Environmental Appeal Board

Transcription

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 Website: DECISION NO WIL-024(a) In the matter of an appeal under section of the Wildlife Act, R.S.B.C. 1996, c BETWEEN: Dr. Ian Mackenzie APPELLANT AND: BEFORE: DATE: Regional Manager, Recreational Fisheries and Wildlife Programs, West Coast A Panel of the Environmental Appeal Board Linda Michaluk, Panel Chair Conducted by way of written submissions concluding on December 12, 2014 RESPONDENT APPEARING: For the Appellant: For the Respondent: Dr. Ian Mackenzie Mike Stalberg APPEAL [1] The Appellant, Dr. Ian Mackenzie, appeals the July 15, 2014 decision of Mike Stalberg, the Regional Manager (the Regional Manager ), Recreational Fisheries and Wildlife Programs, West Coast, Ministry of Forests, Lands and Natural Resource Operations, denying his renewal application for a permit to discharge a firearm or bow in a no shooting area; specifically, the helipad at the Port Alice Health Centre. The permit was sought to prevent Canada Geese from residing on the helipad. [2] The Board has the authority to hear this appeal under section 93 of the Environmental 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 person who made the decision being appealed, 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. [3] The Appellant asks the Board to grant him a permit, albeit a slightly different permit than the one that he originally sought. His modified request excludes the use of a shotgun and permits the use of a compound bow.

2 DECISION NO WIL-024(a) Page 2 [4] This appeal was conducted by way of written submissions concluding on December 12, BACKGROUND [5] The helipad at the Port Alice Health Centre is located in a grassy area and is within 100 metres of a residence. The area is attractive to Canada Geese which can be a safety hazard for helicopters using the helipad. In order to control the goose population, a comprehensive wildlife management plan was set in place which included habitat modification, and goose chasing, hazing, scaring and removal by way of selective killing. [6] Because of the proximity to a residence, the area is covered by section 4 and schedule 3 of the Closed Areas Regulation, B.C. Reg. 76/84, as a no shooting area. However, under section 19(1)(a) of the Wildlife Act, a regional manager has discretion to issue a permit authorizing a person to shoot or hunt in a no shooting or hunting area. In previous years, the Appellant has been issued a permit authorizing him to discharge a shotgun or bow in a no shooting area to facilitate the removal of Canada Geese from the same helipad. [7] On an unknown date, the Appellant applied to renew his permit to discharge a firearm or bow in a no shooting area. The Respondent s decision [8] In his July 15, 2014 decision, the Respondent cited safety concerns and denied the Appellant s application. The Respondent states: Upon review of your permit application and consultation with our local Conservation Officer Service (COS) office, the COS has expressed valid safety concerns regarding your application as the subject helipad is located in downtown Port Alice with houses located approximately 30 m away. The COS have offered to assign a conservation officer to assist you in discussing alternative solutions to manage the problem resident Canada Geese residing on the Port Alice Health Centre helipad. [9] It is this denial that has led to the appeal. The Appeal [10] The Appellant filed a Notice of Appeal with the Environmental Appeal Board on August 22, In the Notice of Appeal, the Appellant modified his permit request by limiting it to the use of a compound bow only. [11] On August 25, 2014, the Board acknowledged receipt of the appeal and advised the Appellant and Respondent that the matter would be conducted by way of written submissions. The Board established the following submission schedule: i) the Appellant s submission was to be sent to the Board and Respondent no later than October 6, 2014;

3 DECISION NO WIL-024(a) Page 3 ii) the Respondent s response to the Appellant s submission was to be sent to the Board and the Appellant no later than October 27, 2014; and iii) the Appellant could submit to the Board and the Respondent any rebuttal comments on the Respondent s submission no later than November 10, [12] The Board also advised that a party s failure to meet the time restrictions could result in the loss of opportunity to submit argument. A copy of the Board information sheet titled Preparing for a Written Hearing and Preparation Checklist was attached to the Board s letter to assist the parties in preparing their written submissions. [13] As the Appellant did not provide his submissions when due, the Board sent a second letter to the Appellant, dated October 30, 2014, inquiring whether the Appellant was going to rely upon his Notice of Appeal or provide further submissions, and requested a written reply by November 3, [14] On receipt of the Appellant s submission on November 3, 2014, the Board set a revised submission schedule providing: the Respondent s response to the Appellant s submission was to be sent to the Board and the Appellant no later than November 21, 2014; and the Appellant could submit to the Board and the Respondent any rebuttal comments on the Respondent s submission no later than November 28, [15] The Board revised the schedule a final time following a November 26, 2014 letter from the Respondent requesting an extension. The final schedule was as follows: the Respondent s response to the Appellant s submission was to be sent to the Board and the Appellant no later than December 5, 2014; and the Appellant could submit to the Board and the Respondent any rebuttal comments on the Respondent s submission no later than December 12, [16] The Respondent provided an undated submission. He asks the Board to dismiss the appeal. He further questions why the appeal should continue given that the Appellant s request for the modified permit (compound bow only) was not before the Respondent at the time of the initial application. [17] No rebuttal comments were received from the Appellant following receipt of the Respondent s submission. ISSUES 1. Should the Board consider the Appellant s proposal to have the permit issued in a modified manner to allow the use of a compound bow to shoot geese in and around the Port Alice Health Centre helipad? 2. Should the Board grant a permit to allow the Appellant to shoot geese in the vicinity of the Port Alice Health Centre helipad?

