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-015 In the matter of an appeal under section of the Wildlife Act, R.S.B.C. 1996, c.488. BETWEEN: Robert Aaron Milligan APPELLANT AND: Regional Fish & Wildlife Manager RESPONDENT AND: The Attorney General of British Columbia THIRD PARTY AND: Nisga a Nation THIRD PARTY BEFORE: A Panel of the Environmental Appeal Board Alan Andison, Chair DATE OF HEARING: October 16, 2001 PLACE OF HEARING: Victoria, B.C. APPEARING: For the Appellant: Phillip Scarisbrick, Counsel Greg Cranston, Counsel For the Respondent: Joseph McBride, Counsel For the Third Party: The Attorney General of British Columbia: Ann McLean, Counsel APPEAL This is an appeal by Robert Aaron Milligan of the decision of Andy Ackerman, Regional Fish & Wildlife Manager (the Regional Manager ), suspending Mr. Milligan s guide outfitter licence No. GO (the Licence ) and guide outfitter certificate No (the Certificate), placing conditions on Mr. Milligan s requalification for a guide outfitter licence, and requiring Mr. Milligan to sell the guide area held under the Certificate. The Environmental Appeal Board has the authority to hear this appeal under section 11 of the Environment Management Act, R.S.B.C. 1996, c.118, and section of the Wildlife Act (the "Act"). Section 101.1(5) of the Act provides that the Board may:

2 APPEAL NO WIL-015 Page 2 (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. Milligan requests that the Board set aside the Regional Manager s decision and declare that Mr. Milligan may immediately commence guide outfitting within his guide area. BACKGROUND The following background facts are based on an Agreed Statement of Facts submitted by the Regional Manager and Mr. Milligan. Mr. Milligan began operating as a guide outfitter at the age of 19. Mr. Milligan inherited the Certificate from his father when he was 18 years old, after his parents died in an accident. In March 1990, the Certificate was transferred into his name, and he received a guide outfitter s licence after successfully completing the required exam. The then Regional Wildlife Manager issued the licence despite the fact that a person must normally be at least 21 years old before they may be eligible for such a licence. Under sections 51 and 54 of the Act, a person must hold an assistant guide outfitter s licence for at least 24 months before being eligible for a guide outfitter s licence, and must be at least 19 years old to qualify as an assistant guide outfitter. The Certificate grants Mr. Milligan the exclusive privilege of guiding hunters over a large area of land in northwestern British Columbia. The Certificate covers the largest guide territory in the Province, and encompasses most of the Nisga a Lands and the Nass Wildlife Area, as defined in the Nisga a Final Agreement, S.B.C. 1999, c. 2 (the Nisga a Agreement ). On November 16, 1994, Mr. Milligan was charged with 59 offences under the Act, the Fisheries Act, R.S.C. 1985, c. F-14, and the Firearm Act, R.S.B.C The charges stemmed from unlawful acts involving Mr. Milligan and hunters that he was guiding. The misconduct included unlawful killing and possession of two wolverines, unlawful grizzly bear hunting, unlawful killing and possession of a black bear, unlawful sport fishing, discharge of a firearm from a motor vehicle, and making false statements in a guide outfitter s report. The information leading to the charges was gathered during an undercover operation by two United States Fish and Wildlife Service officers, Gary Jagodzinski and Leo Suazo (the Undercover Operators ). Between May 21 and 29, 1994, the Undercover Operators posed as hunters and employed Mr. Milligan as their guide. During that time, the Undercover Operators observed or participated in a number of unlawful acts. They also discovered information about unlawful acts involving another client, Michael Hodek, who had recently been guided by Mr. Milligan.

3 APPEAL NO WIL-015 Page 3 On January 18, 1995, Mr. Milligan was notified that an administrative hearing pursuant to section 62 (now section 61) of the Act would be held to determine whether his guiding privileges should be revoked, suspended or amended. On March 31, 1995, Mr. Milligan agreed that he would not guide until the administrative hearing concluded. Although Mr. Milligan later purported to repudiate that agreement, he has not acted as a guide outfitter since Fall On February 16, 1998, Mr. Milligan was convicted in the Provincial Court of British Columbia on 23 counts. The sentence imposed by the Honourable Judge Krantz consisted of $4,950 in fines and a $20,350 allocation to the Northwest Wildlife for the Future Fund, for a total monetary penalty of $25,300. The Crown appealed the sentence and Mr. Milligan appealed the convictions. Those appeals were outstanding when this appeal was heard. On May 7, 2001, after numerous adjournments over a 6½-year period, the Regional Manager held the administrative hearing with respect to Mr. Milligan s guiding privileges. The submissions at the hearing included the Agreed Statement of Facts that was before this Panel. The Agreed Statement of Facts includes a Certificate of Conviction describing the 23 offences for which Mr. Milligan was convicted, the decision of Krantz J., transcripts of the trial testimony of two Crown witnesses, and records of offence tickets and warning tickets issued to Mr. Milligan between 1989 and 1994 in relation to other guiding-related matters. It also includes a video of an incident that led to several of the convictions. On June 4, 2001, Mr. Milligan received the Regional Manager s decision, which is the subject of this appeal. In part, the Regional Manager s decision states as follows: DECISION I consider the nature of the offences for which Mr. Milligan was convicted to be serious and also consider the substantial repercussions to the Crown and the public interest to be substantial. It is also my view that Mr. Milligan s immaturity may have contributed to his actions but he was also mature enough to run a business. Mr. Milligan broke a large trust placed upon him by the Crown and public and as a result, a deterrent is needed for both Mr. Milligan and those who may act similarly in the future. I have also considered that Mr. Milligan has been unable to use his territory for 6½ years and that the Crown did suggest that this should be taken into consideration in my decision. Therefore my decision in this matter is as follows: Mr. Milligan s ability to obtain a Guide Outfitter Licence or Assistant Guide Licence is suspended until April 1, 2003.

