Appeals from the Wildlife Act
2008
2008-WIL-006(a)
Jack Leggett v. Director, Fish and Wildlife (Tom
Wilkinson, Licence Holder)
Decision Date: July 16,
2008
Panel: Alan Andison
Keywords:
Wildlife Act – s. 15; licence; moot appeal;
Kokanee salmon; fish stocking;
Borowski v. The Attorney General of
Canada,
[1989] 1 S.C.R. 342
Jack
Leggett appealed a decision of the Director, Fish and
Wildlife, Ministry of Environment (the “Ministry”),
issuing a licence to possess and transport Kokanee
salmon. The licence was issued to a Fish and wildlife
Specialist with the Ministry as part of the Ministry’s
decision to stock Chimney Lake, near Williams Lake, with
a diversity of fish species for recreational anglers.
Mr. Leggett appealed on various grounds, including a
concern that the Kokanee may successfully spawn in the
lake, thus competing with the existing rainbow trout
population and invading a downstream lake. He asked the
Board to reverse the decision to issue the licence.
After Mr. Leggett had filed his appeal,
he advised the Board that the Kokanee salmon had been
transported to and deposited into the lake. In spite of
this, Mr. Leggett advised that he would like to proceed
with his appeal.
The
Board sought submissions from the other parties on Mr.
Leggett’s request to proceed with the appeal, given that
the Kokanee were already in the lake.
The
Board considered whether it should hear the appeal when
all rights under the licence have been exercised.
Specifically, Board considered the test for mootness
that was set out by the Supreme Court of Canada in
Borowski v. The Attorney General of Canada.
The
Board found that, given its statutory powers in deciding
appeals, it could not grant a remedy that would have any
effect on the parties’ rights; namely, it could not
order that the Kokanee be removed from the lake. The
also Board found that its authority is limited to the
decision under appeal, and therefore, it has no
jurisdiction to make an order preventing future
introductions of Kokanee into the lake.
In
addition, the Board noted that holding a hearing and
making a decision on this appeal would require the
expenditure of significant resources, without the
benefit of an effective remedy. While there have been
cases where the Board has found an appeal moot but
provided some guidance to the parties for future
reference, this has normally occurred when the issue of
mootness was identified after the hearing had already
occurred, and where in the interests of judicial economy
(i.e., to avoid repetition of the case), the Board was
in a position to comment. That was not the situation in
this case.
The
appeal was dismissed.
2008-WIL-005(a)
Ronald Janzen v. Regional Manager
Decision Date: July 4,
2008
Panel: Alan Andison
Keywords:
Wildlife Act - s. 19; Permit
Regulation – ss. 2, 6; permit; possession; cougar
Ronald Janzen appealed a
decision of the Regional Manager, Environmental
Stewardship Division, Kootenay Region, Ministry of
Environment (the “Ministry”), refusing to issue Mr.
Janzen a permit to possess a dead juvenile cougar. Mr.
Janzen requested that the Board reverse the Regional
Manager’s decision and require the Regional Manager to
issue him a permit to possess the cougar.
The Board found that Mr.
Janzen did not qualify for a permit under section 2(k)
of the Permit Regulation (the “Regulation”)
because he did not intend to use for any of the purposes
listed under that section; namely, scientific,
educational, societal or ceremonial purposes.
The Board considered
whether he could be issued a permit for personal use
under section 2(p) of the Regulation. Section
6(1)(d) of the Regulation indicates that permits
cannot be issued under section 2(p) if the value of the
wildlife is greater than $200. The Board noted that the
Regional Manager had relied, in part, on section 6(1)(d)
in denying Mr. Janzen’s application, but the Regional
Manager had not provided reasons in his decision for the
conclusion that the cougar was worth over $200. The
Board found that the Regional Manager’s failure to
explain in his decision how he had determined the
cougar’s value was a breach of procedural fairness.
However, the Board found that the defect was cured by
the appeal process because the Regional Manager provided
the Board with an explanation and supporting information
for his decision, and therefore, the Board was able to
evaluate the merits of the appeal.
