Decision Date: February 1, 2018

Panel: Linda Michaluk

Keywords: Wildlife Act – ss. 51, 60, 101(2), 101.1(1); guide outfitter; quota; allocation; caribou; moot; jurisdiction; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342

Kevin Newberry appealed a decision of the Deputy Regional Manager (the “Regional Manager”), Recreational Fisheries and Wildlife Programs, Cariboo Region, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), regarding the annual quota and five-year allocation of caribou for Mr. Newberry’s guiding territory. The decision was issued to both Mr. Newberry, who holds the guiding territory certificate for the territory, and Mr. Madley, who holds the guide outfitter licence for the territory. In his decision, the Regional Manager indicated that the quota for the 2017/18 licence year was one caribou, and the five-year allocation (2017-2021) was two caribou. He also advised that the annual allowable harvest in the region was reduced for the 2017-2021 period due to a significant decrease in the caribou population.

Under section 60 of the Wildlife Act, regional managers may attach a quota as a condition of a guide outfitter licence, and may vary the quota for subsequent licence years. A quota is the total number of a particular species that may be harvested by the guide’s clients in the guide’s territory during the period specified in the licence. A five-year allocation establishes the maximum number of animals that the guide’s clients may harvest during the allocation period. The allocation is based on calculations involving the Ministry’s estimate of the animal population in the area, the sustainable level of harvest, the anticipated harvest by First Nations, and the proportion (split) of the remaining annual allowable harvest that is divided between resident hunters and non-resident hunters. Typically, the clients of guide outfitters are non-resident hunters.

Mr. Newberry requested that his quota and allocation be increased. He argued that the Regional Manager’s decision was unfair, arbitrary, inconsistent with Ministry policies and procedures, and not supported by accurate and scientifically defensible data.

First, the Board considered whether the appeal was moot with respect to the 2017/2018 quota, given that the hunting season for caribou ended on October 15, 2017. The Board applied the test for mootness set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, which is that the court (or in this case, the Board) generally should decline to decide a case if there is no longer a “live controversy” which affects that parties’ rights, although there are exceptions where the circumstances warrant deciding the case. The Board found that the appeal was moot with respect to the 2017/2018 quota, since the caribou hunting season had ended and any remedy that the Board could provide would have no practical effect.

Next, the Board considered whether the five-year allocation was appealable under the Wildlife Act. The Board reviewed the Ministry’s policies and procedures that address how quotas and allocations are calculated, and the Regional Manager’s evidence regarding how he determined the Appellant’s quota and allocation. The Board found that the Regional Manager calculated the quota based on his determination of the five-year allocation. The Board held that the quota is a guide’s annual harvest limit under the Wildlife Act, but the allocation has a significant impact on a guide’s livelihood and may affect the guide’s quota in future years. Thus, the Board concluded that the Appellant could appeal his allocation, because he was an “affected person” who received written reasons containing “a decision that affects … a licence … or guiding territory certificate” within the meaning of section 101(2) and 101.1(1) of the Wildlife Act.

Finally, the Board considered whether the Appellant’s allocation should be increased. The Board considered extensive evidence regarding how the Ministry estimated the caribou population in the Appellant’s guiding territory, the harvest by First Nations, and the sustainable harvest rate, and determined the Appellant’s allocation and quota. The Board found that the Appellant had relied on outdated Ministry policies and procedures which were replaced in 2016, and the Appellant’s evidence was insufficient to challenge the Ministry’s estimates of the caribou population, the First Nations’ harvest, and the sustainable harvest. There was undisputed evidence that the caribou population in the Appellant’s guiding territory is part of a herd that is a “threatened species” under the Species at Risk Act, is declining in numbers, and has poor calf survival rates. In the circumstances, the Board concluded that a conservative approach to calculating the allocation was warranted, and the Regional Manager’s decision with respect to the allocation should be confirmed.

Accordingly, the appeal was dismissed.