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Simon Shields,
LLB

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Wild Animal Law of Canada

---------------------------------

Fish and Wildlife Act (NB)

(current to 01 June 2016)
Note Re Application of the Fish and Wildlife Act ('FWA')

The FWA is New Brunswick's version of the hunting, fishing and trapping statutes common to all Canadian provinces.

Note that fish are not included within the term "wildlife" (they are treated separately in the Act as 'fish') as used in the FWA. However the term does both include wild-bred and captive-bred/reared vertebrate animals and birds, and 'exotic' (non-indigenous) species of mammals, reptiles, amphibians and birds if they have been introduced into the wild [FWA 1]. Due to the inclusion of captive-bred animals and birds, the FWA has broader application to domestics than most similar provincial statutes (this legal guide classifies farmed wildlife as domestic animals).

This law bears on the wildlife issues of:
  • HUNTING, TRAPPING, FISHING
  • PROTECTION
  • OWNERSHIP / POSSESSION
  • SALE
  • IMPORT / EXPORT
  • EXTERMINATION
  • ADMINISTRATIVE
  • EUTHANASIA
  • NUISANCE
The full current text of this legislation (including regulations) may be viewed at the New Brunswick statute website.

_________________________
Table of Contents
1. Overview
2. Import/Export/Relocation
3. Sale
4. Hunting, Trapping and Fishing
(a) Overview
(b) Specific Hunting, Trapping and Fishing Prohibitions
(c) Firearms Prohibitions
5. Ownership and Possession
6. Protections
(a) Overview
(b) General Protections
7. Nuisance Control and Extermination
(a) Property Owners
(b) Conservation Officers
(c) Nuisance Wildlife Control Enterprises
8. Enforcement
______________________________________


1. Overview

As noted above, New Brunswick's Fish and Wildlife Act ('FWA') is typical of other hunting regulation statutes throughout Canada, notable only perhaps for it's detail and relative complexity.

Important but unusual terminology used in the FWA includes the terms [FWA 1]:
  • “resort of wildlife” means any waters or lands, including highways or roads, that are frequented by wildlife;

  • "wildlife", which excludes fish but includes non-indigenous and 'farmed' wildlife, the latter of which I treat as domestics.

2. Import/Export/Relocation

The following wildlife import, export and relocation activities are prohibited, except where done under appropriate Minister-issued permit [issued under FWA 90-91]:
  • importing exotic wildlife [FWA 38.1(1)(a)];

    Species of exotic wildlife listed in the Exotic Wildlife Regulation are exempt from the importation permit requirement [FWA 38.1(2)].

  • relocating (releasing) exotic wildlife from captivity [FWA 38.1(1)(d)];

  • relocating (releasing) any wildlife from captivity [FWA 38(2)];

  • exporting or live wildlife (permits available for scientific or educational purposes) [FWA 44(1), 91];

  • transporting live wildlife out of the province by common carrier [FWA 44(3)].

3. Sale

The following wildlife sales-related activities are prohibited, except where done under appropriate Minister-issued permit:
  • it is generally prohibited to "offer or expose for sale, trade or barter, or purchase or offer to purchase" wildlife, fish or any part thereof, with the following exceptions [FWA 51, 87-89]:

    • licensed game bird farms (game birds are "any wild gallinaceous bird or a migratory game bird as defined in the Migratory Birds Convention Act" (see that federal module); 'gallinaceous birds' "includes all species of grouse, partridge, pheasant, quail, ptarmigan, wild turkey and the eggs of all such species": FWA 1(1)]);

    • taxidermy;

    • pelts (of fur-bearing animals: "fox, beaver, mink, otter, fisher, marten, muskrat, skunk, raccoon, weasel, bobcat, lynx, coyote, squirrel and varying hare" [FWA 1(1)] and hides (of bear, deer and moose) taken under license may be sold to properly-licensed hide and pelt dealers.

  • preparation, service and sale of wildlife and fish as meals by hospitality facilities is generally prohibited, except where the wildlife or fish is legally taken by a registered guest of the hospitality facility [FWA 52-55];

  • keeping in captivity of gallinaceous birds ["includes all species of grouse, partridge, pheasant, quail, ptarmigan, wild turkey and the eggs of all such species": FWA 1(1)] "for the purpose of sale, barter, exchange, preservation, consumption or propagation" (excepting ruffed grouse and spruce grouse) [FWA 37(1), 88];

  • the selling, trading, bartering, purchasing or offering same with respect to any hunting, trapping, snaring and angling rights over lands or water that a person may have [FWA 3(2)].

