Simon's Legal Resources

Wild Animal Law of Canada

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Wildlife Conservation Act (PEI)

(current to 15 May 2016)

Note Re Application of the Wildlife Conservation Act ('WCA')

PEI's Wildlife Conservation Act ('WCA') is the province's version of wildlife hunting and trapping statutes that all Canadian provinces have passed into law. It applies within PEI and to all wildlife, both indigenous and exotic. It also contains the province's species at risk legislation, although no species at risk have yet been designated by the province.

This law bears on the wildlife issues of:

• PROTECTION
  
• OWNERSHIP AND POSSESSION
  
• SALE
  
• ADMINISTRATION
  
• IMPORT, EXPORT AND RELOCATION
  
• HABITAT
  
• EUTHANASIA
  
• HUNTING, TRAPPING AND FISHING
  
• LIABILITY

The full current text of this legislation (including regulations) may be viewed at the Prince Edward Island statute website.

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Table of Contents
1. Overview
(a) Overview
(b) Ownership in Wildlife
(c) Liability
(d) Import, Export and Relocation of Wildlife
2. General Prohibitions
(a) Overview
(b)Specific Prohibitions and Protections
(c)Enforcement
3. Hunting, Trapping and Fishing
(a) Overview
(b) Fur-bearing Animals
. Overview
. Prohibited Traps, Snares and Practices
. Sale and Trade in Furs
(c) Hunting of Birds and Game Animals
(d) Fishing
(e) Prohibited Hunting and Trapping Activities
(f) Fishing and Shooting Preserves
(g) Government-Stocked Ponds
(h) Wildlife Management Areas
4. Species at Risk

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1. Overview

(a) Overview

For the purposes of the Wildlife Conservation Act ('WCA'), 'wildlife' means "wild life, wild mammals, birds, reptiles, amphibians, fish, invertebrates, plants, fungi, algae, bacteria and other wild organisms as prescribed by the regulations" [WCA 1(1)]. While the Act makes a definitional distinction between indigenous and 'exotic' (non-indigenous) wildlife, for all practical intents and purposes exotics may be considered as included within the definition of 'wildlife' and generally subject to the Act.

(b) Ownership in Wildlife

The WCA overrides codifies common law rules of ownership in wildlife by providing firstly that, subject to any terms in the WCA regime to the contrary, property in wildlife "while in a state of nature", resides with the Crown [WCA 2(1)]. It then further provides that ownership of any wildlife lawfully taken (eg. by hunting, trapping or fishing) and otherwise in compliance with the WCA regime is transferred to the taker (ie. hunter or trapper)[WCA 2(2)].

(c) Liability

No action or right of compensation lies against the provincial Crown "for death, personal injury or property damage caused by wildlife, or any wildlife that escapes or is released from captivity or is abandoned within the province" [WCA 2(3)].

(d) Import, Export and Relocation of Wildlife

Although I cannot locate where such activities are prohibited without a permit, the Minister may issue a permit to "import, export or engage in the interprovincial transportation of any wildlife" [WCA 10(1)(b)].


2. General Prohibitions

(a) Overview

Following are the general WCA prohibition provisions respecting wildlife.

While some of them may be regarded as protective, the most significant of them are exempted under the WCA's hunting, trapping and fishing permit and license regime (as set out in balance of this module). It is the nature of a licensing regime that it first outlaws an activity, and then allows it for the holder of a valid license or permit - the governmental goal being the assertion of control over the amount and manner of the activity. Here the regulated activity is overwhelmingly the taking and killing of wild animals. So do not read a general prohibition against hunting or otherwise harming an animal as being in any way an absolute protection for them. Complete bans, if and where they occur, will typically be asserted by proclaiming a year-round closed hunting season on the species.

(b)Specific Prohibitions and Protections

No person shall [WCA 19]:

• "take, hunt or kill any game or wildlife" except as the WCA regulations, the MBCA regime or the Fisheries Act may allow [WCA 19(1)];
  
  
• "take any egg or young of any fish, bird or fur-bearing animal";
  
  
• "sell any wildlife or part, derivative, or developmental stage of wildlife .... except fur-bearing animals and snowshoe hare taken under an authority conferred by this Act".

(c)Enforcement

For enforcement purposes conservation officers ('CAs'), and natural resource inspectors ('NRIs') may be appointed under the WCA [WCA 3.1(1)]. RCMP officers, game officers under the Migratory Birds Convention Act (MBCA), and fisheries officers under the federal Fisheries Act (for fishing purposes) are by those offices also conservation officers under the WCA [3.1(6)]. They all ultimately operate under the Minister of Communities, Land and Environment.

Natural resource inspectors ('NRAs') and CAs have the typical powers regarding entry and inspection [WCA 21], arrest (CAs only) [WCA 20(1)], seizure and detention of property [WCA 21.3] when enforcing the WCA.

