On October 11, 2016, the Ontario Court of Appeal (“Court”) released its decision in the Wildlands League v. Ontario (Natural Resources and Forestry) case.[1] The decision provides helpful commentary and guidance on the interpretation of the Ontario Endangered Species Act, 2007 (“Act”).[2] The Court dismissed the appeal and recognized that the protection of species at risk and their habitats under the Act is not absolute and occurs in the context of human activities.

The Act prohibits, among other things, the killing, harming or harassment of species at risk, as well as the destruction of their habitat.[3] However, the Act allows for exemptions to these prohibitions to be created by regulation, as well as by permits and agreements. In 2013, the government passed a Regulation (O. Reg. 176/13) (the “Regulation”) which provided for 19 exemptions to the Act’s prohibitions, subject to compliance with certain prescribed mitigation conditions. For example, the Regulation provided that the prohibition on killing, harming or harassing Eastern Meadowlark birds (a listed species at risk) or destroying their habitat, did not apply as long as the activity leading to these actions was registered with the Ministry of Natural Resources and Forestry (“MNRF”) and prescribed mitigation measures and conditions were followed.

The Regulation was subject to special review under s. 57 of the Act which provides that if “the Minister is of the opinion that the regulation is likely to jeopardize the survival of the species in Ontario or to have any other significant adverse effect on the species”, the Minister must consult with an expert on the possible effects of the proposed regulation and not implement it until certain criteria are met. In this case, the MNRF issued a Minister’s Explanatory Note to demonstrate compliance with s. 57 of the Act. The Explanatory Note provided a rationale for the exempted activities and the mandatory mitigation conditions imposed, and advised the Minister was of the opinion that the proposed regulation was unlikely to trigger the s. 57(1) requirement.

Two environmental groups challenged the Regulation by way of judicial review on the basis that it went beyond the scope of the Minister’s authority under the Act and was ultra vires. They argued:

  1. that the mandatory condition precedent under s. 57(1) of the Act had not been met as the Minister had not considered the effect of the proposed Regulation on each individual species at risk; and,
  2. that the purpose of the Regulation, which the environmental groups characterized as government and industry costs savings, was inconsistent with the Act’s stated purpose of the protection and stewardship of species at risk.

The Divisional Court dismissed the judicial review application and the applicants appealed to the Ontario Court of Appeal. The Court of Appeal dismissed the appeal and held that where a statutory condition precedent 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. The determination must simply have been (a) made in good faith and (b) based on the factors specified in the enabling statute.

The Court of Appeal held that the Explanatory Note, upon which the Minister’s decision had been based, provided evidence that risk assessments had been undertaken for the activities that were exempted, and that these assessments had taken into account the effects of those activities on individual species at risk. The Minister’s Explanatory Note provided a basis for the opinion that “the effect of the proposed regulation is not likely to jeopardize the survival of the affected endangered or threatened species in Ontario or to have any other significant adverse effects on these species at risk.”[4]

The Court of Appeal also found that the Regulation was consistent with the purposes and objects of the Act. With respect to this, the Court stated:

While the ESA is directed toward the protection of [species at risk], 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 tools (in the form of the permitting, agreement and regulation-making provisions) have specific criteria and conditions for their operation. The statute recognizes that the protection of [species at risk] takes place in the context of human activities. The Act therefore promotes its objects of protecting [species at risk] and their habitats through a scheme that necessarily has regard to these activities.[5] [our emphasis]

The Court stated that regulations exempting certain species and activities from the Act need not be made solely and exclusively for activities aimed at the preservation and protection of species at risk. In this case, the exemptions and mitigation conditions in the Regulation were directed towards the protection of species at risk, while also promoting efficiency and costs savings, and were consistent with the objectives and statutory scheme of the Act.