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A REPORT OF THE WOOD THEFT WORKING GROUP
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Subsequent to a meeting with the Attorney General in November 1999 and ongoing discussions with the Minister of Natural Resources and Energy, on March 1, 2000 a presentation was made to the former Solicitor General, the Honourable Percy Mockler, on the growing problem of theft of wood from private woodlots and trespass problems/damage to woodlots and farms.
As an outcome of this presentation and subsequent meetings involving senior officials from the RCMP, Departments of Justice, Solicitor General and Natural Resources and Energy (DNRE), it was agreed that a working group would be formed. The Working Group included representatives from the RCMP, Department of Justice, Solicitor General, DNRE, NB Federation of Woodlot Owners, Crown Leaseholders, Large Freehold Owners, NB Federation of Agriculture and la Fédération des Agriculteurs et Agricultrices Francophones du N.-B. As it was felt that this was primarily an enforcement-related issue, the Department of Public Safety accepted the role as lead Department for the purpose of the Working Group.
The findings of the Wood Theft Working Group identify a serious and growing problem of theft of wood from Crown and private lands resulting in a loss of millions of dollars, inclusive of trespass and damage to private and agricultural lands and/or property. The findings also indicate a basic outright disrespect for the law and property rights throughout the Province.
In addition to private landowners, the issues being addressed by the Working Group have an impact on two industries, the Forest Industry and the Agriculture and Agri-Food Industry. Both industries make significant contributions to the New Brunswick economy. The forest industry is increasingly dependent on wood from outside of New Brunswick. Increasing the sustainable harvest level within the province is therefore an urgent challenge and woodlot owners have an important part to play in meeting this challenge. The growing risk that the effort and dollars they invest in growing more trees that may be stolen has repercussions for the long-term survival of the industry.
Analysis of extent and nature of criminal activity
The unauthorized harvest of Crown timber continues to pose a significant problem for DNRE enforcement staff because of the high value of wood. Documented incidents under the Crown Lands and Forests Act have increased significantly from 154 incidents in 1994 to 633 incidents in 1999, an increase of 311%. For the period April 1, 1999 until September 26, 2000, DNRE documented 267 cases of unauthorized harvest.
The number of incidents of theft of wood owned by industry and private woodlot owners is difficult to quantify, as the RCMP does not track incidents of theft of timber as a separate category. However, a survey of the eleven RCMP District offices indicated that there have been approximately 111 cases of wood theft reported to the RCMP in the past 12 months. The New Brunswick Federation of Woodlot Owners has estimated that in the past twelve months there have been 200 thefts of wood reported by private woodlot owners.
To illustrate the extent of financial losses, some of the stakeholders on the Working Group attempted to quantify total financial losses as a result of wood theft. J.D. Irving Limited estimated that the true value of losses as a result of wood theft over the past two years is in excess of $1.4 million. Bowater Maritimes Inc., a Crown Leaseholder, estimated that they have lost 85,000 cubic metres of softwood, a market value of approximately $4.59 million, over the past twelve years (1985-1997). However, while it is easy to estimate losses of softwood, financial losses as a result of the select cut of hardwood cannot be quantified as they are removed one or two trees at a time.
The agricultural industry has also expressed concern with problems of trespass and damage to agricultural land. Again, it is not possible to document some of these types of incidents as they relate to the agricultural industry specifically, as the RCMP does not categorize them separately from other offences of a similar nature. However, anecdotal evidence would suggest that the problems of trespass and damage to agricultural lands are a significant and growing problem for the industry. Indeed, landowners are increasingly frustrated with the decline in respect for their property. Many express fear of violent confrontations as they attempt to police their properties themselves. Some report they have begun to carry firearms.
Stakeholders have expressed concern that incidents of theft, trespass, vandalism, and damage to property and lands are facilitated by the increased use of all-terrain vehicles. ATV use is increasing, with more than 20,000 registered in the province. However, while the use of ATVs is increasing, the number of places where people can use these machines is not. And, there is no specific provision in the All Terrain Vehicle Act that makes it an offence to operate an ATV on private property without permission of the landowner
Enforcement/Prosecution & Barriers to Enforcement/Prosecution
A significant barrier to enforcement is that the RCMP does not have sufficient resources to respond to every complaint. Location, resources and proximity pose problems to peace officers responding to calls of this nature. Based on demographics, police are more concentrated in populated areas (urban and rural) and because of the nature of this criminal activity it takes place in wilderness areas. DNRE staff also report a number of barriers to enforcement in dealing with illegal harvest of wood on Crown land including the use of technology to thwart enforcement efforts, use of threats and intimidation, and lack of resources.
It is felt among Working Group members that incidents of wood theft, trespass and damage to woodlots and agricultural land are not a priority for law enforcement officials. With respect to wood theft specifically, it is felt that that this is perceived by the police as disputes over private property and therefore not a criminal matter. Part of this difficulty stems from the fact that theft is one of the few offences in which ëcolor of rightí is a valid defense. Color of right is an honest but mistaken belief on the part of an alleged offender that he or she has a valid legal right to the property in question. The criminal law places the burden on the Crown to disprove color of right. One of the impediments to enforcement/prosecution in these types of cases is the status of the land survey, or the lack thereof.
In addition to the status of the survey, the prosecution has to prove intent on the part of the trespasser that they knowingly crossed the boundary line. However, if the physical evidence of the line is gone, by natural or illicit means, a perception is created that color of right is a credible defense. Indeed, it was felt among the stakeholders that these types of cases involve exceptional circumstances because of the status of the survey, the ease with which evidence of a boundary line can be removed, and a lack of understanding on the part of criminal justice officials that make it particularly easy to create a credible color of right defense.
Recommendations of the Working Group
The Wood Theft Working Group met on five separate occasions between May and September 2000 to discuss the issues, receive input from experts, and develop specific recommendations for action by government, law enforcement agencies, owners, and operators to combat the growing problems of wood theft and trespass problems/damage to woodlots and agricultural lands. Following careful review and consideration, a number of recommendations are presented to the Ministers of Justice, Natural Resources and Energy and Public Safety, for their consideration, in deciding what can be done to improve this situation given the significant financial loss and sense of personal violation these types of crimes represent for private and freehold landowners and New Brunswick tax payers.
