Environmental Appeal Board

Transcription

1 Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 DECISION NO WIL-021(a) In the matter of an appeal under section of the Wildlife Act, R.S.B.C. 1996, c BETWEEN: Pacific Northwest Raptors, Ltd. APPELLANT AND: Regional Manager RESPONDENT BEFORE: A Panel of the Environmental Appeal Board Gabriella Lang, Panel Chair DATE: December 22 and 23, 2010 PLACE: APPEARING: Nanaimo, BC For the Appellant: Ben van Drimmelen, Counsel For the Respondent: Joseph McBride, Counsel APPEAL [1] Pacific Northwest Raptors Ltd. ( PNWR ) appeals the August 4, 2010 decision of Don Cadden, Regional Manager (the Regional Manager ), Environmental Stewardship and Parks and Protected Areas Division, West Coast Sub Region, Ministry of Environment (the Ministry ). The Regional Manager refused to issue a permit to PNWR for wildlife rehabilitation activities. [2] The Environmental Appeal Board (the Board ) has the authority to hear these appeals under section 93 of the Environmental Management Act, and section of the Wildlife Act, R.S.B.C. 1996, c. 488 (the Act ). Section 101.1(5) of the Act provides that, on an appeal, the Board may: (a) send the matter back to the regional manager, or director, with directions, (b) confirm, reverse or vary the decision being appealed, or (c) make any decision that the person whose decision is appealed could have made, and that the board considers appropriate in the circumstances. [3] PNWR asks the Board to set aside the Regional Manager s decision and refer the matter back to the Regional Manager with the directions. BACKGROUND [4] PNWR operates a commercial bird of prey and falconry centre in Duncan, B.C. The falconry operation includes bird of prey flying demonstrations, breeding, falconry training, educational programs, and bird control work. The business has

2 DECISION NO WIL-021(a) Page 2 been owned and operated by Gillian Radcliffe since Ms. Radcliffe is a Registered Professional Biologist and has a master s degree in ecology. As a wildlife ecologist, she has worked with raptors for about 20 years. The centre also has biologists and technicians on staff who are trained in falconry techniques and in handling injured raptors. [5] For several years, the Ministry has issued various permits to PNWR for its various activities. In 2005, PNWR appealed a permit condition to this Board. That condition allowed PNWR to hold or care for injured raptorial birds brought to it by the public, but PNWR was not permitted to keep the birds for rehabilitation at its facility. PNWR had to transfer such birds to a designated wildlife rehabilitation centre within two weeks, unless otherwise authorized by the Ministry. The Ministry s position was based on a long-standing policy not to issue permits for both rehabilitation and commercial breeding simultaneously. The policy addressed concerns about the risk of conflict of interest between the two activities. [6] In its decision Pacific Northwest Raptors Ltd. v. Regional Manager et al, (Decision Nos WIL-0005(a) & 2006-WIL-016(a), January 12, 2007), the Board held that the Ministry s conflict of interest policy was not unreasonable in the circumstances of PNWR and found that PNWR had established no compelling reason to deviate from it. The Board also considered the merits of the appealed condition and confirmed it. [7] Another example of PNWR s authorizations from the Ministry is Permit NA which was issued in December That permit authorized PNWR to temporarily possess injured or orphaned wild raptors for transport as soon as practicable within a two-week period to a designated wildlife rehabilitation centre and, if unable to transfer by day 10, to contact the Ministry wildlife staff in Nanaimo, BC. [8] PNWR s permits generally expired at the end of March of a specific year, but if a new permit had not been issued by April 1, the Ministry considered the previous permit conditions to remain in effect until it made a decision on a new application. The Permit Application [9] In April 2010, PNWR applied for a single permit for all of its activities. Subsequently, the Ministry asked PNWR to submit three separate applications. PNWR prepared another application, dated May 16, 2010, for a 5-year permit to receive and transport, rehabilitate and release injured birds (including raptors) and small mammals (including bats). On May 20, 2010, the revised application was sent to the Ministry, together with notes about concerns with prior permits. [10] On May 18, 2010, Ms. Radcliffe sent a letter to the Regional Manager and to Tom Ethier, Director of Fish, Wildlife and Habitat Management, stating that the centre s permits contained some conditions which concerned them and she wanted to discuss the issues. She noted that PNWR did not receive the full rehabilitation permit applied for in She wrote that she was aware of Ministry concerns over the potential for conflict of interest, had suggested a number of measures to address the concerns, and advised that she would be pleased to hear about additional measures the Ministry feels are necessary.

