Decision Date:  April 24, 2014

Panel:  Alan Andison

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

Neil T. Findlay appealed the decision of the Deputy Regional Manager (the “Regional Manager”), Recreational, Fisheries and Wildlife Program, Thompson/Okanagan Region, Ministry of Forests, Lands and Natural Resources (the “Ministry”), with respect to the quota and allocation of bull moose issued with his 2013-2014 guiding licence. Mr. Findlay is a guide outfitter in the Thompson/Okanagan Region of British Columbia. He guides hunters who pay to take part in a hunt for a particular species of wildlife.

Mr. Findlay’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 Mr. Findlay’s clients may kill within his designated guiding territory. Mr. Findlay’s guiding territories are divided into three management units. Each management unit is designated a separate quota and five-year allocation.

The Regional Manager issued Mr. Findlay’s guide outfitter licence for the 2013/2014 season with a total quota of eight bull moose, and a total five-year allocation for 2012-2016 of 16 bull moose, for the three management units combined.

Mr. Findlay appealed the decision on the grounds that the Regional Manager failed to follow and apply the Ministry’s harvest allocation policies and procedures to correctly determine his quotas and allocations. In particular, Mr. Findlay submitted that the Regional Manager erred in calculating the quota and allocation on a guide territory level, rather than on a regional level. Further, Mr. Findlay submitted that the Regional Manager’s decision would cause significant financial and economic hardship to his guide outfitting business, contrary to the Ministry’s Commercial Hunting Interests policy. In support of his case, Mr. Findlay provided detailed submissions and an affidavit sworn by the Executive Director of the Guide Outfitters Association of British Columbia.

Mr. Findlay sought an order from the Board increasing his quota and allocation for bull moose in accordance with the Ministry’s policies and procedures. In the alternative, he requested that the matter be sent back to the Regional Manager with directions to properly follow the Ministry’s policies and procedures, and to increase his quotas and allocations accordingly.

The Regional Manager opposed the appeal, and provided full submissions in support of his decision making process. The Regional Manager submitted that the Mr. Findlay’s quota and allocation were determined in accordance with the Ministry’s new policies and procedures, which allocate a greater share of animals to resident hunters than was formerly the case. The Regional Manager further submitted that quota and allocation decisions are made within the “fairly fixed factual context” of a larger allocation scheme, and that, in this case, varying the quota and allocation determination would risk frustrating the implementation of the Ministry’s new policy, and risk the overharvest of bull moose. The Regional Manager also submitted that the method used to determine Mr. Findlay’s quota and allocation had been considered and approved by the Board in two previous decisions, and that the Commercial Hunting Interests policy does not directly affect his discretion when issuing quota . Finally, the Regional Manager submitted he properly exercised his discretion in accordance with the government’s policy, that the Board should accept this policy, and that the substance of the policy is beyond the scope of the appeal.

The Board found that the appeal gave rise to two primary issues. The first issue was whether the Mr. Findlay’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 Mr. Findlay’s five-year allocation and quota in accordance with the Ministry’s policies and procedures. In the context of the second issue, the Board considered whether the five-year allocation and quota should be changed.

In respect of the first issue, the Board found that the Ministry’s policies and procedures indicate that quotas and five-year allocations should be determined on a guide territory level. The Board noted that the term “allocation”, as used in the Ministry’s Policy and Procedure Manuals, has a distinct meaning from the term “five-year allocation”, as used in the Regional Manager’s decision letter. The term “allocation” refers to the ultimate split of the annual allowable harvest of animals between resident and non-resident hunters, and is determined by the Ministry’s Director of Fish and Wildlife based on assessments that are performed on a regional level. The “allocation” precedes and informs the Regional Manager’s quota and “five-year allocation” decisions. The Board found that, pursuant to Ministry policy and procedure, the Regional Manager’s “five-year allocation” decisions are based on the number of species in a guide outfitter’s territory. The Board recommended that the Ministry and Regional Managers ensure that the word “allocation” is used consistently.

In respect of the second issue, the Board found that the Regional Manager calculated Mr. Findlay’s quota and five-year allocation in accordance with the Ministry’s policies and procedures, and that the quota and five-year allocation should not be changed. Concerning the economic impact of the Regional Manager’s decision, the Board found that many of the impacts to the guide outfitting industry are the result of changes in Ministry policy and procedure, and that such policy decisions are not made by the Regional Manager, nor can they be “fixed” or “corrected” by the Regional Manager. The Board found that if the Commercial Hunting Interests policy was intended to be used by the Regional Manager to determine an individual guide’s quota, the policy would have said that, but instead, it focuses on the larger policy goals of the Ministry. The Board noted that the Regional Manager considered certain measures that are available to mitigate economic hardship, and he provided reasons for why these measures did not apply in Mr. Findlay’s case. The Board could find no clear error in the calculations of the Regional Manager or any improper consideration that would warrant a change in the quota or variation. The Board stated that it is not its role to change the policies and procedures upon which the Regional Manager’s decision was based.

Accordingly, the appeal was dismissed.