Wildfires are a yearly occurrence in BC, and living in the Okanagan, we are unfortunately accustomed to the realities of smoky summers and evacuations.
While 58% of wildfires are started by lighting, human activity causes 42% of wildfires in BC each year.[1] Most human-caused wildfires are accidental, but regardless of your intent, you can still face significant financial penalties under the Wildfire Act, S.B.C. 2004, c. 31 and the Wildfire Regulation, B.C. Reg. 83/2022.
If you start a wildfire, or your employee or contractor starts a wildfire, you might be saddled with the government’s fire suppression costs, the costs of damage to Crown resources (i.e., timber), and administrative fines.
Administrative fines for contraveners of the Wildfire Act can range from $10,000 to $100,000 for each contravention of the Wildfire Act. Under the Wildfire Act, the province can recover the fire suppression costs associated with fighting the fire. While the administrative fines alone seem large, the costs of fire suppression and damage to Crown resources can land in the millions.
Fire suppression costs vary greatly depending on the size of the fire, how long it takes to suppress the fire and how many public and private resources are used to suppress the fire. The total average cost of BC fire suppression in 2022 was $411.9 million.[2] As an example, the fire suppression costs of the 2003 Okanagan Mountain Park fire, a notable fire in Central Okanagan history, cost approximately $33.8 million.[3] On average, the fire suppression costs sought against contraveners of the Wildfire Act are $384,626. Costs sought for damage to Crown land can be significant, averaging $1,841,331 for forest land resources and $453,693 for Crown timber.[4]
What sort of conduct can attract Wildfire Act penalties?
What sort of conduct can attract Wildfire Act penalties? Open fires that become out of control are often a source of Wildfire Act penalties. Another typical contravention is the mishandling of burning substances (i.e., dropping a lit cigarette in a dry field) that a person reasonably ought to know is likely to cause a fire. Industrial activities that do not comply with fire season restrictions or accidentally cause fires can also lead to contraventions of the Wildfire Act. Other contraventions relate to fire hazard assessment and abatement, and a general duty to report wildfires that appear unattended.
It is important that employers, directors, and officers are knowledgeable on Wildfire Act proceedings and wildfire safety. Pursuant to s. 30 of the Wildfire Act, if a person’s contractor, employee, or agent contravenes the Wildfire Act, then that person is also legally responsible for the contravention. The same goes for directors or officers who authorized or acquiesced in the contravention.
What happens if the province suspects you started a wildfire?
They will first investigate the cause and origin of the fire. If they suspect you are at fault, they will proceed with an investigation.
A Natural Resource Officer from the Ministry of Forest’s Compliance and Enforcement Branch (“CEB”) will likely interview you, and others present or involved in the commencement of the wildfire. For example, if the fire occurs in an industrial setting, they may interview employers, contractors, and others on the job site. If a Natural Resource Officer wishes to interview you, consider seeking legal advice prior to the interview.
Once the Natural Resource Officer has completed their investigation, they will provide you with an investigative report and the materials they will be relying on. At this point, you are not “guilty” of the contravention, but the province will rely on their investigative report and materials to prove you are guilty of the contravention before an adjudicator assigned by the Ministry of Forests. If the investigation gets to this stage – you may want to seek legal advice as soon as you can.
You will receive a copy of CEB’s investigative report and materials. At this stage, under the Wildfire Act, you are provided with an opportunity to be heard. This administrative process is your opportunity to tell your side of the story, point out any gaps in the evidence, and explain why you should not be found in contravention of the Wildfire Act or why you shouldn’t bear the fire suppression costs and the costs of damage to Crown land. An opportunity to be heard can be completed by way of written submissions or an oral hearing.
- If you choose written submissions, once submitted to the adjudicator, the CEB will have one week to respond to your submissions. After you receive the province’s submissions, you will be provided with a chance to respond to the CEB’s rebuttal.
- If you choose an oral hearing, you will have a chance to make your submissions orally before the adjudicator and the CEB representative. Despite the serious financial consequences that can result from the hearing, these proceedings are more informal than a court proceeding.
After submissions are made, the adjudicator will make a decision regarding the contravention, the fire suppression costs, the costs of damages to Crown lands, and any administrative fines.
Under the Wildfire Act the adjudicator has the discretion to lower or increase the administrative fines of the contravener. In deciding an administrative penalty, the adjudicator will consider any previous contraventions of a similar nature by the contravener, the gravity and magnitude of the contravention, whether the contravention was repeated or continuous, whether it was deliberate, any economic benefit derived by the contravener from the contravention, and the contravener’s cooperativeness and efforts to correct the contravention.
The adjudicator does not have this same discretion to lower the fire suppression costs or damages to Crown lands. If the fire suppression costs are calculated in accordance with s. 31 of the Wildfire Act the adjudicator cannot increase or decrease the amount sought.[5] Therefore, it is in the fire suppression costs and damages to Crown lands where the significant financial consequences lie.
What can I do if I’m found in contravention of the Wildfire Act?
If the adjudicator finds you in contravention of the Wildfire Act and orders administrative fines and costs for fire suppression costs and damages to Crown lands, this finding does not necessarily mean it is the end of the road. If new evidence comes to light after the order is granted, either party can request a review of the order by the adjudicator or another ministry employee. This request must be made within three weeks of the order.
With the consent of the contravener, the Forest Practices Board can also request a review of the order by the adjudicator or another ministry employee. Again, this review must be requested within three weeks of the order.
You can also appeal the order to the Forest Appeals Commission. The Forest Appeals Commission hears appeals from a variety of acts, namely the Wildfire Act, the Forest Act, the Range Act, and the Private Managed Forest Land Act. The Forest Appeals Commission will consider the findings of the adjudicator and either confirm, vary, or rescind the order, or send it back to the adjudicator for reconsideration. Appeals to the Forest Appeals Commission must be made within 60 days of an order or any review of an order.
Once the Forest Appeals Commission has made their decision, the decision can be appealed to BC Supreme Court on questions of law or jurisdiction. This appeal must be made within three weeks of the Forest Appeals Commission’s decision.
Be proactive about fire safety
Establishing safe work procedures that prevent wildfires is extremely important when working in dry fire-prone conditions. In a non-industrial setting, it is important to be cognizant of the current fire restrictions and fully extinguish any open fire or burning substances before leaving it unattended. Sometimes accidents happen, but when it comes wildfires, a small accident can turn into an expensive mistake.
If you have any questions about proceedings under the Wildfire Act, please contact Miranda Wardman at [email protected] or by phone at 250-869-1278.
[1] Government of British Columbia, “Wildfire Avergages” (2022), online: <https://www2.gov.bc.ca/gov/content/safety/wildfire-status/about-bcws/wildfire-statistics/wildfire-averages>.
[2] Ibid.
[3] “2003 Okanagan Mountain Park fire” (June 2023) online: https://en.wikipedia.org/wiki/2003_Okanagan_Mountain_Park_fire#cite_note-2003cost-1
[4] Forest Practices Board, “Special Investigation: Wildfire Act Determinations” (December 2022) at 14, online (pdf): Forest Practices Board <https://www.bcfpb.ca/wp-content/uploads/2023/01/SIR54-Wildfire-Act-Determinations.pdf>.
[5] Altagas Ltd. v. Government of British Columbia, 2019 WFA 008(b).
