Environmental Appeal Board

Transcription

1 Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia V8W 3E9 Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 Website: DECISION NO WIL-011(a) In the matter of an appeal under section of the Wildlife Act, R.S.B.C. 1996, c BETWEEN: John Parker APPELLANT AND: Deputy Regional Manager (Kootenay/Boundary Region) RESPONDENT AND: BC Wildlife Federation PARTICIPANT BEFORE: DATE: A Panel of the Environmental Appeal Board Linda Michaluk, Panel Chair Conducted by way of written submissions concluding on September 12, 2017 APPEARING: For the Appellant: For the Respondent: For the Participant: John Parker Sonja Sun, Counsel Lara Ulrich, Counsel Gerry Paille APPEAL [1] The Appellant, John Parker, is a licensed guide outfitter (GOCB ) who operates DBA Kootenay Outfitters in the Kootenay Boundary Region (Region 4) of British Columbia. His guiding territory (425G003) is within portions of Limited Entry Hunting Zones C, D, and E of Management Unit (MU) 25 of the Kootenay Region of BC. [2] Each year, guide outfitters apply to the Ministry of Forests, Lands, Natural Resource Operations, and Rural Development 1 (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. The animal species that the Appellant requested quotas for were bull moose, mountain goat, bighorn sheep, and grizzly bear. 1 In July 2017, the Ministry of Forests, Lands and Natural Resource Operations was renamed the Ministry of Forests, Lands, Natural Resource Operations, and Rural Development.

2 DECISION NO WIL-011(a) Page 2 [3] In a decision dated March 31, 2017, Holger Bohm, Deputy Regional Manager, Recreational Fisheries and Wildlife Programs, Kootenay-Boundary Region, advised the Appellant of his quotas for the licence year and his allocations (target harvest). The Appellant was given quotas and allocations for bull moose, mountain goat, bighorn sheep, and grizzly bear. The Appellant appeals his allocation and quota for mountain goat only. [4] The Environmental Appeal Board has the authority to hear this appeal under Part 8 of the Environmental Management Act and section of the Wildlife Act (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. [5] The Appellant seeks an order from the Board increasing his quota and five year allocation for mountain goat. [6] This appeal was conducted by way of written submissions. [7] The Respondent seeks an order dismissing the appeals. [8] The BC Wildlife Federation (the BCWF ) applied for Participant Status in this appeal on June 1, On June 6, 2017, the Board concluded, subject to any objections from the parties, that the BCWF may participate in the appeal, but that participation should be limited to making submissions on the potential impacts of this appeal on the Provincial Wildlife Harvest Allocation Policy and the interest of the membership of the BCWF. The BCWF supports the Respondent s decision, and requests the appeal be dismissed. BACKGROUND Legislative context for guide outfitting in BC [9] 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 resources. [10] 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,...

3 DECISION NO WIL-011(a) Page 3 [Emphasis added] [11] 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 and in the area described in the licence. [Emphasis added] [12] 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. [13] Under section 1 of the Act, 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. [14] 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 this appeal are resident hunters and guided hunters. Guided hunters are typically non-residents and are generally referred to as nonresident hunters in this decision. [15] The way the Ministry splits or allocates the harvest between these two groups has been the subject of controversy over the years. The allocation (split) of hunting opportunities between guide outfitters (non-resident hunters) and resident hunters [16] 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

4 DECISION NO WIL-011(a) Page 4 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. [17] 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. For these species, the factors to be considered, and the way that the resident/non-resident allocation or split is determined, are set out in Ministry policies and procedures. These species are referred to in Ministry policies and procedures as Category A species. In the Ministry s Harvest Allocation procedure, allocation means the division between resident hunters and guided (non-resident) hunters of the annual allowable harvest remaining after First Nations rights have been recognized and provided for. [18] On December 10, 2014, the Minister released a decision letter giving direction on the allocations between resident and non-resident hunters for harvests of certain species. Based upon the input that he received after his December 10th letter, the Minister re-evaluated the allocations and made further changes for certain species effective February 6, The Minister s wildlife allocation decision dated February 6, 2015 (the Minister s Policy ), sets out the allocations between resident hunters and guides (non-resident hunters) for certain species in certain regions. According to the Minister s Policy, the split in Region 4 for mountain goat is 65% for resident hunters and 35% for guides (non-resident hunters). [19] Once the resident/non-resident hunter split is determined for a species in a region, regional managers determine annual species quotas for each guide outfitter. Ministry policies and procedures describe the relevant objectives, considerations and procedures to be used by regional managers when issuing quotas to guide outfitters. Setting quotas [20] 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. [21] The Ministry s Game Harvest Management policy states as follows at paragraph (5): (5) Where harvest is sustainable, the first priority for harvest will be First Nations use, the second priority will be resident use, and the third priority will be non-resident use. Attempts will be made to accommodate all levels of use. [22] To implement the allocation to residents, the government creates an opportunity for harvest. For higher value species, it is typically created by a

