• Darlene Clark v. Director, Fish and Wildlife Branch

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    Decision Date: September 16, 2010

    Panel: Alan Andison

    Keywords:  Wildlife Act – ss. 101, 101.1(1); trapper; black bear; appealable decision; jurisdiction

    Darlene Clark appealed against a letter issued by the Director of Fish and Wildlife Branch (the “Director”), Ministry of Environment, which provided notice that there would not be a season for trappers to harvest black bears in certain regions of BC during the 2010/11 and 2011/12 hunting and trapping seasons. Ms. Clark holds a registered trapline on Vancouver Island. The Director’s letter was addressed to three members of the BC Trapper’s Association, including Ms. Clark. Ms. Clark submitted that the Director’s “decision” discriminated against trappers, because black bears are hunted in all regions of the Province, whereas trappers can harvest black bears in certain regions only.

    After receiving Ms. Clark’s notice of appeal, the Board requested submissions from the parties on the question of whether the Director’s letter contained an appealable decision under sections 101 and 101.1(1) of the Wildlife Act (the “Act”).

    Ms. Clark submitted that the Director’s letter contained an appealable decision. The Director submitted that he did not make an appealable decision, because he has no statutory authority to set trapping seasons. Rather, trapping seasons are prescribed in the Wildlife Act Commercial Activities Regulation (the “Regulation”).

    The Board held that schedules in the Regulation prescribe the open seasons for furbearing wildlife in each region of the Province. The Regulation is made by the Lieutenant Governor in Council (i.e. Cabinet), pursuant to section 108(3)(e) of the Act. The Board found that Cabinet, and not the Director, has the statutory authority to decide open seasons for trapping wildlife. In this case, the Director’s letter simply provided notice that no change in the Regulation was forthcoming in terms of the regions where there would be open seasons for trapping black bear.

    In addition, the Board found that sections 101 and 101.1(1) of the Act clearly indicate that only certain decisions of the Director or a regional manager may be appealed to the Board. Decisions of Cabinet are not appealable to the Board, and the Board has no authority to direct Cabinet to amend regulations. Consequently, the Board concluded that the matter appealed by Ms. Clark was not a decision that may be appealed to the Board.

    Accordingly, the appeal was rejected for lack of jurisdiction.