Her Majesty the Queen - v. -, 2013 SKPC 177

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 177 Date: October 22, 2013 Information: 24165277, 24165276 Location: Hudson Bay _____________________________________________________________________________ Between: Her Majesty the Queen - and - Western Warner Oils Ltd. #511648 Appearing: P. Hryhorchuk For the Crown D. Benson For the Defendant JUDGMENT B.G. MORGAN , J Introduction [ 1 ] In Saskatchewan, oil, mineral and/or gas exploration is allowed on Crown land, subject to a party applying for the appropriate licencing, and complying with such conditions as may be set out by Government officials.

In this case, the Defendant, Western Warner Oils Ltd. (hereinafter “Western”) is charged on two separate Informations with the following charges: Information #24165277

Between the 20 th of February, 2012 and the 31 st of October, 2012, fail to comply with an Order made pursuant to s. 61 of The Forest Resources Management Act , contrary to s. 79(1) (

e) of The Forest Resources Management Act , 1996 c. F-19.1; Information #24165276 Between July 18, A.D. 2009 and April 25, A.D. 2012, fail to comply with the terms of a licence, to wit: fail to complete reclamation of three well sites as specified in Forest Product Permit 09197G and its conditions for approval, the subsequent letters and orders, contrary to s. 79(1) (

d) of The Forest Resources Management Act , 1996 c. F-19.1. [ 2 ] The trial proceeded on Information #24165277 and by consent all the evidence was applied to Information #24165276. An earlier Information #24165275 was withdrawn. [ 3 ] The alleged offences are known as strict liability offences. Thus, it is incumbent upon the Crown to prove the essential elements of the offence beyond a reasonable doubt. Assuming that to be done, it is then open for the Defendant to establish that he took all reasonable steps to avoid doing the prohibited act, known as the defence of due diligence. [ 4 ] The facts are not really in dispute, and much of the case is set out in written exhibits; it is the

interpretation of those facts that is in issue. I will therefore start with the facts as I find them set out in the case for the Crown, and the facts as I find them set out in the case for the defence. I will then deal with the application of those facts to the law. Case for the Crown [ 5 ] Mr. Pat Springinotic is an Environmental Project Officer with the Environmental Protection Branch of Saskatchewan Environment, and is also an appointed Forestry Officer under The Forest Resources Management Act (hereinafter the “ Act ”).

He explained that the process for a party that wished to drill a well site on Crown land, as was the case here, would be for that party to submit a written application to Mr. Springinotic’s branch, with an outline of how a party intends to proceed in such a way that the Crown land, air and water, is protected. Mr. Springinotic would then review that application, and issue appropriate permits that would allow the work to proceed subject to that approval.

Depending on the work involved, there may be separate permits, but this is the essential process that is put in place. [ 6 ] In this particular case, Western (which is a duly registered extra-provincial corporation, Exhibits P-1 and P-2) submitted such an application through their agent (Exhibit P-3) for the following three specific well or proposed well sites in provincial Crown land in the Porcupine Provincial Forest near Hudson Bay, Saskatchewan: LSD 05 of

Section 34 - Township 39 - Range 5 - West of 2d Meridian; LSD 8 of

Section 27 - Township 39 - Range 5 - West of 2d Meridian; LSD 14 of

Section 14 - Township 39 - Range 5 - West of 2d Meridian. [ 7 ] Rather than continually repeat those sites’ land descriptions, I will refer to them as LSDs 05, 8, and 14 respectively. [ 8 ] After reviewing that application, Mr. Springinotic caused to be issued, on October 2, 2003, permits allowing for the proposed drilling as set out in Exhibit P-3 (see Exhibit P-4). Of the conditions attached to that permit, #18 states:

If topsoil is to be stripped off the right of way on any portion that requires levelling or where trenching will occur, topsoil should be stored separately from slash and spoil piles for later site reclamation. [ 9 ] It is clear from the documentation, and the evidence of Mr. Springinotic, that the intent of the plan was to have topsoil removed to a side, and once the work was completed, basically put back in an undisturbed condition. The intent of this was to allow for exploration but, upon completion of that, the land would be reclaimed to as near as original condition as could reasonably be managed. [ 10 ] Mr.

