Decision Date:  April 28, 2009

Panel:  Alan Andison

Keywords:  Wildlife Act – ss. 101, 101.1; standing to appeal; “affected person”; stay application; angling licence; Kokanee salmon; fish stocking

Jack Leggett appealed a decision of the Director, Fish and Wildlife, Ministry of Environment (the “Ministry”), to issue a permit to possess and transport live Kokanee salmon from a fish hatchery to Chimney Lake, near Williams Lake, BC. The Permit was issued to the Freshwater Fisheries Society of BC (the “Society), which sought to stock Chimney Lake with Kokanee salmon for recreational anglers.

In his Notice of Appeal, Mr. Leggett requested a stay of the permit pending the Board’s decision on the merits of his appeal. Shortly after the appeal was filed, the Director challenged Mr. Leggett’s standing to appeal the permit, and requested an expedited hearing of the matter.

Accordingly, the Board requested submissions from the parties regarding: 1) Mr. Leggett’s standing as a “person affected” to appeal the permit under sections 101(1) and 101.1 of the Wildlife Act (the “Act”); and 2) the stay application.

Regarding Mr. Leggett’s standing to bring the appeal, the Board found that he holds a valid angling licence issued under the Act and the Angling and Scientific Collection Regulation, and his angling licence is a “licence” within the meaning of section 101(1) of the Act. The Board further held that a number of factors distinguish Mr. Leggett from most other holders of BC resident angling licences: he has fished on Chimney Lake since 1970; he lives near the Lake; he is a Director of the Chimney Felker Lake Landholders Association; and, he has actively opposed the stocking proposal for several years. Although any one of those factors alone are determinative of whether he is an affected person, his possession of a valid angling licence, together with those factors establish that he is in a position to be more affected by the permit than other holders of BC resident angling licences who do not share those circumstances. Consequently, the Board found that Mr. Leggett is an “affected person” in relation to the Permit, as contemplated in sections 101 and 101.1 of the Act, and therefore, he has standing to appeal the permit

Regarding the stay application, the Board applied the three-step legal test for a stay set out in RJR-Macdonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 (S.C.C.). First, the Board found that the appeal raised serious issues to be decided, particularly regarding the potential adverse effects of Kokanee stocking on trout fishing opportunities and on the ecology of Chimney Lake. Second, the Board found that denying the stay would cause irreparable harm to Mr. Leggett’s interests, because the permit would remain operable and the Society could transport Kokanee to Chimney Lake for release as soon as the Lake conditions were suitable. Once the Kokanee are released, there is no way to reverse that action, and there would be no remedy available to Mr. Leggett if his appeal was successful. Thus, if the stay was denied, Mr. Leggett’s appeal rights could be severely prejudiced and his appeal would become moot, just a previous appeal he filed with the Board in 2008 regarding a similar permit became moot when the Ministry released Kokanee into Chimney Lake (Jack Leggett v. Director, Fish and Wildlife, Appeal No. 2008-WIL-006(a), July 16, 2008).

Third, in weighing the balance of convenience, the Board considered that the interests represented by the Director include the public interest in stocking the Lake with Kokanee to increase the number and variety of recreational angling opportunities, and the associated economic benefits. The Panel has also considered the limited time frame for the Kokanee stocking to occur, and that, if the stocking did not proceed within that time frame, it would likely have to be abandoned as there could be high mortality of juvenile Kokanee, and the economic benefit from increased angler opportunities in 2009 may be reduced. However, the Board found that the potential harm to the Director’s interests, if a stay was granted, would be limited to a one-year stocking loss, which may be mitigated by the stocking of an alternate lake. The Board concluded that the irreparable harm to Mr. Leggett’s interests, if the stay was denied, outweighed the potential harm to the Director’s interests, if the stay was granted.

Finally, the Board found that the public interest would be served if the appeal was heard on an expedited basis, preferably before the expiry of the 2009 Kokanee stocking period.

Accordingly, the Board found that Mr. Leggett has standing to appeal the permit, and the Board granted his application for a stay of the permit pending a decision on the merits of the appeal. The Board also ordered that the appeal be heard on an expedited basis.