hans-albert jacobs v. deputy regional manager ... · [1] the appellant, hans-albert jacobs, filed...

Environmental Appeal Board

Fourth Floor 747 Fort Street Victoria British Columbia V8W 3E9 Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Victoria British Columbia V8W 9V1 Website: www.eab.gov.bc.ca E-mail: [email protected]

DECISION NOS. 2017-WIL-001(a) and 003(a) [Group file 2017-WIL-G01]

In the matter of two appeals under section 101.1 of the Wildlife Act, R.S.B.C. 1996, c. 488.

BETWEEN: Hans-Albert Jacobs APPELLANT

AND: Deputy Regional Manager Recreational Fish and Wildlife Programs

RESPONDENT

AND: BC Wildlife Federation PARTICIPANT

BEFORE: A Panel of the Environmental Appeal Board Linda Michaluk, Panel Chair

DATE: Conducted by way of written submissions concluding on June 16, 2017

APPEARING: For the Appellant: For the Respondent: For the Participant:

Hans-Albert Jacobs Pamela Manhas, Counsel Gerry Paille and Wilf Pfleiderer

APPEALS

[1] The Appellant, Hans-Albert Jacobs, filed separate appeals against two decisions issued by the Respondent, Dave Reedman, Deputy Regional Manager, Recreational Fish and Wildlife Programs, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), both dated December 22, 2016: one decision pertains to moose quota (Appeal No. 2017-WIL-001); the other decision pertains to caribou quota (Appeal No. 2017-WIL-003).

[2] The Appellant is a licensed guide outfitter who operates in the Cariboo Region (Region 5) of BC. His guiding territory, as identified in guiding territory certificate 500975, is located south-west of Vanderhoof, BC, within game management zone (“GMZ") 5C of the Chilcotin1. Although the territory includes portions of Management Unit (“MU”) 6-1 and MU 5-12, it is the approximately 752 km2 in MU 5-12 that is the subject of these appeals (the “guiding territory”).

1 A GMZ is a geographic area that combines several wildlife management units which share similar ecological characteristics and hunter harvest patterns. GMZs are used as the underlying areas for assessments of animal populations in the Cariboo Region.

http://www.eab.gov.bc.ca/

DECISION NOS. 2017-WIL-001(a) and 003(a)

[3] Hunting in BC is regulated under the Wildlife Act, R.S.B.C. 1996, c. 488 (the “Act”) and associated regulations.

[4] Each year, guide outfitters apply to the Ministry to renew their guide outfitter licence and request a hunting quota for specific animal species. A quota sets out the total number of a particular species, or type of species, that may be harvested by the guide outfitter’s clients within the guide’s territory during the period specified in the licence. For the past several years, the Appellant has obtained licences with quota for moose and caribou in his guiding territory.

[5] On January 17, 2017 and January 24, 2017, respectively, the Appellant filed Notices of Appeal against the Respondent’s decisions regarding the Appellant’s moose quota (set at three (3) for 2017/18), and caribou quota (set at one (1) for 2017/2018).

[6] The Appellant contends that, as a result of continued reductions to his moose and caribou quotas over the past years, his business is suffering and the value of his guide territory has decreased.

[7] The Environmental Appeal Board has the authority to hear these appeals under Part 8 of the Environmental Management Act and section 101.1 of the Act. Section 101.1(5) of the Act provides:

(5) On an appeal, the appeal board may

(a) send the matter back to the regional manager or director, with directions,

(b) confirm, reverse or vary the decision being appealed, or

(c) make any decision that the person whose decision is appealed could have made, and that the board considers appropriate in the circumstances.

[8] In the Appellant’s Notices of Appeal, the remedy he seeks from the Board is basically the same:

1. that his moose quota be increased to at least five (5) moose per year, and his caribou quota be increased to at least four (4) caribou per year;

2. if the quotas are not increased, that he be compensated by way increased grizzly and goat quotas; and

3. in the event that the quotas remain at their reduced levels, that the Ministry provide him with monetary compensation for the losses suffered.

[9] The Respondent seeks an order dismissing the appeals.

[10] The BC Wildlife Federation (“BCWF”) applied for Participant Status in this appeal on April 3, 2017. On May 1, 2017, after reviewing submissions from all parties, the Board concluded that the BCWF may participate in the appeals, but that participation is limited to making submissions regarding the potential impact of the appeals on resident hunters who are members of the BCWF, and any impacts that


the appeals may have on the Ministry’s harvest allocation policies and procedures. The BCWF supports the Respondent’s decisions.

[11] These appeals have been conducted by way of written submissions.

BACKGROUND

[12] In 2014, the Board decided a previous appeal by this Appellant. In Hans-Albert Jacobs v. Regional Manager, Recreational Fisheries and Wildlife Program (Cariboo Region), (Decision No. 2013-WIL-003(a), July 2, 2014) [Jacobs #1], the appeal panel provided a detailed review of the relevant legislation and the Ministry’s policies and procedures. This Panel has adopted much of that background for this decision with relevant updates.

Legislative context for guide outfitting in BC

[13] Section 2(1) of the Act provides that ownership of all wildlife in the Province is vested in the government. As the owner of wildlife, the government is responsible for the management and protection of the Province’s wildlife resource (Ministry of Environment Act, R.S.B.C. 1996, c. 299).

[14] Under section 47 of the Act, it is illegal for a non-resident of BC to hunt big game in the province without a licensed guide outfitter. Section 47 provides:

47 A person commits an offence if the person hunts big game unless he or she

(a) is a resident, or

(b) is accompanied by

(i) a guide licensed under this Act, ...

[Emphasis added]

[15] Regional managers issue guide outfitter licences under section 51 of the Act, as follows:

51(1) A regional manager

(a) may issue a guide outfitter licence to a person …

…

(2) A guide outfitter licence authorizes the holder to guide persons to hunt only for those species of game in in the area described in the licence.

…

[Emphasis added]

[16] Section 60 of the Act states that regional managers may attach a quota as a condition of the licence. Section 60 provides:


Quotas

60(1) If a regional manager issues a guide outfitter licence, the regional manager may attach a quota as a condition of the licence and may vary the quota for a subsequent licence year.

