Guide outfitting company launches class-action suit against B.C.

[Derby]

Subject: Vancouver Sun: Guide outfitting company launches class-action suit against B.C. ban on grizzly bear hunt


http://vancouversun.com/news/local-...ion-suit-against-b-c-ban-on-grizzly-bear-hunt

 

[Derby]

perhaps a tool in our tool box to be used down the road depending on out comes in the future...hope we dont have to ever use it .....

 

[Stizzla]

perhaps a tool in our tool box to be used down the road depending on out comes in the future...hope we dont have to ever use it .....

Pretty sure we could use it now. Large areas banned of fishing are hurting a lot of guides and costing many millions in revenue.

 

[OldBlackDog]

Pretty sure you cannot use it.

 

[agentaqua]

This case will generate some interesting legal questions - if it makes it to court past the initial pleadings stage (discovery). Just because one makes an application does not necessarily mean one even gets to court.

Looking at some of the available case law - seems like it'll be an uphill battle for these Appellants:

Chingee v. British Columbia, 2017 BCCA 250
https://www.canlii.org/en/bc/bcca/d...VuY2UgcmlnaHQgdG8gZmlzaAAAAAAB&resultIndex=52

[10] The Wildlife Act sets out the legislative framework for the issuance of guiding territory certificates and traplines. It does so within a framework in which the ownership of all wildlife is vested in the government: s. 2(1).

[11] Section 59 of the Wildlife Act allows the regional manager to issue guiding territory certificates. The holder of a guiding territory certificate has “exclusive control over guiding privileges in the area described in the certificate for the period stated in the certificate, which may not exceed 25 years” (s. 59(3)).

[12] Section 51 the Wildlife Act allows a regional manager to issue a guide outfitter licence. A guide outfitter licence authorizes the holder to guide persons to hunt for those species of game and in the area described in the licence (s. 51(2)).

[13] Together, a guiding territory certificate and guide outfitter licence confers the exclusive right to conduct a guiding business over the specific area of Crown land during the term of the certificate. It does not however confer an exclusive right to hunt in the territory.

[14] Section 42 of the Wildlife Act allows the regional manager to issue traplines. A registered trapline allows the holder to enter into an area of Crown land to set traps and to remove fur-bearing animals caught by those traps. A trapline licence is also required for trapping fur-bearing animals, but an “Indian residing in British Columbia” is exempt from this requirement (ss. 11(8)‑(9)). This exemption applies to Mr. Chingee. Section 42(5) provides that registration of a trapline does not give the holder of the trapline any proprietary rights in wildlife, or restrict the rights of another person to hunt, or to capture wildlife if authorized by the regulations or a permit.

[15] None of the guide outfitter licence, guiding territory certificate, or having an interest in a registered trapline grant a proprietary interest in the land or the animals on the land.

[65] The tenures grounding the plaintiff’s claim are statutory. They are not Aboriginal interests or rights. There is nothing in the statutory scheme capable of supporting the proposition that the province had a fiduciary duty to protect the interests of a holder of a trapline or a guiding certificate. Inherent in the scheme is the need to weigh and balance potentially conflicting interests in the public interest. The test for a fiduciary duty cannot be met on the pleaded facts because the test for the creation of a fiduciary duty cannot be met.

[71] I would dismiss the appeal.

 

[SpringFever552]

[10] The Wildlife Act sets out the legislative framework for the issuance of guiding territory certificates and traplines. It does so within a framework in which the ownership of all wildlife is vested in the government: s. 2(1).


Wild life act and others will need to change with all the "reconciliation" going on...the way it's going native/indigenous peoples own everything not the crown

 

[searun]

Class action law suits are complicated and require certification by the court to be able to proceed. Lots of conditions have to exist in order for the proper grounds to exist. I would say we do not at present have those conditions in place. Always best to exhaust other forms of consultation and influence before taking a serious look at litigation IMO.

