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-010 In the matter of appeals under section of the Wildlife Act, R.S.B.C. 1996, c.488. BETWEEN: Ken Robins APPELLANT AND: Regional Manager RESPONDENT BEFORE: DATE: A Panel of the Environmental Appeal Board Alan Andison, Chair Conducted by way of written submissions concluding on September 9, 2002 APPEARING: For the Appellant: Dale Drown For the Respondent: Joseph McBride, Counsel APPEAL Ken Robins appealed the April 25, 2002 decision by Wayne Stetski, Regional Manager, Environmental Stewardship, Kootenay Region (the Regional Manager ), to assign him a quota of zero grizzly bears for the April 1 to June 5, 2002 hunting season. The Panel of 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 (the Act ). Section 101.1(5) of the Act provides that the Panel 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. Mr. Robins requests that the Board vary the Regional Manager s decision by ordering that Mr. Robins be given a grizzly bear quota for the 2002 season. BACKGROUND Mr. Robins is a guide outfitter operating in the Kootenay Region of southeastern British Columbia. Each guide outfitter has exclusive rights to guide non-resident

2 APPEAL NO WIL-010 Page 2 hunters within a defined geographical area. Mr. Robins guide territory covers wildlife Management Unit 4-32 (MU 4-32). Guide outfitters are given an annual quota for the types of wildlife that their clients may kill. These quotas are a condition in a guide s annual licence. Mr. Robins quotas for 2002 are listed in Schedule B of his guide outfitter licence issued by the Regional Manager on April 25, His quotas for 2002 are as follows: Elk, Cow: 0 Grizzly Bear: 0 Moose, Bulls: 2 Mountain Goat: 2 Mountain Sheep: 0 Turkey: 0 On June 3, 2002, Mr. Robins appealed the Regional Manager s decision to issue a quota of zero grizzly bears. In his Notice of Appeal, Mr. Robins provides two grounds for appeal: Based on personal grizzly bear sightings in the management unit, the estimate of the grizzly bear population provided by the Ministry is out of step with reality, and that there are more grizzly bears in the management unit than has been estimated; and Failure of the Regional manager to take into consideration normal grizzly bear reproduction rates in estimating the current grizzly bear population in the management unit. In a letter dated June 24, 2002, the Regional Manager requested that the Board dismiss the appeal as moot. The Regional Manager stated that Mr. Robins guide outfitting territory was completely closed to grizzly bear hunting in Spring He further stated that he set Mr. Robins grizzly bear quota at zero solely to clarify to Mr. Robins that there was no grizzly harvest permissible under the laws of this province for Management Area 4-32 during the spring, 2002, season. In a letter dated July 11, 2002, the Board invited Mr. Robins to make submissions in response to the Regional Manager s request to dismiss the appeal. Dale Drown, General Manager of the Guide Outfitting Association of British Columbia, responded on behalf of Mr. Robins. In a letter dated July 23, 2002, Mr. Drown submitted that when the Regional Manager issued Mr. Robins 2002 licence, he failed to provide reasons as to why Mr. Robins grizzly bear quota was arbitrarily reduced to zero. Mr. Drown submitted that the Regional Manager s failure to provide reasons breached section 101(1) of the Act, and, therefore, the appeal should be heard. By a letter dated July 29, 2002, the Board notified the parties that the appeal would be conducted in writing, rather than taking further submissions to determine whether the appeal is moot.

3 APPEAL NO WIL-010 Page 3 ISSUES 1. Whether the Regional Manager and the Board have the jurisdiction to issue a grizzly bear quota to Mr. Robins for the 2002 hunting season. 2. Whether the Regional Manager failed to give reasons for issuing a grizzly bear quota of zero, contrary to section 101(1) of the Act. RELEVANT LEGISLATION AND MINISTRY PROCEDURE The following sections of the Act are relevant to this appeal: Limited entry hunting authorization 16 (1) The Lieutenant Governor in Council, by regulation, may Quotas (a) limit hunting for a species of wildlife in an area of British Columbia, 60 (1) If a regional manager issues a guide outfitter licence, the regional manager may attach a quota as a condition of the licence and may vary the quota for a subsequent licence year. Reasons for and notice of decisions 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). (2) Notice of a decision referred to in subsection (1) must be given to the affected person. Appeals to Environmental Appeal Board (1) The affected person referred to in section 101 (2) may appeal the decision to the Environmental Appeal Board established under the Environment Management Act. (4) The appeal board may conduct an appeal by way of a new hearing.