4 APPEAL NO WIL-015 Page 4 As of April 1, 2003, if Mr. Milligan wishes to obtain a guide Outfitter Licence, he must first re-qualify as an Assistant Guide, hold an Assistant Guide licence for at least two years, and then re-qualify for a Guide Outfitter Licence. A further condition is that Mr. Milligan, in applying for a Guide Outfitter Licence, must pass the Guide Outfitter exam with a minimum 85% pass mark. Mr. Milligan s certificate for his guide territory which presently expires April 1, 2002, is to be renewed with an expiry date of March 31, Mr. Milligan s certificate is then to be suspended until March 31, Mr. Milligan is given until March 31, 2003 to sell his guide area or it will revert to the Crown on April 1, To clarify, even though Mr. Milligan s Guide Outfitter Certificate is suspended until March 31, 2003, he is entitled to apply to transfer the area to a qualified Guide Outfitter or sell the area during the time of suspension. On June 15, 2001, the Board received Mr. Milligan s Notice of Appeal. The grounds for appeal in the Notice of Appeal are summarized as follows: 1. The penalty imposed is excessive and unreasonable in the circumstances. 2. The Regional Manager exceeded his jurisdiction by requiring Mr. Milligan to divest himself of the Certificate. 3. The Regional Manager exceeded his jurisdiction by imposing conditions contrary to section 51 of the Act on Mr. Milligan s ability to obtain a guide outfitter s licence. 4. The Regional Manager s decision is internally inconsistent in permitting Mr. Milligan to re-qualify as a guide outfitter while at the same time requiring him to divest himself of the Certificate, because he cannot act as a guide without a guide area. In his Statement of Points, dated September 8, 2001, counsel for Mr. Milligan identified another potential issue in the appeal. Counsel indicated that the Regional Manager s decision may trigger paragraphs 81 and 82 of Chapter 9 (Wildlife and Migratory Birds) of the Nisga a Agreement. In particular, counsel submitted that the sale or transfer of the Certificate, or issuance of a new certificate for the guiding territory, would trigger certain requirements under the Nisga a Agreement that may put Mr. Milligan in jeopardy of losing the Certificate without compensation. Counsel submitted that this had not been the Regional Manager s intention, and it would constitute excessive punishment of Mr. Milligan. By a notice dated September 26, 2001, Mr. Milligan s counsel advised the federal Minister of Indian Affairs and Northern Development, provincial Minister of

5 APPEAL NO WIL-015 Page 5 Aboriginal Affairs, and President of the Nisga a Nation, that an issue regarding the interpretation of paragraphs 81 and 82 of Chapter 9 of the Nisga a Agreement might arise at the appeal hearing. By a letter dated October 12, 2001, Jim Aldridge, Q.C., counsel for the Nisga a Nation, submitted that the Board need not attempt to interpret paragraphs 81 and 82 of Chapter 9 of the Nisga a Agreement because they are irrelevant to the penalty imposed on Mr. Milligan and the grounds for appeal. The Nisga a Nation did not appear at the appeal hearing. By a letter dated October 12, 2001, counsel for the Attorney General of British Columbia (the Attorney General ) advised that she would make submissions on the interpretation of paragraphs 81 and 82 of chapter 9 of the Nisga a Agreement. By letter dated October 21, 2001, counsel for the Minister of Indian Affairs and Northern Development and for the Attorney General of Canada corresponded with counsel for the Appellant regarding the issue of the interpretation of the Nisga a Agreement. Based on that correspondence, the Government of Canada made no submissions to the Board on the interpretation of the Nisga a Agreement and did not appear at the hearing. ISSUES This appeal raises the following issues: 1. Whether paragraphs 81 or 82 of Chapter 9 (Wildlife and Migratory Birds), of the Nisga a Agreement should be considered in determining the outcome of this appeal. 2. Whether Mr. Milligan s guide outfitting privileges should be reinstated immediately, and under what conditions. 3. Whether Mr. Milligan should be required to sell the Certificate. 4. Whether the Certificate, which expires April 1, 2002, should be renewed, and if so, for how long. RELEVANT LEGISLATION The relevant provisions of the Act are as follows: Issue of guide outfitter licence 51 (1) A regional manager may issue a guide outfitter licence to a person who (a) is a citizen of Canada or a permanent resident of Canada, (b) has held assistant guide licences for 24 months and actively guided during that time, and

