Decision Date: May 23, 2014

Panel: Alan Andison

Keywords: Wildlife Act – ss. 51, 60; guide outfitter; moose; quota; allocation; notice of a decision; policy application

Stewart Fraser appealed a letter issued by the Regional Manager (the “Regional Manager”), Recreational Fisheries and Wildlife Program, Cariboo Region, Ministry of Forests, Lands and Natural Resources (the “Ministry”), which set out Mr. Fraser’s annual quota and five-year allocation of moose. Mr. Fraser is a guide outfitter who operates in the Cariboo Region of BC. He guides hunters who pay to take part in a hunt for a particular species of wildlife.

Annual guide outfitter licences are issued with annual quotas and five-year allocations specifying the maximum number of individuals of a specific wildlife species that the guide’s clients may kill within their guiding territory. Non-residents of BC may only hunt for big game if they are accompanied by either a licensed BC guide outfitter or a resident hunter who holds a permit to accompany. Thus, most clients of guide outfitters are non-resident hunters.

In January 2013, the Regional Manager issued the letter, which stated that Mr. Fraser’s an annual quota for the 2013/2014 season was ten moose, and his five-year allocation for 2012-2016 of 42 moose. Mr. Fraser’s quota and allocation were significantly lower than in previous years.

Mr. Fraser appealed this letter on multiple grounds. Mr. Fraser submitted that the Regional Manager’s letter was not a “legal document” regarding his quota and allocation; rather, he submitted that his guide outfitter licence is the proper legal document. He asked that the letter be declared a nullity, and his previous quota and allocation should apply until the nullity is corrected. Mr. Fraser also submitted that the Regional Manager failed to follow and apply the Ministry’s harvest allocation policies and procedures. Further, Mr. Fraser submitted that the Regional Manager failed to properly exercise his discretion. Finally, Mr. Fraser submitted that the Regional Manager’s decision would cause significant financial hardship to his guide outfitting business, contrary to the Ministry’s Commercial Hunting Interests policy. Mr. Fraser requested that the Board reverse the Regional Manager’s decision, and increase his quota and five-year allocation of moose. Alternatively, Mr. Fraser asked the Board to refer the matter back to the Regional Manager with directions to follow the Ministry’s policies and procedures, and to increase his quota and allocation accordingly.

The Board considered four issues: (1) whether the Regional Manager’s letter is a “legal document”; (2) whether Mr. Fraser’s annual quota and five-year allocation should be determined on a “guide territory level” or a “regional level”; (3) whether Mr. Fraser’s quota and allocation should be increased due to errors made by the Regional Manager; and (4) whether, in all of the circumstances, Mr. Fraser’s quota and allocation should be changed.

Regarding the first issue, the Board found that the Regional Manager’s letter provided Mr. Fraser with advance notice of his quota and allocation, before his guide outfitter licence was issued. There was no evidence that he did not receive his guide outfitter licence, or that the quota and allocation in his licence were different from those in the letter. The fact that the letter was sent before his licence did not render the notice provided by the letter, or the quota and allocation shown therein, a nullity. Further, the letter constituted “notice of a decision,” and therefore, was appealable under section 101.1 of the Wildlife Act.

On the second issue, the Board found that Ministry policies and procedures direct the Regional Manager to calculate quotas and allocations on a guide territory basis, rather than a regional basis. The Board noted that the policy for determining quotas and allocations differs from the policy for determining the split or share of animals between resident and non-resident hunters, which is determined on a regional basis. Further, the Board found that it had no authority, nor was there any legitimate reason, to alter the Ministry’s policies and procedures.

In respect of the third issue, the Board found that it was reasonable for the Regional Manager to rely on the government’s moose population estimates, which were based on the most scientifically defensible data available. Those estimates indicated that there has been a general decline in the moose population in various parts of the Region. Mr. Fraser was asking for his quota to be doubled and his allocation to be more than doubled, but the Board found that he did not provide sufficient evidence to justify the requested increases, or to properly assess the potential impact of such increases. In addition, the Board found that it was reasonable for the Ministry to take protective measures, such as reducing the total annual allowable harvest of moose in the Region, while it investigates the population decline. Further, the Board found that, in calculating Mr. Fraser’s allocation, the Regional Manager properly applied the Ministry’s “hardship rule”, which mitigates the impact of allocation reductions on guide outfitters. Also, the Board held that the Ministry’s Commercial Hunting Interests policy does not support raising Mr. Fraser’s quota to reduce financial impacts on his business, because this policy focuses on the Ministry’s larger policy goals, and is not intended to be used to determine individual quotas.

Finally, regarding the fourth issue, the Board found that the Regional Manager calculated Mr. Fraser’s quota and allocation in accordance with the Ministry’s policies and procedures, and there was no error in the Regional Manager’s calculations, or any improper exercise of discretion, that would warrant increasing his quota or allocation.

Accordingly, the appeal was dismissed.