4 DECISION NO WIL-024(a) Page 4 RELEVANT LEGISLATION Closed Areas Regulation [18] Section 4 of the Closed Areas Regulation provides that there is no open season for any wildlife species in areas designated as no shooting areas. No shooting areas are designated in Schedule 3 of the Regulation. Of relevance to this appeal, section 19(b) of schedule 3 designates areas within 100 metres of a dwelling house as a no shooting or hunting area. Wildlife Act [19] Section 19(1)(a) of the Wildlife Act provides a Regional Manager with the discretion to issue a permit authorizing a person to shoot in a no shooting area. It states: Permits 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, or (b) to omit to do anything that the person is required to do 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. [20] When exercising this discretion to issue a permit, the Permit Regulation, B.C. Reg. 253/2000, requires a regional manager to satisfy him or herself as follows: 5 (1) Before issuing a permit under section 2, 3 or 4 the regional manager or the director, as applicable, must be satisfied (a) that the applicant meets the specific requirements, if any, for the permit as set out in this regulation, and (b) that issuing the permit is not contrary to the proper management of wildlife resources in British Columbia.

5 DECISION NO WIL-024(a) Page 5 DISCUSSION AND ANALYSIS 1. Should the Board consider the Appellant s proposal to have the permit issued in a modified manner to allow the use of a compound bow to shoot geese in and around the Port Alice Health Centre helipad? Appellant s submission [21] The Appellant notes that although previous permits authorized the use of a shotgun and a bow to remove Canada Geese from the helipad area, safety considerations applied this year resulted in the permit renewal application being denied. When the Appellant filed the appeal with the Board he proposed that the permit be amended to exclude the use of a shot gun, and provide for the use of a bow only. In the Appellant s view, given that archery is a permitted activity in the immediate area, this would address the safety concerns of Port Alice residents while allowing the shooting element of the goose management plan to proceed. Respondent s submission [22] The Respondent questions why the appeal should be continued given that the Appellant is now requesting something different from the original permit request which was denied. The Panel s Findings [23] As set out in paragraph 2 of this decision, the Board has the authority to: a) send the matter back to the person who made the decision being appealed, 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. [24] In his proposal to modify the permit, the Appellant has not provided any information that was not before the Respondent when the original decision to deny the permit was made. As the Respondent could have considered granting the permit in the manner now proposed by the Appellant, and the Respondent has now had an opportunity to consider and comment on the modified proposal during this proceeding, the Panel finds that it is appropriate to continue with the appeal and consider all information provided in the Appellant s and the Respondent s submissions.

6 DECISION NO WIL-024(a) Page 6 2. Should the Board grant a permit to allow the Appellant to shoot geese in the vicinity of the Port Alice Health Centre helipad? Appellant s submission [25] The Appellant has, in past years, held a permit to discharge a shotgun or bow in a no shooting zone. The permit enabled the Appellant to selectively kill a small number of Canada Geese in the vicinity of the helipad, and was part of a comprehensive wildlife management plan at the Port Alice Health Centre. Although the previous permit allowed the use of a shotgun and bow, a shotgun has not been used in recent years. [26] The wildlife management plan was developed in accordance with information from the Transport Canada Wildlife Control Procedures Manual, and the Canadian Wildlife Service Handbook titled Canada and Cackling Geese: Management and Population Control in Southern Canada. The plan was implemented with assistance from officers of the BC Conservation Officer Service and the local RCMP detachment. The plan has been effective at controlling geese. [27] The Appellant accepts that the lethal removal of geese is prone to community concern, that the use of a shotgun attracts attention and concern, and agrees that safety in and around the helipad is of prime importance. The Appellant proposes that the permit, which he originally applied to have renewed, be modified to allow the use of a bow and exclude the use of a shotgun to control the goose population. [28] The Appellant states that, as archery is allowed on the property, denying the permit to use a bow for goose removal will not contribute to safety, and will endanger those using the helipad and residents around it by increasing the risk of aircraft-wildlife interactions. Respondent s Submission [29] The Respondent sets out the factors that he generally applies when considering whether to grant a permit to hunt in a no shooting area. These factors include: his statutory authority to make the decision, safety, necessity and other available options to the proposed permit. [30] In terms of safety, because of complaints received from the Village of Port Alice (which were based on complaints the Village had received from the public), the Respondent requested that a safety inspection be conducted by the Conservation Officer Service. The safety evaluation concluded that hunting within the requested area would not be safe due to the proximity of a neighbouring house. [31] On the basis of the safety concern alone, the Respondent made his decision to deny the permit. Nevertheless, in his appeal submissions, the Respondent went through the other factors that he normally considers in relation to permit applications. The Respondent advises that the information under each heading was provided by the Conservation Officer who conducted the safety inspection. [32] In terms of necessity, information relating to the status and use of the helipad was set out. The Transport Canada Safety Manual indicates that the