 

[Powerset]

The premise of the lawsuit is business controls the environment for its own gain. They’ve been working under the laws and the understanding of the laws but because it’s been in their favour up until now they had no problem. Not sure now you can slap the hand that’s provided you the opportunity. In any business there is risk. Especially when it comes to hunting and fishing. It’s a new dawn a new era. Wildlife populations are all in massive decline from historical levels and man is responsible for most of that. You know the Alaskan Commercial fleet used to take 250-300 million fish a year out of our oceans, now they’re down to 150 million. Boo hoo I ask, how much is enough? What right does any one man have to profit from taking more than the rest of us when what he’s taking belongs to all us? These are not hard questions in my opinion unless you’re the one finally being told you can no longer take! We’re running out. The planet is being pushed to the brink of species collapse. Sometimes governments and the people have to say enough is enough! Maybe this is that time.

 

[IronNoggin]

... Maybe this is that time.

Absolute Hogwash.

The suit is being brought due to the fact that the government directly ignored it's own policy and legislation.
Instead of managing wildlife by the means of the best science available, they instead collected support through a twisted (and ludicrous) consultation process wherein people (anti's) from around the entire world had input. Of course the anti NGO's organized, and flooded the response site with emails in support of a full ban. Horgan then had the nerve to suggest the results indicated "The majority of people in BC were in favor of banning the hunt on moral and ethical grounds". The line about "The majority of people in BC" was based directly on his party's seriously flawed consultation methodology, and was actually much more reflective of just how quick WORLDWIDE Anti's could get organized. A complete Travesty.

Grizzly bear populations in BC were known to not only be robust, but growing under the management of the day - which included hunting. The closure was NOT based whatsoever on conservation concerns. The closure WAS based upon Horgan & Weaver's desperate desire to cater to their voting base, regardless of just how corrupt they had to go to realize that.

And that, right there, is the cusp of the matter.
The case will show that the government acted outside of current Policy, and ignored governing Legislation while doing so.
In such matters the Court will almost always side with the plaintiff as they MUST order reversals of government decisions when they "break" the law.
Which they callously and intentionally did in this case.

As a consequence, I strongly suspect Horgan will try and offer a settlement out of court before this goes much farther.
The GOABC and those involved in this matter have publicly stated they will NOT accept any such overtures, and the matter WILL be going in front of the Court.
It will be VERY interesting to see how the court will proceed.
On one hand they could demand the government reimburse the outfitters (plus legal expenses, plus future considerations, plus...) and that figure will be in the millions. On the other hand the court may instead demand the hunt be reinstated, accompanied with a smaller compensation package.
Either way, their hands are pretty much tied.

As for your suggestion this matter had anything whatsoever to do with conservation? HOGWASH!

Nog

 

[Powerset]

I didn’t use the word conservation I was implying greed, people will take and take and take until it’s all gone , maybe that’s ok with you, the commercial fishing industry is a prime example of that. Take it all and then whine when they get told we’re running out. What gives anyone the right to fish until the last fish or hunt until the last bear? When is it enough? Your argument is there’s enough grizzly to kill some so guides can make money. Trophy money for BIG scary predators! It guess it boils down to your view of ecosystems and removal of apex predators for profit. Personally I think it’s wrong and I know for a fact it has consequences. We are in our situation with our salmon because of greed. Greedy developers, greedy industry leaders, greedy politicians, greedy fishermen! That’s my argument. There’s a ligic to the sealion reductions, we aren’t desperate for fewer grizzly. Your argument is fine, it’s based on the same premise that has eventually lead us to where we are now across much of nature, running out, running low! But that’s just fine for some folks so long as they there’s, and to hell with the rest humanity

 

[IronNoggin]

... Your argument is there’s enough grizzly to kill some so guides can make money. Trophy money for BIG scary predators! It guess it boils down to your view of ecosystems and removal of apex predators for profit. ...

Off your meds today, or are you usually this confused / rambling??