3 DECISION NO WIL-021(a) Page 3 [11] In the same letter, she asked for a single, 5-year permit for all aspects of PNWR s activities because of the work and uncertainty created by year-to-year permits. She wrote that, with an approach like this, PNWR would be willing to embark on certification from the Canadian Association of Zoos and Aquariums ( CAZA ). [12] Michael Stalberg, the Ministry s Fish & Wildlife Section Head in Nanaimo, sent PNWR a letter dated June 25, 2010, stating that the Ministry was evaluating PNWR s permit application, including the application for a rehabilitation permit. He wrote that until a decision was made on that application, PNWR could work under the conditions of its previous permit which allows possession of injured raptors for a two-week period. He added that the Ministry was unable to grant the request to possess an injured raptor beyond the two-week limit. [13] In the same letter, Mr. Stalberg also addressed a June 24, 2010 request from Ms. Radcliffe to keep a juvenile male red-tailed hawk until fully fledged, and then return the hawk to the area where it was found. Mr. Stalberg wrote that, because the hawk had been in PNWR s possession since June 8, PNWR must ensure that this raptor, as well as any further injured raptors received at the facility, be transferred to a permitted Designated Rehabilitation Centre within the two-week period. He added: The ministry will consider any failure to transfer this or any other injured raptor within the 14-day period a violation of permit conditions. The Permit Decision [14] In a letter dated August 4, 2010, the Regional Manager issued his decision on PNWR s May 2010 permit applications. He denied the request for a single, 5-year permit. He added that, at one time, PNWR was issued a single permit for many activities that would normally be in separate permits in an effort to reduce PNWR s costs; however, that process resulted in confusion. Therefore, the Ministry, working with PNWR to simplify and clarify permits for possession of raptors, issued separate permits for the distinct activities. [15] On August 5, 2010, the Ministry issued Permits NA and VI (both valid from August 5, 2010 to March 31, 2011) for PNWR s falconry operations. The Regional Manager did not issue a permit to PNWR for rehabilitation activities, or a permit for temporary possession of injured raptors. [16] In the August 2010 letter, the Regional Manager wrote that, unfortunately, PNWR did not always move injured animals to Designated Rehabilitation Centres within the required time. He noted that the Ministry had sent letters to PNWR on more than one occasion, warning about possessing raptors beyond the two-week limit (e.g., letters dated December 12, 2008 and February 5, 2009). Further, he referred to PNWR s website and its advertising in newspapers as evidence that PNWR does not make sincere efforts to prevent or reduce members of the public bringing injured raptors to PNWR. Although PNWR had been asked to remove certain information from its website, as of the date of the decision, it had not done so. In his decision letter, the Regional Manager requested that PNWR move any raptors receiving treatment to a Designated Rehabilitation Centre by September 13, [17] The Regional Manager also referred to the Ministry s conflict of interest policy. He wrote that the Ministry recognized that the public was bringing injured

4 DECISION NO WIL-021(a) Page 4 raptors to PNWR because of its profile in the community. Therefore, the Ministry had allowed PNWR to possess injured raptors for two weeks to provide adequate time to find a Designated Rehabilitation Centre to provide rehabilitation. [18] The Regional Manager wrote that the Ministry has been considering processes to address the conflict of interest between concurrent commercial breeding and wildlife rehabilitation but, to that point, had not been convinced that the conflict could be satisfactorily managed, nor the perception of a conflict of interest. The Regional Manager also noted that the Ministry had received complaints from a Designated Rehabilitation Centre questioning why a commercial falconry operation was permitted for rehabilitation. He stated that there are many Designated Rehabilitation Centres capable of servicing the Cowichan Valley areas, and noted that three centres had indicated their willingness and capability to provide raptor rehabilitation and to respond to rescue calls within one hour. PRELIMINARY ISSUES [19] PNWR submitted that the Regional Manager unreasonably exercised his discretion in refusing to issue a rehabilitation permit because the Regional Manager: (i) failed to consider PNWR s significant efforts to consult with the Ministry; (ii) fettered his discretion by placing inappropriate weight on Ministry policy; (iii) failed to consider PNWR s specific circumstance; (iv) failed to consider potential remedies to avoid actual conflict of interest; (v) considered extraneous, irrelevant and uncorroborated allegations; and (vi) failed to consider relevant facts, including PNWR s specific circumstances that established a compelling reason to deviate from the Ministry policy. [20] At the beginning of the hearing, the Regional Manager asked the Panel to limit the issues in the appeal and the evidence at the hearing to what he submitted was the sole reason for the permit denial: PNWR s multiple violations of the conditions of its previous permits. The Regional Manager submitted that he did not apply the Ministry s conflict of interest policy when he made his August 4, 2010 decision. He further submitted that how the Ministry develops its policies or consults when developing its policies is not within this Board s jurisdiction. [21] In reply, PNWR submitted that the Regional Manager did apply the Ministry s conflict of interest policy to PNWR in his August 4, 2010 refusal. PNWR also asked the Panel to allow evidence about the Ministry s consultation process on the policy to demonstrate that PNWR had not been sufficiently consulted in the development or application of the policy. [22] The Panel considered the submissions of the parties and the contents of the August 4, 2010 decision letter. The Panel found that, in his decision letter, the Regional Manager described two reasons for refusing PNWR s rehabilitation application: failure to comply with the terms of previous permits, and the Ministry s conflict of interest policy. [23] The Panel ruled that how or when the Ministry develops its policies, and how it conducts consultation for policy development are not within this Board s