The areas of intervention that were determined to be most practical in reducing the impact on landowners and industry generally fall into four areas: enforcement, legislation, education, and prevention. Some of the recommendations can be achieved in the immediate future, however some will need to be investigated further by Government to determine their feasibility.
The Stakeholders strongly agree that none of these areas by themselves will provide a solution to the problems addressed in this Report. It is very important that the Government consider the recommendations as a package. Landowners and industry representatives have made it clear that they will cooperate to the fullest with the recommendations under education and prevention if significant initiatives are also undertaken in the areas of legislation and enforcement. Education and prevention by themselves will not make a significant impact, and will not receive the active support of landowners and industry because they will not, by themselves, be a credible solution.
Subsequent to a meeting with the Attorney General in November 1999 and ongoing discussions with the Minister of Natural Resources and Energy, on March 1, 2000 a presentation was made to the former Solicitor General, the Honourable Percy Mockler, on behalf of the NB Federation of Woodlot Owners, NB Federation of Agriculture, and la Fédération des Agriculteurs et Agricultrices Francophones du N.-B. on the growing problem of theft of wood from private woodlots and trespass problems/damage to woodlots and farms (see Attachment A for presentation points).
On March 7, 2000 senior officials from the RCMP, and the Departments of Justice, Solicitor General and Natural Resources and Energy (DNRE) met to discuss wood thefts from Crown land and private woodlots.1 It was agreed that wood theft is a serious and growing problem.
As an outcome of the March 7, 2000 meeting it was agreed that a working group of representatives from the RCMP, Departments of Justice, Solicitor General and DNRE, as well as representatives of the NB Federation of Woodlot Owners, Crown Leaseholders, Large Freehold Owners, NB Federation of Agriculture and la Fédération des Agriculteurs et Agricultrices Francophones du N.-B. would be formed (see Attachment B for Terms of Reference and Working Group membership).
The mandate of the Working Group was to develop specific recommendations for action by government, law enforcement agencies, owners, and operators to combat the growing wood theft problem on Crown land and private woodlots and trespass problems/damage to woodlots and farms.
As it was felt that this was primarily an enforcement-related issue, the Department of Public Safety accepted the role as lead Department for the purpose of the Working Group. Mr. Michael Connolly, Director, Law Enforcement Branch chaired the Working Group with support to the Working Group provided by Ms. Karen Hughson, an Operational Planner with the Department of Public Safety.
This report is a summary of stakeholder consultation and research conducted with a view to developing specific recommendations for action. The scope of the study included an examination of the following issues: history of the problem; analysis of the extent and nature of criminal activity; review of relevant legislation and penalties; enforcement/prosecution practices & barriers to enforcement/prosecution. Further, it was agreed that recommendations should focus on preventative measures that can be taken by stakeholders including increased education and awareness of the problem, as well as changes to legislation and enforcement/prosecution practices.
The findings of the Wood Theft Working Group contained in this report identify a serious and growing problem of theft of wood from Crown and private lands resulting in a loss of millions of dollars, inclusive of trespass and damage to private and agricultural lands and/or property. The findings also indicate a basic outright disrespect for the law and property rights throughout the Province.
Two recent cases of theft from private woodlots served to highlight the issue with government officials and the public. In December 1999, Jeanette Mallet Despres, a 67-year-old grandmother placed herself in front of a mechanical harvester in order to stop the illegal cutting, upon being notified by a neighbour that someone was harvesting wood from her woodlot. The same evening, she confronted three men who arrived on her woodlot in a pickup truck. The men claimed that they did not know they were on private property. When the police arrived, Ms. Despres could not prove it was her land as it had not been surveyed and staked out with surveyorís pins.
Ms. Despres, in deciding that woodlot owners were being treated unfairly circulated a petition wherein she sought support for the following statement: "the government should establish laws to protect woodlot owners against unauthorized cutting". She presented the petition, with more than 1,000 signatures from Kent and Westmorland Counties to the Minister of Public Safety, the Honourable Milton Sherwood.
A second victim of wood theft, Mrs. Elizabeth Bowes, corresponded with the Premier, Attorney General, Minister of Public Safety and Minister of Natural Resources and Energy wherein she made several recommendations on how to resolve this situation. Similar to Ms. Despres, she was advised of the theft of trees from her woodlot by a neighbour and when she contacted a lawyer and the police she was advised that without a survey there was nothing they could do. While she proceeded with getting a valid survey, the contractor contested her title to the land leaving her in a position to "quiet" the title (See Attachment C for a copy of the letter sent to the Minister of Public Safety).
In addition to these two cases, other examples will be utilized throughout the document to support the findings of the Working Group.
Overview of Forest and Agriculture and Agri-Food Industries
In addition to private landowners, the issues being addressed by the Working Group have an impact on two industries, the Forest Industry and the Agriculture and Agri-Food Industry. Both industries make significant contributions to the New Brunswick economy. Below is a brief overview of the economic impact these industries have on the Province.
Forest Industry
New Brunswickís timber resources are managed by the Department of Natural Resources and Energy (DNRE), as well as the forest industry and private woodlot owners. Forty-eight (48) percent of the forest is Crown land owned by the people of the Province, whereas industry owns 20% and private woodlot owners own the remaining 32%.
New Brunswickís forests generate enormous wealth through the production of pulp, paper, and solid wood products; the industry has been a mainstay of our economy for more than 150 years. The economies of 40 New Brunswick communities are almost totally dependent on the forest industry. There are approximately 16,000 people employed in this industry with direct wages and salaries of more than $500 million annually. The forest industry accounts for approximately half of New Brunswickís total exports.
The pulp and paper industry is the major employer and producer. The annual production of the nine pulp mills and four paper mills in the province exceeds $1.5 billion. There are over 100 mills in the province producing solid wood products, 90 of these are sawmills. The value of solid wood products alone amounts to approximately $500 million annually.
