• Audra Tina Harnell v. Section Head, Fish and Wildlife

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    Decision Date: October 11, 2019

    Panel: Darrell Le Houillier

    Keywords: Wildlife Act – s. 19; Permit Regulation – s. 2(k)(ii); permit; possession; dead wildlife; golden eagle; aboriginal right

    Audra Tina Hartnell appealed a decision of the Section Head, Fish and Wildlife Program, Peace Region, Ministry of Forests, Lands, Natural Resource Operations and Rural Development (the “Ministry”), denying her application for a permit to possess a dead golden eagle.

    Ms. Hartnell found the dead eagle while she was checking a trapline in the Peace Region. She discovered that a boreal owl and a golden eagle had been caught and killed in each of two different traps along the line.

    Ms. Hartnell applied to the Ministry for a permit to keep the owl and the eagle. A permit is required because under section 2 of the Wildlife Act, ownership of all wildlife in British Columbia, whether dead or alive, is vested in the government. Section 19 of the Wildlife Act allows the government to issue a permit giving a person the right of property in wildlife, or a right to possess that wildlife. Ms. Hartnell is a member of the Tahltan First Nation. In her permit application, she described the proposed use for the golden eagle as sending it to the taxidermist, and she included a copy of her Indian status card.

    The Ministry staff who initially reviewed the permit application inferred that Ms. Hartnell may have applied for the eagle for societal or ceremonial purposes under section 2(k)(ii) of the Permit Regulation, because a copy of her Indian status card was included. After the Ministry requested further information, Ms. Hartnell advised that she intended to use the eagle for “ceremonial/educational” purposes.

    The Section Head denied Ms. Hartnell’s permit application. The Section Head determined that Ms. Hartnell did not live within the boundaries of the Tahltan First Nation or within several hundred kilometres of those boundaries. Because of this distance and the lack of detail in Ms. Hartnell’s application, the Section Head could not justify issuing a permit for the eagle for societal or ceremonial purposes. The Section Head also determined that none of the circumstances in the other subsections of section 2 of the Permit Regulation permitting the possession or transfer of ownership of the eagle were satisfied.

    In a separate decision, the Section Head granted Ms. Hartnell’s request for possession of the owl.

    Ms. Hartnell appealed the Section Head’s decision denying her application for a permit to possess the eagle. She asked the Board to grant her a permit to possess the eagle for ceremonial and societal reasons. Ms. Hartnell submitted that she intended to preserve the eagle through taxidermy for the use of her family and the Tahltan community. Although she had no immediate ceremonial use for the eagle, she maintained that keeping it would allow her to preserve traditional symbols, customs, and practices. Ms. Hartnell asserted that she had a right to keep the eagle as part of her traditional heritage and Indian status.

    First, the Board considered whether Ms. Hartnell had established an aboriginal right to possess the eagle. The Board found that Ms. Hartnell had provided insufficient information to establish that she had an aboriginal right to possess the eagle, based on the legal test for determining the existence of aboriginal rights. Specifically, she did not present sufficient information for the Board to conclude that the use of eagles or eagle feathers, as described by her, was of central significance to the Tahltan people’s society, or that any such practices or traditions had continuity with those that existed before the Tahltan came in contact with European settlers.

    Next, the Board considered whether to grant a permit authorizing Ms. Hartnell to possess the eagle for societal or ceremonial purposes pursuant to section 2(k)(ii) of the Permit Regulation. The Board concluded that she provided insufficient evidence to establish that the primary use of the eagle would be for societal or ceremonial purposes. In her submissions, she did not describe any societal use for the eagle other than as a side-effect of having it displayed for her personal enjoyment. Ms. Hartnell’s main intended use of the eagle was private display, and not ceremonial or societal uses. As a result, she did not meet the requirements to be permitted to possess or own the golden eagle under section 2(k)(ii) of the Permit Regulation.

    Consequently, the Board confirmed the Section Head’s decision, and the appeal was dismissed.