[17] Under section 1, “quota” is defined as:

(a) the total number of a game species, or

(b) the total number of a type of game species

specified by the regional manager that the clients or a class of client of a guide outfitter may kill in the guide outfitter’s guiding area, or part of it, during a licence year, or part of it, but does not include an angler day quota.

[18] Regional managers exercise their discretion to attach a quota within a “sustainable use” framework. The framework is established by, and described in various Ministry documents, including wildlife management objectives and Ministry policies. The latter will be described in some detail later in this decision. However, for the purposes of this background, the sustainable use framework takes into account the population estimates for a particular species and the hunter groups that seek an opportunity to hunt that species in the Province. The hunter groups referred to most often in these appeals are resident hunters and guided hunters. Guided hunters are typically non-residents and are generally referred to as “non-resident hunters” in this decision.

[19] The way the Ministry splits or allocates the harvest between these two groups has been the subject of controversy over the years.

The division (split) of hunting opportunities between guide outfitters (non-resident hunters) and resident hunters

[20] In BC, the management of hunting is based, in large part, on the size and health of a species’ population. For species with healthy populations in a particular area there are “general open seasons”. With a general open season, there may be annual limits on the number of animals that a hunter may kill, but there is no limit on the number of hunters that can hunt, or the number of clients that a guide can take hunting.

[21] For other species, there are insufficient animals to allow a general open season. This may be due to low productivity (mountain goats, grizzly bears), high demand (moose) or because a class of animal is critical to the productivity of a herd (female elk). For these species, deciding on how many animals can be harvested by resident and non-resident hunters, without jeopardizing population sustainability, requires a careful consideration of different factors. The factors to be considered, and the way that the resident/non-resident split is determined, is established by Ministry policies and procedures. Once the split is determined, the number of these animals that will be available to resident hunters is generally set out in legislation; the number of animals available to non-resident hunters is set out in a guide outfitter’s quota. Ministry policies and procedures describe the


relevant objectives, considerations and procedures to be used by regional managers when issuing quotas to guide outfitters.

[22] In 2007, after years of consultations with various stakeholders, including the Guide Outfitters Association of British Columbia (representing the interest of guide outfitters), and the BCWF (representing the interest of resident hunters), the Ministry adopted a new “harvest allocation policy”. This new policy is, in fact, a collection or “suite” of policies and procedures. The policies and procedures were approved by the Ministry’s Director of Fish and Wildlife and the Assistant Deputy Minister.

[23] On February 6, 2015, the Minister issued a News Release, Backgrounder, and Frequently Asked Questions which provided new policy advice on wildlife harvest allocations that changed certain of the previous policies and procedures, and limited regional managers’ discretion by fixing allocation splits between licensed hunter groups for harvests of certain species (the “Minister’s Policy”). The allocation or split between resident and non-resident hunters applies for five-year periods (allocation periods), after which they are to be recalculated based on the previous five years of data.

[24] In terms of the appeals addressed in this decision, the split for both caribou and moose in Region 5 is 75% to residents and 25% to non-residents.

[25] The policies and procedures that were rescinded as a result of the 2015 Minister’s Policy include:

Wildlife Policies

Volume 4, Section 7

01.03 – Harvest Allocation

01.13 – Under-Harvest of Allocated Share

Wildlife Procedures

Volume 4, Section 7

01.03.1 – Harvest Allocation

[26] The main policies and procedures remaining in force and that are relevant to these appeals include:

Wildlife Policies

Volume 4, Section 7

01.10 - Resident Hunter Priority

01.11 – Commercial Hunting Interests

Wildlife Procedures

Volume 4, Section 7

01.05.1 - Quota

01.05.2 – Administrative Guidelines


01.07.1 - Big Game Harvest Management

01.07.3 – Moose Harvest Management

Setting Quota

[27] Some of the Ministry’s policies and procedures address the calculation of annual quotas and the application of administrative guidelines by regional managers. The quota decision-making process is based upon an assessment of the number of animals available for a sustainable harvest over an allocation period.

[28] Wildlife harvest opportunities are managed according to four priorities2. The first priority is conservation. If the viability of a population is at risk, the Ministry will reduce or suspend harvest opportunities.

[29] If the government determines that there are animals available for a sustainable harvest over an allocation period, there is first a deduction to satisfy First Nations’ needs (the second priority). The remainder is allocated to the third and fourth priorities (resident and non-resident hunters) according to the split.

[30] To implement the allocation to residents, the government creates an “opportunity” for harvest. For higher value species, it is typically created by a Limited Entry Hunt (“L.E.H.”). A L.E.H. is created under section 16 of the Act and allows the Minister, by regulation, to “limit hunting for a species of wildlife in an area of British Columbia”. It may also be created through the regulation-making powers given to the Lieutenant Governor in Council under section 108 of the Act. In general, a L.E.H. is created in an area when the government determines that it is necessary to limit the number of hunters, limit the number of animals that may be taken, or limit the harvest to a certain “class” of animals. It can be created anywhere in the Province. When species and maps for a L.E.H. are created by regulation, the Ministry accepts applications for this hunt by BC residents. L.E.H. authorizations are currently issued under section 16 of the Act by means of a lottery.

[31] After subtracting the estimated number of animals that will be killed pursuant to L.E.H.’s, the remainder are assigned to guide outfitters by the issuance of quota, based on further policies and procedures.

[32] As part of the quota assignment, regional managers also advise the guide outfitters of their five-year harvest allocation (target harvest) that is the maximum number of animals each guide outfitter’s clients may take over that period.

[33] A guide outfitter’s quota may be subject to an administrative guideline. Administrative guidelines allow a guide outfitter to exceed the annual quota by a set number, but that number then counts against the total five-year allocation. The guidelines reflect the Ministry’s recognition that the clients of guides rarely have a 100% harvest success rate. They provide guide outfitters with some flexibility in the number of animals harvested in a year, and are intended to be used by the guides for harvest planning purposes.

2 February 6, 2015, Ministry “Backgrounder” on harvest allocation.


[34] When the Ministry adopted the new harvest allocation policies and procedures in 2007, it understood that many guide outfitters’ quotas and five-year allocations would be negatively impacted. To minimize the impact, the government adopted a transitional approach. In the 2007-2011 allocation period, the policies and procedures were implemented in a “piecemeal” fashion. The 2012-2016 allocation period contained some mitigation strategies as these policies and procedures moved to “full implementation”. In the Minister’s Policy, he confirmed that 2017 is the first year in which these policies and procedures will not include any of the mitigation strategies previously applied to lessen the impact of the 2007 policies and procedures.