Springinotic also caused to be issued a Temporary Work Camp Permit (Exhibit P-5) to allow a camp to be located at those sites to facilitate the drilling process. Guidelines were appended to that work permit setting out conditions designed to preserve the land in as undisturbed a state as reasonably possible. [ 11 ] Being concerned about the way in which the work was being undertaken at LSD 05, on December 3, 2003, Mr. Springinotic issued a Notice of Violation and Stop Work Order to the attention of Mr. Benson (Exhibit P-7). The concern that led to this action was set out in a letter of December 8 (Exhibit P-8).

In greatly condensed form, Mr. Springinotic wanted more information from Western.

A concern was explicitly raised that the surface material had been pushed up into a pile and not separated out into wooded materials and dirt, as was required, which would have made reclamation difficult. [ 12 ] On January 12, 2004 (mistakenly dated January 12, 2003) an As-Built Report respecting LSD 05 (Exhibit P-11) was submitted on behalf of Western, indicating that “once the well has been completed and is producing, all disturbed areas on-lease will be reclaimed to the Saskatchewan Environments (sic) satisfaction”. [ 13 ] Due to a reorganization, Mr.

Springinotic’s job duties changed, and he passed the file onto a Mr. Rick Wright of his Ministry in the autumn of 2004. [ 14 ] Patrick Rosen was employed with the Ministry of the Environment as an Ecological Protection Specialist in their Lands Branch. Like Mr. Springinotic, he is also a Forestry Officer. He received and reviewed a project proposal for some exploratory drilling projects of Warner Oils Ltd. by a report dated February of 2008 (Exhibit P-12). These proposed new sites were: LS 2,

Section 16, Township 40, Range 5, W 2 Mer; LS 13,

Section 9, Township 40, Range 5, W 2 Mer. [ 15 ] As with the other sites, I will refer to these as LS 2 and LS 13 respectively. [ 16 ] A third land location was LS 14,

Section 14, Township 39, Range 5, W 2 Mer, being the same location as previously referred to as LSD 14. This was referred to as a “re-entry”. [ 17 ] The plan was to do an “exploratory drilling program to obtain sufficient geological information to assist in determining the viability of future drilling and potential development opportunities” (Exhibit P-12). Mr. Rosen examined that proposal and caused to be issued service permits. [ 18 ] Exhibit P-13 contains the letter from Mr. Rosen with various documents.

Included in Exhibit P-13 is the Aquatic Habitat Protection Permit with appended conditions, a Forest Product Permit, as well as a Notice of Violation to Offender Report dated May 2, 2008, alleging that Western harvested forest products without having the necessary permit at the time.

[ 19 ] These permits had an expiry date of March 31, 2009, and contained specific conditions relating to reclamation, requiring “if weather permitting all reclamation work is to be completed within 30 days of the completion of the project” (para. 18). Paragraph 15 detailed what reclamation work was to be done “once drilling was complete”. [ 20 ] As Mr. Rosen explained, he completed a Field Inspection Report on October 22, 2008, with respect to LS 2, and specifically noted that all reclamation and site clean-up must be completed by March 31, 2009.

That report goes on to state “if you still wish to maintain these well-heads and sites, you will have to apply for a lease” (Exhibit P-14). [ 21 ] Mr. Rosen sent an e-mail to Mr. Benson on March 2, 2009 (Exhibit P-15), noting that Mr. Benson had stated that he had a licence for the sites. Mr. Rosen explained that the “licence you have only covers the subsurface (from Energy and Resources) but you do not have surface rights to these areas. What are your immediate plans for these sites (sic)”. On March 2, 2009, Mr.

Benson replied that his company was awaiting results of seismic testing, and they may be doing further drilling (Exhibit P-15). [ 22 ] Mr. Rosen’s position was reiterated in a letter to Mr. Benson of March 25, 2009 (Exhibit P-16). That letter confirmed that Western had a licence for the subsurface rights, but not for surface access. Mr. Rosen again indicates that the three sites referred to (LS 13, LS 14, LS 02) “will need to be reclaimed as per condition #15. . .”. Mr. Rosen further extended the Forest Product Permit until June 30, 2009, which would give Western sufficient time, in Mr.

