The Cull of the Wild: Suman v. Invermere (District)

Many wildlife species, including deer, are attracted to urban areas because of the bountiful food resources we humans make available to them. And while some of us enjoy the sight of a deer or two happily grazing in our back yard, there are concerns in many communities about conflicts between the growing urban deer population and human residents.

The province has recognized that where a growing urban deer population causes problems, management solutions are best developed at the local level. The Ministry of Environment’s British Columbia Urban Ungulate Conflict Analysis (UUCA), and the Summary Report for Municipalities that was released at the same time, stress the need for community based solutions that may include measures to modify both human and deer behaviour, as well as measures to actually reduce the deer population. The UUCA notes that failure to engage the public in the process at an early stage may have a negative impact on the public’s acceptance of the proposed solution.

Even where the public is engaged throughout the process, a management solution that involves a cull may be controversial. In the recent case of Suman v. Invermere (District), resolutions of the District’s council to seek the necessary provincial permits for a deer cull, and to award a contract to carry out the cull, were challenged in the Supreme Court of British Columbia on a number of grounds: a lack of legal authority to carry out the cull; a lack of procedural fairness; and that the District’s decision was unreasonable. On October 25, 2013, the British Columbia Supreme Court dismissed the petition.

In her reasons for judgment, Madam Justice Gropper noted that the District had taken a number of steps to study and address community complaints about a growing problem with aggressive and invasive deer. The District consulted with the Ministry of Environment, reviewed the UUCA, and established a Deer Committee (which it invited members of the public to join) to study the problem and make recommendations. On the recommendation of the Ministry of Environment, the District surveyed the community about various options for managing the urban deer problem, and adopted a bylaw to prohibit the feeding of deer. The Deer Committee conducted a deer count, studied the UUCA, and received information and advice from a number of sources. The Deer Committee’s final report recommended a number of management options, including trapping, culling and relocation of deer.  In October 2011, Council endorsed the Deer Committee’s report. The District then applied for and obtained a permit under the Wildlife Act to carry out a limited trapping, relocation and culling program, an awarded a contract to carry out the cull.

The Court rejected the petitioner’s argument that the District had unlawfully exercised its statutory powers to adopt bylaws to regulate, prohibit and impose requirements in relation to wildlife, without first obtaining Provincial approval. Section 8(3)(k) of the Community Charter provides municipalities with bylaw making authority in relation to animals – however, under section 9 of the Community Charter, those powers may only be exercised in relation to wildlife with Provincial approval. In fact, as the Court noted, the Council resolutions did not attempt to regulate the culling of deer, but only authorized staff to apply for a Provincial permit, and to award a contract to undertake the cull. The Province retained the exclusive authority to issue a cull permit.

The allegation of a lack of procedural fairness was based on the assertion of the petitioners that the meetings of the Deer Committee were improperly closed to the public, but the Court found that those meetings were in fact open to the public.

Finally, having considered the process undertaken by the District in responding to community complaints about urban deer including its consultation with the Province, the adoption of the no feeding bylaw, the establishment of the Deer Committee and, ultimately, Council’s consideration and acceptance of that Committee’s recommendations, the Court rejected the argument that Council acted unreasonably.

This decision provides welcome assurance that where an urban deer problem exists, and provided local governments consult with the Ministry of Environment, follow Ministry recommendations, and obtain the necessary permits under the Wildlife Act, the courts will not lightly interfere with a local decision to proceed with a program to manage and even reduce the urban deer population.

A version of this article appears in the December 2013 issue of the Local Government Management Association’s Exchange Magazine