Ministry of Environment. and Parks JUDGEMENT:

Transcription

1 Province of British Columbia Ministry of Environment and Parks ENVIRONMENTAL Victoria British Columbia V8V 1X5 APPEAL BOARD APPEAL NO. 86/27 W'LIFE JUDGEMENT: In the appeal against the decision of the Deputy Director of the Wildlife Branch, dated May 12, 1986, dismissing an appeal from a decision of the Regional Manager, dated November 13, 1985, to refuse an extension of a guiding territory. APPELLANT: Mr. Barry Brandow

2 APPEAL NO. 86/27 W'LIFE PAGE 2 Hearing Details: The hearing was held in Vancouver, B. C., on 27th January, The Panel of the Board was: Mr. H.D.C. Hunter, Chairman Miss S. Mitchell, Secretary to the Board, acted as Recorder. Appellant: Mr. Barry Brandow, represented by Mr. Donald L. Nundal, Counsel Respondent: Mr. D.R. Halladay, represented by Mr. Paul Jarman, Counsel Mr. Guy P. Woods, Wildlife Biologist in charge of the area in question gave evidence. Before the hearing itself commenced, the Chairman, having given notice to the parties, requested argument whether he had jurisdiction to hear the appeal. Counsel for both parties made submissions. The Chairman reserved his decision on the matter and proceeded to hear the appeal on its merits in order to avoid further delay and expense. DECISION ON THE PRELIMINARY MATTER: Three of the four statutes providing appeals to the Board give very broad grounds for appeal. The wildlife Act, in stark contrast, provides very narrow grounds for appeal. They are set out in Section 103. This limits the grounds of appeal to a decision "that affects, (a) a licence, permit, registration of a trapline or guide outfitter's certificate held by a person, or (b) an application by a person for anything referred to in paragraph (a)." From the decision appealed from, it appeared that the Deputy Director had decided that the matter fell under Section 66 of the Act, which requires that when an area is to be opened as a certificated guiding territory, it must be put up for tender. Such a decision would not be appealable, as no guide has any right until a tender has been accepted.

3 APPEAL NO. 86/27 W'LIFE PAGE 3 The parties in their argument produced evidence to show that the original application was to add an area without tender to an existing territory. This "affected" the existing guiding certificate. The position is not clear and it is trite law that an administrative tribunal such as the Environmental Appeal Board only has the jurisdiction given by statute. and it cannot enlarge this jurisdiction even though all parties agree or even request it to do so. The provisions establishing the Board appear to have the intention of allowing appeals to a board independent of the civil service by members of the public. This suggests that the Board should accept appeals unless the appeal is clearly outside its jurisdiction. Under these circumstances, the matter not being clear, the Board accepts this appeal as being within its jurisdiction. The decision appealed from "affects" the viability of an existing licence. Some suggestion was made that the notice of appeal had not been served in accordance with the statutory regulations. It is obvious that no one was put under any disadvantage, and the Board will not reject the appeal on these grounds. Turning now to the appeal on its merits, the parties agreed to submit the following documents as exhibits: Exhibit 1 - Letter dated June 10, 1986, by Mr. Nundal to the Ministry of Environment (Notice of Appeal). Exhibit 2 - Letter dated May 12, 1986, from Mr. Ha11aday to Mr. Brandow (decision appealed from). Exhibit 3 - Transcript of the hearing of January 21, 1986, before Mr. Ha11aday.

4 APPEAL NO. 86/27 W'LIFE PAGE 4 Exhibit 4 - Tabbed book of documents entitled List of Exhibits: Tab 1 is a separate booklet entitled List of Documents. Tab 2 is a separate booklet entitled Supplementary List of Documents January 21st, Tab 3 is a separate Map 82E/SE Grand Forks. Tab 4 is a Map (Exhibit 4 in previous proceedings) Mr. Nundal did not call any witnesses in support of his appeal but relied on the evidence and documents at previous hearings or as produced in response to requests at the previous hearings. The appellant is a guide, but concentrates almost entirely on black bear. Other big game in his territory is not in great demand, nor is it particularly plentiful. Although the number of bear in his territory does not seem to have declined significantly, the size of the individual animals has, and, therefore, the number of animals his hunters are demanding has declined. The area to the east of his territory is not allocated to any guide. He has had a permit to guide in the area for three years and he can access it from his area. The number of trophy-sized bear in this area is significant. If he was permitted to incorporate this area into his territory, the pressure on bears in his existing territory would be reduced. The decline in trophy-sized bear in his territory was having an adverse effect on the viability of his business because of its very high overheads. His high overheads were due in large measure to the size of his territory and the problem of accessing the hunting areas.