5 DECISION NO WIL-021(a) Page 5 jurisdiction. The only matter that the Board can consider under section 101.1(5) of the Act is the August 4, 2010 decision refusing to issue the rehabilitation and temporary possession permits to PNWR. However, since the Regional Manager applied the conflict of interest policy in this case, the Panel does have jurisdiction to consider whether the Regional Manager s application of that policy was reasonable in the Appellant s circumstances. It is in this context that the Panel has considered PNWR s grounds of appeal. ISSUES [24] In determining this appeal, the Panel has considered the following issue: 1. Whether the Regional Manager reasonably exercised his discretion in refusing to issue PNWR a rehabilitation and a temporary possession permit. RELEVANT LEGISLATION [25] The following sections of the Wildlife Act are relevant to this appeal: Definitions and interpretation 1(1) In this Act: wildlife means raptors, threatened species, endangered species, game or other species of vertebrates prescribed as wildlife. Property in wildlife 2(1) Ownership in all wildlife in British Columbia is vested in the government. Permits 19(1) A regional manager or a person authorized by a regional manager may, to the extent authorized by and in accordance with regulations made by the Lieutenant Governor in Council, by the issue of a permit, authorize a person (a) to do anything that the person may do only by authority of a permit or that the person is prohibited from doing by this Act or the regulations, or (b) to omit to do anything that the person is required to do by this Act or the regulations, subject to and in accordance with those conditions, limits and period or periods the regional manager may set out in the permit and, despite anything contained in this Act or the regulations, that person has that authority during the term of the permit. (2) The form and conditions of the permit may be specified by the director. (4) The regional manager or the person authorized by the regional manager may amend the conditions of a permit as determined by him or her and

6 DECISION NO WIL-021(a) Page 6 issued under this section, but the amendment is not effective until the permittee has notice of it. [26] The following sections of the Wildlife Act Permit Regulation, B.C. Reg. 253/2000 (the Permit Regulation ) are relevant to this appeal. Authorization by permit 2 A regional manager may issue a permit in accordance with this regulation on the terms and for the period he or she specifies (t) authorizing a person, for the purpose of rehabilitating wildlife, to do any or all of the following: (i) keep wildlife in captivity; (ii) capture wildlife; (iii) transport wildlife (A) to a rehabilitation facility, or (B) for the purpose of releasing the wildlife; (iv) release wildlife; (v) perform euthanasia on wildlife; (vi) possess dead wildlife for the purpose of disposal. DISCUSSION AND ANALYSIS [27] The Panel will review how the Regional Manager exercised his permitting discretion by considering the two reasons for denial: (i) the failure to comply with permit conditions; and (ii) the application of the Ministry s conflict of interest policy to PNWR s circumstances. [28] The Panel will consider these reasons within the discretionary authority granted to the Regional Manager under section 19 of the Act and section 2 of the Permit Regulation. Failure to Comply with Permit Conditions [29] PNWR and Ms. Radcliffe, as its owner and principal operator, have a history of applying for and receiving permits for PNWR s various activities under the Act. Both Parties entered copies of several of PNWR s past permits as exhibits. [30] The Panel reviewed these permits and noted that they were issued under section 19 of the Act. Permits issued to PNWR for the temporary possession of injured raptors, such as Permit VI (described below), were also issued under section 2 of the Permit Regulation. [31] Section 19 states that a regional manager may issue a permit in accordance with those conditions, limits and period or periods the regional manager may set out in the permit. Section 2 of the Permit Regulation states that a regional

7 DECISION NO WIL-021(a) Page 7 manager may issue a permit in accordance with this regulation on the terms and period he or she authorizes. That means that if the Regional Manager decides to issue a permit, he also has the discretion to impose whatever conditions he determines are appropriate in the circumstances. [32] The Panel notes that the PNWR permits identify the permit holder, cite the relevant authorities and identify the activities authorized. They also specify the permit conditions. For example Permit NA (issued December 31, 2007 and valid from (December 31, 2007 to March 31, 2009) authorized PNWR to: temporarily possess injured or orphaned wild raptors for transport as soon as is practicable within a two week period to a designated wildlife rehabilitation centre. If permit holder has not been able to transfer the wildlife by day 10, the permit holder is to contact the wildlife staff with the Ministry of Environment, Nanaimo. [33] In Permit VI (issued July 20, 2006), additional conditions and requirements are attached in Appendix A to the permit. Section 11 of that Appendix authorizes PNWR to temporarily hold or care for injured raptorial birds on the following condition: Such birds are not to be kept for rehabilitation at the permit holder s facility, but must be transferred to a designated wildlife rehabilitation centre within two weeks unless otherwise authorized by the Ministry of Environment. [34] In addition, the PNWR permits also state that they are subject to an offence provision or compliance advisory. The offence/compliance conditions are generally on the face of the permits. Under offence provision, Permit NA states, in part: Failure to comply with any term(s) of this permit is an offence under the Wildlife Act, and may result in prosecution and/or denial of future permit requests. [emphasis added]. A similar provision in Permit NA (issued August 4, 2010) states in a compliance advisory: Failure to comply with any term of this permit is an offence under the Wildlife Act, and may result in. ineligibility for future permits and denial of future permit requests. [emphasis added]. [35] The other permits in evidence have similar language; that is, a plain statement of the potential consequences of failure to comply with any permit term. Considering PNWR s history of permitting and this plain language, the Panel finds that PNWR and Ms. Radcliffe should have been well aware of the terms of each permit, the activities specifically authorized, and particularly the consequences of failing to comply with any term in a PNWR permit one consequence being the denial of future permit requests. [36] With respect to PNWR s actual permit violations, there is no dispute between the Parties that PNWR failed to comply with the condition in its temporary possession permits to transport injured raptors to a rehabilitation centre within two weeks. Both Parties submitted testimony and documents demonstrating that PNWR kept injured raptors longer that the two weeks authorized in its permits, and PNWR did not always notify the Ministry within the 10 days specified in the permits. The Panel has reviewed and considered all of this evidence, even if not specifically cited in this decision.

