Canada: Newfoundland And Labrador Decision Challenges Provincial Jurisdiction Over Polar Bears

In R v. Turnbull, [2015] NJ No. 54, the Newfoundland and Labrador Provincial Court found that polar bears, Ursus maritimus, are marine mammals, and therefore are not within the jurisdiction of the provinces.

On March 17, 2012 Darrell Kirby Turnbull, in defence of himself and his family, shot and killed a polar bear on the sea ice outside of Seal Cove, near Meadow Island, Labrador. As a result a Provincial Wildlife Officer charged him with "killing a polar bear without a license (count 1), killing it outside of the open season for killing polar bears (count 2), and taking a polar bear in a prohibited area (count 3)" under the Wild Life Act, RSNL 1990, chapter W-8, and the Open Season Big Game Polar Bear Hunting Order, Regulation 26/07.

Relying on scientific evidence showing that polar bears spend the vast majority of their time on the sea ice, the Court found that polar bears, in pith and substance, are marine mammals and under the exclusive jurisdiction of the federal government in accordance with the Constitution Act, 1867. Further, and because of the location of the kill, the Court found that the Crown had not proven that the bear was killed within the territory of the province. Following the general rule that the province's territory ended at the low-water mark, the Court held that the kill had occurred outside the "jaws of the land". Finally, the Court concluded that Turnbull had exercised reasonable or due diligence in complying with the law, when he decided to kill the bear.

This decision challenges the Province of Newfoundland and Labrador's jurisdiction over polar bears, in two fundamental ways. First, by finding that polar bears are marine mammals and under the complete authority of Fisheries and Oceans Canada, the Court has effectively precluded provincial involvement in polar bear management. Second, since polar bears do spend much of their time out on the ice, the jurisdictional authority of provincial management is restricted further by the geographic limitations set out in this ruling.

Although this decision is not binding on Courts outside of Newfoundland and Labrador, it may prove to be persuasive, and could undermine the present structure of polar bear management in Canada, which currently accepts polar bears as terrestrial animals and therefore under provincial and territorial jurisdiction. Indeed, this decision supports the argument that the provinces have no role in polar bear management, as this is entirely outside their constitutional authority.

This decision comes at a time when Canada's domestic management of the polar bear is increasingly subject to international attention and scrutiny. The United States, for example, has advocated that polar bears be moved from an Appendix II listing to an Appendix I listing on the Convention on International Trade in Endangered Species (CITES), which would result in an essential ban in trade of polar bear products.

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