Wildfire Prevention in BC: Obligations, Restrictions, and Due DiligenceJune 3, 2014
With weather forecasters already predicting a warmer and drier summer in British Columbia than normal (see CBC News “Warm, dry summer forecast for B.C., western Alberta“), everyone who ventures out beyond the city limits should be aware of their legal obligations under the British Columbia Wildfire Act and Regulations, particularly anyone undertaking an industrial activity outside the area of a local government’s fire reporting and organized fire response service. Conviction of an offence under the Wildfire Act can lead to large fines and possible jail time, including for directors and officers of corporations that contravene the Act or Regulations. Being able to prove you and your company exercised due diligence to avoid committing an offence can act as a complete defence to charges under this Act, and other strict liability offences under Canadian regulatory law.
Under the British Columbia Wildfire Act and Regulations, various activities including road construction or maintenance, timber harvesting, and operating equipment or machinery are defined as “industrial activities” that can only be carried out at a time and in a manner that can reasonably be expected to prevent fires from starting as a result of the industrial activity. Persons and companies carrying out industrial activities are also required to take immediate actions if a fire starts at, or within 1 kilometer of their work site, including immediately attempting to control the fire until the fire is extinguished, it becomes impracticable to continue, or an official relieves the person in writing from continuing to control the fire. Importantly, an oral direction from an official is not enough to relieve the person of the obligation to continue fighting the fire. Note that “high risk” industrial activities defined by the Regulations require even greater precautions, including posting a fire watcher to actively patrol for sparks and extinguish fires.
The BC Wildfire Management Branch has issued fire prohibitions and area restrictions on open fires in the Kamloops, Merritt, Penticton, Vernon and Lillooet fire zones, the Cariboo Fire Centre, and effective today June 3, 2014 at noon, the Coastal Fire Centre with the exception of the Haida Gwaii “Fog Zone” (see BC News Release). For more detail and updates on the restrictions currently in place, visit the BC Wildfire Management Branch “Fire Prohibitions and Area Restrictions” web page. The BC Wildfire Management Branch also provides online maps of the affected areas.
Contraventions of the open fire restriction, and other provisions of the Act may lead to significant fines and jail time. For example, simply lighting an open fire in contravention of a fire prohibition and area restriction under section 10 of the Act could lead to a maximum fine of $100,000 and up to one year imprisonment. Any person other than a person carrying out an industrial activity who lights, fuels or uses a fire in forest land or grass land or within 1 km of forest land or grass land, other than in circumstances prescribed by the Regulations, can be liable to a fine not exceeding $500,000, and up to 2 years imprisonment upon conviction. Persons carrying on industrial activities who fail to satisfy specific obligations in the Act can also be liable to a fine of up to $500,000, and up to 2 years imprisonment upon conviction. A person who is convicted of intentionally or recklessly causing damage to Crown forest land or Crown grass land can potentially be liable to a fine not exceeding $1,000,000, and up to 3 years imprisonment. The Wildfire Act also allows cost recovery actions to pay for firefighting costs, and the value of damaged or destroyed property including Crown timber and other resources.
Due diligence, mistake of fact and officially induced error, are complete defences to prosecution under the Wildfire Act. People and companies must take all reasonable steps to ensure they are in compliance with the Act and Regulations. Being unaware of one’s legal responsibilities is not a defence.
Importantly, if one of your employees, contractors, or agents contravenes the Act or regulations, you (or your company, as the case may be) are deemed to have committed the contravention. Once the Crown can prove the contravention by your employee, contractor, or agent occurred, a defence of due diligence can still be raised. To prove that you exercised due diligence, you will need evidence that you had an established system to prevent commission of the offence, and had taken reasonable steps to ensure the effective operation of the system before the contravention occurred.
For advice on your legal obligations, and on establishing a regulatory compliance system for the Wildfire Act or other legislation, contact me.
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DISCLAIMER: NOT LEGAL ADVICE. This article is for information purposes only and is not intended to be relied on as legal advice. You should not rely on, or take or fail to take any action, based upon this information, or disregard professional legal advice or delay in seeking legal advice because of something you have read on this site or in this article. The author, Shane R. Hopkins-Utter would be pleased to discuss resolutions to specific legal concerns you may have.