Captive Wildlife – “Hunting” or “Harvesting”?

AgriLaw: May 2009

The Fish and Wildlife Conservation Act (FWCA) prohibits hunting of farmed animals, including such animals as deer and elk kept in captivity “for the purpose of commercial propagation or the commercial production of meat, hides, pelts, antler products or other products”.  The FWCA defines hunting to include “lying in wait for, searching for, being on the trail of, pursuing, chasing or shooting at wildlife, whether or not the wildlife is killed, injured, captured or harassed”.  Is the sale of such animals for individual “harvesting” by purchasers within a “harvesting preserve” an illegal activity prohibited by the provisions of the FWCA?

In a recent decision of the Ontario Superior Court, the Court considered a claim against the province brought by the owner of an elk farm for financial loss suffered as a result of the position of the Ministry of Natural Resources that such conduct was illegal and subsequent prosecutions against the farmer.  The plaintiff farm operation raised animals, including elk and red deer, on a main farm of 160 acres divided into paddocks.  Fifteen kilometres distant from the main farm was a bush area of 140 acres, 40 acres of which was fenced and identified as a “harvesting preserve”. Contracting customers did not take the meat from slaughtered animals.  The farmer distinguished this activity from “hunting” on the following basis:

“(The farmer) asserts that all the customers, by contract, purchase a particular animal.  Title to that animal is confirmed.  Only then does the activity occur when the animal is released into the 40 acre harvest fenced preserve and the customer is permitted to dispose of his own animal at that location … (the farmer) emphasizes two facts to distinguish the activity from “hunting”.  The first fact is that the animal at the time it was killed by the customer was a specific animal belonging to the customer.  Secondly, (the farmer) emphasized that the customer had to be told that it was not a hunt but a harvest.”

Earlier prosecutions by the MNR had been dismissed on the basis that the activity in question was “harvesting” for which the Act contains no definition.  However, in considering the plaintiff’s claim, the Court determined that:

“I find that the possibility that the activity may constitute “harvesting” does not prevent it from also falling within the definition of “hunting”.  “Harvesting” is not defined in the FWCA nor before me.

Before the plaintiff was alerted to the MNR objection, this preserve was called a “hunt park”.  Before being alerted that the activity fell within (the prohibitions of the FWCA), the advertised activity was “the complete hunting experience”.  The target customers are hunters from locations including distant states of the United States of America.  Once the animal is purchased, it is placed in a fenced area of some 40 acres.  Customers have to look for the animal.  A dog is available to drive the animals to the customer.  The animal is free to roam and the customer has to wait for a clear shot.  This demonstrates the fact that the activity requires the customer lie in wait for, search for or otherwise pursue or chase the animal so that a clear shot is available …

I find that the contracts which emphasize “experiencing the harvest” cannot be referring to a farming activity for the stark purpose of killing the animal.  Indeed, that the customers are in pursuit of the trophies of head and antlers demonstrates a purpose consistent with the sport of hunting.

I cannot accept that by calling the pursuit a “harvest” it ceases to be a “hunt” even though the activity is identical activity that a hunter would ordinarily pursue.  A rose is a rose by any other name.”

With respect to the purpose of the FWCA the court concluded that:

“It was the legislators’ purpose to prohibit the hunting of elk et al in captivity.  I have found, on the facts put forward by the (farmer), that the activity whatever it is called and whether or not it is proceeded by the sale of the animal in advance of its “harvest”, the activity remains a “hunt”.  That is why people want to do it.  That is why they pay to do it rather than being paid for harvesting on behalf of a farmer.”

The hunting of captive animals is prohibited under the FWCA.  Ownership transfer of a specific animal for the purpose of “harvesting” does not alter the character of this activity to render lawful that which is otherwise illegal.