Ministry of Environment JUDGEMENT

Transcription

1 Province of British Columbia Ministry of Environment ENVIRONMENTAL APPEAL BOARD Vlc\orla British Columbia V8V t X5 Appeal No. 84/21 W'Life JUDGEMENT Appeal by James Steven Mohr against the decision of the Director of the Fish and Wildlife Branch of the Ministry of Environment, Province of British Columbia APPELLANT Mr. James Steven Mohr

2 Appeal No. 84/21 W'Life Page 2 DECISION The Panel of the Environmental Appeal Board, authorized under the Wildlife Act and the Environment Management Act to hear the appeal by James Steven Mohr against the decision of the Director of the Fish and Wildlife Branch in the matter of Certification of Management Unit 2-02 as part of Mr. Leo Ouellet's guide area, has considered all the evidence submitted to it at the hearing held in Vancouver on October 30, 1984, and has decided to return this matter to the Director of the Fish and Wildlife Branch, and to direct him to review fully the allocation of Management unit 2-02; such review to include consideration of all the evidence presented at this appeal as summarized in the following pages, and also to include consultation with the Appellant and the Ouellets. In reaching its decision, the Panel has,first of all, dealt with the question of Mr. Mohr's right to appeal to the Environmental Appeal Board and has judged him to have that right as an aggrieved person. (The arguments on this point are covered in some detail in subsequent pages). In deciding to return the matter of the allocation of guiding rights in MU 2-2 to the Director for his review, the Panel has been influenced by a number of factors, among which the following may be listed: 1. Management unit 2-2 was historically included with MU's 2-9 and 2-10 in the Fraser Guide Block. 2. The decision not to include MU 2-2 with the tender of MU's 2-9 and 2-10 in 1983 was made by the Regional Manager, Tom Wood, based on his belief that the bear population was not sufficient to support both guiding and resident hunting. 3. Mr. Ouellet held a guide outfitter's licence that included MU's 2-9, 2-10, and 2-2 from 1971 to Mr. Ouellet applied for MU 2-2 in 1983 and his application was refused by Tom Wood, again because Mr. Wood felt the bear population was insufficient. 5. Mr. Ouellet appealed Mr. Wood's decision to the Director and the latter, after considering all the evidence put before him at that appeal hearing,decided that there was sufficient bear population in MU 2-2 to support both guiding and resident hunting.... /3

3 Appeal No. 84/21 W'Life page 3 6. If the Director is correct in his decision, then Mr. Wood was overly conservative and could have included MU 2-2 with MU's 2-9 and 2-10 in the 1983 tender. In this case, Mr. Mohr and Mr. Ouellet would have enjoyed an equal opportunity to bid on the tender and acquire guiding rights for MU 2-2. The above factors lead the Panel to feel that, through no fault of his own, Mr. Mohr has been deprived of a chance to obtain guiding rights in MU 2-2. Rather, this has come about as a result of differences of opinion within the Fish and Wildlife Branch. First, Mr. Wood, acting in all sincerity, removed MU 2-2 from the 1983 tender and so gave every indication that the area was not available for guiding. Mr. Mohr seems to have accepted this decision. Subsequently, the Director decided that the area was available for guiding and proceeded directly to award it to Mr. Ouellet with no opportunity given to Mr. Mohr to express his interest or to make a submission on his own behalf. 7. In his evidence, Mr. Bone explained that "over the years, when a guide makes application for them (i.e. for one of the small unallocated areas), by agreement with the other guides concerned, they have been given wholly to one guide or divided among two or three guides. This is the normal allocation which has been made for many years." The Panel feels that Mr. Bone's statement that normal allocation of the small areas has been made "by agreement with the other guides", is important. The present allocation of MU 2-2 to form a part of Mr. Ouellet's guiding area has been made without this agreement with other guides and, thus, seems to have been a departure from established past policy. 8. None of the parties to the appeal to the Environmental Appeal Board argued that the Director, having decided that MU 2-2 could support guiding, should have tendered the area. The Panel agrees that if MU 2-2 does not constitute an economically viable guiding area on its own merits, there is little purpose to be served in a public tender and, indeed, Mr. Bone confirmed that it has not been the practice to tender these small areas. A decision not... /4

