Decision Date: March 14, 2018
Panel: Linda Michaluk
Keywords: Wildlife Act – s. 60(1); guide outfitter; quota; allocation; bull moose; grizzly bear; moot
Gary Blackwell appealed a decision of the Deputy Regional Manager (the “Regional Manager”), Recreational Fisheries and Wildlife Programs, Skeena Region, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), regarding Mr. Blackwell’s annual quota and five-year allocation of grizzly bear and bull moose.
Mr. Blackwell is a guide outfitter who is licensed to guide hunters within a specific territory in the Skeena Region. Under the Wildlife Act, regional managers may attach a quota as a condition of a guide outfitter’s licence. A quota sets out the total number of a particular species that may be harvested by the guide’s clients in the guide’s territory during the period specified in the licence. Regional Managers determine a guide’s annual quota after determining the guide’s five-year allocation of the species. The allocation is determined based on the Ministry’s estimate of the species’ population and the amount of harvesting that should allow the population to be replenished through natural means (the sustainable harvest). The anticipated harvest by First Nations is then deducted. The remaining available harvest, known as the allowable annual harvest, is then split between resident hunters and non-resident hunters. Most guided hunters are non-resident hunters.
In his decision, the Regional Manager advised Mr. Blackwell that his five-year allocations for 2017-2021 were 35 bull moose and zero grizzly bear, and his quotas for the 2017/2018 hunting season were 11 bull moose and zero grizzly bear.
Mr. Blackwell appealed his quotas and allocations on several grounds. Among other things, he questioned the accuracy of the Ministry’s population estimates for moose and grizzly in his territory, and argued that the Regional Manager incorrectly applied a figure of 4.6% instead of 5.06% to represent the amount of moose habitat in his territory. He requested an increase in his allocations to 55 bull moose and one grizzly bear.
On December 15, 2017, after the appeal was filed, the Minister of Forests, Lands, Natural Resource Operations, and Rural Development issued Ministerial Order M414 (the “Order”) which made changes to the Hunting Regulation and the Limited Entry Hunting Regulation. As a result, those regulations no longer authorized grizzly bear hunting in BC.
First, the Board considered whether the appeal of the grizzly bear allocation and quota was moot due to the Order. The Board found that the appeal was moot in that regard, because any change to Mr. Blackwell’s grizzly bear quota/allocation would not benefit Mr. Blackwell given that the Order effectively prohibits grizzly bear hunting in the Province indefinitely, except for First Nations’ hunting. In any event, the Board found that Mr. Blackwell’s evidence would have been insufficient to justify increasing his grizzly bear quota or allocation.
Next, the Board considered whether Mr. Blackwell’s bull moose quota and/or allocation should be increased. The Board found that a key issue was to determine which of the two figures – 4.60% or 5.06% – was the correct one to use in the formula for determining Mr. Blackwell’s bull moose allocation and quota. All of the evidence before the Board indicated that moose allocations (and resulting quotas) in the Region were based on the relative proportions of suitable moose habitat within each guide’s territory. The Regional Manager had used the 4.6% figure in calculating Mr. Blackwell’s moose allocation and quota. However, Mr. Blackwell provided evidence that his guide territory accounted for 5.06% of the total moose habitat in the moose population management unit. The Regional Manager’s submissions failed to explain why the 4.6% figure was used instead of the 5.06% figure. The Board noted that if it recalculated Mr. Blackwell’s allocation and quota based on the 5.06% figure, Mr. Blackwell may receive a higher allocation, but this could adversely affect the allocations of other guide outfitters. Consequently, the Board found that Mr. Blackwell’s moose allocation and quota should be returned to the Regional Manager with directions.
Accordingly, the appeal was dismissed with respect to the grizzly bear quota and allocation, and was sent back to the Regional Manager with directions regarding the moose allocation and quota.