Olson v. British Columbia (Ministry of Environment Wildlife
Branch, Director)

Between
Fred Olson, Petitioner, and
James Walker, the Director of the Wildlife Branch of the
Ministry of Environment and Parks of British Columbia, James
Hatter, Wayne N. Wiebe, John D. Innes, George Pedneault, Dawn
M. Welsh, Respondents, and
Guide Outfitters Association of British Columbia, Intervenor

Duncan Registry No. 2286

[1989] B.C.J. No. 1579

British Columbia Supreme Court
Nanaimo, British Columbia
Huddart J.

Heard: June 20, June 27, June 30 and July 4, 1989
Judgment: August 21, 1989

   Counsel for the Petitioner:  G.P. Molnar.
   Counsel for the Respondent, James Walker & The Attorney General of British Columbia:  H.M. Groberman.
   Counsel for the Respondent, Wayne N. Wiebe:  T.L. Robertson, Q.C.
   Counsel for the Intervenor:  J.F. Galati.

   HUDDART J.:— At issue in this judicial review proceeding is whether the Environmental Appeal Board may substitute its discretion for that of the Director of the Wildlife Branch of the Ministry of Environment and Parks.

    Fred Olson is a Guide Outfitter licensed under the Wildlife Act to guide non-resident hunters for big game in the Cowichan area of Vancouver Island. He seeks an order in the nature of mandamus to compel the Director of the Wildlife Branch to carry out a decision of the Environmental Appeal Board.

   If that decision is interpreted as the petitioner believes it should be, it offends the principle of exclusivity "of big game hunting areas which underlies the policy of the branch with regard to Guide Outfitters." The Guide Outfitters Association of British Columbia supports the Branch's policy of exclusivity. I granted its application to intervene on that issue only, considering that its counsel could provide the court with an independent view of that issue.

   Although the Environmental Appeal Board knew that Mr. Wiebe was challenging its right to substitute its view for that of the Director, and thus the validity of its order, the Board did not appear. All who did appear agreed that this court should exercise its discretion not to make the order sought if, after hearing full argument, I should conclude that the order was beyond the jurisdiction of the Board.

Background

   A change in the policy of the Wildlife Branch regarding elk hunting on Vancouver Island is at the root of the dispute between the Branch, the Guide Outfitters Association, Mr Wiebe, and Mr Olson. Early that year the Wildlife Branch, with the concurrence of the interested Guide Outfitters, parcelled almost all of Vancouver Island into exclusive guiding areas and granted all those areas except Management Unit 1.09 to Guide Outfitters then guiding on Vancouver Island. Management Unit 1.09 was not given to any Guide Outfitter as it was contemplated by the Wildlife Branch and the Guide Outfitters that it would be set aside as an area in which those guides who did not have huntable populations of elk available in their area might guide for elk. Later that year the Branch offered Management Unit 1.09 to interested Guide Outfitters. The tender did not include elk as one of the big game species for which the exclusive right to guide was offered. The successful bidder, Wayne N. Wiebe, held the licence for the adjoining area. His licence was amended to include Management Unit 1.09. His licence included the exclusive right to guide for elk in his area. Thus, he obtained the right to guide for elk in Management Unit 1.09.

   In early 1984 the Wildlife Branch allocated seven elk permits to three of the seven guides in the Vancouver Island Region. Each obtained the elk quota available in his or her exclusive guiding area. Mr. Wiebe obtained a permit for the three elk in Management Unit 1.09. Mr. Olson's application for one non-I resident Roosevelt elk quota was refused by the Deputy Director. Mr. Olson appealed that decision pursuant to section 103(3)(c) of the Wildlife Act.

   A one man panel of that Board heard the appeal on November 18, 1985 and rendered its decision on January 16, 1986.

