Wildlife Law Q&A

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A frank discussion about the laws that govern hunters and anglers

Driving a back road en-route to one of my favourite hunting grounds, I saw a doe laying in the ditch a hundred metres ahead. Driving closer, it was obvious that something was wrong. Sensing danger, she struggled to get up. I could only guess that she was sick or perhaps had a broken back. As a conservationist hunter with a deep conscience, I knew I had to play by the rules; this meant placing a call to Fish and Wildlife authorities to advise them, and requesting permission to dispatch her. She was clearly suffering and would most likely face a gruesome fate if left alone. It was 4:35 pm and I was unable to reach anyone.

So, there I was, faced with a dilemma. My moral conscience told me that I should put her out of her misery, however, bound by the law, I would be viewed as a poacher if I did. As a member of the outdoors media and a professional outfitter, I simply could not take the risk. Backing off some distance, I watched her suffer for nearly 20 minutes. To make matters worse, a coyote broke from the trees only a stone’s throw away and began to close the distance. Her fate was inevitable.

I understand the realities of the natural world and I have seen predators kill prey species on many occasions, but from a very practical perspective, it only makes sense to take ethical measures if and when the opportunity allows. I couldn’t help but ask the obvious question: to what degree would it be acceptable to overstep the letter of the written law? Are there indeed degrees of acceptability? Surely, to at least some extent, any rationale mind would acknowledge such action as compassionate. Every day hunters and anglers, both during open and closed seasons, face dilemmas such as this. If we are honest, at some point in time most of us have made choices based on common sense and ethics, to either adhere to the letter of the law or ultimately blur the lines to make what we believe to be the right decision.

Without a doubt Fish and Wildlife authorities are put in a difficult position. Officers take an oath to uphold the law, but even they know that extenuating circumstances are pervasive. In turn, all of the facts must be considered when making judgment.

In the end, Fish and Wildlife officers are the sportsman’s ultimate check and balance. They are the front line folks who accept the often less-than-glorious task of protecting our fish and wildlife resources and keeping resource users in line. At times, however, many view their role as enforcement exclusively, negating the absolute necessity to develop and nurture a positive rapport with the public. No doubt it would be wrong to paint every officer with the same brush; there are certainly many professional officers out there, government employees who indeed recognize their right and responsibility to exercise discretion when dealing with the public. From a personal perspective, given my own professional and recreational involvement with hunting and fishing, whenever I meet an officer who I believe is truly exceptional when it comes to public relations, I work hard to develop a relationship with them because, like most of us, when it comes to interpretation of fish and game regulations, answers are not always cut and dried. In turn, I need to be able to phone or e-mail someone to get an official interpretation of the law and my own responsibilities.

Considering this, every hunting and fishing season an infinite number of questions are discussed among sportsmen; queries that relate to interpretation of regulations, each province’s or territory’s Wildlife Act and subjects not necessarily considered to be black and white.

In an effort to seek definitive answers, along with an official perspective on degrees of acceptability, I contacted Superintendent Miles Grove, of Alberta’s Fish and Wildlife Enforcement Branch. To be clear, his perspective should only be considered specifically representative of enforcement in that province and loosely representative of the same in other jurisdictions. Our conversation focused on a candid realization that not all regulations are clear and, more importantly, that interpretation of the law and discretion in enforcement of regulations is often in order.

I have known Superintendent Grove for over a decade and have come to recognize him as a rational and highly respected public servant, who has worked both in the field as an officer and in administration developing and implementing policy. Posing several difficult questions, the following represent his responses on behalf of the Fish and Wildlife Enforcement Branch. It is important to note that he maintains a deep appreciation for every officer’s need to exercise discretion when dealing with the public and the absolute value of maintaining a healthy rapport with sportsmen in the field.

It would be impossible to cover the limitless volume of scenarios and corresponding regulations in a short article, so I posed a series of representative scenarios, covering a mix of angling and hunting circumstances. I asked for both a legal and rational response. Ironically, Superintendent Grove indicated that, over his career, he has actually had to address each and every one of these scenarios in one form or another, so they are indeed representative. Some are easier to answer than others, but in the interest of transparency, I clarified that Western Sportsman readers are most interested in hearing an empathetic but legally definitive response.

 

Transporting migratory birds

Kevin: “My first question addresses a little-known federal migratory bird hunting regulation. Polling a number of my friends and associates, I learned that all but one were even aware that such a regulation exists. I’m referring to a rule stating that each and every migratory bird transported by another person, such as a guide or hunting partner, when the hunter is not present, must be tagged with the hunter’s name, license number, signature and date prior to leaving the field, or water as the case may be.