Based
on the information provided by the Regional Manager
regarding the average auction values for cougars and
other wild cats, the Board found that a permit could not
be issued in this case because the value of the cougar
is greater than $200. Mr. Janzen provided no evidence
to contradict the Regional Manager’s evidence, nor did
Mr. Janzen provide information regarding the
circumstances under which he found and retrieved the
cougar. Therefore, the Board was unable to evaluate
whether special circumstances existed to justify
granting a permit in this case. There was also no
indication that Mr. Janzen fits into any of the
exceptions listed in sections 6(1)(d)(i) or (ii) of the
Regulation. Specifically, there was no
indication that he would be receiving the cougar as
compensation for conducting work on behalf of the
government, or that he was applying for the permit on
behalf of a charitable organization in B.C.
Consequently, the Board agreed with the Regional Manager
that Mr. Janzen’s permit application must be denied, in
accordance with the Regulation.
The appeal was
dismissed.
2008-WIL-004(a)
Kelly Hassell v. Regional Manager
Decision Date: July 4,
2008
Panel: Alan Andison
Keywords:
Wildlife Act - s. 19; Permit
Regulation – ss. 2, 6; permit; possession; wolverine
Kelly Hassell appealed a
decision of the Regional Manager, Environmental
Stewardship Division, Skeena Region, Ministry of
Environment (the “Ministry”), refusing to issue Mr.
Hassell a permit to possess a dead wolverine. Mr.
Hassell applied for the permit after finding the dead
wolverine beside a highway. Mr. Hassell requested that
the Board reverse the Regional Manager’s decision and
require the Regional Manager to issue him a permit to
possess the wolverine for educational purposes.
The Board noted that the
Regional Manager had relied, in part, on section 6(1)(d)
of the Permit Regulation (the “Regulation”)
in denying Mr. Hassell’s application. Section 6(1)(d)
of the Regulation indicates that permits cannot
be issued under section 2(p) for personal use if the
value of the wildlife is greater than $200. The
Regional Manager’s decision stated that the wolverine
was worth more than $200, and therefore, a permit for
personal possession could not be issued under section
2(p). There was no indication that the Regional Manager
had considered whether Mr. Hassell should be granted a
permit under section 2(k) for educational purposes. The
Board noted that the restrictions in section 6(1) of the
Regulation regarding wildlife valued at over $200
do not apply to permits issued under section 2(k).
There was no information regarding whether Mr. Hassell
had indicated in his permit application that he sought
to possess the wolverine for educational purposes.
However, the Board noted that it is authorized under
section 101.1(4) of the Wildlife Act to conduct
an appeal by way of a new hearing, and therefore, the
Board considered the merits of Mr. Hassell’s request
based on his appeal submissions.
The Board found that Mr.
Hassell qualified for a permit under section 2(k) of the
Regulation because he intended to use the
wolverine for educational purposes. Specifically, he
intended to use it as a learning instrument in local
schools. In support of his appeal, Mr. Hassell provided
two letters from staff at local schools. The Board
found that there was no indication that Mr. Hassell had
any intention of disposing of the wolverine for personal
financial gain, and in any case, a permit issued under
section 2(k) does not transfer the “right of property”
in wildlife. Consequently, if Mr. Hassell is issued a
permit under section 2(k) to possess the wolverine, the
government retains the right of property in the
wolverine, and Mr. Hassell has no right to sell it.
Finally, the Board found
that issuing a permit to Mr. Hassell under section 2(k)
was not contrary to the proper management of wildlife
resources, as required by section 5(1)(b) of the
Regulation.
Accordingly, the Board
reversed the Regional Manager’s decision, and ordered
that a permit be issued to Mr. Hassell allowing him to
possess the wolverine for educational purposes.
The appeal was allowed.
2008-WIL-003(a)
A. Stanley Daykin v. Regional Manager
Decision Date: June 10,
2008
Panel: Alan Andison
Keywords:
Wildlife Act - s. 19; Permit
Regulation – ss. 2, 6; permit; possession; Northern
Hawk Owl
A. Stanley Daykin
appealed a decision of the Regional Manager,
Environmental Stewardship Division, Skeena Region,
Ministry of Environment (the “Ministry”), refusing to
issue Mr. Daykin a permit to possess a dead Northern
Hawk Owl. Mr. Daykin applied for the permit after
finding the dead owl. He intended to display the owl in
his home where it could be viewed by family, friends and
business clients. Mr. Daykin requested that the Board
reverse the Regional Manager’s decision and require the
Regional Manager to issue him a permit to possess the
owl.
The Board found that Mr.
