Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 APPEAL NOS. 1999-WIL-27 and 1999-WIL-28 In the matter of two appeals under section 101.1 of the Wildlife Act, R.S.B.C. 1996, c. 488. BETWEEN: Abe Crimeni APPELLANT #1 AND: Ken Russell APPELLANT #2 AND: Senior Conservation Officer, acting under the delegated authority of the Regional Wildlife Manager RESPONDENT BEFORE: DATE: A Panel of the Environmental Appeal Board Toby Vigod, Chair Conducted by way of written submissions Concluding on December 21, 1999 APPEARING: For the Appellants: Finn Jensen, Counsel For the Respondent: Jim Corbett APPEALS Two appeals were filed against two separate decisions issued by Jim Corbett, Senior Conservation Officer, acting under the powers of a regional manager, Fraser Valley/Squamish Sub Region. One decision was issued to Abe Crimeni; the other was issued to Ken Russell. Both decisions were forwarded to the Appellants by letters dated August 11, 1999, in response to their applications for permits to possess one bald eagle carcass each. In both cases, the applications for a possession permit were refused. The Environmental Appeal Board has the authority to hear these appeals under section 11 of the Environment Management Act, and section 101.1 of the Wildlife Act. Under section 101.1 of the Wildlife Act, the Board has the power to conduct an appeal by way of a new hearing, and may confirm, reverse, vary, or send back to the director or regional manager the decision being appealed. The Board may also make any decision that the person whose decision is being appealed could have made, and that the Board considers appropriate. The Appellants seek an order overturning Mr. Corbett s refusal to issue the requested possession permits, and granting them permits to possess the bald eagles they surrendered to the Chilliwack Conservation Office in January, 1999.
APPEAL NOS. 1999-WIL-27 and 1999-WIL-28 Page 2 Given the similar nature of the appeals, the Board ordered that the two appeals be heard together. These appeals were conducted by way of written submissions. BACKGROUND In January 1999, the Appellants were engaged in the construction of a building at the Westcoast Transmission Compressor Station on Dyke Road at Rosedale, British Columbia. On two separate occasions that month, immature bald eagles made contact with the Hydro lines servicing the compressor station. Both were electrocuted as a result. On the first occasion, Hydro crew members confirmed to the Appellants that a power outage at the compressor station had been caused by an eagle, and that the bird s carcass was left at the side of the road near the point of impact with the power lines. Mr. Crimeni proceeded to retrieve the carcass. He submits that he attempted to telephone the Conservation Office at Chilliwack, B.C., and that on receiving no answer, he took the carcass home and froze it to preserve it. Mr. Crimeni subsequently succeeded in contacting the Conservation Office and, approximately two days later, a Conservation Officer attended the Crimeni residence to retrieve the carcass. Mr. Crimeni explained to the Conservation Officer that he was interested in keeping the eagle and having it live mounted for display, and that he wished to acquire a permit to do so. A few days later, the second eagle made contact with the Hydro lines near the compressor station and was killed. On this occasion it was Mr. Russell who located and retrieved the carcass. The Appellants submit that initial attempts to contact the Conservation Office were unsuccessful, and that Mr. Russell turned the carcass over to Mr. Crimeni, who repeated the procedure followed with the first carcass. When a Conservation Officer came to retrieve the second eagle carcass, Mr. Russell applied for a possession permit, also for the stated purpose of live mounting the specimen for display. On August 11, 1999, Mr. Corbett, acting under the authority delegated to him by the Regional Wildlife Manager, wrote to the Appellants to inform them of his decisions to refuse their applications for permits to possess the bald eagle carcasses. He stated that regional policy stipulates that there will be no permits issued for possession of bald eagles to non-first Nations people. On September 9, 1999, the Appellants appealed the decisions of Mr. Corbett. In amended Notices of Appeal, dated September 27, 1999, they submitted that their grounds for appeal were: (1) the decisions were racially discriminatory and a violation of the Appellants human rights and constitutional rights; (2) the policy of Region 2 as it relates to the approval of possession permits for bald eagle carcasses ( the Regional Policy ) is discriminatory and a breach of both the Human Rights Code of B.C. and the Canadian Charter of Rights and Freedoms;
