Comment: To cull or not to cull is a legal question

The District of Oak Bay’s decision to move forward on deer culling has been controversial. Whether culling is an effective response to stem the overpopulation of deer is less the issue; research shows it can be. The challenge for municipalities in Greater Victoria who seek to reduce the deer population will be to co-ordinate their efforts. Simply put, deer do not recognize municipal borders.

There is a hazy legal sphere of concurrent jurisdiction between municipalities and the province. Under the Wildlife Act, deer fall under provincial jurisdiction and permits are required for culls. Under the Community Charter, municipalities can address wildlife issues through their bylaws. However, municipalities must have Environment Ministry approval and comply with provincial regulation.

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The ministry, in its report called British Columbia Urban Ungulate Conflict Analysis, concluded that deer in urban areas throughout B.C. are “overabundant,” and the consequences of “overabundance” include damage to gardens, landscaping and community forests; increased vehicle collisions; potential transmission of disease; and encounters of aggressive animal behaviour.

The Capital Regional District deer management strategy of August 2012 determined that deer-human conflicts are on the rise, including the rate of vehicle-deer collisions.

Decisions to cull will require a balanced approach and escalating enforcement. There are no “quick fix” solutions. Deer-management approaches should consider high fencing and deer repellents. However, even with these options, the Environment Ministry has concluded that culling might be the best long-term option to reduce the deer population.

Governments have tried a variety of options. In 2006, the City of Ottawa implemented an aggressive public-awareness campaign, rather than culling, to reduce vehicle collisions caused by deer. Ottawa found that deer-vehicle collisions decreased from about 900 to 600 a year after two years of public awareness.

In 2009, the City of Helena, Montana, undertook an extensive public process to manage the overpopulation of urban white-tailed deer. This culminated in the trapping and culling of 200 deer.

In the United Kingdom, it is estimated that at least 30,000 vehicle collisions involve deer every year. The UK manages deer with local governments and conducts annual culls to maintain healthy populations.

Closer to home, in 2009, Parks Canada commenced a cull of deer on Sidney Island to stem the damage deer were causing to the natural ecosystem. The Environment Ministry reported that Parks Canada captured and euthanized 848 deer, which were used for venison.

Most recently, the B.C. Supreme Court ruled in Suman vs. Invermere (District), 2013, that the district’s decision to cull deer was reasonable and procedurally fair. This case provides a good example of the type of public process to follow. The district sought public consultation, consulted with the Environment Ministry and obtained provincial permits.

Local governments in B.C. will continue to consider deer culls. Some issues to think about include:

• Legal authority from the province, along with liability protection for local governments and their agents;

• Public expectations on culling and public safety concerns with vehicles;

• The appropriate local authority to manage a cull — in Greater Victoria there are substantially more animal-control officers than provincial wildlife officers, though the former lack training in wildlife; and

• Measurable results as to whether the deer reduction strategy is working.

Ultimately, managing deer in Greater Victoria will depend on a concerted and joint municipal effort. Otherwise, a deer-free zone in Uplands will lead to an unintended deer sanctuary in Beacon Hill Park.

Troy DeSouza and Elena Merritt are outside counsel for governments at Dominion GovLaw LLP in Victoria.

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