4 -Appeal No. 84/2l W'Life Page 4 to go to public tender should more than ever emphasize the need for consultation with all those guides who may have a legitimate interest in the area in question. 9. Counsel for Mr. Mohr has asked the Panel to allocate MU 2-2 to Mr. Mohr or to Mr. Ouellet. The Panel has neither the authority nor the expertise to make such a decision. By returning this matter to the Director for careful review, the Panel feels assured that both Mr. 0nellet and Mr. Mohr will be given a fair hearing and that al~ pertinent factors will be taken into account in reaching a final decision. R.F. Patterson, Ph.D., Panel Chairman, Environmental Appeal Board vi ct.o r i.a r vn. C. December 20th I /5

5 Appeal No. 84/21 W'Life Page 5 SUMMARY: The following pages of this Judgement contain a summary of the hearing details and of the main points brought forward in the testimony and summations of the parties to the appeal. R.F. Patterson, Ph.D., Panel Chairman, Environmental Appeal Board Victoria, B. C. December 20th, /6

6 Appeal NO. 84/21 W' Life page 6 HEARING DETAILS; The hearing was held by a Panel of the Board at the Media Centre, Robson Square, Vancouver, on October 30, The Panel of the Board in attendance were: R. F. Patterson, Ph.D., - Lou Osipov, P.Eng. P.D. Meyers, LL.B. Chairman Member Member Miss Shirley Mitchell, Executive Secretary to the Board, acted as Recorder of the proceedings. REASON FOR APPEAL; The appeal was taken under Section 103 of the Wildlife Act against the decision of the Director of the Fish and Wildlife Branch to include Management Unit 2-02 as part of the Guide Outfitter Certificate of Mr. Leo Ouellet on the grounds that the Appellant, Mr. Steve Mohr, did not receive sufficient consideration in the process of allocation of MU APPELLANT'S REPRESENTATIVES: Mr. L. A. MacDonald Spokesman Barrister & Solicitor Messrs. Patten, Barrett & MacDonald 9245 Main Street Chilliwack, B. C. Mr. James Steven Mohr - Appellant and Witness Mr. Tom Wood - Witness Regional Manager, Region 2, Fish & Wildlife Branch... /7

7 Appeal No. 84/21 W'Life page 7 REPRESENTATIVES OF DIRECTOR, FISH & WILDLIFE BRANCH: Ms. Judith Wayte, Barrister & Solicitor, Ministry of Attorney-General, Mr. J.N. Bone, Guides Administrator, Wildlife Branch Ministry of Environment Spokesman Witness REPRESENTATIVES OF LEO OUELLET: Mr. T. L. Robertson, Spokesman Barrister & Solicitor, Messrs. Robertson, Peck, Thompson & Casilio, Burrard Street, Vancouver, B. C. Mr. Leo Ouellet, Witness EXHIBITS: EXHIBIT 1 - Estimate of Black Bear Population in MU 2-2. Signed by B.K. Gilbert, Feb. 7, EXHIBIT 2 - Opinion on Black Bear harvests in MU 2-2 by Mitchell K. Taylor, Faculty of Forestry, university of British Columbia. EXHIBIT 3 - Expert opinion on estimate of Black Bear population in MU 2-2. Letter to Robertson and Peck, Barristers & Solicitors, from B.K. Gilbert, Assistant professor, College of Natural Resources, Utah State University, Logan, Utah. EXHIBIT 4 - Respondent's Exhibit List titled "In the Matter of the Wildlife Act, S.B.C. 1982, C. 5, and in the Matter of Guide Outfitter's Certificate and Leo Ouellet.

