Appeals from the Wildlife Act
2009
2009-WIL-026(a)
Allan Pierce v. Regional Manager
Decision Date: October 6,
2009
Panel: Alan Andison
Keywords:
Wildlife Act - s. 19; Permit
Regulation – ss. 3(1)(c)(i), 3(2); disabled hunting
permit; closed season
Allan Pierce appealed a
decision of the Regional Manager, Environmental
Stewardship Division, Skeena Region, Ministry of
Environment (the “Ministry”), refusing to issue Mr.
Pierce a permit authorizing him to hunt in zones within
the Skeena Region that are closed to moose hunting
during the peak of the bull moose rut.
Mr. Pierce initially
applied for a disabled hunter permit, which would allow
him to use a motor vehicle to access areas that are
closed to motor vehicles for the purpose of hunting.
However, before the Regional Manager issued his
decision, Mr. Pierce advised the Ministry that he was
actually seeking a permit authorizing him to hunt in
zones within 400 metres of 21 secondary roads or trails
that are closed to moose hunting for approximately 3
weeks during the peak of the moose rut. In his
submissions to the Board, Mr. Pierce confirmed that he
was seeking a permit to hunt in the areas closed to
moose hunting during the moose rut.
The Board found that Mr.
Pierce provided medical information that supported a
finding that he has a disability to his right leg that
affects his ability to walk, but that information also
indicates that he is able to walk 100 metres while
holding a firearm. The Board also found that Mr. Pierce
was not seeking a permit to hunt in motor vehicle closed
areas in order to accommodate his disability. Rather,
he was seeking a permit that would allow him to hunt in
areas that are closed to all moose hunting during the
peak of the moose rut. The Board found that Mr. Pierce
provided insufficient evidence to establish that being
precluded from hunting in the rut closure areas affects
his personal safety.
In addition, the Board
considered the relevant provisions of the Permit
Regulation, and found that permits authorizing
hunting during a closed season may only be issued for
the purposes specified under section 2(c) of that
regulation. The Board found that Mr. Pierce was either
not seeking the permit for one of the purposes listed,
or it would be unreasonable to issue him a permit under
the circumstances. In particular, the Board held that
the rut closures are for conservation purposes and are
in effect for a short portion of the 3-month open season
for moose, the closures cover a very small portion of
the region, and the closures do not restrict vehicle
access along the roads subject to the rut closures. The
Board found that the proper management of the wildlife
resources must take precedence over Mr. Pierce’s desire
for a convenient hunting opportunity.
Accordingly, the Board
confirmed the Regional Manager’s decision. The appeal
was dismissed.
2009-WIL-018(a)
Jack Martin v. Regional Manager
Decision Date: July 28, 2009
Panel: Alan Andison
Keywords:
Wildlife Act - s. 19; Permit
Regulation – ss. 2, 6; permit; possession; Rocky
Mountain Bighorn Sheep
Jack Martin appealed a
decision of the Regional Manager, Environmental
Stewardship Division, Kootenay Region, Ministry of
Environment (the “Ministry”), refusing to issue Mr.
Martin a permit to possess a cape and set of horns from
a dead Rocky Mountain Bighorn Sheep. In April 2005, Mr.
Martin found the dead ram and had the cape and horns
removed. He asked Ministry staff what he should do
next, and he was advised to take the cape and horns for
inspection at a Ministry office, which he did. At that
time, Mr. Martin indicated that he intended to have the
cape and horns mounted and then would donate them for
public display. Mr. Martin had the cape and horns
mounted by a taxidermist, and then displayed them in his
home.
Approximately two years
later, the Ministry became aware that the cape and horns
were on display in Mr. Martin’s home. Shortly
thereafter, Conservation Officers attended at Mr.
Martin’s home and seized the cape and horns on grounds
that Mr. Martin did not have a permit to possess them.
