Decision Date: January 5, 2006
Panel: Cindy Derkaz
Keywords: Wildlife Act – ss.19, 49, 52, and 70; Angling and Scientific Collection Regulation – ss.11(1), (2) and (3)(b); angler day; angling guide; classified waters, angling management plan
Randall M. Smith appealed the Regional Manager’s decision to issue Mr. Smith a permit to work as an angling guide in three areas (Skookumchuk Creek, St. Mary River and Elk River). Specifically, Mr. Smith appealed the Regional Manager’s allocation of angler days for each of those areas.
Mr. Smith received 24 guided angler days for St. Mary River, 14 for the Skookumchuk Creek and 0 for Elk River. Mr. Smith’s main issue in this appeal is that the allocation of angler days is insufficient and placed “an extreme burden” on his ability to maintain a viable guiding business. He submitted that he has a history of guiding clients to Elk River and that he was being treated unfairly considering the number of guided angler days other licensed guides were given.
An additional issue that the Board raised was whether the Regional Manager had the jurisdictional authority to issue the permit under the Wildlife Act, and the Angling and Scientific Collection Regulation (the “Regulation”).
The Regional Manager submitted that he allocated guided angler days for the three classified waters Mr. Smith applied for, by using the method outlined in section 11(2)(b)(ii) of the Regulation, which sets out a procedure for the Regional Manager to allocate guided angler days when an angling management plan for the streams in question has not yet been approved.
The Board concluded that the Regional Manager erred when he allocated guided angler days to Mr. Smith based on the angling management plan for the streams which had not yet been approved rather than by following sections 11(2)(b) of the Regulation.
The Board found that, although the Regional Manager had the authority to issue a permit for guided angler days under section 19 of the Wildlife Act, the applications submitted by the angler guides were not proposals, as required in section 11(2)(b) of the Regulation. Consequently, the entire process undertaken by the Regional Manager was founded upon the assumption that the angling management plan was in place, when in fact the angling management plan had not been approved by the Director, and was, therefore not in effect for the 2005-2006 licence year.
The Board thus decided to rescind the permit. The Board decided not to refer the permit back to the Regional Manager as Mr. Smith’s angling season was essentially over and the Regional Manager stated that, in the future, the allocation of guided angler days will be done in accordance with an approved angling management plan.
Although this first issue decided the entire appeal, the Board also addressed whether the allocation of guided angler days to Mr. Smith was fair and appropriate in the circumstances.
The Board concluded that Mr. Smith did not demonstrate that he had been treated unfairly in the allocation of guided angler days. He had no history of guiding on the Elk River during the reference period used to determine historical use, and it was therefore appropriate to receive no guided angler days on that river. The Board also found that the allocation for the Skookumchuck and St. Mary Rivers were all reasonable.
Accordingly, the Board found that number of days allocated to Mr. Smith was fair and appropriate.
Based on the Board’s findings on the jurisdictional issue, the appeal was allowed.