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CONSERVATION - Conservation authorities - Wildlife management

Thursday, August 02, 2018 @ 8:25 AM  

Appeal by the petitioners from a judicial review judgment. Jackson discovered an orphaned black bear cub in a roadside ditch and contacted the authorities. A conservation officer (CO) advised that the bear would be euthanized. Jackson placed the bear in a secure kennel and located a wildlife rehabilitation centre eight hours away that would accept the cub. The CO arrived at Jackson's home and examined the cub. The CO believed the cub was in poor condition and could not be rehabilitated. The cub was tranquilized, removed from Jackson's residence, and euthanized. The Association for the Protection of Fur Bearing Animals filed a complaint with the Conservation Officer Service on Jackson's behalf. A Deputy Chief CO provided a written decision dismissing the complaint. The Chief CO conducted a review and confirmed the dismissal. The petitioners sought judicial review, seeking a declaration that the killing of the cub was unlawful on the basis the CO acted outside of the scope of his authority under the Wildlife Act. The chambers judge concluded that the Wildlife Act conferred COs power to manage wildlife resources that involved authority to kill wildlife beyond the s. 79 circumstance of dangerous wildlife, but that such authority was not unlimited. A CO was not exempt from the Act's offence provisions unless they were engaged in the performance of their duties as COs. The petitioners appealed.

HELD: Appeal dismissed. The Court expressed concern regarding the appropriateness of a judicial review proceeding to determine whether the CO had contravened the Wildlife Act. The Court declined to conduct an inquiry into the legality of the specific conduct of the CO or the circumstances of the killing of the cub. The Wildlife Act comprehensively regulated property in and control of wildlife, as well as hunting. Because the Act and Regulations did not generally forbid actions except by creating offences, s. 86 exempted COs engaged in the performance of their duties from virtually all of the prohibitions in the Act and conferred COs with a broad discretion to take action that would otherwise ordinarily be unlawful. Contrary to the petitioners' position, s. 79 did not disclose a statutory intent that only dangerous animals could be destroyed by COs. The provision was not an exhaustive enumeration of situations in which a CO could kill an animal. The dismissal of the petition by the chambers judge was the appropriate disposition.

Assn. for the Protection of Fur Bearing Animals v. British Columbia (Minister of Environment and Climate Change Strategy), [2018] B.C.J. No. 1196, British Columbia Court of Appeal, M.V. Newbury, H. Groberman and B. Fisher JJ.A., June 8, 2018. Digest No. TLD-July302018008