Endangered Species Exemptions Survive Court Challenge

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...