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98-WIL-24 Allan John V. Deputy Director of Wildlife

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98-WIL-24 Allan John V. Deputy Director of Wildlife Fourth Floor 747 Fort Street Victoria British Columbia Environmental Telephone: (250) 387-3464 Facsimile: (250) 356-9923 Appeal Board Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 APPEAL NO. 98-WIL-24 In the matter of an appeal under section 101.1 of the Wildlife Act, R.S.B.C. 1996, c. 488 BETWEEN: Allan John APPELLANT AND: Deputy Director of Wildlife RESPONDENT BEFORE: A Panel of the Environmental Appeal Board Christie Mayall, Chair DATE OF HEARING: October 19, 1998 Concluding in writing on November 16, 1998 PLACE OF HEARING: Prince George, B.C. APPEARING: For the Appellant: Bruce Kaun, Counsel For the Respondent: Joe McBride, Counsel APPEAL This is an appeal against the May 19, 1998, decision of the Deputy Director of Wildlife denying Allan John a permit to possess three east African Gaboon vipers (Bitis gabonica gabonica) and three west African Gaboon vipers (Bitis gabonica rhinoceros). The Environmental Appeal Board has the authority to hear this appeal under section 11 of the Environment Management Act and section 101.1 of the Wildlife Act. Mr. John seeks an order allowing him to possess Gaboon vipers. BACKGROUND Gaboon vipers are native to west and central Africa, western east Africa, southern Tanzania, parts of Zambia, northern Zimbabwe and northern Natal. They grow to approximately 2 metres in length, and are considered the largest vipers in the world by weight. Their colour and pattern is vivid and striking with many shades of purples, browns, creams, and other subtle colour combinations in a complex arrangement of geometric shapes, somewhat like an oriental carpet. Their fangs are about 5 centimetres long and their venom is fatal without sufficient quantities of the appropriate antivenin. Mr. John has been interested in snakes since he was about 7 or 8 years old and has possessed snakes since 1989. He currently possesses 18 snakes, the largest of which is about 12 feet in length and the most poisonous of which is about as toxic as a bee sting. The snakes are kept in cages in his living room and in a locked APPEAL NO. 98-WIL-24 Page 2 bedroom of the trailer in which he lives in Chetwynd, British Columbia. Mr. John makes educational presentations with live snake specimens to students from elementary schools, high schools and colleges in several towns in northeastern British Columbia. He also shows his snakes to the community at large during the “Family Fest” in the spring and during “Ghoulish Affair” in the fall. In the fall of 1996, Mr. John applied to Andy Ackerman, the Regional Manager for Fish and Wildlife in Fort St. John, for a permit to import and possess three east African Gaboon vipers and three west African Gaboon vipers. The reasons that Mr. John gave for wanting to acquire Gaboon vipers were to add to his educational presentation, to breed and sell to universities, and to eventually milk the snakes for venom that he could sell. The permit was refused on October 8, 1996. This decision was appealed to the Deputy Director. The Deputy Director stated that Gaboon vipers fall into the family “Viperidae - pit vipers” and are therefore prescribed as “wildlife” under the Designation and Exemption Regulation, B.C. Reg. 168/90. The Deputy Director found that the Ministry of Environment, Lands and Parks had “made a policy decision to not allow the private possession of venomous snakes except in extenuating or special circumstances.” He was “convinced that no special circumstances exist that should allow Mr. John to be given a possession permit in these circumstances.” RELEVANT LEGISLATION Section 33(1) of the Wildlife Act states: A person commits an offence if the person has live wildlife in his or her personal possession except as authorized under a licence or permit or as provided by regulation. Mr. John applied for a permit to import and possess the snakes under sections 19 (general permits) and 21 (import and export of wildlife) of the Act: 19 (1) 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 … 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. 21 (1) Except as authorized by a permit issued under this Act or under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, a person commits an offence if the person (a) imports into British Columbia live wildlife, or the egg of a wildlife species, APPEAL NO. 98-WIL-24 Page 3 The term “wildlife” is defined under section 1 of the Act as “raptors, threatened species, endangered species, game or other species of vertebrates prescribed as wildlife...”