Environmental Appeal Board

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1 Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 APPEAL NO WIL-013 In the matter of an appeal under section of the Wildlife Act, R.S.B.C., 1996, c BETWEEN: Lynne Luker APPELLANT AND: Regional Wildlife Section Head RESPONDENT BEFORE: DATE: A Panel of the Environmental Appeal Board Alan Andison, Chair Conducted by way of written submissions concluding on September 18, 2000 APPEARING: For the Appellant: Lynne Luker For the Respondent: R.D. Forbes APPEAL This is an appeal by Lynne Luker of the May 3, 2000 decision of R.D. Forbes, Regional Wildlife Section Head, Kootenay Region, refusing Ms. Luker a permit to possess a cougar that had been struck by a motor vehicle on April 26, 2000 on Highway 3 near Cranbrook. The Environmental Appeal Board has the authority to hear this appeal under section 11 of the Environment Management Act, and section of the Wildlife Act. Section 101.1(5) of the Wildlife Act provides that the Board may: (a) send the matter back to the regional manager or director, with directions, (b) confirm, reverse or vary the decision being appealed, or (c) make any decision that the person whose decision is appealed could have made, and that the board considers appropriate in the circumstances. Ms. Luker seeks an order granting her a possession permit for the cougar carcass. The appeal was conducted by way of written submissions.

2 APPEAL NO WIL-013 Page 2 BACKGROUND The Appellant is a dispatch operator at the Cranbrook detachment of the Royal Canadian Mounted Police (the RCMP ). On April 26, 2000, an adult male cougar was struck by a motor vehicle on Highway 3 near Cranbrook. The animal was subsequently euthanized by an on-duty RCMP officer, who delivered the carcass to the Ministry of Environment, Lands and Parks ( MELP ) office in Cranbrook for inspection and disposal. That same day, the Appellant applied to MELP for possession of the dead animal. The application was received by R.D. Forbes, Regional Wildlife Section Head, Kootenay Region. In a letter dated May 3, 2000, Mr. Forbes, acting under the delegated authority of the Regional Fish, Wildlife and Habitat Manager, denied the Appellant s application for a possession permit. Mr. Forbes stated that the cougar was considered Crown property and, as such, it was to be auctioned off as a Crown asset in accordance with instructions received by Warehousing and Asset Investment Recovery, Ministry of Finance and Corporate Relations. There was no indication in the letter that the decision to deny the possession permit was appealable to the Board. In an undated letter received by the Board on June 23, 2000, the Appellant appealed the decision of Mr. Forbes on the basis that there was no reason given for the denial of the permit. The Appellant also stated that the May 3, 2000 letter from Mr. Forbes did not contain any notice that the decision was appealable. The Appellant seeks an order from the Board granting her a permit to possess the dead cougar. ISSUES This appeal gives rise to three main issues: 1. Whether there was a breach of procedural fairness due to a failure to inform the Appellant of her right to appeal the decision. 2. Whether there was a breach of procedural fairness due to a failure to provide reasons in the decision. 3. Whether the decision to refuse to issue a possession permit was reasonable in the circumstances. RELEVANT LEGISLATION Section 2 of the Wildlife Act states: 2 (1) Ownership in all wildlife in British Columbia is vested in the government. (2) A person does not acquire a right of property in any wildlife except in accordance with a permit or licence issued under this Act or the Game Farm Act or as provided in subsection (3) of this section.

3 APPEAL NO WIL-013 Page 3 Section 33 of the Wildlife Act addresses the issue of dead wildlife. Subsection 33(2) provides: 33 (2) A person commits an offence if the person has dead wildlife or a part of it in his or her possession except as authorized under a licence or permit or as provided by regulation. As a person authorized by the Regional Manager, Mr. Forbes general power to issue a permit arises from section 19 of the Wildlife Act, which states: 19 (1) A regional manager or a person authorized by a regional manager may, to the extent authorized by and in accordance with regulations made by the Lieutenant Governor in Council, by the issue of a permit, authorize a person (a) to do anything that the person may do only by authority of a permit or that the person is prohibited from doing by this Act or the regulations subject to and in accordance with those conditions, limits and period or periods the regional manager may set out in the permit and, despite anything contained in this Act or the regulations, that person has that authority during the term of the permit. Section 1(l) of the Wildlife Act Permit Regulations (B.C. Reg. 337/82) states: 1 A regional manager, by issuing a permit with whatever conditions, limits and period or periods he may include in or attach to the permit, may authorize (l) a person to possess dead wildlife or parts of them A statutory duty to provide reasons is created by section 101 of the Wildlife Act, which states: 101 (1) The regional manager or the director, as applicable, must give written reasons for 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). DISCUSSION AND ANALYSIS 1. Whether there was a breach of procedural fairness due to a failure to inform the Appellant of her right to appeal the decision. The Appellant submits that she was never notified of her right to appeal the decision to refuse her a possession permit, and that it was only through

