ENVIRONMENTAL APPEAL BOARD Province of British Columbia

Transcription

1 ENVIRONMENTAL APPEAL BOARD Province of British Columbia APPEAL NO. 90/18 WILDLIFE In the matter of appeal under s. 103 of the Wildlife Act, SBC Chap. 57 Index Chap , 1982 BETWEEN Mr. Ross Urquhart APPELLANT AND Mr. Ray Halliday, Ministry of Environment RESPONDENT BEFORE A PANEL OF THE ENVIRONMENTAL APPEAL BOARD Mrs. L. Michaluk, Chairman Ms. D. Kerr, Member DATE March 19, 1991 PLACE APPEARING Anglican Parish Hall, Lytton For Appellant Mr. Ross Urquhart For Respondent Spokesperson Witness Mr. G. Swannell, Appeals Officer, Ministry of Environment Mr. F. Harper, RP Bio, Wildlife Section Head, Ministry of Environment This is an appeal under Section 103 of the Wildlife Act regarding refusal of permission for a permit to possess the horns of a big horn mountain sheep. EXHIBITS A-1 Appellant submission R-1 Respondent submission R-2 Transcript, Proceedings At Hearing before Mr. D. R. Halliday, Deputy Director, Wildlife Branch, Ministry of Environment between Mr. Ross Urquhart (Appellant) and Mr. Steve Willett, Regional Manager, Fisheries and Wildlife Programs, Southern Interior Region (Respondent) in the Matter of an Appeal Pursuant to S. 103 of the Wildlife Act, RSBC 1982, C57, Kamloops, BC, June 19, APPEAL Mr. Urquhart is appealing against the decision of Mr. R. Halliday, Acting Director, Wildlife Branch, dated December 11, 1990, to refuse to issue a permit to possess a mountain sheep killed by Mr. Urquhart. The authority for the Panel of the

2 APPEAL NO. 90/18 Page 2 Environmental Appeal Board to hear this appeal is found in the Environment Management Act, and in Section 103 of the Wildlife Act. The grounds of appeal as stated by Mr. Urquhart at the hearing are: 1. the Ministry of Environment is setting an arbitrary and imaginary standard on what constitutes a legal full-curl ram which is virtually impossible to measure with the degree of precision previously claimed; 2. the Ministry of Environment had a floating line for at least 14 years previous to this and they have changed the position of this line without informing sheep hunters or changing the regulations; 3. the ram is legal even according to the arbitrary standard used by the Ministry of Environment. OPENING At the beginning of the proceedings Mr. Urquhart expressed surprise that unlike previous hearings in this appeal neither a representative from the Kamloops office nor the horns were present at the hearing. Mr. Urquhart had expected them to be present and had structured his presentation based on their attendance. Mr. Swannell stated that in his capacity as Acting Director Halliday's representative he would demonstrate three points 1. that the decision to refuse to issue Mr. Urquhart a permit to possess the horns of an undersized mountain was done in accordance to and with law; 2. that it was done in accordance to and with the rules of natural justice; and 3. that his decision was reasonable, defensible and unbiased and should be upheld. Following the opening statements from both parties the Panel determined the horns were in Kamloops and requested Mr. Swannell to make arrangements to have the horns brought to the Hearing by a Kamloops staff member. If this was not possible, the Panel was willing to move the location of the hearing to Kamloops. It was the opinion of the panel that as the method of measuring the horns was a central point in the appeal, that the horns and Yukon Jig should be present for the proceedings. After contacting the Kamloops office, Mr. Swannell confirmed that the horns and Mr. Harper would be arriving at the hearing by early afternoon. The proceedings were adjourned to await their arrival. Mr. Swannell objected on the grounds that the Ministry had not received a request for the horns or personnel to be present and had included in the submission for the Respondent a notarized statement attesting to the measurement of the horns. The horns hid been measured on more than one occasion and were found at all times to