My point is that nature is out of balance, and has been increasingly so since us Two-Legs began our invasive population explosion game and all that goes with that. As such, it is our responsibility to do what we can to try and strike a more level balance than simply leaving it all to it's own devices (under which a regime we would soon witness the failure of the vast majority of wildlife populations). And that management MUST be conducted via The Best Science Available. Period. Not your gut instinct, not yours nor anyone else's feelings, ethics or "morality". Science. Period.

And yes, the closure has already had consequences. And if it is maintained, will have more. The number of negative bear encounters is already increasing. Expect more. The number of bears the CO's have had to destroy has jumped. Expect more. The ungulate populations in many areas are already showing the ill effects of increased grizzly predation. Expect more.

The closure has already indicated it is negatively influencing the "balance" management tries to maintain. That will continue, with rather dramatic and increasing consequences as the bear population expands.

Your suggestion of my point of view is beyond ludicrous.
It is however a fine reflection of someone venting with little understanding of the real matters at hand.

Have a great day!
Nog

 

[SerengetiGuide]

Power set is pushing conservation points but fact is we were under our sustainable harvest on grizzlies for crying out loud. So that point holds no water. The whole premise of your argument is not based on actual science powerset

 

[Birdsnest]

I have a question. If Indigenous groups were managing the harvests of game will it be posable to take those groups to court for decisions they have made? A bit of a derail but I am wondering what that would look like since the are seeing this shift in management.
Certainly a worthy question on the fisheries front.

 

[IronNoggin]

I have a question. If Indigenous groups were managing the harvests of game will it be posable to take those groups to court for decisions they have made?

Very interesting question.
To which I have no answer.
Whole scenario is theoretical at this point...

Transferring the management of wildlife (or fisheries) to the FN's is a huge undertaking.
Will it happen?
I am entirely uncertain of the legal aspects of doing so, and would be surprised if it would not entail a major re-haul of current legislation to make it happen.
Do-able?
Maybe...

The next question would then be if such management were transferred out of the hands of government, would the existing / background and governing legislation remain the same - as in transferred along with the management program? I really don't know.

Major questions with huge ramifications.
I realize many think this is already under development (and to some small extent it may well be) but without heavy public support, I don't think it could fly.
In effect the government would be walking away from a main fiduciary responsibility, and handing it over to an entity which represents less than 4 % of the overall population.
Be surprised myself.
But then again I am getting somewhat used to being surprised these days...

Anyone else care to take a run at this one?

Wondering...
Nog

 

[wildmanyeah]

For fishing I know they have asked to be involved in Tier 1 management decisions. This basically makes them co managers, Gives them seats on on the PSC, create IFMP, ect..

http://www.pac.dfo-mpo.gc.ca/consultation/fn-pn/fnfc-2014/gestion-collab-management-eng.html

Not sure where they are in the process, still on going i think

This is the last thing I read about it

https://frasersalmon.ca/resources/

"Brenda Gaertner, FSMC’s Lead Negotiator, provided an update on the status of the negotiation process. She noted that DFO is resisting collaborative management and is challenged by the important initiatives in our proposed Management Agreement."

 

[IronNoggin]

“I think, generally, most people care about wildlife and, in this particular instance, the outfitting community has the ability to sue for damages, the resident hunting community does not. So if we had a choice, I’m not speaking for Ron, but if we had a choice and if you were to ask him, I would bet my house that he would pick opening the hunt again and proper wildlife management over having to sue the Government for damages.”

https://www.energeticcity.ca/2019/0...ociation-of-bc-speaks-about-bear-ban-lawsuit/

Regardless of what he would pick, the suit is designed specifically to demand "compensation"
NOT reinstating the hunt.
Period. Full Stop.

Now should consideration be given to reinstatement as a consequence of the suit, great.
If it doesn't, the "involvement" of the vast majority of hunters will simply be to contribute to the tax coffers used to pay the compensation.

I fully agree something must be done.
Not certain if this is the right something or not.
Ramifications either way, win or lose.

And those ramifications will effect ALL hunters in the province for the foreseeable future...

Nervous on this one...
Nog

 

[wildmanyeah]

Do you have a copy of the court filing nog?

