Decision Date:  February 13, 2009

Panel:  Alan Andison

Keywords:  Wildlife Act – s. 101.1(6); stay application; permit

Pacific Northwest Raptors Ltd. (“PNWR”) applied for a stay of a decision of the Regional Manager, Recreational Fisheries and Wildlife Program, Vancouver Island Region, Ministry of Environment (the “Ministry”), refusing PNWR’s application for a special permit to rehabilitate a juvenile male bald eagle.

PNWR operates a falconry centre for commercial and educational purposes.  PNWR holds permits that authorize its commercial and educational activities.  One of those permits also allows PNWR to hold or care for injured raptors for the purpose of rehabilitation, but only for a maximum of two weeks.

In July 2008, PNWR received the juvenile eagle, which had a broken wing.  A veterinarian operated on the eagle’s wing to repair it.  Shortly after receiving the eagle, PNWR wrote to the Ministry to advise that it had the eagle and that the eagle required rehabilitation.  In the letter, PNWR asked the Ministry whether PNWR should apply for a special permit for the eagle.  Subsequently, PNWR began flight training with the eagle using “free flying” falconry techniques.
On December 11, 2008, PNWR applied to the Ministry for a special rehabilitation permit for the eagle.

On February 10, 2009, the Regional Manager denied the permit application on the basis that Ministry policy is to issue such permits only if a designated wildlife rehabilitation centre, zoo, or permitted wildlife research project is not available to care for the animal, and in this case, a designated wildlife rehabilitation centre had space for the eagle and would provide a flight pen environment for rehabilitation.

PNWR appealed the Regional Manager’s decision, and requested a stay of the decision until the Board could decide the merits of the appeal.

The Board applied the legal test for a stay set out in RJR-Macdonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 (S.C.C.).  Specifically, the Board found that the appeal raised serious issues to be decided, particularly regarding the appropriate method of rehabilitation for the eagle.  However, the Board found that PNWR failed to establish that its interests would suffer irreparable harm if a stay was denied pending the outcome of the appeal.  In addition, the Board found that the balance of convenience favoured denying a stay.  In that regard, the Board found that the question of the appropriate rehabilitation for the eagle was central to the appeal and should not be decided based on preliminary submissions in a stay application.  The Board also held that the Regional Manager’s decision was, on its face, consistent with the legislation and with the proper management of the province’s wildlife resources, and was, therefore, in the public interest.  On that basis, the Board concluded that any potential harm to PNWR’s interests, if a stay was denied, did not outweigh the public interest in the continued application of the Regional Manager’s decision.

Accordingly, the application for a stay was denied.