5 DECISION NO WIL-011(a) Page 5 limited entry hunt ( LEH ). In general, an LEH 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. When species and maps for an LEH are created by regulation, the Ministry accepts applications for this hunt by BC residents. LEH authorizations are currently issued under section 16 of the Act by means of a lottery. [23] After subtracting the estimated number of animals that may be killed pursuant to LEH s, the remainder is assigned to guides by the issuance of quotas, based on further policies and procedures. [24] As part of the quota assignment, regional managers also advise the guide outfitters of their five-year harvest allocation (target harvest), which is the maximum number of animals each guide outfitter s clients may take over that period. [25] 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. The Decision under appeal [26] In a decision dated March 31, 2017, the Respondent advised the Appellant that his 2017 quota had been derived by applying an administrative guideline to provide flexibility around the harvest of animals. In terms of specific details pertaining to the Appellant s allocation and quota, the Respondent s decision stated: Please refer to your territory number in the attached table for your allocation and quota. If you would like to see the specific details of how I calculated your quotas for this licence year, please refer to the attached appendix and/or contact me or your local guide outfitter association. [Emphasis in original] [27] The seven page Appendix (the Appendix ) to the Respondent s decision explained how quotas for were calculated for the year, and provided information on wildlife population estimates. The Appendix included a table that set out the following quota and allocations for the Appellant: SPECIES ALLOCATION 2017 QUOTA bull moose 2 2 mountain goat 6 2

6 DECISION NO WIL-011(a) Page 6 bighorn sheep 1 1 grizzly bear 1 1 The Appeal [28] By Notice of Appeal dated April 10, 2017, the Appellant appealed the mountain goat quota and five-year allocation. He maintains that the mountain goat population has increased over the past 10 years. Further, he is concerned that while only a few residents harvest mountain goats, his allocation has been cut by more than half, from 14 down to 6, compared to the past. He would like to be able to harvest at least 2 mountain goats per year over the allocation. [29] The Respondent submits that when setting quotas, a regional manager is faced with a fairly fixed factual content. A total sustainable harvest target is set by other Ministry staff using the best scientific information. First Nations harvest and other human caused mortalities are estimated according to the best information available. The remaining animals, after considering other sources of mortality, are then allocated to resident and non-resident hunters according to the split set out in the Minister s Policy. [30] The Respondent states that the methods that he used to determine the Appellant s mountain goat quota were properly within his legislative discretion, and guided by the Ministry s policies and procedures while ensuring that the conservation of mountain goats is properly managed. The Respondent states that he employed a method which achieves a fair balance of all competing interests of the involved stakeholders. [31] In support of his decision, the Respondent relies upon the following affidavit evidence: an affidavit sworn by the Respondent, Mr. Bohm, on September 5, 2017; and an affidavit sworn by Irene Teske, R.P. Bio., a Wildlife Biologist in the Ministry s Kootenay Region, sworn on September 5, [32] The Respondent submits that it appears the Appellant is requesting the Board to grant him a quota of two goats for each year of the planning period. He maintains that quotas are, by definition, attached annually for a licence year or part of a licence year, and quotas for future licence years have not been determined. Consequently, there is currently no quota decision for any of these future years which can be appealed to the Board. [33] The Respondent submits that the Appellant appears to be appealing the fiveyear allocation, which is not a statutory decision made by the Respondent. The Respondent contends that the Board has no jurisdiction to change the five-year allocation. [34] The Respondent also submits the Appellant has provided no evidence to support the Appellant s assertion regarding the mountain goat population, and that