Rosen’s view, to complete that reclamation. Mr. Rosen went on to say that the Ministry of the Environment would not be issuing any future exploration permits until those issues have been addressed to the satisfaction of the Ministry. [ 23 ] On March 30, 2009, Mr. Rosen issued the amendments to the existing permits, with an expiry date of June 30, 2009 (Exhibit P-17).

Specifically, the conditions appended to that extension required, among other things, that topsoil is to be re-spread and that, weather permitting, the reclamation work was to be completed within 30 days of completion of the project (paras. 22 and 26). [ 24 ] Those concerns expressed by Mr. Rosen were addressed in an e-mail of May 20, 2009 from Mr. Matthew Barnard of Western (Exhibit P-18). In that e-mail, Mr. Barnard indicated that the well sites will be transformed from drilling/exploration pads to production pads. This entails, according to Mr.

Rosen, having a lease put in place to develop a cleared area that is in the shape of a tear drop, with access to the road, and the rest of the pad, or site, to be reclaimed. In essence, the change in status of a site does not affect the reclamation requirements. [ 25 ] Time again becoming a factor, the permits that had been extended to June 30, 2009 were extended once again to July 18, 2009 (Exhibit P-19). [ 26 ] On July 6, 2009, Mr. Rosen contacted Mr. Barnard indicating he was going to pay a visit to the site on July 9 to see how the reclamation work was progressing.

He offered to delay that trip for a few days if the weather was adverse. Mr. Barnard replied on July 8 that the weather was a problem and they were proposing holding off. The reply then went on to state that Western was considering leaving the drill pads as they were, as “there could be some viability in twinning existing well boards to perhaps harvest another natural resource”. The e-mail concluded by asking that Mr. Barnard be provided with “the policies of your office regarding the existing Western Warner well-sites” (Exhibit P-20). In reply to that, Mr.

Rosen sent an e-mail of July 15 (Exhibit P-21), stating the process would be to have a proposal sent on behalf of Western to re-drill on the sites. If that were done, it would not be necessary to reclaim those sites “at this time, pending approval of the company’s future proposal”. The e-mail asked proposed time lines and went on to state that “I agree that the drilling must be completed and sites reclaimed before freeze up, preferably by the first or second week of October, 2009”. [ 27 ] Mr. Rosen then changed jobs and went to the Lands Branch, and as far as he knew, the files were taken over by Mr.

Ryan Mulligan and another individual. Mr. Rosen himself received no reply to that July 15 e-mail and had no further knowledge of what transpired. As far as he knew, no reclamation work was done, and he himself did not receive any further proposals. [ 28 ] Ryan Mulligan is a Senior Archaeological Protection Specialist with the Ministry of the Environment, Lands Branch, and is also designated as a Forestry Officer under The Forestry Resources Management Act. He became involved with this matter in the summer of 2011, after taking over from Mr. Rosen.

On August 31, 2011, he and a Conservation Officer, Ron Waugh, conducted Field Inspection Reports on the following four well sites:

LSD 05 LSD 14 LS 2 LS 13 (Exhibits P-22, P-23) Those reports detailed what work was required to be completed by December 31, 2011. Specifically, the site was to be “reclaimed to production pad size (tear drop)” and the soil was to be re-spread. [ 29 ] In response to that Mr. Don Bain from Western responded to Mr. Mulligan by e-mail dated October 28, 2011, stating that, given the time lines, “we are not going to be able to attend to this matter and undertake any of the work required until next spring” (Exhibit P-24). [ 30 ] In response to that, Mr.

Mulligan forwarded a letter dated November 2, 2001 [the year is in error; Mr. Mulligan testified that date should be 2011], which required Western to submit a reclamation plan by no later than November 30, 2011, with the work outlined in that plan to be commenced prior to December 30, 2011, and all work to be completed no later than January 30, 2012. The letter went on to state that failure to “submit this plan and/or commence and complete the reclamation work by the dates outlined . . .” could result in enforcement action.

