Sweeping exemptions from Ontario's protection for endangered species have been upheld by the Divisional Court, despite concerns that they reduce the effectiveness of the Endangered Species Act, 2007.
In Wildlands
League v. Lieutenant Governor in Council, 2015 ONSC 2942,
Ecojustice, the Wildlands League and the Federation of Ontario
Naturalists ("Wildlands"), bravely but unsuccessfully
challenged the validity of Ontario Regulation 176/13 ("O. Reg.
176/13") made under
s. 55(1)(b) of the
Endangered Species Act, 2007
[1] ("
ESA"). They had a tough, uphill battle. As Justice Lederer
put it:
"[27] A challenge to the vires (legal power or authority) of the Lieutenant Governor in Council in making a regulation stands apart from the review of an administrative decision. A regulation is a form of subsidiary legislation. ... The scope of such a review is narrow:
A successful challenge to the vires of regulations
requires that they be shown to be
inconsistent with the objective of the enabling statute or
the scope of the statutory mandate.
[37]
[28] It is not concerned with assessing the policy
merits of a regulation to determine if it is "...necessary,
wise, or effective in practice"
[38]...
[29] This is not an examination of the "political,
economic, social or partisan considerations" underlying the
regulation.
[40] It is not a question of whether the regulation will
achieve its statutory objectives.
[41] A regulation must be "irrelevant",
"extraneous" or "completely unrelated" to the
statutory purpose if being inconsistent with that purpose is to be
the basis for finding the regulation to be ultra vires (beyond or
outside the power or authority of the Lieutenant Governor).
[42] In effect, although it is possible to strike down
regulations as ultra vires on this basis, "it would take an
egregious case to warrant such action".
[43]"
Wildlands argued that the regulation was invalid because the
Minister of Natural Resources had not separately considered the
impact of the exemptions on each and every one of the 155 species
identified as threatened or endangered in Ontario, including
whether the survival of each would be in jeopardy and whether each
or any would be at risk of any other significant adverse effect
[49]. They also argued that the regulation was inconsistent
with the ESA because:
"... the Regulation functions so as to deprive almost all
listed endangered and threatened species of the protections of
the
ESA's key operative prohibitions in
ss. 9(1) and
10(1)
[59] and the associated authorized scheme in
ss. 17 and
18
[60]....
Put another way, the Regulation puts an end to the
ESA's core statutory protections for almost all of
Ontario's most seriously at-risk species,...
... In its place, the Regulation supplants the scheme with a
parallel Exemptions Regime that enables many activities dangerous
to species and their habitats. ...
[61]"
Wildlands relied on a special report prepared by the Environmental
Commissioner of Ontario, entitled, "Laying Siege to the
Last Line of Defence: A review of Ontario's Weakened
Protections of Species at Risk.
[62] The Report takes the view that O. Reg 176/13 "thwarts
the very purposes of the Act"
[63]. In an accompanying press release, the Commissioner
suggested that the regulatory amendments "threaten the
protection of the province's species at risk" and
"undermine what the Ontario legislature set out in
law".
[64]
Justice Lederer was unmoved.
"[47] I start by pointing out that the words of the Minister, the report of the Environmental Commissioner and the accompanying news release are not helpful. In this case, it is the words of the statute that drive an understanding of its intention...
[48] ...Even understanding the contribution that biological diversity makes to our economy, the ESA sets out to protect that diversity while not forgetting our more general concern for other considerations (social, economic and cultural) that play an important role and have a significant impact on our society and way of life....
[49] ... harm to the species may be accepted in light of the social or economic benefits that will accrue."
For Justice Lederer, it was therefore consistent with the ESA for the regulation to cut down the protection offered to endangered species in order to achieve financial/ economic benefits. Whether this was wise or not was not for the court to decide. He therefore refused to invalidate the regulation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.