7 DECISION NO WIL-011(a) Page 7 the Board has no basis to interfere with his decision. Thus, the appeal should be dismissed. [35] The BCWF submits that a review of the population estimates shows that the Respondent correctly calculated the Appellant s quota and five-year allocation, and that the Respondent has properly applied the Ministry s policies and procedures relating to resident and non-resident hunting. The BCWF requests that the appeal be dismissed. ISSUE Whether the Panel should increase the Appellant s quota and five-year ( ) allocation for mountain goat. DISCUSSION AND ANALYSIS Whether the Panel should increase the Appellant s quota and fiveyear ( ) allocation for mountain goat. Appellant s submissions [36] The Appellant provided a brief submission in support of his appeal. In his Notice of Appeal, the Appellant stated, in part: There were 400 permit allocated to residents in [management units] 4-25 c,d,e, I know of only a few goats harvested by residents, yet my allocations were cut by more than half 14 down to 6. [37] In addition, he maintains that the mountain goat population has steadily increased in the 12 years that he has been hunting goats in this area. He submits that the population surveys he has had an opportunity to look at show an increase in numbers. He submits that he has seen little hunting activity by resident hunters, and maintains that residents are not harvesting mountain goats. He points out that the allocation guidelines state that after the five-year allocation period, resident and non-resident allocations would be reassessed. This has resulted in his allocation being reduced even though in his experience residents are not hunting. The Appellant requests that he be able to harvest at least two mountain goats per year over the allocation. Respondent s Submissions [38] The Regional Manager provided full submissions on his decision-making process. He explained how the policies and procedures were applied, and described his approach to calculating the allocation and quota. [39] In his affidavit, the Regional Manager states that, in arriving at his decision, he considered a number of factors, and considered and applied a number of specific policies and procedures including the Game Harvest Management Policy, the Allowable Harvest Procedure, the Harvest Allocation Procedure, the Big Game Harvest Management Procedure, the Mountain Goat Harvest Management

8 DECISION NO WIL-011(a) Page 8 Procedure (the Mountain Goat Procedure ), the Quota Procedure, and the Administrative Guidelines Procedure. [40] The Respondent submits that the mountain goat population estimate was based on the data prepared by Kim G. Poole, a Ministry contractor, and Irene Teske, R.P. Bio., a Wildlife Biologist in the Ministry s Kootenay Region. [41] According to the affidavit evidence of Ms. Teske, the Appellant s guiding area is wholly within portions of three mountain goat LEH subzones: Management Unit ( MU ) 4-25C, MU 4-25D, and MU 4-25E. Ms. Teske s affidavit sets out the methodology employed to determine the mountain goat population estimate, the annual allowable harvest calculation, and the notional five-year allocation which was then recommended to the Respondent. Her evidence is discussed in greater detail below. [42] In regard to the determination of the Appellant s quota and five-year allocation, and resident/non-resident split for mountain goat, the Respondent states as follows in his affidavit: 32. I reviewed and considered the calculations of Irene Teske with respect to the AAH, and considered the above noted policies and procedures guiding me. I decided to apply the maximum 3% harvest rate recommended in the Mountain Goat [Harvest Management] Procedure to the estimated population of 121 mountain goats within the Appellant s Guiding Area, resulting in an AAH of 3.6 goats. 34. Outlined in the Minister s Letter was the Minister s direction on the allocation split between resident and non-resident hunters. According to the Minister s Letter, the recommended allocation for mountain goats in Region 4 is 65% to resident hunters and 35% to non-resident hunters. 35. I considered and applied the allocation split in the Minister s Letter for mountain goats in Region 4 to determine the Appellant s GOL [guide outfitter licence] mountain goat quota for because the resident portion of harvest is set according to this split and not applying the non-resident split would create conservation issues. 36. I also considered Irene Teske s calculations and the above policies and procedures to arrive at approximately 1.3 mountain goats as the non-resident (guide outfitter) share of the AAH within the Appellant s Guiding Area, and a notional five-year allocation of 6 mountain goats (rounded down from approximately 6.35) for the period. 41. In applying the Quota Procedure and the Administrative Guidelines Procedure, I calculated an annual quota of 1.9 goats, being 30% of the five-year notional allocation. Because it is not possible to harvest 1.9 goats, I therefore set the Appellant s annual quota at 2 mountain goats.