The industry is increasingly dependent on wood from outside of New Brunswick; approximately 18% of wood processed in New Brunswick in 1998-1999 was imported. Increasing the sustainable harvest level within the province is therefore an urgent challenge and woodlot owners have an important part to play in meeting this challenge. The growing risk that the effort and dollars they invest in growing more trees that may be stolen has repercussions for the long-term survival of the industry.
Agriculture and Agri-Food Industry
The agriculture and agri-food industry is also a major contributor to the New Brunswick economy. The most recent Census of Agriculture (1996) reported 3,206 farms in the province. In 1998 these operations, producing a range of agricultural products, accounted for a total of $344 million in farm cash receipts, an increase of 14% over 1997. With an average farm size of 116 hectares, New Brunswick has the highest average farm size in the Atlantic Provinces. The total area of crop land is 185,940 hectares.
Capital resources, including land, buildings, machinery and livestock utilized by New Brunswick farmers total more than $1.1 billion. Further, the industry purchases production inputs annually from other sectors valued at more than $250 million. The agriculture and agri-food processing sectors combined account for approximately 13.2% of the total industrial output of the province, and 3.7% of the Gross Domestic Product (GDP). There are 6,000 people employed on farms in this province, representing about 32% of the total primary industry employment.
Analysis of the extent and nature of criminal activity
The unauthorized harvest of Crown timber continues to pose a significant problem for DNRE enforcement staff because of the high value of wood. In particular, birdís-eye maple and yellow birch veneer-quality timber are primary targets. Documented incidents under the Crown Lands and Forests Act have increased significantly from 154 incidents in 1994 to 633 incidents in 1999, an increase of 311%. For the period April 1, 1999 until September 26, 2000, DNRE documented 267 cases of unauthorized harvest and suggested that at this rate the number of documented incidents under the Crown Lands and Forests Act will surpass 1999 statistics.
Table 1
Provincial Enforcement Statistics
Crown Lands & Forests Act
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Year |
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1994 |
1995 |
1996 |
1997 |
1998 |
1999 |
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Crown Lands & Forests Act |
154 |
329 |
514 |
591 |
586 |
633 |
Out of the 633 documented incidents in 1999 (see Attachment D for Table 2):
The Department of Natural Resources and Energy also reported that with respect to Crime Stopper tips, 2-3 years ago approximately 90% of the tips involved Fish and Wildlife Act offences. In the past year the number of tips being received are 75% related to unauthorized harvest of Crown timber under the Crown Lands and Forests Act. The rate of follow up on Crime Stopper tips is not as successful as DNRE would like for the following reasons: enforcement staff is already aware of the situation, enforcement staff is tied up with seizures elsewhere and cannot respond, or enforcement staff is unable to react in time to ensure a successful intervention. DNREís feeling is that with the lack of follow up, they are turning the tipster information "off" and are concerned about the long-term implications.
The number of incidents of theft of wood owned by industry and private woodlot owners is difficult to quantify as the RCMP does not track incidents of theft of timber as a separate category. However, a survey of the eleven RCMP District offices indicated that there have been approximately 111 cases of wood theft reported to the RCMP in the past 12 months. The New Brunswick Federation of Woodlot Owners has estimated that in the past twelve months there have been 200 thefts of wood reported by private woodlot owners. Anecdotal evidence also strongly supports an increase of wood theft from land owned by industry and private woodlot owners. Reasons suggested for the increase in wood theft include (see Attachment A):
Further, to illustrate the extent of financial losses, some of the stakeholders on the Working Group attempted to quantify total financial losses as a result of wood theft. J.D. Irving Limited estimated the losses that they are aware of, to be in the order of $214,000 over the last two years. Industry representatives and DNRE have indicated that they only catch or become aware of 15% of the wood theft cases. Therefore, J.D. Irving Limited estimated that the true value of losses as a result of wood theft over the past two years is in excess of $1.4 million.
Bowater Maritimes Inc., a Crown Leaseholder, estimated that they have lost 85,000 cubic metres of softwood, a market value of approximately $4.59 million, over the past twelve years (1985-1997). Bowater also estimated that the majority of these losses have occurred in the past 4-5-year period, which appears to be consistent with the increase in documented incidents under the Crown Lands & Forests Act in the past 5 years (reference Table 1). However, while it is easy to estimate losses of softwood because it frequently involves clear cutting of several acres, financial losses as a result of the select cut of hardwood cannot be quantified as they are removed one or two trees at a time.
Trespass and damage to property/lands
As is suggested in literature on rural crime prevention, in addition to incidents of theft of timber and forestry equipment, vandalism is another source of financial loss to the forestry industry. However, determining the extent of the financial loss is difficult as companies often absorb the cost and do not report vandalism to the police. It is also expected that vandalism is a problem experienced by the agricultural industry whereby the cost of the damage is absorbed and incidents are not reported to police.
The agricultural industry has also expressed concern with problems of trespass and damage to agricultural land. Problems of this nature include:
Mr. Philip Christie, Chairman of the New Brunswick Federation of Agricultureís Committee on Policy and Land Use attended one of the meetings and provided the Chairperson of the Working Group with correspondence identifying several examples of these types of incidents as experienced by himself, his father, and brother who are all involved in farming and/or forestry operations. Among the examples provided were the following:
Again, it is not possible to document some of these types of incidents as they relate to the agricultural industry specifically, as the RCMP does not categorize them separately from other offences of a similar nature. However, anecdotal evidence again would suggest that the problems of trespass and damage to agricultural lands are a significant and growing problem for the industry. Indeed, landowners are increasingly frustrated with the decline in respect for their property. Many express fear of violent confrontations as they attempt to police their properties themselves. Some report they have begun to carry firearms.
A resolution passed by la Fédération des Agriculteurs du Nord-est, part of la Fédération des Agriculteurs et Agricultrices Francophones du N.-B. in November 1998 serves to demonstrate that trespass and damage to agricultural land are serious problems that need to be acted on. The resolution reads as follows:
Il est proposé par André Méthé et appuyé par Robert Thériault que la Fédération cherche à trouver une solution pour líintrusion sur les terres agricoles en rapport avec les vols de bleuets ou produits agricoles, au voleur de prouver son innocence.