Additionally, CAs may issue Orders to prevent and halt violations of the WCA regime, or to prevent and mitigate activities "detrimental to wildlife or to wildlife habitat". For these purposes, 'wildlife habitat' means "breeding, nursery, feeding and migration areas and includes areas that provide food, cover or water" for wildlife [WCA 1(1)]. Such Orders may require both the ceasing of the activities and the performance of positive steps to achieve the enforcement goals [WCA 20(4)].

Finally, the WCA also has a general offence provision for prosecution of any violation of the WCA regime [WCA 32].

Note as well that either NRIs or CAs may seize, and if necessary destroy, wildlife suspected of having diseases (destruction only if they do have a disease) or "any wildlife that has become incapacitated or is a nuisance or a menace to lives and property" [WCA 22].


3. Hunting, Trapping and Fishing

(a) Overview

As noted above, any licensing regime starts out first by outlawing the activities that it intends to then license (or otherwise permit). In the WCA the following activities are outlawed, but excepted under a license or permit specifically allowing the activities [WCA 10,11(1),12,14]:

• taking trout or salmon by angling or by any other means;
  
  
• hunting any game, game bird or migratory game bird; or
  
  
• trapping any fur-bearing animals.

For these purposes, 'hunting' means "any chasing, driving, flushing, attracting, pursuing, worrying, following after or on the trail of, searching for, trapping, attempting to trap, snaring or attempting to snare, shooting at, stalking or lying in wait for any wildlife whether or not the wildlife is then or subsequently captured, killed, taken or wounded", but it excludes "stalking, attracting, searching for or lying in wait for any wildlife by an unarmed person solely for the purpose of watching or taking pictures of it" [WCA 1(1)].

For these purposes, 'trapping' means taking or attempting to take an animal, whether dead or alive, by use of "a snare, spring trap, deadfall, box trap, net or any other device", and 'snare' means "any device for the taking of wildlife in which the wildlife is caught in a noose" [WCA 1(1)].

Hunting and trapping open seasons are set out in the Hunting and Trapping Seasons Regulations.

(b) Fur-bearing Animals

. Overview

Under the WCA, 'fur-bearing animals' include [Fur Harvesting Regs ('FH Regs') 1(2), Sched 1]:

• beaver;
  
• bobcat;
  
• coyote;
  
• eastern chipmunk;
  
• fisher;
  
• lynx;
  
• marten;
  
• mink;
  
• muskrat;
  
• northern flying squirrel;
  
• river otter;
  
• raccoon;
  
• red fox;
  
• red squirrel;
  
• striped skunk;
  
• weasel (ermine); and
  
• wolverine.

. Prohibited Traps, Snares and Practices

The following traps, snares and trapping practices are prohibited (there are others but these are the main ones) [FH Regs 7,8,9]:

• "a toothed trap, a deadfall or a hook";
  
  
• use of any trap other than the following, except with a Ministerial license or permit [these trap-types are defined in the FH Regs at s.1(1)]:
  • a box trap;
    
  • a body-gripping trap that is designed to kill quickly;
    
  • a submarine trap;
    
  • a non-powered snare;
    
  • a steel-jawed trap that has a jaw spread of less than 19 cm (7.5 inches); and
    
  • a foot-encapsulating trap.
  
  
• taking or attempting to take any beaver, mink, muskrat, skunk or weasel by any means other than trapping;
  
  
• "set(ting) a trapping device of any type without examining it at least once every 72 hours", except that traps designed to hold an animal alive must be examined daily, and snares for red fox and coyote every 48 hours;
  
  
• "set(ting) a snare within 200m (656 feet) of an occupied dwelling without the permission of the homeowner or occupier".

Special rules applicable to snaring snowshoe hares are set out in the Snowshoe Hare Snaring Regulations.

Technical specifications of snares, body-gripping traps and foot-hold traps that may be used are set out in the Fur Harvesting Regulations at ss.4-6 and Sched C.

. Sale and Trade in Furs

Possession of furs, pelts or hides of fur-bearing animals is illegal without a permit. So is selling, buying and otherwise dealing with such skins and furs without a Fur Dealers' License, except that the holder of a trapper's license may sell such to the holder of a Fur Dealer's License [FH Regs 10,11,12]. Fur Dealers must maintain detailed records [FH Regs 13].

(c) Hunting of Birds and Game Animals

The WCA makes next to no reference to hunting of birds and game animals, except the establishment of open seasons (linked above) for several species of birds (ruffed grouse, pheasant and hungarian partridge) and several species of mammals (snowshoe hare, fox, raccoon, coyote, red squirrel). This is no doubt due to the limited number of game species supported by the limited land mass of PEI.

PEI defers to the federal Migratory Birds Convention Act [see that federal module] for all activities relating to birds covered under that Act. As such it is federal MBCA licenses and permits which allow hunting, taking or the posession of migratory birds [WCA 9]. However, hunting of waterfowl (including all ducks and geese, is prohibited from the right-of-way of any highway [G Regs 1.1(5)].

Sending or shipping out of the province of any game bird or parts thereof is prohibited [G Regs 4].