 

[IronNoggin]

Do you have a copy of the court filing nog?

No I don't.

I can share some of my reasons for concern in this matter.
These were presented by another Buddy on a different Forum, but I concur with pretty much all of it:

""When dealing with lawsuits, one needs to consider implications of the decision, whether for or against.

Everyone here seems to be missing potential implications to ALL hunters that may result from this case.

What happens if they Lose?

As it appears their case is being argued that the government should have used existing wildlife management policy to determine the threshold for allowing this species to be hunted, and that "social licence" should not be used....

If the case is lost, this could strengthen governments legal ability to base future decisions regarding hunting to be based purely on international Social licence.

A future dubious poll approves of eliminating all predator hunting, done.
Another poll approves of eliminating all ungulate hunting, done.
All at no cost other than an internet poll.

What may happens if they Win?

Again, as the lawsuit appears to only be asking for financial compensation, the implications could give legal precedent that will have adverse effects to ALL hunters.

The courts may still decide that the government has the right to close hunting based on Social licence opinion, and all is required is to pay off the outfitters.
No ground to re-open a hunt has been gained. ALL hunters lose except for those outfitters that get payed off to end hunting.

Or the court could decide that the government has to follow existing wildlife management policy....
And still offer no compensation to the outfitters.
And still keep the hunt closed as their was no request to have the hunt reinstated.
At least this decision would give energy to re-opening the hunt, having ruled against the social licence principle.

As explained above, there are great concerns whether the case is lost, or won.

How much damage would a "win" do to the pillars of Wildlife being an entity that no one "Owns", that is managed in trust by the government for all people?

Will a win for $ erode the North American model of Wildlife management?
Will governments will just have to pay $ to a few people to end hunting?

Or it may make them realize they just have to pay $ to end hunting.
No big deal when it is not your money.
The anti-hunting base would love this opportunity.

The concerns of this case go FAR beyond any consideration of bandwagons and praise, for or against Outfitters.

Legal cases have legal consequences.

Bringing Money into the case is the problem.

The lawsuit should be limited to suing to have the hunt reinstated, and that's all. "

And that, right there, is what has me very much concerned for the way this is playing out...
No inference involved as to my support (or lack thereof) to Outfitters nor Guides.
Really.

Cheers,
Nog

 

[wildmanyeah]

No I don't.

I can share some of my reasons for concern in this matter.
These were presented by another Buddy on a different Forum, but I concur with pretty much all of it:

""When dealing with lawsuits, one needs to consider implications of the decision, whether for or against.

Everyone here seems to be missing potential implications to ALL hunters that may result from this case.

What happens if they Lose?

As it appears their case is being argued that the government should have used existing wildlife management policy to determine the threshold for allowing this species to be hunted, and that "social licence" should not be used....

If the case is lost, this could strengthen governments legal ability to base future decisions regarding hunting to be based purely on international Social licence.

A future dubious poll approves of eliminating all predator hunting, done.
Another poll approves of eliminating all ungulate hunting, done.
All at no cost other than an internet poll.

What may happens if they Win?

Again, as the lawsuit appears to only be asking for financial compensation, the implications could give legal precedent that will have adverse effects to ALL hunters.

The courts may still decide that the government has the right to close hunting based on Social licence opinion, and all is required is to pay off the outfitters.
No ground to re-open a hunt has been gained. ALL hunters lose except for those outfitters that get payed off to end hunting.

Or the court could decide that the government has to follow existing wildlife management policy....
And still offer no compensation to the outfitters.
And still keep the hunt closed as their was no request to have the hunt reinstated.
At least this decision would give energy to re-opening the hunt, having ruled against the social licence principle.

As explained above, there are great concerns whether the case is lost, or won.

How much damage would a "win" do to the pillars of Wildlife being an entity that no one "Owns", that is managed in trust by the government for all people?

Will a win for $ erode the North American model of Wildlife management?
Will governments will just have to pay $ to a few people to end hunting?

