Decision Date: December 10, 2014

Panel: Alan Andison

Keywords: Wildlife Act – ss. 51, 60; guide outfitters; bull moose; bighorn sheep; mountain goat; grizzly bear; quota; allocation; policy application; population estimate

Each of the Appellants is a guide outfitter in the Kootenay Boundary region of British Columbia. Guide outfitters act as guides for hunters who pay to hunt for a particular species of wildlife. Each of the Appellants’ annual guide outfitter licences are issued with one-year quotas and five-year allocations, which specify the maximum number of individuals of specific wildlife species that the Appellants’ clients may kill within the guide outfitter’s guiding territory.

In separate decisions, the Regional Manager (the “Regional Manager”), Recreational Fisheries and Wildlife Program, Kootenay Boundary Region, Ministry of Forests, Lands and Natural Resources (the “Ministry”), advised the Appellants of their respective annual quotas and five-year allocations for 2013-2014 licence year. Each of the Appellants appealed their respective annual quotas and five-year allocations. The wildlife species in issue in these appeals were bull moose, bighorn sheep, mountain goat and grizzly bear.

The Appellants raised the following common grounds for appeal:

• their quotas and allocations had been significantly reduced from their previous quotas and allocations, and the Regional Manager’s decisions were unfair and unreasonable;
• the Regional Manager failed to follow and apply the Ministry’s harvest allocation policies and procedures to properly determine their quota and multi-year allocations;
• the Regional Manager failed to consider appropriate factors, and therefore, failed to reach a reasonable and supportable decision;
• the Regional Manager failed to make his decision in accordance with the Ministry’s Commercial Hunting Interests Policy, thus causing significant financial and economic hardship to the Appellants’ businesses; and
• the Regional Manager’s decisions were fundamentally flawed in that each quota and multi-year allocation was calculated on a guide territory level, rather than on a regional level, contrary to the Ministry’s policies and procedures.

In addition, many of the Appellants challenged the accuracy of the Ministry’s wildlife population estimates. However, only one Appellant provided any evidence in support of that claim.

As a remedy, the Appellants asked the Board to increase their respective quotas and allocations in accordance with the Ministry’s policies and procedures. In the alternative, they asked the Board to send the quota and allocation decisions back to the Regional Manager with directions to follow the Ministry’s policies and procedures, and increase their quotas accordingly.

After the appeals were filed, the Regional Manager advised that he would be amending or adjusting some of the allocations and quotas of three Appellants. This resulted in their appeals being granted in part, by consent of the Regional Manager. Aside from those instances, the Regional Manager opposed the appeals.

The Board found that the appeals gave rise to three main issues: (1) whether the Appellants’ annual quotas and five-year allocations should be determined on a “guide territory level” or a “regional level”; (2) whether the Regional Manager calculated the quotas and allocations in accordance with the Ministry’s policies and procedures; and, (3) whether one Appellant’s quota and allocation for grizzly bear should be increased due to incorrect population estimates.

In respect of the first issue, the Board noted that, in Findlay v. Deputy Regional Manager, Recreational Fisheries and Wildlife Program (Thompson/Okanagan Region), (Decision No. 2013-WIL-033(a), April 24, 2014) [Findlay], which was substantially similar to these appeals on this issue, the Board found that a guide outfitter’s quota and allocation should be determined on a guide territory level, not on a regional level. The Board found that the same reasoning applied to the present appeals, and therefore, the Board dismissed this ground of appeal.

In addressing the second issue, the Board considered the following three sub-issues: (i) whether the Commercial Hunting Interests Policy applied; (ii) whether the Ministry’s policy on under-harvesting of wildlife applied; and, (iii) whether the Regional Manager properly applied the relevant policies and procedures in determining the quotas and allocations. The Board found that the Commercial Hunting Interests Policy focuses on the Ministry’s broader goals, such as protecting the guide outfitting industry, and is not intended to be used to determine individual quotas. Further, the Board found that the Ministry had responded to guide outfitters’ concerns about the economic impacts of reduced quotas and allocations, by implementing certain mitigating measures. The Board held that any further mitigating measures should be the subject of discussions between the guide, or guide outfitting community, and the Ministry. Regarding the second sub-issue, the Board found that the Ministry’s policy regarding under-harvest is directed at the resident/non-resident hunter allocation or share of the harvest within a region, as opposed to the quotas and allocations of individual guides. Further, the Board found that there was insufficient evidence to determine whether the Regional Manager should have reported an under-harvest, and if so, whether such a report was filed. Regarding the third sub-issue, the Board held that the Regional Manager’s discretion in determining quotas and allocations is limited by the Ministry’s policies and procedures, which set out a detailed and complex process for determining quotas and allocations. Further, the evidence established that the Regional Manager calculated the Appellants’ quotas and allocations in accordance with the relevant policies and procedures. In addition, the Board noted that its role is to ensure that the Regional Manager applied the policies and procedures fairly and without any factual or legal errors; it is not the Board’s role to change the Ministry’s policies and procedures.

In respect of the third issue, the Board found that the relevant area was closed to grizzly bear hunting for the 2013-2014 season, and neither the Regional Manager nor the Board has the authority to override or overturn that closure.

Accordingly, three of the appeals (Glaicar – Appeal No. 2013-WIL-004; Lightburn – 2013-WIL-008; and, Beranek – 2013-WIL-025) were allowed in part, by consent. The remaining eleven appeals were dismissed.