8 DECISION NO WIL-021(a) Page 8 [37] To support his August 4, 2010 decision, the Regional Manager submitted that PNWR failed to comply with the two-week transfer condition at least 37 times. Also, the Ministry warned PNWR several times, even in writing (such as on December 12, 2008 and February 5, 2009), about the consequences of not meeting its permit obligations by moving birds as required. [38] One example relied on by the Regional Manager, started with an from Ms. Radcliffe to the Ministry on November 10, 2008, advising of additional birds PNWR had for longer than 14 days. Ms. Radcliffe asked for permission to keep 3 merlins to train them to hunt so they could be released in the spring. She also wanted to keep working with an eagle with a broken wing being seen by vet, and listed other birds in PNWR s possession for more than the permitted time. She provided information about their conditions and reasons why she felt that the birds should not be moved or released. [39] On December 2, 2008, Ms. Radcliffe wrote to the Regional Manager, responding to information that he would be ordering the relocation of a number of birds in PNWR care. She stated that the current 14-day term is logistically and financially impractical; relocation at inappropriate times/stages creates ethical conflicts for them and undermines the work they are doing with veterinarians and other centres. She wanted to meet with the Ministry to go over options to address what she felt was confusion and inconsistencies in policy and permitting. In her opinion, the birds were not ready to move and she felt that moving them would undermine their rehabilitation. [40] In another on December 10, 2008, Ms. Radcliffe advised that PNWR would continue to operate on the basis of what it believed to be best for the birds, trying to balance a clearly inadequate permit time frame against their specific needs and PNWR s practical operational realities. [41] The Regional Manager responded in a letter dated December 12, He referred to Permit NA as a short-term permit to temporarily hold raptors, apply first aid, and relocate to designated rehab centre. The letter listed 5 injured raptors that Ms. Radcliffe had possessed for more than the two weeks allowed in the permit. The letter also stated that it is important to move those birds because PNWR does not have a permit for long-term rehabilitation of wildlife and is, therefore, currently in non-compliance [emphasis added]. The Regional Manager extended the deadline for moving the birds to December 19, 2008, adding that the Ministry had contacted other rehabilitation centres who could accept the birds. For example, three merlins and a barred owl could go to Mountainaire Avian Rescue ( MARS ). The Regional Manager also offered Ministry staff assistance to transfer the birds to Designated Rehabilitation Centres if PNWR had problems with transport. [42] During her testimony, Ms. Radcliffe readily admitted that she did not meet the two-week deadline on many occasions, but she maintained that PNWR did give the Ministry reports, such as those in evidence, about injured raptors brought in and remaining for more than the permitted two weeks. When specifically asked about Permit NA , she admitted that sometimes more than 10 days passed before she contacted the Ministry as required, but not usually more than 14 days. Also, if the injured bird was an eagle or peregrine falcon, the Ministry s office in Victoria was notified as required.