“The requirement is printed in the Alberta Hunting Guide, but is often overlooked. The most imposing implication of this federal regulation requires that wing shooters create their own tags for each and every bird taken. By in large, a majority of recreational hunters and professional outfitters do not comply with this regulation. So the question is: if a provincial or territorial Fish and Wildlife officer were to stop a hunter and determine that their harvested birds were not tagged, how would, or should, the officer handle this? In other words, to what extent, if at all, is non-compliance acceptable?”

 

Miles: “First of all, it is important to note that this is a federal requirement that applies to the transport and possession of birds when the hunter who harvested them is not immediately present. While non-compliance is not acceptable, I would like to believe that all of our officers would approach this situation reasonably; that is to say that before enacting any enforcement sanction, they would consider to what extent the hunter(s) have been educated on the regulation, what they can do to help prevent non-compliance in the future by making them aware of the rules and regulations and, most critically, to what extent enforcement is warranted – is a warning sufficient, or should a charge be laid.

“It is important for the public to understand that officers are required to look at the totality of the circumstance. For example, if other issues are evident or there is a history of non-compliance, the person could be charged based on non-compliance. If it is a first time offense, or if it is a relatively naïve scenario, in general terms, the individual may receive a warning.

“Again, I want to point out that this is a federal regulation; we, as provincial enforcement, are appointed and have an obligation to enforce it, but that can be done in a number of different ways. It comes down to discretionary decision-making based on circumstance. It is important to note that the province has its own parallel requirements for transport documents, such as a bill of lading.”

 

The death of an unlawful fish

Kevin: “Ok, what about this scenario: an angler is fishing on a remote northern fishery for lake trout. He is jigging at a depth of over 100 feet, in a location where, technically speaking, walleye should not be found. To the contrary, he catches walleye and several of them. The problem is that by the time he brings them to the surface, their swim bladders are all full of air and they will clearly die. The question is: should the angler keep the catch? And if he did, how would an officer handle this? In other words, would it, under any circumstance, be acceptable to keep and eat the walleye even though regulations dictate that the walleye fishery is closed on that water body?”

 

Miles: “Situations where fish are traumatized beyond recovery are common in many different situations. In short, whether the fishery is closed for walleye, or they have already caught their limit, the angler has an obligation to return it to the water. No matter how it is viewed, it must be returned. The issue with this one has to do with the potential for setting a dangerous precedent. Unfortunately, many anglers may be tempted to push the limits, creating a very difficult situation for enforcement officers to determine the validity of the decision. The bigger concern is the potential for putting management of the fish stock at risk if unwanted or illegal harvest occurs. A great parallel example would be if a similar situation occurred within a collapsed fishery for sensitive species like bull trout or sturgeon. So the definitive response is that the angler must return the damaged fish to the water if its possession is unlawful.”

 

Interrupting a lawful hunt in progress

Kevin: “This next scenario deals with overstepping the boundaries of special permits issued to recreational backcountry users in Wildland Parks.

“Across Canada, public lands have different designations and specific regulations delineating land-use guidelines within those special areas. One such designation in an area I hunt for sheep is a Wildland Park. Access to these areas is restricted to foot only, with the exception of grandfathered or special access permits sometimes made available to outfitters. I recently spent several days in a remote alpine basin, where I saw and photographed helicopters repeatedly dropping off and picking up hikers at several different sites. After researching this, it was determined that the heli-tour company did indeed have a special permit to land within the Wildland Park, but it was only for one specific site. They, along with the helicopter company, had taken extensive liberties, overstepping the boundaries of their permit, to land wherever they wanted to. Ultimately, this interfered with my hunt. The question is: how would an officer handle this scenario? Further, what are my rights as a recreational hunter when it comes to this type of imposition?”

 

Miles: “As far as Wildland Parks are concerned, Alberta’s Department of Tourism, Recreation and Parks manages these. The permit issue would most likely be addressed under provincial parks legislation. Management of permit issues is not the direct responsibility of the Fish and Wildlife Enforcement Branch, however, interference with a lawful hunt is. It is important to note that with any multi-use area, conflicts are inevitable. Interference with a lawful hunt is a problem that would be addressed under the Wildlife Act. The enforcement challenge requires evidence that there is intent to disrupt the hunt in progress. If it is only a perception of interference, or an act that is incidental to another activity, this is difficult to prove, so this becomes a more difficult one to enforce. The key from a hunter’s point of view is to gather and prepare as much evidence to support and express their concern to authorities. An investigation would take place and a decision made as to how best to handle the conflict, again considering the need for education, a warning, a letter or a charge.”

 

Ungulates jumping boundaries

Kevin: “Here is a common predicament in which many hunters find themselves: doing everything by the book, a hunter shoots a deer on property A and it runs on to property B and dies. The hunter doesn’t have permission to hunt on property B. He has tried contacting the landowners, but can’t reach them. It is getting dark, and the hunter knows that if he leaves the deer for more than an hour or two, it is likely that coyotes will get the deer.

