Pacific Wild Alliance v. British Columbia - Minister of Forests, Lands, Natural Resource Operations and Rural Development

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Pacific Wild Alliance v. British Columbia

(Forests, Lands, Natural Resource

Operations and Rural Development),

2022 BCSC 904

Date: 20220601

Docket: S206606

Registry: Vancouver

Between:

And

Pacific Wild Alliance

Petitioner

Minister of Forests, Lands, Natural Resource Operations and Rural

Development

Respondent

Before: The Honourable Justice Giaschi

Reasons for Judgment

Counsel for the Petitioner:

S.L. McHugh

R. Breder

Counsel for the Respondent:

W.F. Wagner

M. Butler

Place and Date of Hearing:

Place and Date of Judgment:

Vancouver, B.C.

July 7-8, and October 27-28, 2021

Vancouver, B.C.

June 1, 2022

Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource

Operations and Rural Development) Page 2

Table of Contents

INTRODUCTION ....................................................................................................... 3

FACTS....................................................................................................................... 5

The Parties............................................................................................................. 5

The Caribou Recovery Program............................................................................. 7

Filing of the Petition.............................................................................................. 10

Events Subsequent to the Filing of the Petition.................................................... 10

The Amended Petition.......................................................................................... 12

THE STATUTORY REGIME.................................................................................... 13

POSITIONS OF THE PARTIES............................................................................... 19

ISSUES.................................................................................................................... 21

ANALYSIS............................................................................................................... 21

Does the Petitioner have Standing?..................................................................... 21

Standard of Review.............................................................................................. 27

Is s. 3.1 of the Permit Regulation Ultra Vires?...................................................... 31

Are the Permits Invalid? ....................................................................................... 54

Are ss. 19(1) or (3) of the Wildlife Act and s. 3.1 of the Permit Regulation

Inoperative?.......................................................................................................... 55

Production of Documents ..................................................................................... 61

CONCLUSIONS ...................................................................................................... 61

Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource

Operations and Rural Development)

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Introduction

[1]

The woodland caribou is a species at risk of extirpation in parts of British

Columbia. To address this risk, the government of British Columbia has

implemented a multi-faceted program called the Caribou Recovery Program. One

facet of this program involves the culling of wolf populations in woodland caribou

habitat. The wolf culling is performed, in part, by the shooting of wolves from aircraft,

specifically helicopters. The cull is conducted either by officers appointed under the

Wildlife Act, R.S.B.C. 1996, c. 488 [Wildlife Act] or by third party contractors and, in

either case, air carriers are contracted to provide helicopters and pilots. The cull is

conducted under permits issued pursuant to the Wildlife Act and the Permit

Regulation, B.C. Reg. 253/2000 [Permit Regulation]. The permits are issued by

regional managers appointed under the Wildlife Act. The permits also exempt the

permit holders from the provisions of s. 27 of the Wildlife Act, which prohibits the

hunting of wildlife from an aircraft, and from s. 9 of the Firearm Act, R.S.B.C. 1996

c.145 [Firearm Act], which prohibits the carrying or discharge of a firearm from an

aircraft.

[2]

This petition is brought under the provisions of the Judicial Review Procedure

Act, R.S.B.C. 1996, c. 241. The petitioner challenges the legal validity of the

permitting system implemented by the province of British Columbia as follows:

a) First, that s. 3.1 of the Permit Regulation, which empowers a regional

manager to, inter alia, issue permits for the shooting of wolves from aircraft or

helicopters, is an improper delegation of legislative authority and, accordingly,

ultra vires.

b) Second, that the permits as issued by the regional manager are invalid on the

grounds that they do not contain sufficient specificity.

c) Finally, that the doctrine of paramountcy applies to render inoperative those

parts of the Wildlife Act and Permit Regulation that allow the shooting of

wolves from aircraft. More specifically, the petitioner submits that the carrying

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Operations and Rural Development)

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and use of firearms on aircraft is within the exclusive legislative competence

of the federal government under the Constitution Act, 1867 (U.K.), 30 & 31

Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5, that the federal

government has prohibited the carrying and use of firearms on aircraft

pursuant to the Canadian Aviation Security Regulations, 2012, S.O.R./2011-

318 [Canadian Aviation Security Regulations, 2012], and that the impugned

provisions of the Wildlife Act and Permit Regulation conflict with the Canadian

Aviation Security Regulations, 2012 and are thereby rendered inoperative.

[3]

The respondent submits as follows:

a) that the wolf cull program as implemented through the Wildlife Act and Permit

Regulation is not an improper delegation of authority and is legally valid;

b) that the issued permits contain sufficient detail and are valid; and,

c) that there is no conflict between the provincial and federal enactments giving

rise to the paramountcy doctrine since, inter alia, exemptions from the

prohibitions in the Canadian Aviation Security Regulations, 2012 are available

and have been issued.

[4]

The respondent also challenges the standing of the petitioner to bring this

petition.

[5]

For the reasons that follow, I have determined that: the petitioner has

standing to bring this petition; s. 3.1 of the Permit Regulation is not ultra vires; and,

the paramountcy doctrine is not applicable. I have declined to consider the issue of

the sufficiency and detail of permits since there are none in existence and it is not

known what future permits may contain.

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Facts

The Parties

[6]

The respondent is Minister of Forests, Lands, Natural Resource Operations

and Rural Development (the “Ministry”), who is responsible for, among other things,

the administration of the Wildlife Act.

[7]

The petitioner, Pacific Wild Alliance, is a not-for-profit society registered under

the Societies Act, S.B.C. 2015, c. 18, and a registered charity with the Canada

Revenue Agency. It was incorporated on May 27, 2008.

[8]

Ian McAllister, the co-founder and Executive Director of the petitioner, has

filed an affidavit deposing to the mission, interests, and activities of the petitioner, as

follows:

4. Pacific Wild is a wilderness and wildlife protection organization that

conducts research, public education, and community outreach on wildlife and

habitat conservation issues in the province. Its mission is to support

"innovative research, public education, community outreach and raising

conservation awareness to achieve the goal of lasting environmental

protections for the lands and waters of the Great Bear Rainforest and

throughout the wild Pacific Northwest."

