In the matter of an appeal under s.103 of the Wildlife Act, R.S.B.C., 1979, c.57
| BETWEEN: | Joe Turner | APPELLANT | |
| AND: | Assistant Deputy Director of Wildlife | RESPONDENT | |
| BEFORE: | David Perry | Chair |
| DATE OF HEARING: | February 9, 1995 | |
| PLACE OF HEARING: | Victoria, BC |
| APPEARING: | For Appellant | |
| Spokesperson: | Joe Turner | |
| For Respondent | ||
| Spokesperson: | Geoff Swannell |
This is an appeal brought by Mr. Joe Turner against a decision
of Mr. Christopher Dodd, Assistant Deputy Director, made on October
1, 1993. Mr. Dodd denied the appeal of Mr. Turner from the March
29, 1993, decision of Mr. Michael Whately, a Regional Manager
employed by the Wildlife Branch.
Both the decisions of Mr. Whately and Mr. Dodd denied the application
of Mr. Turner to possess bear gall parts. In this appeal Mr.
Turner seeks an order from this Board permitting him to possess
bear galls from black bears killed in British Columbia.
BACKGROUND
Possession of bear gall bladders is prohibited by s.2.08 of the
Wildlife Act Commercial Activities Regulation (BC Reg.
338/82). The Regulation reads:
"(1) A person commits an offence who possesses, traffics in or imports
(a) bear gall bladders, or
(b) bear genitalia separate from the carcass or the hide."
In a fact sheet dated August 1991, the Ministry of Environment,
Lands and Parks indicated that they were regulating the bear part
market in response to concerns about illegal harvest of black
bears. Certain bear parts are used in a traditional Oriental
medicine and the Ministry of Environment, Lands and Parks expressed
concern that demand for these parts was creating an underground
market for black bears.
Subsequent to creation of a limited market for bear parts, the
Ministry of Environment, Lands and Parks determined early in 1993
that this was insufficient to protect black bears. In an undated
fact sheet from the Ministry of Environment, Lands and Parks concerning
the ban on bear parts trade, the Ministry of Environment, Lands
and Parks states that "growing demand for bear parts used
in traditional Asian medicine, and its potential effect on bear
populations, have been of concern to the government for some time.
In May, 1990, the Wildlife Branch enacted regulations to track
the movement of bear parts from source to retailer or exporter.
The regulations made it illegal to kill bears only for their
parts. Since then, the Branch has determined that such illegal
kills are on the rise."
In addition to s.2.08 of the regulations referred to above, s.34
of the Wildlife Act provides that:
"(2) a person commits an offence where he has dead wildlife
or a part of it in his possession except under a license or
permit or as provided by regulation"
PERMIT APPLICATION BY MR. TURNER
On March 2, 1993, Mr. Turner wrote to Mr. Whately requesting a
permit to possess bear gall bladders. Mr. Whately has authority
under section 1 of the Wildlife Act Permit Regulations,
BC Reg. 337/82 to issue permits for possession of wildlife. The
section reads:
"A regional manager, by issuing a permit with whatever conditions, limits and period or periods he may include in or attach to the permit, may authorize:
(l) a person to possess dead wildlife or parts of them; or
(s) the exemption of a person or persons from the application
of a provision of the Act or regulations."
Mr. Turner gave as a reason for wanting to possess the bear gall
bladders his professional interest in Chinese traditional medicine
and his need to use the bear gall bladders in his practice.
Mr. Whately declined in a letter dated March 29, 1993, to provide
a permit to Mr. Turner. In that letter he states that the purpose
of s.2.08 of BC Reg. 338/82 referred to above was to prohibit
the traffic in bear gall bladders. Mr. Whately stated that, "in
other words, it would be seen that bears would die solely for
the purposes of obtaining gall bladders" should he issue
a permit for possession of them.
In an appeal to the Assistant Deputy Director, Mr. Christopher
Dodd, Mr. Turner attempted to have the decision of Mr. Whately
overturned. The appeal to Mr. Dodd was heard in writing with
the agreement of both Mr. Turner and Mr. Whately. In a decision
dated October 1, 1993, Mr. Dodd upheld the decision of Mr. Whately.
He indicated his main reason for refusing the permit was "it
is also clear that the intent of the legislation is to prohibit
the possession and trafficking in bear gall bladders and genitalia,
in order to protect the bears from wanton destruction for their
valuable parts." Mr. Dodd went on to note that Mr. Whately
had indicated his willingness to supply bears that came into possession
of the Wildlife Branch to Mr. Turner should he provide documentary
evidence that use of bear gall bladders was a medically accepted
treatment.
MR. TURNER'S POSITION AT APPEAL
An appeal was commenced before Ms. Linda Michaluk, the former
Chair of the Environmental Appeal Board on January 27, 1994.
Ms. Michaluk adjourned that hearing to request further documentation
from Mr. Turner which was subsequently supplied. The hearing
was recommenced on April 13, 1994, but again adjourned. At that
time, the Chair requested in a letter of April 25, 1994, that
Mr. Turner supply a certificate from his educational facility,
documentary evidence that a research proposal into the ethicacy
of bear gall bladders had been accepted by a research institution
or university and finally a letter from the Ministry of Health
indicating their position on Oriental medicine.
Mr. Turner subsequently supplied certification of his educational
institution but did not supply any material from the Ministry
of Health nor from an approved educational institution that would
accept his research proposal.
