Decision Date:  February 25, 2011

Panel:  Gabriella Lang

Keywords:  Wildlife Act – s. 19; permit; raptor; rehabilitation; discretion; policy; relevant consideration

Pacific Northwest Raptors Ltd. (“PNWR”) appealed a decision of the Regional Manager, Environmental Stewardship and Parks and Protected Areas Division, West Coast Sub Region Region, Ministry of Environment (the “Ministry”), refusing PNWR’s application for a permit authorizing it to receive, transport, rehabilitate, and release injured birds and small mammals including bats.

PNWR operates a commercial raptor and falconry centre in Duncan, BC.  It provides flying demonstrations, raptor breeding, falconry training, educational programs, and bird control services.  PNWR also has biologists and technicians who are trained in handling injured raptors.  PNWR holds permits that authorize its commercial and educational activities.  Until 2010, PNWR also held annual permits that allowed it to temporarily possess and care for injured birds for up to two weeks, until the birds could be transferred to a designated wildlife rehabilitation centre.  In the past, PNWR applied for permits that would allow it to rehabilitate injured birds, but those applications were denied based on the Ministry’s policy against issuing rehabilitation permits to commercial breeding facilities.  The Ministry policy is based on concerns that it is a conflict of interests to conduct both rehabilitation and commercial breeding of birds.

In May 2010, PNWR applied to the Ministry for a rehabilitation permit.  In support of the application, PNWR suggested measures to address the Ministry’s concerns about a potential conflict of interests.

In August 2010, the Regional Manager denied PNWR’s application for a rehabilitation permit.  He also did not issue a permit allowing PNWR to temporarily possess and care for injured birds.  His decision was based on PNWR’s noncompliance with its previous permits on several occasions, when it held injured birds longer than two weeks, and the Ministry’s conflict of interest policy.

PNWR appealed the Regional Manager’s decision on several grounds, including that he fettered his discretion by placing too much weight on the Ministry policy, he failed to consider PNWR’s specific circumstances, he considered irrelevant and uncorroborated allegations against PNWR, and he failed to consider all relevant information.

The Board considered whether the Regional Manager’s decision was a reasonable exercise of discretion in the circumstances.  At the hearing, PNWR admitted that it failed to meet the two-week time limit in its previous permits on many occasions, but it submitted that the time limit was inadequate and impractical, and that transporting injured birds to a designated rehabilitation centre was not necessarily in the birds’ best interests.  PNWR also questioned the Ministry’s biological approach towards raptors.

The Board found that PNWR has provided good care to injured birds in the past, but it knowingly failed to comply with the conditions of its permits on multiple occasions.  Although PNWR claimed that it kept the birds longer than it was allowed to for biological and ethical reasons, the Board found that the evidence showed that it also had financial and logistical reasons for doing so.  The Board also found that PNWR did not comply with the Ministry’s requests to clarify the nature of its permitted operations to the public, as PNWR described itself on its website as a rehabilitation centre and sought donations on that basis.  The Board held that the Regional Manager had considered PNWR’s specific circumstances, and PNWR’s history of non-compliance was a relevant consideration.  The Board also concluded that the Regional Manager did not place inappropriate weight on the Ministry’s policy.

The Regional Manager acknowledged that he considered two letters from designated rehabilitation centres which expressed concern about PNWR, and those letters were not forwarded to PNWR for comment before he made his decision.  However, the Board found that those letters were not the reason for his decision, and he had sufficient reasons, without those letters or the Ministry’s policy, to refuse PNWR’s application.
 
In summary, the Board concluded that the Regional Manager exercised his discretion reasonably when he denied PNWR’s permit application.

Accordingly, the appeal was dismissed.