6 APPEAL NO WIL-015 Page 6 (c) has public liability insurance and other qualifications prescribed by regulation. (2) A guide outfitter licence authorizes the holder to guide persons to hunt only for those species of game and in the area described in the licence. Issue of assistant guide licence 54 (1) The regional manager or the regional manager's designate may issue a licence to an assistant guide or assistant angling guide who is a citizen of Canada or a permanent resident of Canada and is 19 years of age or older. Guide outfitter s certificate 59 (1) On application for a guide outfitter s certificate by a person licensed as a guide outfitter, the regional manager may issue a certificate in a form and containing conditions the director may specify granting the holder (a) the privilege of acting as a guide in the area described in the certificate, and (b) the exclusive guiding privileges for a period not exceeding 10 years. Action if conditions of licence, certificate or registration not fulfilled 61 (1) If a person holds a guide outfitter s licence, guide outfitter s certificate and the person is convicted of an offence under this Act or the regulations or does not comply with the conditions contained in or restrictions imposed on his or her licence, certificate or for another cause that the regional manager considers reasonable, the regional manager may conduct a hearing to determine whether the person should continue to enjoy the privileges afforded him or her by the licence or certificate and may do one or more of the following: (a) suspend, cancel or refuse to issue or renew the person s licence, certificate ; (b) amend the licence, certificate to specify a different area in which the person may operate; (c) in the case of a guide outfitter, amend the licence to further limit the numbers, age and sex of game in respect of which the person may guide; (d) amend the licence, certificate to require the person to meet other conditions or restrictions that the regional manager considers appropriate;

7 APPEAL NO WIL-015 Page 7 Transfers subject to approval 62 (1) The privileges conferred in a guide outfitter s licence or certificate may not be transferred without the authorization of the regional manager. (2) Guiding privileges in a portion of a guiding area held under a guide outfitter s licence or certificate may not be transferred without the authorization of the regional manager. Permit in guide area 70 (1) The regional manager may, by issuing a permit containing conditions the regional manager considers suitable, authorize (b) a guide outfitter or angling guide to guide in an area other than that endorsed on his or her guide outfitter licence or angling guide licence. The relevant sections of the Nisga a Agreement are as follows: Chapter 9 - Wildlife and Migratory Birds Guiding 81. If a guide outfitter s certificate registered to a person other than the Nisga a Nation ceases to apply to an area wholly or partially on Nisga a Lands by reason of abandonment or operation of law, British Columbia will issue to the Nisga a Nation a guide outfitter s licence and a guide outfitter s certificate for the area set out in Appendix K. This licence and certificate will be subject to federal and provincial laws of general application. 82. British Columbia will not issue a new guide outfitter s certificate or licence that applies to any portion of Nisga a Lands without the consent of the Nisga a Nation. British Columbia will consult with the Nisga a Nation before approving any proposed transfer, or change in terms and conditions, of any guide outfitter s certificate or licence that applies to any portion of the Nass Wildlife Area. DISCUSSION AND ANALYSIS 1. Whether paragraphs 81 or 82 of Chapter 9 (Wildlife and Migratory Birds), of the Nisga a Agreement should be considered in determining the outcome of this appeal. The parties submit that paragraphs 81 and 82, of Chapter 9, of the Nisga a Agreement have not been judicially considered. Neither Mr. Milligan nor the

8 APPEAL NO WIL-015 Page 8 Regional Manager made submissions on the interpretation of paragraphs 81 and 82, Chapter 9, of the Nisga a Agreement. The Regional Manager submits that he has reconsidered his decision in light of the Nisga a Agreement, and concedes that Mr. Milligan should not be required to sell the Certificate under circumstances which could leave him without compensation. He also submits that he did not intend that a transfer of the Certificate would be affected by the Nisga a Agreement. The Attorney General submits that certain aspects of the Regional Manager s decision trigger requirements under the Nisga a Agreement either to consult or obtain the consent of the Nisga a Nation. The Attorney General submits that paragraph 81, Chapter 9, of the Nisga a Agreement is not relevant because it would only be triggered if the Certificate (or Licence) ceased to apply to the territory, which is not an issue. However, the Attorney General submits that the Regional Manager s decision would trigger the requirement to consult the Nisga a Nation under paragraph 82, Chapter 9, of the Nisga a Agreement, because it would require a change in the terms and conditions of the Licence and/or the Certificate. Further, the consent requirement in paragraph 82 would be triggered if a new licence or certificate were issued to a person accompanying Mr. Milligan on the Nisga a Lands contained within his territory. The Attorney General submits, therefore, that a new guide outfitter s licence for a guide in Mr. Milligan s territory could not be issued without the consent of the Nisga a Nation. In closing, the Attorney General submits that the Panel should send the matter back to the Regional Manager with directions that permit him as much discretion as possible in crafting a solution that complies with the Nisga a Agreement. Although the Nisga a Nation did not appear at the hearing, the Panel has considered its letter to the Board dated October 12, The Nisga a Nation maintains that the Panel need not consider or attempt to interpret paragraphs 81 and 82, Chapter 9, of the Nisga a Agreement to resolve this appeal. With respect to paragraph 81, the Nisga a Nation submits that the Panel s decision should be based on the facts of the case, and not on what would happen if the Certificate ceased to apply to Nisga a Lands for any reason. The Nisga a Nation submits that paragraph 81, Chapter 9, of the Nisga a Agreement would be engaged only after the Certificate ceased to apply to the Nisga a Lands by reason of abandonment or operation of law. The Nisga a Nation further submits that paragraph 82 is operative regardless of these administrative proceedings. In particular, they submit that consultation with the Nisga a Nation would be required before the approval of any transfer or change in terms and conditions of the Certificate, even if Mr. Milligan were not subject to administrative proceedings. Therefore, it submits that paragraph 82 is irrelevant to the penalty imposed by the Regional Manager.