Ministry staff then advised Mr. Martin that a public
facility was willing to display the mount, and the
Ministry offered to reimburse him for his taxidermy
costs. However, Mr. Martin rejected the offer and
instead applied to the Ministry for a permit to possess
the cape and horns. The Regional Manager refused his
application on the grounds that the cape and horns are
worth over $200, and the Permit Regulation
prohibits the issuance of a permit in these
circumstances.
Mr. Martin appealed to
the Board. Mr. Marin submitted that the Ministry led
him to believe that he could keep the mount after it was
inspected. He requested that the Board issue him a
permit to possess the cape and horns.
The Board found that the
Wildlife Act clearly requires Mr. Martin to have
a permit in order to lawfully possess the cape and
horns. Section 2 of that Act states that
ownership of all wildlife in the province is vested in
the government and a person does not acquire a right of
property in any wildlife except as provided under the
Act. The Board found that Mr. Martin was seeking a
permit under section 2(p) of the Permit Regulation
authorizing a transfer in ownership of the cape and
horns from the government to Mr. Martin. Section
6(1)(d) of the Permit Regulation clearly
prohibits the issuance of such a permit if the value of
the wildlife parts exceeds $200, subject to two
exceptions that did not apply in this case. There was
no dispute that the value of the cape and horns exceeds
$200. Further, the Board found that there was no
evidence that the Ministry misled Mr. Martin. The Board
commended the Ministry for offering an alternative that
it hoped would be acceptable to Mr. Martin.
Accordingly, the Board
confirmed the Regional Manager’s decision. The appeal
was dismissed.
2009-WIL-001(a)
Richard F. Horning v. Deputy Director, Wildlife
Decision Date: June 11, 2009
Panel: Alan Andison
Keywords:
Wildlife Act – ss. 24(2),
24(5); unlawful hunting; unlawful guiding; licence
cancellation; period of ineligibility; delay
Richard F. Horning
appealed a decision of the Deputy Director of Wildlife,
Ministry of Environment (the “Ministry”), to cancel his
hunting privileges for five years and require him to
successfully complete the Conservation Outdoor
Recreation Education program prior to the reinstatement
of his hunting privileges.
The events that led to
the licensing action against Mr. Horning occurred in
December 1998. Mr. Horning took an American on a guided
hunt in which the American killed a cougar. Mr. Horning
was not a licensed guide. Mr. Horning then cancelled
another person’s cougar species licence and made false
statements on a Ministry inspection form, to hide the
illegal activities. He also made false statements on a
Ministry inspection form regarding a cougar he had
shot. In December 2000, following an investigation by
Conservation Officers, Mr. Horning was convicted of
unlawfully acting as a guide, making a false statement
to a Conservation Officer, and unlawfully using another
person’s hunting licences.
In 2005, a former Deputy
Director sent a letter to Mr. Horning notifying him that
his hunting privileges may be cancelled. However, Mr.
Horning did not receive that notice. In October 2007,
the Deputy Director sent another notice to Mr. Horning,
which he received. Mr. Horning sent
a brief response to the Deputy Director, in which he
expressed surprise that licensing action was still being
considered. In December 2008, the Deputy
Director issued his decision. He found that an
eight-year period of cancellation was appropriate given
Mr. Horning’s actions, but the Deputy Director reduced
the period by three years to account for the Ministry’s
delay in taking licensing action.
Mr. Horning appealed and
asked the Board to eliminate the period of cancellation.
The Board found that a
five-year cancellation period, rather than eight years,
properly
reflects the seriousness of Mr. Horning’s
contraventions, their effect on wildlife resources, and
an appropriate level of deterrence, compared to other
situations involving illegal guiding and illegal
hunting. Regarding deterrence, the Board found that Mr.
Horning had continued to hunt since his convictions and
had not committed any further contraventions. The Board
held that, given the length of time since the
contraventions occurred, and Mr. Horning’s clean record
since then, specific deterrence was not a significant
consideration.
The
Board then considered mitigating factors. The Board
found that Mr. Horning showed some remorse in his
submissions to the Board, and this warranted a reduction
of six months. The Board agreed with the Deputy
Director that a three-year reduction due to the
Ministry’s delay was appropriate. Consequently, the
Board found that Mr. Horning’s hunting privileges should
be cancelled for a total of 1 year and six months, after
mitigating factors were considered.
