Decision Date: July 9, 2014
Panel: Alan Andison
Keywords: Wildlife Act – ss. 51, 60; guide outfitter; bull moose; quota; allocation; policy application; population estimate;
Bradley Bowden appealed the decision of the Regional Manager (the “Regional Manager”), Recreational Fisheries and Wildlife Program, Cariboo Region, Ministry of Forests, Lands and Natural Resources (the “Ministry”), with respect to the annual quota and five-year allocation of grizzly bear issued with his 2013-2014 guiding licence. Mr. Bowden is a guide outfitter in the Cariboo region of British Columbia. Mr. Bowden guides hunters who pay to take part in a hunt for a particular species of wildlife.
Mr. Bowden’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. Bowden’s clients may kill within his designated guiding territory.
In January 2013, the Regional Manager issued Mr. Bowden’s guide outfitter licence for the 2013/2014 season with an annual quota of one grizzly bear, and an allocation of one grizzly bear for the four years remaining in his five-year (2012-2016) allocation period.
Mr. Bowden appealed this decision on the following grounds. Mr. Bowden alleged that the population estimate used to determine his quota and allocation was not accurate. He maintained that there was an increase in the number of grizzly bears in his area, not a decrease. Mr. Bowden also alleged that the Regional Manager failed to follow and apply the harvest allocation policies and procedures of the Ministry to correctly determine his quota and multi-year allocation for grizzly bear. In particular, Mr. Bowden submitted that the Regional Manager’s decision was fundamentally flawed in that the quota and multi-year allocation were calculated on a guide territory level, rather than on a regional level, contrary to the Ministry’s policies and procedures. Further, Mr. Bowden argued that the Regional Manager’s determination of the quota and five-year allocation would cause Mr. Bowden significant financial and economic hardship, contrary to the commitments and principles provided in the Ministry’s policies and procedures.
As a remedy, Mr. Bowden, in his Notice of Appeal, asked the Board to reinstate his 2007-2011 allocation of four grizzly bears. In later submissions, Mr. Bowden asked the Board to vary the allocation and quota decision by increasing both the allocation for his region, and his quota, in accordance with the Ministry’s policies and procedures. In the alternative, Mr. Bowden asked the Board to send the matter back to the Regional Manager with directions to properly follow the Ministry’s harvest allocation policies and procedures, and to increase the regional allocation for grizzly bear, and his quota, accordingly.
The Board found that the appeal gave rise to two main issues. The first issue was whether Mr. Bowden’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. Bowden’s quota and five-year allocation in accordance with the Ministry’s policies and procedures, and whether the quota and five-year allocation should be changed.
The Board first clarified the difference between the terms “allocation” and “five-year allocation”. The Board stated that the former refers to the division or split of the annual allowable harvest of animals between resident hunters and guided hunters, and is determined by the Director of Fish and Wildlife. The latter refers to a guided hunter’s cumulative quota over a five-year period, and is determined by the Regional Manager. The Board then considered the two main issues.
In respect of the first issue, the Board found that the Ministry’s policies and procedures direct the Regional Manager to base quota and multi-year allocation determinations on a guide territory basis, rather than a regional basis. The Board noted that the policy for determining quotas and multi-year allocations for guided hunters is different from the method used to determine the numbers for resident hunters, and found that this difference was intentional. The Board found that section 1.4 of the Quota procedure for guided hunting in the Ministry’s Procedure Manual makes it clear that guide outfitter quotas are to be calculated on a guide territory level. Further, the Board found that it had no authority, nor any legitimate reason, to “revamp” or alter the general policies and procedures of the Ministry.
In respect of the second issue, Mr. Bowden submitted that the reduction in quota would have significant financial consequences for his guide outfitting business, contrary to the Ministry’s Commercial Hunting Interests policy. Mr. Bowden submitted these financial consequences would exacerbate the economic hardship that Mr. Bowden already endured as a result of an eight year delay in his ability to harvest animals from two guiding areas that he had purchased in 2004. Further, Mr. Jacobs submitted that the Regional Manager had failed to issue sufficient quota to guide outfitters for the last three years, leading to under-harvest, and failed to file a report to the Director, as required under Ministry policy when under-harvest occurs. On the specific facts of this case, Mr. Bowden submitted that the grizzly bear population estimate used to determine his quota and multi-year allocation was not accurate, and he disagreed with the grizzly bear population modeling that was used in his subzone to estimate the population. The Board addressed the arguments on the above mentioned points under the following four categories: economic factors (Commercial Hunting Interests policy); under harvest; failure to follow policies and procedures to determine the quota and 2013-2016 allocation; and whether discretion should have been, or should be, exercised to increase Mr. Bowden’s quota and multi-year allocation.
Concerning the economic factors, the Board found that if the Commercial Hunting Interests policy was intended to be used by a Regional Manager to determine quota, the policy would have said that, but instead, the policy focused on larger goals of the Ministry, such as protecting the guide outfitting industry. Further, the Board found that the Ministry had recognized the financial and economic impacts to guide outfitters, and had responded with certain mitigating policies and procedures. The Board stated that any further mitigating measures should be the subject of discussions between the guide, or guide outfitting community, and the Ministry.
Concerning Mr. Bowden’s submissions regarding under-harvest, the Board first noted that the under-harvest policy referred to by Mr. Bowden was directed at the determination of the resident/non-resident hunter split or share of the harvest, as opposed to the quota and multi-year allocation of a specific guide. Further, the Board found that there was insufficient evidence to determine whether a report should have been filed, and to determine the implications of a failure to file such a report on the validity of the decision under appeal.
Concerning Mr. Bowden’s submissions that the Regional Manager failed to follow the applicable policies and procedures, the Board accepted that the Regional Manager’s role is limited by these policies in making determinations of quota and multi-year allocations. Further, the Board stated that it is not in a position, nor is the Board’s role, to change the policies and procedures or the way that a guide’s quota is determined.
Concerning Mr. Bowden’s submission that discretion should have been, or should be, exercised to increase his quota and multi-year allocation, the Board found that the Regional Manager calculated Mr. Bowden’s quota in accordance with the Ministry’s policies and procedures, and that there was no basis to change them. In respect of grizzly bear population estimates, the Board found that Mr. Bowden’s assertion that the grizzly bear population is increasing was too general, and that the Board must rely upon the existing modeling estimates until better evidence is available or provided. In respect of the 30% hardship rule, the Board found that the rule did not apply to Mr. Bowden as the reduction in his quota and multi-year allocation was in large part due to a significant reduction in the grizzly bear population estimate. The Board also noted that the Regional Manager had exercised his discretion to allocate two bears to Mr. Bowden for the five-year allocation period, when a purely mathematical calculation under the policies and procedures would have resulted in only one grizzly bear.
Accordingly, the appeal was dismissed.