9 APPEAL NO WIL-015 Page 9 Further, the Nisga a Nation submits that, based on its interpretation of the Regional Manager s decision, the suspension of the Certificate does not interfere with Mr. Milligan s right to transfer the Certificate, approval of which would in any event be subject to paragraph 82. For those reasons, the Nisga a Nation submit that the Panel need not embark on an interpretation of paragraphs 81 and 82, Chapter 9, of the Nisga a Agreement. The Panel agrees with the Nisga a Nation that it need not interpret paragraphs 81 and 82, Chapter 9, of the Nisga a Agreement in determining the outcome of this appeal. Paragraphs 81 and 82 apply to the Certificate regardless of the outcome of this appeal. Further, this appeal is concerned with the reasonableness and legality of the Regional Manager s decision under the Act. Accordingly, the relevant considerations in this appeal include the relevant provisions of the Act and the evidence concerning Mr. Milligan s misconduct. The potential effects of the Nisga a Agreement are irrelevant to the Panel s decision in this appeal. However, the Panel notes that the parties are obliged to consider and comply with any requirements of the Nisga a Agreement that may apply. 2. Whether Mr. Milligan s guide outfitting privileges should be reinstated immediately, and under what conditions. Mr. Milligan submits that a 10-year suspension is excessive. He submits that his guiding privileges should be reinstated immediately, and he should be allowed to re-qualify as a guide outfitter as soon as possible, in his own territory. He maintains that the only appropriate re-licensing condition is to require him to rewrite the guide outfitter exam. In the alternative, Mr. Milligan requests that the Board authorize him to return to work immediately, as an assistant guide or as a guide, on the condition that he would be accompanied by an experienced guide for two hunting seasons. Mr. Milligan submits that he has not operated as a guide outfitter for over 6 years, and argues that he should not be subject to a longer suspension because he has already been severely punished for his actions. Mr. Milligan submits that he has suffered financially as a result of the penalties imposed on him. He notes that Krantz J. ordered him to pay a substantial fine, which he has so far been unable to pay. He advised that he will only be able to pay the fine once he is able to start work as a guide outfitter in his guiding area. He submits that he has lost approximately $1.5 million in gross revenue from his guiding business over the past 6½ years. He submits that publicity surrounding the incident forced him to relocate to another community. He also submits that his family has suffered as a result of the penalties, loss of income, and relocation. Mr. Milligan submits that he was 24 years of age when the offences occurred, and notes that Krantz J. stated that the licensing authority has to take some responsibility to have turned a nineteen year old out as a fully licensed guide. Mr. Milligan submits that he has matured since then. Mr. Milligan submits that he has

10 APPEAL NO WIL-015 Page 10 worked as an angling guide for the past 6½ years with no infractions of any kind. He maintains that his clean record shows that he is now worthy of the Crown s trust as a guide outfitter. Mr. Milligan submits that a 10-year suspension is the most severe penalty ever imposed on a guide by a regional manager. He further submits that historically 10- year suspensions have been imposed for much more serious offences than those which were committed by Mr. Milligan. Mr. Milligan submits that decisions involving circumstances similar to his support a suspension period of 6 years or less. The Regional Manager submits that Mr. Milligan s guiding privileges should remain under suspension until April 1, 2003, at which time he may re-qualify as an assistant guide. The Regional Manager further submits that Mr. Milligan should not be permitted to re-qualify as a guide until he spends 2 years working under the supervision of an experienced guide. Thus, his full privileges as a guide would be suspended for 10 years, but he would be eligible to work as an assistant guide after 8 years. The Regional Manager submits that a 10-year suspension period is reasonable given the nature and number of Mr. Milligan s offences, and his position of responsibility and trust in relation to Crown wildlife resources. The Regional Manager submits that an appropriate suspension should both penalize Mr. Milligan and provide a deterrent to discourage others from committing similar violations. The Regional Manager submits that the Panel should disregard decisions issued before 1993, when guides received much lighter punishment than in recent years. Mr. Milligan and the Regional Manager made separate submissions on some of the facts surrounding Mr. Milligan s misconduct, and the significance of those facts to the duration of the suspension. The Panel has considered those submissions and makes the following finding regarding the events that resulted in the suspension of Mr. Milligan s outfitters certificate and licence. A. Mr. Hodek s Wolverines (April - May 1994) During April or May of 1994 Mr. Milligan acted as a guide for Michael Hodek who was licensed to hunt for bears. During the hunt, Mr. Hodek shot a wolverine while in the presence of Mr. Milligan. Mr. Milligan advised Mr. Hodek that he could be in big trouble for having killed the wolverine without a licence to do so. Mr. Milligan then collected the carcass and put it in his freezer. Two days later Mr. Hodek shot another wolverine. This time Mr. Milligan was not present when the shooting occurred. However, Mr. Hodek again presented it to Mr. Milligan for safekeeping in his freezer, which Mr. Milligan did. Mr. Milligan s intent was to keep the carcasses in his freezer until the season opened to kill wolverines. He would then ship the carcasses to Mr. Hodek. These events only came to the attention of the government because Mr. Milligan showed the Undercover Operators the frozen carcasses. As a result, Mr. Milligan was convicted of two counts of possession of dead wildlife, two counts of being a party to the failure to submit the carcass of a

