Environmental Appeal Board

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1 Environmental Appeal Board Fourth Floor, 747 Fort Street Victoria BC V8W 3E9 Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 Website: DECISION NO WIL-014(a) In the matter of an appeal under section of the Wildlife Act, R.S.B.C. 1996, c BETWEEN: Gary Blackwell APPELLANT AND: Deputy Regional Manager, Skeena Region Resource Stewardship Division 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 February 23, 2018 APPEARING: For the Appellant: For the Respondent: For the Participant: BC Wildlife Federation self-represented Meghan Butler, Bill Wagner, Counsel Gerry Paille APPEAL [1] The Appellant, Gary Blackwell, holds guide outfitter licence GOSM and guiding territory certificate The guiding territory certificate covers portions of the Skeena Region of British Columbia. [2] In a decision dated May 1, 2017 (received by Mr. Blackwell on May 11, 2017), Dave Skerik, Deputy Regional Manager, Skeena Region, Resource Stewardship Division, Ministry of Forests, Lands and Natural Resource Operations (the Ministry )1, advised the Appellant that his allocations in the Skeena Region for the allocation period were 35 bull moose, zero grizzly bear, and two mountain Goat. Appendix A to the letter contained the Appellant s Guide Outfitter Licence which set out his quota of 11 bull moose, zero grizzly bear, and one mountain goat for the 2017/2018 hunting season. 1 As of July 18, 2017, the Ministry became the Ministry of Forests, Lands, Natural Resource Operations and Rural Development.

2 DECISION NO WIL-014(a) Page 2 [3] On June 8, 2017, the Appellant appealed his grizzly bear and bull moose quotas and allocations. [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 allocations to his previous years allocations of 55 bull moose and one grizzly bear. [6] The Respondent seeks an order dismissing the appeal. [7] The BC Wildlife Federation ( BCWF ), representing resident hunters in the Province, was granted Participant Status by the Board for the limited purpose of making submissions respecting the potential impact of the appeal on resident hunters who are members of the BCWF, and any impacts that the appeal may have on the Ministry s harvest allocation policies and procedures. [8] This appeal was conducted by way of written submissions which concluded on February 23, BACKGROUND General [9] A regional manager has discretion under the Act to grant licences to guide outfitters, to set quotas for the harvesting of specific species, and to determine the areas within a guide outfitter s territory within which that harvesting may occur. To assist in this exercise of discretion, in 2007, the Ministry established a suite of harvest allocation policies and procedures, some of which are referred to in this decision. A more detailed description of the Ministry s policies and procedures, and their evolution, can be found in previous Board decisions: see, for example, Robert J. Cutts v. Deputy Regional Manager, (Decision No WIL-010(a), July 21, 2017); Findlay v. Deputy Regional Manager, (Decision No WIL-033(a), April 24, 2014). [10] In order to allow guide outfitters to plan their commercial operations in advance, a regional manager sets allocations for each guide outfitter in five year blocks. The allocation establishes the maximum number of animals the guide s clients may harvest over that period while quota establishes the number of animals that a guide s clients may actually harvest in a given year. Quotas attach to a guide s licence and apply during the licence year, or part of it.

