Decision Date: August 21, 2015
Panel: Alan Andison
Keywords: Wildlife Act – s. 19; Permit Regulation – ss. 2(k), 2(p), 6(1)(d), 6(2); permit; possession; right of property; dead wildlife; Northern Hawk Owl
Ross Goodwin appealed a decision of the Regional Manager, Recreational Fisheries and Wildlife Programs, Kootenay Boundary Region, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”), denying his application for a permit to possess a dead Northern Hawk Owl.
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. Goodwin found the dead Northern Hawk Owl, and he applied for the permit to keep it. He has a collection of mounted dead birds, which he displays at community events and for public education.
The Regional Manager denied Mr. Goodwin’s permit application on the basis that the value of the Northern Hawk Owl was greater than $200, and section 6(1)(d) of the 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 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’s decision stated that the average price the government received at auction for Northern Hawk Owl of all sizes and condition for the period of 2007, 2008 and 2010 was $500. He also stated that the Northern Hawk Owl is an uncommon bird in much of BC, which maintains its high value. The Northern Hawk Owl that Mr. Goodwin found was an adult in good condition.
Mr. Goodwin appealed the Regional Manager’s decision on several grounds, including that he intended to have the bird mounted for public display and for educational display purposes at a local school. In that regard, Mr. Goodwin provided letters from local community groups confirming that he has displayed his birds for public viewing at a local festival and at the local visitor information centre for the last five years. Furthermore, he submitted that the Regional Manager’s determination of the bird’s value was unfair, because a Northern Hawk Owl had not been auctioned by the government since 2010. Mr. Goodwin advised that he is a trapper, and the market value of lynx has dropped substantially.
The Board noted that the $200 value limit in section 6(1)(d) of the Permit Regulation applies to permits issued under section 2(p) of the Permit Regulation, which transfers the right of property in the dead wildlife from the government to the permit holder, but does not apply to permits issued under section 2(k), which authorizes a person to possess dead wildlife for scientific or educational purposes. The Board was not provided with a copy of Mr. Goodwin’s permit application, and therefore, it was unknown whether Mr. Goodwin had applied for a permit under section 2(p) or 2(k) of the Permit Regulation. However, given the submissions and letters provided by Mr. Goodwin in support of his appeal, and the Board’s jurisdiction to conduct an appeal as a new hearing of the matter, the Board found that Mr. Goodwin qualified to receive a permit to possess the Northern Hawk Owl under section 2(k) of the Permit Regulation. In particular, the Board found that Mr. Goodwin intended to display the Northern Hawk Owl publicly at a local school, at the local visitor information centre, and during a local festival. There was no indication that he intended to dispose of the bird for personal financial gain. In any event, he would have no right to sell it, because a permit issued under section 2(k) would not transfer the right of property in the bird from the government to him. If the bird ceased to be used for educational purposes, the government could revoke the permit and take possession of the bird.
In addition, the Board found that issuing a permit would meet the requirement of section 5(1)(b) of the Permit Regulation; namely, it would not be contrary to the proper management of wildlife resources in the province. Although the Northern Hawk Owl is uncommon in BC, it is not a species at risk in BC.
In the alternative, the Board considered whether Mr. Goodwin qualified for a permit under section 2(p) of the Permit Regulation. The Board found that the $200 value limitation did not apply, as there was insufficient information to conclude that the value of the Northern Hawk Owl was $200 or more. Specifically, the Board found that the Regional Manager determined the value of the bird based on a single specimen of unknown size or condition that was sold at a government auction sometime between 2007 and 2010. At best, the auction value was five years old, and it was unknown how the size and condition of the auction specimen compared to the specimen found by Mr. Goodwin. Moreover, the Board found that the Regional Manager inappropriately assumed that the value of the bird would not have decreased since the last auction, and that the value would be maintained given that the bird is uncommon in BC. The Board noted that those considerations are not contemplated in section 6 of the Permit Regulation. For all of those reasons, the Board concluded that there was insufficient information to determine that the value of the Northern Hawk Owl was $200 or more, and therefore, the $200 value limit would not apply if Mr. Goodwin’s application was considered under section 2(p) of the Permit Regulation.
Consequently, the Board reversed the Regional Manager’s decision, and the Board directed the Regional Manager to issue Mr. Goodwin a permit under either section 2(k) or section 2(p) of the Permit Regulation.
Accordingly, the appeal was allowed.