Decision Date: August 3, 2012
Panel: Alan Andison
Keywords: Environmental Management Act – s. 94(1)(a); Wildlife Act – ss. 52(1); Angling and Scientific Collection Regulation – ss. 11(.1), 11(1.2), Schedule A; angling guide; angler day quota; application for participant status
Walter Faetz and four other angling guides (the “Guides”) appealed five separate decisions issued by the Regional Manager, Recreational Fisheries and Wildlife Program, Skeena Region, Ministry of Forests, Lands and Natural Resource Operations. In the appealed decisions, the Regional Manager denied the Guides’ respective bids for angler day quotas on the Zymoetz River downstream of Limonite Creek (“Zymoetz II”) for the 2012/13 season. The Zymoetz II is a classified water under the Angling and Scientific Collection Regulation, B.C. Reg. 125/90 (the “Regulation”). Classified waters are designated in Schedule A of the Regulation. Schedule A also limits the number of guides on the particular water and the number of guided angler days available on that water during the specified – or “classified” – period. All of the Guides have taken clients to fish on the Zymoetz II in past years.
On April 1, 2012, amendments were made to Schedule A of the Regulation in relation to the classified period and the number of angling days available on the Zymoetz II. Previously, Schedule A only regulated the period from September 1 to October 31. Under the amendments, Schedule A was changed to regulate the “shoulder periods” (July – August and November – May), and reduce the previous guided angler days during the September to October period. Following those changes, the Regional Manager required the Guides to submit bids for the guided angler days available on the Zymoetz II during the new classified period. The Regional Manager rejected all of the bids, and the Guides appealed to the Board on a number of grounds.
Before the appeals were heard by the Board, the Guide Outfitters Association of British Columbia (the “GOABC”) applied for participant status in the appeals.
Four of the Guides supported the application for participant status. The remaining Guide provided no comments on the application.
The Regional Manager opposed the application.
In determining whether to grant the application for participant status, the Board applied a two-part test that the Board has previously applied:
The Board found that the GOABC had a valid interest in participating in the appeals. In particular, the Board found that the GOABC has a record of advocacy on matters such as wildlife management that affect the interests of guide outfitters in BC, and in the present appeals, the GOABC intended to address issues of stakeholder consultation and consistency in resource management that would affect the angling guide industry. The Board also noted that the GOABC has participated in many previous appeals before the Board involving issues that affect guide outfitters.
In addition, the Board found that, although the GOABC’s interests were aligned with those of the Guides, the GOABC would bring a perspective that is different from that of the Guides or the Regional Manager. However, the Board held that adding the GOABC as a participant may add complexity to the proceedings, and would add to the cost and length of the appeal hearing. Further, the Board noted that the Guides supported the GOABC’s involvement in the process primarily so that the GOABC could provide “representation” to the Guides and assist them with the legal aspects of their appeals. The Board held that the GOABC does not require participant status to act as the Guides’ representative in the appeal process, or to have its staff testify in support of the Guides’ appeals.
Given the potential for duplication and delay, the GOABC’s intention to address broad issues of importance to angling guides in general, and the Guides’ desire to have the GOABC assist them as a representative, the Board concluded that the circumstances the GOABC should be permitted to participate but should not be permitted to present or cross-examine witnesses. The Board decided to limit the GOABC’s participation to making a brief opening statement and closing submission.
Accordingly, the application for participant status was granted, with limitations.