The Respondent’s Decisions under Appeal

Moose Quota

[35] In a decision dated December 22, 2016, the Respondent advised the Appellant of his five-year allocation and his annual quota for moose. The Respondent states, in part, as follows:

I am writing to advise you of your Region 5 quota … for the license year 2017/2018 and your current allocation for the 2017-2021 allocation period.

The 2017-2021 allocation period will be the first allocation period since introduction of the government’s 2007 allocation policy in which the government’s policy does not include any mitigative strategies, such as the previously applied ‘hardship rules’. Implementation of the new policy can result in decreased allocations and quotas for specific guide outfitters, particularly in the Chilcotin sub-region. I have decided to substantially implement the new policy.

The September moose closure in MUs 5-03, 5-04, 5-05, 5-12A, 5-13A, and 5-14 will continue for the 2017/18 hunting season. This decision did not affect 2017-2021 moose allocations or 2017/18 quotas.

Your Moose allocation for the 2017-2021 allocation period is currently 11 animal(s). This represents your target harvest for Moose for the 2017-2021 allocation period.

Our records indicate you harvested 11 animal(s) during the 2013-2016 allocation period. If this record is incorrect, please contact me as this may change your 2017-2021 allocation.

I set your quota as 30% of your five year allocation, following administrative guideline procedures.

If your total 2017-2021 allocation is 5 moose or fewer then the Low Moose Quota System was applied. The Low Moose Quota System: For the ‘2017-21 Allocation Period’, and for moose only; guides allocated three or fewer moose in a certificate area over a 5-year period may harvest all of their 5-year allocation in a single year; guides allocated four or five moose in a certificate area over a 5-year period may harvest up to three animals in any one year.

Your quota for this license year is 3 Moose.


I derived your quota for this year by applying an administrative guideline. That quota reflects a permissible harvest rate that will very likely be unsustainable over the allocation period. The benefit to you of having a higher than sustainable quota in any given year is the flexibility around when you harvest animals.

An allocation is a target total harvest of a species over a period of years that normally informs annual setting of quota. It is not a quota. An allocation may change over the course of an allocation period, e.g. because of changes in population estimates or permissible harvest rates.

My goal is for you to come as close as possible to taking your entire allocation. That goal will be achieved by the annual setting of quota, keeping in mind your harvest to date in the allocation period. Note that if you fully harvest the quota set here, I may need to set your quota lower for later years in the allocation period, so that the allocation will not be exceeded. You should keep that in mind when choosing how many animals to harvest this year.

If you would like to discuss the specific details of how I calculated your quotas for this license year, please contact me ….

…

[Bold in original]

Caribou Quota

[36] In a decision dated December 22, 2016, the Respondent advised the Appellant of his five-year allocation and his annual quota for caribou. The Respondent states, in part, as follows:

I am writing to advise you of your Region 5 quota … for the license year 2017/2018 and your current allocation for the 2017-2021 allocation period.

The Annual Allowable Harvest for licenced hunters for Itcha Ilgachuz caribou was decreased substantially for the 2017-21 allocation period due to a significant population decrease and extremely low recruitment levels. As a result, allocations to both resident and non-resident hunters have been reduced.

Your Caribou allocation for the 2017-2021 allocation period is currently 3 animal(s). This represents your target harvest for Caribou for the 2017-2021 allocation period.

Our records indicate you harvested 1 animal(s) during the 2013-2016 allocation period. If this record is incorrect, please contact me as this may change your 2017-2021 allocation.

I set your quota as 30% of your five year allocation, following administrative guideline procedures.

Your quota for this license year is 1 Caribou.

I derived your quota for this year by applying an administrative guideline. That quota reflects a permissible harvest rate that will very likely be


unsustainable over the allocation period. The benefit to you of having a higher than sustainable quota in any given year is the flexibility around when you harvest animals.

An allocation is a target total harvest of a species over a period of years that normally informs annual setting of quota. It is not a quota. An allocation may change over the course of an allocation period, e.g. because of changes in population estimates or permissible harvest rates.

My goal is for you to come as close as possible to taking your entire allocation. That goal will be achieved by the annual setting of quota, keeping in mind your harvest to date in the allocation period. Note that if you fully harvest the quota set here, I may need to set your quota lower for later years in the allocation period, so that the allocation will not be exceeded. You should keep that in mind when choosing how many animals to harvest this year.

If you would like to discuss the specific details of how I calculated your quotas for this license year, please contact me ….

…

[Bold in original]

The Appeals

[37] The Appellant’s reasons for appeal are basically the same in each appeal. While not explicitly set out in the Notices of Appeal, the Panel has characterized the reasons as:

1. The Ministry’s estimates of moose and caribou populations are not correct due to flawed methodology and, consequently, do not reflect the populations in the Appellant’s guiding territory.

2. The Appellant’s guiding territory is difficult to access and, as a result, it does not experience hunting pressure from resident hunters which means that a greater percentage of the animal population should be available to his guide outfitter business.

3. The Appellant is being unfairly penalized with reduced 2017/18 quotas because he did not use all of his quota from previous years.

[38] In particular, the Appellant submits that the dramatic reduction in quota for both caribou and moose since 2002 has been based on assumptions and theoretical calculations. He believes that the reductions are designed to put guide outfitters out of business, while depleting the value of the guiding territories and businesses.

[39] In support of his case, the Appellant provided submissions and documents, including: a map of his territory, a package of his licences and quotas from previous years, financial information regarding licence of occupation, permits, and general business costs, and communications between the Appellant and a Listing Agent, Harry McCowan, respecting the value of the Appellant’s territory.

[40] In response, the Respondent submits generally that:


• The allocation policy that has resulted in the reduced quotas was introduced 10 years ago and implemented gradually to give the guides time to adjust accordingly. In this regard, the Appellant has been treated as all other guides in the Province.

• The Appellant’s assertions about determinations of moose and caribou population estimates are simply inaccurate. The estimates have been based on proven models and informed by the best available scientific research and data.

