Canada: Agricultural Law Netletter - Sunday, January 7, 2018

HIGHLIGHTS

* A Justice of the British Columbia Supreme Court acknowledged the standing of a British Columbia animal protection Association to bring a Court application to consider whether or not a British Columbia conservation officer had the authority to euthanize a bear cub under the British Columbia Wildlife Act. The Justice held that even though this authority was not expressly provided under the Act, the conservation officer did have the authority to do so long as the euthanization was consistent with the purpose of the Wildlife Act to manage wildlife. The Court considers, in some detail, the distinction between wild animals and domestic animals, and the authority of the Province of British Columbia to manage wildlife under the Wildlife Act. (Assn. for the Protection of Fur-Bearing Animals v. British Columbia (Minister of Environment and Climate Change Strategy), CALN/2018-001, [2017] B.C.J. No. 2560, British Columbia Supreme Court)

* The Associate Chief Justice of the Alberta Court of Queen's Bench denied the application of Zoocheck Canada Inc. for a declaration that it has public interest standing to contest the decision of the Alberta Minister of Environment & Parks to issue a zoo permit to a Zoo under s. 13(1) of the Wildlife Act (Alberta). The Court concluded that the application for judicial review did not seek to address issues relating to whether or not a license should be issued, but rather to an animal protection issue related to an elephant in the Zoo. The decision was characterized as a collateral attack on a previous decision of the Alberta Court of Queen's Bench and the Alberta Court of Appeal regarding the elephant. (Zoocheck Canada Inc. v. Alberta (Minister of Agriculture and Forestry), CALN/2018-002, [2017] A.J. No.

1333, Alberta Court of Queen's Bench)

NEW CASE LAW

Assn. for the Protection of Fur-Bearing Animals v. British Columbia (Minister of Environment and Climate Change Strategy);

CALN/2018-001,

Full text: [2017] B.C.J. No. 2560;

2017 BCSC 2296,

British Columbia Supreme Court,

G.C. Weatherill J.,

December 13, 2017.

Domestic Animals and Wild Animals -- Authority to Manage Wildlife.

The Association for the Protection of Fur-Bearing Animals (the "Association") and Tiana Jackson brought an application for an Order:

  1. Granting the Association public interest standing.
  1. In the nature of certiorari or, in the alternative, an Order in the nature of prohibition directing and requiring the British Columbia Conservation Officer Service not to kill wildlife except in circumstances permitted in s. 79 of the Wildlife Act, RSBC 1996, c. 488 (the "Wildlife Act");
  2. 3. Declaring that the killing of the bear cub was unlawful.

The application was opposed by the Minister of Environment and Climate Change for the Province of British Columbia (Conservation Officer Service), and Micha Kneller (collectively the "Minister").

On May 6, 2016, Tiana Jackson discovered an orphaned bear cub on the road near her home in Dawson Creek, British Columbia. Ms. Jackson reported the finding to the RCMP who in turn contacted the British Columbia Conservation Officer Service. A Conservation Officer (the "Officer") took possession of the bear cub and euthanized it in spite of having been informed that a licensed wildlife centre had agreed to accept the bear into its rehabilitation program.

On June 6, 2016, the Association filed a complaint with the Conservation Officer Service, asserting that the Officer had acted outside his legislative authority under the Wildlife Act and specifically s. 79(1) which provides:

"Destruction of animals 79(1) An officer may kill an animal, other than a domestic animal, that is at large and is likely to harm persons, property, wildlife or wildlife habitat."

On January 13, 2017, a Deputy Chief Conservation Officer issued a decision with respect to the complaint in which he stated that the evidence did not support the complaint that the Officer had abused his legislative powers and had acted outside the scope of his authority. The Deputy Chief Officer referred to s. 86 of the Wildlife Act which exempts officers from restrictions against killing wildlife under the Act when officers are engaged in the performance of their duties.

The Chief Conservation Officer subsequently responded to the complaint by indicating that although the Officer made an incorrect decision, the incorrect decision did not constitute misconduct based on a number of factors which satisfied the Officer that he had sufficient cause to euthanize the bear.

Decision: Weatherill, J dismissed the petition [at para. 60]. Weatherill, J considered the following issues:

  1. Whether the Association has public interest standing?

The Minister did not take issue with the public interest standing of the Association, and conceded that the criteria set out in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] S.C.J. No. 45, were met [at para. 12].