5. Pacific Wild has an interest in the natural heritage in British Columbia's

wildlife. It focuses on the interrelationships between marine and terrestrial

environments and the interdependence of wildlife species throughout British

Columbia. It monitors natural environments, photographs wildlife, and

broadcasts photos, and videos. Recently, Pacific Wild broadcasted a

documentary called "The Great Bear Rainforest" at various lmax theatres

across the province and the world, which showcased the natural environment

and wildlife of the Great Bear Rainforest, including wolves and bears.

[9]

Mr. McAllister deposes that one of the key animal species studied by the

petitioner is wolves and one of the petitioner’s main campaigns is “to raise public

awareness of the importance wolves play in British Columbia's ecosystem, and to

protect wolves in this province through its campaign called ‘Save BC Wolves’". He

deposes that the petitioner has been actively engaged in opposing the wolf cull

program since 2015, including by writing letters, mobilizing its membership and the

public, hosting celebrities to speak out against the cull, issuing press releases,

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creating a petition against the cull, and working with scientists to learn more about

the impact of the wolf cull on wolf populations and the ecosystem.

[10] Mr. McAllister further deposes that the petitioner has 3,579 “active supporters

across British Columbia and throughout the world”; 2,794 “active supporters” of its

campaign relating to the wolf cull; 63,790 followers on Facebook; 163,000 followers

on Instagram; and over 9,100 followers on Twitter.

[11] Notwithstanding the evidence of Mr. McAllister that wolves are a “key” animal

species for the petitioner and that one of its main campaigns is opposition to the wolf

cull, the Constitution of the petitioner and the content of its website suggest

otherwise. The purposes of the petitioner as set out in its Constitution are very

broadly described as:

a) to raise awareness through research and education of conservation issues in

the Pacific environment;

b) to work with a diverse array of groups and individuals to ensure that

biodiversity protection is at the forefront of land and marine use decisions;

and

c) to develop and implement ways to create lasting conservation in the lands

and waters of the Pacific Ocean.

[12] The “About Us” and “Our Mission” sections of the petitioner’s website suggest

that that its objects and purposes are general conservation in the Pacific Northwest

region, with a specific focus on the area of the Great Bear Rainforest.

About Us

Pacific Wild Alliance is committed to mobilizing both U.S. and Canadian

communities dedicated to protecting the unique diversity of the Pacific

Northwest bioregions of North America.

Pacific Wild's current focus area is on the northern portion of the Pacific coast

of Canada, an area known as the Great Bear Rainforest. Located between

Bute Inlet to the south and the Alaskan panhandle to the north, this region

contains a significant portion of the world's remaining intact temperate

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rainforest. Historically, this forest type occupied less than 0.2% of the earth's

land mass and remains one of the rarest forest types on the planet.

Our Mission

Pacific Wild Alliance is committed to defending wildlife and their habitat by

developing and implementing solution-based conservation strategies. PWA

supports innovative research, public education, community outreach and

awareness to achieve the goal of lasting environmental protection in the

lands and waters of the Great Bear Rainforest and the correlating migratory

routes of marine mammals throughout the Pacific Northwest region. PWA

pursues projects and activities through three main initiatives in order to

achieve our conservation goals: ocean, land and community.

[Emphasis added.]

[13] It is notable that neither the Constitution of the petitioner nor its website

specifically identifies wolves or the wolf cull as being an important objective of the

petitioner. I will address this further when I consider the standing of the petitioner.

The Caribou Recovery Program

[14] The Caribou Recovery Program and the part played in the program by the

wolf cull is explained in detail in the affidavit of Darcy Peel made on September 25,

2020. Mr. Peel is the Director of the Caribou Recovery Program, which is under the

auspices of the Species at Risk Recovery Branch of the Ministry. Mr. Peel has held

this position since 2018. In summary, Mr. Peel deposes:

a) The woodland caribou (Rangifer tarandus caribou) populations in the province

of British Columbia are at risk of extirpation, largely due to loss of habitat that

has significantly altered the predator-prey dynamic;

b) British Columbia's Southern Mountain and Boreal populations of woodland

caribou are listed as “threatened species” under Schedule 1, Part 3 of the

Species at Risk Act, S.C. 2002, c. 29 [SARA]. The Northern Mountain

population of woodland caribou is listed in Part 4 of the SARA as a species of

"special concern";

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c) The primary goal of the Caribou Recovery Program is to halt any further

decline in the woodland caribou populations and to achieve stable and

sustainable population levels;

d) The objectives of the Caribou Recovery Program are achieved through

various means including habitat protection, habitat restoration, herd planning,

augmentation, maternal penning (i.e. capturing female caribou in late spring

and allowing them to give birth in a predator free enclosure), and predator

management;

e) The decline in the caribou populations is ultimately due to the loss of habitat,

but predation is an immediate cause of caribou mortality and must be

addressed. If predation pressure on caribou is not reduced, in the short term,

the caribou will not survive to benefit from habitat protection and restoration

measures;

f) The primary predator of the caribou is the wolf;

g) The predator management aspect of the program involves using a

combination of regulated hunting and trapping, managing primary prey

populations, and direct removal of predators;

h) Relying solely on ground hunting and trapping of wolves proved to be an

ineffective means of control;

i) Aerial removal of wolves has proven the most effective way to reduce

predator pressure in caribou habitats. The optimal conditions for this are

during the winter months when snow cover allows for both tracks and wolves

to be seen from the air;

j) The Ministry does not have the internal resources to carry out the predator

management aspects of the Caribou Recovery Program. It therefore contracts

with third parties to perform this work. The third parties are contracted to

provide helicopters, pilots and personnel to carry out the cull. At times, the

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third party may only provide a helicopter and pilot and the cull is carried out

by officers under the Wildlife Act;

k) The third parties with whom the Ministry contracts are also issued permits

under the Permit Regulation exempting them from the prohibition contained in

s. 27 of the Wildlife Act, prohibiting hunting wildlife from an aircraft;

l) The permits that were issued under the Permit Regulation required that the

permit holder comply with applicable laws. The Ministry placed the onus on

the permit holder to obtain exemptions from any federal prohibitions against

the carrying or use of firearms on board an aircraft.