9 DECISION NO WIL-021(a) Page 9 [43] In her letters and s to the Regional Manger and the Ministry, Ms. Radcliffe complained about instability and inconsistency in permitting, and questioned the Ministry s biological approach to raptors. Ms. Radcliffe asserted that she is first and foremost a biologist, considering what is best for the bird. Biologically and ethically she did not believe that transporting injured birds was necessarily the best thing for the birds in question. [44] In one case, she wrote that two birds in PNWR s possession needed special care and attention with ongoing treatment from a veterinarian. She pointed to another permit condition in Appendix A which stated that the permit holder must ensure that the wildlife are treated in a humane manner and are not subjected to any unnecessary harm or suffering. In her view, this would conflict with the twoweek move requirement if an injured raptor would be subjected to unnecessary harm or suffering by transport. [45] Mike Stalberg testified for the Regional Manager. Mr. Stalberg is a Registered Professional Biologist and has worked as a wildlife biologist since As the section head, he makes recommendations for permit approval. He also evaluates the permit applications and sends them to regional staff for biological assessments. He gave evidence about the communications and discussions that the Ministry had with Ms. Radcliffe about meeting the two-week deadline, and her specific requests for extensions or special authorizations. [46] Mr. Stalberg acknowledged that the Ministry s workload prevented responses to each request by PNWR, and sometimes PNWR s notes came quicker than his office could respond: the volume of requests from PNWR were difficult to keep up with. Mr. Stalberg also pointed out that, even after being asked to move injured birds to designated rehabilitation centres, PNWR failed to do so or made yet other requests. [47] Mr. Stalberg testified that, on one occasion, he called M. Radcliffe and told her to move 8 birds within two weeks. Ms. Radcliffe responded that she had been trying to make suitable arrangements, listing which birds had been transferred, and suggested that some couldn t be transferred because of their condition or until the spring. She also asked for special permission to work with a young bald eagle until the spring, based on the opinion of a veterinarian. [48] That call was followed by a letter to PNWR dated February 5, 2009, from Mr. Stalberg. He pointed out that PNWR did not have a permit for long-term rehabilitation of wildlife and would soon be in non-compliance. He asked PNWR to transport the juvenile bald eagle to a permitted Designated Rehabilitation Centre by February 16, [49] Instead of complying, Ms. Radcliffe embarked on further correspondence with the Ministry about keeping the eagle because it was young and had no experience with free flight or hunting/scavenging. Ms. Radcliffe also provided a statement from Dr. Langelier, a veterinarian in Nanaimo, about his treatment of the eagle and his decision to send it to PNWR because of its age and lack of hunting skills. She testified that she sent this statement to the Ministry to support her request for special case authorization. [50] Ms. Radcliffe maintained that the two-week condition in the permit was inadequate and impractical. She therefore asked for special permission and

10 DECISION NO WIL-021(a) Page 10 changes to that condition because PNWR was unable to meet that requirement diligently. She stated that PNWR staff was following their consciences and ethical practices. They considered when the birds would be ready for transfer, and the space and staffing availability at other facilities. [51] Ms. Radcliffe also testified that there were logistical problems for PNWR with respect to transporting birds to other facilities. It was not always practical to move injured birds to other centres within the two-week period imposed by the Ministry. PNWR does work with other centres, but driving back and forth to them, as well as to the veterinarians, is extremely costly. [52] Dr. Langelier testified about his work with PNWR as a consulting veterinarian. He practices veterinary medicine, mainly dogs and cats, with Island Veterinary Hospital in Nanaimo. Dr. Langelier also has extensive experience with the medical care of wildlife. The wildlife medical service he provides is at his own expense, and he relies on all of the rehabilitation centres on Vancouver Island and the lower mainland. He has been recognized for his work with wildlife with awards such as the Order of British Columbia. [53] Dr. Langelier has worked with PNWR since 2005 on two levels: with PNWR s own birds, and with rescued birds of prey. In his opinion, PNWR staff have been willing to put in the time and training to do follow-up care. He has a high level of trust in PNWR and works with them as a team. [54] Medically, he determines whether an injured bird can go to a rehabilitation centre and then be released. He makes his decision based on outcome, experience, who can pick-up the bird, who has facilities to look after the bird and many other factors. Also, he stated that some injuries are more amenable to rehabilitation than others, but rarely can a bird be released immediately. He considers rehabilitation to be a team effort between the rehabilitation centre and the veterinarian. [55] Dr. Langelier said that he wrote the note about the eagle because the bird was in good condition and he could repair the fracture with a good chance of healing, but the eagle had no hunting skills. It was a perfect bird for falconry techniques and eventual release. He felt PNWR could work with this bird and, therefore, put that in writing so the Ministry would not put limitations on PNWR. [56] The Panel does not doubt that Ms. Radcliffe cares about the injured birds that come to PNWR or that PNWR provides good care. However, the Panel finds that the evidence, and especially Ms. Radcliffe s testimony, establishes that PNWR knowingly failed to comply with its permit terms on multiple occasions. Ms. Radcliffe testified that she kept the birds longer for biological and ethical reasons. However, the Panel finds that her testimony and the documentary evidence indicate that her reasons were also financial, logistical, and based on PNWR s practical operations. Even when told by the Ministry to move certain birds within a certain time frame, she still found reasons not to. [57] The Panel also finds that the evidence establishes that the Ministry did consider PNWR s specific circumstances. It considered and, at times, granted PNWR s requests for extensions as evidenced by the letters and testimony. However, its workload and the multiple requests from PNWR did not always enable it to respond quickly. Also, as is evident from the documents submitted, the

