Decision Date: August 13, 2021

Panel: Darrell Le Houillier

Keywords: Administrative Tribunals Act – ss. 31(1)(f), 40; Open Burning Smoke Control Regulation – s. 13; administrative penalty; admissible evidence; summary dismissal; no reasonable prospect of success

Norman Tapp (the “Appellant”) appealed a decision made by the Director, Environmental Management Act (the “Director”), in the Ministry of Environment and Climate Change Strategy. In the decision, the Director determined that the Appellant had contravened section 13 of the Open Burning Smoke Control Regulation, (the “Regulation”). Section 13(1) of the Regulation requires that open burning must be carried out at least 500 metres from neighbouring residences unless the requirements in section 13(2) are met. The Director imposed an administrative penalty of $10,000 on the Appellant for the contravention.

In concluding that the Appellant had conducted open burning within 500 metres of residences without meeting the requirements in section 13(2), the Director considered evidence from Conservation Officers who had observed open burning on land owned by the Appellant (the “Property”). On some days, their observations were made from roads on Theik Reserve #2, a reserve of the Cowichan Tribes First Nation (the “First Nation”). On other days, they made their observations from locations that were not on Theik Reserve #2, such as on Highway 1 or on the Property.

One of the Appellant’s grounds of appeal alleged that the Director considered evidence that was unlawfully obtained because the conservation officers entered Theik Reserve #2 without the First Nation’s permission. As preliminary matter, the Board addressed this ground of appeal and whether the evidence in question was admissible in the appeal process.

The Board found that the Appellant provided no legal arguments and very little information in support of this allegation. Consequently, the Board considered whether to summarily dismiss this ground of appeal as having no reasonable prospect of success, pursuant to section 31(1)(f) of the Administrative Tribunals Act (the “ATA”). In deciding whether to apply section 31(1)(f), the Board considered whether the Appellant’s evidence and arguments took the ground of appeal out of the realm of conjecture, such that it should be fully heard by the Board.

The Board found that the Appellant failed to do so. In addition to the Appellant providing no legal argument and little evidence to support this ground of appeal, the Board found that the Director’s evidence supported a finding that the conservation officers had permission to enter Theik Reserve #2. There was evidence that the First Nation’s Council had the authority the grant permission for people to enter the First Nation’s land, and it had delegated that authority to their Director of Lands and Governance, who had authorized conservation officers to enter the First Nation’s reserves to carry out their duties including enforcing the Act. Therefore, the conservation officers did not unlawfully enter the First Nation’s land in gathering evidence which the Director had relied upon.

In addition, the Board found that even if such permission had not been granted, there is no reasonable expectation of privacy for things that are in plain view from a road, such as open burning and the associated smoke. By observing open burning on the Property from various roads, both on and off reserve lands, the conservation officers were not conducting an unlawful search of the Appellant. Thus, the Appellant’s allegation provided no basis for excluding that evidence. Given that finding, and the Board’s broad power to receive evidence under section 40 of the ATA, the evidence would still be admissible in the appeal process.

Furthermore, even if the evidence was inadmissible, it would result in the exclusion of some, not all, of the conservation officers’ observations. Some of their observations were made from roads on Theik Reserve #2, but many of their observations were made from locations outside of the First Nation’s reserve lands, including from Highway 1 and the Property.

In conclusion, the Board found that there was no basis to exclude the conservation officers’ evidence. In addition, the Board summarily dismissed the ground of appeal alleging that a conservation officer entered the First Nation’s land without permission when investigating the Appellant, as this ground of appeal had no reasonable prospect of success.