Daykin did not qualify for a permit under section 2(k)
of the Permit Regulation (the “Regulation”)
because he did not intend to use for any of the purposes
listed under that section; namely, scientific,
educational, societal or ceremonial purposes.
The Board considered
whether he could be issued a permit for personal use
under section 2(p) of the Regulation. Section
6(1)(d) of the Regulation indicates that permits
cannot be issued under section 2(p) if the value of the
wildlife is greater than $200. The Board noted that the
Regional Manager had relied, in part, on section 6(1)(d)
in denying Mr. Daykin’s application, but the Regional
Manager had not provided reasons in his decision for the
conclusion that the owl was worth over $200, and he
provided no appeal submissions to support his decision.
In addition, the Board noted that section 6(2) of the
Regulation sets out the process for determining the
value of wildlife for the purposes of possession permit
applications, but the decision contained no indication
that the Regional Manager had followed that process.
The Board found that the
Regional Manager’s failure to explain in his decision
how he had determined the owl’s value to be over $200
was a serious defect in the decision-making process.
Further, the Board found that the defect was not cured
by the appeal process because the Regional Manager had
provided no information or submissions to the Board.
The Board concluded that the inadequacy of the reasons
for the Regional Manager’s decision amounted to a denial
of procedural fairness.
However, the Board also
found that Mr. Daykin had provided no evidence regarding
the value of the owl, the owl’s size and condition, or
the circumstances under which he found it. Therefore,
the Board was unable to evaluate whether a permit should
be granted.
Accordingly, the Board
decided to send the matter back to the Regional Manager
for a new decision with proper reasons regarding the
value of the owl.
The appeal was allowed,
in part.
2007-WIL-002(a) Darwin Cary v. Regional Wildlife
Manager (BC Wildlife Federation, Participant)
Decision Date: May 28,
2008
Panel: Robert Wickett
Keywords:
Wildlife Act -
ss. 60; guide outfitter; quota; thinhorn mountain sheep;
Ministry policy guidelines
Darwin Cary appealed
a decision of the Regional Manager, Wildlife Stewardship
Division, Ministry of Environment (the “Ministry”), to
issue Mr. Cary a quota of 10 thinhorn mountain sheep in
2007, and to set his allocation for 2007 to 2011 at 49
sheep. Mr. Cary is a licensed guide outfitter, which
means that he has the exclusive right to guide
non-resident hunters within his guide outfitter area
located in the northeast part of the province. Guide
outfitters must obtain annual licences that specify
quotas for big game species, in this case thinhorn
mountain sheep.
Mr. Cary argued that
his quota should not have been reduced from 12 in 2006
to 10 in 2007. He submitted that 13% of the total
population of thinhorn mountain sheep live in his guide
outfitter area, and therefore, he should receive 13% of
the total allocation of sheep available to guide
outfitters, which would result in an increase of his
quota to 15 sheep. Mr. Cary also appealed the Regional
Manager’s decision not to apply certain policy
guidelines.
The Board found that
the Mr. Cary’s allocation of 10 sheep was reasonable in
the circumstances. The Board noted that all guide
outfitters received a 19% reduction in their quotas.
The Board held that the Regional Manager acted
reasonably in making the same percentage reduction to
all guide outfitters, and that the Regional Manager
considered the matter extensively before he reached his
decision.
The Board also held
that the Regional Manager considered the relevant
policies, and applied them fairly in deciding Mr. Cary’s
quota. Specifically, the Regional Manager fairly
applied a Ministry policy issued in 2007 that called for
a reduction in the total sheep allocation in the
province, as well as a reduction in the proportion of
sheep allocated to guide outfitters in the province so
that a greater proportion could be allocated to resident
hunters. Further, the Board found that the Regional
Manager applied other Ministry policies in a consistent
manner in deciding Mr. Cary’s quota.
The appeal was
dismissed.
2007-WIL-009(a)
Brian Chanski v. Regional Manager
Decision Date:
March 7, 2008
Panel: Gabriella Lang
Keywords:
Wildlife Act – s. 19; Permit Regulation –
s. 3; Motor Vehicle Prohibition Regulation – s.