11 DECISION NO WIL-021(a) Page 11 Regional Manager and Ministry staff expected PNWR to comply with the permit terms. [58] The Regional Manager also acknowledged PNWR s circumstances by issuing temporary possession permits, such as Permit NA PNWR got that permit even though it operates a commercial falconry business. As stated in the August, 2010 decision letter, the Ministry recognized that PNWR was called to rescue injured birds and accepted them at its facility. [59] The Regional Manager was also not convinced that PNWR was making efforts to minimize how often the public brought injured raptors to PNWR. In his decision letter, the Regional Manager noted that PNWR s website referred to PNWR as a rehabilitation centre. He also noted that PNWR was told to remove that reference in a December 12, 2008 letter. [60] In that December 12, 2008 letter, the Regional Manager conveyed the Ministry s concern about the messages on the PNWR website, stating the site lists PNWR with Designated Rehabilitation Centres in the region and infers that PNWR is a wildlife rehabilitation centre. The Regional Manager wrote that PNWR is allowed to accept injured wildlife to stabilize them and either release them in two weeks, or transport them to a Designated Rehabilitation Centre. As for pre-release training and the actual release, PNWR can work in partnership with the designated centres. [61] Ms. Radcliffe responded in a December 22, 2008 letter. She said that she did not really see what was wrong with the website because PNWR was doing shortterm rehabilitation and continuing to work with other rehabilitation centres on a regular basis. She wrote that PNWR gets a large number of calls from the public about injured birds and it helps rescue birds for other facilities. PNWR s intention on the website is to raise the profile of what it and other groups are doing. [62] At the hearing, Ms. Radcliffe maintained that she really did not see what the problem was with the website and the message that it conveyed. She testified that she reviewed the website and she submitted that the list of places to call were just places to call. [63] The Regional Manager submitted a page from PNWR s website found under the tab Rescue. The text reads: Pacific Northwest Raptors is dedicated to helping birds of prey. The rehabilitation of raptors is time consuming, and the animals require a great deal of care and attention. PNWR works with several rehabilitation facilities on the island to provide the best available care for each individual raptor. [64] Under What to do if you find an injured raptor, the website states: 3. Track down a rehabilitator or vet and organize the treatment of the injured bird. [65] In the chart that followed item #3, a chart titled Some places to call lists PNWR first among rehabilitation centres. [66] Under the heading What you can do to help the text reads: All rehabilitation centres rely on donations to help the injured animals. Pacific Northwest Raptors will accept and greatly appreciates donations

12 DECISION NO WIL-021(a) Page 12. The centre is trying to raise money to build an improved medical facility to treat injured raptors. Any donations towards this endeavor are greatly appreciated. [67] The Panel finds that, based on a plain reading of this web page, PNWR represented itself as a rehabilitation centre. PNWR is listed with designated rehabilitation centres and includes itself with all rehabilitation centres accepting donations, in its case for an improved medical facility. This was sufficient for the Ministry to direct PNWR to clarify its website because PNWR is not a designated rehabilitation centre. [68] The Panel also finds that, after years of dealing with the Ministry for permits and with permitted rehabilitation centres, Ms. Radcliffe should know the difference between a Designated Rehabilitation Centre and the authorization PNWR had to temporarily possess injured wildlife. PNWR is not a permitted rehabilitation centre and PNWR s website not only does not make this clear, it conveys the opposite message. So, in addition to not complying with permit conditions, the Panel finds that PNWR did not comply with a Ministry request to clarify its permitted operations to the public. [69] In summary, the authority to issue permits is a discretionary one and an applicant is not entitled to a permit simply because it had one before, because it has good intentions, or because it is carrying on operations that should be authorized by a permit. In cases where the applicant has a long permitting history with the Ministry, the Panel finds that it is relevant to consider whether the applicant previously complied with its permit terms. PNWR has not done so. The Panel finds that PNWR failed to comply with permit conditions multiple times and continued to hold itself out as a rehabilitation centre, even when asked to stop by the Regional Manager. [70] As for Ms. Radcliffe s assertion that the permit has conflicting provisions that create an ethical dilemma for her, the Panel disagrees. All permit conditions must be read together. The conditions to ensure wildlife are not subject to any unnecessary harm or suffering applies within the parameters in which PNWR is allowed to possess wildlife, in this case two weeks. Also, Ms. Radcliffe testified that ethical considerations were not always the reasons for keeping injured birds longer; finances, logistics and PNWR operations were also excuses. [71] Ms. Radcliffe may be a biologist with ethical considerations, but the Ministry s office in Nanaimo is also staffed with biologists. These biologists assess permit applications, including PNWR s. The staff has had considerable dealings with PNWR and knows its operations. That means that the Regional Manager was able to, and did in fact, consider PNWR s specific circumstances. Moreover, at times, the Ministry has issued specific permits, such as temporary possession permits, to accommodate PNWR. However, rather than working within that authorization, Ms. Radcliffe knowingly chose not to. [72] As for any consultation regarding the permit decision, the Panel finds that the many letters and s and references to conversations submitted into evidence amount to more than sufficient consultation. By the time PNWR applied for its permits in May, 2010, it had a long history of communicating with the Ministry about its permits and what it did not like about them. PNWR was also

