Decision Date: July 3, 2014

Panel: Alan Andison

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

Christine Franke 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 her 2013-2014 guiding licence. Ms. Franke is a guide outfitter who operates Mountain Spirit Outfitters Inc. in the Cariboo region of British Columbia. Mountain Spirit Outfitters Inc. guides hunters who pay to take part in a hunt for a particular species of wildlife.

Ms. Franke’s 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 Ms. Franke’s clients may kill within her designated guiding territory.

In January 2013, the Regional Manager issued Ms. Franke’s guide outfitter licence for the 2013/2014 season with a quota of four bull moose, and an allocation of 13 bull moose for the four years remaining (2013-2016) in her five-year (2012-2016) allocation period.

Ms. Franke appealed this decision on the main ground that it represents a significant reduction from previous quotas and allocations. In her Notice of Appeal, Ms. Franke stated that her reason for appealing was that the accessible portion of her guide territory was a “tiny proportion compared to the inaccessible remote land mass of [her] guide territory which was not taken into account when considering moose numbers within this territory.” In her written submissions, Ms. Franke also alleged that the Regional Manager failed to follow and apply the harvest allocation policies and procedures to correctly determine her multi-year allocation and annual quota for moose. In particular, Ms. Franke submitted that the Regional Manager’s decision was fundamentally flawed in that the quota and four-year allocation were calculated on a guide territory level, rather than on a regional level, contrary to the Ministry’s policies and procedures. Further, Ms. Franke submitted that the reduction in her quota and four-year allocation would cause her significant financial and economic hardship, contrary to the commitments and principles provided in the Ministry’s policies and procedures. In support of her case, Ms. Franke provided detailed submissions, including three maps of her territory, and an affidavit sworn by the Executive Director of the Guide Outfitter Association of British Columbia.

As a remedy, Ms. Franke asked the Board to vary the 2013-2016 allocation and 2013-2014 quota by increasing both the allocation for her region and her quota for moose in accordance with the Ministry’s harvest allocation policies and procedures. Specifically, Ms. Franke asked the Board to raise her quota “back to the original number of 39 moose over a 5 year period for which [she] paid for in 2007 when purchasing [her] guide territory. “ In the alternative, she asked the Board to send the matter back to the Regional Manager with directions to properly follow the Ministry’s harvest allocation and quota for bull moose accordingly.

The Board found that the appeal gave rise to two main issues. The first issue was whether Ms. Franke’s 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 Ms. Franke’s 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 the Board 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 there was no authority, nor any legitimate reason, for it to “revamp” or alter the general policies and procedures of the Ministry.

In respect of the second issue, Ms. Franke submitted that the reduction in quota would have significant financial consequences for her guide outfitting business, contrary to the Commercial Hunting Interests policy. Further, Mr. Franke submitted that the Regional Manager had failed to issue sufficient quota to guide outfitters for the last three years, leading to issues of under-harvest, and failed to file a report to the Director, as required under Ministry policy when under-harvest occurs. Ms. Franke also submitted that given the amount of remote area in her territory, the Quota Variance Principle (the “QVP”) should have been applied to increase her 2012-2016 allocation to 39 moose. The Board addressed these 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 2013-2016 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 Ms. Franke’s submissions regarding under-harvest, the Board first noted that the under-harvest policy referred to by Ms. Franke was directed at the determination of the resident/non-resident 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, or to determine the implications of a failure to file such a report on the validity of the decision under appeal.

Concerning Ms. Franke’s submission that the Regional Manager failed to follow the applicable policies and procedures, the Board could not find any clear error in the Regional Manager’s calculations or any improper consideration that would warrant a change in Ms. Franke’s quota or multi-year allocation. However, the Board did recommend that the Regional Manager reconsider whether the QVP should be applied to Ms. Franke. The Board observed that impact to resident hunter priority did not appear to bar application of the QVP in Ms. Franke’s case. Further, given the apparent remoteness and lack of access to much of Ms. Franke’s territory and evidence suggesting low resident hunter demand in the inaccessible areas, the Board found it appropriate to recommend reconsideration as to whether the QVP should be applied in this case.

Accordingly, the appeal was dismissed.