Decision Date:  May 22, 2009

Panel:  Gabriella Lang

Keywords:  Wildlife Act – ss. 86; Freshwater Fish Regulation – ss. 2, 3; permit; kokanee salmon; fish stocking; jurisdiction; recreational angling; precautionary principle

Jack Leggett appealed a decision of the Director of 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.  The Permit formed part of an authorization that included permission to transfer live fish within BC pursuant to a regulation under the federal Fisheries Act.  Mr. Leggett appealed on the basis that stocking the lake with kokanee could result in irreparable harm to the lake’s ecosystem and recreational trout fishery.

Before the appeal was heard, Mr. Leggett requested a stay of the permit pending the Board’s decisions on the merits of the appeal.  Also, the Director challenged Mr. Leggett’s standing to appeal the permit.  In a decision dated April 28, 2009, the Board found that Mr. Leggett had standing to appeal the permit, and the Board granted his stay application.  The Board also ordered that the appeal be heard on an expedited basis (Jack Leggett v. Director, Fish and Wildlife, Decision No. 2009-WIL-022(a) & (b)).

The day before the appeal hearing commenced, the Ministry’s Fisheries Program advised Mr. Leggett that it was considering using Ministry wildlife officers to transport and release the kokanee into Chimney Lake, regardless of the appeal process and the stay ordered by the Board.  This was brought to the Board’s attention at the start of the hearing, and the Board was asked to rule on whether the hearing should proceed given this position by the Fisheries Program.  The Fisheries Program submitted that section 86 of the Wildlife Act gives wildlife officers immunity from the offence provisions in section 2 of the Freshwater Fish Regulation, which prohibit the possession and transport of live fish without a permit.  The Board found that section 86 is inapplicable in this case, where there is a regulatory requirement to obtain a permit to possess and transport the kokanee, and there is no need for an officer to commit an offence in the course of carrying out their duties, such as to deal with dangerous or injured wildlife.  In addition, the Board found that even if the Fisheries Program stocked the lake with kokanee regardless of the stay order, this would not end the appeal because the Board has express jurisdiction under the Wildlife Act to conduct an appeal as a new hearing of the matter, and to make any decision that the Director could have made.

Also at the beginning of the hearing, the Director submitted that the Board should only consider evidence regarding the permit, which was limited to authorizing the possession and transport of the fish, and not the transfer of the fish into Chimney Lake, which was covered by the federal authorization.  However, the Board held that the Director issued the permit in order to get the fish to the lake as part of a Ministry’s stocking plan for Chimney Lake, and the permit is a tool that enables the Ministry to carry out its stocking plan.  Without the stocking plan, there would be no need for the permit.  Consequently, the Board found that it had jurisdiction to consider the Ministry’s stocking plan for Chimney Lake as one of the factors that the Director considered when he issued the permit.

Finally, the Board considered whether the permit should be rescinded.  Based on the evidence, the Board found that Mr. Leggett had identified valid concerns about stocking kokanee in Chimney Lake, but the Director had adequately assessed the potential environmental risks associated with the stocking when he considered whether to issue the permit.  The Board held that there was some scientific uncertainty about the potential environmental effects of stocking the lake with kokanee, and that the Ministry’s mandate includes protecting and conserving environmental resources.  However, the Board found that the potential risks in this case are low, and the Wildlife Act does not require that the precautionary principle be applied.  In addition, the Board noted that the Ministry has committed to managing the risks associated with kokanee stocking through monitoring and risk assessment.  The Board also found that the Ministry’s mandate includes both protecting the environment and managing environmental resources for economic and social benefit, and in this case, stocking the lake is consistent with the Ministry’s goal of enhancing recreational angling opportunities.  For all of these reasons, the Board confirmed the Director’s decision to issue the permit.

Accordingly, the Board dismissed the appeal and rescinded its previously issued stay order.