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In a decision released last month, Wildlands League v Ontario (Natural Resources and Forestry), 2016 ONCA 741, the Court of Appeal has held that a regulation made under the Endangered Species Act (“ESA”) is valid. The regulation exempts certain industrial activities from the ESA’s prohibitions against killing, harming, harassing, or capturing listed species at risk (“SAR”) (subsection 9(1)) and against destroying or damaging the habitat of listed SAR (subsection 10(1)). Prior to the introduction of the regulation, the section 9 and 10 prohibitions could generally only be avoided by obtaining a permit.

The regulation makes it possible to overcome the section 9 and 10 prohibitions without an approval. Instead, in many cases, proponents of certain kinds of projects are required only to provide notice of the activity, some details as to its likely impacts, and mitigation measures it proposes to undertake.

The regulation was challenged by two environmental groups, Wildlands League and Ontario Nature (the “Appellants”), on the basis that it is ultra vires (invalid). Specifically, the Appellants argued that (1) the regulation contravenes the purpose of the ESA and (2) when the Minister of Natural Resource decided to make the regulation, he did so without first satisfying a statutory condition precedent—namely, determining whether or not the regulations were likely to jeopardize the survival of each affected SAR.

We have been following the case over the years. The Appellants were unsuccessful at first instance in Divisional Court, but obtained leave to appeal to the Court of Appeal for Ontario. For reasons that varied slightly from those relied upon by Divisional Court, the Court of Appeal dismissed the appeal.

In determining that the regulation did not contravene the purpose of the ESA, the Court of Appeal “agree[d] with the appellants that the fundamental purpose of the ESA, its legislative goal or aim, is to protect SAR, and is not the promotion of economic and social interests.” However, the Court found that a broader look at the ESA as a whole, including the scheme adopted in order to achieve the legislative goal, revealed something more nuanced.

For the purpose of a vires analysis, the Court found, determination the legislative purpose involves looking at both the objective and scheme of the parent statute. Adopting this approach, the Court found that (at paras 91, 94):

[w]hile the ESA is directed toward the protection of SAR, the protection afforded by the Act to individual species members and their habitats is not absolute. The scheme or system of the Act is to provide a presumption of protection with tools to address, among other things, social and economic conditions. … The statute recognizes that the protection of SAR takes place in the context of human activities.

In other words, the purpose is the protection of SAR, but using the scheme as set out in the [ESA].

Because the regulation was not “irrelevant,” “extraneous,” or “completely unrelated to” the legislative purpose and scheme of the ESA, the Court held, it was vires.

The Court provided the following guidance on the seemingly untested issue of how to judicially review the validity of a regulation where a condition precedent requires the decision to come to an opinion as to the existence of certain facts (para 56)

… where a statutory condition precedent itself requires an opinion to be reached or a determination to be made, it is beyond the scope of judicial review to assess whether the determination was objectively correct or reasonable. At the same time, it is not sufficient that the decision-maker purported to make the determination. The determination must have been made in good faith and based on the factors specified in the enabling statute.

Ultimately, the Court found that the record demonstrated that the Minister had properly considered the effect of the regulation on each affected SAR. At first instance, the Divisional Court had agreed with the Respondent Minister that in coming to his opinion, the Minister need not have considered the impact of the regulation on each SAR. On Appeal, the Respondent abandoned this argument, instead agreeing with the Appellants that each SAR must be considered, but asserting that the Minister did, in fact, do this. The Court agreed.

The decision is surely a disappointment to those who value the ESA’s strict protections for SAR. It is also another reminder as to the difficulty in challenging the vires of a regulation.

It is not yet clear whether the Appellants will seek leave to appeal to the Supreme Court of Canada.

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