[15] Mr. Peel further deposes to the consultations that have been held with various

“stakeholders.” These stakeholders include affected First Nations and various

environmental non-governmental stakeholders. The stakeholders consulted varied

with the particular region under consideration. The environmental non-governmental

stakeholders included Valhalla Wilderness Society and Wildsight. The petitioner is

not among the non-governmental stakeholders consulted, although the petitioner

was a signatory to letters opposing the predator management aspects of the Caribou

Recovery Program.

[16] Mr. Peel also deposes in his first affidavit filed September 29, 2020 that, since

2017, the Ministry has typically held quarterly calls with environmental stakeholder

groups. He acknowledges difficulties with ascertaining who was on those calls and

identified several groups, but not the petitioner. In a later affidavit, filed June 9, 2021,

Mr. Peel deposes that, since the making of his first affidavit, he believed the

petitioner had been involved in the quarterly calls with environmental groups.

[17] Mr. Peel further deposes to the existence of five caribou recovery treatment

areas in the province. He notes that the Great Bear Rainforest overlaps three

caribou herd territories and that, in two of those territories, there was no culling

activity in 2019/2020. In respect of the one territory where there was culling, only five

wolves were culled in the Great Bear Rainforest.

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Filing of the Petition

[18] On July 2, 2020, the petitioner filed the original petition in this matter seeking,

inter alia: a declaration that s. 3(1)(c)(ii) of the Permit Regulation was invalid; an

order quashing any outstanding permits; and, a declaration that ss. 19(1) or (3) of

the Wildlife Act and s. 3(1)(c)(ii) of the Permit Regulation were inoperative or

inapplicable on the grounds that those provisions conflicted with the Canadian

Aviation Security Regulations, 2012 and the Canadian Aviation Regulations,

S.O.R./96-433 [Canadian Aviation Regulations].

Events Subsequent to the Filing of the Petition

[19] At the time the petition was filed, s. 3(1)(c) of the Permit Regulation provided:

3(1) A regional manager may issue a permit in accordance with this

regulation on the terms and for the period he or she specifies, exempting a

person from . . .

(c) the prohibitions in section 27 of the Act against

(i) discharging a firearm or killing wildlife from a motor vehicle

or from a boat that is propelled by a motor,

(ii) hunting wildlife from an aircraft or using a helicopter to

transport hunters or game, or

(iii) herding wildlife with the use of a motor vehicle, aircraft,

boat or other mechanical device,

[20] In the 2019/2020 season, regional managers had issued seven permits for

the culling of wolves pursuant to s. 3(1) of the Permit Regulation. However, by the

time the petition was filed, all but one of those permits had expired. The only

outstanding permit had been issued to three contractors in relation to the Central

Selkirks and Columbia North regions. That outstanding permit was surrendered, at

the request of the Ministry, after the commencement of the petition and before the

filing of the response to the petition.

[21] On September 25, 2020, the respondent filed its original response to the

petition.

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[22] Subsequent to the filing of the response to the petition, amendments were

made to the Permit Regulation and exemptions were obtained from the Director

General, Aviation Security for the Minister of Transport, from various provisions of

the Canadian Aviation Security Regulations, 2012.

[23] On January 28, 2021, by Order in Council 042/2021, s. 3(1)(c) of the Permit

Regulation was repealed and replaced by s. 3.1, which is the impugned section in

this petition.

[24] Between November 2020 and February 2021, four exemptions from the

Canadian Aviation Security Regulations, 2012, were issued. The exemptions relate

to ss. 78, 79, 80, 526, and 527 of the Canadian Aviation Security Regulations, 2012.

Sections 78, 79, and 80 of these regulations prohibit persons from carrying, having

access to, or transporting weapons at aerodromes or on-board aircraft. Sections 526

and 527 prohibit air carriers from allowing a person onboard an aircraft to carry,

have access to, or transport a weapon on an aircraft. The exemptions issued were

as follows:

a) Aviation Security Exemption 2020-108, exempting air carriers contracting

with, inter alia, “conservation officers” under the Environmental Management

Act and “officers” under the Wildlife Act from ss. 526 and 527(1) of the

Canadian Aviation Security Regulations;

b) Aviation Security Exemption 2020-109, issued November 30, 2020,

exempting, inter alia, conservation officers under the Environmental

Management Act and “officers” under the Wildlife Act from ss. 78(1), 78(2),

79(1), 79(2), and 80(1) of the Canadian Aviation Security Regulations;

c) Aviation Security Exemption 2021-24, issued February 8, 2021, exempting

trained personnel of contractors listed in Schedule 1 from, ss. 78(1), 78(2),

79(1), 79(2), and 80(1) of the Canadian Aviation Security Regulations, 2012;

and,

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d) Aviation Security Exemption 2021-25, issued February 8, 2021, exempting air

carriers listed in Schedule 1 from ss. 526 and 527(1) of the Canadian Aviation

Security Regulations, 2012.

[25] Between February 8 and 19, 2021, eight permits were issued under ss. 2 and

3.1 of the Permit Regulation for the culling of wolves in the 2020/2021 season. The

permit with the latest expiry date expired on April 21, 2021. The permit holders were

covered by the Aviation Security Exemptions.

The Amended Petition

[26] As a consequence of the amendment to the Permit Regulation, the petitioner

filed the amended petition on May 19, 2021. The amended petition replaced the

challenge to s. 3(1)(c) of the Permit Regulation with a challenge to the new s. 3.1.

Despite the issuance of the Aviation Security Exemptions between November 2020

and February 2021, the amended petition continues to contain a request for a

declaration that ss. 19(1) or (3) of the Wildlife Act and s. 3.1 of the Permit

Regulation, are inoperative or inapplicable on the grounds that those provisions

conflict with the Canadian Aviation Security Regulations, 2012 and the Canadian

Aviation Regulations.