5 APPEAL NO. 86/27 W'LIFE PhGE 5 The area for which he was asking was not allocated to anyone, access from the Arrow Lakes was restricted, and the terrain was extremely difficult. It was the basis of his appeal that the area applied for was a fractional area as referred to in a decision of Mr. D.S. Robinson, Director of the Wildlife Branch, in an appeal by Mr. L. Ouellet, dated May 23rd, 1984, and, therefore, Section 66 of the Act did not apply. Mr. Jarman called Mr. Guy Woods to give evidence on behalf of the Respondent. Mr. Woods, having been sworn, gave his qualifications and confirmed his position as a wildlife Biologist in charge of the West Kootenay area, which included the area applied for. Mr. Brandow's territory is outside the Kootenay Region, but this would not prevent the addition for which application was made. Mr. Woods then explained his opinion, set out in Tab 7 of Tab 1, Exhibit 4. The whole region is considered as a unit, not individual territories, quotas for particular species are on a regional basis, and the policy of allocating animals between resident and non-resident hunters is on a regional basis, but, in fact, cannot be precisely maintained. Under cross-examination by Mr. Nundal, Mr. Woods pointed out that it was policy not to issue permits in lieu of licences. They were for particular surpluses or problemsj although they could only be cancelled with difficulty, they could easily not be renewed. This was known to the Appellant and he had admitted this.

6 APPEAL NO. 86/27 ~'LIFE PAGE 6 The area applied for is not in itself suitable as a territory, but could be incorporated into part of a territory. The West Kootenay has a larger area of unallocated land than most of the province, and it was Branch policy to keep it this way. The heavy allocations in East Kootenay upset the desired balance between resident and non-resident hunters, and any further allocation of territory would make this balance worse. In summing up, both counsel urged the Board to read the transcript of the previous proceedings and they adopted the respective arguments made at that time. The Board has read the transcripts and the exhibits and has carefully considered the presentations made to it. There seem to be two aspects to the appeal: first, is the Branch permitted as a matter of law to add the area applied for to an existing territory without following the procedure laid out in Section 66 of the Act. It appears to be undisputed that if Section 66 applies, the Appellant only has a right to put in a tender for the area, and in this case, there would be no right of appeal. The Act is silent on making adjustments to the boundaries of an existing territory. Section 66 applies where "there is a newly designated or activated guiding area". The area applied for is not designated, but if added to the Appellant's territory, would become "a designated guiding area". It appears to the Board that the Branch must have some inherent power to amend the boundaries of certificated territoriesi otherwise, everything is cast in stone like "the law of Medes and Persians which altereth not". On the other hand, there is the obvious requirement, illustrated by Section 66, that the resources of the Province should not be given away without a proper financial return.

7 APPEAL NO. 86/27 W'LIFE PAGE 7 The Director in the Ouellet decision was obviously of the same opinion. A decision by a government official is not a legal precedent binding on another person, even one holding exactly the same position. It would not be binding on an appeal tribunal having the power to reverse that decision. In this case, the decision can be distinguished. The Director relied on the fact that Mr. Ouellet had had a permit to guide in the area applied for "for many years". The decision does not say how many. In the instant case, the Director had been mindful of his decision and had urged the Regional Manager not to issue a permit "for many years", and the Regional Manager had informed the Appellant of this situation. There is nothing in the Ouellet decision to indicate the size of the original territory nor of the area applied for. In the instant case, the addition is a very substantial area. The evidence of the Appellant is that size alone is not the main criterion; criteria include the number and distribution of animals and problems of access. In the case under appeal, the area under application is about 25% of the territory. It could be considered more than an "adjustment" of the boundaries. It is the Board's decision that the Branch has some authority to alter the boundaries of a guiding territory without invoking Section 66 of the Act. It is a matter of degree. It is also clear that it is a matter of discretion whether to open up a new area for guiding, clearly invoking Section 66, or whether to adjust existing boundaries. Anyone may ask that this be done; no one has the right to demand that it be done. The Branch has put forward consistently two main arguments against taking the course the Appellant has requested. It is a policy not to restrict any further the rights of resident hunters in the region. Permitting guiding in the open area would inevitably restrict the rights of the residents. Information, admittedly rather empirical, indicated no over-abundance of target species.

8 APPEAL NO. 86/27 W'LIFE PAGE 8 Secondly, to grant the request would forego revenue to the Province. If the area is to be added to an existing territory without resorting to Section 66, the addition would have to be at no cost to the guide. If the area ever is included in a guide territory, there will be some revenue to the Province. An unchallenged estimate was in the area of $26 i OOO. A guide outfitter is in business - he has some ability to adjust to changing circumstances. There is no obligation on the Branch to tell him how to manage his business, nor to help him out of troubles which are clearly not of the Branch's making. They doubtless will assist where such assistance does not break the law, go against the Branch's policies or set a precedent. The overwhelming evidence is that the Regional Manager and the Director considered carefully the submissions and arguments of the Appellant, and considered also the policies and mandate of the Branch as set out in the Act and policy directives, whether officially adopted or distributed as drafts. The Appellant has not persuaded the Board that the discretion was wrongly exercised; indeed, the Board would probably have reached the same decisior on the evidence before it. In view of the abov, the Board does not have to rule specifically whether Sec ion 66 of the Act governs. However, it is the opinion of the Board that the area applied for is too large to be treated as a "adjustment of boundaries". The appeal is dismi sed. fp ' C / / 0:::. \ ~ tt'- V H.D.C. Hunter, Panel Chairman, Environmental Appeal Board Victoria, B. C. March I ~, 1987