Decision Date: July 2, 2014

Panel: Alan Andison

Keywords: Wildlife Act – ss. 51, 60; guide outfitter; bull moose; quota; allocation; policy application; hardship rule; quota variance principle

Hans-Albert Jacobs appealed the decision of the Regional Manager (the “Regional Manager”), Recreational Fisheries and Wildlife Program, Cariboo Region, Ministry of Forests, Lands and Natural Resources (the “Ministry”), with respect to the annual quota and five-year allocation of moose issued with his 2013-2014 guiding licence. Mr. Jacobs is a guide outfitter who operates Blackwater River Outfitting Ltd. in the Cariboo region of British Columbia. Blackwater River Outfitting Ltd. guides hunters who pay to take part in a hunt for a particular species of wildlife.

Mr. Jacobs’ annual guide outfitter licences are issued with a one-year quota and a five-year allocation, which specify the maximum number of individuals of a specific wildlife species that Mr. Jacobs’ clients may kill within his designated guiding territory.

In January 2013, the Regional Manager issued Mr. Jacobs’ guide outfitter licence for the 2013/2014 season with an annual quota of five bull moose, and an allocation of 18 bull moose for the four years remaining in his five-year (2012-2016) allocation period.

Mr. Jacobs appealed this decision on multiple grounds. In summary, Mr. Jacobs’ main reason for the appeal was that the Regional Manager failed to follow and apply the Ministry’s harvest allocation policies and procedures to correctly determine Mr. Jacobs’ five-year allocation and quota of bull moose. In particular, Mr. Jacobs submitted that the Regional Manager’s decision was fundamentally flawed in that the quota and five-year allocation were calculated on a guide territory level, rather than on a regional level, contrary to the Ministry’s policies and procedures. Further, Mr. Jacobs argues that the Regional Manager’s determination of the quota and five-year allocation would cause Mr. Jacobs significant financial and economic hardship, contrary to the commitments and principles provided in the Ministry’s policies and procedures.

As a remedy, Mr. Jacobs asked the Board to increase his five-year allocation and quota in accordance with the Ministry’s harvest allocation procedure. Specifically, Mr. Jacobs requested that the Board increase his quota to 12 moose per year, or replace his reduced quota with other readily available game animals. In the alternative, Mr. Jacobs asked the Board to send the matter back to the Regional Manager with directions to properly follow the Ministry’s harvest allocation policies and procedures, and to increase his five-year allocation and quota for moose accordingly.

The Board found that the appeal gave rise to two main issues. The first issue was whether Mr. Jacobs’ annual quota and five-year allocation should be determined on a “guide territory level” or a “regional level”. The second issue was whether the Regional Manager calculated Mr. Jacobs’ quota and five-year allocation in accordance with the Ministry’s policies and procedures, and whether the quota and five-year allocation should be changed.

The Board first clarified the difference between the terms “allocation” and “five-year allocation”. The Board stated that the former refers to the division or split of the annual allowable harvest of animals between resident hunters and guided hunters, and is determined by the Director of Fish and Wildlife. The latter refers to a guided hunter’s cumulative quota over a five-year period, and is determined by the Regional Manager. The Board then considered the two main issues.

In respect of the first issue, the Board found that the Ministry’s policies and procedures direct the Regional Manager to base quota and multi-year allocation determinations on a guide territory basis, rather than a regional basis. The Board noted that the policy for determining quotas and multi-year allocations for guided hunters is different from the method used to determine the numbers for resident hunters, and found that this difference was intentional. The Board found that section 1.4 of the Quota procedure for guided hunting in the Ministry’s Procedure Manual makes it clear that guide outfitter quotas are to be calculated on a guide territory level. Further, the Board found that it had no authority, nor any legitimate reason, to “revamp” or alter the general policies and procedures of the Ministry.

In respect of the second issue, Mr. Jacobs submitted that the reduction in quota would have significant financial consequences for his guide outfitting business, contrary to the Ministry’s Commercial Hunting Interests policy. Further, Mr. Jacobs submitted that the Regional Manager had failed to issue sufficient quota to guide outfitters for the last three years, leading to under-harvest, and failed to file a report to the Director, as required under Ministry policy when under-harvest occurs. Mr. Jacobs also submitted that insufficient resident demand in his territory warranted an increase in his quota. The Board addressed these parties’ arguments under the following three categories: economic factors (Commercial Hunting Interests policy), under-harvest, and failure to follow policies and procedures to determine the quota and allocation.

Concerning economic factors, the Board found that if the Commercial Hunting Interests policy was intended to be used by a Regional Manager to determine quota, the policy would have said that, but instead, the policy focused on larger goals of the Ministry, such as protecting the guide outfitting industry. Further, the Board found that the Ministry had recognized the financial and economic impacts to guide outfitters, and had responded with certain mitigating policies and procedures. The Board stated that any further mitigating measures should be the subject of discussions between the guide, or guide outfitting community, and the Ministry.

Concerning Mr. Jacobs’ submissions regarding under-harvest, the Board first noted that the under-harvest policy referred to by Mr. Jacobs was directed at the determination of the resident/non-resident hunter split or share of the harvest, as opposed to the quota and multi-year allocation of a specific guide. Further, the Board found that there was insufficient evidence to determine whether a report should have been filed, and to determine the implications of a failure to file such a report on the validity of the decision under appeal.

Concerning Mr. Jacobs’ submissions that the Regional Manager failed to follow the applicable policies and procedures, the Board found that the Regional Manager appeared to have made a mathematical error in his application of the hardship rule to Mr. Jacobs’ quota and multi-year allocation. The Board stated that this error alone justified sending the matter back to the Regional Manager for reconsideration. Additionally, the Board directed the Regional Manager to reconsider whether the quota variance principle should be applied to increase Mr. Jacobs quota, given the remoteness and lack of access to Mr. Jacobs’ territory.

Accordingly, the appeal was allowed in part.