[27] The amended petition requests the following relief:

a) An order granting the petitioner public interest standing;

b) A declaration that ss. 3.1(1)(b) and (c), 3.1(3), and 3.1(4) of the Permit

Regulation are ultra vires as an improper delegation of authority;

c) A declaration that any permits issued under ss. 3.1(1)(b) and (c), 3.1(3), and

3.1(4) of the Permit Regulation are ultra vires and null and void;

d) In addition, or in the alternative, a declaration that any permit issued under or

that relies on ss. 2(c)(iii), 3.1(1)(b) or (c), 3.1(3), or 3.1(4) of the Permit

Regulation “must specify the specific conditions on which the permit is

issued”;

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e) An order quashing any unexpired permits; and

f) A declaration that sections 19(1) or (3) of the Wildlife Act and ss. 3.1 (1)(b) or

(c), 3.1(3), or 3.1(4) of the Permit Regulation are inoperative or inapplicable

as conflicting with the Canadian Aviation Security Regulations, 2012.

[28] The respondent filed its amended response on June 4, 2021. The respondent

pleads, inter alia:

a) That that the petitioner does not meet the test for public interest standing;

b) That there are no outstanding unexpired permits and that the issue of the

validity of any such permits was, therefore, moot;

c) That the provisions of s. 3.1 of the Permit Regulation are not an improper or

impermissible delegation of authority; and

d) That, given the Aviation Security Exemptions, the impugned provisions of the

Wildlife Act and Permit Regulation do not conflict with the Canadian Aviation

Security Regulations, 2012 or the Canadian Aviation Regulations.

[29] In submissions before me, given that there were no outstanding and

unexpired permits, the petitioner abandoned the request for an order quashing any

unexpired permits and abandoned the pleading that there was a conflict with the

Canadian Aviation Regulations. Thus, the petitioner’s constitutional argument relates

solely to the Canadian Aviation Security Regulations, 2012.

The Statutory Regime

Firearm Act

[30] Section 9 of the Firearm Act [s. 12 at the time of the filing of the original

petition] prohibits the discharge or carrying of firearms on an aircraft or other

conveyance, unless authorized by regulation or a permit, as follows:

9 (1) Unless authorized by the regulations or a permit, a person must not

discharge, carry or have in the person's possession, in or on a railway car,

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hand car or other vehicle on a railway, or in or on a motor vehicle, wagon,

sleigh, aircraft, bicycle or other conveyance, a firearm containing live

ammunition in its breech or in its magazine.

(2) A person who contravenes subsection (1) commits an offence.

Wildlife Act

[31] The hunting of wildlife, among other wildlife issues, in British Columbia is

governed by the Wildlife Act. “Hunt” is a defined term that includes shooting at

wildlife:

1 (1) In this Act:

[. . .]

"hunt" includes shooting at, attracting, searching for, chasing, pursuing,

following after or on the trail of, stalking or lying in wait for wildlife, or

attempting to do any of those things, whether or not the wildlife is then or

subsequently wounded, killed or captured,

(a) with intention to capture the wildlife, or

(b) while in possession of a firearm or other weapon;

[32] “Regional manager” is also a defined term and means “a regional manager of

the recreational fisheries and wildlife programs.”

[33] Section 27(2) of the Wildlife Act prohibits the hunting of wildlife from an

aircraft unless authorized by regulation:

27 (1) A person who discharges a firearm or wounds or kills wildlife from a

motor vehicle or from a boat that is propelled by a motor commits an offence.

(2) A person commits an offence if the person

(a) hunts wildlife from an aircraft, or

(b) uses a helicopter for the purposes of transporting hunters or game,

or while on a hunting expedition,

except as authorized by regulation.

(3) A person who herds or harasses wildlife with the use of a motor vehicle,

aircraft, boat or other mechanical device commits an offence.

(4) A person who hunts game within 6 hours after being airborne in an

aircraft, other than a regularly scheduled commercial aircraft, commits an

offence.

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[34] The term “aircraft” is not defined in the Act but it is common ground that it

includes a helicopter.

[35] Section 19(1) of the Wildlife Act specifically authorizes a regional manager to

issue permits authorizing persons to do anything that they are otherwise prohibited

from doing by the provisions of the Act, but only “to the extent authorized by and in

accordance with regulations.” Section 19(3) of the Wildlife Act further authorizes a

regional manager to exempt persons from the provisions of s. 9 of the Firearm Act:

19 (1) A regional manager or a person authorized by a regional manager

may, to the extent authorized by and in accordance with regulations made by

the Lieutenant Governor in Council, by the issue of a permit, authorize a

person

(a) to do anything that the person may do only by authority of a permit

or that the person is prohibited from doing by this Act or the

regulations, or

(b) to omit to do anything that the person is required to do by this Act

or the regulations,

subject to and in accordance with those conditions, limits and period or

periods the regional manager may set out in the permit and, despite anything

contained in this Act or the regulations, that person has that authority during

the term of the permit.

(2) A permit issued under this Act must be issued in a manner and form, if

any, and with the conditions, if any, specified by the director.

(3) If a regional manager issues a permit respecting the use of firearms, the

regional manager may exempt a person from the requirements of section 9 of

the Firearm Act and may specify the conveyance or type of conveyance for

which the permit is limited.

(4) The regional manager or the person authorized by the regional manager

may amend the conditions of a permit as determined by him or her and

issued under this section, but the amendment is not effective until the

permittee has notice of it.

[Emphasis added.]

[36] Section 108 of the Wildlife Act provides for the making of regulations by the

Lieutenant Governor in Council or the Cabinet. It empowers the Lieutenant Governor

in Council to make regulations referred to in s. 41 of the Interpretation Act, R.S.B.C.

1996, c. 238 [Interpretation Act], as well as for a lengthy list of specified purposes,

including for the issuance of permits.

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Regulations by Lieutenant Governor in Council

108 (1) The Lieutenant Governor in Council may make regulations referred to

in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may

make regulations as follows:

[. . .]

(c) respecting applications for licences, permits and limited entry

hunting authorizations, specifying conditions of eligibility for them

including proof of financial responsibility or insurance for third party

liability and discriminating among classes of applicants for them

whether or not the classes are specified in this Act;

(d) prescribing conditions of eligibility including proof of financial

responsibility or insurance for third party liability for different classes of

licence applicants and for different licences, permits and limited entry

hunting authorizations;

. . .

(k) exempting persons or classes of persons from the application of

provisions of this Act or the regulations;

. . .