3 DECISION NO WIL-014(a) Page 3 [11] The five-year allocation is determined after certain information is gathered by the Ministry, and analyses are performed. Specifically, the Ministry determines the animal population and the amount of harvest that should be permitted to allow the population to be replenished through natural means (the sustainable harvest). The anticipated harvest by First Nations for ceremonial and sustenance purposes is then deducted. The remaining available harvest, known as the Allowable Annual Harvest ( AAH ), is then split between resident hunters and non-resident (guided) hunters on a percentage basis. 2 [12] Prior to 2015, Ministry policy allowed the percentage of the AAH split between the resident and non-resident hunter groups to be adjusted during the five-year allocation period to account for either the over- or under-harvest by the hunter groups, among other things. However, for certain species, including bull moose, this changed on February 6, 2015, when the then Minister of Forests, Lands and Natural Resource Operations released a revised decision on wildlife harvest allocations that created fixed splits for caribou hunts between resident and nonresident hunters (the Minister s Policy ). In the Appellant s region (Region 6), resident hunters were allocated 75% of the AAH for bull moose and guided (nonresident) hunters were allocated the remaining 25%. [13] Once the AAH and the split are determined, the non-resident hunters portion of the AAH is allocated to guide outfitters based upon another set of calculations performed by regional managers, and guided by Ministry policies and procedures. [14] After establishing the five-year allocation for the guide outfitter, a regional manager determines the guide s annual quota. [15] It should be noted that, for approximately 10 years ( ), the Ministry s policies and procedures incorporated a number of mitigation measures that could be employed when determining a guide s allocation and quota. This was done to reduce the impact of those policies and procedures on guides and their businesses. The 2017/2018 hunting season is the first time that those mitigating policies and procedures have been eliminated. The Appellant s territory and previous allocation [16] According to his evidence, the Appellant purchased the guide territory from his father who started the business in The Appellant has guided in the territory for 47 years and his son has guided with him for 17 years. His son intends to take over the business in the near future, and the Appellant s grandchildren already have an interest in the guide business. [17] The Appellant s territory occupies portions of Management Units ( MU ) 6-4 and 6-9. In terms of the species quotas and allocations included in this appeal, the territory is fully within the Bulkley Valley Lakes District ( BVLD ) Moose Population Management Unit ( MPU ); for grizzly bear, the territory covers portions of the 2 The AAH is defined in Ministry s policies and procedures as the optimum number of animals that can be harvested annually by [resident and guided non-resident] hunters from a herd or population which will be replenished through the population s natural reproduction to meet management objectives.

4 DECISION NO WIL-014(a) Page 4 Bulkley-Lakes Grizzly Bear Population Unit and the Francois Grizzly Bear Population Unit. [18] The Appellant s allocations for hunting these species have been steadily decreasing over the last several years. In terms of moose, the allocation has gone from 135 ( ) to the present allocation of 35. The grizzly bear allocation has gone from two ( ) to the present allocation of zero. The Appeal [19] The Appellant s Notice of Appeal and Statement of Points set out several grounds for the appeal, which the Panel has summarized as follows: he does not believe there is a problem with moose numbers in his area; there has not been a moose population survey conducted since January 2012 and there is no science to back the decrease in the present five-year moose allocation; the Respondent incorrectly applied a figure of 4.6% instead of the correct amount of 5.06% to represent the amount of suitable moose habitat in the Appellant s guide outfitter territory; he does not believe there is a shortage of grizzly bear in his area; the Respondent s decision will result in a serious economic impact on the Appellant s outfitting business and severely devalue the resale and overall net worth of the outfitting business. [20] The Appellant asks the Board to reverse the Respondent s decision and return a portion of the bull moose quota lost in the next five-year allocation period, and at least one grizzly bear in the Bulkley-Lakes Grizzly Bear Population Unit. [21] On December 15, 2017, after the appeal was filed, the Minister of Forests, Lands, Natural Resource Operations, and Rural Development issued Ministerial Order M414 (the Order ) which made changes to the Hunting Regulation and the Limited Entry Hunting Regulation. As a result, those regulations no longer authorized grizzly bear hunting. [22] In his appeal submissions, the Appellant notes that the grizzly harvest has been closed in British Columbia. He indicates that his request regarding grizzly bear quota is made in case the Ministry reopens the season, or the Government offers compensation to guide outfitters who had grizzly bear quotas. [23] In support of his written submissions on the appeal, the Appellant submitted extracts from a number of documents, including letters from the Ministry related to previous years allocations. The Respondent s Position [24] The Respondent submits that he duly considered all material facts, and reasonably exercised his statutory discretion under the Act. The process followed for the decision was procedurally fair, consistent with relevant policies and procedures, and in accordance with the requirements of the Act.