4 APPEAL NO WIL-013 Page 4 Conservation Officer Visentin ( C.O. Visentin ) of the Cranbrook office that she obtained the appropriate appeal information. In a letter dated July 5, 2000, Mr. Forbes concedes that he erred in failing to advise the Appellant that his decision was appealable under section of the Wildlife Act. Mr. Forbes went on to explain that he took no action to cure the error as he was made aware that C.O. Visentin had already supplied the Appellant with the appropriate information. Based on the above facts, the Board finds that if there was a breach of procedural fairness, this defect was subsequently cured by C.O. Visentin with no prejudice to the Appellant. The Board has accepted the Appellant s appeal, and she has had an opportunity to argue her case before the Board. Accordingly, this ground of appeal fails. 2. Whether there was a breach of procedural fairness due to a failure to provide reasons in the decision. In her Notice of Appeal, the Appellant submits that she was given no reason for the refusal to issue her a possession permit in the May 3, 2000 letter from Mr. Forbes. The relevant portion of this letter is reproduced below: I regret to inform you that your request is denied. The animal in question was euthanized and delivered directly to the Ministry of Environment, Lands and Parks by an officer of the Royal Canadian Mounted Police. As such, is considered property of the Crown. This animal will be disposed of as a Crown asset and will be auctioned along with other specimens of wildlife that come into the Ministry s possession throughout the year in accordance with instructions received from Warehousing and Asset Investment Recovery, Ministry of Finance and Corporate Relations. Again, I am sorry to disappoint you in this matter. The Board is in agreement with the Appellant that the above letter contains no reasons for denial of the permit. The letter merely states that the animal is considered Crown property and outlines what MELP intends to do with the animal. The fact that the Respondent considers the animal Crown property is not a reason for refusing a permit. Section 2 of the Wildlife Act specifically allows a person to acquire a property right in wildlife in accordance with a permit or licence under the Act. The Appellant applied for a permit under the Act to possess a dead cougar. The Act and regulations allows for such a permit to be issued, despite the fact that ownership of the animal in question is vested in the Crown. Hence, in the Board s view, the fact that the animal is considered property of the Crown is not a reason for refusing the permit. The duty to provide reasons for refusing to issue a permit is outlined in section 101 of the Act. As such, the failure to provide reasons constitutes a breach of a statutory requirement. The underlying rationale for requiring reasons to be supplied is to improve administrative accountability, and to enable a person

5 APPEAL NO WIL-013 Page 5 affected by a decision to assess whether he or she has any grounds of appeal. Of course, there is an implied requirement that the reasons supplied must be adequate. Adequate reasons does not mean that every piece of evidence or finding of fact must be set out, but the reasons must reveal what matters have been taken into account when making the decision. This point is summarized in D.P. Jones & A.S. de Villars, Principles of Administrative Law, 3 rd ed. (Toronto: Carswell, 1999) at p. 346: In summary, it appears that the test for determining whether the reasons given by a delegate are adequate in law is whether why or how or on what evidence the delegate reached the conclusion. If so, then any statutory requirement to give reasons will be satisfied if not, that fact alone will constitute a fatal flaw in the exercise of the delegate s power. Had the Respondent relied solely on the content of his letter dated May 3, 2000 in his submissions, it s likely that the Board would have found a fatal flaw in the exercise of Mr. Forbes powers under the Act. An appropriate remedy in such a case would be to declare the decision void, and send the matter back to the original decision-maker along with instructions to provide adequate reasons. However, such is not the case in this appeal. Although the Board recognizes that there has been a defect in failing to provide reasons, the Board finds that the Respondent has subsequently cured this defect in later correspondence. In letters dated July 5, 2000 and September 11, 2000, the Respondent provides reasons for refusal of the permit, the content of which will be discussed in greater detail in the following section. These reasons have been provided to the Appellant, and the Appellant has been given the opportunity to make submissions on these reasons before the Board. Given that the Environmental Appeal Board is a de novo tribunal, the Board finds that the original failure to provide reasons has subsequently been cured. Accordingly, this ground of appeal fails. 3. Whether the decision to refuse to issue a possession permit was reasonable in the circumstances. The Appellant submits that she should be granted a permit to possess the cougar. She states that C.O. Visentin said that Mr. Forbes would not issue her the permit because she was a government employee and that it would be a conflict of interest if [she] were issued a permit. The Appellant further states that C.O. Visentin told her that she was not in a conflict of interest situation because the policy only applied to Provincial Government employees, and the Appellant is employed by the Federal Government. The Appellant submits that it would be unfair to deny her a permit on the basis of her employment position. The Appellant further submits that she owns valid hunting, fishing and trapping licences, and has been involved with several wildlife associations and committees. She states that she has contributed a great deal of money to wildlife causes over the years, and has been actively involved in wildlife fundraising events.