The New Brunswick Federation of Agriculture has also passed a number of resolutions over the years with respect to some of the issues being addressed by the Working Group. These demonstrate that trespass has been a consistent concern for the industry over a number of years.
Blue Disc Promotion, 1993
WHEREAS the general public and some farmers themselves are not aware of nor do they understand the legislation surrounding the blue disc identification programme,
WHEREAS the effectiveness of the programme depends largely on awareness of all involved,
THEREFORE LET IT BE RESOLVED THAT the NB Federation of Agriculture publish the legislation in the Journal,
FURTHER BE IT RESOLVED THAT the NB Federation of Agriculture encourage the Motor Vehicle Branch to include an explanation of the blue disc in its regulation booklet perhaps in the sign identification section,
FURTHER BE IT RESOLVED that the NB Federation of Agriculture encourage the Department of Natural Resources and Energy to include an explanation of the blue disc with those of the yellow and red discs in their Hunterís Rules and Regulations Brochure.
Reverse Onus, 1997
WHEREAS Trespass on agricultural land continues to be a problem for New Brunswick producers AND
WHEREAS a similar situation exists for woodlot owners, AND
WHEREAS the onus for trespass notification and prevention presently lies with the landowner instead of the recreational user of the rural landscape,
THEREFORE BE IT RESOLVED that the NBFA work with the Federation of Woodlot Owners to reform the Trespass Act to ensure that the onus for trespass notification and prevention be removed from the landowner and placed on the public.
Colored Disc Program, 1999
WHEREAS the colored disc program for private landowners doesnít work effectively, AND
WHEREAS private landowners would like to have some control over who crosses their land for the safety of private landowners and their livestock,
THEREFORE BE IT RESOLVED THAT the NBFA pressure the NB government to restrict hunting licence to crown land only unless the hunter has written permission from private landowners.
Stakeholders have expressed concern that incidents of theft, trespass, vandalism, and damage to property and lands are facilitated by the increased use of all-terrain vehicles. ATV use is increasing, with more than 20,000 registered in the province. However, while the use of ATVs is increasing, the number of places where people can use these machines is not. The All Terrain Vehicle Act prohibits ATV operators from driving on or within 7.5 metres of any roadway or place that is used by motor vehicles. ATVs are also not permitted on the multi-purpose Sentier New Brunswick Trail System or the New Brunswick Federation of Snowmobile Clubs trail system. Unauthorized use of ATVS on these trail systems, roadways and private property is a growing problem and a cause of increased frustration for land owners and legitimate users of such property.
Again, an example of an incident documented by Mr. Christie in his correspondence effectively demonstrates that ATV use is a serious issue and concern for landowners:
In addition to Criminal Code offences, several pieces of Provincial Legislation are used for enforcement purposes. Following is a brief synopsis of select Provincial Legislation (see Attachment E for select sections from this Legislation).
The Trespass Act is administered by the Department of Justice and provides for the control of areas where motor vehicles are permitted to be operated and makes it an offence to drive motor vehicles on certain lands. This Act does not apply to lands that are Crown Lands as defined in the Crown Lands and Forests Act except where the lands are referred to in subsection 2.1(1) or section 2.2 (see Attachment E).
The Crown Lands and Forests Act is administered by the Department of Natural Resources and Energy and regulates the administration and management of Crown Lands and its resources. The Act includes provisions for access to and travel on Crown Lands, harvesting and renewal of timber resources on Crown Lands, habitat for the maintenance of fish and wildlife populations, forest recreation of Crown Lands and rehabilitation of Crown Lands.
The Provincial Offences Procedures Act is administered by the Department of Justice and legislates penalties where an Act makes an offence punishable under this Act as a category A, B, C, D, E, F, G, H, I or J offence. Sanctions may include release without penalty, fines, imprisonment, and probation orders.
The All Terrain Vehicle Act is administered by the Department of Public Safety and legislates certain rules relating to the operation of all-terrain vehicles. The Act includes provisions for mandatory registration, mandatory equipment, age restrictions for operation, mandatory liability insurance and prohibited areas of operation. However, there is no specific provision in the Act that makes it an offence to operate an all-terrain vehicle on private property without permission of the landowner.
Transportation of Primary Forest Products Act: Load-Slip Program
The Department of Natural Resources and Energy proposed a load-slip program in order to track the movement of wood in the province and obtain better data on harvesting on private woodlots. A system has been in place since 1994 to monitor and account for the volume of wood harvested on Crown land.
The objectives of the proposed load-slip program are to:
Legislation entitled the Transportation of Primary Forest Products Act received Legislative approval, but has not been proclaimed. The Act would require that all operators of vehicles with an unladen mass in excess of 2,499 kg must have a load-slip regardless of whether they are hauling primary wood products in, through or out of New Brunswick (except for fuel wood less than 4 feet in length). A load-slip would be required for all primary wood products no matter the source of the wood (private woodlot, industrial freehold, Crown, and imported). However, while the program places onus on the vehicle operator who would be required to have a load-slip in order to transport primary wood products, the legislation does not require that mills ask the vehicle operator for a load-slip before accepting the wood.
There was strong opposition to the proposed load-slip program in some regions. An effective load-slip system will require a reasonable degree of cooperation from truckers and contractors to function. That acceptance is necessary throughout the province. The NB Federation of Woodlot Owners has proposed modifying the original proposal using the existing system of Marketing Board delivery tickets rather than government-issue slips. This proposal has been accepted by most of the opponents of the original proposal.
Enforcement/Prosecution & Barriers to Enforcement/Prosecution
An informal survey of RCMP Districts in the province with respect to enforcement practices and some of the barriers to enforcement/prosecution produced comments generally falling into the following categories:
A significant barrier to enforcement is that the RCMP does not have sufficient resources to respond to every complaint. Location, resources and proximity pose problems to peace officers responding to calls of this nature. Based on demographics, police are more concentrated in populated areas (urban and rural) and because of the nature of this criminal activity it takes place in wilderness areas. Further, the availability of officers and the type of crime play a role in response time. It was also noted that the RCMP is concerned with the number of thefts that are stopped in progress and it was suggested that immediate action by landowners might not be a viable option as it may pose a danger to the intervenor.