5 DECISION NO WIL-014(a) Page 5 [25] In terms of the grizzly bear quota and allocations, the Respondent submits the appeal is moot, given that the Order ends all non-first Nations hunting of grizzly bears in British Columbia indefinitely. [26] The Respondent is of the view that the decision contains no appealable error in judgement or in law, and the appeal should be dismissed. [27] In support of his written submissions on the appeal, the Respondent provided a substantial number of documents attached to two affidavits: an affidavit sworn on February 2, 2018 by the Respondent himself, David Skerik (the Skerik Affidavit ); and an affidavit sworn on February 5, 2018 by Conrad Thiessen, Senior Wildlife Biologist, Skeena Region of the Ministry (the Thiessen Affidavit ). The BCWF s Position [28] On June 13, 2017, the BCWF applied for Participant Status in this appeal. The Board granted the BCWF s request for Participant Status, but limited its participation to making submissions respecting the potential impact of the appeal on resident hunters who are members of the BCWF, and any impacts that the appeal may have on the Ministry s harvest allocation policies and procedures. [29] The BCWF submits that the appeal ought to be dismissed. It submits that it is extremely important that Category A species (i.e., big game for which guided hunters harvest is limited by quota) be allocated by the provisions of provincial policy, and that to alter the provisions of the Provincial Wildlife Harvest Allocation Policy would be unreasonable and would directly impact resident hunters in the Province. However, the BCWF submits that if 5.06% is indeed accurate, then the percentages for other outfitters in the BVLD would also need to be adjusted, resulting in across-the-board non-resident allocation and quota adjustments. ISSUES [30] The Panel has considered the following issues in order to decide this appeal: 1. Whether the Appellant s appeal is moot with regard to his grizzly bear allocation and quota. 2. Whether the Appellant s moose quota and/or allocation should be increased. RELEVANT LEGISLATION Quotas and allocations [31] Quota is defined in section 1 of the Act as follows: (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,

6 DECISION NO WIL-014(a) Page 6 during a licence year, or part of it, but does not include an angler day quota; [32] Under section 60 of the Act, a regional manager may attach a quota as a condition of a guide outfitter licence. Section 60 of the Act states as follows: 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. (2) If a guide outfitter has a quota assigned as a condition of his or her guide outfitter licence and allows his or her clients to kill game to the extent that the number killed exceeds the quota assigned to the guide outfitter, the regional manager may reduce or take away his or her quota for a period and may take action under section 61. [33] Neither the Act nor the regulations refer to allocations. Allocations are described in various policies and procedures created by the Ministry. Appealable decisions [34] A person affected by a decision referred to in section 101(2) of the Act may appeal that decision to the Board under section of the Act. These sections state as follows: Reasons for and notice of decisions 101(1) The regional manager or the director, as applicable, must give written reasons for a decision that affects (a) a licence, permit, registration of a trapline or guiding territory certificate held by a person, or (b) an application by a person for anything referred to in paragraph (a). (1.1) The regional manager must give written reasons for a decision made under section 61 (1.1) (a) or (b). (2) Notice of a decision referred to in subsection (1) or (1.1) must be given to the affected person. (4) For the purposes of applying this section to a decision that affects a guiding territory certificate, if notice of a decision referred to in subsection (1) is given in accordance with this section to the agent identified in the guiding territory certificate, the notice is deemed to have been given to the holders of the guiding territory certificate as if the agent were an affected person.

7 DECISION NO WIL-014(a) Page 7 Appeals to Environmental Appeal Board 101.1(1) The affected person referred to in section 101(2) may appeal the decision to the Environmental Appeal Board continued under the Environmental Management Act. (2) The time limit for commencing an appeal is 30 days after notice is given (a) to the affected person under section 101 (2), or (b) in accordance with the regulations. (4) The appeal board may conduct an appeal by way of a new hearing. DISCUSSION AND ANALYSIS 1. Whether the Appellant s appeal is moot with regard to his grizzly bear allocation and quota The Appellant s submissions [35] The Appellant submits that his previous five-year grizzly bear allocation was one grizzly bear within the Bulkley-Lakes Grizzly Bear Population Unit, and zero within the Francois Grizzly Bear Population Unit. The Appellant understands that the grizzly bear harvest has been closed in British Columbia, and he has appealed the grizzly bear allocation and quota so that, in the event the Ministry reopens grizzly bear hunting, he would have a grizzly bear quota. He requests at least one grizzly bear in the Bulkley-Lakes Grizzly Bear Population Unit. [36] The Appellant submits that in the allocation period, a problem sow grizzly bear was relocated to the Francois Population Unit where she had three cubs. She became a problem bear in the farming area and the whole family was destroyed. He submits that the sow bear did not come off the grizzly bear quota for the Francois Grizzly Bear Population Unit, but her three cubs did since they were born in that area. He asserts that this is why he has no quota for the Francois Grizzly Bear Population Unit. The Appellant questions why the bear was relocated to a farming area. [37] In terms of practicality of proceeding with the appeal of his grizzly bear quota and allocation, the Appellant submits that when the Government previously closed the grizzly season, guide outfitters were compensated for their loss. The Appellant believes that if the records show that he has no grizzly quota, the Respondent is removing any compensation opportunity that may be available for the closure. The Respondent s submissions [38] The Respondent submits that the Order repeals or amends portions of the Hunting Regulation and the Limited Entry Hunting Regulation, which has the effect of closing the entire province of British Columbia to hunting of grizzly bear (except for First Nations harvest) for an indefinite term. The Respondent submits that