APPEAL NOS. 1999-WIL-27 and 1999-WIL-28 Page 3 (3) the Regional Policy was made without statutory authority and hence of no force and effect; and (4) Mr. Corbett acted without authority, or, in the alternative, acted arbitrarily and contrary to the rules of natural justice in reaching his decisions. The Appellants say that they are eligible for and should be granted a permit to possess the bald eagles they retrieved which would otherwise have been lost to natural predators. RELEVANT LEGISLATION Section 2 of the Wildlife Act states: Property in wildlife 2 (1) Ownership in all wildlife in British Columbia is vested in the government. (2) A person does not acquire a right of property in any wildlife except in accordance with a permit or licence issued under this Act or the Game Farm Act or as provided in subsection (3) of this section. [ ] There is no dispute that the eagles are wildlife under the Act. Section 33 of the Act deals with possession of dead wildlife. Subsection 33(2) states: (2) A person commits an offence if the person has dead wildlife or a part of it in his or her possession except as authorized under a licence or permit or as provided by regulation. Section 1 of the Wildlife Act Permit Regulations (B.C. Reg. 337/82) states: 1 A regional manager, by issuing a permit with whatever conditions, limits and period or periods he may include in or attach to the permit, may authorize ( ] (l) a person to possess dead wildlife or parts of them, The Regional Policy referenced by Mr. Corbett states: I/ Bald and Golden Eagles a) Permits are not issued to individuals to possess and to have eagles mounted, or to salvage feathers and other parts. These birds are to
APPEAL NOS. 1999-WIL-27 and 1999-WIL-28 Page 4 remain property of the Crown pending distribution to First Nation governments for distribution for use in ceremonial and cultural activities by their people. b) Retain bird in Ministry possession (subject to the provisions of the Ministry Procedure Manual Disposal and Storage of Dead Wildlife and Parts ) for transfer to the Aboriginal Affairs Officer, MELP, Surrey. In addition, the Ministry s Procedure Manual provides guidance for decision makers on the disposal and storage of dead wildlife and parts in Volume 4, Section 7, subsection 12.04. At page 5, paragraph 4(3), it sets out priorities for the disposal of parts of wildlife other than meat. They are listed as: (a) Government uses e.g. research, education, museum exhibits and collections, etc. (b) Bona fide scientific or medical uses (c) Traditional ceremonial or dress purposes; aboriginals receiving first priority (d) Commercial sale (Disposal by government auction) (e) Private possession in accordance with Policy and Procedures ISSUES The issues raised by the Appellants in this appeal are as follows: 1. Whether the decisions and/or the Regional Policy violate the Appellants human rights and constitutional rights in that they discriminate on the basis of race. 2. Whether the Regional Policy was made without statutory authority. 3. Whether Mr. Corbett acted without authority, or, in the alternative, acted arbitrarily and contrary to the rules of natural justice in reaching his decisions. The Panel notes that the burden of proof is on the Appellants to establish their respective cases on appeal. DISCUSSION AND ANALYSIS 1. Whether the decisions and/or the Regional Policy violate the Appellants human rights and constitutional rights in that they discriminate on the basis of race. The Appellants submit in their amended Notices of Appeal that the decisions of Mr. Corbett are racially discriminatory and violate the Appellants human rights and Charter rights. The Appellants further submit that the Regional Policy is discriminatory and a breach of the Human Rights Code of British Columbia and the Canadian Charter of Rights. In support of the latter, the Appellants submit that the
APPEAL NOS. 1999-WIL-27 and 1999-WIL-28 Page 5 policy does not treat all applicants equally, as no non-first Nation person will qualify for a permit to possess bald eagles. They also submit that the law is not equally applied, as First Nations do not require a permit to possess the eagles. Mr. Corbett states that all eagles or eagle parts that are given to First Nations are accompanied by a permit when distributed from the Chilliwack Conservation Officer Service Office. He also states that the Regional Policy for possession permits was distributed in July of 1998, and was developed to allow distribution of eagles and other wildlife which is the property of the Crown. Mr. Corbett states that the Regional Policy is not meant to be discriminatory. He notes that the Ministry policy (set out above) disperses found wildlife such as eagles, hawks and owls using a priority system with government use first, scientific use second, educational use third, First Nations cultural and ceremonial use fourth and private possession last. Mr. Corbett states that it was due to the cultural and ceremonial importance of eagles to First Nations groups that led to them getting priority over personal possession. Mr. Corbett also notes that demand for eagles and their parts by