4 APPEAL NO WIL-010 Page 4 The following sections of the Limited Entry Hunting Authorization Regulation, B.C. Reg. 134/93 (the Regulation ) are relevant to this appeal: Offence 9 (1) Subject to subsection (2), a person commits an offence if the person hunts grizzly bear in an area designated as a limited entry hunting area for that species unless (a) he or she hunts during the open season for the area and type of wildlife as set out in Schedule I, (5) If, and only if, a quota is attached as a condition of a guide outfitter licence, (a) a licensed guide may guide, and (b) a person may hunt (i) for game named in the quota, and (ii) in that portion of the area described in the guide outfitter licence contained within an area prescribed in Schedule I or Schedule II during the period of time prescribed in Schedule I for persons who hold a limited entry hunting authorization. DISCUSSION AND ANALYSIS 1. Whether the Regional Manager and the Board have the jurisdiction to issue a grizzly bear quota to Mr. Robins for the 2002 hunting season. Under section 101.1(5)(c) of the Act, the Board may make any decision that the person whose decision is appealed could have made, and that the board considers appropriate in the circumstances. Therefore, in order for the Board to have the authority to issue a grizzly bear quota to Mr. Robins, it must be shown that the Regional Manager had such authority. That authority must be found in the Act and other relevant legislation. The Regional Manager submits that the Regional Manager set Mr. Robins grizzly bear quota at zero because grizzly bear hunting in Mr. Robins guide outfitter territory (MU 4-32) was completely closed to both residents and non-residents on April 25, 2002, pursuant to a regulation ordered by the Lieutenant Governor in Council. The Lieutenant Governor in Council is more commonly known as the provincial Cabinet. Specifically, the Regional Manager submits that grizzly bear hunting was subject to a province-wide moratorium. On February 8, 2001, the provincial government

5 APPEAL NO WIL-010 Page 5 declared a three-year moratorium on grizzly bear hunting. However, the general moratorium was rescinded on July 16, 2001, and replaced with regional moratoriums. Schedule 1 of the Regulation sets out the areas and times in which grizzly bear hunting is permitted. The Regional Manager states that, during the moratorium, Item 340 of Schedule 1 of the Regulation prescribed an open season (from April 1 to June 5) for adult grizzly bear in MU However, the Regional Manager submits that Item 340, like all other Schedule 1 items referring to grizzly bear, was inapplicable during that period because a separate regulation imposed the moratorium. The Regional Manager submits that on July 16, 2001, the Schedule 1 items referring to grizzly bear hunting, including Item 340, were brought to life when the moratorium was rescinded by Cabinet through B.C. Regulation 167/2001. The Regional Manager submits, however, that grizzly bear hunting was not permitted in MU 4-32 as of December 10, 2001, when Cabinet amended Schedule 1 of the Regulation by repealing Item 340, pursuant to B.C. Regulation 292/2001. The Regional Manager submits that grizzly bear hunting has not been permitted in MU 4-32 since December 10, 2001, and was not permitted when Mr. Robins licence was issued in April Finally, the Regional Manager submits that the Board has no jurisdiction to review legislative decisions of the Lieutenant Governor in Council. He requests, therefore, that the appeal be dismissed. Mr. Robins submissions did not address this issue. The Panel has reviewed the relevant provisions of the Act, the Regulation, and the regulations cited by the Regional Manager. Under section 60(1) of the Act, the Regional Manager has the jurisdiction to set quotas attached to guide outfitter licences. However, in exercising his discretion to issue quotas to guide outfitters, the Regional Manager is bound by the Regulation, which restricts hunting for certain species. Schedule 1 of the Regulation lists a number of Items which refer to a limited entry hunting area, a specific Management Unit, an open season for a particular species, and a Range of Authorizations. It is clear that a person may hunt for grizzly bear only if such hunting is contemplated under Schedule 1, and the person possesses all of the necessary permits and/or licences. Under section 9(1) of the Regulation, a person commits an offence if the person hunts grizzly bear in an area designated as a limited entry hunting area, unless he or she hunts during an open season for that species, as set out in Schedule I. Similarly, under section 9(5) of the Regulation, a guide outfitter may guide hunters only in the areas and during the times set out in the appropriate Schedule (in this case, Schedule 1), and only if he or she possesses a quota. Mr. Robins guide territory covers MU 4-32, which was listed beside Item 340 of Schedule 1 until December 10, Effective December 10, 2001, Item 340 was repealed by Cabinet pursuant to section 12 of Appendix 1, B.C. Regulation 292/2001. The current version of Schedule 1 took effect on March 28, The Panel notes that Schedule 1 currently states as follows beside Item 340: Repealed.