(l.2) respecting the circumstances in which a person may take, kill or

possess wildlife;

[. . .]

(3) Without limiting subsection (1), the Lieutenant Governor in Council may

make regulations as follows:

. . .

(d) prescribing the conditions under which boats, aircraft, motor

vehicles or snowmobiles may be used for the purpose of hunting,

trapping, taking or viewing wildlife or for angling;

. . .

(n) for any purpose contemplated by this Act;

[. . .]

(4) The Lieutenant Governor in Council may delegate a power under

subsection (2) or (3) to the minister.

(5) The Lieutenant Governor in Council, despite anything in this Act, may

make regulations respecting the issue of permits.

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Interpretation Act

[37] As indicated, s. 108(1) of the Wildlife Act empowers the Lieutenant Governor

in Council to make regulations referred to in s. 41 of the Interpretation Act. Section

41 of the Interpretation Act provides:

Powers to make regulations

41 (1) If an enactment provides that the Lieutenant Governor in Council or

any other person may make regulations, the enactment must be construed as

empowering the Lieutenant Governor in Council or that other person, for the

purpose of carrying out the enactment according to its intent, to

(a) make regulations as are considered necessary and advisable, are

ancillary to it, and are not inconsistent with it,

(b) provide for administrative and procedural matters for which no

express, or only partial, provision has been made,

(c) limit the application of a regulation in time or place or both,

(d) prescribe the amount of a fee authorized by the enactment,

(e) provide, for a regulation made by or with the approval of the

Lieutenant Governor in Council, that its contravention constitutes an

offence, and

(f) provide that a person who is guilty of an offence created under

paragraph (e) is liable to a penalty not greater than the penalties

provided in the Offence Act.

(2) A regulation made under the authority of an enactment has the force of

law.

Permit Regulation

[38] The issuance of permits under the Wildlife Act is governed by the Permit

Regulation. Section 2(c)(iii) of the Permit Regulation specifically authorizes a

regional manager to issue permits to hunt, trap, or kill wildlife “if the regional

manager considers it necessary for the proper management of the wildlife resource.”

Authorization by permit

2 A regional manager may issue a permit in accordance with this regulation

on the terms and for the period he or she specifies

[. . .]

(c) authorizing a person to hunt, trap or kill wildlife during the open or closed

season for the following purposes:

(i) scientific purposes;

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(ii) educational purposes;

(iii) if the regional manager considers it necessary for the proper

management of the wildlife resource;

(iv) on behalf of the government, to destroy wildlife that is dangerous

to public safety;

(v) on behalf of the government, to destroy wildlife that is so badly

injured that prolonging the animal's life would result in the animal

suffering unduly,

[Emphasis added.]

[39] Section 3.1(1)(b) additionally authorizes a regional manager to issue permits

to, inter alia, authorize a person to hunt wildlife from an aircraft—an activity that is

otherwise prohibited by s. 27 of the Wildlife Act.

3.1 (1) Subject to subsections (2) to (4), a regional manager may issue a

permit in accordance with this regulation on the terms and for the period the

regional manager specifies authorizing a person to undertake one or more of

the following activities prohibited by section 27 of the Act:

(a) discharging a firearm or wounding or killing wildlife from a motor

vehicle or from a boat that is propelled by a motor; (b) hunting wildlife

from an aircraft;

(b) hunting wildlife from an aircraft;

(c) using a helicopter to transport hunters or game, or while on a

hunting expedition;

(d) herding or harassing wildlife with the use of a motor vehicle,

aircraft, boat or other mechanical device.

[Emphasis added.]

[40] Section 3.1(3) prescribes that the regional manager shall not issue a permit

for hunting of wildlife from an aircraft unless he is satisfied the person has sufficient

skill to undertake the activity and either the permit is issued for specified purposes or

the regional manager considers the permit is necessary for the proper management

of a wildlife resource:

(3) A regional manager may not issue a permit under subsection (1) (b) or (d)

unless

(a) the regional manager is satisfied that the person who will be

undertaking the activity under the permit has sufficient skill to

undertake that activity, and

(b) one of the following applies:

Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource

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(i) the activity to be undertaken under the permit is for a

purpose referred to in any of subsection (2) (a) (i) to (vi);

(ii) the regional manager considers that issuing the permit is

necessary for the proper management of a wildlife resource.

[41] The purposes for which a permit may be issued for the hunting of wildlife from

an aircraft, as set out in s. 3.1(2)(a)(i) to (vii), are:

(i) a scientific purpose;

(ii) an educational purpose;

(iii) to destroy wildlife that is dangerous to public safety;

(iv) to destroy wildlife that is so badly injured that prolonging the animal's life

would result in the animal suffering unduly;

(v) to address a matter of animal health among wildlife populations;

(vi) to control wildlife populations;

(vii) to accommodate hunting by a person with a physical disability [. . .]

[Emphasis added.]

Positions of the Parties

[42] The petitioner makes several broad submissions, which I will address in more

detail below. In summary, the petitioner submits:

a) It has public interest standing to challenge the issuance of permits to hunt

wolves by aircraft as there is a serious or important issue raised in which it

has a genuine interest and that this petition is a reasonable and effective

means to bring the claim to the court;

b) The permitting scheme under the Wildlife Act and Permit Regulation for the

hunting/culling of wolves from helicopters has already been determined to be

ultra vires in Western Canada Wilderness Committee v. B.C. (Ministry of

Environment and Parks) (1988), 25 B.C.L.R. (2d) 93 (S.C.), 1988 3042

(BC SC) [Wilderness Committee], which decision is binding on me pursuant

to the doctrine espoused in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R.

590 (B.C.S.C.), 1954 253 (BC SC) [Re Hansard Spruce Mills];

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c) Alternatively, s. 3.1 of the Permit Regulation is an improper subdelegation of

legislative authority by the Lieutenant Governor in Council to the regional

managers and, therefore, ultra vires;

d) Alternatively, permits that fail to state the purpose for which they are issued,

the geographic scope and other relevant terms are invalid as an improper

exercise of the regional managers’ discretion; and

e) The permit scheme for the hunting/culling of wolves from helicopters is in

conflict with valid federal legislation, namely the Canadian Aviation Security

Regulations, 2012, and, therefore, inoperative under the principles of

paramountcy.

