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Harvest quota appeal dismissed for Skeena guide outfitter

An appeal has been denied for Scott Mackenzie, a commercial guide outfitter with certificates for mountain sheep in the Skeena Region and moose in the Okanagan Region.

An appeal has been dismissed for Scott Mackenzie, a commercial guide outfitter with certificates for mountain sheep in the Skeena Region and moose in the Okanagan Region.

Mackenzie sought the appeal over his 2022 to 2026 allocation, which was reduced from ten mountain sheep to eight in the Skeena, and nine moose to six in the Okanagan. 

His appeal asked for the allocation to be reverted or increased by one moose, and submitted that he felt the official notice given was confusing, due to being described as the ‘final’ notice, but ‘not the official quota decision’. 

The allocation decision was issued on Jul. 26, 2022 by Logan Wenham, the Director of Wildlife, Resource Stewardship Division, for the Ministry of Forests. 

A 20 percent reduction on mountain sheep was put in place to protect underage sheep, which Wenham said had been predominantly harvested by both resident and non-resident hunters from 2016 to 2020, with half of all sheep taken in the Skeena from 2012 to 2016 having been underage.

The reduction was intended to correct the issue, not as punishment to Mackenzie, noted the appeal decision of Wenham's position.  

According to the appeal decision, Wenham argued the allocation number was for planning purposes, and did not grant Mackenzie any rights or impose obligations, but the quota was firm, and established the harvest number. 

“Allocation numbers represent the total desired harvest over a five-year period, in a given guiding territory and for a given species of game. Allocation numbers are subject to change when new information is considered by the government,” noted the appeal decision.

Darrell Le Houillier, Panel Chair for the appeal board said he did not consider the decision unclear, and agreed the allocation information was provided for planning purposes, with the quota provided in an appendix. 

“There is no particular form required for the communication of quota decisions and I do not consider the decision to lack clarity,” wrote Le Houillier. 

Wenham also argued that the quota number should be not be reverted to previous levels, and relied on the experience of government biologists when setting quotas. 

“Unless there is a reduction in the allocation of harvesting rights to other hunters, an increase in the Appellant’s quotas creates a risk of over-harvest and of potential impact to Aboriginal hunting rights,” states the appeal decision of Wenham’s reasoning. 

“The director says it would be unfair to other guide outfitters who are not part of this appeal for the board to increase the quota for the appellant and to resident hunters,” it adds.

Le Houillier disagreed that hunting rights would have to be increased for others, if quotas were increased for Mackenzie, noting allocation figures are calculated as preliminary phases of decision-making. 

"Underlying this argument is the premise that quotas and other hunting entitlements should align with annual annual allowable harvests or other notional allocation figures calculated after considering aboriginal hunting rights," he wrote. "Yet the director has argued, and I have agreed, that the annual allowable harvest and notional allocations are not statutory decisions, but rather preliminary phases of decision-making that are subject to change with new information."

The BC Wildlife Federation was granted participant status in the appeal, providing discussion on applicable ministry policy and decision making processes, but said Wenham adhered to provincial policy and procedure. 

However, the federation agreed that the timing of allocation decisions was ‘problematic for both resident hunters and guide outfitters’, expressing concerns over the public availability of animal inventories, a need for more timely Indigenous consultations, and opportunities for public representatives and guide outfitters to take part in wildlife surveys. 

Wenham met with Mackenzie on July 5, 2022 to discuss concerns about the new allocation. 

“The director noted that the appellant disputed that some of the mountain sheep harvested in the Skeena Territory had been under-aged, but the director was not persuaded, and relied on professional wildlife biologists who had determined, upon inspecting the mountain sheep in question, that they were under-aged,” noted the appeal decision.  

Mackenzie also argued that the decision did not conform with a timeliness requirement set out by the Ministry’s procedure manual, and that Wenham’s decision was phrased in speculative terms, claiming that government population surveys did not support a reduction of his quota. 

Le Houillier said there was no error on the director’s decision regarding timeliness, and was not satisfied there was any specific deadline for the communication of quota decisions. 

“It seems that all parties agree that more timely decisions would be helpful to guide outfitters, but it is not the board’s place to attempt to manage the competing priorities experienced by the director in issuing prompt quota decisions while maintaining consultation with affected parties, including Indigenous communities,” wrote Le Houillier. 

Mackenzie claimed that his harvest was already less to due to his business being affected by the COVID-19 pandemic and that his quota should not be reduced because of it.

"The evidence does not support that this is what happened," wrote Le Houillier, noting Wenham's decision to reduce the quota was based on ministry calculations, including their concern over under-age harvesting of mountain sheep. 

Mackenzie also argued that Wenham did not make his decision on the Skeena region with the most recent information, providing 2021 and 2023 inventories on Tinhorn Sheep in Atlin West and East as supporting documents, and cited the Okanagan Moose Inventories and General Update 2013–2016. 

Wenham told the appeal board that he made the moose allocation decision with the most recent available evidence, also on the recommendation of ministry biologists.

However, Wenham noted there was insufficient information to estimate the mountain sheep population, and used the Harvest Age Structure Model, which is based off the proportion of harvested sheep that were eight years-old or older, rather than a population inventory model. 

A low-flying helicopter flight survey was also used to determine estimates for the Okanagan moose population, conducted in 2021 by wildlife biologist Andrew Walker. Mackenzie told the appeal board that he was not invited to take part in that survey, which Walker confirmed, but the exclusion was only made because of COVID-19 protocols.

Mackenzie had not observed a survey since 2012, Walker further noted, the year he began conducting them. 

Ultimately, Le Houllier said it's not clear if the allocation decision was appealable in in the first place, but continued his analysis. Wenham had said the appeal was moot, but left it up to the board to determine a decision, explained Le Houillier. 

"I am not satisfied that the notional allocation in the decision is an appealable decision because the applicable policies and procedures are not in evidence. I am reluctant to decide this matter in this case, given the passing submissions made on the issue and the incomplete evidentiary record," wrote Le Houillier.

He also noted that neither Mackenzie or Wenham admitted evidence from an expert witness. 

"Without the benefit of expert evidence, much of the information submitted by the parties in this case is meaningless. For example, wildlife surveys provide, and rely on, opinions that go beyond the day-to-day experience of people, and that are based on conscious analyses," wrote Le Houillier. "Without any experts to speak to these opinions, they cannot be relied upon by the board."

Population models, the Harvest Age Structure Model, bull to cow ratios, species counts, and any other breakdowns or observations about the moose and mountain all require experts opinion to make sense of, Le Houillier further noted. 

"In short, the board is left with counts of some number of mountain sheep found in the Skeena Territory and some number of moose found in the Okanagan Territory, at isolated points in time," he wrote. 

"The evidence from these surveys is, in the absence of expert evidence to ground the opinions they rely on and provide, anecdotal," added Le Houillier. 

However, Le Houillier also noted that Wenham withheld information about consultation with Indigenous people, with the information only sufficient enough to say that the consultations occurred. 

"The documents provided that purport to summarize engagement with Indigenous communities are so heavily redacted as to be meaningless. The director elected to withhold relevant evidence from the board that he was able to disclose and, if there had been a live dispute in this case, the board would have addressed this conduct accordingly," wrote Le Houillier. 

On the other hand, Mackenzie had also not provided sufficient and admissible evidence that the decision should be returned to the ministry for reconsideration, noted Le Houillier.