This letter was sent by registered mail with confirmed delivery date of November 7, 2011 (Exhibit P-25). [ 31 ] Having received no response to that, on January 31, 2012, Mr. Mulligan caused to be issued a Stop Work Order for all four sites. That Stop Work Order with registered letter was delivered February 3, 2012 (Exhibit P-26). [ 32 ] Mr. Mulligan explained that in order to extend the Stop Work Order, a Minister’s Order had to be issued extending the time, the Stop Work Order being for a period of seven days. Mr.

Mulligan caused to be issued a Minister’s Order extending that Stop Work Order requiring Western to stop any activities with respect to the sites in question. That letter clarified precisely what it is the Ministry of Environment was requiring and again asked for a proposal which had to be submitted to Mr. Mulligan by February 20, 2012. The letter goes on to state that failure to comply with that order “may result in charges under s. 79(1)(

e) of The Forestry Resources Management Act ”. Mr. Mulligan went on to explain that that letter was sent by registered mail but was never claimed by Western (Exhibit P-27). [ 33 ] Although that material was sent by e-mail and fax, as well as by registered mail, in light of the fact that it had not been picked up, Mr. Mulligan caused to be sent a copy of that material by letter dated February 29, 2012, to Mr. Mark Brady, an individual who appeared to have Power of Attorney on behalf of Western. That letter was picked up by Mr. Brady, or a representative of his company, on March 9, 2012 (Exhibit P-28). Mr.

Mulligan testified that he received no reply to that letter. [ 34 ] Mr. Mulligan had a conversation with Mr. Benson on May 10, 2012, and sent a follow-up letter of May 16, 2012 to him, by registered mail, which was delivered May 22, 2012. That letter asked for a reclamation plan to be sent to Mr. Mulligan by May 18, 2012, with all reclamation work to be completed to the satisfaction of the Ministry of the Environment by June 22, 2012 (Exhibit P-29). [ 35 ] Mr.

Mulligan testified that he did not receive any response to that, nor had he, as of the date he testified on February 26, 2013, received anything by way of a proposal or a response to any of his requests. [ 36 ] With respect to LSD 5, in order to access that site, Western had used a road that had originally been built by Weyerhaeuser as an existing road. When Weyerhaeuser was finished with it, they had reclaimed the portion of the road that was not being used by Western. Thus, Western became liable for reclamation of that road, and that portion of the road was included in the Minister’s reclamation order.

The other sites did not require such a lengthy access road as they were closer to existing roads.

[ 37 ] Mr. Mulligan went on to explain the different jurisdictions that are in play. His Ministry of the Environment is dealing with the surface. Subsurface mineral rights are dealt with by another department or departments. The point Mr. Mulligan makes is that, in order to get to subsurface things, such as oil or gas, one has to access them from the surface and it is the Ministry of the Environment which issues permits for oil and gas exploration vis à vis the surface. [ 38 ] Mr.

Mulligan went on to state that the jurisdiction of his department to issue permits for the surface are only for a period of eighteen months maximum duration. [ 39 ] Mr. Ron Waugh is a Conservation Officer with the Ministry of the Environment office in Preeceville, Saskatchewan, and took a number of photographs of various sites in issue in this case. Exhibit P-30 are photos he took on April 25, 2012 and Exhibit P-31 are photos he took on June 25, 2012. Other than an increase in foliage on the June photos, the photos are essentially identical, showing open spaces where no reclamation work appears to have been done.

They correspond to the sites as follows: LSD 5 - P-30, photo 8, P-30, photo E, P-31, photo D LSD 14 - P-30, photo 3, P-31, photo A LSD 2 - P-30, photo A, P-31, photo B LSD 13 - P-30, photo B, P-31, photo C [ 40 ] The final Crown witness was Mr. Michael McLauchlin, a Forest Ecologist with the Ministry of Environment. Mr. McLauchlin’s curriculum vitae was tendered as Exhibit P-32 and he was qualified to give expert opinion evidence in the area of plant biology and reclamation of disturbed sites. [ 41 ] Exhibit P-33 was a Site Assessment

Summary conducted August 23 and 24, 2012, with the report revised January 2, 2013. [ 42 ] Although Mr. McLauchlin used GPS positioning to locate the sites, comparing his overview map of the four locations with Exhibit P-22 makes it clear that the sites are as follows: C1 - LSD 2 C2 - LSD 13 C3 - LSD 14 C4 - LSD 5 [ 43 ] The consistent conclusion in the evidence is that the sampling consisted of establishing four vegetation plots within each well pad site, two metres by two metres.