      The Decision of the Environmental Appeal Board

   The issue before the Board was whether Mr. Olson was entitled to an elk quota for 1985. The Board decided he was but in January, 1986 it could not remedy the wrong done in 1985. Instead it fashioned a more creative and far-reaching remedy in these terms:

The essence of the Board's reasons for making that order can be found in the fourth ground for appeal:

The meaning of the decision of the Board is clear. It requires the pooling of all elk quotas in Region 1 and their division on an equitable basis among all Guide Outfitters licensed to guide in Region 1, including those with exclusive guiding areas where no huntable population of elk exists. If the Guide Outfitter in whose guiding area the elk quota was to be made available withheld his or her permission the Director was to make the elk quota available to a resident hunter. This necessarily implies that the Director could refuse to grant an elk quota to the Guide Outfitter refusing permission without offending the decision.

      The Director's Position

   The Director contends that he has followed faithfully the directions of the Board in granting the subsequent non-resident elk quotas and says that a non-resident elk quota has not been granted to Mr Olson because none of the Guide Outfitters with licences in the exclusive guiding areas in which elk quotas have been made available has consented to Mr. Olson receiving a quota for his or her area. The Director did not follow the recommendation of the Board that he remove a quota from the list of elk available to Guide Outfitters and make it available to a resident hunter.

   The Director distinguished between the directions given by the Board in its decision and its recommendations, arguing that the recommendations were not intended to be mandatory nor would it be within the jurisdiction of the Board to make them so. In essence, the Director interpreted the Board's decision to conform with his view of the scope of its authority. The wording of the decision encourages such a restrictive interpretation. The words may have been chosen because of the Board's concern as to its authority to require the Director to do that which it decided was appropriate in order to ensure the fair and equitable treatment of Guide Outfitters on Vancouver Island.

   In accordance with his interpretation of the decision, the Director issued elk quotas on March 31, 1986, only to the Guide Outfitters with licenses to guide non-resident hunters in the area where the elk quotas were available. Early in 1988 he issued seven elk quotas, all to the one Guide Outfitter in whose area the huntable elk existed. He did not comply with the Board's decision as I have interpreted it in either 1986 or 1988.

      Jurisdiction of the Environmental Appeal Board

   Once it appears that a public body has neglected or refused to perform a statutory duty to a person entitled to its exercise then mandamus issues ex debito justitiae if there is no other convenient remedy: Rex ex rel Lee v. Workman's Compensation Board, [1942] 2 W.W.R. 129 (C.A.). Counsel for the Director does not disagree. The issue then becomes whether the Board was acting within its jurisdiction when it made the decision in question.

   The Environmental Appeal Board is a statutory body to which certain appeals may be taken pursuant to s. 103 of the Wildlife Act. The relevant parts of that section read as follows:

   The Board and the Director are limited in hearing appeals to the matters set out in subsection (1). On a liberal reading of the appeal provision the Board may have the authority to deal with the granting of quotas pursuant to s. 60 of the Act. Section 60 provides: 9

   The issue before the Board was the Director's "reason for rejecting the appellant's request for a non-resident elk quota." The Board found that Mr Olson should have been given such a quota for the 1985 season. Mr. Olson held a guide outfitter licence for management units 1.03 and 1.04. He was not seeking to have a quota attached to that licence under s. 60. Rather, he was seeking a permit to guide in Mr. Wiebe's area under s. 71. The Director's ability to issue a quota in management unit 1.09 to the petitioner was dependent on an exercise of authority under this section, the relevant portion of which reads:

   That section allows the Director to authorize a guide outfitter to guide in an area other than that shown on his certificate. That power necessarily includes the power to reject an application for such a permit.

   The Director argues that the Board does not have authority to hear appeals from decisions under s. 71 of the Act because "a decision to authorize such guiding (or a decision to refrain from authorizing such guiding) is not a decision that 'affects a licence, permit, registration of a trapline or guide outfitter's certificate held by a person"'. He did not mention section 103(1)(b) which allows an appeal of a decision that affects an application for a permit.

   This issue was not argued fully before me. I prefer not to consider it when a decision is not necessary because of the conclusion I have reached on Mr Wiebe's argument.

