Beasts

• Author: Lesli Bisgould
• Profession: Adjunct Professor, Faculty of Law
• Pages: 234-277

234

CHA PTER 8

BEA STS

The squirrel th at you kill in jest die s in earnest.

—Henry Dav id Thoreau

Despite the lengthy history of Canadian wildlife laws, there is very

little legal writi ng about them, and what has been w ritten has the same

emphasis as the law s themselves: that of resource conservation.1 In that

vein, it has been said th at Canadian wildlife laws have gone through

three stages of evolution.2

The f‌irst stage was the “game management era,” concerned largely

with the anim als people hunted and hunting controls. The second stage

was the “wildl ife management era,” characterized by ongoing ref‌ine-

ment of hunting controls using a combination of geographic areas, se a-

sons, and limits on the number of an imals that could be killed. Habitat

protection and management, artif‌ici al replenishing of animal s, and

captive breeding were introduced. The third a nd current stage is the

“sustainable wildlife management era,” which ref‌lects continuing chan-

ges to the values that Can adians attach to wi ldlife. International com-

mitments began to affect the content of domestic laws. Laws expanded

from a focus on hunted animals to amphibi ans, reptiles, and other ani-

1 For such a review of the h istory of federal and provinc ial wildlife laws i n Can-

ada and their r espective constitution al authorities, see John Donihe e, The Evolu-

tion of Wildlife Law in Canad a: CIRL Occasional Paper #9 (Calgary: Canadian

Institute of Re sources Law, May 2000) [Donihee].

2 Ibid. The three st ages are discussed at 13 –17.

Beasts 235

mals, as well as t he management of habitats and the environment more

generally, including, in some cases, addressing species at risk.

This chapter is not focused on conservation, a topic that falls with-

in the realm of environ mental law. In this chapter, the relevant laws are

considered from the perspective of ani mals, not as populations, but as

individuals who are af fected by the activities therein prescribed.3

Wild animal s living freely are not seen to have an owner, but at com-

mon law they were subject to the rule of capture, according to which

they could be reduced to the possession of a person who asserted con-

trol over them by capturing or kil ling them.4 Most jurisdictions have

overridden the common law presumption and as sumed property in-

terests in wild animals by expressly asserting th at wildlife ownership

vests in the Crown un less otherwise tran sferred in accordance with the

legislation. Provincia l and territorial government s generally have the

primary control over wildlife in Canada. Bec ause of provincial owner-

ship of Crown lands, most wildlife habitat is under provincial control.

Federal authority generally ari ses in respect of migratory birds, mar ine

mammals, and some issues relating to trade and endangered species.

As noted, all of these laws h ave traditionally regarded ani mals as

natural resources. Con sistent with that perspective, most of the rel-

evant legislation aims at protecting t he human interest in these re sour-

ces and in allocating it among competing human claims. It seeks to

enhance certai n animal resources and reduce others, so as to ensure

that the preferred resources continue to be available for human use.

This is what is meant by t he term “wildl ife management.” Modern wild-

life legislation also often includes a n administrative system which min-

imally controls the manner in which wild animals may be held captive,

hurt, and killed, whether for human susten ance, prof‌it, or amusement.

Wildlife management is a controversi al subject. The idea that people

can and should control natural populations has been much criticized,

3 For this reas on, this chapter will not gene rally address the imp ortant topic of

endangered sp ecies. Legal protection of wild life in the environment al context

is advocated by Ecoju stice (formerly the Sierra Legal De fence Fund), among

others, and its web site contains useful i nformation on the subject, onli ne: www.

ecojustice.ca. Nor doe s this chapter addres s f‌ish. This is not to imply that f‌ish

have no welfare i nterests worthy of considerat ion, or that their capacity for pa in

is in doubt. Rat her, the extens ive practice of f‌ishing, both recre ational and com-

mercial, is a va st subject unto itself.

4 See discu ssion in Chapter 3; also: Young v Hitchens (1844), 6 QB 606; and RM

Allison, “ Widlife Ownership in C anada” (1980) 28 Chitty’s LJ 47.

ANIM ALS AND THE LAW236

and yet the assumption that it is a reliable science underlies these legis-

lative schemes and serves as justif‌ication for killing many animals.5

Beyond being classif‌ied a s resources, animal s who are the subject

of this legislation are l abelled more specif‌ically in accordance w ith

their human purpose: “fur-bearers” are the many species of m ammals

who are killed to supply the fur industr y; hunted mammals and birds

are called “game,” and the total number of individuals who may b e

killed pursuant to a licence i s referred to as the “bag lim it.” Undesirable

animals are referred to as “pests,” “vermin,” and “nuisances.” Such ani-

mals are “destroyed” or “culled,” implying an objective necessity. As in

other areas of animal use, the language obscure s the individual animal

whose life is affected by the prescribed practices, and it is indicative of

the low moral status anim als had when the rules governi ng them were

codif‌ied.

5 Some wildlife m anagement efforts are dir ected at increasing wi ldlife popula-

tions, whether to en hance hunting or trapping opp ortunities, or becaus e a

population is ack nowledged to be at risk. Others a re directed at reducing

certain p opulations, whether to increa se hunting and trapping oppor tunities in

respect of other a nimals (such as reducing a wolf p opulation because they ki ll

too many of the ca ribou people want to kill), or for other reas ons, including

real or perceived t hreats to humans, oth er animals, or the envi ronment, or be-

cause they ar e seen to be a nuisance. Wildl ife management is driven by l argely

political object ives, meaning that it s goal is to manipulate a popul ation to the

level that some hum ans would prefer, as distinct from al lowing nature to self-

regulate. The ter m “overpopulation” ref‌lects a subjective, v alue-driven, human

preference.

Wildlife popu lations are affected by ma ny complex interacting factors, bot h

natural an d human-caused. When a sig nif‌icant percentage of a given w ildlife

population is remove d from a particular env ironment in which it has been s uc-

ceeding, th at reduces competition among sur vivors for existing res ources. Since

there is more food and she lter to go around, there is often an inc rease in fecund-

ity and subseq uent survival. This proce ss, sometimes called “compen satory

mortalit y,” explains why many atte mpts to reduce large populations of a nimals

not only fail, but are cou nter-productive. When there is compens atory mortal-

ity, healthier ani mals often produce more young, who in tur n survive better,

thereby induci ng a growth curve that c auses the population to exce ed what it

was before the ma nagement initiative was i mplemented. One way of avoiding

this res ult is to remove so many anima ls that the population is re duced too

much to replenish its elf over the next seasons , which can push a species to a

point at which its recove ry is endangered. A more moder n approach recognizes,

f‌irst, that s pecies become abundant bec ause of a suite of factors, including t heir

compatibilit y with anthropogenic envi ronmental changes as a f unction of their

overall adapt ability, and second, that effort s should be directed toward under-

standing t he role humans play in affect ing wildlife populat ions, and in trying to

control human beh aviour as well.