Decision Date: April 12, 2016
Panel: Cindy Derkaz
Keywords: Wildlife Act – ss. 19(1), 101(1); Permit Regulation – ss. 2(c)(iii), 5(1); trapline; permit; reasons for decision
Martin Sholz appealed a decision of the Regional Manager, Recreational Fisheries and Wildlife Programs, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), denying Mr. Sholz’s application for a permit to trap fur bearing animals on a vacant trapline located south of Fort St. John, BC.
The trapline was established sometime in the first half of the 20th century. The trapline had been vacant (i.e., not registered to a trapline owner) since 1985. Mr. Sholz had periodically held permits for the trapline since 1996. Most recently, he held a permit that was issued in September 2011 and expired in May 2012.
In 2015, Mr. Sholz applied for a permit to trap on the trapline during the 2015/2016 trapping season.
In September 2015, the Regional Manager denied the permit application, and issued a decision stating that the application was being denied because the trapline was vacant and “The Province does not recognize that trapping may take place on vacant traplines.”
Mr. Sholz appealed the Regional Manager’s decision on several grounds, including that the Regional Manager’s decision was unfair and conflicted with the past practice of issuing permits for the trapline. Mr. Sholz requested that the Board issue him a permit to trap on the trapline.
The Regional Manager opposed the appeal, and submitted that he reached a fair, principled and reasonable conclusion.
The Board offered the Doig River First Nation (the “DRFN”) participant status in the appeal, which it accepted. The DRFN holds treaty rights to hunt, trap and fish in an area that includes the trapline, and has expressed an interest in acquiring the trapline as part of an agreement that is being negotiated with the Crown regarding compensation for the loss of historic trapping areas. The DRFN submitted that the Regional Manager’s decision was appropriately made.
The Board found that section 19(1) of the Wildlife Act and sections 2 and 5(1) of the Permit Regulation give regional managers broad discretion in deciding whether to issue a permit. The Board also found that the previous permit issued to Mr. Sholz clearly stated that permits are issued on a yearly basis, and there should be no expectation that a permit holder will receive a permit simply because they received one in past years.
However, the Board also noted that section 101(1) of the Wildlife Act requires regional managers to give written reasons for a decision that affects an application for a permit. After considering the Regional Manager’s decision letter denying Mr. Sholz’s permit application, the Board concluded that the reasons given by the Regional Manager were unclear, did not refer to any legislative authority or Ministry policy, and suggested that the Regional Manager may have fettered his discretion. In addition, the Board found that the appeal process can provide an opportunity for the Regional Manager to explain how he came to his decision and to cure any procedural defects in his decision-making process, but the Regional Manager’s submissions in this case did not explain how he came to his decision. The Regional Manager acknowledged that he had consulted with the DRFN regarding its claims within the trapline area, but he submitted that this did not prevent him from issuing a permit to trap. The Board found that there was no evidence that the Regional Manager had considered anything other than the Province’s apparent new position regarding vacant traplines.
In summary, the Board found that nothing in the Regional Manager’s decision letter or appeal submissions clearly described why he had denied Mr. Sholz’s application. As a result, the Board was unable to conclude that the Regional Manager had properly and fairly considered the merits of Mr. Sholz’s application. In these circumstances, the Board decided that the appropriate remedy was to refer the matter back to the Regional Manager with directions to provide proper written reasons to Mr. Sholz.
Accordingly, the appeal was allowed.