2, 3; motor vehicle closed areas; motor vehicle hunting
closed areas; physical disability; discrimination;
accommodation; duty to give reasons; costs
In May 2007, Mr. Chanski applied for a
permit to exempt him from the prohibition against
operating a motor vehicle in areas closed to motor
vehicles, as set out in the Motor Vehicle Prohibition
Regulation, which designates hunting areas in which
motor vehicles may not be operated. The application was
based upon his physical disability. The Regional
Manager, Environmental Stewardship (the “Regional
Manager”), issued a permit granting Mr. Chanski access
to four of the thirty-six closed areas Mr. Chanski had
requested access to. Mr. Chanski appealed the Regional
Manager’s decision on the basis that the Regional
Manager failed to accommodate him as a disabled hunter
by not granting all of the exemptions he had requested.
Mr. Chanski also applied for costs.
The Board confirmed that regulatory
bodies have a duty, under human rights legislation and
judicial decisions, to accommodate persons with
disabilities, unless they can establish that
accommodation would result in undue hardship. In the
context of disabled hunters seeking to use a motor
vehicle to hunt in areas that have been closed to motor
vehicles, this involves balancing the rights of the
disabled hunter against the reasons for the closure.
Closures may be motivated by the goals of reducing
hunting pressure on wildlife, or protecting the
environment from impacts associated with motor vehicle
use, for example.
Turning to the case at hand, the Board
found that Mr. Chanski’s application was not
sufficiently specific about the roads he wished to be
granted vehicle access to, the species to be hunted and
the timing of hunts for the Regional Manager to assess
the extent to which the requested closed areas would
have been impacted by motor vehicle access. However, the
Board also found that the Regional Manager’s decision to
grant access to four of the thirty-six closed areas
requested, without providing reasons for that decision,
did not amount to reasonable accommodation. The Regional
Manager should have assessed each of the closed areas
identified in Mr. Chanski’s application and should have
determined on a case-by-case basis whether accommodating
Mr. Chanski would have resulted in undue hardship in
each area. The Regional Manager should also have
provided reasons when denying access to a particular
area.
Turning to the question of remedy, the
Board determined that, although the Board had the
jurisdiction to make a new decision in relation to the
permit, it was unable to do so based on the information
that was available. Neither party had provided
sufficient information for the Board to make a new
decision on the thirty-two remaining closed areas.
Therefore, the matter was sent back to the Regional
Manager with directions to consult with Mr. Chanski
about the specific hunting locations, species and
hunting times, and to issue a new permit within two
weeks of Mr. Chanski providing the required information.
Accordingly, the appeal was allowed.
The application for costs was denied on the basis that
there were no special circumstances in this case to
warrant an order for costs.
2005-WIL-010(a) Jeffrey Scouten v. Deputy
Director of Wildlife
Decision Date:
January 22, 2008
Panel: Robert Wickett
Keywords:
Wildlife Act: s. 33(2), s.
48(1); hunting licence cancellation; period of
ineligibility; admissions
Mr. Scouten appealed
the decision of the Deputy Director of Wildlife (the
“Deputy Director”), Ministry of Environment, to cancel
his hunting licence and to declare him ineligible to
hunt or obtain or renew a hunting licence for a period
of 25 years. The decision arose out of an undercover
investigation concluded in 2000, and Mr. Scouten’s
subsequent conviction in Provincial Court for various
offences under the Wildlife Act, including
illegal possession of wildlife parts and illegally
acting as a hunting guide.
Mr. Scouten asked
the Board to reduce or eliminate the period of
ineligibility. Two issues were raised in the appeal. The
first issue was whether the Deputy Director took into
account irrelevant factors, including a number of other
charges for which Mr. Scouten was acquitted. The second
issue was whether the period of ineligibility should be
eliminated or reduced in the circumstances.
Regarding the first
issue, the Board found that the Deputy Director did not
consider any irrelevant factors when making his
decision. He properly considered the evidence based on
the information that was before him at the time.
However, the Board considered the matter anew, with the
benefit of hearing from both Mr. Scouten and the Deputy
Director, and reached its own conclusions about the
evidence for the purposes of determining the appropriate
period of ineligibility.
Turning to the
second issue, the Board found that it was appropriate to
consider not only the offences for which Mr. Scouten was
convicted, but also his admissions in respect of a
number of other offences as aggravating factors, as they
showed a flagrant disregard for wildlife laws. However,
in light of the factual uncertainty surrounding these
unproven offences and previous Board decisions wherein
periods of ineligibility were considered, the Board
found that a 25 year period of ineligibility was
excessive. Therefore, the Board reduced the period of
ineligibility to 17 years.
The appeal was
allowed, in part.
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