These were spaced evenly throughout each well site to get a fair representation of each site. [ 44 ] In addition to those sample plots in each site, Mr. McLauchlin took a control plot of the same size outside of the site, to see what the natural forest condition was in each area, and measured the vegetation species layer and cover for each of those controls. [ 45 ] In each of the four plots for each of the four sites, Mr. McLauchlin then laid out the common and scientific name for what

cover he found, as well as particulars as to depth. [ 46 ] Mr. McLauchlin found that each of the sites exhibited quite a few plant species that would be non-native to the province and the area. There were also other species that could be found under provincial designation as pest weed species. [ 47 ] Mr.

McLauchlin testified that he saw no evidence of any reclamation work having been done in any of the four sites. [ 48 ] He found that in each of the four sites, at least the top two layers of soil, which would contain nutrients and seed bank, were scraped off and deposited at the edge of the well-head site, and that there had been no attempt to reclaim the sites by redistributing that cover back onto the site. [ 49 ] Mr. McLauchlin noted that there was a well-head roughly in the centre of each of the four sites. [ 50 ] In Mr.

McLauchlin’s opinion, the sites could be fairly inexpensively reclaimed by redistributing the topsoil and re-seeding the area with native species as well as planting some fast growing trees, such as white spruce, which would be natural in that area. Mr. McLauchlin concluded by saying that it was still feasible to reclaim the area; however, the further away in time you moved from the time of disturbance, the more difficult and more expensive it becomes to do so. Case for the Defence [ 51 ] The sole defence witness was Mr. Benson, who on behalf of Western was clearly totally familiar with the entire situation.

He provided a number of documents as exhibits, in order to establish that his company had what he describes as “good and valid petroleum and natural gas leases”. [ 52 ] The following defence exhibits were filed: Access road - D-1, unsigned lease 450376, November 26, 2003 to March 31, 2024; LSD 14 - D-2, lease 45035, May 1, 2008 to March 31, 2009; LSD 2 - D-3, lease 450436, May 1, 2008 to March 31, 2029; LSD 13 - D-4, lease 450434, May 1, 2008 to March 31, 2029; LSD 05 - D-5, lease 450375, November 28, 2003 to March 31, 2024.

All of these relate to Saskatchewan Environment or Saskatchewan Ministry of the Environment, as the case may have been at the time. Petroleum and Natural Gas Lease, D-6, issued by Ministry of Energy and Resources, effective January 16, 2009, for five years from April 1, 2009; Petroleum and Natural Gas Lease, D-7, issued by Saskatchewan Industry and Resources, effective August 14, 2006, for five years from April 1, 2007; Rental Schedule, D-8, issued by the Ministry of the Economy, dated November 26, 2012; Registered letter, D-9, from Ministry of the Economy to Mr.

Benson as President of Western, “suspending all wells and facilities which are licenced to Western Warner Oils Ltd.” as of March 1, 2013;

Letter of October 10, 2003, D-10, from Weyerhauser to Brady Land Services Ltd. (Agent of Western), with attachments; Well Licence, D-11, issued by Saskatchewan Energy and Mines, for LSD 05, dated October 8, 2003; Letter of May 7, 2004, D-12, from Western to Mr. Springinotic, referring to LSD 05; Letter of May 13, 2004, from Mr. Springinotic of Saskatchewan Environment to Western in reply to D-12; Undated Letter, D-14, from Weyerhauser to Mr.

Benson at Western; Letter of April 21, 2008, From Western to Weyerhauser; As Built Report for LSD 05 dated January 12, 2003, D-16, (this appears to be an original of P-11). [ 53 ] Mr. Benson is relying on these documents, which he feels speak for themselves, and did not really testify as to what they establish or disprove. Although not evidence, it was clear during his cross-examination of Crown witnesses that he was taking issue with when, exactly, “completion of the project” occurred. On cross-examination, Mr.