• The Board has previously examined the methodology for estimating moose populations in Jacobs #1 and found it to be reasonable.

• The trend in moose and caribou populations shows a sharp decline and, therefore, harvests need to be conservative in order to be sustainable.

• Increasing the Appellant’s quota to avoid economic consequences would only shift the burden to another guide.

• Whether the Appellant used his quota from previous years was not a factor that the Respondent considered when calculating the quotas.

• The Respondent’s quota calculations were consistent with Ministry policies and procedures, and were applied across the region to ensure a fair balance of competing interests of the involved stakeholders.

[41] For these reasons, the Respondent submits that his decisions should be upheld.

[42] The BCWF submits that both resident and non-resident hunters have been impacted by the moose and caribou population declines in this region, and requests that the Appellant’s appeals be dismissed. Submissions of BCWF consisted of one letter with 10 appendices.

ISSUES

[43] Although the Appellant characterizes the issues differently, the Panel has determined that there is one main issue to be decided in these appeals:

1. Did the Respondent calculate the Appellant’s 2017-2021 moose and caribou allocations and 2017/2018 quotas in accordance with the Ministry’s policies and procedures? Should the allocations and quotas be changed?


DISCUSSION AND ANALYSIS

Did the Respondent calculate the Appellant’s 2017-2021 allocations for moose and caribou and the 2017/2018 quotas in accordance with the Ministry’s policies and procedures? Should the allocations and quotas be changed?

Appellant’s submissions

[44] The Appellant presented information to show that, since acquiring the guiding territory in 2002, his annual moose and caribou quotas have been reduced by over 80%.

[45] The Appellant contends that the quota reductions have occurred as the Ministry has moved from knowledge-based decision-making about moose and caribou populations to a theoretical arithmetic calculation. Further, he advises that the Ministry does not attempt to gather firsthand information on actual populations from knowledgeable sources, such as himself; instead, the Ministry restricts information gathering to one or two day, if at all, flyover counts of moose and caribou populations in the winter. In addition, the Appellant asserts that, as moose and caribou frequent different habitat in the winter than during the hunting season, assessing populations during winter results in inaccurate population estimates.

[46] In support of his contention that there are no actual population numbers for moose in his area, the Appellant references Table 4 at page 13 of the 2016 Cariboo Region Moose Allocation Information Package, July 2016, which shows that there have been no moose surveys conducted in MU 5-12A.

[47] The Appellant states that his guiding territory is very remote, largely contained within Itcha Ilgachuz Provincial Park, and is closed to motor vehicles. Hunting access is restricted to horseback or on foot, and he has never seen a resident hunter in his guiding territory. As a result, he considers it unfair that his area, as regards resident/non-resident split, is treated and assessed in the same way as more easily accessed areas closer to populated areas where there is real hunting pressure by resident hunters. He states that he has never seen a resident hunter in his territory.

[48] The Appellant is concerned that he is being penalized in this present year’s quotas for not using his full quota in past years. He advises that, while he was asked to confirm his actual “take” for prior years, he has never been asked why the quotas were not used and filled. As a result, the Appellant believes that he is being punished for not using his full quotas.

[49] The Appellant states that most of his clients are from Europe and are trophy hunters. As a result, young animals are often not shot as they are not what the client is seeking. The Appellant asserts that, because hunting success depends on the logistics of selling and coordinating the hunts, the weather, length of hunting season (2016, for example was a shorter season which left just 4 weeks hunting time), moose movement, and condition of the client, it is absolutely wrong to base his quotas on actual moose/caribou kills.


[50] The Appellant contends that the Ministry’s approach of planning a quota from a desk on a piece of paper is a very theoretical exercise that has nothing to do with reality; therefore, it is completely unpractical and unreal.

[51] The Appellant asserts that the costs associated with running his guide outfitting business are greater than the revenue that he stands to realize under the new quotas. Further, the Appellant states that the amount of money that he has to remit to the government for licences, fees and permits does not get reduced when quotas get reduced. In the Appellant’s opinion, it is a situation where the government is taking money for the fees and permits with one hand, and is reducing the quota to a totally unsustainable number with the other hand. The Appellant submits that this is unreasonable, unjust and unfair.

[52] The Appellant contends that the only real value a guiding territory has is its quota. As his quota has declined over the years, so has the value of his territory and business. The Appellant advised the Board of the price that he paid for the territory in 2002, and provided correspondence from Mr. McCowan, a Listing Agent, estimating the current market value of the Appellant’s territory based upon his new quotas and five-year allocations. The current market value is estimated at less than one-half of what the Appellant paid for the territory in 2002. The Appellant attributes this loss of value to Ministry policies and practices respecting allocations and quotas.

Respondent’s submissions

[53] The Respondent’s submissions consisted of two affidavits and associated attachments:

1. An affidavit sworn on June 8, 2017 by Daniel Lirette, RPBio., Senior Wildlife Biologist, Fish and Wildlife Section, Cariboo Region, with 13 attachments.

2. An affidavit sworn on June 8, 2017 by the Respondent, Dave Reedman, with 12 attachments.

[54] The Respondent states that, in making the decisions under appeal, he relied on moose and caribou populations estimates, estimates of First Nations’ harvest needs, and determinations of AAH that were based on the best available scientific research and surveys. As is consistent with Ministry policies, the Respondent submits that the overarching concern was to ensure a sustainable harvest in the face of declining populations. The Respondent also took into account the Minister’s Policy of 2015, which, if applied, would fix allocation splits of the moose and caribou harvest between resident hunters and guides.

[55] The Respondent states that provincial policies and procedures guided his decisions, and that he applied the same approach across the region to ensure the process was fair and equitable for all guides. This included the application of the “new” policies and procedures that were introduced 10 years ago and implemented gradually to give guides time to adjust their business practices.


[56] The Respondent submits that the methods for estimating moose and caribou populations, as detailed in Mr. Lirette’s affidavit, show that they are based on proven models, are informed by the best available scientific research and data, and are in keeping with the recommendation of the Resources Information Standards Committee (“RISC”), a body responsible for establishing standards for inventory methodologies.