8 hppeql No. 84/2l W'Life page 8 EXHIBITS (Continued) EXHIBIT 5 - Qualifications of witness Forbes, at Director's hearing. EXHIBIT 6 - Letter to Leo Ouellet from Tom Wood, Regional Manager, Lower Mainland Region. EXHIBIT 7 - Copies of Fish & Wildlife Branch Permits issued to Leo Ouellet. Permits numbered 17052, 17043, 17059, 03861, 03863, 03865, 03867, 03879, 03824, and EXHIBIT 8 - Transcript of Hearing held by the Director of the Fish & Wildlife Branch in victoria on February 22nd, EXHIBIT 9 - Copy of Guide outfitter's Certificate for Management Units 2-9 and 2-10, issued to James Steven Mohr on August 24, EXHIBIT 10- Copies of six Guide Outfitter's Licences issued to Leo Ouellet in 1971, 1972, 1973, 1974, 1975 and EXHIBIT 11- Letter to D.J. Robinson from E.C. Meslow, Oregon State University, Corvallis, Oregon, re an evaluation of the validity of density estimates and allowable harvest levels for black bear in MU /9,

9 Appeal No. B4/2l W'Life Page 9 OBJECTION TO HEARING OF THIS APPEAL BY THE ENVIRONMENTAL APPEAL BOARD. At the beginning of the hearing, Mr. Robertson, counsel for Mr. Ouellet, raised "a preliminary objection: namely, whether Mr. Mohr has any standing under the Wildlife Act to bring this appeal in the first instance". Mr. Robertson went on to say that Mr. Mohr must be a person aggrieved and that, in his opinion, "Mr. Mohr is no more aggrieved than any other member of the public or any other guide outfitter in the province". Mr. Robertson said that there is no statutory requirement that the Director must give notice to a person holding a guide outfitter's licence for an adjacent area and nothing that renders Mr. Mohr aggrieved under Section 103 than any other member of the public. Section 103 speaks of "the person aggrieved", and Mr. Robertson stated that it is his opinion that the person aggrieved in this case would have to be either Ouellet or Wood, as they were the parties concerned. Mr. MacDonald, counsel for Mr. Mohr, responded by stating that: (1) the only possible interested parties in MU 2-2 are Leo Ouellet and Steve Mohr~ (2) an area cannot be awarded arbitrarily, or to the first person who asks for it~ (3) the Director has said that if only one person applies, or if other interested parties have agreed, then the decision on awarding is simple. This is not the case here as Mr. Mohr was not consulted, and did not agree~ (4) Mr. Mohr is, therefore, an aggrieved person under Section 103 of the Wildlife Act~ (5) Mr. Mohr has been deprived of his right to apply for MU 2-2 by the issuing of the certificate to Mr. Ouellet. Both Messrs. Robertson and MacDonald returned to this subject in their final summations..../10

10 Appeal No. 84/21 W'Life page 10 Mr. Robertson said, "I see no legal right that exists for Mr. Mohr to be heard before the Director or this tribunal on the policy decision that was made by the Director that Mr. Ouellet was the suitable person to have this fractional area added to his territory. There is nothing in the statute nor in the policy sense that would give the Director the legal obligation to have heard a submission from Mr. Mohr at his hearing". Mr. Robertson referred as well to the language of the Environmental Appeal Board procedural document of December 12, 1983, which states, "the appellant is the aggrieved party of the decision made by the Director in relation to his licence, permit or registration". Mr. Robertson felt that the author of this document had not contemplated intervention by any of the guide outfitters whose territory might touch on a territory about which the Director makes a decision. Mr. Robertson concluded by saying that unless the Director has erred in law, the matter is beyond the jurisdiction of the Environmental Appeal Board and the appeal should be dismissed. Alternatively, if the Environmental Appeal Board feels that there has been an error in law in the Director's decision, then the matter should be sent back to the Director with direction. The direction should include corrections of error in law or procedures, or admissibility of evidence, that were made by the tribunal that heard the case before. In summing up for the Appellant, Mr. MacDonald stated that the arguments put forward by Mr. Robertson lead to the position that Mr. Mohr doesn't have any rights; the regional manager can do whatever he wants, even though it affects Mr. Mohr; the regional manager (or the director) can make sure that Mr. Mohr doesn't have an interest by granting the area to somebody else; Mr. Mohr doesn't have any opportunity to make representation as to why he should or should not get an area. Mr. MacDonald concluded on this subject by stating that there is an administrative obligation to be fair. If a person is affected by a decision, he should have the right to appeal since he did not have the right to appear earlier. There is no question that Mr. Mohr is affected. There are only three people in the Province that are affected by this decision. It is not a question of saying that any member of the public can come in and appeal the decision. The affected parties have a right to know what is going to happen, an opportunity to be heard, and an opportunity to make submissions..../11