11 APPEAL NO WIL-015 Page 11 wolverine for inspection due to keeping them in his freezer, and one count of making a false statement in a guide report, in connection with Mr. Hodek s killing of the wolverines. B. Mr. Suazo s Third Black Bear (May 1994) Mr. Milligan and the Undercover Operators came upon two black bears. Mr. Suazo had already killed one black bear, but could shoot one more because he had one tag left for black bear. Mr. Milligan also had one tag left for black bear, but had left his rifle in the truck. After Mr. Suazo shot one bear, Mr. Milligan told him to shoot the other one too, which he did. Mr. Milligan used his own tag for the third bear shot by Mr. Suazo, but did not report that it was shot by Mr. Suazo. Mr. Jagodzinski recorded the incident on videotape, which the Panel viewed. Mr. Milligan was convicted of exceeding the bag limit, misusing his tag, unlawful possession of the bear, and making a false statement in his guide outfitter s report. C. Grizzly Hunting Offences (May 1994) On the evening of May 29, 1994, Mr. Milligan took the Undercover Operators to a local garbage dump to hunt for grizzly bears. Neither of the Undercover Operators had licences to hunt for grizzly bears. When they arrived at the dump it was well after dark. When Mr. Milligan sited a boar grizzly bear, he instructed Mr. Suazo to get in the back of the pick-up truck and site the bear with his loaded gun. Mr. Suazo did this and they waited for over an hour for the bear to get close enough to shoot. It was the plan that once the bear got close enough Mr. Milligan would turn the truck lights on to illuminate the bear and Mr. Suazo would shoot it. In addition, there was a grizzly bear sow and her cub in the vicinity of the truck. As the male bear was getting close enough to shoot another vehicle arrived at the dump. Mr. Milligan told Mr. Suazo to get back in the truck and they left the dump. No grizzly bear was shot during the hunt. As a result, Mr. Milligan was convicted of two counts of guiding a hunter for grizzly bear without a licence, one count of guiding hunters at night, one count of being a party to possession of a loaded firearm in a motor vehicle, and two counts of making a false statement in a guide report. D. Fishing Offences (May 1994) (i) Fishing without a licence The Undercover Operators had purchased 5-day fishing licences, which had expired when they went about fishing on the last day of their trip. When they asked Mr. Milligan if it was okay to fish, he told them that it did not matter. Mr. Milligan was convicted of two counts of being a party to his clients fishing without a licence.

12 APPEAL NO WIL-015 Page 12 (ii) Hauling shrimp and prawn traps with a power winch Mr. Milligan was convicted of one count of unlawfully engaging in sport fishing by hauling up shrimp and prawn traps with a power winch. (iii) Fishing with a line with more than one hook Mr. Milligan was convicted of one count of unlawfully using gear designed to catch more than one fish at a time. E. Firearm and Other Offences (May 1994) (i) Party to discharging a firearm from a motor vehicle Mr. Milligan was convicted of being a party to the offence of discharging a firearm from a motor vehicle while hunting black bear. This involved a situation where Mr. Jagodzinski climbed into the box of a truck and used the roof of the cab as a rifle rest. Mr. Milligan instructed Mr. Jagodzinski to shoot from the truck. (ii) Party to failure to immediately cancel a species licence Mr. Milligan was convicted of being a party to two counts of the Undercover Operators failure to immediately cancel their species licences after shooting black bears. (iii) Failure to stay in the immediate company of a person being guided Mr. Milligan was convicted of failing to stay in the immediate company of a person being guided. This conviction arose from an incident when two of Mr. Milligan s assistant guides allowed Mr. Suazo to sit down and remain alone for 1½ hours. This conviction was based on Mr. Milligan s vicarious liability for his assistant guides actions under section 104 of the Act. F. Prior Offence Tickets and Warning Tickets Prior to the convictions described above, the following offence tickets and warning tickets were issued to Mr. Milligan: Offence ticket for setting improperly marked fishing gear, on August 30, 1994 ($35.00 fine); Offence ticket for guiding outside authorized area, between May 1 and 8, 1991 ($ fine); Offence ticket for transporting bear galls, on October 9, 1990 ($ fine); Offence ticket for having a loaded firearm in a motor vehicle, on September 30, 1988 ($ fine);