Accordingly, the appeal
was allowed, in part.
2009-WIL-022(c)
Jack Leggett v. Director, Wildlife Branch (Freshwater
Fisheries Society of BC; Ministry of Environment,
Fisheries Program, Third Parties)
Decision Date: May 22, 2009
Panel: Gabriella Lang
Keywords:
Wildlife Act – ss. 86;
Freshwater Fish Regulation – ss. 2, 3; permit;
kokanee salmon; fish stocking; jurisdiction;
recreational angling; precautionary principle
Jack Leggett appealed a
decision of the Director of Wildlife, Ministry of
Environment (the “Ministry”), to issue a permit to
possess and transport
live kokanee salmon from a fish hatchery
to Chimney Lake, near Williams Lake, BC. The Permit was
issued to the Freshwater Fisheries Society of BC (the
“Society), which sought to stock Chimney Lake with
kokanee salmon for recreational anglers. The Permit
formed part of an authorization that included permission
to transfer live fish within BC pursuant to a regulation
under the federal Fisheries Act. Mr. Leggett
appealed on the basis that stocking the lake with
kokanee could result in irreparable harm to the lake’s
ecosystem and recreational trout fishery.
Before the appeal was
heard, Mr. Leggett requested a stay of the permit
pending the Board’s decisions on the merits of the
appeal. Also, the Director challenged Mr. Leggett’s
standing to appeal the permit. In a decision dated
April 28, 2009, the Board found that Mr. Leggett had
standing to appeal the permit, and the Board granted his
stay application. The Board also ordered that the
appeal be heard on an expedited basis (Jack Leggett
v. Director, Fish and Wildlife,
Decision No.
2009-WIL-022(a) & (b)).
The day before the appeal
hearing commenced, the Ministry’s Fisheries Program
advised Mr. Leggett that it was considering using
Ministry wildlife officers to transport and release the
kokanee into Chimney Lake, regardless of the appeal
process and the stay ordered by the Board. This was
brought to the Board’s attention at the start of the
hearing, and the Board was asked to rule on whether the
hearing should proceed given this position by the
Fisheries Program. The Fisheries Program submitted that
section 86 of the Wildlife Act gives wildlife
officers immunity from the offence provisions in section
2 of the Freshwater Fish Regulation, which
prohibit the possession and transport of live fish
without a permit. The Board found that section 86 is
inapplicable in this case, where there is a regulatory
requirement to obtain a permit to possess and transport
the kokanee, and there is no need for an officer to
commit an offence in the course of carrying out their
duties, such as to deal with dangerous or injured
wildlife. In addition, the Board found that even if the
Fisheries Program stocked the lake with kokanee
regardless of the stay order, this would not end the
appeal because the Board has express jurisdiction under
the Wildlife Act to conduct an appeal as a new
hearing of the matter, and to make any decision that the
Director could have made.
Also at the beginning of
the hearing, the Director submitted that the Board
should only consider evidence regarding the permit,
which was limited to authorizing the possession and
transport of the fish, and not the transfer of the fish
into Chimney Lake, which was covered by the federal
authorization. However, the Board held that the
Director issued the permit in order to get the fish to
the lake as part of a Ministry’s stocking plan for
Chimney Lake, and the permit is a tool that enables the
Ministry to carry out its stocking plan. Without the
stocking plan, there would be no need for the permit.
Consequently, the Board found that it had jurisdiction
to consider the Ministry’s stocking plan for Chimney
Lake as one of the factors that the Director considered
when he issued the permit.
Finally, the Board
considered whether the permit should be rescinded.