  1. Whether certiorari could be granted?

During the course of the hearing, the Association conceded that an Order in the nature of certiorari could not be granted because there would be no utility in granting the Order, as the bear cub was now dead [at para. 13].

  1. Whether the Wildlife Officer had the legal authority to kill the bear cub?

Weatherill, J reviewed the provisions of the Wildlife Act [at para. 18 to 23] and the submissions of the Association and the Minister [at para. 24 to 44].

The Association took the position that the Conservation Officer did not have authority to kill animals or wildlife other than as expressly authorized in the Wildlife Act [at para.24].

The Minister took the position that Conservation Officers had broad powers to manage wildlife; that powers granted under the Wildlife Act are not exhaustive, and that Conservation Officers have the legal authority to kill wildlife when such action is required in the performance of their duties [at para. 33].

Weatherill, J observed [at para. 35 and 36] the common law distinction between wild animals and domestic animals, and the provisions of the Wildlife Act concerning ownership of wild animals:

[35] At common law, legal distinctions were drawn between wild animals, considered to be ferae naturae, and domestic animals, subject to absolute ownership as property: Diversified Holdings Ltd. v. British Columbia,

[1982] B.C.J. No. 1578, aff'd [1982] B.C.J. No. 2184 (C.A.), at paras. 16-18.

Prior to the enactment of the various wildlife or "game" management statutes across Canada, wild animals were subject to two legal concepts derived from Roman law: (1) res nullius, the rule of capture and (2) ratione soli, the right of a landowner to kill and take wild animals on his land: Pierson v. Post, (1805), 3 Cai. R. 175 (S.C.N.Y.); Yanner v. Eaton (1999), 166 A.L.R. 259

(A.C.); George v. Newfoundland and Labrador, 2014 NLTD(G) 106 (S.C.) at paras. 57-59, aff'd 2016 NLCA 24; Cadman v. Saskatchewan (Minister of Parks and Renewable Resources) (1988), [1988] S.J. No. 254 (SK QB), 67 Sask R. 286 (S.Ct. Q.B.) at para. 23.

[36] Given the uncertainty in ownership of wild animals at common law, and given that by virtue of owning land in their respective jurisdictions the provinces had an interest in ownership of the wildlife on their lands, enactment of the Wildlife Act was necessary to establish a framework to govern the management of animals in the province and regulate the hunting of those animals. The Wildlife Act modified the common law regarding wildlife such that its ownership became vested in the Province (s. 2(1)).

Weatherill, J also commented on the provisions of the Wildlife Act which recognized the right of people to hunt and kill animals [at para. 47], stating:

[47] The Wildlife Act recognizes the right of people to hunt and, thus, its provisions to not prohibit the hunting and killing of wildlife. Rather, the Wildlife Act regulates hunting by imposing rules and restrictions respecting who can hunt, the types of wildlife that can be hunted, when and by what methods. If a person who is in compliance with the applicable provisions of the Wildlife Act and its regulations lawfully kills wildlife, ownership of the wildlife transfers from the government to that person (s. 2(3)).

Weatherill, J then concluded, at para. 54 to 59, as follows:

  1. The Wildlife Act explicitly confers certain powers upon conservation officers in the exercise of his/her duties under the Act to dispose of wildlife that has been seized. Section 94(2) provides for a conservation officer's power to seize wildlife:

(2) A conservation officer may seize wildlife or fish, or parts of either wildlife or fish, in a person's possession if the conservation officer believes on reasonable grounds that the right of property in that wildlife is with the government or remains in the government.

  1. Section 97.2 of the Wildlife Act prescribes what a conservation officer is authorized to do following seizure of live wildlife:

97.2 Despite anything else in this Act, if live wildlife is seized under this Act, a conservation officer may dispose of the wildlife, or have the wildlife disposed of, by returning it to the natural environment if the

conservation officer believes on reasonable grounds that the live wildlife is capable of surviving after release.

[56] Section 97.3 provides:

97.3 Despite anything else in this Act, if wildlife is seized under this Act and a conservation officer believes on reasonable grounds that the wildlife may rot, spoil or otherwise perish, the conservation officer may dispose of the wildlife, or have the wildlife disposed of, as the minister directs.

