Decision Date: January 18, 2017
Panel: Brenda Edwards
Keywords: Wildlife Act – ss. 4, 19; Permit Regulation – ss. 2(a), 5; wildlife management area; permit; Crown land; foreshore; tenure; liability
Seaforth Lodge LLC (the “Appellant”) appealed a decision of the Deputy Regional Manager (the “Regional Manager”), Recreational Fisheries and Wildlife Programs, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The Regional Manager denied the Appellant’s application for a permit to use Crown land for an existing boat ramp in a wildlife management area.
The Appellant owns a recreational property in Qualicum Beach. A family with ties to the Appellant uses the property. That family originally purchased the property in the 1930s, and the boat ramp was built around that time. The boat ramp is located on the marine foreshore, which is Crown land, and no lease or other form of tenure was ever granted for the boat ramp. The boat ramp is made of natural wood planks and posts, sand, gravel, aluminum, and nails. It has been repaired and maintained in the same style, with the same type of materials, since it was built. The boat ramp extends from the foreshore up to a wooden boat house on the Appellant’s property, and is used to launch small non-motorized boats and paddleboards.
The boat ramp is located in a wildlife management area designated under the Wildlife Act. The Ministry designated the wildlife management area in 1993, and a management plan for the area guides the Ministry’s exercise of discretion when considering whether to issue a permit for the boat ramp.
In 2001 and 2009, the Appellant decided to make repairs to the boat ramp, and consulted the federal Department of Fisheries and Oceans (“DFO”). The DFO did not object to the repairs, but advised the Appellant to contact the Ministry.
In Spring of 2015, a Ministry Compliance and Enforcement Officer visited the boat ramp, and subsequently issued a notice to the Appellant advising that the ramp was in trespass on Crown land, and directing the removal of the ramp by July 10, 2015. In response, the Appellant contacted the Ministry.
After discussions with the Appellant, the Ministry agreed to extend the deadline for removing the boat ramp, to allow time for the Appellant to apply for a permit. On July 9, 2015, the Appellant applied for a permit for the ramp under section 19 of the Wildlife Act.
In February 2016, the Regional Manager denied the application on the basis that no land tenure was in place for the boat ramp when the wildlife management area was created in 1993, and issuing a permit would deviate from the management plan for the wildlife management area.
The Appellant appealed on the grounds that: lack of tenure is not a reason to deny the permit; the boat ramp is consistent with the objectives in the management plan for the wildlife management area; and, the boat ramp supports recreational activities that do not conflict with protected habitat values. The Appellant requested that the Board allow the boat ramp to remain in place.
The Board considered evidence from both parties regarding the potential impacts of the boat ramp. The Board found that, by designating the area as a wildlife management area rather than a protected area, the Ministry recognized the existence of human habitation and recreation in the area. The Board also found that the boat ramp was not inconsistent with the management plan for the wildlife management area, as the ramp allowed the Appellant to use the area for low impact boating activities while avoiding foreshore damage that could be caused by unmanaged boat launching sites. In addition, the Board found that there had been very little change in the movement of sediments along the foreshore since the boat ramp was built, and there was no evidence that fish or wildlife were adversely affected by the boat ramp. For all of those reasons, the Board concluded that issuing a permit for the boat ramp would not be contrary to either the management plan for the wildlife management area, or the proper management of wildlife resources in accordance with the Permit Regulation.
In addition, the Board found that securing foreshore tenure under the Land Act was not a prerequisite to obtaining a permit under the Permit Regulation and the Wildlife Act, based on the language in the legislation.
Finally, the Board held that there was no evidence that the boat ramp posed a risk to public safety, or that allowing it to remain in place under a permit would expose the Province to liability. Moreover, any risks to the public could be addressed by imposing reasonable conditions in a permit, such as requiring the Appellant to post signs around the boat ramp, or to indemnify the Province for any loss that the Province may suffer as a result of liability arising from permitting the boat ramp.
For all of those reasons, the Board sent the matter back to the Regional Manager with directions to issue a permit for the boat ramp subject to certain conditions.
Accordingly, the appeal was allowed.