9 DECISION NO WIL-011(a) Page 9 [43] The Respondent argues that the Appellant has not submitted any evidence or technical data to support his contention that the mountain goat population has been increasing over the past 10 or 12 years, whereas the Respondent has based his decision on science, and Ministry policy and procedure. [44] The Respondent noted that the Appellant, in his submission, stated under the allocation guidelines it states that after the five year allocation period Resident and non-resident allocations would be reassessed. The Respondent submits that this reference may be to the Harvest Allocation Procedure. The Respondent further submits, however, that since the issuance of the Minister s Policy establishing set, non-adjusted allocation spits between resident and non-resident hunter groups for specific game species in various provincial regions, the Ministry s Director of Wildlife no longer sets allocation splits in accordance with the Harvest Allocation Procedure. BCWF s Submissions [45] The BCWF submits that the Appellant has only provided anecdotal evidence of a higher goat population in his territory whereas the Respondent relied on the best science available when estimating the population. The BCWF agrees that the calculations determining the appellant s allocation and quotas are correct assuming the population estimates are accurate. The Appellant s Reply [46] The Appellant made no reply to the submissions of the Respondent. [47] The Appellant made no reply to the submissions of the BCWF. The Panel s Findings [48] The basis for the Appellant s appeal is twofold: that the Ministry s population estimates for mountain goat in his territory are too low; and, that as resident hunters are not hunting in his area, his allocation should be increased to at least two mountain goats per year for the five-year period. Mountain Goat Population and the Appellant s quota [49] The Appellant submits that the mountain goat population in his guiding area has been increasing over the last 10 or 12 years (10 years in the Notice of Appeal, 12 years in his submission). The Appellant also submits that surveys he has had the opportunity to look at show an increase in numbers. [50] The Panel notes that the Appellant did not provide copies of the population surveys that he mentioned, and he made no reply to the submissions of the Respondent or BCWF in regard to the mountain goat population estimate and how that estimate was calculated. The Appellant s contention regarding mountain goat population numbers appears to be entirely anecdotal. [51] 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

10 DECISION NO WIL-011(a) Page 10 evidence to meet this burden. The Panel finds that the Appellant has failed to meet the evidentiary burden in this case. [52] The information before the Panel is that the Respondent, in setting the Appellant s allocation and quota, relied upon the mountain goat population estimate provided by Ms. Teske, the Ministry s Regional Wildlife Biologist, who worked with Kim Poole, a wildlife biologist who was contracted by the Ministry and has worked on mountain goat inventories in BC since Ms. Teske attests that she has 30 years of experience as a wildlife technologist/biologist, and has been the Wildlife Biologist in the Kootenay Region for 16 years. In addition, she has 10 years of experience calculating mountain goat population estimates and recommending guide outfitter quotas. [53] Ms. Teske s affidavit states that she prepared the initial calculations for the five-year ( ) allocations for mountain goats in Region 4, and includes a detailed explanation of how the mountain goat population in the area was estimated. She states that the mountain goat population estimate was calculated based on the actual number of goats observed during aerial surveys conducted in 2014 (MU 4-25C), 2016 (MU 4-25D), and 2000 (MU 4-25E). Mr. Poole conducted the aerial surveys. She advises that, in estimating the goat population, the numbers of goats sighted in each MU were adjusted upwards (by 65% in MUs 4-25C and 4-25D, and 50% in MU 4-25E) in accordance with the Ministry s Mountain Goat Harvest Management Procedure, to account for the fact that goat visibility may be reduced by vegetation and terrain obstructions during aerial surveys. [54] Ms. Teske s affidavit also describes how the annual allowable harvest of mountain goats was calculated. Based on an estimated population of 121 mountain goats in the Appellant s guiding area, she applied a 3% maximum harvest rate as suggested in the Mountain Goat Harvest Management Procedure, which resulted in an annual allowable harvest of 3.6 goats. Based on the Minister s Policy, 65% of that harvest should go to resident hunters, and 35% should go to guides (nonresident hunters). Based on that split, the Appellant s share was 1.3 goats, which when multiplied by five resulted in a five-year (2017 to 2021) notional allocation of six goats. [55] The Panel finds that the Appellant s evidence is insufficient to justify deviating from the Ministry s mountain goat population estimate. The Appellant s anecdotal information that the mountain goat population in his guiding area has increased over the past 10 or 12 years is insufficient to discredit or challenge the Ministry s population estimate, which is based on aerial surveys and scientific methodologies. The Panel finds that most of the aerial survey data that the Ministry relied on for the population estimate was collected in 2014 or 2015, and is reasonably up-to-date. The Appellant provided no quantitative estimate of the mountain goat population in the area, nor did he provide any scientific information or rationale to support his claim. For all of these reasons, the Panel accepts and agrees with the mountain goat population estimate and the allowable harvest rate that the Respondent relied on, which were determined based on recommendations from wildlife biologists with many years of experience in these matters. [56] In terms of the resident/non-resident allocation split, the Panel finds that the Respondent considered the split as set out in the Minister s Policy, and exercised his