13 APPEAL NO WIL-015 Page 13 Warning ticket for carrying a firearm without a licence, on August 30, 1994; Warning ticket for failing to produce a guide licence, on May 22, 1993; Warning ticket for failing to submit a guide declaration, on September 20, 1991; Warning ticket for failing to submit an accurate guide declaration, on September 7, 1990; and Warning ticket for exporting a grizzly bear without a CITES [Convention on International Trade in Endangered Species of Wild Fauna and Flora] permit, on or between October 13 and November 1, Summary of the Panel s findings of fact regarding Mr. Milligan s misconduct When the whole body of evidence and submissions is considered, the Panel finds that it supports the Provincial Court s conclusions that Mr. Milligan is guilty of the offences for which he was charged. In particular, the Panel notes that the legal test for determining whether Mr. Milligan committed the violations of the Wildlife, Fisheries and Firearm Acts for which he was convicted in the criminal proceedings is beyond a reasonable doubt. The test before this Panel in an administrative proceeding is a balance of probabilities. The Panel accepts the findings of the court under the more onerous standard that was applied there. In addition, the evidence before the Panel supports the conclusion that, on a balance of probabilities, Mr. Milligan carried out the offences described in the four offence tickets. The Panel notes that Mr. Milligan disputes only one offence ticket. In that regard, the Panel finds that he has provided insufficient evidence to establish that the ticket issued for transporting bear galls was a result of entrapment. The Panel finds that there is insufficient evidence to establish on a balance of probabilities that Mr. Milligan committed the violations described in the warning tickets. The Panel accepts the warning tickets as evidence that five formal warnings were issued to Mr. Milligan. However, the Panel finds that the warning tickets do not provide conclusive evidence that Mr. Milligan committed the violations alleged therein. Finally, the Panel notes that, while the convictions and offence tickets provide evidence of Mr. Milligan s behaviour from 1988 to 1994, they do not necessarily reflect on Mr. Milligan s likelihood to commit similar offences now or in the future. There is no evidence of Mr. Milligan committing any fishing, wildlife, or firearms offences since Requirement to rewrite the guide outfitter s exam Based on the evidence and submissions provided, the Panel finds that Mr. Milligan should be required to demonstrate his knowledge of the Province s wildlife laws by passing the guide outfitter s exam before his guiding privileges may be reinstated.

14 APPEAL NO WIL-015 Page 14 While Mr. Milligan passed the guide outfitter s exam in 1990, a considerable amount of time has elapsed since then. In addition, the Panel agrees with the Regional Manager that guide outfitters occupy a position of significant trust and responsibility. When operating in remote regions of the province, they are responsible for ensuring that their clients respect the Province s laws concerning wildlife. When a guide outfitter breaches the public trust by failing to stop a client from violating those laws, the guide may endanger the wildlife resource and the reputation of the guiding industry. While Mr. Milligan maintains that he knows the law much better now than in the past, the Panel finds that he should be required to prove his knowledge. Further, Mr. Milligan concedes that it is reasonable to require him to rewrite the guide outfitter licence exam before his privileges under the Licence and the Certificate may be reinstated. The Regional Manager concedes that he had no authority to impose a minimum pass mark of 85 percent, and that this requirement should be deleted. Consequently, the Panel confirms that Mr. Milligan must rewrite and pass his guide outfitter s exam before his guiding privileges may be reinstated. The Panel further orders that the Regional Manager s decision shall be varied by deleting the requirement that Mr. Milligan must obtain a minimum pass mark of 85 percent on the exam. Requirement to first re-qualify as an assistant guide The Panel has considered what benefits might arise from requiring Mr. Milligan to re-qualify as an assistant guide and hold an assistant guide s licence for 2 years before being eligible to re-qualify as a guide outfitter. Aside from providing a form of punishment, one of the potential benefits of this requirement may be to provide Mr. Milligan with the opportunity to improve his guide outfitting skills while working under a senior guide outfitter. Normally, a person must work as an assistant guide for at least 2 years before they may qualify as a guide outfitter. However, the Panel notes that Mr. Milligan operated as a guide outfitter for over 4 years before he ceased guiding. Thus, notwithstanding Mr. Milligan s misconduct, he already has over 2 years experience as a guide. Another potential benefit of this requirement may be to provide a probationary period in which Mr. Milligan s activities could be monitored by a more experienced guide. The Panel accepts the Regional Manager s submission that Mr. Milligan should be required to demonstrate that he deserves the trust of the Crown by showing responsible, lawful conduct as a guide. However, this concern is partially addressed by the fact that Mr. Milligan has a clean record as an angling guide over the past 7 years. The Panel finds that angler guiding and guide outfitting involve similar responsibilities, such as dealing with clients, regulations and gear, and ensuring that clients adhere to the law. In addition, the Panel finds that requiring Mr. Milligan to rewrite the guide outfitter exam will ensure that Mr. Milligan has sufficient knowledge of the relevant hunting and wildlife laws.