6 APPEAL NO WIL-013 Page 6 The Appellant submits that she is not a cat hunter and would never be harvesting a cat. The Appellant states that she wants a permit to possess the cougar in order to have the animal mounted. She further states that many animals are struck by vehicles on the highway, or must be killed to protect the public safety. As such, the profit that the government will lose if she is given the permit is not going to make a substantial difference. In response, Mr. Forbes submits that C.O. Visentin was not involved in his decision to refuse the permit and, as such, any comments made by C.O. Visentin regarding the cougar are hearsay and irrelevant to this matter. Mr. Forbes also submits that the issuance of possession permits for wildlife that has been struck by vehicles on the highway is determined on the circumstances of each individual case. He states that possession permits are not routinely issued for road-killed big game, and when such permits are issued, it is usually in the interest of a scientific or educational purpose. Mr. Forbes goes on to state that having considered the Appellant s request for a possession permit, he could find no convincing reason for granting such a permit. He states: The [A]ppellant has no particular claim on the specimen she was involved in the animal s death only peripherally and as an employee of the Crown. Her application for possession of the specimen was denied on the basis of disposition priorities as dictated by Ministry of Environment, Lands and Parks Policy and Procedures. The policy to which Mr. Forbes refers was outlined in his letter dated July 5, Mr. Forbes cites the procedure entitled Disposal and Storage of Dead Wildlife and Parts Procedure Manual, Volume 4, Section 7, Subsection 12.04, which states: 4. (3) Priorities for disposition of parts of wildlife other than meat are: (a) Government uses e.g. research, education, museum exhibits and collections, etc. (b) Bona fide scientific or medical uses (c) Traditional ceremonial or dress purposes; aboriginals receiving first priority (d) Commercial sale (Disposal by Government Auction) (e) Private possession in accordance with Policy and Procedures [emphasis added]

7 APPEAL NO WIL-013 Page 7 Mr. Forbes submits that the cougar has been determined to be of some commercial value, and since the Appellant has provided no convincing reason why she should be provided with a permit, her application must fail. Upon consideration of the above submissions, the Board finds that the refusal to issue a possession permit to the Appellant was reasonable in the circumstances. The Board accepts that C.O. Visentin was not involved in the decision-making process and, as such, the comments made by him to the Appellant do not constitute reasons for the purposes of this appeal. The Respondent has expressly rejected the statements of C.O. Visentin, and makes no further reliance on the Appellant s employment position as a reason for refusal. As such, the Board finds that the Appellant s employment position did not form part of the Respondent s reasons for refusing her the permit. The Board is satisfied that the Respondent has adequately considered the merits of the Appellant s application for a possession permit. The Board notes that the Appellant has requested a permit so that she can have the cougar mounted, because she is not a cat hunter and would never be harvesting a cat. The Board further notes that the Appellant has an active interest in wildlife protection and preservation, as evidenced from her involvement with various wildlife organizations. On the other hand, the Board accepts that the cougar is of some commercial value to the province. The MELP policy, which is to be used as a guide by the Regional Manager and his or her delegates, provides that commercial sale of dead wildlife takes priority over personal possession. In considering whether to deviate from the stated policy, the Board notes that the Respondent considered that possession permits for big game are not routinely issued, and are usually restricted to scientific or educational purposes. In weighing the above considerations, the Board is not satisfied that the Appellant s personal interest in possessing the cougar outweighs the public interest in receiving compensation for Crown property. The Appellant only cites a personal interest as a reason for requesting a permit, and has not provided any evidence that the cougar will be used for any other purpose, such as scientific, educational, or some other use that would be of benefit to the public interest. As such, the Board agrees that there are insufficient reasons to deviate from the MELP policy in this case. The Board finds that the Respondent considered both the MELP policy and the Appellant s stated reasons for wanting the animal, and concluded that a possession permit should not be issued. Under these circumstances, the Board is satisfied that the Regional Wildlife Section Head properly exercised his discretion in concluding that the application for a possession permit should be denied. DECISION In making this decision, the Panel of the Environmental Appeal Board has carefully considered all relevant documents and evidence before it, whether or not specifically reiterated here.

8 APPEAL NO WIL-013 Page 8 For the reasons stated above, the Panel confirms the decision of the Regional Wildlife Section Head not to issue a possession permit to Ms. Luker in this case. The appeal is dismissed. Alan Andison, Chair Environmental Appeal Board September 27, 2000