PETITION TO THE COURT

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Tracy Shaw
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1 19-Jan-16 Victoria IN THE SUPREME COURT OF BRITISH COLUMBIA Court File No. VIC-S-S No: Victoria Registry Between: PACIFIC WILD ALLIANCE and VALHALLA WILDERNESS SOCIETY PETITIONERS And: THE MINISTER of FORESTS, LANDS, and NATURAL RESOURCE OPERATIONS, THE MINISTER of ENVIRONMENT for THE PROVINCE OF BRITISH COLUMBIA, and THE REGIONAL MANAGER OF THE PEACE REGION PETITION TO THE COURT RESPONDENTS ON NOTICE TO: Her Majesty the Queen in Right of the Province of British Columbia Legal Services Branch PO Box 9280 STN PROV GOVT Victoria, BC V8W 9J7 This proceeding is brought for the relief set out in Part 1 below by the person(s) named as petitioner(s) in the style of proceedings above Pacific Wild Alliance and Valhalla Wilderness Society (the petitioners) If you intend to respond to this petition, you or your lawyer must (a) (b) file a response to this petition in Form 67 in the above-named registry of this court within the time for response to petition described below, and serve on the petitioners (i) 2 copies of the filed response to petition, and (ii) 2 copies of each filed affidavit on which you intend to rely at the hearing. Orders, including orders granting the relief claimed, may be made against you, without any further notice to you, if you fail to file the response to petition within the time for response.

2 Time for response to petition A response to petition must be filed and served on the petitioners (a) (b) (c) (d) if you were served with the petition anywhere within Canada, within 21 days after that service, if you were served with the petition anywhere in the United States of America, within 35 days after that service, if you were served with the petition anywhere else, within 49 days after that service, or if the time for response has been set by order of the court, within that time. (1) The Address of the registry is: P.O. Box 9248 Stn Prov Govt 2nd Flr, 850 Burdett Ave Victoria, BC V8W 9J1 (2) The ADDRESS FOR SERVICE of the Petitioners is: Woodward & Co. Lawyers LLP Barristers & Solicitors Suite 200, 1022 Government Street Victoria, BC V8W 1X7 Telephone: Fax number for service: address for service: (3) The name and office address of the petitioners' lawyer is: alan@woodwardandcompany.com Same as above [2]

3 CLAIM OF THE PETITIONERS Part 1: ORDERS SOUGHT 1. A declaration that permit FJ issued January 14, 2015 (the Permit ) is ultra vires the Wildlife Act Permit Regulation, B.C. Reg. 253/2000 (the Regulation ) and thus null and void; 2. A declaration that the decision to cull wolves to protect mountain caribou, while foregoing critical habitat ( Critical Habitat ) protection as identified in the Recovery Strategy for the Woodland Caribou, Southern Mountain population (Rangifer tarandus caribou) in Canada 2014 (the Recovery Strategy ), is unreasonable; 3. An order certiorari quashing and setting aside the Permit; 4. An order for an injunction prohibiting the Respondents from culling wolves in British Columbia, or ordering or directing the culling of wolves in British Columbia, until such a time as the Government of British Columbia (the Province ) meets its legal obligations under the federal Species at Risk Act, S.C. 2002, c. 29 ( SARA ) to protect Critical Habitat as identified in the Recovery Strategy; 5. Costs; and 6. Such further and other relief as this Honourable Court deems just. Part 2: FACTUAL BASIS Parties 1. The petitioner, Pacific Wild Alliance ( Pacific Wild ) is a not-for-profit society registered under the Society Act [RSBC 1996] C. 433 in British Columbia. Its offices are located on Denny Island on the Central Coast of British Columbia. 2. Pacific Wild conducts research, public education, and public and community outreach on wildlife and habitat conservation issues in British Columbia, and has extensive knowledge of predator-prey relationships involving wolves and grizzly bears and their prey. 3. The petitioner, Valhalla Wilderness Society (Valhalla), is a registered charity founded in 1975 in New Denver, British Columbia. Over the last 40 years, Valhalla has led park campaigns that now protect over 560,000 hectares. It has also tirelessly campaigned for [3]

