Tolko’s $75,000 landslide penalties maintained on revised legal grounds

British Columbia’s Forest Appeals Commission has maintained $75,000 in administrative penalties against Tolko for a road-related landslide, while changing the legal basis for the larger penalty to avoid overlapping punishment.

In Tolko Industries Inc. v. Government of British Columbia, 2026 BCFAC 5, decided July 15, 2026, panel chair Cynthia Lu confirmed that the prohibition against unauthorized damage to Crown timber can apply to trees damaged by a landslide, not only direct harvesting. She also distinguished damage to timber from likely harm to fish or fish habitat when deciding which penalties could fairly coexist.

The commission rescinded a $50,000 penalty under section 46(1) of the Forest and Range Practices Act and imposed the same amount under section 57 of the Forest Planning and Practices Regulation. A separate $25,000 penalty under section 52(1) of the Act remained. Stumpage is payable in addition, but its calculation was not before the commission and the decision did not fix that amount.

Road drainage and the landslide

Tolko constructed the forest road in 2011. A landslide occurred below it in May 2017 during significant regional weather, disturbing an estimated 2.43 hectares and depositing roughly 11,500 cubic metres of material into a lake that provides fish habitat. Tolko discovered the slide within days, obtained a professional assessment and promptly installed additional culverts.

Ministry staff observed the slide in November 2018. Site inspections and an investigation followed, leading to a June 2022 determination that Tolko had breached two provisions of the Act and three of the regulation. The decision-maker imposed $50,000 for environmental damage and $25,000 for unauthorized damage to Crown timber.

Tolko did not appeal the finding that inadequate drainage management in the road’s design and construction was the leading cause of the slide. Instead, it challenged the application of the timber-damage provision, argued that multiple findings and penalties unfairly duplicated one another, and sought a lower penalty.

Timber protection extends beyond direct harvesting

Section 52(1) prohibits cutting, damaging or destroying Crown timber without authorization. Tolko argued that the provision’s heading—unauthorized timber harvesting—and its place in the Act confined it to harvesting operations and activities that immediately and directly damaged timber. Treating it as a general rule against consequential damage, the company submitted, would make more specific forestry protections redundant.

Lu rejected that reading. Under the Interpretation Act, the heading was an editorial aid rather than part of the enactment. The operative text did not qualify damage or destruction with words such as direct or immediate. The provision protected timber as a distinct resource, while other requirements addressed drainage, landslides and other environmental values.

Causation remained important. Tolko had built the road with insufficient culverts and had not maintained natural drainage, and the parties did not dispute that those factors caused the slide. Although weather contributed, Lu found no intervening event breaking the chain between Tolko’s conduct, the landslide and the damage to Crown timber. Section 52(1) therefore applied on these facts.

Multiple findings, but no overlapping penalties

Tolko relied on the Kienapple principle against multiple criminal convictions arising from the same matter. Earlier commission decisions had taken different approaches to its application in administrative proceedings. Lu focused on the underlying fairness question without resolving the principle’s general application to the commission.

She held that fairness did not require reducing the number of contravention findings. Instead, overlap could be addressed when assessing penalties. All five findings remained, but the original pairing of penalties required correction.

The general drainage and landslide contraventions were, in this case, encompassed within the more particular damage to Crown timber. Lu found it unfair to impose both the section 46(1) environmental-damage penalty and the section 52(1) timber-damage penalty for those overlapping consequences.

There was also a problem with the original treatment of fish habitat under section 46(1). The relevant regulatory definition required a debris torrent entering a fish stream; the evidence established deposition into a lake, not that condition. That did not remove the separate fish-protection obligation under section 57 of the regulation, which requires primary forest activities to be conducted at a time and in a manner unlikely to harm fish or damage, destroy or harmfully alter their habitat.

The likelihood of harm from material deposited in the lake was not challenged. Lu found that the timber and fish-related contraventions addressed distinct harms, even though they arose from the same wrongful act. Penalties under section 52(1) and regulation section 57 were therefore not unfairly duplicative.

Why the total did not fall

Reassessing the amounts required attention to statutory factors, including similar previous contraventions, gravity and magnitude, whether the conduct was repeated or deliberate, economic benefit, cooperation and corrective efforts. Lu considered the substantially similar factors in the legislation governing the original determination and the current Act.

Tolko had two previous contraventions involving road drainage or terrain instability. It argued that the timing of an earlier consent order limited its relevance to the road’s construction. Lu answered that the legal drainage requirements were already known and that the duty to maintain natural drainage continued after construction. The previous similar contraventions remained relevant.

The company pointed to professional planning and inspection work and the severe weather as reasons to reduce the assessment of gravity. Lu found that the terrain report did not appear to assess this road’s stability or drainage structures. The post-construction inspection did not specifically address whether seasonal deactivation was needed, and subsequent inspections required by Tolko’s own system had not been conducted. She confirmed that the gravity was significant or high.

The magnitude was also significant or high. The damage included the disturbed area, debris movement and approximately 990 cubic metres of damaged timber. Fish or habitat harm was likely, but the reasons expressly acknowledge limited evidence about its extent and nature because baseline lake conditions were not understood. The decision does not quantify actual fish losses.

There were countervailing facts. Lu accepted that the contraventions were not repeated, continuous or deliberate, and found no convincing evidence of an economic benefit. Tolko cooperated during the investigation and undertook prompt remedial work. But the damage had already occurred, and the evidence did not establish rehabilitation or replanting plans. Tolko also had not notified the ministry of the slide despite its own policy. Lu found no meaningful mitigation of the penalty amounts.

The commission rejected comparisons framed simply as dollars per hectare or volume of debris as a substitute for the statutory factors. It considered compensation for non-timber resource damage and the need for specific and general deterrence. Stumpage would address timber-resource compensation, but would not capture all environmental and future site-productivity losses.

The resulting decision preserves the $75,000 administrative-penalty total while separating the legal interests protected by each component. It is not a reduction of the findings against Tolko or a calculation of its complete financial liability: a designated official must determine the additional stumpage amount.