(d) Fishing

Canada's constitution gives the federal government jurisdiction over both marine and inland fisheries, however provinces still have a limited role in regulating sport and commercial fishing in rivers, streams and fresh water lakes under the federal Fisheries Act Regulations.

The WCA regime supplements the federal regime by licensing to allow for angling of salmon, trout (arctic char, brook trout, brown trout and rainbow trout) and perch in inland waters [Angling Regs 1,2 ('A Regs')].

General prohibitions exist against [A Regs 4]:

• damaging or obstructing any fish-way or "any device used by fish to pass over or around any obstruction";
  
  
• doing anything to stop or hinder fish from entering or passing any fish-way or from surmounting any obstacle or leap;
  
  
• angling for or attempting to catch fish in any manner in any fish-way;
  
  
• catch or attempt to catch trout or salmon by means of chumming (baiting);
  
  
• "sell, possess or use fish eggs as bait for angling", or
  
  
• littering while angling.

These regulations do not apply to licensed private fishing preserves [A Regs 5].

(e) Prohibited Hunting and Trapping Activities

The following hunting and trapping activities are prohibited:

• "while engaged in hunting be in possession, or under the influence of, an intoxicant" [WCA 19(1)(c)];
  
  
• "hunt on Sunday", except that trapping fur-bearing animals in open trapping season is allowed on Sundays [WCA 19(2)];
  
  
• "exceed the bag limit or possession limit for a species of wildlife";
  
  
• "a registered guide shall not hunt while acting as a guide, but may kill wounded wildlife" [Hunting Guides Regs 7(3)];
  
  
• hunting game animals or birds one-half hour before sunrise, and one-half hour after sunset is prohibited, except under a firearms night-hunting permit for raccoons [G Regs, 1.1(1)(a),(2)];
  
  
• hunt game animals or birds with a rifle - other than snowshoe hare, raccoon, fox or coyote and the rifle may not be greater than .22 caliber (rim-fire only for snowshoe hare and raccoons, and no larger than rim-fire .22 or centre-fire .17 for fox) [G Regs 1.1(2,3,4,4.1)];
  
  
• hunting with a shotgun is allowed only where the shotgun magazine capacity is three shells or less (counting the chamber, and a hunter may not have with them more than one available shotgun when hunting game [G Regs 2(a,b)];
  
  
• to "cut, spear, break, destroy or otherwise interfere with the den or burrow of a red fox or coyote" or "any beaver house or dam, a mink den or a muskrat house or den" [FH Regs 9(1)(a,b)]. The Minister may issue a permit to remove or destroy a beaver dam [WCA 10(1)(e)].

(f) Fishing and Shooting Preserves

Cabinet may designate fishing preserves and shooting preserves [WCA 16(1)]. 'Fishing preserves' are "land on which, or part of which, fish have been reared or stocked, and 'shooting preserves' are "land on which, or part of which, game birds that have been raised in captivity are released for the purpose of hunting" [WCA 1(1)].

(g) Government-Stocked Ponds

Under the WCA, the province may release fish from government hatcheries and rearing ponds into ponds and watercourses for public angling, and it may restore or create such ponds for public angling [WCA 17].

(h) Wildlife Management Areas

Cabinet may designate 'wildlife management areas', which are areas "to be maintained for the protection, management and conservation of wildlife and wildlife habitat" [WCA 16(1)]. The Minister has authority to acquire and lease land, enter into agreements, prohibit alteration of wildlife habitat and designate areas for threatened and endangered wildlife or for "wetlands, marshes and rivers as of historical and biological value" [WCA 16(3)].

Designations of, and rules applicable to, PEI's several wildlife management areas are set out here: Wildlife Management Areas Regulations.


4. Species at Risk

Note: To date no species have been designated as at risk by the province of Prince Edward Island.

In part informed by Ministerial reports to be issued every ten years, the provincial Cabinet may designate (by Regulation) species within the province as either [WCA 1,6,7]:

• Endangered
  
  A species "threatened with imminent extinction". Note that this means extinction from existence everywhere, the term 'extirpation' - which means elimination from the province in it's wild state - is not used here.
  
  
• Threatened
  
  A species "likely to become endangered if the factors affecting its vulnerability are not reversed".
  
  
• Species of Special Concern
  
  A species "of special concern due to characteristics that make it particularly sensitive to human activities or natural events".

It is prohibited to, without a permit [which is available only "for scientific, educational or other purposes related to the conservation of that species" to [WCA 7(4),10(1)(d)]:

• "kill, injure, possess, disturb, take or interfere with or attempt to kill, injure, possess, disturb, take or interfere with an endangered or threatened species";
  
  
• "possess for sale, offer for sale, sell, buy, trade or barter any individual, or part, derivative, or developmental stage of any individual, belonging to an endangered, or threatened species"; or
  
  
• "destroy, disturb or interfere with or attempt to destroy, disturb or interfere with the wildlife habitat of any individual belonging to an endangered or threatened species".

Additionally, the Minister may acquire land for the protection of endangered and threatened species, and make agreements with private landlowners and conservation groups for the same purpose [WCA 8].