[57] The Respondent contends that several of the Appellant’s assertions about the methods are inaccurate. For example, the population surveys are not limited to aerial surveys lasting one or two days. Referring to Mr. Lirette’s affidavit, the Respondent notes that the moose surveys take place over a four to 10-day period for one subzone, usually with two aircraft. The results of the aerial surveys are supplemented with compositional surveys and hunter harvest surveys, which enhance population modelling and the reliability of population estimates and trends.

[58] Mr. Lirette’s affidavit also explains that the aerial surveys for caribou are completed in two phases: pre-survey flights over 2 days, and rotary wing surveys completed over 4 days. These surveys are then bolstered with post-survey counts using radio-telemetry to locate collared caribou missed during the flights.

[59] Mr. Lirette’s evidence is that surveys for both caribou (June) and moose (winter months) are timed to ensure visibility, and are intended to provide estimates of the overall population rather than a breakdown in particular habitats.

[60] The Respondent notes that the method for estimating moose population was previously considered by the Board in 2009 during appeals brought by a group of guides, including the current appellant (Hoessl et al. v. Regional Wildlife Manager, (Decision Nos. 2009-WIL-003(a) to 017(a) and 2009-WIL-019(a)-020(a), August 3, 2010) [Hoessl]). The objections raised by the Appellant in the present appeal appear similar to those raised by the appellants in Hoessl, including those related to survey methods, animals moving between higher and lower elevations, and whether remoteness of an area is considered. At that time, the Board considered the objections and found that the methodology for estimating the population was reasonable.

[61] The Respondent submits that, although the Hoessl appeals concerned moose quotas, not caribou quotas, the Board’s general reasons for finding that the moose estimates were reasonable also applies to the caribou population estimates at issue in the present appeals.

[62] The Respondent submits that the trend analyses for both moose and caribou populations show that they are in sharp decline. Mr. Lirette’s evidence is that the density of the moose population in the Appellant’s MU declined by approximately 60% between 2001/2002 and 2011/2012. In the result, the AAH was reduced in 2013 and 2016 in an effort to restore the population – a goal that has not yet been achieved. The harvest thus continues to be reduced throughout the current five-year allocation period.

[63] The Respondent submits that the caribou herd in the Appellant’s territory is in a similar downward spiral. These caribou are considered a “threatened species” under the Species at Risk Act, S.C. 2002, c. 29, Schedule 1, and a species of “special concern” placed on the Provincial Blue List in BC. Mr. Lirette states that


the population has decreased by approximately 51.8% since the early 2000s, and that calf recruitment rates are also down.

[64] The Respondent submits that, in light of the population status of moose and caribou in the Appellant’s area, the approach to the moose and caribou harvests needs to be conservative in order to be sustainable, which means decreasing the AAHs and the resulting decreased harvest opportunities for both residents and guides.

[65] Additionally, the Respondent submits that, even in the event of a theoretical increase in moose and/or caribou populations, there is no guarantee that the increase would result in an increased quota for the Appellant given that any additional animals could be allocated to the first priority – conservation. Even if the additional animals made it down the priority list to the guides, the manner in which the guides’ share of the allocation is calculated would not necessarily mean an increase for any of them.

[66] In terms of the Appellant’s argument concerning the absence of non-resident and First Nations hunting pressure in his territory, the Respondent submits the roles played by the First Nations’ hunt and resident hunt in determining guides’ quotas are distinct.

[67] The Respondent submits that, due to asserted or proven First Nations’ rights to harvest wildlife for food, social or ceremonial purposes, the First Nations’ hunt is not regulated, and the harvest is not always known as there is no mandatory reporting to the Ministry. Nevertheless, information gained by conducting surveys and consulting with various First Nations groups is extrapolated to arrive at a per capita number for animals for the purposes of determining what portion is left over for the regulated hunt. The Ministry does not have the authority to “take away” animals from the First Nations’ harvest requirements to supplement guide quotas.

[68] The Respondent submits that, in contrast to First Nations hunters, resident hunters are regulated. Once the total human harvest is determined for a particular species, the First Nations’ harvest requirements are subtracted and the resulting number informs the determination of the AAH, which is then allocated between resident and non-resident (guided) hunters.

[69] While the portions of the AAH allocated to residents and guides has, in the past, varied from year to year, the Respondent notes that the 2015 Minister’s Policy creates fixed splits for caribou and moose hunts between the resident and non-resident hunter groups. In the Appellant’s region, resident hunters are allocated 75% and the guides (non-residents) 25%.

[70] In his affidavit, the Respondent states that he decided to apply the advice of the Minister in his region when determining what share of the AAH would be allocated to residents and guides. He submits that the Appellant has provided no reason why, or a process by which, the Respondent ought to have given him special treatment as compared to the other guides in the region, all of whom have to share the AAH with residents.

[71] The Respondent notes that the Appellant has been involved in the guiding industry throughout the entire implementation period of the new policies and


procedures, and has had the same opportunity as other guides to adjust his business practices accordingly, or to otherwise organize his affairs. The Minister’s Policy states, in part, that no additional mitigation measures for guides are to be made available to alleviate the impact of the 2007 policies and procedures on the guides. Consequently, this will be the first year that the hardship rules are not applied.

[72] The Respondent submits that, whether to apply a quota as a condition to a guide outfitter is a discretionary decision that may be made by regional managers. Quotas are not guarantees; rather they are opportunities to harvest. He states in his affidavit that the calculations used to arrive at the Appellant’s allocations and quotas were performed in accordance with applicable policies and procedures, and in a consistent manner across the region to ensure equitability for all guides.

[73] Regarding the Appellant’s concern that he is being “punished” for not harvesting all of his quota from previous years, the Respondent submits that this concern is unfounded. The Respondent states in his affidavit that he did not consider whether or not the Appellant used his quota from previous years when he calculated the Appellant’s quotas.

BCWF’s submissions

[74] The BCWF submits that it is unreasonable for the Appellant to request quota changes that would alter the provisions of the Ministry’s policies and procedures, as there would be a direct impact to over 112,000 resident hunters in the Province.

[75] The BCWF states that section 67 of the Wildlife Act provides that a guiding territory certificate does not give guides “proprietary rights” in wildlife, or restrict the rights of a resident to hunt.