4. Hunting, Trapping and Fishing

(a) Overview

For the purposes of the FWA, 'hunting' "means taking, wounding, killing, chasing, pursuing, capturing, following after or on the trail of, searching for, shooting at, stalking or lying in wait for any wildlife, whether or not the wildlife is subsequently captured, wounded or killed". 'Taking' "when used in relation to fish or wildlife includes the capturing or the taking into possession of fish or wildlife whether dead or alive". 'Trap' (and related terms) "means any spring trap, gin, deadfall, box or net used to capture wildlife" [FWA 1(1)].

It is the nature of any licensing and permit-type regulatory regime that it first prohibits the targetted activity, and then excepts the prohibition for the holder of a valid license or permit. To that end, the FWA prohibits the following activities, subject to appropriate authorization (ie license or permit) [FWA 83]:
  • hunting wildlife generally [FWA 34(2)(a,b)];

    Full details of hunting licensing, tagging, bag limits, open seasons and other hunting issues are located in the Hunting Regulations.

  • hunting moose, deer, bear [FWA 32(1)(b)];

  • trapping or snaring wildlife [FWA 34(3)];

    Full details of trapping licensing, legal traps, tagging, hunting fur-bearing animals with hounds and other trapping issues are located in the Fur Harvesting Regulations.

  • angling [34(2)(c)]
(b) Specific Hunting, Trapping and Fishing Prohibitions

The following specific activities are prohibited even where the person holds a license or permit for the activity generally:
  • hunting, trapping and snaring of wildlife in a wildlife refuge or a park, without specific refuge or park authorization [re provincial parks see the Parks Act module] [FWA 45];

    For these purposes, 'park' means "any public or privately owned area that is set aside for recreational use by the public, whether for a fee or gratuitously given, and includes any campground, trailer or vehicle parking area, beach, bathing or picnic area" [FWA 1(1), 39(b)] (which includes parks governed under the Parks Act).

    Full details respecting wildlife refuges and wildlife management areas are are located in the Wildlife Refuge and Wildlife Management Areas Regulations.

  • hunting on Sundays, with minor exceptions (eg. for private landowners hunting on their own land) [FWA 39.1(1,2)];

  • private landowners or occupants of cultivated land may prohibit shooting, hunting, trapping or snaring on that land by posting notice to that effect. Similarly a private landowner may post notices allowed the activities but only with he consent of the owner. However entry may be made regardless of prohibiting notices for the "purpose of pursuing and taking wounded wildlife". In the absence of such postings the owner or occupant shall be deemed to consent to entry for purposes of such activities [FWA 80(1-3,9-10)];

  • herding wildlife by means of a vehicle [FWA 43(1)];

  • use of an aircraft in active hunting [FWA 43(1)];

  • the use ('running at large') of dogs in hunting except to hunt game birds in open season, and nuisance bears under specific permit [FWA 48];

    Where a dog is found running at large in a resort of wildlife the dog may be killed on sight by a conservation officer [FWA 49] (presumably this is excepted for legal use of dogs but I have not located that exception).
(c) Firearms Prohibitions

Additionally, there are general firearms prohibitions against [FWA 40-42.1]:
  • possessing a loaded firearm or discharging one in "any wildlife refuge, dump or park" unless hunting, trapping and snaring are otherwise allowed by law in those areas;

  • possessing a firearm in any area where wildlife occurs (which the FWA calls a 'resort') during open season, without a license which authorizes firearm use, other than on private land;

  • possessing a firearm in any area where wildlife occurs (which the FWA calls a 'resort') during closed season for hunting; miscellaneous exceptions for private land, transportation at night, shooting clubs, etc;

  • use of a silencer [FWA 43(1)];

  • use of an automatic forearm [FWA 43(1)];

  • discharging firearms within 400m of dwelling places, schools etc [FWA 46].

5. Ownership and Possession

In a slight modification of the common law regarding ownership of wildlife, property in wildlife and fish "while in the state of nature" vests in Crown "and no person shall acquire any right or property therein otherwise than in accordance with this Act and the regulations" [FWA 3(1)].

The following live wildlife possession-related activities are prohibited, except where done under appropriate Minister-issued permit [FWA 90-90.1]:
  • taking or keeping wildlife into captivity (necessarily this means live wildlife) [FWA 38(1)];

  • keeps exotic wildlife in captivity [FWA 38.1(1)(b)];

    Species of exotic wildlife listed in the Exotic Wildlife Regulation are exempt from the 'keeping in captivity' permit requirement [FWA 38.1(2)].

  • keeps gallinaceous birds ("includes all species of grouse, partridge, pheasant, quail, ptarmigan, wild turkey and the eggs of all such species") in captivity "for the purpose of sale, barter, exchange, preservation, consumption or propagation" [FWA 37(1)].