The hearing on February 9, 1995, was agreed to be a new hearing
as Ms. Michaluk could not complete the appeal. However all exhibits
entered at the earlier hearings were re-entered at this appeal
and were considered by me in rendering the following decision.
At the appeal, Mr. Turner gave uncontraverted evidence that he
is a graduate from the Canadian College for Chinese Studies.
He completed a program in traditional Chinese medicine provided
by that institution on May 6, 1988. Mr. Turner also provided
information that the Chinese College was registered under the
Private Post Secondary Education Commission of British Columbia.
Mr. Turner gave further uncontraverted evidence that bear gall
bladders are an important ingredient for certain traditional Oriental
remedies. He indicated that he knew of some 37 different remedies
available in Victoria's Chinatown today which contained bear gall
bladder derivatives. The descriptive label for one such product
was produced at the hearing. The product is entitled Fel Ursi
Hemorrhoids Ointment and contains 2.7% bear gall. The ointment
is produced by a company in Harikow, China for the external treatment
of this affliction.
Mr. Turner expressed concern that not only would he be in violation
of the provisions of the Wildlife Act should he possess
bear gall bladders, but that he could also be prosecuted under
the regulations should he be in possession of ointments that contain
bear gall bladder. This was confirmed in cross-examination of
Mr. Whately at the hearing who agreed that the presence of bear
gall bladder as an ingredient in medicine would be a contravention
of s.2.08 referred to above.
Mr. Turner stated that he had no specific research program in
mind. He primarily wished to possess gall bladders from bears
to use for treatment of his patients. The source of the gall
bladders would be bears that had been legally hunted by Mr. Turner
or his acquaintances. Mr. Turner was quite forthright in saying
that he had no documentary evidence indicating that use of bear
gall bladders was accepted in western medicine. He stated that
the BC College of Physicians and Surgeons would not accept traditional
Oriental remedies because they were opposed to non-traditional
remedies.
Finally, Mr. Turner indicated that a synthetic product known as
Ursofalk was available that contained the same active ingredient
as bear gall bladders. However, in Mr. Turner's clinical experience
this product was unsatisfactory when compared to natural bear
gall bladder derivatives.
POSITION OF THE RESPONDENT
Mr. Whately and Mr. Geoffrey Swannell both testified at the hearing.
Mr. Swannell is the Appeals Officer for the Wildlife Branch.
They indicated that in order to provide a permit to possess a
bear gall bladder in the face of regulation prohibiting its trafficking
or other possession in British Columbia, they would require documentary
evidence of acceptance of the treatment by western medicine.
In the alternative they would accept documentary evidence that
Mr. Turner had the support of a research institute or educational
facility for research into the use of bear gall bladders.
The Respondents referred to the procedure manual of the Wildlife
Branch. The manual states in volume 4 s.7(12.04) with respect
to disposal and storage of dead wildlife and parts that Wildlife
Officers can dispose of dead wildlife according to their own discretion.
The priorities for disposal of parts of wildlife other than meat
include "bonafide scientific or medical uses".
The Respondent's witnesses interpret this policy requirement as
requiring that they have some documentary proof of the use of
the wildlife part from western sources.
DECISION
This Board is governed by the decision of the Supreme Court of
British Columbia in Olson v. Walker (1989) S.C.B.C. Duncan
Registry No. 2286 and s.103(5) of the Wildlife Act which
states:
"In an appeal, the Environmental Appeal Board may
(a) dismiss the appeal, or
(b) send the matter back to the regional manager or director
with directions"
In Olson v. Walker the Court has determined that the limit
of the Environmental Appeal Board's authority is to determine
"whether the director properly exercised his discretion,
that is to say 'bonafide uninfluenced by irrelevant considerations
and not arbitrarily or illegally'".
The Board heard evidence that s.2.08 of the regulations as referred
to above was passed specifically for the purpose of prohibiting
any trafficking in bear gall parts. Mr. Turner in his application
is seeking to do exactly that. He wishes to traffic in bear gall
parts. His reasons for doing so are based on a system of medicine
that has not achieved acceptance in Canada. In addition, there
are good policy reasons for prohibiting the possession of bear
parts as there is a great danger that bears would be killed specifically
for the purpose of obtaining their gall bladders or other parts.
In the face of regulation from the government specifically prohibiting
the possession of bear gall parts, this Board is unable to say
that the decision of Mr. Dodd was made arbitrarily or illegally.
In fact this Board fully endorses the reasons given by Mr. Dodd
for refusing issuance of the permit.
Without endorsement from medical and scientific authorities in
Canada, the officers of the Wildlife Branch should not issue permits
that overturn the regulatory regime established by the government.
Accordingly, the appeal is dismissed.
RECOMMENDATIONS
Mr. Turner in his evidence indicated that there are a large number
of ointments and other medicines available in Victoria today which
contain bear gall bladder derivatives. The presence of such medical
items appears to be a clear breach of s.2.08 of the Wildlife
Act Commercial Activities Regulation. The Board therefore
recommends that in the course of enforcing the regulations, the
officers of the Wildlife Branch should not only consider the traffic
in bear gall parts but also the additional traffic in derivatives
from those parts which appears to be taking place on a commercial
basis in Victoria's Chinatown.
David Perry, Chair
Environmental Appeal Board
July 13, 1995
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