Decision Date: April 12, 2007
Panel: David H. Searle, C.M., Q.C.
Keywords: Wildlife Act – ss. 51(1), 59(1); guide outfitter certificate; guide outfitter licence; beneficial owner; procedural fairness; Turnagain Holdings Ltd. v. Environmental Appeal Board et al., 2001 BCSC 795.
Michael David Winger appealed a decision of the Regional Manager of Environmental Stewardship, Kootenay Region, Ministry of Environment (the “Ministry”), refusing to renew Mr. Winger’s guide outfitter licence and refusing to reissue to him a guide outfitter certificate. The certificate and licence would have given Mr. Winger the exclusive right to guide hunters in the territory described in the certificate, which consisted of a large area in the east Kootenays. Mr. Winger requested that his licence be renewed and a new certificate be issued to him.
Mr. Winger first applied for a licence and certificate for the territory in 2005, after the previous holder of the certificate had decided to relinquish it to Mr. Winger. When the Akisqnuk First Nation (the “First Nation”) learned of the proposed transfer, it advised the Regional Manager that it was the beneficial owner of the territory, and that it had not consented to the transfer. The Regional Manager advised Mr. Winger and the previous certificate holder to meet with the First Nation to resolve the matter. The parties subsequently reached an interim agreement, whereby the First Nation generally consented to Mr. Winger guiding in the territory until January 31, 2006. In August 2005, the Regional Manager issued a licence and certificate for the territory to Mr. Winger, both of which expired on January 30, 2006.
The interim agreement contemplated further discussions between the parties regarding the territory, but no new agreement with the First Nation was reached before Mr. Winger’s certificate and licence expired. After Mr. Winger filed his applications with the Ministry, the First Nation entered into a contract with another guide to manage the territory on their behalf. The First Nation advised the Regional Manager of its decision in May 2006. In August 2006, the Regional Manager denied Mr. Winger’s applications on the basis that Ministry records confirmed that the First Nation was the beneficial owner of the guiding privileges, and as such it had the right to designate a person to hold the certificate and licence on its behalf. Mr. Winger filed an appeal with the Board.
The Board found that Mr. Winger should have understood the nature of the First Nation’s interest in the guiding privileges, given the clear language in the interim agreement. Additionally, the Board held that a regional manager should consider the interests and wishes of a beneficial owner, which was the First Nation in this case. The Board concluded that, given the First Nation’s decision to choose a different guide to manage the territory, the Regional Manager properly refused Mr. Winger’s applications. The Board further found that, although Mr. Winger was not given a formal opportunity to be heard before the Regional Manager denied the applications, there was no requirement to do so under the circumstances, and any defects in the Regional Manager’s process were cured by the appeal process.
The appeal was dismissed.