[76] It notes that the applicable policies and procedures have been in place since March, 2007, and treat every guide outfitter exactly the same throughout the Province. The Appellant, and the other guide outfitters, have known that the implementation phase would end and had two allocation periods (2007-2011 and 2012-2016) to prepare for the full implementation of the policies and procedures.

[77] Regarding the population estimates and the reduced quotas and allocations for moose and caribou, the BCWF submits that resident hunters have been equally impacted by the continued decline of wildlife species in Region 5. It states that the available population of caribou has decreased in MU 5-12, and that resident hunters have had their opportunities for caribou harvest reduced from a general open season to a L.E.H.

[78] As a mitigation measure for declining moose populations, Ministry staff in Region 5 have asked First Nation groups to harvest moose bulls only; not to harvest moose cows and calves. Where this has occurred, it has reduced the harvestable surplus for resident hunters and guide outfitters. The BCWF states that the resident and non-resident hunter groups have been impacted equally as evidenced by the reduced AAH for bull moose.

[79] The BCWF submits that it is unreasonable to assume that wildlife species will remain static as there are many factors influencing the population dynamics, and


that conservation cannot take second place to a business based on wildlife harvest, or resale value of a guide outfitter territory. It submits that the real solution is to grow wildlife populations to meet the harvest needs of all impacted parties.

Appellant’s reply to the Respondent’s submissions

[80] The Appellant did not make any reply to the Respondent’s submissions.

The Panel’s Findings

[81] The Appellant is of the view that the Ministry has used flawed methodology to determine populations of harvestable animals, and that this error has resulted in his allocations and quotas being unreasonably reduced. However, the evidence presented by the Respondent tells a different story, one that has been reviewed, and accepted, by the Board in past decisions such as Hoessl.

[82] Hoessl is of particular interest to this Panel for several reasons. The methodology used to determine harvestable animal populations and set the resulting allocations and quotas at issue in those appeals, was the same methodology applied by the Respondent in the present appeals. Further, the Appellant in the present appeals was one of the appellants in Hoessl. As a result, the Appellant was aware of the methodology, and was aware that the Board had reviewed and accepted the methodology.

[83] In the present appeals, the Appellant has argued that there is evidence (Page 13, 2016 Cariboo Region Moose Allocation Information Package) to show there are no hard numbers for moose in MU 5-12A on which to base the population estimates. In reply, the Respondent refers to the following evidence provided by Mr. Lirette:

[27] The moose surveys in the North Chilcotin are timed to ensure the necessary environmental conditions to maximize sightability including snow coverage and cold enough temperatures. Survey results are corrected for sightability bias …

[28] The SRB (Stratified Random Block) surveys for moose are done by helicopter over a 4 to 10 day period for one subzone. Total survey time depends on the size of the subzone and the number of helicopters involved in the survey. There are usually two helicopters flying at any given time when completing surveys in large subzones. Utilizing two helicopters concurrently allows surveys to be completed within short weather windows which meet the desired environmental conditions. The total of flying hours is generally between 40-80 hours.

[29] The SRB surveys provide estimates of the total moose population and composition of the population within the survey area (LEH subzone). The SRB surveys are not intended to estimate moose abundance at a local scale and are not intended to observe or provide a breakdown of moose at particular elevations or types of habitat.


[30] In addition to the SRB surveys, FLNRO [the Ministry] conducts supplementary compositional surveys wherein the composition of moose populations within subzones is estimated by classifying observed moose into male, female and juvenile (calf). Composition surveys are not intended to estimate overall moose abundance within the survey area. Composition survey data is utilized during population modelling to monitor important population metrics such as bull to cow and calf to cow ratios.

[31] In addition to the aerial population surveys, FLNRO conducts hunter harvest surveys, such as the LEH hunter questionnaire, which provide estimates of the licensed harvest of moose within each LEH subzone. This harvest information is compiled and analysed to better inform population estimates and population modelling.

[32] SRB surveys alone are an effective population estimate method. Supplementing those results with the compositional and harvest surveys ensures highly reliable results which support population modelling and determination of the AAH.

[33] Notably, no SRB survey has been completed for Zone A of 5-12. Repeated surveys within Zone B of 5-12 provide biological information of much greater value when compared with completing a ‘new’ survey in Zone A of 5-12 because the repeated surveys provide crucial trend information for the North Chilcotin moose populations. The average moose density for Zone A is estimated by extrapolating results from recent surveys completed within GMZ 5C, including those from the surveys in Zone B.

[34] The population estimate for GMZ 5C is broken down on page 13 of the Moose Information Package. It was calculated using results from three SRB surveys including one done in Zone B of 5-12 in 2012, which includes a portion of the appellant’s area. The weighted average density from those three surveys was extrapolated to the larger GMZ 5C area to calculate the GMZ 5C moose population estimate.

[84] Regarding caribou, Mr. Lirette’s evidence is that this population has been listed as a “threatened species” federally, and as a species of “special concern” by BC.3 When making recommendations for the caribou harvest, he relied heavily on the work being completed by Nicola Dodd, and her draft report (at that time) Population Status of the Itcha-Ilgachuz Northern Caribou Herd 2015: Summary of the 2014 Post-Calving, 2014 Rut, and 2015 Late Winter Surveys (the “Dodd Report”). After the Appellant’s quota and allocations had been issued, the final version of this report was released. Mr. Lirette notes that none of the data or conclusions that he relied upon changed from the draft version.

[85] Mr. Lirette describes the population estimates for caribou in his affidavit as follows:

3 Federally, the Itcha-Ilgachuz herd is considered part of the woodland caribou southern mountain population; whereas at the provincial level in BC, they are considered part of the woodland caribou northern mountain population. (Lirette affidavit, paragraph 47).


[54] As with the methods for estimating the moose population, the methods that were used for estimating the Itcha-Ilgachuz caribou population are consistent with those recommended by RISC for northern caribou. The RISC Manual generally recommends using SRB surveys using mark-resight procedures to correct for sightability, but further recommends that well established traditional inventories should be maintained for comparative purposes …. The Itcha-Ilgachuz population has been inventoried using similar methods since the late 1970s.

…

[60] The 2014 survey was the most recent in an ongoing monitoring effort of the woodland caribou northern population, which has been sharply declining in northern and central BC since the early 2000s. The Itcha-Ilgachuz population peaked in 2002 and 2003 but has decreased since then by 51.8% (pages 13 and 20, Dodd Report).

