contractors, especially stream had fallen into the water. The contractor made an effort to determine where it had fallen from but his assump- tion was wrong. He crossed over a fish-bearing creek sec- tion. The licensee was cited, as it held responsibility for flag placement plus ensuring a system was in place to address a downed flag. Bennett said if such incidents of non-compliance with the Forest and Range Practices Act (FRPA) do occur, "It is going to come down to the systems in place to check on the contrac- tor." Bennett said without systems sustaining due diligence ef- forts, law firms have little to work with in refuting an non- compliance notice and penalty. "If you don't document it, it's hard to prove after the fact." Administrative penalties under the FRPA are strict liability offences, where intent does not have be proven — only that damage occurred and the accused was the party responsible. But, under the act, due diligence is a defence. Bennett said such systems, implemented by a forest com- pany, need to be practical and readily able to be implemented in the field. "You can have the best system, but if it is not going to happen in the field, don't put it in. That is the worst thing you can do; you are just hanging yourself," he said. Systems also need to be reliable, monitorable, and updated.

Articles in this issue

Archives of this issue

view archives of Canadian Lawyer - May 2008