3 APPEAL NO. 90/18 Page 3 be short. In addition the holding jig is in common usage and is accepted as being reliable and providing accurate measurements. The decision of the Panel to require that the horns and a staff member attend the appeal was an extra cost for the Ministry. EVIDENCE The following is a summary of the evidence presented during the Hearing. The Appellant Mr. Urquhart shot the Rocky Mountain Bighorn Sheep on September 28, 1989, believing it to be a legal animal. It was only on October 10, 1989 when the horns were measured in the Kamloops office that he found they were undersized. Mr. Urquhart stated that although the Regulations have not changed for at least 15 years that he is aware of, there are horns in the possession of hunters that would not meet the legal length as presently determined by the Ministry. The only change has been the introduction of the Yukon Jig, a tool the Ministry says will enable more precise measurements. This amounts to the application of a new standard to the regulations which in effect changes the rules. Mr. Urquhart contends that as there is no precision to a sheep, it is not possible to use the jig to measure the horns precisely. Evidence was presented to show that sheep horns are not often symmetrical. He also stated that horn placement on the skull and whether or not the animal was cleanly caped would affect the results of the measurement made when the skull was placed in the jig. The Respondent Mr. Swannell stated that when the horns were measured by Wildlife Branch staff members in Kamloops, they were found to be undersized by 2.5 cm under the terms of Order in Council 875 (June 15, 1989) which amended the Hunting Regulation, BC Reg. 190/84. The horns were determined by the annuli to be 5 1/2 years of age, which is also under the legal requirement of 8 years as set out in the aforementioned regulations. A short time later Mr. Urquhart returned to the Office alleging that the horns had not been properly measured as incorrect reference points had been used. On remeasurement, the longest horn was determined to be 5 mm short of the legal size. The reference points for this measuring were determined by the regulation which had been in force prior to the adoption of OIC 875. Therefore, the horns were determined to be undersized under either set of regulations.

4 APPEAL NO. 90/18 Page 4 Cross-Examination - The decision to use the Yukon jig in measuring horns was made at the Director level and is a matter of policy. Before a skull can be placed in the jig, it must be caped as it is not possible to measure horns properly if the hide and glands are in place. Skulls which have not been caped by the hunter are therefore caped by Wildlife staff. Due to the way in which the horns must be seated in the jig to take the measurement, a clean job must be done as soft tissue left on the skull would make the horns appear shorter than they actually were. These particular horns were caped by Mr. Urquhart who felt there may be some material remaining on the bottom of the horns which could be affecting how the horns were held in the jig; Mr. Harper could not see any material remaining on the skull. Examination of the skull by the panel did not support Mr. Urquhart's opinion. - The Yukon Jig itself does not measure the horns; rather it acts as a holding device so a proper non-subjective measurement can be taken. Because of the manner in which the horns are held in the jig, if the horns are not symmetrically placed on the skull, one horn could appear to be shorter than actual while the other could be longer. For the particular animal at hand, both Mr. Urquhart and Mr. Harper agreed there is a general appearance of symmetry, although Mr. Urquhart did not feel that was relevant. - The objective of the Regulations is to ensure that the harvest of sheep maintains a sufficient number of rams to enable successful breeding of all ewes. Although the Regulations changed in June, the Branch Office did not have a copy of the new Regulations in October when the animal was measured. The Branch office had been advised that there would be a change in the Regulations to bring the legal definition into line with the field guide synopsis; therefore the measurement was made in that manner even though the office had not yet received a copy of the Regulation change. When Mr. Harper was unable to obtain a copy of the new Regulations, he went back to the Regulation which had been in effect prior to June This was done not only for Mr. Urquhart but for all hunters that year. The Branch felt that if they were unable to obtain a copy of the new Regulations, that the public would also face difficulty in this regard. - Mr. Urquhart was charged with being in possession of an illegal animal but this charge was dropped one day before it was to go court as it appeared that due diligence had been exercised. Charges were originally laid because of the first measurement showing the animal to be 2.5 cm short. Once the second measurement was taken and the shortage was determined to be 5 mm Crown Counsel decided to drop the charges. DECISION In making this decision, the Panel of the Environmental Appeal Board has carefully considered all of the documentary evidence placed before it and all comments made