4 full permanent protection of mountain caribou habitat for over a decade, including through developing park proposals and producing science-based reports to educate the public on caribou conservation issues. 4. Pacific Wild and Valhalla are both societies comprised of concerned citizens who have a genuine interest in the validity of the permits to cull wolves, and in ensuring that when decisions affecting the protection and management of wildlife in British Columbia are made, lawful process is followed. There is no other reasonable and effective manner in which the issues in this matter may be brought before the Court. 5. The Respondents, the Minister of the Environment (the MoE ) and the Minister of Forests, Lands and Natural Resource Operations (the Minister ), have overlapping responsibilities for environmental and wildlife policies regarding the conservation and management of wildlife in the province on behalf of British Columbians. 6. The Respondent Minister is responsible for wildlife management in British Columbia under the Wildlife Act, RSBC 1996, c. 488 (the Wildlife Act ) and the operational delivery of the Mountain Caribou Recovery Implementation Plan with support from the MoE. 7. The Respondent regional manager of Region 7 B Peace (the Regional Manager ) is a public officer responsible for issuing permits and licenses under the Regulation for the Peace region. The Minister s and Regional Manager s Jurisdiction 8. Section 19 of the Wildlife Act gives a regional manager the authority to issue permits to kill wildlife to the extent authorized by and in accordance with regulations made by the Lieutenant Governor in Council. 9. Section 2(c) of the Regulation gives a regional manager authority to issue a permit authorizing a person to hunt, trap or kill wildlife during the open or closed season only for the following purposes: (i) (ii) (iii) scientific purposes; educational purposes; if the regional manager considers it necessary for the proper management of the wildlife resource; [4]

5 (iv) (v) on behalf of the government, to destroy wildlife that is dangerous to public safety; on behalf of the government, to destroy wildlife that is so badly injured that prolonging the animal's life would result in the animal suffering unduly. 10. The Regional Manager has no authority to issue a Permit under s. 2(c)(iii) on behalf of the government where the government considers it necessary for the proper management of the wildlife resource. The Regional Manager may only issue a permit on behalf of the government, to destroy wildlife for a purpose identified under ss. (iv) or (v). 11. Section 5(1)(b) of the Regulation further mandates: 5(1) Before issuing a permit under section 2, 3 or 4 the regional manager or the director, as applicable, must be satisfied [...] (b) that issuing the permit is not contrary to the proper management of wildlife resources in British Columbia The Decision to Cull Wolves 12. The Minister and MoE decided to cull wolves in January The Regional Manager authorized the Permit in reliance on s. 2(c)(iii) of the Regulation, which requires a regional manager to reasonably consider the proper management of the wildlife resource. 14. The Regional Manager issued the Permit without evidence to reasonably conclude that culling wolves would save the identified mountain caribou herds or assist in their recovery, and without considering whether Critical Habitat, which is necessary for the recovery of mountain caribou, was available and effectively protected. 15. The Regional Manager simply gave effect to the Minister s decision to cull wolves without justification or further consideration, and without proper authorization under the Regulation. [5]