11 DECISION NO WIL-011(a) Page 11 discretion in a reasonable manner by applying the 35% allocation to the Appellant based on that Policy. Appellant s five-year allocation [57] The Appellant submits that residents were allocated 400 mountain goats for the period, whereas he was only allocated eight. He asserts that his allocation has decreased in recent years despite the fact that there has been little harvesting of mountain goats by resident hunters in his guiding territory. [58] The Panel notes that according to the Respondent s submissions, from 2012 to 2016, 397 LEH authorizations for mountain goats were issued to resident hunters in zones MU 4-25 C, D, and E, and 10 goats were harvested in those zones. According to the BCWF s evidence, the resident hunter harvest in that area was 18 mountain goats. The Panel also notes that the area covered by these numbers is a larger area than the Appellant s guide outfitter territory, which covers only segments of the referenced MU zones. [59] The Panel must point out that LEH authorizations are not the same things as resident allocations. As noted earlier in this Decision, LEH authorizations are issued by means of a lottery with the number of authorizations granted determined by the Director of Wildlife, whereas the resident allocation is determined by the Regional Manager and is based on the application of a formula set out in the Minister s Policy. The Appellant appears to have misunderstood this difference in making his submission. [60] The Panel finds that although the evidence presented does not permit a determination of the resident/non-resident harvest in the Appellant s guide outfitter territory for the period, the evidence does show that for the 2017/2021 period, the notional allocation according to the Respondent s decision would be 12 mountain goats for residents and six for the Appellant s clients (non-residents). This decline in projected harvest appears to reflect the information contained in the Appendix attached to the Respondent s decision, which states that the mountain goat population has suffered a slight decline compared to that of [61] The Respondent s evidence shows that the Appellant s 2017 quota of two mountain goats was derived from a notional five-year allocation of six mountain goats. As described above, the Respondent applied the Quota Procedure and the Administrative Guidelines Procedure to the Appellant s share (1.3 goats) of the annual allowable harvest calculated by Ms. Teske. This resulted in an annual quota of 1.9 goats (which was rounded up to two goats), being 30% of the Appellant s five-year notional allocation of six goats. The Panel finds that at least part of the rationale for awarding the annual quota on the basis of the five-year notional allocation is to allow some form of business planning for guide outfitters. As noted in the evidence before the Panel, there are some years when the Appellant s clients have taken the full quota, and other years when they have not. By spreading the allowed harvest over a period of time, both the business needs of the guide outfitter and the conservation needs of the species are more easily addressed. [62] The Panel notes that by requesting that he be able to harvest at least 2 per year over the period, the Appellant is in effect requesting that he be

12 DECISION NO WIL-011(a) Page 12 able to harvest a minimum of 10 mountain goats over a five-year period. For this to occur, the mountain goat population, according to the methodology used to determine allowable harvest, would have to be at least 190 mountain goats (based on the Appellant harvesting two per year over five years, assuming an annual allowable harvest rate of 3%, and 35% split to the guide: 190 goats x 0.03 x 0.35 = 2 goats). If the quota were to be increased to allow three mountain goats per year (i.e. one in excess of the requested at least 2 ), the population would have to be at least 286 mountain goats (286 goats x 0.03 x 0.35 = 3 goats). This level of harvesting by the Appellant s clients would clearly be inappropriate and contrary to the conservation of the mountain goat population in this area, given that the Panel has accepted the Respondent s mountain goat population estimate of 121 animals. Conclusion [63] Based on the parties evidence and submissions, the Panel finds that the Appellant has provided insufficient evidence or information to justify increasing his allocation or quota of mountain goat. DECISION [64] In making this decision, the Panel of the Environmental Appeal Board has carefully considered all relevant documents and evidence before it, whether or not specifically reiterated here. [65] For the reasons stated above, the Panel finds that the Respondent s March 31, 2017, decision should be confirmed. [66] The appeal is dismissed. Linda Michaluk Linda Michaluk, Panel Chair Environmental Appeal Board September 29, 2017