[61] In addition to a downward population trend, the 2014 survey results show that levels of recruitment have also significantly decreased. As described on page 10 of the Dodd Report, the level of recruitment necessary to balance the natural adult mortality and stabilize the population is 15-16%. Since 2004, late winter calf recruitment (the best time to measure annual recruitment) has averaged 9.3%. The March 2014 recruitment rate was found to be 8.5%.

[62] In the long term, the population is still considered to be stable as it has not decreased more than 20% over the last 20 years. However, the sharp and continued decline since 2003 combined with the low recruitment rates necessitate a conservative approach to the caribou harvest (pages 5 and 13 , Dodd Report).

[86] The Panel notes that the Appellant did not provide any reply to the Respondent’s submissions wherein the specific methodology for determining harvestable animal populations was set out.

[87] The Panel agrees that it would be preferable to use actual numbers as opposed to estimates in order to determine the number of harvestable animals. This issue was addressed by the Board in Hoessl as follows:

[68] The Appellants disputed the moose population estimates. Several Appellants testified that, based on their observations and experiences in the field, there are many more moose available for harvest in the region than estimated by the Ministry staff. They questioned using only random surveys and sightability correction factors for moose population estimates, because moose move through areas, to and from GMZs, and between higher and lower elevations. Some Appellants questioned doing moose counts in the winter when moose are migrating. Several Appellants also questioned the method of determining suitable moose habitat and suggested that additional criteria should have been used, such as, factoring in winter range,


summer range and breeding grounds, remoteness of an area, accessibility by logging roads, and changes to forested areas - all of which would impact moose behavior, and therefore, population estimates.

[69] The Panel finds that the Appellants identified several factors that could change moose population estimates, but the dilemma for the Regional Manager was how to incorporate every one of those factors for every Appellant’s area. The Respondent submitted that the methodology used by the region was scientifically sound, fair and the best that could be achieved with limited resources. The Panel agrees. The moose population numbers are “estimates”, not definitive numbers. That means there are likely to be more moose than estimated in some areas, and less moose in others. However, for the purposes of managing the moose population in the region, the Panel finds the Regional Manager used the data that was available to him during the time frame he had to work within, and the regional staff used a scientifically based approach to determine moose population estimates.

[70] The Panel also finds that even if moose population estimates are increased, the guide outfitters’ share collectively and individually, and that means each Appellant’s share, may not change. The additional moose could be allocated to the first priority – conservation, or the second - First Nations harvest, rather than to non-resident hunters. …

[88] The Panel concurs with the statements of the earlier appeal panel and finds, in this present appeal, that there is no evidence to show that the Ministry’s estimates of moose and caribou populations are not correct due to flawed methodology. The Panel finds that the methodology used to determine the moose and caribou populations is sound.

[89] The Appellant argues that the remoteness and inaccessibility of his territory results in less hunting pressure from resident hunters, which means that a greater percentage of the animal population should be available to his guide outfitter business.

[90] The Respondent produced evidence to show that the overall impact of the 2015 Minister’s Policy effectively removed the regional managers’ discretion to address any quota variance in the resident/non-resident split.

[91] As noted earlier in this decision, there have been significant changes to the manner in which hunting allocations are awarded, starting with the 2007 harvest allocation policies and procedures and culminating, most recently, with the 2015 Minister’s Policy.

[92] The “new” harvest allocation policies and procedures are clear that resident hunters will have “priority” in the harvest of big game species. However, the Minister’s Policy also states that, while resident hunters have higher priority than non-resident hunters, “this does not imply that resident demand must be fully satisfied before non-residents can be granted harvest opportunities. Instead, it


means that the share that goes to residents is considerably greater than the share that goes to non-residents.”4

[93] The Minister’s Policy goes farther in that it approves “the allocation framework which clearly sets out splits for each hunt that is in ‘Category A’ throughout the province.”5 The “decision to have clear and legislated/regulated splits for each harvest will result in less discretion in the hands of regional managers – and therefore more certainly for all user groups. Until legislative/regulatory amendments can be made, the allocation splits will be set in policy.”6 The Minister’s Policy sets the split for Region 5 for moose and bull caribou at 75%/25% resident/non-resident.

[94] This matter is also addressed in the Respondent’s affidavit which states:

[23] Prior to February 2015, allocations between hunter groups would sometimes be adjusted throughout the five-year allocation period to account for over- or under-harvests amongst hunter groups. For example, if the resident hunter group under-harvested, opportunities for adjustments to guides’ harvests were available. There were several policies and procedures in place to guide regional managers in calculating the adjusted allocations …

[24] Now that the splits between resident and non-resident hunters are fixed, there are several policies and procedures that are effectively rescinded including those policies and procedures allowing for adjustments of the allocations between hunter groups. …

[25] The Minister’s Decision [Policy] specifically advises that mitigation measures should not be made available beyond the increased fixed percentages of the harvest that are allocated between resident and non-residents. …

[95] The Panel accepts that the intent of the changes to the harvest allocation policies and procedures is to limit the role of regional managers in making discretionary decisions. It is evident from the policies and procedures that the Minister has attempted to structure all regional managers’ discretion in order to avoid regional differences in decision-making practices and results.

[96] Despite this structuring of a regional manager’s discretion, a regional manager’s hands cannot be completely “tied” when it comes to exercising discretion regarding quota. Policies are not laws, and there must be some flexibility when it comes time to make a decision.

[97] The Respondent’s decision-making process was touched on earlier in this decision. In summary, the process was as follows:

• The AAH for GMZ 5C was determined based on moose and caribou population data.

4 February 6, 2015, Ministry “Backgrounder” on harvest allocation 5 February 6, 2015, “Frequently Asked Questions: Wildlife Harvest Allocation Decision 2015”, page 1 6 Ibid, page 1


• The amount of moose and caribou habitat contained within the Appellant’s territory was determined and applied in order to arrive at the number of moose and caribou in the territory that are subject to the allocation split.

• The Respondent then applied the split as contained in the Minister’s Policy, and applied the Administrative Guideline to determine the Appellant’s moose and caribou allocations and quotas.

[98] The Panel notes that the Appellant did not provide any reasons or rationale as to why he should be treated differently from any other guide.

