Decision Date: April 18, 2013
Panel: Tony Fogarassy, Ken Long, Les Gyug
Keywords: Wildlife Act – ss. 52(1); Angling and Scientific Collection Regulation – ss. 11(1.1), 11(1.2), Schedule A; angling guide; angler day quota
Walter Faetz and four other angling guides (the “Guides”) appealed five separate decisions issued by the Regional Manager, Recreational Fisheries and Wildlife Program, Skeena Region, Ministry of Forests, Lands and Natural Resource Operations. In the appealed decisions, the Regional Manager denied the Guides’ respective bids for angler day quotas on the Zymoetz River downstream of Limonite Creek (“Zymoetz II”) for the 2012/13 season.
The Zymoetz II is a classified water under the Angling and Scientific Collection Regulation, B.C. Reg. 125/90 (the “Regulation”). Classified waters are designated in Schedule A of the Regulation. Schedule A also limits the number of guides on the particular water and the number of guided angler days available on that water during the specified – or “classified” – period. All of the Guides have taken clients to fish on the Zymoetz II in past years.
On April 1, 2012, amendments were made to Schedule A of the Regulation in relation to the classified period and the number of angling days available on the Zymoetz II. Previously, Schedule A only regulated the period from September 1 to October 31. Under the amendments, Schedule A was changed to regulate the “shoulder periods” (July to August and November to May), and reduce the previous guided angler days during the September to October period.
Following those changes, the Regional Manager required the Guides to submit bids in the form of sealed tenders and written proposals for the guided angler days available on the Zymoetz II during the new classified period. Before the Regional Manager requested the bids, he retained a consultant to provide information on the potential monetary value of angler days on the Zymoetz II waters. After reviewing the Guides’ bids, the Regional Manager rejected all of them, partly on the basis that the bids were excessively low. Consequently, he issued no guided angler days on the Zymoetz II.
The Guides appealed the Regional Manager’s decisions rejecting their bids. They submitted that the Regional Manager’s decision-making process was unreasonable and unfair, and that he had no jurisdiction to award the new quota because there was no approved angling management plan in place for the Zymoetz II. The Guides Outfitters Association of B.C. supported the Guides’ submissions.
The Regional Manager submitted that the Board should confirm the Regional Manager’s decisions to reject the Guides’ bids.
First, the Board considered whether there was an approved angling management plan in place for the Zymoetz II. The Board noted that both the Regulation and the Act refer to an angling “management plan”. Section 11(1.1)(a) of the Regulation enables a regional manager to allocate angler day quota only if a management plan applies to the classified water. Section 52(3) of the Act requires the publication of a plan for managing guiding for fish and angling. However, the Board found that there are no content requirements for such a plan specified in the Act or in any regulation under the Act. The Board also noted that there is no requirement for such a plan to be agreed to by a consensus of stakeholders, or for a plan to take into consideration particular factors or information. There is only a requirement for a published “plan for managing guiding for fish and angling on a stream”.
Applying that analysis to the facts in this case, the Board found that the Ministry of Environment had published a document in 2010 that constituted an angling management plan for sections of the Zymoetz River. While not specifically labelled “management plan”, the information in the 2010 document was clearly a “plan” for managing guiding and angling, and the information was published and widely available. Also, the 2010 document represented the culmination of years of information sharing, comment and review, and consultation of all stakeholders on the Zymoetz I and II. Although it would have been helpful if the Regional Manager had clearly communicated to stakeholders that the essential components of an angling management plan for the Zymoetz I and II were in place as of April 23, 2010, that lack of communication did not undo the fact that a Zymoetz I and II angling management plan existed as of April 23, 2010.
Next, the Board considered whether the Regional Manager’s choice of process for allocating the new quota was reasonable. The Board concluded that the Regional Manager exercised his discretion reasonably when he decided to allocate the new quota by requiring interested parties to submit sealed tender and written proposals for the Zymoetz II.
Finally, the Board considered whether the Regional Manager’s rejection of the Guides’ bid proposals was reasonable. The Board found that the Regional Manager was under no legal obligation to allocate any or all of the angler days if the bids did not meet the objectives stated in the Ministry’s request for tenders, which were to “make unallocated angler days available to angling guides in a fair, consistent and equitable manner and allow the Province to recover reasonable economic rent for the use of the resource.” Once the Regional Manager determined that the bid amounts were excessively low, and would not allow the Crown to recover reasonable economic rent for the use of the resource, he had the discretion to reject the Guides’ bid proposals.
For those reasons, the appeals were dismissed.