First Nations in Region 2 far exceeds the low number of eagles collected in a year. He explains that the Chilliwack District has a list of requests from First Nations people for eagles. On average, one eagle per year is turned over to First Nations. Mr. Corbett states: Region 2 made policy to distribute eagles to First Nations as the first priority after deciding that cultural and ceremonial use of eagles was more important than personal possession. Finally, Mr. Corbett submits that the Appellants have no legal claim to the eagles, which, pursuant to section 2(1) of the Wildlife Act, are the property of the government of British Columbia. In their reply submissions, the Appellants submit that the effect of the Regional Policy is that it discriminates against the Appellants, irrespective of the government s intention. The Appellants have not established that either the decisions or the Regional policy constitute a violation of the Human Rights Code of British Columbia and/or the Canadian Charter of Rights and Freedoms. The Appellants do not refer the Panel to any sections of the Human Rights Code or the Charter that may have been violated. Moreover, the Appellants did not refer the Panel to any relevant cases or authorities on the issue. There is extensive case law dealing with these statutes, none of which was referenced in the case before the Board. Consequently, the Board is not in a position to make an informed decision on this ground of appeal. The Panel finds that the Appellants assertions that the decisions and policy are discriminatory are insufficient to make out their respective cases on this point. For this reason, the first ground of appeal fails. 2. Whether the Regional Policy is without statutory authority. The Appellants submit that the Regional Policy was made without statutory authority. Specifically, the Appellants argue that the Regional Policy is beyond the
APPEAL NOS. 1999-WIL-27 and 1999-WIL-28 Page 6 scope of the statutory power of the Minister of Environment, Lands and Parks to make policy. Mr. Corbett submits that section 1(l) of the Permit Regulations allows the Regional Manager to issue a permit for a person to possess dead wildlife or wildlife parts. Therefore, the Regional Policy is consistent with the legislation. The Appellants also assert that the policy is neither fair nor equitable and is beyond the scope of the Ministry s powers to make policy in relation to regulations and statutes. It is well established that government ministries or agencies may establish policies and guidelines to assist statutory decision makers in dealing with questions relating to the areas over which the ministry concerned has regulatory authority. No express statutory authority is required to do so. Such policies are not binding in law, but are generally designed to offer guidance to decision makers in the interest of delivering services and carrying out the mandate of a given ministry in a consistent manner. With respect to the issue of possession and allocation of wildlife, section 2 of the Act gives ownership of wildlife in B.C. to the provincial government. The legislation also provides authority for the issuance of a possession permit. The Panel notes that there are no guidelines or criteria, requirements or conditions set out to structure the exercise of this discretion. This is likely the reason that policy has been developed in this area. The Panel finds that the Minister or his/her delegates may make policy in relation to possession permits. Therefore, this ground of appeal also fails. 3. Whether Mr. Corbett acted without authority or in the alternative, acted arbitrarily and contrary to the rules of natural justice in reaching his decisions. The Appellants submit that Mr. Corbett acted without statutory authority, or, in the alternative, that he acted arbitrarily and contrary to the rules of natural justice in reaching the decisions being appealed. Regarding statutory authority, Mr. Corbett, a Senior Conservation Officer, submits that in making the decisions under appeal, he was acting under the delegated statutory authority of the Regional Wildlife Manager. He also states that section 1(l) of the Permit Regulations allows the Regional Manager to issue a permit for a person to possess dead wildlife or wildlife parts; therefore, it is logical to assume that the Regional Manager, or his designate, can refuse to issue a permit. The Panel accepts Mr. Corbett s evidence and finds that it was within his general authority to make the decisions being appealed. The Appellants made no other substantive arguments on this issue. Regarding the argument that the decisions were arbitrary and contrary to natural justice principles, the only point made by the Appellants in their submissions is that the Conservation Office has not consistently adhered to its own Regional Policy. The Appellants state that, contrary to that policy, a possession permit for a bald
