Environmental Appeal Board

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1 Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 APPEAL NO WIL-025(a) In the matter of an appeal under section of the Wildlife Act, R.S.B.C. 1996, c BETWEEN: Robert Milligan APPELLANT AND: Regional Manager RESPONDENT BEFORE: A Panel of the Environmental Appeal Board Lorraine Shore, Panel Chair DATE: September 5, 2003 PLACE: Victoria, BC APPEARING: For the Appellant: Greg Cranston, Counsel For the Respondent: Joseph McBride, Counsel APPEAL This is an appeal by Robert Milligan of the March 21, 2003 decision by Hugh Markides, Regional Manager of the Skeena Region (the Regional Manager ), Ministry of Water, Land and Air Protection (the Ministry ), to allocate to Mr. Milligan a quota of eight antlered moose to be taken in specific areas during the hunting seasons in The Environmental Appeal Board has the authority to hear this appeal pursuant to section 11 of the Environment Management Act, RS.B.C. 1996, c. 118, and section of the Wildlife Act. Section 101.1(5) of the Wildlife Act provides that the Board may: (a) (b) (c) send the matter back to the regional manager or director, with directions, confirm, reverse or vary the decision being appealed, or make any decision that the person whose decision is appealed could have made, and that the board considers appropriate in the circumstances. The remedy Mr. Milligan seeks is that his moose quota be substantially increased. BACKGROUND Mr. Milligan is a guide outfitter operating in northwestern British Columbia. His guide outfitter s certificate allows him the exclusive privilege of guiding non-

2 APPEAL NO WIL-025(a) Page 2 resident hunters within the largest guide territory in the province, which encompasses most of the Nisga a lands and the Nass Wildlife Area ( NWA ). Mr. Milligan ceased acting as a guide outfitter in the fall of On March 17, 2003, Mr. Milligan applied for the renewal of his guide outfitter licence. The renewal licence, GO SM0128, was issued on March 21, 2003, by the Regional Manager. The licence is valid for one year from April 1, 2003 until March 31, It contains quotas for moose, mountain goat and grizzly bear. (The mountain goat and grizzly bear quotas are the subject of separate appeals.) The moose quota allows Mr. Milligan s non-resident clients to kill three moose in that portion of Mr. Milligan s territory south of the NWA, and five in that portion of the territory within the NWA and north of the NWA in Management Unit s ( MU ) 6-16 and At the hearing, the Regional Manager advised that MU 6-17 should be omitted from the quota area. There is no quota restriction in that portion of Mr. Milligan s territory in MU 6-03 and 6-11, which is outside (south) of the Skeena Region, Skeena Moose Limited Entry Hunting Area. Mr. Milligan appealed the quota for moose on March 18, He asks the Board to overturn the Regional Manager s decision and for the Board to increase his moose quota. ISSUE Whether Mr. Milligan s quota should be increased to allow him to harvest more moose in his territory. RELEVANT LEGISLATION The relevant provisions of the Wildlife Act are 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. DISCUSSION AND ANALYSIS Whether Mr. Milligan s quota should be increased to allow him to harvest more moose in his territory. Mr. Milligan argues that his quota is insufficient. First, he argues that the Ministry has underestimated the number of moose available for harvest, and that his quota ought to be based on the size of his territory not historical data or on the usual provincial ratio between the allocation to residents and to guide outfitters. He