11 Appeal No. g4/2l W'Life Page 11 The Panel has considered all arguments and evidence presented on the question of Mr. Mohr's status. While Mr. Robertson has suggested that the Wildlife Act may be narrowly interpreted to deny Mr. Mohr the status of "aggrieved person", the Panel cannot accept, in any ordinary sense of the words, that "Mr. Mohr is no more aggrieved that any other member of the public or any other guide outfitter in the province". A dictionary definition of "aggrieved" is "injuriously affected", and surely Mr. Mohr's competitive position as a guide outfitter has been injuriously affected by the Director'p decision to add MU 2-2 to Mr. Ouellet's certificate rather than to his. other members of the public and other guide outfitters in the province are not so affected. The Panel feels that Section 103 of the Wildlife Act is intended to provide an appeal to the Director against a decision of the regional manager by any guide outfitter harmed by the decision and, similarly, an appeal to the Environmental Appeal Board against a decision of the Director by any guide outfitter harmfully affected by the Director's decision. It is difficult to foresee any problems arising from this interpretation. The Panel finds itself in good agreement with Lord Denning of the privy Council in the case of the Attorney General of Gambia v N'Jie 2 ALL.R He states: "The words "persons aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests." The Panel feels that Mr. Mohr has a sufficient interest for this purpose and, therefore, overrules the objection raised by Mr. Ouellet's counsel, and accepts Mr. Mohr as an aggrieved person within the meaning of Section 103 of the Wildlife Act and, therefore, entitled to have his appeal heard by the Environmental Appeal Board.... /12

12 Appeal No. 84/2l W'Life page 12 SUMMARY OF PRINCIPAL POINTS ALLEGED IN TESTIMONY OF APPELLANT: 1. Mr. Mohr's original guiding experience was obtained in the united States. He came to Canada in 1972 and has worked here as an Assistant Guide outfitter prior to obtaining his own Certificate. 2. Mr. Mohr described the difficulties of getting started as a newly accredited Guide Outfitter. He described the use of booking agents, of advertising, and of attendance at outdoor shows as means of attracting clients, and emphasized that all were costly. 3. Mr. Mohr maintains a pack of dogs especially trained for hunting and put a value of $1,000 to $3,000 on each dog. 4. Mr. Mohr now has a job as a representative of the Carpenter's Union in the Fraser Valley. He explained that this is a part-time job and one from which he is able to get time off to act as a Guide. It has been his intent for many years to become a guide full-time. 5 The guiding market is extremely competitive. increase in his guiding area or in his quotas Mohr's competitive position and permit him to his advertising and obtain more clients. Any helps Mr. increase.../13