[99] In an appeal to the Board, an appellant has the ultimate burden of proving his or her case on a balance of probabilities; that is, an appellant has the burden of establishing that it is more probable than not that his or her claim is true. Unless the issue in the appeal is a pure question of law, an appellant will need to provide evidence to meet this burden.

[100] The Panel finds that there was no evidence provided to show that the Respondent failed in the exercise of his discretion when determining the Appellant’s moose and caribou allocations and quotas.

[101] The Appellant argues that he is being unfairly penalized with reduced 2017/18 quotas because he did not use all of his quota from previous years. In his Notices of Appeal, the Appellant states:

Why do I have to be punished because I have not used up the possible quota?

The Ministry cuts my quota again for the next 5 years because I have not used all animals in my old quota. At no time I was asked why the quota was not used.

It is unbelievable: They don’t cut the quota because there are no [Moose/Cariboo] in my area, but they punish me because I have not used all tags – and cut my quota again.

[Bold and italics in original]

[102] In his affidavit, the Respondent explains as follows:

[36] The five-year allocations are tentative and quotas are calculated on a yearly basis because the sustainability of a harvest can change from year to year depending on a host of variables, such as changing habitat or climate, disease, human activity, or other factors that may affect the population.

[37] For similar reasons, neither the five-year allocations nor yearly quotas can be banked. Five-year allocations apply to the allocation period in which they are tentatively allocated but they cannot be moved from one allocation period to another. Yearly quotas cannot be banked from any one year to another. The practice of banking wildlife is referred to as ‘stockpiling’. It undermines the quota system and is not sound wildlife management. It is specifically prohibited by the Game Harvest Management Policy ….


[38] By the same token, guides who have unused allocations or quotas from previous years do not get penalized for it in subsequent allocation periods or years. The only way allocations or quotas from previous years would be a factor in future calculations is if they were exceeded, which is not a scenario that applies to the appellant as he did not overharvest in the 2012-2016 allocation period. ….

[103] As set out earlier in this decision, the Panel has examined the methodology used by the Respondent and found it to be sound. The Panel finds that there is no indication, or evidence provided, to show that the Appellant’s history in terms of meeting his previous quotas played any role in the determination of the present quotas and allocations.

[104] The Appellant contends that the net result of continued reductions to his moose and caribou quotas over the past years is a devalued guide territory. The Appellant attributes this loss of value to Ministry policies and practices respecting allocations and quotas.

[105] The Respondent submits that the Appellant has been active in the industry throughout the entire implementation period of the new policies and procedures and, as such, has had the same opportunity as other guides to adjust his business practices accordingly, or otherwise organize his affairs.

[106] There is no question that the Appellant’s allocations and quotas have decreased since he purchased the territory in 2002. However, evidence was submitted by the Respondent (Lirette affidavit, paragraphs 18, 60) to show that density of the moose population in the Appellant’s MU has declined by approximately 60% between 2001 and 2012, while the Itcha-Ilgachuz caribou population has decreased 51.8% since 2003.

[107] Evidence was also presented to show that, while the new allocation policies and procedures contribute to certainty to both resident and non-residents in terms of how wildlife allocations are made, the Ministry recognized that, when fully implemented, these policies and procedures would result in significantly reduced allocations and quotas for guides. The Ministry addressed this by way of an implementation period, and the 2017 licence year is the first year of full implementation, with no mitigation.

[108] Clearly, the application of the new policies and procedures has impacted the Appellant and, as it is applied provincially, it has undoubtedly impacted other guide outfitters as well.

[109] The Panel notes that the issue of economic viability was addressed in Jacobs#1, an earlier appeal involving the Appellant, where the Board found:

[137] The Panel finds that supporting the economic viability of an industry is not the same as supporting the economic viability of a particular business. From a review of the Commercial Hunting Interests policy, it is apparent that the Ministry’s focus is on larger concepts such as protecting the industry by requiring non-residents to hire a guide to hunt big game, as well as predictability, timeliness, maximizing hunters’ success and maintaining exclusivity for guides


and their achievement of allocation. The focus of the policy is not on preventing or eliminating economic impacts to an individual guide’s business. Further, many of the impacts to the guide outfitting industry appear to be a result of a shift to resident hunter priority, the removal of success factors, and a change in quota being determined at a guide territory level as opposed to a regional level. These changes were implemented by the Ministry and are found in various policies and procedures. These are not decisions or choices made by the Regional Manager, nor can they be “fixed” or “corrected” by the Regional Manager. That is simply not the way the new system is intended to work.

…

[140] When reviewing the policies and procedures, it is apparent that the Ministry has attempted to strike a balance between various competing interests. Although the Appellant submits that the subject quota and remaining four-year allocation will negatively impact his business, the Panel cannot justify changing the Regional Manager’s decision on the basis of economic impact alone. This impact was recognized by the Ministry when it created the new policies and procedures, …

[141] The evidence is that the Ministry established these new policies and procedures, in part, to prevent the regional variations and inconsistencies in the exercise of discretion by statutory decision-makers - the perceived problems with the “old” system. The Panel is of the view that any further mitigating measures to avoid economic impact on a guide outfitter’s business should be subject of discussions between the guide, or the guide outfitting community, and the Ministry. The Panel finds that changing a quota and/or multi-year allocation in order to avoid economic consequences to a particular guide could have unintended consequences for other guides, resident hunters, and could impair the effectiveness of the new policies and procedures.

[110] The Panel concurs with these statements of the Board.

[111] Based on the evidence and submissions before the Panel, the Panel finds that there is no basis for the Panel to change the Appellant’s moose and/or caribou quotas.

DECISIONS

[112] In making these decisions, the Panel of the Environmental Appeal Board has carefully considered all relevant documents and evidence before it, whether or not specifically reiterated here.

[113] For the foregoing reasons, both appeals are dismissed.


[114] Finally, in terms of one of the remedies requested by the Appellant, the Panel notes that there is no authority for the Panel to award quota for one animal in compensation for another.

“Linda Michaluk”

Linda Michaluk, Panel Chair Environmental Appeal Board

July 17, 2017

hans-albert jacobs v. deputy regional manager ... · [1] the appellant, hans-albert jacobs, filed...

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