[43] The respondent submits, in summary:

a) The petitioner lacks the requisite public interest standing to bring this petition;

b) Wilderness Committee is not determinative of the vires of the permitting

scheme as the relevant provisions of the Permit Regulation have changed

since that decision was rendered;

c) Section 3.1 of the Permit Regulation is not an improper subdelegation of

legislative authority;

d) The Wildlife Act and the Permit Regulation do not require a level of specificity

concerning the purpose, geographic scope, and other terms upon which the

permits are issued and such permits are not invalid; and

e) The issuance of permits for the hunting/culling of wolves by helicopter is a

valid exercise of provincial constitutional jurisdiction in relation to property and

civil rights and, given the Aviation Security Exemptions, the permitting

scheme is not rendered inoperative by the doctrine of paramountcy.

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Issues

[44] The issues to be determined on this petition, and the order in which I will

address them, are:

a) Does the petitioner have standing?

b) What is the appropriate standard of review?

c) Are sections 3.1(1)(b) or (c), 3.1(3), and 3.1(4) of the Permit Regulation ultra

vires as an improper delegation of legislative authority by the Lieutenant

Governor in Council to the regional managers?

d) Are permits that fail to specify the purposes for which they are issued or the

geographic scope or fail to contain other specific requirements or conditions,

invalid as an improper exercise of the regional managers’ discretion?

e) Are sections 19(1) or (3) of the Wildlife Act and sections 3.1(1)(b) or (c),

3.1(3), and 3.1(4) of the Permit Regulation inoperative on the grounds of

paramountcy?

[45] I intend to address the effect of decision of this Court in Wilderness

Committee when I consider the improper delegation issue.

Analysis

Does the Petitioner have Standing?

Legal Principles

[46] The leading case on public interest standing in British Columbia is Council of

Canadians with Disabilities v. British Columbia (Attorney General), 2020 BCCA 241,

leave to appeal granted [2020] S.C.C.A. No. 403 [CCD], which sets out the

principles established by the Supreme Court of Canada in Minister of Justice (Can.))

v. Borowski, [1981] 2 S.C.R. 575 [Borowski] and Canada (Attorney General) v.

Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45

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[Downtown Eastside]. I note that CCD was recently before the Supreme Court of

Canada and the decision is under reserve.

[47] At para. 3 of CCD, Justice Dickson, writing for the Court, set out the three

factors from Borowski that are to be considered and also noted that, since 1982, the

courts have been liberal and generous in the exercise of the discretion to permit

standing:

[3]

Public interest standing is an aspect of judicial discretion. In

exercising their discretion to grant or refuse public interest standing, courts

consider the three factors set out in Canada (Minister of Justice) v. Borowski,

[1981] 2 S.C.R. 575: i) whether there is a serious justiciable issue raised by

the claim; ii) whether the plaintiff is directly affected by the proposed action

or, if not, has a genuine interest in its outcome; and iii) whether the action is a

reasonable and effective means to bring the claim to court. Since the

Canadian Charter of Rights and Freedoms came into force in 1982, courts

have exercised this discretion liberally and generously while accounting for

concerns that traditionally limited standing, namely, ensuring that the courts

are not overburdened with marginal or redundant claims, that “busybody”

litigants are screened out, that courts benefit from the contending views of

those most directly affected by an issue and that they maintain their proper

role within our democratic system of government.

[48] At para. 4, Dickson J.A. stated that the Borowski factors were to be applied

“flexibly, purposively and pragmatically”:

[4]

As Charter challenges have grown in frequency and complexity over

the years, so, too, has standing law evolved and developed. Three decades

after the Charter was passed, the Supreme Court of Canada re-examined the

traditional concerns underlying strict limitations on standing and relaxed some

of them in the public law context: Canada (Attorney General) v. Downtown

Eastside Sex Workers United Against Violence Society, 2012 SCC 45. The

goals of standing law remain the same: to ensure that legislation and state

action are lawful, that courts are accessible and that judicial resources are

deployed economically and appropriately. However, since Downtown

Eastside was decided courts have sought to achieve them by applying the

Borowski factors flexibly, purposively and pragmatically, increasingly attuned

to the importance of upholding the legality principle and the practical realities

of providing meaningful access to justice for vulnerable and marginalized

citizens affected by legislation of questionable constitutional validity.

[49] At para. 86, Dickson J.A. observed that courts must weigh the factors

cumulatively, balance access to justice with the preservation of judicial resources,

and interpret and apply the governing principles in a liberal and generous way:

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[86]

As I have explained, since Downtown Eastside was decided judges

have been obliged to apply the Borowski test in a flexible and purposive

manner. The three Borowski factors, which are interrelated, are not to be

treated as hard and fast requirements, nor are they to be applied

mechanically. Rather, they are to be weighed cumulatively, in light of the

underlying purposes of standing and the circumstances of the case, and

applied flexibly with a view to serving those purposes. In exercising their

discretion to grant or refuse public interest standing, judges must balance

access to justice with the preservation of judicial resources, with a particular

view to upholding the legality principle. In doing so, they must interpret and

apply the governing principles in a liberal and generous way: Downtown

Eastside at paras. 20–23, 31–33; Canadian Council of Churches at 249–250,

252–253.

[50] The plaintiff/petitioner bears the onus of establishing standing: CCD at para.

88.

Discussion

Serious and Justiciable Issue

[51] The first Borowski factor is whether there is a serious and justiciable issue.

CCD, and the cases referred to therein, provide guidance as to what may constitute

a serious and justiciable issue. At para. 90, Dickson J.A. observed that a serious and

justiciable is one that is appropriate for judicial determination and is “far from

frivolous" and that a challenge to the constitutionality of legislation is always

justiciable.

