Environmental Appeal Board APPEAL NO. 92/26 WILDLIFE In the matter of appeal under S103 Wildlife Act, SBC Chap. 57 Index Chap. 433.1, 1982 BETWEEN Dale M. Ethier APPELLANT AND Deputy Director Wildlife RESPONDENT BEFORE A PANEL OF THE ENVIRONMENTAL APPEAL BOARD Mrs. L. Michaluk, Chairman DATE August 24, 1993 PLACE Grand Forks Public Library, Grand Forks, B.C. APPEARING For Appellant Spokesperson Witness For Respondent Spokesperson G. Swannell D. Zirul D. Ethier This was an appeal against a decision declaring a guide territory vacant. EXHIBITS A-1 Appellant Submission R-1 Respondent Submission, 25 Tabs APPEAL The authority for the Panel of the Environmental Appeal Board to hear this appeal is found in the Environment Management Act, and in Section 103 of the Wildlife Act. In bringing this appeal, Mr. Ethier asserts that the Ministry has used the law out of context to, in effect, seize his guide territory. The order sought was that Mr. Ethier be given sufficient time to sell the interest in the territory. BACKGROUND Mr. Ethier has been a guide outfitter for 25 years in a remote area of northern British Columbia (western portion Management Unit 7-38).
APPEAL NO.92/26 WILDLIFE Page 2 During the 1981/82 and 1982/83 hunting, seasons Mr. Ethier, received permission from the Branch not to use the territory due to his personal health problems. In October of 1989, Mr. Ethier advised Regional Manager Zirul he did not intend to use his territory during the 1990/91 and 1991/92 seasons due to the low ungulate population. Regional Manager Zirul informed Mr. Ethier that because the Wildlife Act provided for only one year of inactivity, he was granting the privilege of not using the territory during the 1990/91 licence year only and suggested Mr. Ethier reassess the situation in the following year. In April of 1991, Mr. Ethier advised Regional Manager Zirul he did not intend to guide hunters for the 1991/92 season because of poor game populations. Regional Manager Zirul informed Mr. Ethier he must at least renew his licence and pay the annual fee, and that he should undertake some guiding activity. Mr. Ethier paid the fee but declined to guide hunters as he had, by then, decided to sell his guiding business. Regional Manager Zirul renewed the licence and reduced Mr. Ethier's bull moose quota because of new moose population information. He also advised Mr. Ethier that the licence had been issued to allow flexibility in selling the territory and further, that failure to guide or sell the territory in that licence year could result in the territory being declared vacant. As Mr. Ethier neither guided hunters nor sold the territory during that time, Regional Manager Zirul declared the territory vacant in 1992. Mr. Ethier appealed to Deputy Director Munro who upheld the Regional Manager's decision. Mr. Ethier then appealed the Deputy Director's decision to the Environmental Appeal Board. ISSUES AND EVIDENCE During the presentation of evidence, several issues were identified and addressed. The major issues follow in no particular order. Issue 1. Declining Moose Population Mr. Ethier testified that the moose population in the guiding territory had declined due Wildlife Branch's mismanagement. He stated the wolf population is out of control and has negatively affected the ungulate numbers. The Branch introduced evidence to show the moose population was stable to slightly increasing in several Management Units (including MU 7-38) in the Region during 1982-1991: Evidence was, however, also introduced to show that reconnaissance surveys indicated the moose population and allowable havest in the area was lower than earlier estimates, and that the Branch considered Mr. Ethier's portion of MU 7-38 traditionally had low moose density.
