Decision Date:  August 17, 2012

Panel:  Alan Andison

Keywords: Wildlife Act – ss. 101, 101.1(1); guide outfitter quota; policy; jurisdiction; appealable decision; resident hunter; Olson v. British Columbia (Ministry of Environment Wildlife Branch, Director), [1989] B.C.J. No. 1579

Jesse Zeman appealed a decision of the Regional Manager, Kootenay-Boundary Region, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), with respect to the total number of Bighorn Sheep allocated to guide outfitters in the Region. Mr. Zeman holds a resident hunter licence. He appealed on the basis that the Regional Manager did not follow Ministry policies when he determined that 44 Bighorn Sheep would be allocated to guide outfitters in the Region, as quotas attached to the guides’ annual licences for 2012/13. Mr. Zeman submitted that the regional allocation to guide outfitters was too high, and would affect hunting opportunities for resident hunters and guide outfitters, and create conservation concerns for the species, and should be reduced to 21.

After reviewing Mr. Zeman’s Notice of Appeal, the Board requested written submissions from the parties on whether the regional allocation was an appealable decision, and whether Mr. Zeman had standing to appeal the decision as the holder of a resident hunter licence, under sections 101 and 101.1 of the Wildlife Act (the “Act”). Section 101(1) of the Act requires a regional manager to give written reasons for “a decision that affects… a licence, permit, registration of a trapline or guiding territory certificate held by a person, or an application by a person for [any of those things]”. Section 101(2) states that notice of a decision referred to in subsection (1) must be given “to the affected person.” Section 101.1 of the Act states that “The affected person referred to in section 101(2) may appeal the decision” to the Board.

The Board found that, although section 60 of the Act authorizes regional managers to attach a species quota to a guide outfitter’s annual licence as a condition of the licence, Mr. Zeman was not appealing the quota issued to any individual guide outfitter. Rather, he was appealing the total number of Bighorn Sheep that were determined to be available for allocation among all guide outfitters in the Region, as a share of the total annual allowable harvest. The Board found that the Regional Manager determined the allocation by applying certain Ministry policies and procedures, and there is no statutory authority in the Act or its regulations for making that determination. The Board held, therefore, that the appealed decision is not a statutory decision.

The Board then adopted and applied the reasoning in Michael Langegger et al v. Deputy Regional Manager et al (Decision Nos. 2012-WIL-004(a), 005(a) and 007(a), issued August 3, 2012), which addressed the difference between statutory decisions that may be appealed to the Board under the Act, and policy or administrative decisions that may not be appealed to the Board. The Board concluded that the decision Mr. Zeman sought to appeal is not appealable to the Board, because it is not a statutory “decision” within the meaning of sections 101 and 101.1 of the Act.

Further, the Board noted that the remedy sought by Mr. Zeman (a reduction in the number of Bighorn Sheep allocated to guide outfitters in the Region) was likely to be beyond the Board’s jurisdiction. In that regard, the Board cited the reasoning in Olson v. British Columbia (Ministry of Environment Wildlife Branch, Director), [1989] B.C.J. No. 1579, which indicates that the Board has no jurisdiction to alter general policy decisions of the Ministry.

Based on those findings, it was unnecessary for the Board to decide the issue of Mr. Zeman’s standing to appeal. However, for greater certainty, the Board set out its findings on that issue. The Board reviewed the appeal provisions in sections 101 and 101.1 of the Act, and held that resident hunter licences were not the subject of the appealed decision, and persons who hold resident hunter licences are too remotely affected by the appealed decision to be “the affected person” within the meaning of sections 101(2) and 101.1. Specifically, Mr. Zeman continued to hold a resident hunter licence that provided him with an opportunity to harvest a Bighorn Sheep. The appealed decision did not affect the legal authority granted under his resident hunter licence. Also, the number of Bighorn Sheep allocated to resident hunters in the Region remained the same, regardless of the number allocated to guide outfitters. Further, any concerns about potential impacts on Bighorn Sheep conservation and future hunting opportunities were speculative, given the many variables that can affect future hunter success rates and the available annual allowable harvest in the Region.

Accordingly, the appeals were dismissed.