Based on the evidence, the Board found that Mr. Leggett
had identified valid concerns about stocking kokanee in
Chimney Lake, but the Director had adequately assessed
the potential environmental risks associated with the
stocking when he considered whether to issue the
permit. The Board held that there was some scientific
uncertainty about the potential environmental effects of
stocking the lake with kokanee, and that the Ministry’s
mandate includes protecting and conserving environmental
resources. However, the Board found that the potential
risks in this case are low, and the Wildlife Act
does not require that the precautionary principle be
applied. In addition, the Board noted that the Ministry
has committed to managing the risks associated with
kokanee stocking through monitoring and risk
assessment. The Board also found that the Ministry’s
mandate includes both protecting the environment and
managing environmental resources for economic and social
benefit, and in this case, stocking the lake is
consistent with the Ministry’s goal of enhancing
recreational angling opportunities. For all of these
reasons, the Board confirmed the Director’s decision to
issue the permit.
Accordingly, the Board
dismissed the appeal and rescinded its previously issued
stay order.
2009-WIL-022(a)
& (b)
Jack Leggett v. Director, Fish and Wildlife (Freshwater
Fisheries Society of BC, Third Party)
Decision Date: April 28, 2009
Panel: Alan Andison
Keywords:
Wildlife Act – ss. 101, 101.1;
standing to appeal; “affected person”; stay application;
angling licence; Kokanee salmon; fish stocking
Jack Leggett appealed a
decision of the Director, Fish and Wildlife, Ministry of
Environment (the “Ministry”), to issue a permit to
possess and transport
live Kokanee salmon from a fish hatchery
to Chimney Lake, near Williams Lake, BC. The Permit was
issued to the Freshwater Fisheries Society of BC (the
“Society), which sought to stock Chimney Lake with
Kokanee salmon for recreational anglers.
In his Notice of Appeal,
Mr. Leggett requested a stay of the permit pending the
Board’s decision on the merits of his appeal. Shortly
after the appeal was filed,
the Director challenged Mr. Leggett’s standing to appeal
the permit, and requested an expedited hearing of the
matter.
Accordingly, the Board requested submissions from the
parties regarding: 1) Mr. Leggett’s standing as a
“person affected” to appeal the permit under sections
101(1) and 101.1 of the Wildlife Act (the
“Act”); and 2) the stay application.
Regarding Mr. Leggett’s
standing to bring the appeal, the Board found that he
holds a valid angling licence issued
under the Act and the
Angling and Scientific Collection
Regulation,
and his angling licence is a “licence” within the
meaning of section 101(1) of the Act. The Board
further held that a number of factors distinguish Mr.
Leggett from most other holders of BC resident angling
licences: he has fished on Chimney Lake since 1970; he
lives near the Lake; he is a Director of the Chimney
Felker Lake Landholders Association; and, he has
actively opposed the stocking proposal for several
years. Although any one of those factors alone are
determinative of whether he is an affected person, his
possession of a valid angling licence, together with
those factors establish that he is in a position to be
more affected by the permit than other holders of BC
resident angling licences who do not share those
circumstances. Consequently, the Board found that Mr.
Leggett is an “affected person” in relation to the
Permit, as contemplated in sections 101 and 101.1 of the
Act, and therefore, he has standing to appeal the
permit
Regarding the stay
application, the Board applied the three-step legal test
for a stay set out in
RJR-Macdonald Inc. v. Canada (Attorney General)
(1994), 111 D.L.R. (4th) 385 (S.C.C.).
First, the Board found that the appeal raised serious
issues to be decided, particularly regarding the
potential adverse effects of Kokanee stocking on trout
fishing opportunities and on the ecology of Chimney
Lake. Second, the Board found that
denying the stay would
cause irreparable harm to Mr. Leggett’s interests,
because the permit would remain operable and the Society
could transport Kokanee to Chimney Lake for release as
soon as the Lake conditions were suitable. Once the
Kokanee are released, there is no way to reverse that
action, and there would be no remedy available to Mr.
Leggett if his appeal was successful. Thus, if the stay
was denied, Mr. Leggett’s appeal rights could be
severely prejudiced and his appeal would become moot,
just a previous appeal he filed with the Board in 2008
regarding a similar permit became moot when the Ministry
released Kokanee into Chimney Lake (Jack Leggett v.