6. Protections

(a) Overview

Some of these rules can equally be characterized as restrictions on hunting and trapping activities, but I have located them here as they seem more protection-focussed.

(b) General Protections

The following prohibitions and protective provisions are located in the FWA:
  • hunting moose, deer, bear with trap or snare is prohibited [FWA 32(1)(c)];

  • killing or attempting to kill wildlife or fish by means of poison is prohibited, exception for legal use under the Pesticides Control Act (see that module) [FWA 32(1)(e)];

  • hunting at night, and jacklighting (use of lights to attract wildlife for hunting) is prohibited [FWA 33(1)(a,b)];

  • hunting bear, moose, deer or fur-bearing animals with dogs is prohibited [FWA 33(1)(c)], permit exception for fur-bearing animals [FWA 33(2)(a)];

  • no trapping or snaring in closed beaver season within 30 metres of pond, house or dam "that is at that time being constructed, maintained or occupied by a beaver", subject to license or authorization exception [FWA 36];

  • disturbing, injuring, gathering or taking the nest or eggs of any bird except as otherwise authorized by the Minister [FWA 37(2)];

  • private landowners or occupants of cultivated land may prohibit shooting, hunting, trapping or snaring on that land by posting notice to that effect. Similarly a private landowner may post notices allowed the activities but only with he consent of the owner. However entry may be made regardless of prohibiting notices for the "purpose of pursuing and taking wounded wildlife". In the absence of such postings the owner or occupant shall be deemed to consent to entry for purposes of such activities [FWA 80(1-3,9-10)]; and

  • a conservation officer may seize and destroy wildlife "that has become incapacitated" [FWA 27].

7. Nuisance Control and Extermination

(a) Property Owners

Nuisance animals are those that cause damage to private property, or injury to owners of private land. Effected property owners may hunt (though not at night), trap, snare, remove and relocate such animals on their land throughout the year where it is necessary to prevent that harm. Where such activities involve migratory birds or airport lands, similar federal permits are also required. For purposes of the FWA these are the potential nuisance species [FWA 34(4-7)]:
  • American crow,
  • beaver,
  • black rat,
  • brown-headed cowbird,
  • common grackle,
  • deer mouse,
  • double-crested cormorant,
  • eastern chipmunk,
  • eastern coyote,
  • eastern flying squirrel,
  • European starling,
  • grey squirrel,
  • groundhog,
  • house mouse,
  • house sparrow,
  • long-tailed weasel,
  • meadow jumping mouse,
  • meadow vole,
  • mink,
  • muskrat,
  • northern flying squirrel,
  • Norway rat,
  • porcupine,
  • raccoon,
  • red fox,
  • red squirrel,
  • red-backed vole,
  • red-winged blackbird,
  • rock dove,
  • rock vole,
  • short-tailed weasel,
  • star-nosed mole,
  • striped skunk,
  • varying hare
  • woodland-jumping mouse.
(b) Conservation Officers

A conservation officer may also seize and destroy wildlife "that ... is a nuisance or a menace to lives and property" [FWA 27].

The use ('running at large') of dogs is prohibited in hunting except to hunt game birds in open season, and for nuisance bears under specific permit [FWA 48]. Where a dog is found running at large in a resort of wildlife the dog may be killed on sight by a conservation officer [FWA 49] (presumably this is excepted for legal use of dogs but I have not located that exception).

(c) Nuisance Wildlife Control Enterprises

A 'nuisance wildlife control enterprise' is a business which "hunts, traps, snares, removes or relocates nuisance wildlife" [Nuisance Wildlife Control Regulation ('NWC Reg') 1]. Operators of such businesses are required to have an an FWA-issued license [NWC Reg 3], and must maintain detailed records regarding each animal captured [NWC Reg 11].

Species of nuisance wildlife are listed in (a) above.


8. Enforcement

The FWA partakes of standard regulatory enforcement mechanisms and strategies, including Ministerial appointment of conservation officers (RCMP and regular police are ex officio appointees) [FWA 7], with standard peace officer powers as well as those of searching (with and without warrants), and seizure of vehicles in the course of lawful searches, inspection of firearms and ammunition in wildlife areas [FWA 11, 11.1, 21.2, 24].

In addition, hunting guides, which are mandatory for all non-resident hunters, have legal duties to both prevent the commission of offences by their clients, and report them when they occur [FWA 16,17].

Finally, the FWA contains extensive and detailed offence and prosecution provisions, including license cancellations on conviction [FWA 93-112].
Law Society Number #37308N / Website © Simon Shields 2005-2018