APPEAL NOS. 1999-WIL-27 and 1999-WIL-28 Page 7 eagle was issued to at least one non-first Nations person. While Mr. Corbett agrees that a possession permit was issued to a non-first Nations person after the Regional Policy came into effect, he submits that the permit was clearly contrary to the Regional Policy and that [p]rivate possession permits are no longer issued by the Chilliwack Office except to First Nations. The fact that there have been deviations from the policy does not render those decisions made that are consistent with the policy, unlawful. To the contrary, one would expect to see exceptions to the policy if discretion was being properly exercised. In this case, the lack of discretion exercised in relation to the Appellants respective applications is of concern. Both the language of the Regional Policy and the language of the decisions, on their face, fetter the discretion of the decision maker. The relevant part of the Regional Policy states: I/ Bald and Golden Eagles a) Permits are not issued to individuals to possess and to have eagles mounted, or to salvage feathers and other parts. These birds are to remain property of the Crown pending distribution to First Nation governments for distribution for use in ceremonial and cultural activities by their people. [emphasis added] The relevant portion of Mr. Corbett s decision letters state: I have reviewed your application to possess a bald eagle found electrocuted near Rosedale, British Columbia. I am unable to grant a permit for you to possess this eagle. Regional Policy stipulates that there will be no permits issued for possession of bald eagles to non-first Nations people. No further reasons were given. In the case of Kuberski v. British Columbia (Ministry of Environment, Lands and Parks) (Appeal No. 96/07, December 5, 1996)(unreported), a panel of this Board considered whether the Director of Wildlife fettered his discretion. In that case, the panel cited the following in relation to the application of policy: In their text titled Judicial Review of Administrative Action, the authors de Smith, Woolf and Jowell note that while allowing rules and policies to promote legitimate administrative values such as legal certainty and consistency, the rationale for the rule against fettering of discretion... insists that the full rigour of certainty and consistency be tempered by the willingness to make exceptions, to respond flexibly to unusual situations, and to apply justice in the individual case.
APPEAL NOS. 1999-WIL-27 and 1999-WIL-28 Page 8 Although Mr. Corbett had authority to make the decisions under appeal, it appears from the wording of his decision letters that he based his decision on the Regional Policy only not on the particular merits of the applications made by the Appellants. Administrative fairness requires that a decision maker should make his or her decisions based on the facts of each case. The Panel finds that Mr. Corbett failed to properly exercise his discretion by rigidly applying the policy when he denied the Appellants applications. If the Ministry and/or Region 2 wants the priority system it has established by policy to be rigidly applied, it should be enacted as legislation. DECISION In making this decision, the Panel of the Environmental Appeal Board has carefully considered all relevant documents and evidence before it, whether or not specifically reiterated here. Based on the circumstances of this case, it is the decision of this Panel that the Regional Policy, on its face, fetters the discretion to be exercised by officials under section 1 of the Wildlife Act Permit Regulations, and that Mr. Corbett fettered his discretion by rigidly applying that policy. However, the Panel is not prepared to order that possession permits be issued at this time. The Panel is of the view that the appropriate remedy in this case is to send the matters back to the Regional Office for reconsideration. The official considering the applications is directed to consider the applications in light of the Ministry policy as set out in Volume 4 of the Procedure Manual. Before making a decision on the applications, the applicants should have an opportunity to make submissions on why they should be granted private possession over the other stated priorities in that Procedure Manual. To avoid a further fettering of discretion, the decision maker must consider the reasons for the policy and consider whether there are sufficient reasons to deviate from that policy based on the submissions of the applicants. The decision maker should also provide more detailed reasons in his new decision, whatever that decision may be. Reasons are necessary to establish public confidence in decisions as they show the public that government officials are considering their submissions appropriately. Without public confidence in decisions, people will avoid reporting to the government and applying for permits altogether. Toby Vigod, Chair Environmental Appeal Board January 25, 2000