Decision Date: May 5, 1999

Panel: Toby Vigod

Keywords: s.60(1) Wildlife Act, Wildlife Act Commercial Activities Regulation, B.C. Reg. 338/82 as amended, fettering, relevant considerations, black bear harvest quotas in a licence; aboriginal rights; fiduciary duty

This was an appeal by Mr. McCowan from the decision of the Manager to assign quotas for black bears in the region known as MU 6-03, in which Mr. McCowan has operated as a licensed guide, since 1978. In 1994, concerns about the declining populations of grizzly and black bears in the Kitlope watershed (MU 6-03(2a)) were brought to the attention of the Ministry of Environment, Lands and Parks by the Haisla Nation. The Haisla made a claim for the harvest of black bears in their traditional territory to meet their sustenance and ceremonial needs. The Director of Wildlife, in a letter to the Chief of the Haisla Nation stated that on an interim basis there was a Haisla right to “sustenance and ceremonial use of black bear” and because of conservation needs it was necessary to set black bear harvest quotas for the MU 6-03 region. The 1998-99 licence issued to Mr. McCowan included a black bear harvest quota. The Manager submits that he imposed that 1998-99 quota to allow sufficient time to consult with the Haisla, and to maintain the Ministry’s responsibility not to infringe on aboriginal rights.

Mr. McCowan is seeking an order that would eliminate any quota for black bear from his licence. Mr. McCowan argued that the Manager’s discretion was fettered by the decision of the Director of Wildlife which he claims was an interim decision and was out of date. In addition, he contends that the implementation of quotas within his guiding territory was political, as the population of black bears in the MU 6-03 region was both healthy and increasing. He submits that the black bear quota is a result of the province’s fiduciary responsibility to avoid infringement of aboriginal rights and not based on sound wildlife management.

The Board found that it was reasonable for the Manager not to adjust Mr. McCowan’s quota as consultation with the Haisla was underway. In addition, the Board found that the Manager’s consideration of aboriginal rights and entitlement to hunt black bear was a relevant consideration. The Manager demonstrated a willingness to look at options other than a quota for the next season, in light of the Ministry’s conclusion that the black bear population in the region is healthy. The Board found that the option of setting a non-binding guideline, which if not followed would result in further action, rather than a quota is a reasonable approach.

Mr. McCowan also requested that the current boundary lines dividing his guide territory be eliminated. The panel was reluctant to change the boundary lines but urged the Manager to reconsider the boundaries.

The appeal was dismissed.