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 NO. 98-WIL-08 In the matter of an appeal under section 101.1 of the Wildlife Act, R.S.B.C. 1996, c. 488. BETWEEN: David Robb APPELLANT AND: Director of Wildlife RESPONDENT BEFORE: DATE OF HEARING: A Panel of the Environmental Appeal Board Toby Vigod, Chair Conducted by way of written submissions concluding on September 8, 1998 APPEARING: For the Appellant: David Robb For the Respondent: Geoff Swannell APPEAL This is an appeal by David Robb of a decision of Nancy Bircher, Director of Wildlife, (the Director ) dated February 28, 1998, denying Mr. Robb s application for a permit to possess and export moose antlers. The Panel of the Environmental Appeal Board has the authority to hear this appeal under section 11 of the Environment Management Act and section 101.1 of the Wildlife Act (the Act ). Under section 101.1 of the Wildlife Act, the Board has the power to conduct an appeal by way of a new hearing, and may confirm, reverse, vary, or send back to the Director or Regional Manager the decision being appealed. The Board may also make any decision that the person whose decision is being appealed could have made, and that the Board considers appropriate. Mr. Robb seeks permission to possess and export one moose antler. BACKGROUND On November 22-24, 1996, Mr. Robb accompanied his cousin, Terrance Vantroyen, on a hunting trip for moose in the Prince George area. Mr. Robb is an American citizen and was observing the hunt. His cousin is a Canadian citizen and was hunting moose legally. On November 22, 1996, Mr. Robb found a large moose antler on the ground. The presence of a brow burr on the antler indicated that it was cast off naturally by the animal. On November 23, 1996, his party found the guts and head of a poached

APPEAL NO. 98-WIL-08 Page 2 moose. They sawed off its antlers and did not report finding the remains, despite recognizing that it was probably an illegal kill. Later that day, Mr. Vantroyen legally shot a moose, and gave Mr. Robb some of its meat. Mr. Robb wanted to take the moose meat, sawed off antlers, and cast off antler back to the United States. On November 26, 1996, Mr. Robb spoke with Mr. Horseman, a U.S. Customs Officer, who advised him that he could export the meat and antlers if he obtained copies of the hunter s hunting licence, the species licence, and a note gifting him the meat. Mr. Robb had previously spoken to Ministry of Environment, Lands and Parks staff in Prince George and Penticton about the legality of attending the hunting trip. However, it appears he was either misinformed, misunderstood, or did not specifically inquire with Canadian Conservation or Customs officials regarding the administrative procedures required to possess and export moose parts. On December 11, 1996, Mr. Robb was attempting to leave Canada with a quantity of moose meat and three antlers when he was stopped at Vancouver airport customs. He had copies of the documents and a note as described by Officer Horseman. While these documents could be used to obtain a permit to possess or export the parts, they alone were not sufficient for him to export the parts. The R.C.M.P. confiscated the moose parts, turned them over to Conservation Officers, and informed Mr. Robb that he had to acquire a permit before he could export them. Mr. Robb contacted Regional Conservation Officer Mark Hayden [now Deputy Director of Wildlife], who explained that Mr. Robb had contravened sections 34(2) - unlawful possession of wildlife parts [now s. 33], and 22(1)(b) unlawful export of wildlife parts [now s. 21] of the Wildlife Act. On December 11, 1996, Mr. Hayden initially issued Mr. Robb a violation ticket for the two contraventions, fining him $100 for each contravention ($200 in total). When Mr. Robb explained that he was unemployed and was an American citizen, Mr. Hayden decided that the most suitable penalty was retention by the Crown of the antlers in Mr. Robb s possession. The violation ticket was changed to a warning ticket, and the fines were waived. On December 12, 1996, Mr. Hayden took a statement from Mr. Robb regarding how he came into possession of the sawed off moose antlers. As his final comment in that statement, Mr. Robb explained that he thought he was following the rules based on his conversations with Canadian and U.S. Customs, and particularly the advice of Officer Horseman. Also on December 12, 1996, Mr. Hayden granted Mr. Robb a permit to possess and export the moose meat, which was then returned to Mr. Robb. On February 18, 1997, Mr. Hayden received a letter from Mr. Robb requesting a permit to possess and export the cast off antler. On March 19, 1997, Mr. Hayden sent him a letter denying the request and advising him, incorrectly, of his right to appeal to the Regional Wildlife Manager. Mr. Robb did so, but received no response from the Regional Manager. On July 16, 1997, Geoff Swannell sent Mr. Robb a letter advising him that he should have appealed to the Director of Wildlife rather than the Regional Manager, but that unfortunately the period for requesting an

