Decision Date: March 31, 2022

Panel: David Bird

Keywords: Wildlife Act – ss. 101, 101.1(1); Administrative Tribunals Act – s. 31(1)(a); order; fishery closure; jurisdiction; summary dismissal; Fisheries Act

Five operators of fishing guide businesses (the “Appellants”) filed appeals in response to the 2021 – 2023 British Columbia Freshwater Fishing Regulations Synopsis (the “Synopsis”) published by the Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”). The Synopsis summarizes regulations that apply to freshwater fishing in British Columbia. The Appellants objected to a statement in the Synopsis that the steelhead fishery in the Skeena River is closed from October 12 to December 31, starting in 2021.

After reviewing the notices of appeal, the Board asked the parties to provide submissions on whether the appeals were against a decision which could be appealed to the Board under the Wildlife Act (the “Act”).

The Board found that the closure resulted from an order issued by the Associate Director of Fish and Aquatic Habitat Branch (the “Director”) within the Ministry. The order varied the closure time for the steelhead sport fishery on the Skeena River under section 55 of the British Columbia Sport Fishing Regulations (the “BCSFR”), to October 12 to December 31 of each year, starting in 2021. The Board noted that the BCSFR and other regulations under the federal Fisheries Act empower a provincial decision-maker to close a fishery in a lake or stream in the province.

Section 101.1(1) of the Act provides that “the affected person referred to in section 101(2) may appeal the decision to” the Board. The Board found that when section 101.1(1) is read together with sections 101(1) and (2), it indicates that “the decision” that may be appealed to the Board is a decision made under the Act or its regulations, by a regional manager or a director, that affects a licence, permit, registration of a trapline, or guiding territory certificate held by a person, or an application for any of those things.

The Board held that although the order was issued by a director as described under section 101(1) of the Act and it may affect the Appellants’ angling guide licences, the order was not made under the Act or its regulations. The provincial Legislature cannot give the Board, a provincial tribunal, the power to hear appeals of decisions made under the federal Fisheries Act or its regulations unless there is a delegation of such power to the province or the Board under a federal statute. There was no evidence of such a delegation. Consequently, the Board concluded that the order was not an appealable “decision” within the meaning of sections 101.1(1) of the Act, and the Board had no jurisdiction to hear the appeals.

Accordingly, the appeals were summarily dismissed.