15 APPEAL NO WIL-015 Page 15 Moreover, the Panel finds that Mr. Milligan has matured since 1994, and feels remorse over his misconduct. The Panel notes that, in his decision, the Regional Manager stated that he had no doubt that Mr. Milligan feels remorse for his actions. The Panel also notes that the Act and related legislation provide Conservation Officers and regional managers with a number of means to ensure that guide outfitters comply with the law. This case illustrates that both quasi-criminal and administrative penalties may be levied for non-compliance with the law. The Panel notes that section 61(1)(a) of the Act provides that a regional manager may cancel a guide outfitter s licence or certificate if he or she is convicted of an offence under this Act or the regulations, does not comply with the conditions or restrictions in his or her licence or certificate, or for another cause that the regional manager considers reasonable. Counsel for the Regional Manager indicated that wildlife officials intend to closely monitor Mr. Milligan s activities once he returns to guide outfitting. Mr. Milligan should realize that his guiding privileges may be cancelled if he commits further violations of the Act or regulations. Under these circumstances, the Panel concludes that Mr. Milligan need not be required to re-qualify as an assistant guide and hold an assistant guide s licence for 2 years before being eligible to re-qualify as a guide outfitter. Accordingly, the Panel rescinds that portion of the Regional Manager s decision. Appropriate suspension period The Panel notes that Mr. Milligan s guide outfitting privileges have effectively been under suspension for over 7 years. Thus, the question is whether a longer suspension is warranted, based on the facts of this case. In addressing this question, the Panel considered its findings discussed above, along with the relevant facts and submissions. The Panel agrees with the Regional Manager that the penalty must send a clear message to Mr. Milligan, other guides and the public, that this type of misconduct will result in serious penalties. However, the Panel has considered the fact that Mr. Milligan s misconduct occurred when he was quite young, and that the regulatory authorities allowed Mr. Milligan to commence guide outfitting at an unusually young age. Mr. Milligan s immature tendency to try to please his clients despite infringing the law was apparent from the evidence of the conduct underlying his convictions. He failed to report the illegal shooting of wolverines because he did not want Mr. Hodek to get in trouble. He took hunters to a local dump to hunt for grizzly bears. He allowed hunters to shoot from the back of his truck and he assisted in the illegal killing of a black bear. In reaching his decision, the Regional Manager clearly considered that Mr. Milligan was very young to have been issued a guide outfitter licence. However, the Regional Manager went on to find that Mr. Milligan should have had full knowledge

16 APPEAL NO WIL-015 Page 16 of what he was doing at the time of the offences and was in a position to have stopped or attempted to prevent most of the illegal activities conducted by his clients or himself. The Panel agrees that Mr. Milligan had full knowledge of what he was doing when the offences occurred, and was in a position to have stopped or attempted to prevent most of the illegal activities. However, the Panel agrees with Krantz J. that the licensing authorities should accept some responsibility for putting a 19-year old in a position of authority, where he was expected to advise and control older hunters. In this regard, the Panel finds the following portions of the decision of Krantz J. to be relevant: when he was nineteen he had adulthood thrust upon him in a very forcible way, and he had to be responsible for other members of his family, and that he attempted to take on that burden, but where he acted immaturely was in the conduct of hunting and guiding. I was struck with someone who appeared to have been seduced by the romance of his own profession, perhaps, and by his own advertising about how glamorous and fun and everything that it was; that he got carried away with that aspect as opposed to being a mature sensible advisor to these people when he was out hunting. And that might not be that out of line, I guess, for someone who was as young as he was, and he certainly was young to have become a guide in his own right without a mature advisor being there and present, and to that extent I want to say this, I think the licensing authority has to take some responsibility to have turned a nineteen year old out as a fully licensed guide. It doesn t seem to me to have been a very wise decision, and it seems so common sense when we look at it from this direction, that how much mature consideration would a nineteen year old have when his responsibility as a licensed guide is to tell people how to behave? people who have, in some respect, succeeded enough at life that they have the money to pay him these big amounts of money. So, to that extent, perhaps from hindsight, the licensing authority might also want to accept some of the responsibility for what happened here. The Panel finds that the Regional Manager gave insufficient weight to these considerations. His decision contains no clear indication that he considered that the licensing authority should accept some responsibility for Mr. Milligan s misconduct. On the contrary, the Regional Manager places full responsibility on Mr. Milligan. However, the Panel rejects Mr. Milligan s submission that having to go through two separate proceedings amounts to additional punishment. The Panel finds that the court-imposed sanctions are clearly intended to be separate and independent from administrative sanctions under the Act. The Board has made this distinction clear

17 APPEAL NO WIL-015 Page 17 in several past cases, including Ratushniak v. Deputy Director of Wildlife (Appeal No. 98-WIL-33, March 23, 1999) (unreported). The Panel has also considered the parties submissions concerning previous cases involving guide misconduct. The Panel notes that, in the three cases presented by the Regional Manager as involving worse misconduct than Mr. Milligan s, a guide committed premeditated, deliberate violations of the law and disregard for wildlife resources. The violations all involved senior guides with many years of experience, and were aggravated by other factors such as violent conduct, counselling clients to violate the law, lying to conceal offences, allowing damage of private property, or threatening public safety. These cases all resulted in either cancellation of or an order to transfer the guide s certificate, and a 10-year suspension. In comparison, Mr. Milligan s violations occurred when he was still a relatively young guide, and there is no evidence that Mr. Milligan behaved violently, or failed to retrieve an animal, whether legally killed or not. The Panel also accepts that Mr. Milligan generally lacked a premeditated intent to commit the offences. In many cases, Mr. Milligan was a party to an offence committed by a client, in that he failed to stop the client s misconduct from happening. The Panel agrees with Mr. Milligan that the nature of his misconduct is most similar to that in G. K. Prinz v. Deputy Director of Wildlife (Appeal No. 93/18 Wildlife, May ) (unreported) (hereinafter Prinz ). In that case, Mr. Prinz faced 24 charges under the Act. The counts fell into five general areas: making false declarations; failure to retrieve edible portions of wildlife; hunting bear by placing bait; hunting when the season was not open; and, unlawful possession of dead wildlife. The Provincial Court acquitted Mr. Prinz of 13 of the counts and dismissed six. The five counts on which Mr. Prinz was found guilty included: failure to remove the edible portions of a mountain goat; two counts of hunting caribou at a time not within open season; knowingly making a false declaration; and, unlawful possession of caribou antlers. Mr. Prinz was fined a total of $7000. Following Mr. Prinz s convictions, the Regional Wildlife Manager decided to: suspend his guide outfitter licence, suspend his guide outfitter certificate for 4 years, refuse to renew his guide outfitter licence, and not issue him a guide licence or an assistant guide licence for 4 years. On appeal, the Regional Wildlife Manager s decision was upheld by the Deputy Director of Wildlife, and, subsequently, by this Board. The Panel notes that Mr. Milligan was convicted on far more counts than Mr. Prinz. However, the Panel finds the penalty in Prinz to be less relevant to Mr. Milligan s circumstances because the appealed decision was issued in 1992, when the Board s powers in appeals under the Act were more limited than they are today. At that time, the Board was limited to determining whether the Deputy Director properly exercised his discretion, that is to say, without influence by irrelevant