3 APPEAL NO WIL-025(a) Page 3 submits that the Ministry should not have given priority to the First Nations in making their allocation. He also argues that the Ministry has a fiduciary duty to make his operation viable. Mr. Milligan submits that he should have been given six moose in MU 6-16 and 30 moose in the NWA, based on the ratio of land to animals. This is the way grizzly bear were allocated and it should be the same for moose. Mr. Milligan says that the total allowable harvest in the NWA is 225 moose, 126 of which are allocated to the Nisga a. He submits that that leaves 100 moose for allocation to himself, the First Nations and the residents. Of that number, Mr. Milligan submits that he should get 30, the Gitanyow and Gitxan should get 30, and the residents 40. He says that this would be fair because in some other areas, guide outfitters receive 50% of the allowable harvest and the lowest percentage they receive is 23%. In regard to the lands south of the NWA, where Mr. Milligan has a quota of three moose, he argues that previously there was no restriction in this area. He says that it is sneaky to have had unlimited hunting of antlerless moose for several years, then not to have it. He says that the limited entry hunting data shows there are 97 moose available for harvest in that area (MUs 6-09, 6-10 and 6-15A), and with a 50% success rate, the Ministry assumes moose will be harvested. Mr. Milligan says that he should be entitled to 30-50% of those moose, which would mean that he would be entitled to between 15 and 25 moose in this area. Even if the ratio of 23% for guide outfitters and 77% for residents was applied, he should still get 12 ½ moose. Mr. Milligan further notes that the other guide outfitter in the area, Clint Larson, has only 10% of the land base and has a quota of 2 moose. On this basis, Mr. Milligan says that he should be allowed to harvest 20 moose. The Regional Manager argues that allocating quotas involves dividing resources among those who want to use that resource. If one user group gets a larger share of the resource, then another group gets less. The Regional Manager questions how the share of each user group would be determined if one does not use the historical allocation. The Regional Manager says further that it is trite law that aboriginal peoples have a constitutional right to hunt wildlife for food and ceremonial uses. This has been established in R. v. Sparrow, [1990] 1 SCR Further, the Regional Manager submits that the number of moose allocated to First Nations is not excessive. He rejects Mr. Milligan s argument that MU 6-16 should not have been lumped in with the NWA. He says that a lot of work was put into the NWA wildlife estimates, and MU 6-16 is an integral part of that area. In regard to the lands south of the NWA, the Regional Manager submits that Mr. Milligan produced no evidence regarding the introduction of quotas and he did not appeal the quotas when they were introduced. Further, Mr. Milligan s calculation regarding the area composed of MUs 6-09, 6-10 and 6-15A is wrong because Mr. Milligan only has a sliver of MU The Regional Manager said that based on historical data, Mr. Milligan has harvested only one moose in 10 years; this must be compared to high pressure from residents for a share of the available moose. The Regional Manager states that the demand for limited entry hunting permits is a palpable demonstration of the residents demand. Finally, the Regional Manager notes that Mr. Milligan s evidence is simply that he thinks he can acquire more customers. The Regional Manager states that Mr.

4 APPEAL NO WIL-025(a) Page 4 Milligan ought to book hunters for his current quota and demonstrate that he needs more. He then must approach the other user groups and get them to agree to changes in the quota allocation. In reply, Mr. Milligan submits that R. v. Sparrow simply says that First Nations have a right to hunt, not that they are entitled to an allocation. He further says that, as a guide outfitter, he cannot sell what he does not have, and therefore, he needs the quota to attract customers. The Panel finds that Mr. Milligan has not produced evidence to demonstrate that the Ministry was incorrect in its calculations of the number of moose available for harvest, nor did he produce evidence that the allocation of the moose among the user groups should be varied. The process by which the quota was determined was described by two Ministry employees from the Smithers office, Rick Marshall and George Schultze, who gave evidence as a panel. Mr. Marshall is a wildlife biologist who has worked in the Smithers area since He has a B.Sc. in zoology from the University of Victoria. Mr. Schultze is a wildlife technician with a diploma in forestry and fish and wildlife and recreation from the British Columbia Institute of Technology. The quota process differed between the two areas for which Mr. Milligan was given a quota. In regard to the NWA and the area north of it in MU 6-16, for which Mr. Milligan received a quota of five, the Ministry witnesses testified that they had good data, which had been obtained as a result of the Nisga a treaty process. In regard to the area south of the NWA, for which Mr. Milligan received a quota of three, they did not have the same detailed information and, therefore, relied on historical quotas. In the NWA and MU 6-16, the Ministry employees testified that the number of moose in the NWA was determined by means of a random stratified block survey. In this survey, the Ministry divided the NWA into blocks of 25 square km., then flew over the area and visually rated the moose population into four categories: no moose, some moose, moderate moose and high density. This was determined by looking at habitat, tracks in the snow and actual sightings of the animals. They surveyed 30% of the NWA, which they said was enough to provide a confidence level in the accuracy of their findings. Winter aerial surveys in January 2001 determined that there were approximately 1350 moose in the NWA, with 55 bulls for every 100 cows, and 53 calves for every 100 cows. The Nass Wildlife Committee, which consisted of representatives of the Nisga a and provincial and federal governments, concluded that a total harvest of 225 moose, consisting of bulls, cows and calves per year would allow for a stable or increased population level. According to the formula of the Nisga a final agreement, 56% of the available moose would go to the Nisga a, which would be 126 moose. Of the 99 remaining moose, estimates were that other First Nations would take a total of 50 moose. Mr. Marshall and Mr. Schultze state that they have to manage the resource to ensure that First Nations have access to moose for social and ceremonial needs, and that First Nations have priority over residents and nonresidents.