A DNRE enforcement officer also provided comments with respect to the barriers to enforcement experienced in dealing with illegal harvest of wood on Crown land and the use of technology to thwart enforcement efforts. The following barriers to enforcement were identified:
With respect to the use of threats and intimidation against enforcement officers, DNRE reports that they have not transferred any staff to date because of threats and intimidation. However, one person in an area of the province applied to another ranger job so that he could remove himself and his family from the threats, assaults and intimidation and he was successful in securing the position. DNRE also reported that they have another three staff who have asked to be transferred for the same reasons and two staff who have physically removed themselves and their families from the district area on their own initiative and travel for work purposes.
One incident of note provided by DNRE involved a recent occurrence in one part of the Province where a DNRE patrol set up on a crew of wood thieves. DNRE enforcement staff arrested the individuals involved and seized a number of trucks (1/2 tons, etc.) and a quantity of wood during a night-time operation. Word of the arrest got out to the local community and resulted in over two dozen people showing up and blocking DNRE staff in, threatening them, etc. The RCMP was called but even then they had to negotiate their way out and things were very tense. This is not the first time this type of occurrence has happened in the Province.
It is felt among Working Group members that incidents of wood theft, trespass and damage to woodlots and agricultural land are not a priority for law enforcement officials. With respect to wood theft specifically, it is felt that that this is perceived by the police as disputes over private property and therefore not a criminal matter. Part of this difficulty stems from the fact that theft is one of the few offences in which ëcolor of rightí is a valid defence. Color of right is an honest but mistaken belief on the part of an alleged offender that he or she has a valid legal right to the property in question. The criminal law places the burden on the Crown to disprove color of right. No burden is placed on the defendant in such circumstances to establish that he/she has color of right. One of the impediments to enforcement/prosecution in these types of cases is the status of the land survey, or the lack thereof. The status of the survey might be challenged based on the location, accuracy or the validity of a boundary line.
An Act to Incorporate the Association of New Brunswick Land Surveyors
The Association of NB Land Surveyors was established by the Province in 1954 through "An Act to Incorporate the Association of New Brunswick Land Surveyors" (amended 1986). The primary objective of the Association is to "regulate the practice of professional land surveying and govern [its] members in accordance with this Act and the by-laws, in order to serve and protect the public interest" (section 5(1)). Additional objectives of the Association set out in section 5(2) include to establish, maintain and develop standards of knowledge, skill and efficiency; standards of qualification; standards of professional ethics; and to promote public awareness of the role of the Association. Per subsection 6(f), the Association maintains a land surveyorsí register of persons entitled to practice land surveying in the province.
The definition of the "practice of land surveying" most relevant for the purpose of the issues being addressed by this Working Group is "the survey of land or airspace to determine or establish legal boundaries". A property survey must be done in conjunction with adjacent properties. Survey research is obtained from a number of sources including:
With respect to woodlot surveys there is a gray area between maintenance of existing boundaries, creating new boundaries and remonumenting existing boundaries. Under the definition of line maintenance a non-land surveyor can perform this function. However, the dilemma of land surveyors is that while a non-land surveyor can find "a" line, a land surveyor has to ensure they determine "the" line through the appropriate research.
As noted, the dilemma with respect to enforcement/prosecution of these types of offences in order to meet the rules of evidence for criminal court is the status of the survey: non-existent, evidenced by occupation (fences and/or rock walls), or surveyed and fully monumented. In addition to the status of the survey, the prosecution has to prove intent on the part of the trespasser that they knowingly crossed the boundary line. However, if the physical evidence of the line is gone, by natural or illicit means, a perception is created that color of right is a credible defense. Indeed, it was felt among the stakeholders that these types of cases involve exceptional circumstances because of the status of the survey, the ease with which evidence of a boundary line can be removed, and a lack of understanding on the part of criminal justice officials that make it particularly easy to create a credible color of right defense.
Role of Service New Brunswick
Service New Brunswick (SNB) is a corporation owned by the Province of New Brunswick. The mission of SNB is to improve the delivery of government services to the public. SNB has four business lines:
In order to fulfil its mandate, the following statutes under the jurisdiction of the Premier are administered by SNB:
SNB maintains a network of registries across the province where legal plans and documents related to the ownership of real property can be registered and made available for public scrutiny. Records in the registries include land ownership information dating back to the issuance of the original Crown grants and instruments registered or filed in the registry include deeds and survey plans. At a minimal cost, this information is made available to the public through a variety of means including custom map services, real property information internet services and searching for real property documents at any SNB Registry Office or through telephone or fax inquiries.
Through the legislation administered by SNB, there are a number of tools available to landowners involved in a title and/or boundary dispute. Through the Quieting of Titles Act, an application is made to the Court of Queenís Bench to determine who has title to the land in question. A lower cost alternative to civil litigation is the Boundaries Confirmation Act where the dispute is over boundaries as opposed to title to the land. However, the administrative process prescribed by the Act can also be cost-prohibitive. An application to confirm a boundary has to be accompanied by "a copy of a plan of survey conforming to the standards provided for by regulation and signed by a surveyor, showing all boundaries that the applicant wishes to have confirmed, in the locations where the applicant believes them to be", and "such other information, plan of survey or other material as required by regulation" (subsections 7(1)(a) and (b)).
Recommendations of the Working Group
The Wood Theft Working Group met on five separate occasions between May and September 2000 to discuss the issues, receive input from experts, and develop specific recommendations for action by government, law enforcement agencies, owners, and operators to combat the growing problems of wood theft and trespass problems/damage to woodlots and agricultural lands. Following careful review and consideration, the following recommendations are presented to the Ministers of Justice, Natural Resources and Energy and Public Safety, for their consideration, in deciding what can be done to improve this situation given the significant financial loss and sense of personal violation these types of crimes represent for private and freehold landowners and New Brunswick tax payers.
The areas of intervention that were determined to be most practical in reducing the impact on landowners and industry generally fall into four areas: enforcement, legislation, education, and prevention. Some of the recommendations can be achieved in the immediate future, however some will need to be investigated further by Government to determine their feasibility.