  1. I find it inconceivable that the Legislature intended to restrict the wildlife management powers of officers to kill wildlife to those that are at large and are likely to harm...
  1. I agree with counsel for the respondent that s. 86 of the Wildlife Act, which exempts officers from its offence provisions, was enacted to facilitate their ability to perform their duties consistent with the purpose of the Wildlife Act, namely to manage wildlife and their habitat. To be clear, in order to be afforded the exemption in s. 86, officers must exercise their duties in accordance with the purposes of the Wildlife Act and the legitimate policy guidelines established by government. This is in keeping with the provisions of the Wildlife Act itself which implicitly anticipate that officers may need to manage wildlife in diverse circumstances in the wilds of British Columbia far from ready access to rehabilitation centres or to the veterinary treatment that is contemplated by the provisions of the PCAA when captive animals are in distress.
  1. In my view, the management of wildlife resources by conservation officers, as contemplated by the Wildlife Act, includes the authority to kill wildlife in circumstances broader than those set out in s. 79. However, that authority is not an unlimited or unfettered discretion. Officers will not be exempted from the offence provisions of the Wildlife Act unless they are engaged in the performance of their duties as officers and their actions are exercised in accordance with the legitimate policy direction of the government.

Zoocheck Canada Inc. v. Alberta (Minister of Agriculture and Forestry);

CALN/2018-002,

Full text: [2017] A.J. No. 1333;

2017 ABQB 764,

6

Alberta Court of Queen's Bench,

J.D. Rooke A.C.J.,

December 8, 2017.

Animal Rights Groups -- Standing to Challenge Ministerial Decisions -- Alberta Wildlife Act.

The Applicants, Zoocheck Canada Inc., Voice for Animals Humane Society and Tove Reece (collectively "Zoocheck") sought judicial review of a decision of the Alberta Minister of Environment & Parks (the "Minister") to issue a zoo permit under s. 3(1) of the Wildlife Act, RSA 2000, c W-10 (the "Wildlife Act") to the Edmonton Valley Zoo (the "Zoo").

The Zoo applied for a zoo permit on April 1, 2017.

On September 7, 2017, Zoocheck brought a preliminary application for an Order declaring that it had standing to seek judicial review of the Minister's decision, and to allow it to rely on fresh evidence, including expert evidence.

Decision: Associate Chief Justice J.D. Rooke dismissed Zoocheck's application for a declaration that it had standing to seek judicial review [at para. 22], characterized the application as an abuse of process and a collateral attack, and awarded costs against Zoocheck [at para. 23].

Rooke, ACJ observed [at para. 4] that Zoocheck sought intervention not out of a concern with respect to the operation of the Zoo as a whole, but out of a concern with respect to one animal, a 41 year old Asian elephant named Lucy which Zoocheck wanted to see moved to what they contended would be a more appropriate facility.

Rooke, ACJ also observed that a previous application for a declaration that the Zoo was in breach of the Animal Protection Act, RSA 2000 c A-41 had been struck because that proceeding was an abuse of process and because Zoocheck had used the wrong proceedings: Reece v Edmonton (City), [2010] A.J. No. 944, 2010 ABQB 538; aff'd: 2011 ABCA 238, [2011] A.J. No. 876 ("Reece").

With respect to the test for public interest standing, Rooke, ACJ stated as follows [at para. 6]:

[6] The test for public interest standing was recently described by the Supreme Court of Canada in Downtown Eastside Sex Workers United Against Violence v Canada (Attorney General), 2012 SCC 45, [2012] S.C.J. No. 45, at para. 2:

  1. There is a serious and justiciable issue to be addressed;
  1. The Applicants have a genuine interest in the outcome of the matter; and

3. The proposed action is a reasonable and effective way to bring the matter before the court.

Rooke, ACJ observed [at para. 7 to 9] that the decision Zoocheck asked the Court to review was a licensing provision, which was never intended to function as animal protection legislation [at para. 9] and that the question was not whether Zoocheck had a real stake or genuine interest in the elephant's well-being, but whether it had a real stake or genuine interest in the Minister's decision whether or not to renew the Zoo's permit [at para. 12].

Rooke, ACJ observed [at para. 17] that there was a more appropriate mechanism available to Zoocheck, being a complaint under the Animal Protection Act, RSA 2000 C a-41.

Rooke, ACJ concluded [at para. 18] that Zoocheck failed to meet the requirements for public interest standing and that its application for judicial review was a collateral attack

on the decisions of the Court and the Alberta Court of Appeal in Reece.

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