Decision Date: January 24, 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
This is an appeal by Gordon Silverthorne, of the decision by the Regional Manager (the “Regional Manager”), Kootenay Region, Ministry of Environment, to issue Mr. Silverthorne a permit pursuant to section 70(1)(b) of the Wildlife Act. Specifically, Mr. Silverthorne appealed the Regional Manager’s allocation of guided angler days to Mr. Silverthorne’s company Kootenay Fly Shop & Guiding Co. Ltd.
The Regional Manager allocated 2 guided angler days in the Bull River, 218 in the Elk River, 4 in the St. Mary River and 23 in the Wigwam River to Kootenay Fly Shop & Guiding Co. Ltd. Mr. Silverthorne appealed on the basis that the allocation was based on erroneous information, was insufficient for him to continue operating his business and the allocation process was unfair. Mr. Silverthorne requested that the Board increase his total guided angler days to 500.
The Board considered whether the permit was issued in accordance with the Wildlife Act and the Angling and Scientific Collection Regulation, and whether the allocation of guided angler days to Mr. Silverthorne was correct and fair in the circumstances.
The Board concluded that, although the Regional Manager had the authority to issue a permit for guided angler days under section 19 of the Wildlife Act, the application submitted on behalf of Mr. Silverthorne was not a proposal as required in section 11(2)(b) of the Regulation. In addition, the entire process undertaken by the Regional Manager was founded upon the assumption that an angling management plan for the streams in question had been approved, when in fact an angling management plan had not been approved by the Director, and was, therefore, not in effect for the 2005-2006 licence year.
The Board decided to rescind the permit, and not to refer it back to the Regional Manager, because the permit expires in March 2006 and the Ministry expected to allocate guided angler days for the 2006-07 licence year in accordance with an approved angling management plan. In other words, in the future, the allocation of guided angler days will be a condition of an angling guide licence rather than by permit.
This first issue decided the entire appeal. However, the Board also addressed whether the allocation of guided angler days to Mr. Silverthorne was fair and appropriate in the circumstances.
The Board used Mr. Silverthorne’s annual reports, which all angling guides must submit to the Ministry to report the number of angler days guided each year, to verify his historical use of guided angler days during a 5-year reference period. Mr. Silverthorne submitted that the information in the application form was erroneous and did not represent the actual number of guided angler days. In support, Mr. Silverthorne submitted a letter from his accountant. However, the letter did not establish the number of guided angler days used on specific rivers. Considering this, the Board found that Mr. Silverthorne failed to establish his claims regarding the number of guided angler days he actually used on each of the rivers in question and that, in the absence of better evidence, it was reasonable to rely on the annual reports filed by Mr. Silverthorne.
The Board found that Mr. Silverthorne did not demonstrate, on a balance of probabilities, that the allocation of guided angler days to him under the Permit was incorrect or unfair. The Board found that the allocation of guided angler days to Mr. Silverthorne was appropriate.
However, for the reason first stated above, the appeal was allowed.