6 Mountain Caribou Recovery in British Columbia 16. In 2005, the Province identified habitat loss and fragmentation through human development as the ultimate reason for the decline of mountain caribou populations in British Columbia. 17. In October 2007, the Province committed to protect 2.2 million hectares of mountain caribou range from logging and road building, capturing 95% of the mountain caribou s high suitability winter habitat to protect mountain caribou. 18. To date, the Minister claims to have protected approximately 108,000 hectares of mountain caribou habitat in British Columbia s portion of the South Selkirk range, which is less than 5% of the 2.2 million hectares the Province announced. 19. In 2014, the federal government released the final draft of the Recovery Strategy, including the identification of Critical Habitat for Southern and Central Mountain Caribou. 20. Under SARA, the Province has a legal obligation to ensure Critical Habitat is effectively protected on provincial lands. Critical Habitat is the habitat a species listed in SARA (mountain caribou in this case) requires to survive or recover. As such, Critical Habitat is fundamental and necessary in the recovery process for mountain caribou herds. 21. Between April and July 2014, the Minister and MoE considered the concerns of forest industry leaders, who were reluctant to forgo logging operations in areas in or near Critical Habitat. 22. In 2014, the Minister and MoE decided to kill wolves in surrounding areas of low use, non-seasonal range instead of implementing additional habitat protection measures in Critical Habitat. 23. The Minister and MoE based this conclusion on economic considerations and contrary to the proper management of wildlife resources in British Columbia. 24. The Minister and MoE ordered the wolf cull in January 2015 to respond to the forest industry, which was reluctant to forgo logging operations in or near Critical Habitat that, once protected, would allow the Province to meet its targets under SARA. 25. On 14 January 2015 the Regional Manger issued the Permit to destroy Grey Wolves from aircraft in an area as directed by the Minister. [6]

7 26. On 16 November 2015, Pacific Wild received a copy of the Permit. 27. On 29 December 2015, Pacific Wild sent a petition letter to the regional managers of Region 7 B Peace and Region 4 - Kootenay regions, and to the Minister demanding they end the wolf cull. Pacific Wild has not received any response. Part 3: LEGAL BASIS 1. The Minister s and MoE s decision to cull wolves is a statutory power of decision pursuant to the Wildlife Act and therefore constitutes a reviewable decision pursuant to the Judicial Review Procedure Act, RSBC 1996, c The Regional Manager s decision to issue the Permit is a statutory power of decision pursuant to the Regulation and therefore constitutes a reviewable decision pursuant to the Judicial Review Procedure Act, RSBC 1996, c The Regional Manager issued the Permit without statutory authorization on the following grounds: a. the Regional Manager fettered his discretion by complying with the Minister s and MoE s demand to authorize the wolf cull without considering whether it would constitute proper management of the wildlife resource; b. the Regional Manager failed to take into consideration whether necessary conditions for mountain caribou recovery were in place so that the wolf cull would be effective; c. the execution of the Permit is contrary to the proper management of wildlife; and d. the Regional Manager failed to comply with section 5(1)(b) of the Regulation. 4. In the alternative, the decisions of the Regional Manager, the Minister, and the MoE to kill wolves in the name of mountain caribou protection or stabilization without also ensuring Critical Habitat protection should be set aside on the basis that they are unreasonable. Without Critical Habitat protection, mountain caribou populations will not be saved whether wolves are culled or not. [7]

8 5. The Minister claims to have ordered the wolf cull to protect and stabilize declining mountain caribou populations in certain identified herds. These identified herds are non-self sustaining and are not expected to survive without effective Critical Habitat protection. 6. Subsection 5(1)(b) of the Regulation required the Regional Manager to be satisfied that issuing the permit is not contrary to the proper management of wildlife resources in British Columbia. By failing to correctly or reasonably consider necessary and important factors, the Regional Manager issued the Permit contrary to the proper management of wildlife resources in British Columbia. 7. The Petitioner pleads and relies upon: i) The Supreme Court Civil Rules; ii) Judicial Review Procedure Act, R.S.B.C. 1996, c 241; iii) Wildlife Act, RSBC 1996, c 488; iv) Wildlife Act Permit Regulation, B.C. Reg. 253/2000; v) Relevant case law; vi) The inherent jurisdiction of this Court; and vii) Such further and additional materials as counsel may advise and this Court may allow. Part 4: MATERIAL TO BE RELIED ON 1. Affidavit of Ian McAllister. 2. Such further and additional materials as counsel may advise and this Court may allow. The petitioner estimates that the hearing of the petition will take 3 days. Date: January 18, 2016 Alan Hanna [ ] applicant [ X ] lawyer for the petitioner [8]

9 To be completed by the court only: Order made [ ] In the terms requested in paragraphs of Part 1 of this petition [ ] With the following variation and additional terms: Date: Signature of [ ] Judge [ ] Master

Environmental Appeal Board

Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 APPEAL