5 APPEAL NO WIL-025(a) Page 5 The Ministry witnesses also testified that they are aware that residents would like the opportunity to hunt all of the remaining 49 available moose in the area. In order to obtain a fair balance for guide outfitters, they looked at historical data for the NWA from 1981 to It showed that the maximum number of moose, which guide outfitters had taken in the area, was four in both 1984 and The Ministry witnesses said that this historical data was the sole factor they used to determine the share for the guides, and in doing this they decided to increase the quota for Mr. Milligan to five from the previous high of four moose per year. The other guide outfitter, Clint Larson, was given a quota of two. This would leave 42 moose for the residents, which was less than they had in the past. The witnesses said that they try to reach the allowable harvest each year. The success rate for resident hunters is 30-40%, therefore they issue permits to 80 residents to achieve the target of 42 moose. The number of permits will increase or decrease depending on the success rate of the harvest. The Ministry witnesses said that they start out being conservative in order to avoid the risk of over-harvesting. The Ministry witnesses testified they would have considered using the Administrative Guidelines, which allows the quota to be spread over three years. This would have given Mr. Milligan 15 moose over three years with a maximum of 10 in the first year. However, Mr. Milligan had not asked for this provision to be applied in regard to his moose allocation. In regard to the area south of the NWA, for which Mr. Milligan received a quota of three, the Ministry witnesses said that they determined the quota based on historic levels since the 1980s because they did not have population estimates for this area. The witnesses said that the Milligan territory was put on a quota in They noted that the quota of three was never questioned or appealed by the Milligan family. The witnesses said that it is possible that the quota could be increased if they were able to do an inventory of the moose population and the bull/cow/calf ratios. However, if the inventory showed a suppressed population, the quota could be decreased. Similarly the quota for the guide outfitters could be increased if other user groups could be persuaded to re-divide the pie. However, pressure from residents for hunting permits is high. For example in MU 6-10, there are 13 applicants for every permit. The Ministry witnesses said they do not have the data to establish target numbers for the resident hunt and obtaining such data is a low priority for the Ministry. Because of this lack of data, they believe that it is safer to stay the course and continue with the existing quotas. Given that Mr. Milligan has produced no cogent evidence that the Ministry s estimates of the number of moose available for hunting are incorrect, any increase in Mr. Milligan s quota must come as the result of a reduction in the quota of another user group. Mr. Milligan questioned the number of moose allocated to the First Nations, yet he provided no evidence or legal authority to show that such an allocation was wrong. In the view of the Panel, such allocation is a recognition of the aboriginal right to hunt, as set out in the Supreme Court of Canada s decision in R. v. Sparrow. Mr. Milligan argues that even though there is a right, that right does not entitle the First Nations to an allocation or first priority. In the Panel s view, the Ministry cannot ignore the First Nation entitlement because to do so would skew the Ministry estimates and would result in more moose being harvested than the Ministry had allocated.

