Decision Date: June 25, 2014

Panel: Alan Andison

Keywords: Wildlife Act – ss. 51, 60; guide outfitter; bull moose; quota; allocation; policy application

Darren James Linnell 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 bull moose issued with his 2013-2014 guiding licence. Mr. Linnell is a guide outfitter who operates Batnuni Lake Guides and Outfitters in the Cariboo Region of British Columbia. Batnuni Lake Guides and Outfitters guides hunters who pay to take part in a hunt for a particular species of wildlife. Mr. Linnell’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. Linnell’s clients may kill within his designated guiding territory.

In January 2013, the Regional Manager issued Mr. Linnell’s guide outfitter licence for the 2013/2014 season with a 2013-2014 quota of five bull moose and a five-year allocation for 2012-2016 of 20 bull moose.

Mr. Linnell appealed the decision on multiple grounds, as follows. Mr. Linnell alleged that the Regional Manager’s decision letter did not comply with the Ministry’s Quota Procedure, and that the Regional Manager failed to follow and apply the Ministry’s harvest allocation policies and procedures in determining Mr. Linnell’s bull moose quota and allocation. Mr. Linnell also alleged that the Regional Manager’s decision was not based on “scientifically defensible inventory data”, as he submitted that the moose population in his territory had remained stable. Further, Mr. Linnell alleged that the Regional Manager failed to properly and reasonably exercise his discretion to ensure that guide outfitters are able to harvest their share of the annual allowable harvest. Finally, Mr. Linnell alleged that the Regional Manager’s decision was flawed, as he calculated Mr. Linnell’s quota and allocation on a guide territory level, rather than on a regional level.

Mr. Linnell sought numerous remedies, the first of which was an order that his bull moose allocation for the 2012-2016 period be increased to 39 bull moose, and his 2013-2014 quota be increased to 22. In the alternative, Mr. Linnell asked the Board to order that his 2012-2016 bull moose allocation be increase to 27, in keeping with the maximum of 30% reduction of allocation designed to avoid a “substantive impact”, or that his 2012-2016 allocation be increased to 21, to reflect the allocation that he should receive on a regional basis, and that his annual quota be varied to 30% of his five-year allocation, as determined by the Board. In the further alternative, Mr. Linnell asked the Board to refer the matter back to the Regional Manager with directions to properly determine his five-year allocation and annual quota in accordance with the Ministry’s policies and procedures.

The Board found that the appeal gave rise to four issues. The first issue was whether the Regional Manager’s decision letter complied with the Ministry’s Quota procedure. The second issue was whether Mr. Linnell’s quota and five-year allocation would be determined on a “guide territory level” or a “regional level”. The third issue was whether Mr. Linnell’s quota and five-year allocation should be increased due to errors made by the Regional Manager. The fourth issue was whether, in all of the circumstances, Mr. Linnell’s quota and five-year allocation should be changed.

In respect of the first issue, the Board found that the Regional Manager’s decision letter did not conflict with the Quota procedure, and there was no reason to declare Mr. Linnell’s quota and five-year allocation a nullity. The Board noted that even if the letter did render Mr. Linnell’s previous quota and allocation a nullity, this would not result in the restoration of his previous quota and five-year allocation, as quotas and allocations are attached as a condition to each guide’s annual licence which is only valid for one year.

In respect of the second issue, the Board found that the Ministry’s policies and procedures indicated that guide outfitter’s quotas and five-year allocations should be determined on a guide territory level, rather than a regional level. The Board noted that the policy for determining quotas and 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 quota are to be calculated on a guide territory level. Further, the Board found that there was no authority, nor any legitimate reason, for it to “revamp” or alter the general policies and procedures of the Ministry.

In respect of the third issue, the Board considered five separate arguments put forth by Mr. Linnell. First, Mr. Linnell argued that the population estimates relied upon by the Regional Manager were inaccurate, and that the moose data used by the Ministry was not relevant to Mr. Linnell’s guiding territory. However, Mr. Linnell did not provide any evidence to support his claim, nor did he provide a moose population estimate for the relevant region. The Board found that the Regional Manager’s reliance on both the Ministry’s population estimates and the Ministry’s evidence of a decline in the relevant moose population was reasonable in the circumstances.

Second, Mr. Linnell argued that there would be no impact to the conservation of bull moose or to resident hunter priority if his quota and five-year allocation were increased. The Board found that it was not in a position, nor was it the Board’s role, to change the Ministry’s policies and procedures or the way that a guide’s quota is determined. The Board stated that unless there is a clear error, or sufficient evidence to justify a change in the quota or allocation, the Board is not in a position to properly assess the requested change, or the potential impact of the change. The Board found that no such evidence was presented by Mr. Linnell.

Third, Mr. Linnell argued that the Regional Manager should have reduced his quota and five-year allocation by no more than 30% following the hardship rule to avoid “substantive impact”. The Board found that the Regional Manager did not err in his calculation of the 30% hardship rule.

Fourth, Mr. Linnell argued that he required an increase in his quota in order to achieve his share of the guide outfitter allocation of animals. The Board did not accept Mr. Linnell’s argument on this point.

Fifth, Mr. Linnell argued that his current quota and five-year allocation would have significant financial consequences for his guide outfitting business, contrary to the Ministry’s Commercial Hunting Interests policy and other Ministerial pronouncements. The Board held 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. However, the Board noted that the policy focuses on larger policy goals of the Ministry; not the determination of quota by the Regional Manager. Further, the Board stated that it cannot justify changing the Regional Manager’s decision on the basis of economic impact alone, as this impact was recognized by the Ministry when it created the policies and procedures, and the Ministry had responded with certain mitigating policies and procedures. The Board was of the view that any further mitigating measures to avoid economic impact should be the subject of discussions between the guide, or the guide outfitting community, and the Ministry.

In respect of the fourth issue, the Board found no basis for changing Mr. Linnell’s 2013-2014 quota and 2012-2016 five-year allocation. The Board could not find any clear error in the Regional Manager’s calculations or any improper considerations that would warrant a change in Mr. Linnell’s quota or five-year allocation. The Board also found that the Regional Manager’s decision was not arbitrary or unlawful. Rather, the Board found that the Regional Manager calculated Mr. Linnell’s quota and five-year allocation in accordance with the Ministry’s policies and procedures, and exercised his discretion to reduce the impact on Mr. Linnell to the extent that is appropriate in the circumstances. Therefore, the Board found no basis to grant Mr. Linnell’s remedy.

Accordingly, the appeal was dismissed.