APPEAL NO. 98-WIL-08 Page 3 appeal had elapsed. On August 12, 1997, the Wildlife Branch received a letter from Mr. Robb explaining that he was misinformed by Mr. Hayden about the proper appeal process, and requested that the Director consider his appeal. On August 18, 1997, Mr. Swannell sent Mr. Robb a letter advising him that he could make a new request to the Director for a possession permit. On January 13, 1998, the Director received a request from Mr. Robb for a permit to possess and export the cast off antler. On February 28, 1998, the Director decided to deny the request on the grounds that the antlers in question were legally seized, and that she had no authority to reverse that decision or return any seized item. The Director also stated that his appeal to her was too late to consider, because under the Wildlife Act an appeal to the Director must be received within 30 days of a Conservation Officer s decision. Based on Mr. Hayden s March 1997 decision, and Mr. Swannell s July 1997 advice that the appeal should have been sent to the Director, she concluded that no further action could be taken. Subsequently, Mr. Robb sent a notice of appeal dated March 16, 1998 to both the Director and the Environmental Appeal Board asking that his case be considered. On April 21, the Board informed Mr. Robb that it would hear his appeal, accepting the January 13, 1998 letter to the Director as Mr. Robb s request for a permit. Therefore, it is the Director s February 28, 1998 decision to refuse the permit for possession and export of the cast off antler, which is before the Panel. RELEVANT LEGISLATION Under section 100(1) of the Wildlife Act, the Director may do an act or thing that a regional manager is empowered to do. Under section 19, regional managers or their delegates may issue permits for activities otherwise prohibited by the Act or its regulations. Under the Wildlife Act Permit Regulation: 1 A regional manager, by issuing a permit with whatever conditions, limits and period or periods he may include in or attach to the permit, may authorize (k) a person to export from the Province, wildlife or parts of them. (l) a person to possess dead wildlife or parts of them. Mr. Robb was issued a warning ticket for contravening sections 22(1) and 34(2) of the Wildlife Act, which are now listed as sections 21(1) and 33(2) respectively: 21 (1) Except as authorized by a permit issued under this Act or under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, a person commits an offence if the person (b) exports out of British Columbia wildlife or parts of them, or the egg of a wildlife species.

APPEAL NO. 98-WIL-08 Page 4 33 (2) A person commits an offence if the person has dead wildlife or a part of it in his or her possession except as authorized under a licence or permit or as provided by regulation. The Wildlife Act provides the following direction regarding seizure of wildlife or parts of wildlife and its disposition: Seizure 94 If a conservation officer or constable (a) finds on a person wildlife or fish that he or she believes on reasonable grounds was killed, taken or possessed in violation of this Act or the regulations, or about to be illegally exported the officer or constable may seize wildlife or fish or parts of either or anything at or in the place, building or premises, or in the possession of a person, that might afford evidence of the commission of an offence under this Act or the regulations. Disposition of property seized 98 (5) If wildlife or fish or parts of either are exhibits in a prosecution under this Act, they must be delivered to the minister. ISSUES (6) If anything is forfeited to the government or delivered to the minister under this section, the minister may dispose of it in a manner the minister considers appropriate. The Panel has identified the issues in this appeal as follows: 1. Whether the Director s decision not to grant the permit for possession and export of the cast off antler was proper and reasonable? 2. Whether the Director can order the release of an item seized in relation to a Wildlife Act contravention? DISCUSSION AND ANALYSIS 1. Whether the Director s decision not to grant the permit for possession and export of the cast off antler was proper and reasonable? The Director denied Mr. Robb s request for a permit on the grounds that the antlers in question were legally seized by the Conservation Officer Service, and as such, she had no authority to reverse that decision or return any seized item. The Panel finds that this decision is confusing and provides sparse reasons for denying the permit.

