Endangering the Endangered Species Act, 2007

“[T]hroughout the world, species of animals, plants and other organisms are being lost forever at an alarming rate. The loss of these species is most often due to human activities, especially activities that damage the habitats of these species. Global action is required.”[1]

These words are part of the preamble of Endangered Species Act, 2007 (ESA) of Ontario. The ESA was enacted to replace an older version of the legislation protecting endangered species, which provided insufficient protection.[2] However, legislation does not necessarily result in actions. As noted by the Federal Court: “administrative laissez-faire contributes, along with uncontrolled—and irresponsible—human activity, to the destruction of natural habitats and the loss of wildlife species.”[3] Sometimes administrative laissez-faire is not even the biggest problem; sometimes the government actively tries to undermine legislative protection. It is precisely what happened in Wildlands League v Lieutenant Governor in Council.[4] In this case, the government of Ontario granted sweeping exemptions to entire industrial sectors through Ontario Regulation 176/13 (the Regulation), rendering the ESA protection meaningless for countless endangered species. The Regulation was challenged by the Wildlands League and the Federation of Ontario Naturalists. They sadly lost at the Ontario Divisional Court (the decision is being appealed). In this post I will analysed this surprising decision and its flaws. I will look specifically at the two main arguments for the invalidation of the Regulation: the pre-condition for the enactment of the Regulation, and its consistency with the ESA.

Background

The main provisions of the ESA prohibit killing endangered species or destroying their habitats, and provide for species recovery strategies.[5] In the spring of 2012, the government attempted to modify the ESA through an omnibus bill. These amendments would have exempted some industries from having to comply with the species killing and habitat destruction prohibitions. In the end, the amendments were removed from the bill after public outcry. This was not the end of the matter however, as the government simply decided to take another route to achieve the same goal. Instead it adopted the changes found in the amendments through the Regulation (which amended General, O Reg 242/08), citing administrative burden concerns related to permits under the ESA.[6] Under the Regulation “[i]ndividuals and businesses engaged in eligible activities will no longer need to apply for and obtain approval but will be required to follow the rules in regulation, and in most cases to register their activity with [the Ministry of Natural Resources].”[7] The “eligible activities” include forestry, hydro-electricity, commercial cultivation of vascular plants (which includes many pines), pits and quarries, land development (for certain species), drainage work, early exploring mining, and wind power.

Pre-condition: When a Species Means All Species

The applicants’ first argument was that the Minister did not meet the conditions precedent to the recommendation of a regulation to the Lieutenant-Governor-in-Council (LGC).[8] The Regulation was adopted under section 55(1)(b) of the ESA which provide for limited regulatory power:

“55. (1) Subject to subsection (2) and section 57, the Lieutenant Governor in Council may make regulations,

(b) prescribing exemptions from subsection 9 (1) or 10 (1), subject to any conditions or restrictions prescribed by the regulations.”

This power to create exemptions to the core provisions of the ESA is limited by section 57. Section 57(1) states:

“57. (1) If a proposal for a regulation under subsection 55 (1) is under consideration in the Ministry, the proposed regulation would apply to a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species, and either or both of the following criteria apply, the Minister shall consult with a person who is considered by the Minister to be an expert on the possible effects of the proposed regulation on the species:

  1. In the case of any proposed regulation under subsection 55 (1), 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.

[…]”

If section 57(1) applies, the minister cannot recommend and the LGC cannot adopt a regulation unless the criteria of subsection (2) are met. In the present case, the Minister found that the Regulation would not jeopardize the survival of threatened or endangered species. The Minister only evaluated, however, 5 of the 155 threatened or endangered species on the Species at Risk in Ontario List, O Reg 230/08 at the time of the regulation proposal. For the rest, he instead looked at the impact of the activities to be exempted on species generally. The applicant claimed it was an error as the Minister should have looked at the impact of the exemptions on each individual listed species.

The Court ruled that an analysis for each species was not necessary as long as the impact of the exemption was looked at. The Court’s reasoning falls short of being convincing and offers no substantive statutory interpretation. It simply states that section 57(1) does not require an individual analysis for each species impacted as the provision only requires that the Minister forms an opinion. This evidently ignores the clear text of the provision which speaks of the impact on a species or on the species.[9] The French version of the ESA confirms this speaking of “une espèce” or “l’espèce” using the singular. Furthermore, from the text of section 57(1) and the ESA in general, one can deduce that the situation it envisaged was rare cases when a specific exemption for one species was needed. It doesn’t seem to be built to address mass exemptions. Exemption to the core provision is an exception not the rule. Failing to evaluate the impact of a proposed exemption on all the species it affects runs contrary to the ESA’s overarching purpose to protect and recover species. The Act is geared towards ensuring protection and recovery strategies to each listed species. This is simple logic as each species is different, not only genetically, but also in its needs (habitat, diet, reproduction, sensitivity, matting habit, etc). A mass recovery strategy would obviously make no sense. The same logic applies to mass exemptions as the activities they cover will affect differently each species.