8 DECISION NO WIL-014(a) Page 8 there is no jurisdiction for the Board to hear an appeal of the Order, and given that the Order effectively replaces the decision under appeal with respect to grizzly bear, the appeal of the grizzly bear allocation and quota is moot. [39] The Respondent further submits that, as the Order is for an indefinite duration, there is no pragmatic benefit to hearing the moot aspects of the appeal. In support, he refers to the two-part legal test for mootness set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 [Borowski], where the first step is to determine where there remains a live controversy, and the second is to weigh the merits of exercising discretion to hear the appeal. [40] Furthermore, the Respondent submits that there is no compelling reason to hear the Appellant s appeal on the grizzly bear decision. He submits that the Order indefinitely ends the hunting of grizzly bears in British Columbia by residents and non-residents, so there can be no practical purpose of deciding what might have been allowed in a hunting season for a game animal that is no longer a game animal. As the question of an appropriate grizzly quota or allocation will not be considered by the Board in the foreseeable future, judicial economy favours not hearing the appeal. The BCWF s submissions [41] The BCWF submits that it would welcome an opportunity to revisit resident and guided hunter allocation/quota of grizzly bear, should the Order be reversed in the future. The BCWF further submits that any future quota/allocation would need to be based on population estimates that are updated for that time. The Panel s findings [42] In Borowski, Sopinka J. described the doctrine of mootness as follows: 15. The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter. 16. The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become

9 DECISION NO WIL-014(a) Page 9 academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term moot applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the live controversy test. A court may nonetheless elect to address a moot issue if the circumstances warrant. [underlining added] [43] The Panel finds that the appeal of the Appellant s grizzly bear quota and allocation as set out in the decision under appeal is moot. Even if the Panel had considered the quota and allocation, and agreed with the Appellant that it was too low, the Order is not an appealable decision that the Board may vary or reverse. As such, any change to the Appellant s quota/allocation would have no practical effect for the Appellant because no grizzly bear hunting is permitted in the Province, except for First Nations hunting. [44] The Panel is also of the view that in the event the Order is lifted/rescinded, prior to any quota/allocation or other hunting opportunities being made available, an assessment of grizzly bear population would have to be undertaken. A simple reinstatement of prior quota/allocation would likely not be in the interest of management of the species. [45] Finally, although the Appellant claims that if his grizzly bear quota and allocation were not zero and the Government decided to compensate guide outfitters for lost quota/allocation due to the Order, he would receive compensation, there is no information before the Panel that the Government intends to offer such compensation to any guide outfitters. As such, the Panel finds that this claim is speculative. Furthermore, the Appellant s evidence would have been insufficient to justify increasing his grizzly bear quota or allocation. [46] Having addressed the issue of the Appellant s grizzly bear quota and allocation, the remainder of this decision is confined to the consideration of the Appellant s bull moose quota and allocation. 2. Whether the Appellant s moose quota and/or allocation should be increased Proportion of BVLD Moose Habitat in Guide Territory The Appellant s submissions [47] The Appellant submits that the Respondent erred in calculating his bull moose five-year allocation and quota by using a figure of 4.6% as opposed to 5.06% to represent the amount of suitable moose habitat in the Appellant s guide territory. [48] The Appellant s submissions included a copy of a letter dated March 28, 2014, signed by Dana Atagi, the then Regional Manager, Recreational Fisheries and