[52] At para 94, Dickson J.A. also stated that it is generally only necessary that

one justiciable issue be identified:

[94]

The question of whether a claim raises a serious justiciable issue is

closely related to the question of whether the pleadings disclose a reasonable

cause of action, but the two are not identical. Where a reasonable cause of

action is disclosed on the pleadings the foundation is laid for a conclusion

that there is a serious question to be tried: British Columbia/Yukon

Association of Drug War Survivors v. Abbotsford (City), 2015 BCCA 142 at

para. 25. For standing purposes, it is generally only necessary for one

serious issue to be disclosed on the pleadings. A detailed screening of the

merits of every aspect of a multifaceted claim is not required to satisfy the

first factor of the Borowski test: Downtown Eastside at para. 56.

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[53] I have no hesitation in finding that the petition raises a serious and justiciable

issue. The issues raised in the petition are not only appropriate for judicial

determination but judicial determination is the only means by which they can be

addressed. Further, the issues are far from frivolous. First, the petition raises a

constitutional issue, which is prima facie a serious issue. Second, the petition

concerns the validity of legislation and of government action. Third, that the issues

raised are “far from frivolous” is indicated by the fact that, after the filing of the

original petition, s. 3(1)(c) of the Permit Regulation was replaced by s. 3.1.

Genuine Interest

[54] The second Borowski factor concerns whether the petitioner is directly

affected by the action or has a genuine interest in its outcome. This factor was

explained at para. 98 of CCD as follows:

[98]

The genuine interest factor is concerned with whether the plaintiff has

a real stake in the proceedings or is engaged with the issues in question. As

noted, its purpose is to achieve “concrete adverseness” to ensure sharp

debate, thorough argument and thus economical use of judicial

resources: Downtown Eastside at paras. 29, 43.

[55] In Downtown Eastside at para. 43, Justice Cromwell noted, inter alia, that

genuine interest involves an assessment of the plaintiff’s engagement and

continuing interest with an issue:

[43]

In Finlay, the Court wrote that this factor reflects the concern for

conserving scarce judicial resources and the need to screen out the mere

busybody (p. 633). In my view, this factor is concerned with whether the

plaintiff has a real stake in the proceedings or is engaged with the issues they

raise. The Court’s case law illustrates this point. In Finlay, for example,

although the plaintiff did not in the Court’s view have standing as of right, he

nonetheless had a direct, personal interest in the issues he sought to

raise. In Borowski, the Court found that the plaintiff had a genuine interest in

challenging the exculpatory provisions regarding abortion. He was a

concerned citizen and taxpayer and he had sought unsuccessfully to have

the issue determined by other means (p. 597). The Court thus assessed Mr.

Borowski’s engagement with the issue in assessing whether he had a

genuine interest in the issue he advanced. Further, in Canadian Council of

Churches, the Court held it was clear that the applicant had a “genuine

interest”, as it enjoyed “the highest possible reputation and has demonstrated

a real and continuing interest in the problems of the refugees and immigrants”

(p. 254). In examining the plaintiff’s reputation, continuing interest, and link

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with the claim, the Court thus assessed its “engagement”, so as to ensure an

economical use of scarce judicial resources (see K. Roach, Constitutional

Remedies in Canada (loose-leaf), at ¶5.120).

[Emphasis added.]

[56] There are several factors that lead me to question whether the petitioner has

the appropriate level of engagement and continuing interest with the issues raised in

the petition.

[57] First, the primary geographic area of interest of the petitioner is the Great

Bear Rainforest. However, as deposed to by Mr. Peel, there has been minimal

culling of wolves in that area. His evidence was that in 2019/2020 only five wolves

were culled in the Great Bear Rainforest.

[58] Second, the petitioner’s Constitution and its website do not identify wolves or

the wolf cull as an important objective of the petitioner. Rather, they focus on

generalities such as “protecting the unique diversity of the Pacific Northwest

bioregions of North America,” “[ensuring] that biodiversity protection is at the

forefront of land and marine use decisions,” and “[achieving] the goal of lasting

environmental protection in the lands and waters of the Great Bear Rainforest.”

[59] Third, the petitioner has had minimal involvement with the Ministry in relation

to the Caribou Recovery Program and the wolf cull aspect of that program. As

deposed to by Mr. Peel, the petitioner has not been among the non-governmental

stakeholders consulted by the Ministry and appears to not have had any involvement

with the quarterly calls held by the Ministry until after the commencement of the

petition. The petitioner’s involvement with the Ministry has been limited to signing

letters opposing the predator management aspects of the Caribou Recovery

Program.

[60] The evidence that the petitioner has a genuine interest is contained primarily

in the affidavit of Ian McAllister. As I have set out above, he deposes that one of the

key animal species studied by the petitioner is wolves and one of its main

campaigns is “Save BC Wolves."

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[61] I accept that the petitioner has some interest in the wolf cull in that it has

created a petition against the cull, has signed letters opposing the cull, and, since

the petition was filed, has sat in on some quarterly telephone calls with the Ministry.

However, in my view, the evidence falls short of establishing a continuing interest or

a significant level of engagement with the issues.

Reasonable and Effective Means

[62] The third Borowski factor is whether the action is a reasonable and effective

means to bring the claim to court. This factor was further explained in CCD as

follows:

[99]

In Hy and Zel’s Inc. v. Ontario (Attorney General), 1993 30

(SCC), [1993] 3 S.C.R. 675, Justice Major described the third Borowski factor

as lying “at the heart of the discretion to grant public interest standing”: at

692. It was traditionally expressed and sometimes applied as a strict

requirement that an applicant must show “there is no other reasonable and

effective manner in which the issue may be brought before the Court”. This

rigid approach was relaxed in Downtown Eastside, where Justice Cromwell

held that the third factor should be assessed flexibly and purposively by

considering “whether the proposed suit is, in all of the circumstances, and in

light of a number of considerations … a reasonable and effective means to

bring the challenge to court” (emphasis added): at para. 44.

[100] Justice Cromwell provided a non-exhaustive list of interrelated matters

that the court should consider when assessing the third Borowski factor,

including the plaintiff’s capacity to bring the claim and “whether the issue will

be presented in a sufficiently concrete and well-developed factual setting”.

Whether the case transcends the interests of those most directly affected and

facilitating access to justice for affected disadvantaged persons are also

highly relevant, as are the practical prospects of private interest plaintiffs

“bringing the matter to court at all or by equally or more reasonable and

effective means” and the potential impact on the rights of directly affected

others, especially where private and public interests may come into conflict:

at para. 51.