Or it may make them realize they just have to pay $ to end hunting.
No big deal when it is not your money.
The anti-hunting base would love this opportunity.

The concerns of this case go FAR beyond any consideration of bandwagons and praise, for or against Outfitters.

Legal cases have legal consequences.

Bringing Money into the case is the problem.

The lawsuit should be limited to suing to have the hunt reinstated, and that's all. "

And that, right there, is what has me very much concerned for the way this is playing out...
No inference involved as to my support (or lack thereof) to Outfitters nor Guides.
Really.

Cheers,
Nog

Yeah all legitimate concerns and I can only surmise that some people must have a copy or have seen the court filing and are voicing their concerns.

 

[IronNoggin]

Wildlife First™
FIGHT FOR THE HUNT: Q-and-As

When was the class action filed?
•The class action was filed December 19, 2018.

Who filed the class action?
•Ron Fleming, owner of Love Bros & Lee, a 45-year guide outfitting company outside Smithers, BC, and longtime member of GOABC, initiated the class action proceedings in BC Supreme Court.

Why is this class action happening?
•In 2017, the Government of BC implemented a complete ban on grizzly bear hunting based on emotion instead of science.
•A settlement will bring financial relief to the guide outfitters who have and will continue to see substantial losses to their businesses or livelihoods because of the government’s arbitrary action.
•It is disappointing that small businesses have no choice but to bring a lawsuit against the government.

What is the next step?
•The first big milestone of a class action is to achieve certification. In this step the court decides whether the lawsuit should proceed to a class action. Once certification is successful, notice will be given to potential members of the class.
•We expect to reach this milestone by April 2019.

Who will be included in the class?
•As we understand it at this time, all outfitters who were issued quota in 2017 will automatically be included in the class. Those who do not wish to be part of the class action must opt out and thereafter take no part in the proceeding.

How long does a class action take?
•It can take anywhere from two to three years to complete a class action.

Can Ron sue to re-open the grizzly bear hunt?
•No. Businesses may only sue for damages. This is also why resident hunters do not have a legal option.
•The remedies sought are: damages for negligent misrepresentation; damages for misfeasance in public office; special damages; and, punitive damages.

What was wrong with the government’s action?
•The complete ban on hunting does nothing to address the very real and legitimate threat of habitat loss, which was confirmed in a recent Auditor General’s report.•Grizzly bear hunting in BC has been highly controlled and regulated since 1976. Harvesting less than 2% of the total grizzly population annually helps prevent population swings and maintain a reliable, healthy balance.

What is GOABC’s position?
•GOABC is disappointed that the Government of BC implemented a complete ban on grizzly bear hunting, ignoring the environmental evidence and putting at risk the livelihoods of outfitters.
•GOABC regrets the need for a lawsuit, but supports our members taking an action they feel is necessary to protect their businesses and families from financial hardship.

Is GOABC taking a position on the government’s transition fund offer?
•No. Individual guide outfitters should do whatever they think is appropriate for their circumstances. GOABC will not advise our members on what action they should or should not take. Supporting our members, however, is our mission and, as such, we will keep members informed about options available, including the class action and our work attempting to reach a better deal with the government.

Can an outfitter accept the government’s transition offer and also participate in the class action?
•Those who have decided to accept government’s transition offer by February 1st, 2019 must sign government’s release letter and will therefore no longer be eligible to participate in the class action.

Will the outcome of this class action set Canadian case law?
•Yes, this case is filed with the BC Supreme Court and will set Canadian case law.

What can supporters of grizzly bear hunting do if they want to get involved?
•Hunters and businesses across BC connected to guide outfitting are encouraged to contact their local MLA to voice their concern. •Make a contribution to Ron’s legal defence fund via lovebroslee@bulkley.net or direct deposit to the account #02160-1001718.

https://huntersforbc.ca/images/Grizzly-Docs/Fight_for_the_Hunt_-_Q_and_As.pdf


Can anyone enlighten regarding "the government's transition offer" to outfitters effected by the Grizzly Bear hunt closure ??


Wondering...

Nog