• Francis Baller v. Regional Manager

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    Decision Date:  August 7, 2013

    Panel:  Les Gyug

    Keywords: Wildlife Act – s. 19; Wildlife Act Permit Regulation – ss. 2(p), 6(1)(d), 6(2); permit; right of property; dead wildlife; Snowy Owl

    Francis Baller appealed a decision of the Regional Manager, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), denying his application for a permit transferring the right of property in a dead Snowy Owl from the government to Mr. Baller.

    Under section 2(2) of the Wildlife Act, ownership in all wildlife is vested in the government, and a person does not acquire a right of property in any wildlife except in accordance with the Wildlife Act. Mr. Baller found the dead Snowy Owl on the side of a road. He applied for the permit so he could keep the Snowy Owl, which he wanted to have mounted for personal display.

    In February 2013, the Regional Manager denied Mr. Baller’s permit application on the basis that the value of the Snowy Owl was greater than $200, and section 6(1)(d) of the Wildlife Act Permit Regulation prohibits the issuance of a permit transferring the right of property in dead wildlife that has a value greater than $200. Under section 6(2) of the Wildlife Act Permit Regulation, the value of the wildlife is determined based on the average price that the government receives at auction for wildlife of the particular species, of similar size and in similar condition. The Regional Manager determined that the average price the government received at auction for an adult Snowy Owl in average condition for the period from 2005 through to 2007 was $538. The Snowy Owl that Mr. Baller found was an adult in good condition.

    Mr. Baller appealed the Regional Manager’s decision to the Board on several grounds, including that the decision was unfair, and the government’s valuation of the Owl was outdated because the government has ceased conducting wildlife auctions. He argued that the Owl had no auction value; rather, it only had scientific value. He stated that the Ministry advised him that the Owl would be sent to a university for study. He submitted that the Owl’s skin and feathers could be provided to him for mounting after the bird had been studied.

    Based on auction sales data provided by the Regional Manager for Snow Owls sold during 2005 to 2008, the Board found that the average valuation of Snowy Owls was much greater than $200, and the minimum price at auction was $400. However, the Board also found that the language in section 6(2) of the Wildlife Act Permit Regulation indicates that wildlife auctions were intended to be an ongoing process, and therefore, once the government ceased conducting wildlife auctions, the prices received at auction lose relevancy. As more time passes, the auction data becomes less up-to-date, and there is a risk that the application of section 6(2) will lead to absurd results, and/or reduce the confidence in the accuracy of the valuation to the point where the accuracy will be unknown. The relevance of the auction data decreases as it becomes increasingly out of date.

    In the present case, applying section 6(2) to determine the value of the Snowy Owl did not lead to an absurd result or one in which there was a complete lack of confidence, because the value of the Snowy Owl was far greater than $200. The Board also found that the exceptions to the $200 value limit in subsections 6(1)(d)(i) and (ii) did not apply in this case, as those exceptions only apply if the wildlife is received in exchange for work performed for the government or of the person seeking the permit is applying on behalf of a charitable organization in BC. Consequently, the Board confirmed the Regional Manager’s decision to deny Mr. Baller’s permit application.

    In addition, the Board recommended that the government amend section 6(2) of the Wildlife Act Permit Regulation if the government no longer intends to conduct wildlife auctions.

    The appeal was dismissed.