6 APPEAL NO WIL-025(a) Page 6 Mr. Milligan argues that as a guide outfitter he should get a certain percentage of the available moose, based on a ratio between residents and non-residents (i.e., the hunters who use guide outfitters), or on a percentage of the land base. He says that guide outfitters should get 23% of the available moose compared with the residents, and on a land base that would be 30%. The evidence, however, does not support Mr. Milligan s assertion as to the ratio between residents and nonresidents. Dale Drown, general manager of the Guide Outfitters Association of British Columbia, testified that there are more examples of splits than He said that he sees some splits which are That evidence is simply not sufficient to conclude that there is any established ratio between the number of moose allocated to residents and to non-residents. In regard to a land-based quota, it is unclear how this would operate. Mr. Milligan says that the land-based system was used in regard to grizzly bear in Robert Milligan v. Regional Manager (Appeal No WIL-024, August 21, 2003) (unreported). However, in that case, the allocation was made on the amount of territory each of three guides had. In this case, there is only one other guide in the same area, and the Panel has not been presented with sufficient evidence to compare the areas of the two guides. The Ministry witnesses rejected the landbased quota. They said that the areas were too dissimilar and that one could not say that a particular sized territory would mean a particular quota. The Panel finds that Mr. Milligan has not produced sufficient evidence or persuasive argument to support the allocation of a quota based on either a ratio to resident permits or on a land-based system. Mr. Milligan submits that the quotas at issue in this case do not give him a sound business base. He said that it is not worthwhile to take in a group to hunt for three moose. Mr. Milligan also testified that the new regulations allow him to guide residents as well as non-residents, but residents are normally interested in meat moose rather than trophy moose. In his evidence, Mr. Drown said there is a significant difference in the price that a guide outfitter can obtain a meat moose goes for $3,000-3,500 U.S., while a trophy moose is $7,000 U.S. He agreed with Mr. Milligan that it would not be good business acumen to establish a camp for three moose. The Panel has difficulty in accepting Mr. Milligan s argument in this regard. First, while the evidence was less than precise, it appears that the quotas which Mr. Milligan has been given are not significantly different from what he or his family had before. Previously he had more unrestricted hunting, but all guides are being affected by decreases in unrestricted areas, not just Mr. Milligan. Second, Mr. Milligan produced no evidence relating to the economics of his present operation, or any comparison with its viability in the past. Third, Mr. Milligan failed to produce any evidence of a demand from non-resident hunters for the right to hunt in his territory. There was no evidence that he had received any requests that he had to refuse because of his current quotas. By contrast, the Ministry argument that there is significant resident pressure for permits is supported by the limited entry hunting statistics. These show that the Ministry receives many more requests for permits than it can issue, and that, in some areas and seasons, there may be eight to 13 applications for each available

7 APPEAL NO WIL-025(a) Page 7 permit. Both Mr. Milligan and the Ministry mentioned that the change made two or three years ago, which allows guide outfitters to guide residents as well as nonresidents. However, there was no evidence that residents were actually using guide outfitters. Further, it is unclear whether any moose killed by residents using a guide outfitter would be deducted from the guide s quota or from the resident s quota. Finally, Mr. Milligan has produced no authority to support his contention that the Ministry has a fiduciary duty to make his operation viable. For the above reasons, the Panel finds that Mr. Milligan s quota as allocated by the Regional Manager is confirmed and Mr. Milligan s request that his quota be increased is denied. DECISION In making this decision, the Panel has considered all of the evidence and arguments provided, whether or not they have been specifically reiterated here. For the reasons provided above, the appeal is dismissed. Lorraine Shore, Panel Chair Environmental Appeal Board April 27, 2004