Decision Date: October 27, 2010

Panel: Alan Andison

Keywords:  Wildlife Act – ss. 51, 59; Turnagain Holdings Ltd. v. Environmental Appeal Board et al., 2001 BCSC 795; guide outfitter licence; guiding territory certificate; statutory interpretation; procedural fairness

Blueberry River First Nation (the “First Nation”) appealed a decision by the Regional Manager, Environmental Stewardship (the “Manager”), Northern Region – Peace, Ministry of Environment (the “Ministry”), to issue an annual guide outfitters licence to Mr. Roe, who is the person named on the guiding territory certificate for the territory in which the licence is valid. The certificate and the licence grant Mr. Roe exclusive control over guiding privileges in the territory. Non-resident hunters may hunt for big game in BC only if they are guided by a licensed guide outfitter.

The First Nation is the apparent owner of the certificate, having purchased it in 1999, but only a natural person can be named on a certificate due to requirements in the Wildlife Act (the “Act”). Consequently, the First Nation nominated a guide outfitter to be named on the certificate and to operate a guiding business in the territory for the benefit of the First Nation. In 2006, the First Nation made arrangements with Mr. Roe to operate a guiding business in the territory. The Ministry transferred the certificate into Mr. Roe’s name for a period of ten years, with the First Nation’s consent. By early 2010, the First Nation had become dissatisfied with Mr. Roe’s operation of the guiding business and it began taking steps to end its business relationship with him. It asked him to complete an application to transfer the certificate to another person of the First Nation’s choosing, but he did not do so. Meanwhile, Mr. Roe had applied to the Ministry for a renewal of his annual guide outfitter licence for the territory. The First Nation advised the Manager that it objected to the issuance of a licence to Mr. Roe. In April 2010, the Manager advised the parties that he would not issue a licence at that time, and he encouraged the parties to reconcile their differences so that hunters who had booked hunts in the territory for the 2010 season could be accommodated. By early July 2010, the parties had reached no settlement, and the moose hunting season was opening in six weeks. The Manager decided to exercise his discretion under section 51 of the Act to issue a licence to Mr. Roe.

The First Nation appealed to the Board on the basis that the Manager’s decision to issue a licence to Mr. Roe was based on an incorrect and unreasonable interpretation of section 51 of the Act, and that the Manager had denied procedural fairness to the First Nation. The First Nation submitted that the Manager had failed to take into account the First Nation’s interests and wishes, as the beneficial owner of the certificate.

The Board considered the language in section 51 of the Act, regarding the issuance of guide outfitter licences and the requirement that the “holder” of a guiding territory certificate consent to the issuance of a guide outfitter licence for the territory. The Board noted that section 59(3) of the Act states that “a guiding territory certificate grants to the holder the exclusive control over guiding privileges in the area described in the certificate for the period stated in the certificate”. The Board held that, based on the language in sections 51 and 59 of the Act, Mr. Roe is the “holder” of the certificate for the purposes of the Act. The Board also found that, although the First Nation is the apparent owner of the certificate, the Act does not contemplate or recognize the First Nation’s practice of nominating a natural person to hold the certificate on its behalf. The arrangement between Mr. Roe and the First Nation was a private one, and although the Manager was aware of it, there is no indication in the Act that the Manager was required to consider the interests or wishes of the certificate’s beneficial owner when he exercised his discretion to issue a licence. Mr. Roe, as the holder of the certificate for the purposes of the Act, had consented to the issuance of a licence, and this met the requirements of section 51. For those reasons, the Board concluded that the Manager’s decision was not based on an unreasonable or incorrect interpretation of section 51.

Next, the Board considered whether the Manager had failed to provide adequate procedural fairness to the First Nation. The Board found that, in accordance with the common law principles of procedural fairness and the BC Supreme Court’s decision in Turnagain Holdings Ltd. v. Environmental Appeal Board et al., 2001 BCSC 795, the Manager had an obligation to consider the First Nation’s interests and views, as the beneficial owner of the certificate. The Board further held that the Manager met the requirements of procedural fairness in the circumstances. Specifically, the evidence and submissions showed that the Manager recognized that the First Nation was the beneficial owner of the certificate, and he took into account the First Nation’s interests and wishes by delaying his decision and allowing the parties time to negotiate a resolution, in accordance with the principles in Turnagain Holdings Ltd. In addition, the Board held that even if there were any procedural defects in the Manager’s decision-making process, the appeal hearing cured those deficiencies, because the Board conducted the appeal as a new hearing of the matter and the First Nation had the opportunity to make submissions, present evidence, and make a final reply during the appeal hearing.

Accordingly, the Manager’s decision was confirmed, and the appeal was dismissed.