• Ken Russell v. Senior Conservation Officer, acting under the delegated authority of the Regional Wildlife Manager

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    Decision Date: January 25, 2000

    Panel: Toby Vigod

    Keywords: Wildlife Act – ss. 2, 33; Wildlife Act Permit Regulations; bald eagle; permit to possess dead wildlife; fettering of discretion; rigid application of policy

    Abe Crimeni and Ken Russell appealed the Senior Conservation Officer’s decisions refusing them a permit to possess the bald eagle carcasses they found under Hydro lines. The Appellants sought their respective possession permits so they could “live mount” the eagles for display. The permits were refused because “regional policy stipulates that there will be no permits issued for possession of bald eagles to non-First Nations people”. The Appellants appealed on the grounds that the decisions, and the regional policy, were discriminatory; the regional policy was without statutory authority; and the Senior Conservation Officer acted without authority, or arbitrarily and contrary to the rules of natural justice.

    The Panel found that the Appellants assertions that the decisions and policy were discriminatory were insufficient to make out their respective cases on the point. The Panel found that the Minister and his/her delegates may make policy in relation to possession permits and that it was within the authority of the Senior Conservation Officer to make the decisions being appealed. However, the Panel found that the regional policy, on its face, fetters the discretion to be exercised under section 1 of the Wildlife Act Permit Regulations, and that the Senior Conservation Officer fettered his discretion by rigidly applying that policy when he denied the Appellants’ applications. The Panel concluded that the appropriate remedy was to send the matter back to the Regional Office for reconsideration with directions. The appeal was allowed.