13 DECISION NO WIL-021(a) Page 13 aware of the Ministry s previous responses and requirements. The Regional Manager referred to that history in his August 4, 2010 letter, and also how the Ministry responded to PNWR s requests, such as for a single permit. [73] After considering all the evidence, the Panel finds that based on PNWR s multiple failures to comply with permit conditions, the Regional Manager had reasonable grounds for refusing to issue a rehabilitation permit or a temporary possession permit to PNWR. The terms of PNWR s permits were clear, including the consequences for non-compliance. PNWR continued to fail to meet its permits terms even after Ministry warnings. Standing in the Regional Manager s shoes, the Panel would make the same decision. Application of the Ministry s Conflict of Interest Policy [74] This appeal is not the first time that PNWR has challenged how the Ministry applied its conflict of interest policy to a PNWR permit consideration. In the Board s decision cited above, the Board fully canvassed the Ministry s rational for its policy. Since that decision is familiar to the Parties in this appeal, the Panel will not repeat that discussion. Although it is not bound by previous decisions of the Board, the Panel finds the Board s reasoning in that case to be instructive. The Panel also notes that no evidence was submitted in this hearing to indicate that the policy has changed in any way or is being applied differently by the Ministry. [75] At this hearing, Ms. Radcliffe testified about her letters, s and other efforts to persuade the Ministry to either change how it applies this policy to PNWR or to exempt PNWR from the policy. PNWR s documents show that, from the latter part of 2008 through 2009, Ms. Radcliffe contacted Ministry staff about this issue. [76] Ms. Radcliffe testified that there seemed to be no willingness to consider her professional position and her suggestions on how to reduce any conflict of interest. For example, in a February 8, 2008 letter she stated that, as a Registered Professional Biologist, she is willing to sign a sworn statement that raptors brought in for treatment or rehabilitation will not be used for breeding, unless there is a written permit. She also said that since 2006, it has been PNWR s practice to consult with an independent third party to decide if an injured wild raptor can be released. [77] In response to a meeting request, the Regional Manager advised her in a December 13, 2008 letter, that Region 1 does not have the discretion to deviate from the current provincial policy. He forwarded her request for a meeting to the Ministry s Director of Fish and Wildlife. There is also evidence that PNWR made efforts in March and April 2009 to meet with Ministry staff from Victoria and Nanaimo to discuss PNWR s efforts to be designated as a rehabilitation centre. At one point, the Ministry and PNWR had developed a list of topics for further discussion and at least one meeting did occur. [78] Ms. Radcliffe also questioned why the policy should be applied to her operations. In her opinion, injured raptors are not appropriate for production and so there would be no risk of using rescued raptors for breeding. Ms. Radcliffe also asserted that the Ministry s policy should not apply to PNWR because more rehabilitation centres are needed and PNWR has the experienced staff and facilities.

14 DECISION NO WIL-021(a) Page 14 [79] Ms. Radcliffe did confirm that there are several rehabilitation centres on Vancouver Island and the Gulf Islands such as Wild ARC SPCA in Sooke, North Island Wildlife Recovery Centre in Errington, MARS near Comox, and Island Wildlife Natural Care Centre on Salt Spring Island. She testified that she has worked with all of them, transferring injured birds of prey, sharing information, knowledge and skills. However, she also maintained that there are many needs, and the centres have different specialties and facilities. [80] Mary Jane Birch of MARS testified about the need for more wildlife rehabilitation centres. MARS is designated and approved by the Ministry as a rehabilitation centre. Its mandate is to rescue ill, injured and orphaned wildlife, transport for care, rehabilitation, education, and conservation of wildlife. In an average year, it gets birds of prey. MARS is a non-profit organization and finding funding to maintain operations is challenging, especially in these economic times. [81] Ms. Birch also said that all centres have limitations. MARS, for example, is not very well equipped medically, without a surgery or medical facility. In her experience, she has seen a loss of rehabilitation centres, yet the need to treat and care seems to be increasing. It would be helpful to have additional centres. Regarding, PNWR, she feels its expertise is free fly. Many birds of prey pursue prey in the air so they need training and handling to be able to do that. [82] As for the Regional Manager s position, Mr. Stalberg acknowledged that he was aware of requests from PNWR for meetings about the policy and PNWR s permit issues. He had seen s and knew of a meeting and discussions with Ms. Radcliffe s agent. He also was involved in group discussions within the Ministry about PNWR s position. [83] Mr. Stalberg stated that the Ministry had proposed options to PNWR to address the conflict of interest issues. The first was for PNWR to have two separate and distinct businesses one specifically for rehabilitation to distinguish that part of its operations from the commercial falconry business. The second was to obtain CAZA certification. A third option proposed to Ms. Radcliffe was a memorandum of understanding with the Ministry that would allow PNWR to work with Designated Rehabilitation Centres. PNWR could work under the direction of a permitted centre by, for example, using its falconry techniques to prepare raptors for release after rehabilitation. PNWR seems to already be doing this. [84] The Panel has already ruled that it does not have jurisdiction over how or when the Ministry develops policy and how it conducts consultations for policy development. However, the Panel observes that PNWR made many efforts to discuss the policy s application to PNWR with the Ministry. The Panel also observes that those efforts were not ignored. There were, in fact, exchanges between the Parties about these issues and topics for meetings. One request for a meeting was sent to Victoria to the Director of Fish and Wildlife. This was appropriate because the Regional Manager did not have the discretion to deviate from a provincial policy. Also, in his December 2010 letter, the Regional Manager stated that the Ministry had been considering processes to address conflict of interest, but they had not been convinced that conflict interest could be satisfactorily managed, nor could the perception of conflict of interest.