13 Appea~ No. 84/21 W'Life Page 13 ADDITIONAL POINTS BROUGHT OUT IN CROSS-EXAMINATION OF APPELLANT; 1. Mr. Mohr took four bears under his guiding certificate in the season. He has taken nuisance bears on occasion and has personally hunted in MU Mr. Mohr had no clients between July, 1983, when he obtained his licence, and December, Booking agents were unable to help him. 3. Mr. Mohr paid $16,000 to obtain the Certificate for MUs 2-9 and He had no knowledge of other bids made for these areas. 4. Mr. Mohr said that he began applying for a guiding licence as early as At that time, it was his understanding that MU 2-2 was part of the Fraser Guide Block together with MUs 2-9 and Over the years, he was aware that MU 2-2 had been held under Permit by Leo Ouellet. He then heard that it was no longer available - that it had been decided there would be no further guiding in the area. 5. Mr. Mohr felt that MUs 2-9 and 2-10 were of doubtful economic viability but that he would have a good chance of succeeding with the addition of Mu When MUs 2-9 and 2-10 were tendered in 1983 without the inclusion of MU 2-2, this confirmed what Mr. Mohr had already heard about the withdrawal of MU 2-2. He, therefore, ceased to pursue MU 2-2 and said that he was unaware at that time that if he applied to the regional manager for MU 2-2 and was refused, he could appeal to the Director. 7. Judy Wayte questioned Mr. Mohr's qualifications in 1977 when he first applied for a licence. Mr. Mohr pointed out that the Act provides discretion to the Director to lift these requirements. (Section 102). Mr. Mohr had signed an affidavit as to his guiding experience in the United States to prove his qualifications..../14

14 Appeal No. 84/2l w'life page 14 EVIDENCE OF MR. TOM WOOD, REGIONAL MANAGER: 1. Areas 2-9 and 2-10 were tendered in Until about the mid 70's, 2-9 and 2-10 were part of the Fraser Guide Block, together with portions of 2-2 and possibly some of Mr. Ouellet had a licence to guide for nuisance black bear and cougar in MU 2-2 in the spring of Mr. Ouellet held a guide outfitter's licence for MUs 2-9, 2-10 and 2-2 from 1971 ro ADDITIONAL POINTS BROUGHT OUT IN CROSS-EXAMINATION OF MR. WOOD: 1. In a number of instances, the permits issued to Mr. Ouellet did not restrict him to guiding for nuisance animals. 2. The decision to exclude MU 2-2 from the tender of MUs 2-9 and 2-10 in 1983 was made by Mr. Wood and based on his belief that the bear population was not sufficient in MU 2-2 to support guiding as well as resident hunting. 3. If Mr. Wood had been convinced that there was indeed sufficient bear population to support guiding, he would have included MU 2-2 with MUs 2-9 and 2-10 in the 1983 tender. 4. Mr. Wood felt that MUs 2-9 and 2-10, on either side of Harrison Lake, comprised a reasonable opportunity for someone to take up. 5. Mr. Wood said that the use of short-term permits isnot a good ontrol mechanism. He felt that an area either can or cannot support guided hunting and that if it can, it should be offered as part of a certificate. 6. In spite of his earlier feelings that MU 2-2 did not have a sufficient bear population to support guided hunting, he has now set a quota of six bears. To get from a quota of zero to a quota of six, he has.../15

15 Appeal No. 84/21 W'Life Page 15 included additional habitat (alpine rock, for example) and this has provided a higher estimate of the bear population. 7. Mr. Wood agreed with the suggestion of Mr. Robertson that had MU 2-2 been included with MUs 2-9 and 2-10 in the 1983 tender, the bids might have been considerably higher. EVIDENCE OF THE REPRESENTATIVE OF THE DIRECTOR; 1. Ms. Judy Wayte did not elect to call any witnesses for the Director but in response to a question from the Panel, Mr. Jack Bone explained Fish and Wildlife Branch policy with regard to allocation of guiding areas, as follows: Under Section 52 of the Wildlife Act, a person may be granted a licence for the right to guide in an area if he meets certain qualifications and if the area is available. Then he may ask for certification which means he will have tenure - if he dies, the right granted by the certificate becomes a part of his estate. Prior to about 1974, guide licences permitted a guide to work anywhere in the province.. It was then decided that there should be a single guide for a single area. This has been policy since There are areas all through the province that were left out of guide areas - small areas adjacent to the guiding areas of one, two, three or even four guides. Over the years, when a guide makes application for them, by agreement with the other guides, they have been given to one guide, or divided among two or more guides. "This is the normal allocation which has been made for many years". These fractional areas are generally not tendered. EVIDENCE OF LEO OUELLET: 1. Mr. Ouellet tendered $15,000 for MUs 2-9 and He said that if MU 2-2 had been included, he would have doubled his bid.... /16

