Decision Date: October 31, 2014

Panel: Alan Andison

Keywords: Wildlife Act – s.101.1(5); Motor Vehicle Prohibition Regulation, Permit Regulation – ss. 3(2)(a), 5(1); disabled hunter; exemption permit; access to motor vehicle closed areas; impact to habitat and wildlife

This appeal was filed by Robert P. Thompson, a disabled hunter, who applied annually for an exemption permit in the Kootenay Boundary Region. An exemption permit allows him to use a motor vehicle to access certain areas that were otherwise closed to motorized vehicles by the Motor Vehicle Prohibition Regulation (the “Regulation”). Mr. Thompson sought access to these areas in order to hunt.

Mr. Thompson applied to access seven hunting areas which were closed to motor vehicles, including an area referred to as Warspite Creek drainage. In August 2014, the Regional Manager, Recreational Fisheries and Wildlife Program (the “Regional Manager”), Kootenay Boundary Region, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), issued Mr. Thompson a permit (the “Permit”), which exempted him from the Regulation for all of the requested areas, except the Warspite Creek drainage. The Regional Manager explained to Mr. Thompson that he did not grant the request for Warspite Creek because the area was managed in a manner that limited motorized activity to reduce the risk of displacement and disturbances of wildlife, and adverse impacts to habitat quality and effectiveness.

Mr. Thompson appealed the Regional Manager`s decision to deny him access to Warspite Creek drainage, and asked the Board to order that Warspite Creek drainage be added to his list of exempted (i.e., permitted) roads. In his Notice of Appeal, Mr. Thompson identified several reasons in support of his request for access to this area. Among other things, he asserted that Warspite Creek does not represent a delicate habitat for wildlife, and that access to the area would improve his hunting opportunities because, as a disabled hunter, he is limited to areas where he can hunt. However, Mr. Thompson did not file any submissions in support of his appeal.

The Regional Manager opposed the appeal, and he provided full submissions, which explained how the Ministry policies and procedures were applied, and his approach to considering Mr. Thompson`s permit application. Elements of this approach included his consideration that Warspite Creek is within an Access Management Area, recognition that the Ministry’s efforts to control the spread of invasive plants could be compromised by vehicle traffic, and determination that Mr. Thompson had been reasonably accommodated because the Permit granted him access to six of the seven requested areas.

The Board noted that, in an appeal, the appellant has the ultimate burden of proving his or her case on a balance of probabilities. In the present case, the Board found that Mr. Thompson did not meet the burden of proof. While Mr. Thompson opined that the Warspite Creek area was not “a delicate habitat for wildlife”, the Board noted that this area is a designated Access Management Area, which the Regulation designated as closed to motor vehicles year round, except certain roads. Further, the Board found that there was no evidence to show that the Regional Manager’s concern about the potential spread of invasive species seeds from vehicles travelling in this area was unfounded.

In summary, the Board found that the Regional Manager exercised his discretion in a manner that accommodated Mr. Thompson, while not creating the potential for environmental damage. The Board found that the Regional Manager considered the appropriate factors, and did not make any clear errors.

Accordingly, the appeal was dismissed.