The Court also made a bizarre comment related to section 57(1) at paragraph 37. It said that the Court did not have the power to review the reasonableness of the Minister’s opinion; it could only determine if the required steps had been taken. The applicant did not challenge the reasonableness of the opinion in this case. The Supreme Court has stated that the reasonableness of a properly enacted regulation is not a ground for its review.[10] Nonetheless, the Minister’s opinion is not the regulation; it is but another administrative decision and administrative decisions are always reviewable.[11] The opinion, even if it is part of the conditions-precedent, is its own decision and if it is unreasonable, it cannot stand and by consequence the condition-precedent is not met. It would be illogical to claim that the pre-conditions are met if the opinion of the Minister is unreasonable and thus illegal. The Federal Courts, in similar contexts nonetheless, never hesitated to review this type of decision.[12] This does not mean that the Court is determining whether the regulation is “necessary, wise or effective in practice” as it claims. It only means that it is ensuring that the pre-conditions are met.

Losing the Purpose: Twisting the ESA

The applicants’ second argument was that the Regulation is inconsistent with the purpose of the ESA. They stated that the purpose was the protection and recovery of species at risk, which the Regulation runs counter to. They also highlighted that the Regulation’s aim of reducing administrative burden was not a valid purpose under the ESA. The Court rejected that argument stating that protection and recovery of species at risk is not the only purpose of the Act. In doing so, the Court purport to rely on the text of the ESA. It states that the ESA allows for balancing of biodiversity concerns with socio-economic ones, relying on the preamble. It also reads the permit provisions as further indication that the Act allows for balancing and economic considerations.

The Court’s approach is highly problematic in my opinion. The approach to the validity of a regulation was set out by the Supreme Court in Katz. It held that the first step is to determine the overarching purpose of the legislation, and that the second is to determine the purpose of the regulation and its consistency with the purpose of its enabling statute.[13] Any real analysis of the purpose of the ESA is conspicuously missing from the decision. Instead the Court seems to cherry pick a small part of the preamble and narrow provisions providing exceptions to the rule (section 17 permits). None of these establishes the overarching purpose of the ESA. The only thing it tells us is that the legislator provided expressly for exceptions to the rule. Again, one should not equate an exception with the rule as such a thing would fly in the face of proper statutory construction. What I find the most egregious is that the ESA itself has a purposes provision.[14] The Court makes no mention of this provision which expressively states the legislative purpose of the Act, rather surprisingly. The provision reads:

“1. The purposes of this Act are:

  1. To identify species at risk based on the best available scientific information, including information obtained from community knowledge and aboriginal traditional knowledge.
  2. To protect species that are at risk and their habitats, and to promote the recovery of species that are at risk.
  3. To promote stewardship activities to assist in the protection and recovery of species that are at risk.”

The overarching purpose of the ESA is already very clear, the protection and recovery of species at risk. The legislator was not ambiguous at all in drafting that provision. If that wasn’t sufficient, the Hansard (legislative debate) confirms this interpretation.[15] In it, during the adoption of the ESA, the then-Minister of Natural Resources stated that the Act “creates a presumption of protection”.[16] He also stated that the ESA was enacted to “provide significantly broader and more effective provisions for protecting species at risk and their habitats” and “stronger commitment to species recovery”.[17] The assertion by the Court that these statements are unhelpful runs contrary to the established rule of statutory interpretation. Finally, the scheme of the ESA, read together and considering its remedial nature, also favor the protection and recovery interpretation. As stated above, the few exceptions are exactly that, exception to the main purpose of the ESA. Nothing else should be read into their existence. Even the preamble, read as a whole, supports this by introducing the imperative of protecting biodiversity. The mention in it of “social, economic and cultural considerations” is more of a general statement noting the place of species protection, as a goal, in the general legal and policy framework of the province. Nothing in the Act suggests any real economic purposes. At best there is an incidental economic purpose, which cannot be said to be the overarching one.

As for the purpose of the Regulation, the Court makes no mention of it. Another flaw as it is required by Katz. In my view, the purpose is easy to differ: providing exemption to general species at risk protection in favour of economic activities. Does this contradict the purpose of the ESA? This is a harder question since the Supreme Court stated that it would take an egregious case to invalidate a regulation on that ground.[18] It is thus arguable that the Regulation does not reach this level of egregiousness. I am, however, on the other side. The Regulation sweeping nature exempts important economic activities from the core species at risk protection under the guise of easing administrative burden (read to make it easier to legally disregard sections 9(1) and 10(1) of the ESA). It creates in a sense a parallel regime where economic activities are given priority over the protection and recovery of species at risk. I risk repeating myself by saying that the Regulation makes the exception provided by the Act into the rule. This in my view constitutes a form of amendment to the ESA best left to the legislator, not to the LGC (in fact the first attempt to pass the exemptions was through legislative amendments as stated above).

