Decision Date: March 31, 2010
Panel: Carol Brown
Keywords: Wildlife Act – s. 19; 101(1); Motor Vehicle Prohibition Regulation – s. 3; Permit Regulation – ss. 3(2), 5(1); permit; disabled hunter; duty to accommodate
Dale F. Anderson appealed a decision of the Regional Manager, Recreational Fisheries and Wildlife Programs, Kootenay Region, Ministry of Environment (the “Ministry”), denying Mr. Anderson’s application for a permit exempting him from the Motor Vehicle Prohibition Regulation (the “Regulation”) with respect to certain areas within Management Units (“MUs”) 4-3 and 4-22. Mr. Anderson sought the permit so he could use a motor vehicle to access areas that are otherwise closed to motor vehicles for the purpose of hunting. Mr. Anderson was granted a permit for MU 4-3, but denied a permit for MU 4-22.
Mr. Anderson sought the permit on the basis of his physical disability, which was not in dispute. The Regional Manager denied Mr. Anderson’s application with regard to MU 4-22 on the basis that some of the areas in MU 4-22 (Pickering Hill and Sheep Mountain) are designated as Access Management Areas which are ecologically sensitive, some areas in transition to that designation (Quinn Creek/Alpine Creek), and the other area (Upper Bull Main Road) is not closed to motorized access.
Mr. Anderson appealed with respect to Quinn Creek and Upper Bull Main Road on the basis that he was able to hunt for winter meat in those areas by walking into them before he became disabled. With his disability, he is no longer able to do so.
The Board considered whether the Regional Manager failed to accommodate Mr. Anderson as a disabled hunter by refusing his application with respect to Quinn Creek and Upper Bull Main Road, and/or failing to engage in discussions with Mr. Anderson regarding alternative areas. The Board noted that, in accommodating disabled hunters, the Ministry must balance the competing interests between providing hunting opportunities to hunters with physical disabilities and the conservation of the environment and the Ministry must provide reasonable accommodation unless doing so would cause the Ministry undue hardship.
The Board accepted the Regional Manager’s evidence that Quinn Creek is in transition to being designated as an Access Management Area to protect sensitive ecological values. In these circumstances, the Board found that allowing Mr. Anderson to use a motor vehicle to access Quinn Creek would amount to undue hardship, and the Board confirmed the Regional Manager’s decision with regard to Quinn Creek.
With regard to Upper Bull Main Road, the Board found that the Regional Manager was uncertain as to which area Mr. Anderson was referring to. The Board also found that there was no evidence that the Ministry attempted to engage in discussions with Mr. Anderson to determine whether it could provide alternative accommodation if the area he sought access to was closed to motor vehicles. Consequently, the Board referred the matter back to the Regional Manager with directions to engage with Mr. Anderson to find out what area he is referring to, and if necessary, to determine alternative accommodation.
Accordingly, the appeal was allowed, in part.