APPEAL NO.92/26 WILDLIFE Page 3 On reviewing the evidence the Panel notes the Regional Manager considered the region's moose population had been negatively affected by factors such as an overmature vegetative canopy and the combined effects of increased access, intensive silvicultural practices, predation and hard winters. The Panel also notes that Mr. Ethier's bull moose quota was downwardly revised because of the results of the reconnaissance survey. The Panel accepts that while the parties do not agree on the reasons for the present state of the territory's moose population they do agree that at present the population is low. The Panel must advise, however, that the issue of why the moose population is low is not within the mandate of this Panel to address. Issue 2. Timing of Vacancy Declaration Mr. Ethier testified that although he knew the Regional Manager had the authority to declare the territory vacant, he did not think the Regional Manager would take such an action solely on the basis of nonuse. Mr. Ethier also testified that it was too costly for him to open the territory even on a limited basis because of the $11,000 start up costs. Mr. Ethier stated he did not understand why the Branch was in such a hurry to declare the territory vacant especially when, given the state of the moose population it would do the area good to be "rested" while it was being sold. Mr. Ethier testified that the previous Regional Manager had allowed an individual in the immediate area three years to sell a territory. Regional Manager Zirul testified that in deciding to declare the territory vacant, he considered the province was loosing revenue through Mr. Ethier's inactivity. The evidence showed he also considered he had no authority to allow Mr. Ethier more than two years non-use given sections 58 and 64 of the Wildlife Act and Procedure 4(1)(01.06) of the Province of British Columbia Ministry of Environment Procedure Manual (the Procedure). The Regional Manager stated should his decision be upheld by the Panel, he had no intention of disposing of the property for at least one more year to allow for the possibility of future court actions. Section 58 Wildlife Act (Non use of area) provides: Where a guide outfitter states he does not intend to guide hunters in a year, a) the guide outfitter may apply to the regional manager for permission to temporarily discontinue the use of his guiding area or, b) the regional manager may review the guide outfitter's operation and may suspend, cancel or refuse to renew the guide outfitter licence
APPEAL NO.92/26 WILDLIFE Page 4 This section, then, allows a guide outfitter who plans to not guide in a particular year to ask a regional manager for permission to "temporarily" discontinue the use of the area. The Panel notes with interest that the section does not, however, give explicit authority to a regional manager to give that permission; that is just implied: The Panel is of the opinion section 58 does not limit the number of years a regional manager can authorize non-use, as long as application is made annually. This opinion is supported when the section of the Act dealing with non-use of traplines is considered. Section 44(2) provides: Notwithstanding a regulation or a condition of a licence requiring the holder of a trapline to carry on active trapping, the regional manager may authorize the holder of a registered trapline to temporarily discontinue the use of the trapline for a period not exceeding 2 years. Section 44(2), then, limits a regional manager to authorizing two years of non-use. No such limit is provided in section 58. The Regional Manager also considered Section 64 of the Act (Cancellation of certificate) which provides: Where a guide outfitter fails to renew his licence or pay an annual fee for more than one year, his privileges in and to a guide outfitter's certificate shall terminate, and the guide outfitter shall surrender the guide outfitter's certificate to the regional manager. The Panel notes the Regional Manager testified he had always treated Mr. Ethier as though he had a certificate, even though he did not, as this gave Mr. Ethier greater protection under the Act. The Panel also notes that unlike section 58, this section does not provide the Regional Manager with discretion. In the matter at hand, however, Mr. Ethier had not failed to pay the fee for more than one year when the Regional Manager took action against him. The Procedure considered by the Regional Manager refers to non-renewal of a guide outfitter's licence by a non-certified guide outfitter and provides: (A guide) may apply to the Regional Manager for permission to temporarily discontinue the active use of (the) territory. If such permission is granted (the) interest in the territory will be retained for a period of discontinuance of up to one year and (the guide) will not be required to hold a licence during that period, NOTE The Regional Manager usually may grant permission to "temporarily discontinue" for a first season and a second season but except in exceptional circumstances the Guide