Conclusion

The Regulation, and the decision validating it, is an example of what the Federal Court warns us in Centre Québécois du droit de l’environnement. It creates a regime where economic considerations take priority over biodiversity protection. It emphasises mitigation even though such approach has clearly failed to protect biodiversity adequately.[19] It negates the progress made by the adoption of the ESA. Administrative efficiency is not a valid concern to adopt such a regulation. Of course species at risk protection will be burdensome; otherwise I would argue the protection is inefficient. We must be ever vigilant to ensure that gains in environmental law are not squandered by the policy of the day.[20] For now, the decision is being appealed and ironically it is probably the weakness of the decision that will ensure appellate review. I am confident that the Ontario Court of Appeal will correct the mistake of the Divisional Court. The Regulation may survive at the end (which will leave political pressure as the only remedy), but I doubt the pronouncement of the Divisional Court in this decision will. As a final thought, I wonder if it is appropriate to leave the administration of the ESA in the hand of the Ministry of Natural Resources. After all, the Ministry has an economic mandate which clashes with the purpose of the ESA.[21] Maybe the Ministry of the Environment would be a more appropriate administrator given is clear mandate to protect the environment.[22] Maybe the Regulation would not have been adopted had it been the choice of the Minister of the Environment?

[1] Preamble at paragraph 2 of the Endangered Species Act, 2007, SO 2007, c 6.

[2] See Environmental Commissioner of Ontario, Reconciling our Priorities: Annual Report 2006-2007, (Toronto: ECO, 2007) at pp 96-97.

[3] Centre Québécois du droit de l’environnement v Canada (Environment), 2015 FC 773 at para 8.

[4] Wildlands League v Lieutenant Governor in Council, 2015 ONSC 2942.

[5] s 9(1), 10(1)(a) & 11(1) of the ESA.

[6] Ontario, Environmental Registry, Regulation Proposal by the Ministry of Natural Resources, EBR # 011-7696, 5 December 2012, http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTE4MDY5&statusId=MTc2NzEx

[7] Ontario, Environmental Registry, Regulation Decision by the Ministry of Natural Resources, EBR # 011-7696, 14 June 2013, http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTE4MDY5&statusId=MTc5MjY1&language=en

[8] See Thorne’s Hardware Ltd v The Queen, [1983] 1 SCR 106, at p 111.

[9] See Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, at para 21.

[10] Katz Group Canada Inc v Ontario (Health and Long-Term Care), 2013 SCC 64, at paras 27-28.

[11] Alberta Teachers’ Association v Alberta, 2002 ABQB 240, at paras 17-18; See also generally Attorney General (Que) et al v Farrah, [1978] 2 SCR 638; and Crevier v AG (Québec) et al, [1981] 2 SCR 220.

[12] Centre Québécois du droit de l’environnement, supra note 3; David Suzuki Foundation v Canada (Fisheries and Oceans), 2010 FC 1233, aff’d 2012 FCA 40; Alberta Wilderness Assn v Canada (Attorney General), 2013 FCA 190; and Adam v Canada (Environment), 2011 FC 962.

[13] Katz, supra note 11, at paras 30-42.

[14] See Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Markham: LexisNexis, 2008) at p 270: statutory purpose provisions are “[t]he most direct and authoritative evidence of legislative purpose”.

[15] Sullivan, ibid, at p 609: statements of Ministers sponsoring bills in a legislature are “direct evidence of purpose” and “the type of legislative history most often relied on by courts.”

[16] Ontario, Legislative Assembly, Official Report of Debates (Hansard), 38th Parl, 2nd Sess, No 148, (28 March 2007) at p 7500.

[17] Ontario, Legislative Assembly, Official Report of Debates (Hansard), 38th Parl, 2nd Sess, No 143, (20 March 2007) at p 7195.

[18] Katz, supra note 11, at para 28.

[19] See Shaun Fluker, Justice for the Western Chorus Frog?, ABlawg.ca, 27 August 2015.

[20] See Pierre Cloutier de Repentigny, “Canadian Environmental Assessment Reform: A Glimpse at Regressive Reforms in Canadian Environmental Law” (2015) 6 IUCNAEL EJournal 155; and

Michel Prieur, “Non-regression in environmental law” (2012) 5(2) SAPIENS [Online].

[21] See Ontario, About the Ministry of Natural Resources and Forestry, online: www.ontario.ca < http://www.ontario.ca/page/about-ministry-natural-resources-and-forestry >

[22] See Ontario, About the Ministry of the Environment and Climate Change, online: www.ontario.ca < http://www.ontario.ca/page/about-ministry-environment-and-climate-change >

Leave a Reply