The Stakeholders strongly agree that none of these areas by themselves will provide a solution to the problems addressed in this Report. It is very important that the Government consider the recommendations as a package, and accordingly the recommendations are numbered for ease of reference only. Landowners and industry representatives have made it clear to the Working Group that they will cooperate to the fullest with the recommendations under education and prevention if significant initiatives are also undertaken in the areas of legislation and enforcement. Education and prevention by themselves will not make a significant impact, and will not receive the active support of landowners and industry because they will not, by themselves, be a credible solution.
It is recommended that:
Enforcement
A difficulty in quantifying incidents of wood theft and trespass problems/damage to private woodlots and agricultural lands was that the RCMP does not track these incidents as a separate category from other offences that are similar in nature. Therefore, it is recommended that:
Given that what may have started as exceptional instances many years ago has evolved into widespread, sometimes sophisticated organized operations; operations that are lucrative enough to tempt normally law abiding citizens, it is recommended that:
Legislation
Working Group representatives have expressed concern that the legislation and sanctions available are not substantial enough to serve as a deterrent to this type of illegal activity. The following recommendations are proposed:
Education and Public Awareness
The need for education among criminal justice officials with respect to the issues of wood theft and trespass problems/damage to agricultural lands in order to conduct a successful investigation and prosecution was emphasized by all members of the Working Group. There is also a need to educate criminal justice officials as to the value of the thefts and damage to trees and agricultural lands as it is currently poorly understood.
Further, landowners and industry must be made aware of their rights and what remedies are available to them should they be victims of these types of offences. Public awareness, especially for those involved in recreational activities such as the use of snowmobiles and ATVs, is also a key component to successfully combating these types of offences. The value of thefts and damage to trees and agricultural lands and the financial impact of these types of offences on landowners and industry is poorly understood. The following recommendations are proposed:
Prevention
At the present time in New Brunswick, government and law enforcement agencies do not have a proactive rural crime prevention program in place to deal with the types of criminal activity being experienced by private landowners and the forestry and agricultural industries. Programs of this nature are utilized in other jurisdictions in Canada including Nova Scotia and British Columbia. It is recommended that:
As noted, one of the impediments to enforcement/prosecution in these types of cases is the status of the land survey, or the lack thereof. The status of the survey might be challenged based on the location, accuracy or the validity of a boundary line. Stakeholders have identified that the status of the survey is also an issue where illegal cutting takes place on private lands that share a common boundary with Crown lands and the lines are not properly staked out. It is recommended that:
PRESENTATION TO THE HON. PERCY MOCKLER, SOLICITOR GENERAL
MARCH 1, 2000
THEFT OF WOOD FROM PRIVATE WOODLOTS AND
TRESPASS PROBLEMS ON WOODLOTS AND FARMS
4. What can we do ourselves?
Our Marketing Boards canít do the RCMPís job. It is expensive, requires proper training, and is potentially dangerous both in terms of violence and the risk of being sued.
The experience of many landowners is enforcement receives low priority. At its best, it is extremely slow. There appears to be serious lack of understanding on the part of peace officers, starting with the perception that wood is of low value.
These are possibilities only. What we believe is needed is a small working committee with representation from your Department, the Dept. of Justice, DNRE, and the Federation to review these suggestions and identify the most effective solutions in order to be able to recommend a specific course of action to the Government.
Federationsí Trespass Committee
Presentation Points
Wood Theft Working Group
Terms of Reference
May 31, 2000
Introduction:
Subsequent to a previous meeting with the Attorney General in November 1999 and ongoing discussions with the Minister of Natural Resources and Energy, on March 1, 2000 a presentation was made to the former Solicitor General, Percy Mockler, on behalf of the NB Federation of Woodlot Owners, NB Federation of Agriculture, and La Federation des Agriculteurs et Agricultrices Francophones on the growing problem of theft of wood from private woodlots and trespass problems/damage to woodlots and farms. On March 7, 2000 senior officials with the RCMP and the Departments of Justice, Solicitor General and Natural Resources and Energy met to discuss wood thefts from Crown land and private woodlots. It was agreed that wood theft is a serious and growing problem.
As an outcome of the March 7, 2000 meeting it was agreed that a working group of representatives from the RCMP, Departments of Justice, Solicitor General and DNRE, as well as representatives of the NB Federation of Woodlot Owners, Crown Leaseholders, Large Freehold Owners, NB Federation of Agriculture and La Federation des Agriculteurs et Agricultrices Francophones would be formed.
Objective:
To develop specific recommendations for action by government, law enforcement agencies, owners and operators to combat the growing wood theft problem on Crown land and private woodlots and trespass problems/damage to woodlots and farms.
Scope of the Study:
The scope of the study can be categorized into the following areas:
Project Management:
As this is primarily an enforcement-related issue, it has been agreed that the Department of Public Safety will be the lead Department for the purpose of the Working Group. Under the supervision of the Chairperson, an Operational Planner will provide support to the Working Group in gathering information and producing the final report.
Working Group Composition
Mike Connolly Department
of Public Safety, Chairperson
Karen Hughson Department
of Public Safety
Jim Burns Department
of Justice
Richard Monroe Department
of Natural Resources & Energy
S/Sgt. Brian Griffiths RCMP/Criminal
Operations
Bruce Oliver NB
Federation of Agriculture
Hubert Cyr La Federation
des Agriculteurs et Agricultrices Francophones du N.-B.
Peter deMarsh NB Federation
of Woodlot Owners
Bob Pinette J.D.
Irving Freehold Owners
Steve Mason Crown
Leaseholders - Bowater
Time Frame:
It is expected that Working Group participation would require three or four days work over a two-month period. Therefore it is anticipated that meetings and submission of the report to stakeholders will be completed by August 2000.
4845 Hwy 108
Derby, NB
E1V 5C2
Hon. Milton Sherwood
Minister of Public Safety
Dear Mr. Sherwood,
Recently, I read a copy of the presentation made to the Hon. Percy Mockler by the Federation of Woodlot Owners regarding the theft of wood from private woodlots. I am writing to tell you my own story, to impress upon you the seriousness of this problem and to offer some ideas for solutions.