10 DECISION NO WIL-014(a) Page 10 Wildlife Program Skeena Region, in which Mr. Atagi advised that he was proposing, for a one-time payment by the Appellant to the Province, to increase the Appellant s guide territory. The decision letter states, in part: I propose to add the lands immediately adjacent (south) of your territory to your land base. These lands total an area of km 2 (see Figure 1). This additional area increases your annual allocation of moose in the BVLD population from moose/year to moose/year and subsequently increases your 5 year allocation from 55.3 moose to 56.9 moose; an increase of 2 moose over the duration of the allocation period. The upset price for the addition of these lands is $1,700 in a one-time payment to the Crown (see rationale for details). This resulted in increases from 4.92% to 5.06% of the total BVLD moose habitat for Gary Blackwell Once payment has been received, Fish and Wildlife staff must redraft new metes and bounds and then issue a new Guide Territory Certificate. You will then receive an amended guide outfitter licence with the certificate number [underlining added] [49] The Appellant also provided copies of the following letters signed by Lynda Hills, Permit Officer, Fish and Wildlife Permit Authorization Service Bureau: a letter dated June 3, 2014, advising that the metes and bounds description of his Guiding Territory Certificate number had been amended and the territory number had changed to ; and a second letter dated June 4, 2014, advising that his Guide Outfitter Licence had been amended due to a change in the territory metes and bounds. [50] The Appellant submits, therefore, that the Respondent erred in using the figure of 4.60%, as shown in the Ministry s Allocation Summary for North West Guide Outfitters Association Region 6 Moose Allocation Table (at Tab 29 of the Respondent s document), to determine his five-year allocation and quota. The Respondent s submissions [51] The Respondent submits that the Appellant s calculations appear to be areaor land-mass-based, while the calculations recommended to him by Mr. Thiessen, the Ministry s Senior Wildlife Biologist for the Skeena Region, are based on relative portions of suitable moose habitat. The Respondent submits this is a more biologically-meaningful manner of dividing the resource among various guides. Further, the Respondent submits that the Appellant has not met the burden of proof in this regard. The BCWF s submissions [52] The BCWF submits that it is extremely important that Category A species be allocated by the provisions of provincial policy, and that to alter the provisions of the Provincial Wildlife Harvest Allocation Policy would be unreasonable and would directly impact resident hunters in the Province. The BCWF submits that if the

11 DECISION NO WIL-014(a) Page 11 transfer of territory as documented in the March 28, 2014 letter from Mr. Atagi did indeed proceed and the 5.06% is indeed accurate, then the percentages of the BVLD for other outfitters would also need to be adjusted, resulting in across-theboard non-resident allocation and quota adjustments. The Panel s findings [53] The Panel agrees that determining which of the two figures 4.60% or 5.06% - is correct, is a key element of this appeal, as it is one of the figures used in the formula for determining the Appellant s bull moose five-year allocation and resulting quota. [54] The Panel notes the following statements from the Skerik affidavit: 16. For the balance of the subprocedures I relied on information from Mr. Thiessen and my own experience, documentary review and judgment in applying them. 17. In short, c. population data provided by Conrad Thiessen generated an AAH for this moose population management unit, and ascribed the nonresident, licensed-kill component of that AAH to a portion of the appellant s territory based on relative proportions of suitable moose habitat; [underlining added] [55] The Panel also notes the following statements from the Thiesen affidavit: 27. For guide outfitters, the typical number of authorizations (i.e. the quota) is 30% of the 5-year allocation. For example, if an LEH zone could support an AAH of 100 bull moose, and 25% of those moose harvests went to a single guide outfitter, whose territory was the only territory in the LEH zone in question, then the 5-year allocation would be (100 x 25% = 25 x 5 years =) 125, and the quota would be 30% of 125, or 37.5 moose, rounded to 38 moose. 28. If the guide in question shares an LEH zone with another guide, in the sense that both guides territories include a portion of the land set out by the LEH zone, then the guides quota is apportioned among the total number of guides whose territories include a portion of the LEH zone in question. Apportionment takes place either on the basis of relative land-coverage, or (sometimes, for moose quotas) on the basis of relative suitable moose habitat-coverage. 42. In Mr. Blackwell s case, the above procedures were followed and are detailed in RBOD [Respondent s Book of Documents] Tab 29, Tab 36, p.4, and explained below.