Rosen was of the view that 30 days after completion of the project is the time in which the work should be reclaimed, that is, you have to have it done 30 days after completion of the drilling of the well site. [ 54 ] On cross-examination, Mr. Benson confirmed that Western did receive the permits to disturb the sites to construct the exploration wells, and that the sites have not been reclaimed. His cross-examination occurred on an adjourned trial date of June 23, 2013.

Crown Position [ 55 ] With respect to Information #24165276, the Crown argues that Permit 09197G, which is Exhibit P-17, refers to LSDs 2, 13 and 14. Thus, Mr. Hryhorchuk says the Crown is not seeking a conviction on LSD 5. [ 56 ] His position is that the permit referred to was subject to existing laws and existing permits and that nothing has been done to comply with the conditions under which the permit was issued. [ 57 ] Mr. Hryhorchuk goes on to say that this is not really a situation in which the defence of due diligence applies, as on the facts nothing was ever done. Defence Position [ 58 ] Mr.

Benson argues that the leases he had allowed Western to occupy the property, and having those leases in hand, it would be inappropriate to require him to reclaim the leases before the properties are abandoned. Analysis and Decision [ 59 ] I start by noting that I accept the evidence of the Crown witnesses, and I accept the validity of the exhibits tendered by both parties. Mr.

Benson took issue with a number of the documents that were filed by the Crown respecting what transpired in the early stages of Western’s involvement with Saskatchewan Environment, on the basis that they lacked relevancy because they were so far outside the time lines set out in the two Informations before the Court. Mr. Hryhorchuk took the position that those documents were relevant as being part of the narrative of the entire situation. I rather agree with Mr. Hryhorchuk’s view; the documents provide a history, and I note that some of the Defendant’s documents are rather dated as well.

In deciding this issue, however, I did not give undue weight to what may or may not have occurred in 2003 or 2004 and I did concentrate on what occurred, or did not occur, during the time

frames set out in the Informations. #24165276 [ 60 ] Section 79(1)(

d) of the Act states: 79(1) No person shall: (

d) fail to comply with the terms of any licence or plan approved pursuant to this Act or the regulations. [ 61 ] A “licence” is defined in s. 2(1)(

o) of the Act as follows: “licence” means a licence that is required pursuant to this Act or the regulations that it is issued for:

i) the harvesting of forest products including a forest management agreement, term supply licence or forest product permit . . .

Exhibit P-17, which includes a covering letter of March 30, 2009, refers specifically to “conditions for Forest Product Permit 09197G”. [ 62 ] That permit refers specifically to the following LSDs: LSD 02, LSD 13, and LSD 14. [ 63 ] The conditions for that permit specifically state: This permit is issued subject to and restricted to the following conditions: including, among them being: 3) Prior to entry of equipment on to forested Crown land, all equipment must be washed and cleared of any non-indigenous plants or seeds; 17) When constructing drill sites/roadways/drill fluid sumps, woody species and topsoils are to be stripped off the site and piled separately for later site reclamation.

Where possible stripping shall be limited to the area where the drilling rig will sit. Alternative methods of levelling the site for drill rig placement should be considered in lieu of soil stripping (i.e. snow/ice fill, hydraulic jacks, blocking etc.); 22) Once drilling is complete sites/roadways/drill fluid sumps must be re-contoured, topsoil is to be re-spread and woody species are to be rolled back and spread on the sites/roadways/drill fluid sumps. The site will be allowed to naturally regenerate.

If supplemental planting is required, approval for seeding and/or tree planting is required prior to completing any reclamation work. Contact Patrick Rosen at 1-306-953-2423. 26) Weather permitting; all reclamation work is to be completed within 30 days of completion of this project; 43) Within 30 days of the date these permits expire or completion of this project, the proponent must complete and submit a Closure Report along with a completed Forest Product Permit (condition #42).

The outline for a Closure Report can be found in the Saskatchewan Mineral Exploration Guidelines. [ 64 ] The permit expires June 30, 2009, and it specifically granted permission to Western “to conduct exploratory drilling at the sites referred to”. [ 65 ] On June 30 th , that permit was extended to expire on July 18, 2009. The time line referred to in the Information encompasses the period July 18, 2009 to April 25, 2012.