      Mr Wiebe's Position

   Mr Wiebe argues that the Board does not have the power to exercise the discretion to issue permits under s. 71 of the Wildlife Act. Certainly the Board was not given that power in clear and unequivocal language. That discretion was given to the Regional Manager and therefore to the Director and the Deputy Director. (Section 102(1) of the Act grants to the Director the I power to do anything that a regional manager is empowered to do. Section 23 of the Interoretation Act gives the Deputy Director the powers of the Director.) While the Director has broad policy making powers with respect to the implementation of the Wildlife Act, whether on an appeal from a decision of a regional manager or otherwise, the Environmental Appeal Board has a more limited mandate. The Board is limited to its statutory powers under section 103(5). It may dismiss the appeal or send the matter back to the Regional Manager or Director with directions.

   I do not consider that those powers include the power to substitute its opinion for that of the Director where his decision was reached in the lawful exercise of his discretion.

   In reaching the conclusion that the Board substituted its opinion for the opinion of the Director when it made the decision on Mr Olson's appeal, I have been mindful that this court should not intervene in decisions of statutory tribunals without giving respect and serious regard to their views. The Environmental Appeal Board undoubtedly possesses an expertise with respect to the matters with which it deals that this court does ngt. It was constituted under the Environment Management Act to hear appeals under various enactments, all having to do with our environment. The powers given to it by those enactments vary significantly. For example, under the Pesticide Control Act the Board, sitting as the Pesticide Control Appeal Board, may "make an order it considers appropriate" on an appeal. Under the Water Act the Board "may ... make any order that to the tribunal appears just ...". Under the Waste Man nt Act it may "confirm, reverse or vary the decision appealed from, and make any decision that the person whose decision is appealed could have made and that the board considers appropriate in the circumstances." It would not be surprising if the Board had difficulty in interpreting and exercising its powers under the Wildlife Act, given its powers under these other enactments. Notwithstanding such difficulties, the wording of the decision suggests that the Board understood correctly that it should not interfere with the exercise of a statutory discretion lawfully exercised under the Wildlife Act, that it had no power to simply substitute a different opinion for that of the Director. Yet the decision of the Board, as Mr. Olson and I read it, contravenes that understanding.

   The Appeal Board's duty on the appeal was to determine whether the Director properly exercised his discretion, that is to say "bona fide uninfluenced by irrelevant considerations and not arbitrarily or illegally" (D.R. Fraser & Co. Ltd. v. M.N.R., [1948] 4 D.L.R. 776 at p. 784 (P.C.). The Appeal Board varied the decision of the Director regarding Mr Olson's application for a permit to hunt elk in 1985 without finding an improper exercise of discretion. In doing that it exceeded its jurisdiction.

   It did more than merely vary the decision of the Director regarding the 1985 quota. In its decision the Board sought to revamp the administrative policy regarding elk quota established by those charged with that responsibility under the Act. The practical effect of its decision would be to change the policy of exclusivity of guiding areas which is fundamental to the policy of the Branch for the management of wildlife in British Columbia. It fashioned a remedy to attempt to ensure equality of hunting opportunities for guide outfitters. While the Act provides for equality of opportunity in bidding on guiding areas, equality of hunting opportunities for Guide Outfitters is not its primary focus. Read in its entirety, the Act focuses on the effective management of wildlife as a resource for the residents of British Columbia. The Legislature has given to the officers of the Wildlife Branch the task of making the difficult decisions between conflicting interests that wildlife management requires. It has given to the Environmental Appeal Board the task of ensuring that those officers make those decisions fairly, not the power to alter the general policies of the Branch.

   Were this an application pursuant to s. 7 of the Judicial Review Procedure Act I would set the decision aside. Mr. Molnar on behalf of the petitioner concedes that there is no privative clause protecting the decisions of the Environmental Appeal Board as they derive from the power given to it under the Wildlife Act. Thus, he concedes, error of law in the Board's reasons is sufficient to invalidate them: United Brotherhood of Carpenters and Joiners of America, Local 1928 v. Citation Industries Limited, Employment Standards Board and Attorney General of British Columbia (1984) 54 B.C.L.R. 283 (C.A.).

   I refuse to enforce the decision of the Environmental Appeal Board.

HUDDART J.