APPEAL NO. 98-WIL-08 Page 5 It is unclear whether the Director is referring to the three moose antlers together, or only the cast off antler. Mr. Swannell s submissions for the Respondent suggest that the issue is whether Mr. Robb be issued a permit for one or more of the three moose antler pieces seized. However, Mr. Robb s request clearly concerns only the cast off antler, not the sawed off antlers. While Mr. Robb was apparently unaware in November 1996, that he should not have taken them, he never disputed the seizure of the sawed off antlers once informed that their possession by him was illegal. Therefore, this appeal will only deal with the possession and export of the cast off moose antler. Furthermore, the Director does not mention the fact that Mr. Robb does not require a permit for possession of the cast off antler. In a memo dated May 28, 1997 from Fred Barnes to Mr. Hayden, Mr. Barnes states that he reviewed Wildlife Branch policy/procedure, File 1123, dated August 23, 1990, and verified its application. According to that procedure and its practice, it was clear to him that Mr. Robb did not require a permit to possess a cast off moose antler or export it to the U.S. He asked Mr. Hayden on what grounds was the antler deprived from Mr. Robb. Later that day, Mr. Hayden replied that Mr. Barnes was correct in assuming no permit is required for possession of a cast antler, but claimed that a permit is required for export. Given the broad wording of section 21 of the Act, the Panel agrees that a permit is required to export a cast off antler. Thus, while Mr. Robb required a permit for possession and export of the meat, which he obtained, he only required an export permit for the cast off antler. The Director has the power to issue permits for exporting wildlife or parts of them via her ability to take on the powers of the Regional Manager under section 100 of the Act. Under section 101.1 of the Act, the Board has the power to make any decision the Director could have made. Thus, the Panel has considered the merits of issuing an export permit versus the merits of continuing to retain the cast off antler. The Panel notes that the Wildlife Act, its regulations, and Ministry of Environment, Lands and Parks policy provide no guidance regarding when to permit the export of cast off antlers. The Director s primary reason for refusing the permit was that the antlers were legally seized. While it appears that the seizure was lawful given that Mr. Robb did not possess a permit to export a cast off antler, the Director did not expressly address the merits of issuing a permit versus continuing to retain the cast off antler, nor any of Mr. Robb s arguments for granting him a permit. The Respondent s submissions to the Board state that the Director investigated the matter and found the seizure to be lawful and proper given Mr. Robb s violations. The Respondent states that the facts of the case do not support granting Mr. Robb an export permit. According to Mr. Hayden, the cast off antler was retained because Mr. Robb stated that he could not pay the $200 fine for contraventions concerning the possession and export of the moose meat, sawed off antler, and export of the cast off antler. While it is clear that Mr. Robb committed these contraventions, whether it was appropriate to retain the cast off antler in lieu of the fine is not specifically addressed in the Director s decision or in the Respondent s submissions.

APPEAL NO. 98-WIL-08 Page 6 There is no express authority in the legislation stating that a Conservation Officer may retain seized property in lieu of a fine where a person issued a warning cannot pay the fine. Conservation Officers appear to have broad and vaguely defined powers regarding seizure and disposition of wildlife parts. However, Ministry of Environment, Lands and Parks Procedure Volume 5, Section 1, subsection 06.03 provides some guidance on the disposition of seized wildlife for offences where an officer decides to warn rather than lay a charge. Under this procedure, the Regional Conservation Officer is to ensure that the evidence supports a forfeiture had the case been presented to a court or other hearing. If so, the Regional Conservation Officer is to notify the person it was seized from and advise the person of their appeal rights. The Regional Conservation Officer is to order the return of the seized property should the evidence not support a forfeiture. Although the Respondent admits that the procedure was not strictly followed by Mr. Hayden, in that he incorrectly advised Mr. Robb about the proper appeal procedure, the Respondent submits that the final result would be the same if the procedure had been followed. Neither the Director s decision nor the Respondent s submissions offer strong reasons why the cast off antler was considered an appropriate substitute for the potential $200 fine, nor why it was appropriate to allow Mr. Robb to export the moose meat, but not the cast off antler. Mr. Hayden stated that retaining the antler was, he believed, the most suitable penalty for Mr. Robb s contraventions given that he could not afford the fines, is a U.S. citizen, and the freezer at the Surrey Wildlife Office was full and, presumably, could not accommodate the meat. Mr. Hayden also mentioned that Mr. Robb s cousin improperly filled out the species tag for the moose shot on their trip, and that there remained suspicion over who had shot the poached moose. However, there is no evidence to suggest that Mr. Robb or anyone in his hunting party was responsible for the poaching. The fact that Mr. Robb s cousin was convicted of filling out the tag improperly for the legally hunted moose is a separate matter and not relevant to this decision. Mr. Robb claims he did make inquiries as to the proper procedures concerning export of moose parts, was not intending to break the law, and was unaware that he was breaking the law. Once informed of what he had done wrong, he cooperated with authorities and presented the documentation required for obtaining the necessary permit. He also claims that on the day of the seizure, Mr. Hayden informed him that he would probably get his meat and antlers back if he applied for the proper permit. It is not clear whether the Director fully considered these arguments, nor the unfairness to Mr. Robb of losing his right to appeal Mr. Hayden s decision due to an error made by Mr. Hayden. The Panel is conscious of the fact that Conservation Officers must make timely and practical decisions in situations such as this. The Panel realizes that, given that Mr. Robb s departure from Canada was imminent, retaining the antler may have seemed like an expedient way of dealing with his inability to pay the fine. However, there is some inconsistency when one considers the fact that Mr. Hayden allowed Mr. Robb to obtain a permit to possess and export the moose meat, yet found that the facts supported forfeiture of the cast off antler. The cast off antler was not in Mr. Robb s possession illegally. It is clear that Mr. Robb had intended to comply with the law regarding possession and export of the moose parts. While he did, or