12 DECISION NO WIL-014(a) Page 12 [underlining added] [56] The Panel notes that Tab 36 sets out the basis for calculating the AAH for the BVLD (and other areas), while Tab 29 is a table which summarizes allocations of the North West Guide Outfitters Association (including the Appellant). For the purposes of this discussion, the Panel has extracted the relevant information from Tab 29 regarding the Appellant, as follows: MPU Nonresident allocation Guide Outfitter Name Proportion of Population in Guide Territory Annual Allocation 5-year Allocation Quota Rounded BVLD Blackwell, G [57] As noted previously in this decision, information provided by the Appellant shows that the Ministry previously considered that the proportion of suitable moose habitat in his guiding territory was 5.06%. There is no evidence provided as to the source of the 4.6% figure used in the table at Tab 29, which was used by Messrs. Thiessen and Skerik to determine the Appellant s five-year moose allocation and quota. [58] The Panel notes the following statement from the Skerik affidavit: 25. I will also note that I also learned in preparing for this appeal that the five-year allocation for Mr. Blackwell s territory was revised downward, in 2015, from 76 to 68 bull moose. [59] While the Panel finds this information interesting, there is no evidence provided to show why the allocation was revised downward. The Panel understands that there are at least two reasons why an allocation could be so revised: a change in the AAH; or, a change in the proportion of suitable moose habitat found in a guiding territory. If the change resulted from a change in suitable habitat calculation, the Panel is of the view that this information should have been explicitly provided to the Appellant, so as to provide him with a reasonable basis for understanding the change. No such information or evidence was provided. [60] All of the evidence before this Panel indicates that five-year allocations and resulting quota are to be based on relative proportions of suitable moose habitat within a guide territory. [61] The Appellant has demonstrated that his guide territory includes 5.06% of the suitable moose habitat in the BVLD. He has also provided evidence, in the March 28, 2014 letter from Mr. Atagi, that this number was apparently used at that time by the Ministry to calculate his bull moose allocation and quota. [62] The Respondent has failed to explain why the 4.6% figure found in the table at Tab 29 was used to determine the Appellant s most recent allocation of bull moose, and why the 5.06% figure was not used. The Panel recognizes that the

13 DECISION NO WIL-014(a) Page % factor in the table is under the heading Proportion of Population in Guide Territory [underlining added], as opposed to Proportion of Suitable Moose Habitat in Guiding Territory. However, paragraph 28 of Mr. Thiessen s affidavit (quoted above) indicates that the apportionment of bull moose to guide outfitters in this case was based on relative suitable moose habitat-coverage. [63] As noted earlier in this decision, this figure is key to the determination of five-year allocation and quota not only for this Appellant, but for all guide outfitters operating in the BVLD. If the Panel were to decide that the Respondent erred in applying the 4.6% figure, and recalculated the Appellant s five-year allocation and quota on the basis of the 5.06% figure, it is likely that the Appellant would receive a higher allocation. In fact, as the Appellant demonstrated in his submission, the five-year allocation would increase from the present appealed number of 35 bull moose to 38. The Panel notes that while this would be positive for the Appellant, given that the moose population is fixed, an increase in allocation for the Appellant would likely result in a decrease in the remaining number of bull moose available for allocation to other guide outfitters operating in the BVLD. [64] Therefore, the Panel finds that the matter of the Appellant s five-year moose allocation and quota should be returned to the Regional Manager with directions, which are set out below. [65] The Panel notes that there are other aspects of the decision under appeal that the Appellant has raised issues about, such as how the population was determined, and the impacts of the bull moose allocation and quota on the economic viability of his guiding business. Having found that the 4.6% factor used by the Respondent for determining the Appellant s five-year allocation and quota of bull moose appears to be an error, the Panel finds that it is unnecessary to consider the other issues raised by the Appellant. DECISION [66] In making this decision, the Panel has carefully considered all relevant documents and evidence before it, whether or not specifically reiterated here. [67] For the reasons stated above, the Panel dismisses the appeal with respect to the Appellant s grizzly bear quota and allocation. [68] In addition, the Panel orders that the Appellant s five-year ( ) allocation and 2017/2018 quota of bull moose are sent back to the Respondent with the following directions: The Panel directs that the Respondent to clarify whether the 4.6% factor used to calculate the Appellant s bull moose allocation and quota was an error, and a) if it was an error, the Respondent is directed to recalculate the Appellant s five-year allocation and quota of bull moose by applying the appropriate factor, which appears to be 5.06%, instead of 4.6%;

14 DECISION NO WIL-014(a) Page 14 b) alternatively, if it was not an error, the Respondent is directed to provide a fulsome explanation to the Appellant regarding why the 4.6% factor was used. Linda Michaluk Linda Michaluk, Panel Chair Environmental Appeal Board March 14, 2018