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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 (“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.

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