APPEAL NO. 98-WIL-08 Page 7 at least attempted to break the law regarding export of the cast off antler, this was either due to misinformation or misunderstanding of the law. He cooperated with Customs and Conservation Officers and did have the proper documentation to obtain a permit. If Mr. Robb had applied for a permit before reaching Customs, it seems likely that he would have been granted the right to export the cast off antler. The antler is not from an endangered species, does not appear to pose a health or safety risk, was not a part of a dead animal, and was naturally discarded by a live animal. No evidence was provided as to its monetary value, but there is evidence that it has significant sentimental value to Mr. Robb. The Panel finds that the cast off antler was legally seized by Mr. Hayden, and that he legally exercised his discretion by issuing Mr. Robb with a warning and fine for his contraventions. However, the substitution of the cast off antler for the $200 fine is not permitted according to the statute. The Panel finds Mr. Hayden s decision to refuse an export permit for the cast off antler in lieu of the fine is based, at least partially, on improper considerations, namely that Mr. Robb and his cousin had committed other offences not relevant to Mr. Robb s possession or attempt to export the cast off antler. In addition, Mr. Hayden did not fully adhere to the rules of administrative fairness or Ministry policy by misinforming Mr. Robb of the proper appeal procedure, resulting in his loss of appeal. This was unfair to Mr. Robb. The Panel finds that the Director failed to properly define the issue for decision, i.e. whether Mr. Robb should be granted a permit to export the cast off antler. It also appears that she considered the legality of the seizure decision, but not whether the evidence warranted forfeiture of the antlers, which is the effective outcome of not granting the permit. In light of all of these factors, the Panel finds that the Director did not properly define the matter to be decided, and did not consider all relevant factors in rendering her decision. Had the Director defined the matter properly and considered all the relevant information, the Panel finds that Mr. Robb would have been granted a permit to export the cast off antler. 2. Whether the Director can order the release of an item seized in relation to a Wildlife Act contravention? The Director also states in her decision that she has no authority to reverse a legal seizure decision. She does not state on what grounds she reaches this conclusion. After reviewing the relevant legislation and policy in this regard, the Panel concludes that there is no express power for the Director to overturn a seizure decision by issuing a permit. However, there is no express provision barring the Director from doing so. Therefore, the question becomes whether the Director has an implied power to effectively overturn a seizure or forfeiture decision by granting a permit. Section 98 of the Act deals with disposition of seized property. Subsections 98(1) through 98(3) deal with seized property other than wildlife or fish or parts thereof. Section 98(4) deals with disposition of seized wildlife parts that will rot or spoil.

APPEAL NO. 98-WIL-08 Page 8 Antlers do not fall under this provision. Under subsection 98(5) of the Act, seized wildlife parts must be delivered to the minister if they are exhibits in a prosecution under the Act. Under subsection 98(6), anything forfeited to the government or delivered to the minister under that section may be disposed of by the minister. Thus, the Act is silent on the disposition and forfeiture of seized wildlife parts that are not exhibits in a prosecution. Regulations under the Act are also silent in this regard. However, the Wildlife Act clearly gives the Director the authority to issue a permit to export wildlife parts. It is logical that the Director would have the implied power to return a seized item where that return is a consequence of her decision to grant a permit. It would result in an internal conflict in the legislation if the Director could give a right to export a thing by permit, but had no power to return that thing. The item under permit must be released so that it can be exported. If the cast off antler is released as a result of granting such a permit, the release is merely an administrative matter. Therefore, the Panel does not find it is reasonable to conclude that because the cast off antler was legally seized, its seizure usurps the Director s statutory power to issue permits for the export of wildlife parts. DECISION The Panel finds that the Director s decision not to issue a permit for possession and export of antlers failed to properly address the request made by Mr. Robb, and failed to adequately consider all of the relevant factors. The Panel finds that the Director has the authority to grant a permit for export of a cast off antler that has been seized where no prosecution has been undertaken. Thus, after considering all of the evidence and arguments presented by both parties, the Panel finds that Mr. Robb should be issued a permit to export the cast off moose antler seized from him. No permit is required to possess this antler. Accordingly, the Director s decision is reversed. The Panel notes that there is lack of statutory and policy guidance concerning cast off antlers or other things naturally shed by live animals, and the disposition of seized wildlife parts where no prosecution is undertaken. Clarification of statutes and policy would help the public and the Ministry of Environment, Lands and Parks determine their rights and responsibilities regarding these matters. Toby Vigod Toby Vigod, Chair Environmental Appeal Board September 29, 1998