Director, Fish and Wildlife,
Appeal No. 2008-WIL-006(a),
July 16, 2008).
Third,
in weighing the balance of convenience, the Board
considered that the interests represented by the
Director include the public interest in stocking the
Lake with Kokanee to increase the number and variety of
recreational angling opportunities, and the associated
economic benefits. The Panel has also considered the
limited time frame for the Kokanee stocking to occur,
and that, if the stocking did not proceed within that
time frame, it would likely have to be abandoned as
there could be high mortality of juvenile Kokanee, and
the economic benefit from increased angler opportunities
in 2009 may be reduced. However,
the Board found that the potential harm
to the Director’s interests, if a stay was granted,
would be limited to a one-year stocking loss, which may
be mitigated by the stocking of an alternate lake.
The Board concluded that the irreparable harm to Mr.
Leggett’s interests, if the stay was denied, outweighed
the potential harm to the Director’s interests,
if the stay was granted.
Finally, the Board found that the public interest would
be served if the appeal was heard on an expedited basis,
preferably before the expiry of the 2009 Kokanee
stocking period.
Accordingly, the Board
found that Mr. Leggett has standing to appeal the
permit, and the Board granted his application for a stay
of the permit pending a decision on the merits of the
appeal. The Board also ordered that the appeal be heard
on an expedited basis.
2009-WIL-002(b)
Pacific Northwest Raptors Ltd. v. Regional Manager
Decision Date: April 3, 2009
Panel: Alan Andison
Pacific Northwest Raptors
Ltd. (“PNWR”) appealed a decision of the Regional
Manager, Recreational Fisheries and Wildlife Program,
Vancouver Island Region, Ministry of Environment (the
“Ministry”), refusing PNWR’s application for a special
permit to rehabilitate a juvenile male bald eagle.
PNWR operates a falconry
centre for commercial and educational purposes. PNWR
holds permits that authorize its commercial and
educational activities. One of those permits also allows
PNWR to temporarily hold or care for injured raptors for
a maximum of two weeks. PNWR applied for the special
permit so that PNWR could hold the eagle for a longer
period of time while rehabilitating it using “free
flying” falconry techniques.
In February 5, 2009, the
Regional Manager denied the permit application on the
basis that Ministry policy is to issue such permits only
if a designated wildlife rehabilitation centre, zoo, or
permitted wildlife research project is not available to
care for the animal, and in this case, a designated
wildlife rehabilitation centre had space for the eagle
and would provide a flight pen environment for
rehabilitation.
PNWR appealed the
Regional Manager’s decision, and requested a stay of the
decision until the Board could decide the merits of the
appeal.
On February 13, 2009, the
Board denied the application for a stay (Decision
No. 2009-WIL-002(a)).
On February 16, 2009,
PNWR advised the Board
that the eagle was no longer in PNWR’s
possession, as it had returned to the wild. In spite of
this, PNWR advised that it would like to proceed with
the appeal. PNWR submitted that the appeal should
proceed because the same type of situation would likely
recur in the future.
The
Board applied the test for mootness set out in
Borowski v. The Attorney General of Canada, [1989] 1
S.C.R. 342. The Board found that there was no “live
controversy” between the parties because the eagle was
no longer in PNWR’s possession. The Board also held that
its authority is limited to the decision under appeal,
and therefore, it has no authority to make orders
affecting future decisions by the Regional Manager.
Moreover, if PNWR applies for a permit in the future,
and if PNWR is not satisfied with the decision on that
application, PNWR may file an appeal with the Board.
In
addition, the Board noted that, although 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 taken
place, and where in the interests of judicial economy,
the Board was in a position to comment. However, in the
present case, no submissions on the merits of the appeal
had been filed and no hearing has commenced before the
appeal became moot.
Accordingly, the appeal was dismissed.
