Decision Date: April 1, 1999

Panel: Judith Lee

Keywords: Wildlife Act – s. 25(1); stay; RJR MacDonald Inc. v. Canada (AG)

The Society requested a stay of the decision of the Regional Fish and Wildlife Manager (“the Regional Manager”) to suspend its fish collection permit for two weeks. The Permit allowed the SSBC to capture steelhead for the purposes of developing a steelhead population estimate for the Bulkley and Morice Rivers (“the Project”). The Regional Manager suspended the Permit to allow for an independent review of the scientific validity of the Project as there were concerns that the methodology being used departed significantly from standard mark and release techniques. The Society argued that if the stay application was denied, it would not have adequate opportunity to sample the river and thus the Project might fail.

The Board applied the usual three-step test to determine whether to issue a stay. The Board found that the Society demonstrated there was a serious issue to be tried. As the loss of the opportunity to sample during a critical time period might result in a loss that could not be cured, the Board also found that the Society might suffer irreparable harm if a stay was not granted. However, the Board accepted the Regional Manager’s submissions that there was some question as to the scientific validity of the methodology and techniques being used and found that the balance of convenience did not favour granting a stay. The Panel found that, on balance, the protection of the fisheries resource took precedence over the Project. The application for a stay was denied.