APPEAL NO.92/26 WILDLIFE Page 5 Outfitter should be warned... that he may lose the right to guide unless he actively guides in his area during the third season. It appears, then, that permission for the first year of non-use may be almost automatically granted, permission for a second year will be routinely considered, and permission for a third year will be granted only in exceptional circumstances. The Panel also notes, however, that the procedure concerns non-renewal of a licence and that non-use of territory is referred to only in passing. Therefore, in the opinion of the Panel, the Regional Manager has basis in law to allow a guide outfitter to be inactive in a territory for more than two years. The Panel is also of the opinion that misunderstanding on this point' may have arisen from the ambiguous and confusing wording of the applicable sections of the Act. The Panel supports the Regional Manager's position that it would be inappropriate to dispose of the territory prior to possible court actions. The Panel does note, however, this means the non-use of the territory will continue and the issue of loss of revenue, that being one of the Regional Manager's considerations, will persist. DECISION In making this Decision, the Panel of the Environmental Appeal Board has carefully considered all documentary evidence and testimony presented during the Hearing, whether or not specifically reiterated here. The stewardship of the wildlife resource is vested with the Ministry of Environment, Lands and Parks, which is charged with upholding the Wildlife Act in the public interest. In that regard, guiding is not a right but a privilege and the rules and regulations pertaining to both the guiding industry and those who oversee it must be respected. According to the Honourable Madam Justice Huddart of the Supreme Court of British Columbia, the Environmental Appeal, Board's (and thus this Panel's) duty on appeal is to determine whether the Director properly exercised discretion, that is to say bona fide uninfluenced by irrelevant considerations and not arbitrarily or illegally (Fred Olsen vs James Walker and others, Supreme Court of BC, Duncan Registry No. 2286). In the matter at hand, Mr. Ethier had permission from Regional Manager Zirul not to use his territory for the 1990/91 and 1991/92 hunting seasons and was exempted from obtaining a guide outfitter licence in 1990/91. Mr. Ethier renewed his guide outfitter licence in 1991/92 and. was not opposed to renewing in future years even though he did not intend to guide hunters while the territory was being sold. In his submission to the Deputy Director during the earlier appeal in this matter, the Regional Manager stated Mr. Ethier did not pay an annual fee. During questioning by the Panel, the Regional Manager withdrew this statement as it was incorrect.
APPEAL NO.92/26 WILDLIFE Page 6 When Regional Manager Zirul renewed Mr. Ethier's 1991/92 licence it was, in his words, "to allow you the greatest flexibility for your stated purpose: selling your territory". It appears, therefore, that not only was the Regional Manager aware of Mr. Ethier's desire to sell his property; he indicated he was attempting to provide flexibility to assist in this effort. The following year, however, the Regional Manager declared the territory vacant. In light of the remote location of the territory and specialized nature of the industry, the Panel must question how much "flexibility" is afforded by limiting the time available to sell the territory in this manner. The Panel notes the Regional Manager advised Mr. Ethier he would not condone another year of inactivity in the territory without some definite action taken to address/resolve it. The evidence and testimony showed Mr. Ethier had advertised that the property was for sale in newspapers and hunting magazines in Canada and the United States. The Panel accepts this represents definite action taken to attempt to sell the property. In his final submission in the appeal before the Deputy Director the Regional Manager wrote there was "no basis in law to support (the Regional Manager) continuing to hold this area in Mr. Ethier's name." As has been discussed earlier in this decision; the Panel found the Act and Procedure provide the Regional Manager with authority to exercise discretion in such matters. The Regional Manager's position, therefore, constitutes an error in law. The Deputy Director upheld the Regional manager's decision because the Regional manager acted within his authority under the Wildlife Act. As the Panel has noted, however, the Regional Manager formed his conclusion from an error in law. Therefore, in upholding the Regional Manager's decision, the Deputy Director's decision is patently unreasonable. Section 103(5) of the Wildlife Act provides: In an appeal, the Environmental Appeal Board may (a) (b) dismiss the appeal, or send the matter back to the regional manager or director with directions. It is, therefore, the decision of this Panel that the matter be sent back to the Deputy Director who is directed to reconsider his decision, taking into account: the Regional Manager erred in law when he determined he had no basis in law to continue holding the territory in Mr. Ethier's name; the Regional Manager erred in fact when he informed the Deputy Director that Mr. Ethier did not pay an annual fee;
APPEAL NO.92/26 WILDLIFE Page 7 that the Regional Manager treated Mr. Ethier as though he held a certificate and that Mr. Ethier did not prior to the Regional Manager's decision, violate section 64 Wildlife Act; that the Regional Manager informed Mr. Ethier he was providing him with flexibility to sell his territory; and, Mr. Ethier's effort in advertising the sale of the territory constituted an "action to attempt to effect the sale of the territory". Linda Michaluk, R.P. Bio., Chairman Environmental Appeal Board September 15, 1993