2009-WIL-002(a)
Pacific Northwest Raptors Ltd. v. Regional Manager
Decision Date: February
13, 2009
Panel: Alan Andison
Keywords:
Wildlife Act – s. 101.1(6); stay
application; permit
Pacific Northwest Raptors
Ltd. (“PNWR”) applied for a stay of a decision of the
Regional Manager, Recreational Fisheries and Wildlife
Program, Vancouver Island Region, Ministry of
Environment (the “Ministry”), refusing PNWR’s
application for a special permit to rehabilitate a
juvenile male bald eagle.
PNWR operates a falconry
centre for commercial and educational purposes. PNWR
holds permits that authorize its commercial and
educational activities. One of those permits also
allows PNWR to hold or care for injured raptors for the
purpose of rehabilitation, but only for a maximum of two
weeks.
In July 2008, PNWR
received the juvenile eagle, which had a broken wing. A
veterinarian operated on the eagle’s wing to repair it.
Shortly after receiving the eagle, PNWR wrote to the
Ministry to advise that it had the eagle and that the
eagle required rehabilitation. In the letter, PNWR
asked the Ministry whether PNWR should apply for a
special permit for the eagle. Subsequently, PNWR began
flight training with the eagle using “free flying”
falconry techniques.
On December 11, 2008,
PNWR applied to the Ministry for a special
rehabilitation permit for the eagle.
On February 10, 2009, the
Regional Manager denied the permit application on the
basis that Ministry policy is to issue such permits only
if a designated wildlife rehabilitation centre, zoo, or
permitted wildlife research project is not available to
care for the animal, and in this case, a designated
wildlife rehabilitation centre had space for the eagle
and would provide a flight pen environment for
rehabilitation.
PNWR appealed the
Regional Manager’s decision, and requested a stay of the
decision until the Board could decide the merits of the
appeal.
The Board applied the
legal test for a stay set out in
RJR-Macdonald Inc. v. Canada (Attorney General)
(1994), 111 D.L.R. (4th) 385 (S.C.C.).
Specifically, the Board found that the appeal raised
serious issues to be decided, particularly regarding the
appropriate method of rehabilitation for the eagle.
However, the Board found that
PNWR failed to
establish that its interests would suffer irreparable
harm if a stay was denied pending the outcome of the
appeal. In addition, the Board found that the balance
of convenience favoured denying a stay. In that regard,
the Board found that the question of the appropriate
rehabilitation for the eagle was central to the appeal
and should not be decided based on preliminary
submissions in a stay application. The Board also held
that the Regional Manager’s decision was, on its face,
consistent with the legislation and with the proper
management of the province’s wildlife resources, and
was, therefore, in the public interest. On that basis,
the Board concluded that any potential harm to PNWR’s
interests, if a stay was denied, did not outweigh the
public interest in the continued application of the
Regional Manager’s decision.
Accordingly, the
application for a stay was denied.
2008-WIL-011a)
Arthur Ryckman v. Director of Wildlife
Decision Date: January
21, 2009
Panel: Alan Andison
Keywords:
Wildlife Act – s. 19;
Motor Vehicle Prohibition Regulation;
permit; hunting;
physical disability; consent order
Arthur Ryckman appealed a
decision of the Director of Wildlife, Ministry of
Environment, refusing Mr. Ryckman’s application for a
disabled hunting permit exempting him from the Motor
Vehicle Prohibition Regulation (the “Regulation”).
Mr. Ryckman applied for a permit on the basis that he
has a physical disability and he requires the use of a
motor vehicle to access certain areas for the purposes
of hunting, that are otherwise closed to motor vehicles
under the Regulation.
Sections 2 and 3 of the Regulation
make it an offence to operate a motor vehicle in
designated closed areas unless an exemption is granted
under section 19 of the Wildlife Act and section
3(2)(a) of the Permit Regulation.
The parties negotiated an
agreement before the appeal was heard by the Board.
Accordingly, by consent of the parties, the Board
ordered that: the Director’s decision is reversed; Mr.
Ryckman has a physical disability for the purposes of
his permit application; and, the Director is directed to
consider issuing the requested permit to Mr. Ryckman if
Mr. Ryckman still wanted a permit for the remainder of
the hunting season.
The appeal was allowed,
in part.
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