Decision Date: November 7, 2014
Panel: Alan Andison
Keywords: Wildlife Act – ss. 51, 60; guide outfitter; bull moose; bighorn sheep; mountain goat; grizzly bear; quota; allocation; policy application
Ryan Damstrom appealed the decision of the Regional Manager (the “Regional Manager”), Recreational Fisheries and Wildlife Program, Kootenay Boundary Region, Ministry of Forests, Lands and Natural Resources (the “Ministry”), with respect to Mr. Damstrom’s annual quotas and five-year allocations of bull moose, bighorn sheep, mountain goat, and grizzly bear. Mr. Damstrom is a guide outfitter who operates in the Kootenay Boundary Region of BC. He guides hunters who pay to take part in a hunt for a particular species of wildlife.
Annual guide outfitter licences are issued with one-year quotas and five-year allocations specifying the maximum number of individuals of a specific wildlife species that the guide’s clients may kill within their guiding territory. Non-residents of BC may only hunt for big game if they are accompanied by either a licensed BC guide outfitter or a resident hunter who holds a permit to accompany. Thus, most clients of guide outfitters are non-resident hunters.
In January 2013, the Regional Manager issued Mr. Damstrom’s annual quotas for the 2013/2014 season quotas and five-year allocations for 2012-2016, as follows: one year quotas of four bull moose, two bighorn sheep, twelve mountain goats, and zero grizzly bear; and five-year allocations of fourteen bull moose, five bighorn sheep, forty mountain goat, and zero grizzly bear.
Mr. Damstrom appealed the Regional Manager’s decision on the grounds that it was unfair, unreasonable, unsupported by science or data, and inconsistent with the Ministry’s policies and procedures. Specifically, Mr. Damstrom alleged that the Regional Manager improperly applied the Ministry’s harvest allocation policies and procedures in determining his quotas and allocations. In addition, he alleged that the Regional Manager improperly applied the policy regarding “substantive impact,” improperly considered his clients’ past success rates, and applied an incorrect harvest rate for mountain goats. Further, Mr. Damstrom alleged that the wildlife population estimates relied upon by the Regional Manager were inaccurate.
Mr. Damstrom requested that the Board increase his quotas and allocations to match his 2007-2011 quotas and allocations. Alternatively, he requested that his allocation be varied to reflect a maximum reduction of 30% from his 2007-2011 allocation, and his quotas to be varied accordingly. In the further alternative, he asked the Board to direct the Regional Manager to review his file and increase his quotas and allocations in keeping with the Ministry’s policies and procedures. In support of his appeal, Mr. Damstrom provided detailed submissions including an affidavit sworn by the Executive Director of the Guide Outfitters Association of British Columbia.
The Board found that the appeal gave rise to three issues: (1) whether Mr. Damstrom’s quotas and allocations should be determined on a “guide territory level” or a “regional level”; (2) whether Mr. Damstrom’s quotas and allocations should be increased due to errors made by the Regional Manager; and, (3) whether, in all of the circumstances, Mr. Damstrom’s quotas and allocations should be increased.
Regarding the first issue, the Board found that the Ministry’s policies and procedures indicate that guide outfitter quotas and allocations are to be determined on a guide territory level, and not on a regional level. The Board found that it has no authority, nor was there any legitimate reason, to alter the Ministry’s policies and procedures in that regard.
In respect of the second issue, the Board found that there was no basis to change Mr. Damstrom’s allocation or quota on the basis of any errors in the wildlife population estimates. Moreover, grizzly bear hunting has been closed in Mr. Damstrom’s guiding territory, and neither the Board nor the Regional Manager has the authority to override that closure. The Board also found that the Regional Manager properly applied the 30% “hardship rule” to Mr. Damstrom’s clients’ past harvest, rather than his past 2007-2011 allocation. Thus, the Board found that the Regional Manager did not err in that calculation. Although Mr. Damstrom alleged that the Regional Manager erred by considering success factors, the Board found that the use of success rates operated to Mr. Damstrom’s benefit by increasing his quota. However, the Board sent Mr. Damstrom’s mountain goat quota and allocation back to the Regional Manager to be calculated using a harvest rate of 4% rather than 3%, based on evidence showing a high population estimate for mountain goats, acceptable harvest rates, and no issues regarding conservation, First Nations hunters, or resident hunters arising from increasing the harvest rate to 4%. In all other respects, the Board found that the Regional Manager made no errors in determining Mr. Damstrom’s quotas and allocations.
On the third issue, the Board found that, except for Mr. Damstrom’s quotas and allocations for mountain goats, there was no basis to increase his quotas and allocations. In all other respects, the Regional Manager determined Mr. Damstrom’s quotas and allocations in accordance with the Ministry’s policies and procedures, and based on the information that was before him.
Accordingly, the appeal was allowed, in part.