Part 2 – What Was The Question?

Part 2

What Was The Question?

Question mark

We now have Part 2 of “What Was The Question?” I thought my story was very clear. I said it isn’t necessary to wait for a cull to be issued before legal action can be taken against the Alberta Provincial Government. The legal action taken would be to ask for a Judicial Review of the Minister’s Opinion. The Minister must, before a capture permit licence is granted, form an Opinion as to why the horses must be removed.

The following is an email received from Zoocheck:

From: XXXXX [mailto:XXXXX@zoocheck.com]
Sent: Thursday, December 24, 2015 7:47 AM
To: XXXXXXXXXXXXXXXXXXXXX
Subject: RE: Alberta’s Wild Horses

Unfortunately, that is not the way the legal system works. You can’t challenge a decision to cull until one has been made. Previous decisions are now unchallengeable. That means in this case when the Minister signs off on the recommendation, assuming she does, would be the day we could launch a legal action. Not to worry, we have a full campaign plan that will take advantage of every legal aspect that the court will permit and we are working our contacts in the political circles too.

Julie

The following is taken from the Public Lands Act, which states:

PUBLIC LANDS ACT
Chapter P 40

No review by court
70.3 Subject to a right of appeal under this Act or the regulations, where this Act or the regulations empower or compel the director or the Minister, as the case may be, to do anything under this Act or the regulations, the director or Minister has exclusive and final jurisdiction to do that thing and no decision, order, direction, ruling or proceeding of the director or the Minister shall be questioned or reviewed in any court, and no order shall be made or process entered or proceedings taken in any court to question, review, prohibit or restrain the director or Minister from doing the thing.

2009 cA-26.8 s91(45)

The following is taken from the Stray Animals Act:

ALBERTA REGULATION 59/94
Stray Animals Act
HORSE CAPTURE REGULATION

Definitions

1 In this Regulation:

(e)“Minister” means the Minister responsible for the administration of the Public Lands Act;

AR 59/94 s1;251/2001;5/2008

Definitions 1(e) refers to the Minister being the same Minister responsible for the administration under the Public Lands Act. This means the same Minister (Minister Shannon Phillips) has two responsibilities. The first responsibility comes under the Public Lands Act and the second responsibility comes under the Stray Animals Act. As there is no wording in the Stray Animals Act disallowing a review by the Court, any Opinion of the Minister under s. 9(1) of the Stray Animals Act can be subject to a Judicial Review.

Why would it be valuable, right now, to request Freedom of Information access to the Opinion that must have been used by the Minister as the basis to grant any past capture permit licence? The answer is, that obtaining Freedom of Information access to that Opinion would reveal what is, in Minister’s view, a valid basis on which the Minister believes it could base an Opinion that it is necessary to issue capture permit licences, in order to preserve the public rangeland. Therefore, anyone who wants to now challenge any capture permit licence would, by obtaining that information, know in advance what the Minister considers a reasonable basis for issuing capture permit licences. Having that sort of information in advance of any Court process could only be helpful!

Of course if those past capture permit licences were issued without the Minister forming the necessary Opinion, then any of those prior capture permits licences would be invalid. Not only would it have been illegal for the Ministry to have issued the licences, but any horses taken from public lands, allegedly pursuant to such invalid licences, whether by the public or government employees, would have been illegally taken.

We assume that when Zoocheck says “the Minister signs off on the recommendation” it is a reference to s. 9(2) of the Stray Animals Act “(2) The Minister responsible for the administration of the Public Lands Act may, in accordance with the regulations, issue licences that authorize the licence holder to capture horses on Public Land designated under subsection (1) and to confine, transport and dispose of those horses, and s.5(1) of the Regulation stating: “The Minister may grant or refuse the application for a licence.”

The regulation states that a licence, by legal necessity, must include a description of the designated land that has been designated by the Minister under its Opinion, by authority granted to the Minister in s.9(1) of the Stray Animals Act, as land which by necessity must be preserved by way of granting capture permit licences.

If a capture permit licence cannot be issued unless it is with respect to land designated by the Minister, that the Minister made by the authority granted in s.9(1), then the primary target for Judicial Review of any decision to grant a capture permit licence will have to be, in fact, a Judicial Review of the Minister’s s.9(1) Opinion. The Minister’s Opinion may already exist, and might exist long before any capture permit licence is issued.

As well, if Zoocheck were to challenge the issuance of a capture permit licence, that would necessarily require Zoocheck to challenge the Minister’s s.9(1) Opinion. Has Zoocheck asked for Freedom of Information disclosure of any such Minister’s Opinion?

How is Zoocheck to know that a capture permit licence has been issued? In the past the information that a capture permit licence has been issued was only determined indirectly and then some time after the licence was granted. Further, it is possible that horses may have been captured and sold on by the time anyone who cares, has learned that the licence has been issued.

I repeat again, it is not necessary for Zoocheck to wait until a cull has been announced before proceedings can be commenced against the Alberta Provincial Government.

ALBERTA REGULATION 59/94
Stray Animals Act
HORSE CAPTURE REGULATION

Definitions

1 In this Regulation:

(a)“Act” means the Stray Animals Act;

(b)“capture” means capture, bait, chase, pursue, follow after or on the trail of or stalk, on designated land;

(b.1)“designated land” means public land designated for the licensed capture of horses under section 9(1) of the Act;

(c)“licence” means a licence under section 9 of the Act, excluding a licence that is under suspension;

(d)“licence holder” means the holder of a licence;

(e)“Minister” means the Minister responsible for the administration of the Public Lands Act;

(f)repealed AR 5/2008 s2.

AR 59/94 s1;251/2001;5/2008

Licences

5(1) The Minister may grant or refuse the application for a licence.

(2) Subject to this section, a licence is to be in the form specified by the Minister.

(3) A licence must include the following:

(a)the areas of designated land where horses may be captured under the licence;

(b)the locations on designated land where corrals, if any, may be constructed;

(c)subject to section 7, restrictions, if any, on the methods of capture that may be used or the equipment that may be used in any capture;

(d)any other information required or allowed by this section or section 7, 9 or 11;

(e)any other terms or conditions that the Minister considers ought to be attached to the licence.

(4) A licence may specify the maximum number of horses that may be captured under the licence.

(5) Nothing in this Regulation requires the Minister to issue a licence to any person, and the Minister may limit the total number of licences to be issued during any licence year.

(6) The Minister may, by giving notice in writing to a licence holder, add further conditions to the licence, and the further conditions are deemed, on receipt of the notice, to form part of the licence.

(7) Unless the licence states otherwise and subject to section 10 of the Act, the term of a licence is from November 1 in one year to March 1 in the next.

(8) The holding of a licence does not determine ownership of a horse.

AR 59/94 s5;251/2001;5/2008

STRAY ANIMALS ACT
Chapter S 20
Part 2
Capture of Stray Livestock

Licence

9(1) The Minister responsible for the administration of the Public Lands Act may designate public land for which a licence under this section may be issued if, in the opinion of the Minister, it is necessary to protect, maintain or conserve the range, forage, soil, reforestation, wildlife habitat or other resource or for the safety of the public or of horses or as provided for in the regulations.

9(2) The Minister responsible for the administration of the Public Lands Act may, in accordance with the regulations, issue licences that authorize the licence holder to capture horses on public land designated under subsection (1) and to confine, transport and dispose of those horses.

1993 c25 s3

December 26, 2015