5 APPEAL NO. 90/18 Page 5 during the Hearing, whether or not they have been specifically reiterated within the body of this document. It is clear that Mr. Urquhart thought the sheep was legal when he shot it. What is also clear however is that according to the Regulations, the sheep is not a legal kill. It is regrettable that confusion existed at the time the animal was presented for measuring as to which Regulations applied. This no doubt contributed to Mr. Urquhart's contention that the standard for determining a full curl ram is arbitrary and imaginary. The Regulations of the day determine whether an animal is legal by taking a line between the centre of the nostril and the lowest portion of the base of the horn, or, by assessing its age by the annuli, to be 8 or more years old. This is neither arbitrary nor imaginary. Mr. Urquhart charges that the Ministry of Environment had a floating line in the past for determining the legality of horns and that the position of the line has now been changed without informing hunters or changing the Regulations. In fact, the Regulations were changed and that has been covered previously in this Decision. The "floating line" was the result of the manner in which horns were measured prior to the introduction of the Yukon Jig. The removal of subjective assessment in the measuring of horns must be recognized to be of benefit to all and so far at feast the Yukon Jig appears to be the best way to achieve this objective. Mr. Urquhart as a hunter was aware that the jig would be used in the measurement of the horns when he shot the sheep. The Yukon Jig does not determine whether or not a set of horns are legal or not. It does provide a firm base so accurate measurements as stipulated in the Regulations may be taken so the legality of the horns can be determined in a non-subjective fashion. Under the Regulations in effect at the time the animal was shot, the longest horn is under legal size by 2.5 cm and the animal underage by about 2 1/2 years. Given that the animal is undersized, given that the Ministry agrees that Mr. Urquhart had no intention to shoot an undersized animal and given that it is none the less dead, the question remaining to be settled is should Mr. Urquhart be allowed to keep the horns. Hunter harvest of mountain sheep is limited to a small segment of the population. The Regulations provide in effect for the harvest of animals which are, according to Mr. Harper, mature and nearing the end of their natural lives. The horns retained under permit have value not only as trophies but as educational material to other hunters who are able to ascertain what is acceptable as a legal animal. It is therefore very important that those horns allowed to circulate within the hunting fraternity be of legal size. Serious harm could be done to mountain sheep populations by excessive hunter kill if the situation was otherwise.

6 APPEAL NO. 90/18 Page 6 Therefore, upon reviewing all of the statements made and material presented during this hearing, it is the unanimous decision of this Panel that the Acting Director did not err in his decision and that the appeal be dismissed. RECOMMENDATIONS There are two areas on which the Panel wished to comment and make recommendations: regulations and charges. Regulations The Panel was distressed to learn that although Regulations had been passed by an Order in Council in June, the Kamloops office was unable to obtain a copy of them as late as October. According to the staff member present, this is not an isolated occurrence. It is essential that those who are charged with the responsibility of enforcing the Regulations have access to them. The Panel therefore recommends that when changes to Regulations are made that they be faxed to all Regional offices as soon as they are proclaimed. Printed copies of the new Regulations should be delivered as soon as they are available. Obviously it is necessary to review and assess Regulations to ensure they meet the needs of the present situation. Attention must be paid however to the timing of changes made to the Regulations. They must be made early enough for both staff and the public to become fully aware of them well in advance of hunting season. The Panel therefore recommends that senior staff consider the timing of proposed changes to Regulations when bringing them to the attention of the Minister. The purpose of the Yukon Jig is to remove the subjectivity from determining the legality of horns. It is the stated policy of the Ministry to use this device, although they are currently investigating other methods as well. Presently, the Yukon Jig is not referred to in any written policy. It is in the best interest of all who are involved with hunting to know that the jig will be used to assist in determining the legality of horns. The Panel therefore recommends that the use of the Yukon jig be referred to in written policy statements, and that consideration be given to including it in the Regulations and in the CORE program. Charges There are, no doubt many reasons for staying charges after they have been laid. In this instance, it was unfortunate that the charges were dropped one day before the matter was to go to Court. This resulted in the appellant assuming expense for legal services which in the end were not required.

7 APPEAL NO. 90/18 Page 7 The Panel therefore recommends that the Ministry of Attorney General make every effort to determine whether or not charges should be stayed well in advance of the Court date, and that the appellant be so informed. Linda Michaluk, Chairman, Environmental Appeal Board April 23, 1991