[ 66 ] The evidence is overwhelming that no reclamation of any nature has been done on any of the sites; Mr. Benson, on behalf of the company, testified that to be the case. Irrespective of his evidence, the evidence from the Crown clearly establishes the reclamation work was not done. [ 67 ] With respect to Mr. Benson’s argument that he had “good and valid petroleum and natural gas leases”, one of the witnesses made a comment that, just because one has a lease doesn’t mean one can shoot a moose that happens to wander across that lease out of hunting season.

The fact that Western had leases does not absolve Western from the obligation to comply with the conditions of the licence they had, which is specifically what they have been charged with. As was pointed out in cross-examination of Mr. Benson, each of those leases contain a clause (clause 17) that states that the lease “shall be subject to all the applicable provisions of” a number of Acts , including The Forest Resources Management Act , including all regulations made under any of those Acts .

Western has not complied with the conditions of the licence it was granted. [ 68 ] There is nothing in the evidence to suggest that anyone connected with any government organization involved in this project ever said or did anything that might have led Western to believe compliance with the terms of the licence were waived. [ 69 ] The documents filed on behalf of Western do not change the basic fact that Western has not complied with the terms of the licence in issue in this charge.

In light of this, I need not consider the defence of due diligence, as it has no application on these facts. [ 70 ] With respect to the argument that the site was still being worked on, looking at the permit as a whole, it is clearly for “exploratory drilling”, and it clearly has a expiry date. My reading of condition #43, which refers to “within 30 days of the date these permits expire or completion of this project”, can only reasonably be interpreted to mean that, if the completion of the project is done prior to the permit expiring, that is when the 30 days starts to run. The problem with Mr.

Benson’s argument is that, if one could simply hold the project in abeyance until such time as the holder of the permit decided to abandon or complete the project, a permit with a set expiry date would in effect have no expiry date; there would be nothing to prevent the permit holder from deciding to complete work on a permit that expires July 18, 2009, in, for example, 2045, or any other year of the licencee’s choosing. [ 71 ] Clearly, the reclamation work has not been done.

The Crown has established all of the essential elements required under Information #24165276 and I am satisfied beyond a reasonable doubt that the Defendant is guilty on that Information. Information #24165277 [ 72 ]

Section 61 of the Act contains the authority for an officer to issue a Stop Work Order and for the Minister to extend that order. In this case, Ryan Mulligan issued a Stop Work Order pursuant to s. 61, on February 21, 2012 (Exhibit P-28). [ 73 ] Mr. Mulligan testified he is a “Forestry Officer” which in my view falls within the definition of “officer” contained in s. 2(1) (

u) of the Act . Thus, he had the authority to issue that order. [ 74 ] That order was subsequently confirmed on May 16 th , as set out in Exhibit P-29. [ 75 ] Section 79(1)(

e) of the Act reads: 79(1) No person shall (

e) fail to comply with an order made pursuant to s. 61 or s. 63. [ 76 ] The original order, Exhibit P-26, was acknowledged to have been received by Western, and although there were issues with

[ 76 ] The original order, Exhibit P-26, was acknowledged to have been received by Western, and although there were issues with service of the order extension, Exhibit P-29, in that it was not actually acknowledged to have been received at that time, I am satisfied on the evidence of Mr. Benson, and by reference to Exhibit P-29, the letter of May 16, 2012, that in fact Western received that order. [ 77 ] That order applied to the following locations: 5A, lease 450375, 450376, 2A, lease 450436, 13A, lease 450434 and 14, lease 450435.

Specifically, it states: Western Warner has damaged land and vegetation, by not ensuring proper regeneration of the forest vegetation, within the Provincial forest. [ 78 ] There is no question that the work has never been done with respect to reclamation. Thus, the time line set out in the Information, between February 20, 2012 and October 31, 2012, has been met. [ 79 ] Assuming Mr. Benson’s argument to be the same on this Information as it was on Information #24165276, the same comments apply.

Thus, I am satisfied that the Crown has established all the essential elements of this offence beyond a reasonable doubt, and I find the Defendant guilty. [ 80 ] In conclusion, the Defendant is guilty on both Informations. ________________________ B.G. Morgan, J