6 APPEAL NO WIL-010 Page 6 [B.C. Reg. 292/2001, App. 1, s. 12.] Thus, it is clear that the Regulation does not allow grizzly bear hunting in MU 4-32 at this time, and did not allow it when the Regional Manager issued Mr. Robins licence in April Schedule 1 of the Regulation, and the regulations that have amended Schedule 1, were approved and ordered by Cabinet, under the authority of section 16(1) of the Act. There is no dispute that those regulations were validly made. Consequently, the Regional Manager had no authority to issue a grizzly bear quota to Mr. Robins for 2002, and neither does the Board. The Regional Manager and the Board could decide whether to issue such a quota only if Cabinet amended Schedule 1 to allow grizzly bear hunting in MU Furthermore, given that the decision to effectively ban grizzly bear hunting in MU 4-32 was a decision of Cabinet, and sections 101 and of the Act do not apply to Cabinet decisions, that decision was not appealable to the Board. Accordingly, the Panel finds that the Board has no jurisdiction to issue a grizzly bear quota to Mr. Robins for the 2002 hunting season. Therefore, the Panel has no authority to grant the remedy requested by Mr. Robins. 2. Whether the Regional Manager failed to give reasons for issuing a grizzly bear quota of zero, contrary to section 101(1) of the Act. This issue is somewhat moot given the Panel s findings on the first issue. However, the Panel has considered this issue since it was the focus of Mr. Robins submissions, and because the Panel s findings may provide some clarity for the Regional Manager. Mr. Robins submits that section 101(1) of the Act requires the Regional Manager to give written reasons for a decision that affects a licence. He maintains that the Regional Manager breached section 101(1) because he gave no reasons, written or otherwise, for failing to give him a grizzly bear quota. Mr. Robins submits that there can be no accountability for wildlife management decisions if the decisionmakers can avoid providing any rationale or information on why a season has been closed. The Regional Manager acknowledges that he failed to give reasons for issuing a quota of zero grizzly bears in Mr. Robins 2002 licence. However, he submits that his failure to give written reasons is cured by his letter to the Board dated June 24, 2002, in which he explains why he set the quota at zero. The regulations discussed above clearly indicate that Cabinet made a policy decision not to allow grizzly bear hunting in MU It was not the Regional Manager who decided not to allow such hunting. The Regional Manager had no statutory authority to issue a grizzly bear quota for Mr. Robins territory. The Regional Manager should have advised that he had no jurisdiction to issue a grizzly bear quota for Mr. Robins territory. However, the Panel notes that this hearing was conducted as a new hearing of the matter, pursuant to section 101.1(4) of the Act.

7 APPEAL NO WIL-010 Page 7 Therefore, the Panel finds that this hearing has cured any procedural defects in the process conducted by the Regional Manager. DECISION In making this decision, the Panel has considered all the evidence and arguments presented at the hearing, whether or not they have been specifically reiterated here. For the reasons set out above, the Panel upholds the Regional Manager s decision. Accordingly, the appeal is dismissed. Alan Andison, Chair Environmental Appeal Board October 22, 2002