7 DECISION NO WIL-024(a) Page 7 helipad has a designation that prohibits helicopters from landing on the Port Alice helipad without first obtaining prior permission to land. Therefore, the Respondent notes that there would be opportunity to scare and keep the geese off of the helipad when an approaching helicopter has requested permission to land. [33] In addition, information received from Transport Canada and helicopter pilots is that the recommended approach to the helipad is a slow approach from the water side. The pilots indicated that, if geese were present, they could hover above the pad until the geese were cleared from the area. [34] In terms of other options, the Respondent submits that it is relevant to consider whether any reasonable attempts have been made to mitigate the concerns with geese. The Respondent notes that, while the area has been fenced, there has not been sufficient effort to remove wildlife attractants as the helipad is surrounded by grass an attractant for geese. The Respondent provided the Panel with an from the Village of Port Alice in which the Village indicates that it can contribute material to the Health Authority to change the area surrounding the helipad from grass to gravel. The Respondent considers this a reasonable cost habitat modification solution which would be the most effective long term solution to dissuade geese from residing in the area. [35] The Respondent further submits that the Appellant s modified proposal should be refused. In support, the Respondent provided information to show that in 2012 (re-confirmed in 2013) the Village of Port Alice revoked the permissive exemption from the Village Firearms Bylaw that had previously been issued to the Appellant. As a result, the Appellant does not have the necessary municipal permit to allow him to discharge a firearm or bow within the Village boundaries. The Panel s Findings [36] In an appeal to the Board, an appellant has the ultimate burden of proving his or her case on a balance of probabilities; that is, an appellant has the burden of establishing that it is more probable than not that his or her claim is true. Unless the issue in the appeal is a pure question of law, an appellant will need to provide evidence to meet this burden. [37] In the present case, the Appellant has not met the burden of proof. While the Appellant gives his opinion that shooting geese in and around the Port Alice helipad, whether or not solely by bow, is required to maximize safety for helicopters, the Panel finds that such action, in fact, is neither required nor appropriate at this time. [38] The information provided by the Respondent is that the Conservation Officer Service considers hunting in this area to be unsafe; whether the Conservation Officer was asked to consider the safety of general archery in this area is unclear. The application in question, however, addresses hunting in this area and, therefore, general archery considerations are not germane. [39] Additionally, information was provided to demonstrate how helicopter pilots could approach and land in a safe manner on the helipad if geese were present in the area.

8 DECISION NO WIL-024(a) Page 8 [40] Of particular relevance and importance, the evidence suggests that a reasonable habitat modification solution exists which may well provide a long-term solution to the Canada Geese problem on the helipad; a solution which the Village of Port Alice is prepared to support by providing clean aggregate material free of charge. [41] Finally, the Appellant does not possess, and from the information provided, is not likely able to acquire, a permit from the municipality to discharge a bow or shotgun in the vicinity of the helipad. None of the information provided by the Respondent was rebutted by the Appellant and is, therefore, accepted by the Panel. [42] In these circumstances, where there are safety concerns, public complaints, and the availability of an alternative option, the Panel finds that it is appropriate to deny a permit that would allow the Appellant to selectively kill Canada Geese by compound bow (or shotgun), in and around the helipad. In the circumstances, such a permit would be contrary to the proper management of wildlife resources in British Columbia and, therefore, inconsistent with section 5(1)(b) of the Permit Regulation. DECISION [43] In making this decision, the Panel of the Environmental Appeal Board has considered carefully all relevant documents before it, whether or not specifically reiterated here. [44] For the reasons stated above, the Panel confirms the Respondent s July 15, 2014 decision. [45] The appeal is dismissed. Linda Michaluk Linda Michaluk, Panel Chair Environmental Appeal Board January 12, 2015