“This question has two parts: first, what should that hunter do? Second, how would an officer handle this if the hunter made the ethical decision to retrieve the deer, despite not getting permission to do so? In other words, when, if ever, would it be acceptable for the hunter to say he or she has done everything within his or her power to get permission to retrieve the deer, but just can’t and so he or she decides to proceed anyway?”

 

Miles: “Again, this is a common occurrence. There is no exemption under the Petty Trespass Act or the Wildlife Act to allow a hunter to continue his or her hunt or retrieve game on land that they do not have access to; in other words, in Alberta, the hunter should not, under any circumstance, proceed without permission, unless they are accompanied by a Fish and Wildlife officer. If the hunter has taken all of the appropriate measures, such as seeking permission from the land holder, the best next step the hunter can take is to contact the Report a Poacher number. There will always be a live person at the other end. That individual has the ability to look at shift schedules and request an officer to connect with the hunter as soon as possible. After hours, Report a Poacher in Alberta, or perhaps the equivalent in other jurisdictions, is the hunter’s lifeline and direct connection to a Fish and Wildlife officer. A landowner who cares about wildlife will most often be accommodating, however, there are some who will not. In a situation like this, an officer will step in and assist. Alberta’s Wildlife Act states that officers have the right to access lands for this purpose, among others.”

 

Killing a predator in self defence

Kevin: “Considering the growing problem of increasing predator populations, I’d like to ask you about the killing of predators. In our province, for example, there is an indefinite moratorium on hunting grizzly bears, and yet every hunter and angler who spends any significant amount of time in the backcountry knows that grizzly numbers, not to mention wolf, cougar and coyote densities are increasing. In turn, we are seeing a correlation in the number of human-bear encounters and many of them are dangerous. The question is: if a hunter, or non-hunter, for that matter, killed a grizzly bear in what they perceived to be self defence, how would an officer handle this? In other words, under what circumstances, if any, would it be acceptable to kill a grizzly bear that is otherwise protected?”

 

Miles: “This does happen. Because there is no hunting season in Alberta for grizzly bears, each and every incident that is reported or detected is investigated. The officer would approach this with an open mind, consider circumstances, physical and statement evidence and most likely have the individual on site to explain and theoretically re-enact the event. The question we as Fish and Wildlife officers ask is what would a reasonable person do to protect themselves? In other words, did they have any other choice but to kill the grizzly? Were there any other options available? The bottom line is that if a person is to shoot in self defence, there must be perceived imminent danger. The key is reasonableness of the individual’s actions based on available options. If the situation is deemed to be unreasonable and the individual was not in immediate danger, in all probability they would be charged with the offense. If it is determined to be in self defence, then it is highly unlikely that any charge would be laid.”

 

Is there a degree of acceptability?

Kevin: “My last question really sums this all up. Based on your previous responses, it is obvious that not every situation is black and white, and sometimes common sense, and circumstance, play a bigger role in interpreting both the law and the right decisions. My final question is somewhat open ended, but important to acknowledge nonetheless – to what degree would it ever be acceptable to overstep the letter of the written law? Are there indeed degrees of acceptability? Further, and perhaps most importantly, how should an officer respond to extenuating circumstances where moral and ethical decisions have been made contrary to the letter of the written law?”

 

Miles: “There is some case law for due diligence and what is reasonable. The rationale is very similar to your last question regarding self defence. Each and every situation requires Fish and Wildlife officers to seriously consider what the options were and what choices were made by the hunter or angler. They are trained to carefully consider what was done to make the person rationally decide to disobey or perhaps inadvertently break the law. Clearly there are varied responses. Discretion and totality of each and every individual circumstance is considered. Officers have an obligation to uphold the law, but they are also required to exercise discretion at all times. In the end, careful consideration is given to whether or not the decision was reasonable.”

 

I raised these questions not so much for the ultimate answers, but to demonstrate that not all situations have an easy solution and, more importantly, to illustrate that there are sometimes degrees of acceptability when it comes to interpretation of the law.

In the end, the question still looms: to what degree, would it be acceptable to overstep the letter of the written law? Are there indeed degrees of acceptability? Based on the responses thoughtfully provided by one Fish and Wildlife authority, it would seem that extenuating circumstances in extreme situations may allow for it. The key is that if and when any hunter or angler takes it upon themselves to do so, they better have just cause and evidence to support a rational argument for doing so. Laws and regulations are in place for a reason; they protect our natural resources and they protect us, as users of the resources. As a rule, they are to be followed.

If any written laws or regulations are determined to be unclear, it is always wise to contact a Fish and Wildlife officer to seek clarification, but realize that these individuals are not legal authorities. Consulting with legal council may in fact be your best course of action.

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