16 Appeal No. 84/2l ~'Life pa<je Mr. Ouellet employs people over the course of a year, maintains about 100 horses on his ranch in MU 2-2. Guide out fitting is his sole means of support. He is married, has four children and has been a guide outfitter since Mr. Ouellet said that trophy animals are the key to success. Mr. Ouellet's clients had many top positions in the record books. 4. Mr. Ouellet now has MUs , 3-15, and 3-1~. He said that if he did not have 2-2; he wouldn't go broke, but that his expenses would increase - "double, probably". 5. Mrs. Ouellet has a certificate covering two management units. SUMMATION FOR THE DIRECTOR, BY JUDY WAYTE: 1. Agreed with Mr. Robertson's contention that Mr. Mohr did not have status as an aggrieved person. 2. Suggested that if Mr. Mohr was originally deprived of a hearing, he had now been given one by the Panel. 3. The Director had decided that MU 2-2 was not economically viable and had then used historical procedure in not tendering but allocating. 4. The Panel has two choices - dismiss the appeal or send it back with direction. 5. Submitted that the Director acted properly and, therefore, suggests that the Panel dismiss the appeal. SUMMATION FOR LEO OUELLET, BY T. ROBERTSON: A good part of Mr. Robertson's summation was devoted to the question of Mr. Mohr's status and whether or not he was entitled to a hearing by the Environmental Appeal Board. All the essential points of Mr. Robertson's argument are dealt with in previous pages under the heading "Objection to hearing of this appeal by the Environmental Appeal Board /17

17 Appeal ~O. 84/2l ~'Life page 17 Mr. Robertson also dealt with the question of interpretation of section 66 of the Wildlife Act. He pointed out that none of the parties to the appeal are asking that the Director's decision in that regard be reviewed. "Guiding Area" is not defined in the Act, and the operative words would then be "a newly designated or activated guiding area". The Director has interpreted guiding area as one in which guiding would be viable in itself and that nothing would be served by putting out to tender an area which would not support a guiding operation. Mr. Robertson submitted that the Director's decision that MU 2-2 is not a newly designated or activated guiding area should be upheld. SUlYIMATIONFOR STEVE MOHR BY L. ~1ACDONALD: Mr. MacDonald's comments with regard to Mr. Mohr's status as an Appellant have already been covered. Other points covered in Mr. MacDonald's summation follow: 1. When Mr. Wood decided that there were not enough bear in MU 2-2, that was the end of the matter as far as he was concerned, and it was not necessary for him to inform anybody else. If he was wrong, in his opinion the area would have to go to tender in which case all interested parties would be informed. 2. The Director, in his reasons for decision, has indicated a need for consultation with other guide outfitters in other directly concerned areas. But he has not done so. He has simply said, "Mr. Ouellet has had this area before and is well set up - give it to him". But other factors such as the economic effects on Mr. Mohr and Mr. Ouellet, for example, have not been taken into account and can only be done so if Mr. Mohr has the right to make a submission. The opportunity to be heard should have been at a much earlier stage than this. 3. Historically, MUs 2-9, 2-10 and 2-2 have been treated as a block. This goes back a long way. Mr. Ouellet had this area at one time and it was one area. 4. It has been claimed that Mr. Mohr hadn't used all his quota but we know that he was just starting out and had not had sufficient lead time to line up clients. Mr. Mohr's long range plan is to become a full-time guide outfitter.../18

18 Appeal No. 84/21 W'Life Page l8 5. If the Director had issued only a permit for MU 2-2, it would have given an opportunity for Mr. Mohr to show how well he was going to do, and whether or not he was going to fill his quotas. In that case, Mr. Mohr could later apply for a permit or a certificate, 6. Mr. MacDonald finally asked that the Panel decide whether Mr. Mohr or Mr. Ouellet should be given Management unit (MU) 2-2.