18 APPEAL NO WIL-015 Page 18 considerations and not arbitrarily or illegally (Olson v. British Columbia (Ministry of Environment, Wildlife Branch, Director), [1989] B.C.J (B.C.S.C.)). Additionally, the Panel is satisfied that it is in the public interest that Mr. Milligan be allowed to return to his occupation as a guide outfitter so that the fines imposed by the Provincial Court can be paid in an expeditious manner. Given the facts in this case, the Panel finds that Mr. Milligan s guiding privileges should be suspended for less than 10 years, which is at the extreme end of the spectrum, but more than 4 years, which was the case in Prinz. For all of these reasons, the Panel finds that a suspension period of approximately 8 years is appropriate as both a penalty to Mr. Milligan and a deterrent to the public. Accordingly, the Panel concludes that Mr. Milligan s ability to obtain a guide outfitter licence or assistant guide licence is suspended until April 1, Whether Mr. Milligan should be required to sell the Certificate. Having considered the possible effect of the Nisga a Agreement on a requirement to sell the Certificate or forfeit it to the Crown, the Regional Manager submits that he did not intend Mr. Milligan to lose his territory without compensation. The Panel agrees that the requirement to sell the Certificate should be removed. The Panel finds that it would be unreasonable and unfair in the circumstances to force Mr. Milligan to sell the Certificate and the guide area. The Panel further finds that there is no need to amend the Certificate to limit Mr. Milligan s ability to apply to transfer it before a particular date. The Panel notes that the terms and conditions of the Certificate already require Mr. Milligan to obtain the Regional Manager s approval before a transfer may occur. Paragraph 1.03 of the Certificate states: 1.03 (1) The privileges conferred in this certificate may not be transferred without the approval of the Regional Manager. (2) Guiding privileges in a portion of the guiding area described herein may not be transferred without the approval of the Regional Manager. Similarly, section 62 of the Act provides as follows: Transfers subject to approval 62 (1) The privileges conferred in a guide outfitter's licence or certificate may not be transferred without the authorization of the regional manager. (2) Guiding privileges in a portion of a guiding area held under a guide outfitter's licence or certificate may not be transferred without the authorization of the regional manager.

19 APPEAL NO WIL-015 Page 19 Accordingly, the Panel rescinds the requirement that Mr. Milligan must sell his guide area by March 31, 2003 or it will revert to the Crown. 4. Whether the Certificate, which expires April 1, 2002, should be renewed, and if so, for how long. The Regional Manager ordered that Mr. Milligan s Certificate for his guide territory, which presently expires on April 1, 2002, be renewed with an expiry date of March 31, The Regional Manager then ordered that the Certificate be suspended until March 31, The Panel agrees with the Regional Manager that the Certificate should be renewed when it expires on April 1, However, the Panel finds that the Certificate should be renewed for a period of 4 years to March 31, The Panel further finds that the Certificate should be be suspended until March 31, Given that Mr. Milligan will be eligible to re-qualify as a guide outfitter as of April 1, 2003, this expiry date will give him 3 years to attempt to rebuild his guiding business, should he pursue that option. In addition, it will allow sufficient time for the licensing authorities to monitor Mr. Milligan s performance as a guide outfitter. Accordingly, the Certificate shall be renewed with an expiry date of March 31, DECISION In making this decision, the Panel has carefully considered all the evidence before it, whether or not specifically reiterated here. The Panel rescinds the requirement that Mr. Milligan must first re-qualify as an assistant guide, and hold an assistant guide s licence for at least 2 years before he may re-qualify as a guide outfitter. The Panel also rescinds the requirement that Mr. Milligan must sell his guide area by March 31, 2003 or it will revert to the Crown. Mr. Milligan s ability to obtain a Guide Outfitter Licence is suspended until April 1, 2003, subject to his successful completion of the guide outfitter exam. Mr. Milligan s ability to obtain an Assistant Guide Licence is also suspended until April 1, Further, Mr. Milligan s Certificate for his guide territory is to be renewed with an expiry date of March 31, Mr. Milligan s Certificate is then suspended until March 31, The appeal is allowed, in part. Alan Andison Environmental Appeal Board March 26, 2002