In 1997 I bought a large woodlot on the Richibucto River. I had no immediate intentions of cutting any wood on it but enjoyed walking through it during the occasional visit. Last fall I received a call from a neighbor telling me that a contractor was cutting the trees on my property. I drove down right away and sure enough the machines were there along with piles of logs ‚ cedar, spruce, hemlock and hardwood. Both the police and a lawyer were contacted but I was told there was nothing they could do without a survey. I proceeded with the survey which clearly showed there was trespass and illegal cutting. At present the contractor is contesting my title to the land which places me in a position of having to "quiet" the title and incur even further expenses. I have also been told by the police that I would need clear title. Even with this, however, the responsibility would be on me to prove the intent to steal. While there is evidence to show that the contractor did intend to steal, proving it became a costly endeavor for me. This is where the situation now stands. As you can see, the present system favors the criminal and leaves very little recourse for the victim. In fact, the victim ends up paying twice and something needs to be done.
During the past several months, I have talked to other victims of this crime. Most of them have done nothing because they either donít have the resources to follow up or believe that it is an exercise in futility. This is a very serious problem. Hundreds of thousands of dollars are being stolen from people around the province and property is being destroyed. Are our current laws inadequate to deal with this or are they just not being enforced? I donít have the answers to these questions but I do know that at every stage from prevention to prosecution and restitution the system is failing the victims of this crime. I have given this problem a great deal of thought and would like to make some recommendations which may help solve this matter. I donít pretend to know all the fine points of the law or the problems other stakeholders in this business face. But I am speaking as a private woodlot owner who has had the misfortune of having my trees cut and stolen and who is attempting to find some justice
RECOMMENDATIONS:
STAGE 1
First and foremost this kind of crime needs to be prevented. I suggest that laws/regulations be put in place requiring contractors:
Forms could be drafted requiring the necessary signatures and the boundary description (deed, survey, markers, etc). These forms could be made available through local woodlot ownersí associations. Regulations such as this would serve to protect honest woodsmen who mistakenly stray over the line as well as discouraging the dishonest ones.
STAGE 2
A process must be put in place so that when a theft occurs, the victim will have recourse to immediate action. I would suggest that police be required to respond to calls at once, particularly when the crime is still in progress and cease operations until the dispute can be rectified. A police report should be made and followed up immediately by a preliminary investigation. Furthermore, I suggest that any purchasing agent for the wood be required to withhold payment for any wood over which there is a dispute as to ownership.
STAGE 3
I understand it is very difficult to get a conviction or restitution for these crimes for reasons previously stated. Therefore, I recommend that the onus be placed on the perpetrator ‚ not on the victim to have a boundary survey done and to show that s/he has the right to the property in question. As it stands now the victim is virtually left with the cost of the survey and quieting of title. An unclear title or unmarked boundary should not give a person the right to steal wood and that is exactly what is happening at this time.
It appears to me that some of this problem stems from the fact that stumpage is what the courts use in ascribing a value to the theft. This is grossly inadequate and unfair. It is imperative that a greater value be assigned to the stolen property. I would argue that since the actual theft occurs when the trees/logs are unlawfully removed from the property that it is the roadside value and not the stumpage value which must be considered. Furthermore, a stump count can only determine the number and kind of tree and not its quality and eventual price. I would suggest that the value assigned to the stolen property be based on the highest price that a specific tree would bring rather than on the lowest which is the current practice. With a significantly greater value being assigned to the stolen property, perpetrators would then be faced with more serious charges and the possibility of more serious penalties. More severe penalties seemed to have worked for things ranging from speeding to drunk driving and shooting wildlife out of season. Likewise, I think that increasing the penalty for theft of wood will act as a real deterrent to would-be thieves.
I would also like to recommend that a value be placed on the forest itself recognizing that it can incur considerable damage (aside from the cutting of trees) when modern forestry production has been carried on. I would suggest that the perpetrator be liable for these damages and that he be required to compensate the victim for the amount equivalent to the value of the stolen property (as previously discussed). The current practice of awarding double the value of the wood can continue, however, it will result in a higher figure as it will be based on a more realistic value of the wood and not on stumpage. I believe this would be a much more acceptable and just solution for the many victims of this crime while at the same time providing another deterrent to potential thieves.
I realize that if these recommendations are implemented some perpetrators may be faced with theft of a considerable amount of money. However, I think that is precisely what it will take to deter illegal cutting and theft of wood in the province of New Brunswick. It will undoubtedly result in a fairer application of the law.
Thank you for hearing my story. I hope it has provided some insight into one individual situation. More importantly, I hope my recommendations provide some avenues to pursue in trying to resolve this complex and critical situation. I would appreciate your thoughts or comments on this matter.
Sincerely,
Elizabeth Bowes
506 622 0034
cc:Hon. Bernard Lord
Hon. Percy Mockler
Hon. Brad Green
Hon. Jeannot Volpe
Table 2
CROWN LANDS and FORESTS ACT INFORMATION FOR 1999
|
Region |
Convicted |
Warning |
Not proceeded |
Unknown |
Pending |
Withdrawn |
Dismissed |
Total |
|
|
|
|
|
|
|
|
|
|
|
1 |
143 |
13 |
12 |
231 |
90 |
5 |
|
494 |
|
|
|
|
|
|
|
|
|
|
|
2 |
13 |
13 |
12 |
8 |
10 |
1 |
|
57 |
|
|
|
|
|
|
|
|
|
|
|
3 |
2 |
10 |
6 |
7 |
8 |
|
|
33 |
|
|
|
|
|
|
|
|
|
|
|
4 |
11 |
15 |
2 |
25 |
15 |
|
|
68 |
|
|
|
|
|
|
|
|
|
|
|
5 |
1 |
1 |
18 |
7 |
4 |
|
|
31 |
|
|
|
|
|
|
|
|
|
|
|
Total |
170 |
52 |
50 |
278 |
127 |
6 |
|
683 |
Select Sections of Provincial Legislation
Crown Lands and Forests Act
67(1) Except as authorized under this or any other Act or a regulation under this or any other Act, or by Minister, no person shall
67(2) A person who violates or fails to comply with subsection (1) commits an offence punishable under Part II of the Provincial Offences Procedures Act as a category H offence.
