• Allan Tew, Jim Linnell / Charles Daily, Jim Linnell, Bradley Bowden, Erich Steinmaier, Eric Brebner, Herman Nell, d.b.a. 1111414 B.C. Ltd. / Alice William, Stewart Fraser, Kevin Newberry / Garrett Madley, Al Madley / Garrett Madley, Nicholas Yarish v. Director of Wildlife and Habitat

    Decision Date:
    File Numbers:
    Decision Numbers:
    2019-WIL-003(a) 2019-WIL-004(a) 2019-WIL-005(a) 2019-WIL-006(a) 2019-WIL-007(a) 2019-WIL-008(a) 2019-WIL-009(a) 2019-WIL-014(a) 2019-WIL-015(a) 2019-WIL-016(a) 2019-WIL-017(a)
    Third Party:
    British Columbia Wildlife Federation, Participant


    Decision Date: August 14, 2020

    Panel: Brenda L. Edwards

    Keywords: Wildlife Act – ss. 60, 101.1(5); licence; guide outfitter; quota; allocation; moose; consultation; Aboriginal rights

    Eleven separate appeals were filed by guide outfitters (the “Appellants”) against decisions issued by the Director of Wildlife and Habitat (the “Director”), Ministry of Forests, Lands, Natural Resource Operations and Rural Development (“Ministry”), regarding the Appellants’ quotas and allocations of moose in the Cariboo Region.

    The Appellants are guide outfitters who guide persons to hunt. Most of the Appellants also held a guiding territory certificate granting them exclusive control over guiding privileges in specific area. Each year, guide outfitters apply for, and the Director may issue, a guide outfitter licence containing quota(s) specifying the number of a wildlife species that the guide’s clients may harvest within the guide’s territory(ies) during the licence year. The licence may also specify a five-year allocation for certain wildlife species. The appealed decisions advised the Appellants of their moose quotas for the licence year from April 1, 2019 to March 31, 2020, and their moose allocations for the period from 2017 to 2021, all which decreased compared to the previous licence year.

    The Appellants appealed on various grounds including allegations that their quotas and allocations were not based on scientific data or moose conservation concerns, were unduly influenced by First Nations, and did not comply with Ministry policies and procedures. The Appellants also complained that the decisions were issued much later than usual, which created problems for planning hunts. All but one of the Appellants requests that their allocation and quota be reinstated to the amounts provided in the previous licence year. Some of the Appellants sought other remedies, such as compensation or mitigation for the reduction in their quotas.

    The Board found that the Director’s decisions were made more than two months after the licence year began, and the appeals were filed only a few months before the moose hunting season started in the Cariboo Region. The delay in issuing the decisions may have negatively impacted the Appellants’ guide outfitting businesses. However, the evidence showed that the Director properly waited for the results of moose population surveys and estimates, to ensure that the moose population could sustain a harvest following severe wildfires in the region in 2017 and 2018. In addition, the Director properly waited until after the Ministry had consulted with local First Nations about their concerns and their ceremonial and sustenance needs for moose in their traditional territories.

    The Ministry’s policies provide for the division of harvesting opportunities between resident hunters and non-resident hunters (who comprise most clients of guide outfitters) after first determining the sustainable harvest of a species, and then after determining First Nations’ harvest for sustenance, ceremonial and cultural purposes. The Board held that the Director properly considered Ministry policies and procedures in her decision-making process.

    Further, where First Nations have established or asserted Aboriginal rights and title, the Crown must consult with them before taking action that could affect those rights. The Director acted in accordance with the Crown’s fiduciary duty when she met with local First Nations and gave weight to their concerns and needs in her decision-making. The consultation with First Nations properly occurred after the moose population survey results were available.

    In summary, the Board concluded that the Director complied with the relevant law, and considered the relevant Ministry policies and procedures, when determining the Appellants’ moose quotas and allocations. There was no evidence that the Director acted in an arbitrary or capricious manner.

    Finally, the Board held that the Appellants’ requests for compensation or mitigation to address their reduced quotas and allocations were beyond the Board’s jurisdiction.

    Accordingly, the Board dismissed the appeals.