Decision Date: July 16, 2013
Panel: Reid White
Keywords: Wildlife Act – s. 1 – definition of “wildlife”, s. 19; Designation and Exemption Regulation – Schedule A – s. 4; Wildlife Act Permit Regulation – ss. 2(j), 6(1)(a), 6(3); permit; possession; gopher snake
Sarah Ardley appealed a decision of the Regional Manager, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), denying her application for a permit to possess a live gopher snake.
In or about January 2012, Ms. Ardley purchased the gopher snake from a pet store. The gopher snake exhibits amelanism, which means that is has a partial or total absence of the pigment melanin.
Sometime after she acquired the gopher snake, she became aware that it was illegal to keep a gopher snake as a pet in BC, and she contacted the Ministry for information about applying for a permit to possess the snake. In November 2012, she applied to the Ministry for such a permit, and provided documents and photographs in support of her application.
In February 2013, the Regional Manager denied Ms. Ardley’s application on the basis that gopher snakes are designated as “wildlife” under Schedule A of the Designation and Exemption Regulation, the pet store where she acquired the snake had no permit to import or traffic this species, and the Wildlife Act Permit Regulation prohibits the issuance of a permit to possess wildlife that was taken, possessed, transported, or imported contrary to the Wildlife Act and the regulations, unless the permit is issued to an educational or scientific organization. The gopher snake was subsequently taken by the Ministry and relocated to an educational facility.
Ms. Ardley appealed the Regional Manager’s decision to the Board on several grounds, including that: she applied for a permit as recommended by the Ministry, only to have her application denied; the gopher snake is more of a pet than wildlife; this gopher snake is an American subspecies and is not representative of BC’s wildlife; the gopher snake was not taken from the wild and probably wouldn’t thrive in the wild due to its amelanism; and the gopher snake’s best interests were not fully considered.
The Board found that the species Pituophis catenifer, commonly known as gopher snakes, is designated as “wildlife” under Schedule A of the Designation and Exemption Regulation. The Board also found that this designation includes all subspecies of gopher snakes. Further, gopher snakes are legally considered to be “wildlife” regardless of an individual gopher snake’s origins or whether it is kept as a pet. 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, including the right to possess it, except in accordance with the Wildlife Act. In this case, a permit is required under section 19 of the Wildlife Act in order to legally possess the gopher snake.
Next, the Board considered whether a permit should be issued to Ms. Ardley. The Board found that it had no discretion to issue a permit to Ms. Ardley in the circumstances. Specifically, the Board found that there was no evidence that the pet store where Ms. Ardley acquired the snake had any authorization to possess or sell this species, and section 22 of the Wildlife Act states that it is an offence to “traffic” in live wildlife except as authorized by a permit or the regulations. The Board noted that “traffic” means to be in the business of bartering, buying or selling. In addition, section 6(1) of the Wildlife Act Permit Regulation prohibits the issuance of a permit to possess live wildlife that was “taken, captured, possessed, transported… or imported” contrary to the Wildlife Act and the regulations. The only exception to that prohibition is in section 6(3) of the Wildlife Act Permit Regulation, which allows the issuance of a permit to possess such wildlife if the permit is issued to an educational institution or a scientific organization, or an agent of either, for an educational or scientific purpose. Given that Ms. Ardley was not acting on behalf of an educational institution or a scientific organization, the exemption in section 6(3) did not apply. Accordingly, the Board concluded that the Regional Manager’s decision must be confirmed.
The appeal was dismissed.