15 DECISION NO WIL-021(a) Page 15 [85] Regarding the Regional Manager s application of the policy, the Panel finds that the Regional Manager did not place inappropriate weight on this policy; it was not the sole basis for his decision. As discussed in the previous section, the Regional Manager had sufficient reasons for refusing to issue PNWR a rehabilitation permit or a temporary possession permit without even considering the application of the policy. [86] As to PNWR s specific circumstances, the Panel finds that the Regional Manager did consider these. He considered what permits had been issued to PNWR, what permits it needed for its falconry operations, and how it conducted its activities while authorized to temporarily possess injured raptors. These specific circumstances are reviewed in the August 4, 2010 letter, and the evidence in this hearing further confirms that PNWR s circumstances and PNWR s actions were, in fact, considered by the Regional Manager. [87] The Panel also finds that the Ministry did consider, and did suggest, options to PNWR to avoid actual and perceived conflicts of interest. Except for the CAZA certification option, the Panel did not hear any response from Ms. Radcliffe about the Ministry s proposals. She testified that the certification process is costly and takes time. [88] As to whether the Regional Manager considered extraneous and uncorroborated allegations, the Regional Manager acknowledged that he did consider two letters from Island Wildlife Natural Care Centre ( IWNCC ) when making his August 4, 2010 decision. IWNCC, a non-profit organization, is a Ministry designated rehabilitation centre on Salt Spring Island. IWNCC wrote in May and June, 2010 regarding its concerns about a for-profit business, PNWR, impacting its fundraising and its rehabilitation operations, and about the potential conflict of interest in PNWR operations. The Regional Manager referred to these in his August, 2010 letter as complaints received. [89] The Regional Manager also acknowledged these letters were not sent to PNWR for comment or response. The Regional Manager, however, submits that even if these actions resulted in a breach of natural justice, any such breach is now cured by this hearing and PNWR s opportunity to address this issue. [90] After reviewing the August 4, 2010 letter and the Regional Manager s evidence, the Panel finds that the IWNCC letters were not the reason for the Regional Manager s refusal. The Regional Manager acknowledged considering them, but not relying on them as the only reason for his refusal. As the Panel found in the discussion above, the Regional Manager had sufficient reasons, without these letters or the Ministry policy, to exercise his discretion to refuse PNWR s applications. Also, the Panel notes that the fact these letters were sent indicates that for a non-profit, designated rehabilitation centre conflict of interest within a commercial operation is a real concern. [91] The Panel finds that the evidence does not establish compelling reasons for the Ministry to deviate from its policy for PNWR and, in fact, the evidence supports the Regional Manager s application of that policy to PNWR. PNWR is a commercial falconry operation. That is its main business and it has permits from the Ministry to carry out that business. The evidence also establishes that PNWR actually operates as a rehabilitation centre (although without a permit), not just as a temporary

16 DECISION NO WIL-021(a) Page 16 injured bird pick-up and holding service. It even describes itself as a rehabilitation centre and solicited donations on its website. PNWR provided no evidence that it separates its operations, or that it has seriously taken steps to avoid either the potential for a conflict of interest, or the appearance of a conflict of interest. [92] In summary, the Panel finds that the Regional Manager s application of the Ministry s conflict of interest policy was a reasonable application of that policy in PNWR s circumstances. The Panel also finds that the Regional Manager exercised his discretion reasonably when he considered that policy in refusing to issue the permits to PNWR. [93] PNWR submitted a number of judicial decisions to support its position. The Regional Manager s position is they do not apply to this appeal. The Panel has reviewed the decisions and considers them to be of general guidance. However, the Panel also finds that every case has to be considered on the basis of its own set of facts and the specific legislation and/or regulation applicable to those facts. [94] In this case, the Panel has considered all the evidence and finds that, in PNWR s circumstances, the Regional Manager exercised his discretion reasonably under section 19 of the Act and section 2 of the Permit Regulation, and the Panel agrees with the decision. DECISION [95] In making this decision, the Panel has carefully considered all of the evidence before it, whether or not specifically reiterated here. [96] For the above reasons, the Panel confirms the Regional Manager s decision. The appeal is dismissed. Gabriella Lang Gabriella Lang, Panel Chair Environmental Appeal Board February 25, 2011