. There is no evidence that the snake at issue in this appeal is a raptor, threatened or endangered species or game. Therefore, if it is “wildlife” under the Act, it must fall under “other species of vertebrates prescribed as wildlife”. The Designation and Exemption Regulation of the Act states: 1. The vertebrates listed in Schedule A are prescribed as wildlife for the purposes of the definition of “wildlife” in section 1 of the Wildlife Act. Section 1(v) of Schedule A of the Designation and Exemption Regulation specifies that “all species of the family Viperidae - pit vipers” are prescribed as wildlife within the province of British Columbia. ISSUES The Panel has identified the issues in this appeal as follows: 1. Whether Gaboon vipers fall under section 1(v) of Schedule A of the Designation and Exemption Regulation and are therefore regulated as “wildlife” under the Wildlife Act. 2. If not, whether any other section of the Wildlife Act or of Ministry of Environment, Lands and Parks policy prohibits the possession of venomous snakes DISCUSSION AND ANALYSIS 1. Whether Gaboon vipers fall under section 1(v) of Schedule A of the Designation and Exemption Regulation and are therefore regulated as “wildlife” under the Wildlife Act. As noted above, section 1(v) of Schedule A of the Designation and Exemption Regulation states that “all species of the family Viperidae - pit vipers” are prescribed as wildlife within the province of British Columbia. This is the section used by the Deputy Director to determine that the Gaboon viper is “wildlife” under the Wildlife Act and therefore requires a permit to be imported and possessed. Originally, the Appellant accepted that the Gaboon viper fits within this designation. However, in the course of the hearing before the Board, a question arose as to whether this viper does, in fact, properly fall under this section. The question initially arose when it was noted that the terms “pit viper” and “Viperidae” are not synonymous in that Gaboon vipers are Viperidae, but are not pit vipers. Thus, did the legislature intend for snakes such as Gaboon vipers to be captured by this section? To determine the intent of the legislature, it is necessary to define the terms “Viperidae” and “pit viper” and also examine the context within which these terms are used. It was noted that the taxonomic system used in the regulation under the Alberta Wildlife Act subdivides Viperidae into three subfamilies, one of which is the APPEAL NO. 98-WIL-24 Page 4 subfamily Viperinae which includes genus Bitis (Gaboon vipers). This Regulation then distinguishes pit vipers as a separate family, Crotalidae. Alberta Legislation Family: Viperidae (vipers and adders) Subfamily: Viperinae Species: Bitis gabonica gabonica Bitis gabonica rhinoceros Family: Crotalidae (pit vipers) Under this system the terms “Viperidae” and “pit viper” (Crotalidae) are mutually exclusive. Because of the use of both “pit viper” and “Viperidae” in section 1(v), it could be argued that both families are meant to be captured by the section. However, another taxonomic system, described in “The Encyclopaedia of Snakes” by Chris Mattison, includes pit vipers as a subfamily within the Viperidae family. In this system, family Viperidae is subdivided into four subfamilies. The pit viper subfamily is Crotalinae. The Gaboon viper is included in the subfamily Viperinae (as above). Encyclopedia of Snakes Family: Viperidae (vipers, adders, and pit vipers) Subfamily: Viperinae Species: Bitis gabonica gabonica Bitis gabonica rhinoceros Subfamily: Crotalinae (pit vipers) If this system is used to interpret section 1(v), it is arguable that by referring to “Viperidae – pit viper” the legislature intended to limit what is captured by the broader family name (Viperidae), to only one of the subfamilies – pit vipers or Crotalinae. The Panel requested and received additional written submissions from the parties on this matter. From the submissions it appears that the following can be said: “Viperidae” is the scientific name for the family of snakes commonly known as vipers and adders. It includes three or four subfamilies, depending on which classification system is used. Gaboon vipers (Bitis sp.) are a member of the Viperinae subfamily. “Pit viper” is a common name, describing a type of viper that has heat-sensing pits on the side of the face. They are recognized either as a subfamily within the Viperidae family (Crotalinae) or as a separate family altogether (Crotalidae). Regardless of the taxonomic system used, there is no dispute that the Gaboon viper does not have a heat-sensing pit on the side of its face and is, therefore, not a member of this family or this subfamily.
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