Decision Date: March 9, 2006

Panel: Alan Andison

Keywords: Wildlife Act – s.15, 101; Wildlife Act Commercial Activities Regulation – ss.5.01, 5.02 and 5.03; transporter licenses; licensed guide outfitters

David Wiens appealed the issuance of two separate transporter licences by the Manager of Fish and Wildlife (the “Regional Manager”) to Clifford Andrews and Jeff Browne.  The areas covered by the licences overlap with Mr. Wiens’ guide outfitting territory.  Mr. Wiens requested that the Board amend the licences so that the transporter territories of Mr. Browne and Mr. Andrews are reduced to their areas of traditional use as reflected by their respective range use permits.  Mr. Andrews and Mr. Browne applied for an order that Mr. Wiens pay their appeal costs.

The issues to be determined were whether Mr. Andrews and Mr. Browne have been licensed to operate in areas where they did not historically operate; whether the Regional Manager erred by failing to give Mr. Wiens an opportunity to be heard and by failing to require Mr. Andrews and Mr. Browne to consult with Mr. Wiens; and whether the Regional Manager failed to consider Mr. Wiens’ submissions and rights as a guide outfitter as well as to provide Mr. Wiens with written reasons for his decisions. The Board also considered the applications for costs.

The Board found that Mr. Browne and Mr. Andrews had operated as transporters for approximately 18 and 30 years, respectively, in the areas covered by their licences.  Consequently, the Board found that Mr. Browne and Mr. Andrews have been licensed to operate in areas where they historically operated.

The Board also found that the Regional Manager gave Mr. Wiens several opportunities to make submissions before the licences were issued, and that he properly considered Mr. Wiens’ submissions and his rights as a guide outfitter before issuing the licences. The Board concluded that the Regional Manager gave Mr. Wiens’ interests primary consideration while attempting to balance the valid interests of Mr. Browne and Mr. Andrews as transporters.

In regards to the effect of the licenses on wildlife, the Board found that Mr. Andrews and Mr. Browne have operated in these areas for many years, and that there is no evidence that their operations have had an adverse effect on wildlife.

Regarding the requirement for Mr. Andrews and Mr. Browne to discuss the licences with Mr. Wiens, the Board found that the relevant policies in the Ministry’s Procedure Manual are not legally binding.

The Board noted that there was a conflict between section 5.03(1)(a)(iv) of the Wildlife Act Commercial Activities Regulation and section 15 of the Wildlife Act regarding the form and manner of transporter licence applications.  Section 5.03(1)(a)(iv) of the Wildlife Act Commercial Activities Regulation refers to material (Appendix 1 of the Regulation) which is incorporated into the Regulation, that specifically outlines the form and manner of transporter licence applications.  However, the Board found that, based on Administrative principles of statute interpretation, section 15(1) of the Wildlife Act prevails. This meant that it was the Regional Manager who must ultimately determine the proper manner and form of the transporter licence applications submitted by Mr. Andrews and Mr. Browne, as it is stated in the Wildlife Act.

The appeal was dismissed. Mr. Andrews’ and Mr. Browne’s applications for costs were denied.