Provincial Offences Procedures Act
56(8) Where an Act makes an offence punishable as a category H offence, a judge shall impose a fine of not less than two hundred and fifty dollars and not more than ten thousand dollars.
Trespass Act
2.2 No person shall contrary to the regulations made under paragraphs 11.1(d), (e) and (f) trespass by means of a motor vehicle on
3(1) No person shall trespass by means of a motor vehicle on forest land with respect to which he has notice not to trespass.
3(5) A person who violates subsection 2.1(1) or section 2.2 or subsection (1) commits an offence and is liable on summary conviction
3(6) It is a defence to a charge under this section or under subsection 2.1(1) or section 2.2 that the person charged reasonably believed that he had title to or an interest in the land that entitled him to do the act complained of.
6(1) Where a person is convicted of an offence under subsection 2.1(1) or section 2.2 or 3 of this Act, the court may, at the time the penalty is imposed and upon application by a person aggrieved, order the convicted person to pay to the aggrieved person an amount, not exceeding the prevailing limit in relation to small claims in The Court of Queenís Bench of New Brunswick, by way of compensation for loss of or damage to property suffered as a result of the commission of the offence.
Section 462.3, Criminal Code
Updated to: August 31, 1999
PART XII.2
PROCEEDS OF CRIME
Interpretation
Definitions
462.3 In this Part,
"designated drug offence" [Repealed, 1996, c. 19, s. 68]
"designated substance offence" ´ infraction désignée ª
"designated substance offence" means
"enterprise crime offence" ´infraction de criminalité organiséeª
"enterprise crime offence" means
(a) an offence against any of the following provisions, namely,
(i) subsection 99(1) (weapons trafficking),
(i.1) subsection 100(1) (possession for purpose of weapons trafficking),
(i.2) subsection 102(1) (making automatic firearm),
(i.3) subsection 103(1) (importing or exporting knowing it is unauthorized),
(i.4) subsection 104(1) (unauthorized importing or exporting),
(i.5) section 119 (bribery of judicial officers, etc.),
(ii) section 120 (bribery of officers),
(iii) section 121 (frauds on the government),
(iv) section 122 (breach of trust by public officer),
(iv.1) section 123 (municipal corruption),
(iv.2) section 124 (selling or purchasing office),
(iv.3) section 125 (influencing or negotiating appointments or dealing in
offices),
(v) section 163 (corrupting morals),
(v.1) section 163.1 (child pornography),
(vi) subsection 201(1) (keeping gaming or betting house),
(vii) section 202 (betting, pool-selling, book-making, etc.),
(vii.1) paragraph 206(1)(e) (money increment schemes, etc.),
(viii) section 210 (keeping common bawdy-house),
(ix) section 212 (procuring),
(x) section 235 (punishment for murder),
(xi) section 334 (punishment for theft),
(xii) section 344 (punishment for robbery),
(xiii) section 346 (extortion),
(xiii.1) section 347 (criminal interest rate),
(xiv) section 367 (punishment for forgery),
(xv) section 368 (uttering forged document),
(xvi) section 380 (fraud),
(xvii) section 382 (fraudulent manipulation of stock exchange transactions),
(xvii.1) section 394 (fraud in relation to valuable minerals),
(xvii.2) section 394.1 (possession of stolen or fraudulently obtained valuable minerals),
(xviii) section 426 (secret commissions),
(xix) section 433 (arson),
(xx) section 449 (making counterfeit money),
(xxi) section 450 (possession, etc., of counterfeit money),
(xxii) section 452 (uttering, etc., counterfeit money),
(xxiii) section 462.31 (laundering proceeds of crime), or
(xxiv) section 467.1 (participation in criminal organization),
(a.1) any indictable offence under this or any other Act of Parliament committed for the benefit of, at the direction of or in association with a criminal organization for which the maximum punishment is imprisonment for five years or more,
commission of offence) or section 354 (possession of property obtained by
crime), committed in relation to any property, thing or proceeds obtained or
derived directly or indirectly as a result of
(b.1) an offence against section 126.1 or 126.2 or subsection 233(1) or 240(1) of the Excise Act, section 153, 159, 163.1 or 163.2 of the Customs Act or subsection 52.1(9) of the Competition Act, or
"judge" ´jugeª
"judge" means a judge as defined in section 552 or a judge of a superior court of criminal jurisdiction;
"proceeds of crime" ´produits de la criminalitéª
"proceeds of crime" means any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of
substance offence, or
(c) [Repealed, 1993, c. 37, s. 32]
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 25, s. 95, c. 37, s. 32, c. 46, s. 5; 1994, c. 44, s. 29; 1995, c. 39, s. 151; 1996, c. 19, ss. 68, 70; 1997, c. 18, s. 27, c. 23, s. 9; 1998, c. 34, ss. 9, 11; 1999, c. 5, ss. 13, 52.
Proposal for Notice of Intent to Commence Harvest
Often in cases of wood theft, very little attention is paid as to whether the contractor attempted to contact the adjoining landowner(s) before commencing harvest. A method by which a contractor can demonstrate that they did make contact, or failed to do so would be one way to assist the courts in determining when it is dealing with theft and when it is dealing with an honest mistake. For this purpose, forms could be printed and made available at Marketing Board offices which might read as follows:
Notice of Intent to Commence Harvest
Contractor Name
Telephone Number
Address
Date of Harvest
Property Owner
Location
Boundary line has been found? yes
no
If found, evidence used corner post
blazed trees
rock wall
other
Your assistance would be appreciated in:
helping find the line
confirming the evidence found is reliable
Copies of the form would be mailed by registered mail to neighbouring woodlot owners. The contractor would retain one copy.
This information is readily available from Service NB through the Marketing Boards.
Occasionally they are missing an address. As proof of "due diligence", a Marketing Board employee could sign the following:
Contractor Name has made every reasonable effort to locate the name and address of the owner of the woodlot with PID# .
Signed
There are several suggestions as to how this could be avoided:
Sample Observation Record: Rural Crime Prevention Program
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What
is Wood Theft? | What Are Trespassers Doing?
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