[63] The respondent focuses on one of the factors set out by Cromwell J., namely,

“whether the issue will be presented in a sufficiently concrete and well-developed

factual setting” by the petitioner.

[64] I am satisfied that this third factor is met. The petition raises issues of the

validity and constitutionality of regulations. Such issues must be determined by this

Court. Moreover, I reject any suggestion that the petitioner does not have the

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capacity to bring the claim or that it is not able to present the issues properly. The

petitioner has thoroughly, perhaps even excessively, canvassed the facts, issues,

and relevant authorities. An additional consideration is the fact that the mammals

most directly affected, the wolves, have no ability to bring the action: Alberta's Free

Roaming Horses Society v. Alberta, 2019 ABQB 714 at para. 18.

Conclusion on Standing

[65] The various Borowski factors “are to be weighed cumulatively, in light of the

underlying purposes of standing and the circumstances of the case, and applied

flexibly with a view to serving those purposes”: CCD at para. 86.

[66] Overall, I am satisfied that the petitioner should be granted public interest

standing. Although I have concerns about the petitioner’s genuine interest, the other

factors are sufficiently strong that standing should be granted. The importance of the

issues, the need to ensure that legislation and state action are lawful, and the fact

that the original petition prompted the Government to amend the impugned

regulations, all weigh heavily in the result. However, I would add that, the scale was

fairly evenly balanced and just barely tilted in favour of standing.

Standard of Review

[67] The parties are agreed that the applicable standard of review varies with the

particular issue being addressed.

Vires of s. 3.1 of the Permit Regulation

[68] Concerning the standard of review to be applied to the question of the vires of

s. 3.1 of the Permit Regulation, the petitioner submits that the standard is one of

correctness, but acknowledges that the issue is uncertain. The respondent’s written

submissions were equivocal on the appropriate standard. However, in oral

submissions, the respondent took the position that the standard is reasonableness.

[69] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65

at para. 17, the Supreme Court of Canada developed a revised framework for the

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determination of the applicable standard of review. Under that revised framework,

the presumed standard of review is reasonableness, unless: (1) the legislature

specifically indicates a different standard is to apply; or, (2) the rule of law requires

that the standard of correctness be applied, such as constitutional questions,

general questions of law of central importance, and questions related to the

jurisdictional boundaries.

[70] The parties have not made specific submissions to the effect that the

legislative scheme in issue dictates a standard of review other than reasonableness

nor on the existence of any jurisdictional boundaries that might justify a correctness

standard of review. Thus, unless general questions of law of central importance are

involved, the Vavilov framework dictates the standard of review should be that of

reasonableness.

[71] The authorities since Vavilov have not been entirely consistent as to whether

Vavilov altered the standard of review when determining the vires of a regulation. In

Bertrand v. Acho Dene Koe First Nation, 2021 FC 287, Justice Grammond noted at

para. 75 that there was a debate whether Vavilov had changed the standard of

review applicable to the vires of a regulation. However, he found it unnecessary to

“wade into these issues” given the circumstances of that case.

[72] In Hudson’s Bay Company ULC v. Ontario (Attorney General), 2020 ONSC

8046, at paras. 37–39, the Court held that Vavilov did not affect the standard of

review to be applied when challenging the vires of regulations and that the

applicable standard of review remained one of correctness. Similarly, in Friends of

Simcoe Forest Inc. v. Minister of Municipal Affairs and Housing, 2021 ONSC 3813,

at para. 25, the Court held that, in determining the vires of a regulation, the standard

of review was correctness.

[73] However, 1120732 B.C. Ltd. v. Whistler (Resort Municipality), 2020 BCCA

101 and 1193652 B.C. Ltd. v. New Westminster (City), 2021 BCCA 176 [1193652

B.C. Ltd.], suggest that Vavilov may have changed the appropriate standard of

review. Although both cases concerned the validity of a municipal bylaw, not a

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regulation, the Vavilov framework was applied and, in both cases, it was determined

that the applicable standard of review in relation to the validity of a city bylaw was

one of reasonableness. Of particular relevance are the comments of Justice

Dickson, at paras. 47–48 of 1193652 B.C. Ltd., concerning when general questions

of law might give rise to the correctness standard:

[47]

In Vavilov, the Court gave examples of general questions of law that

could not be resolved by applying a reasonableness standard because the

decision would have legal implications for a wide variety of other statutes and

the proper functioning of the justice system. These included broad legal

questions such as when an administrative proceeding will be barred by the

doctrines of res judicata and abuse of process, the scope of the state’s duty

of religious neutrality and the appropriateness of limits on solicitor-client

privilege. However, the Court stressed “the mere fact that a dispute is ‘of

wider public concern’ is not sufficient for a question to fall into this category—

nor is the fact that the question, when framed in a general or abstract sense,

touches on an important issue”: at para. 61. It also noted that a decision

maker’s expertise is no longer a consideration when identifying general

questions of law of central importance sufficient to attract a correctness

standard: at paras. 60–61.

[48]

In my view, the question of whether the Community Charter

authorizes municipalities to enact bylaws that protect tenants from

renovictions even though the Residential Tenancy Act regulates landlord-

tenant renovictions may well be a matter of wide public concern, but it is not a

general question of law of central importance to the legal system as a whole.

Rather, it is a specific question of statutory interpretation concerned solely

with the legislative schemes established in the Community Charter and the

Residential Tenancy Act. This question does not engage any larger principle

or subject matter that transcends the schemes at issue. I would also note

that I see the question posed by 119 as too abstract to constitute a centrally

important general question of law.

[Emphasis added.]

[74] In my view, the same can be said here. The question of whether s. 3.1 of the

Permit Regulation is a proper delegation of authority may be a matter of some public

concern, but it does not engage any larger principle. It is a specific question

concerned solely with the legislative scheme in the Wildlife Act and the Permit

Regulation. It does not raise a general question of law of central importance to the

legal system as a whole.

[75] I further take into account that the Supreme Court of Canada in Vavilov

repeatedly stated that there were only very limited exceptions to the presumed

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standard of reasonableness. The strictness of the exceptions is encapsulated at

para. 69 of Vavilov as follows:

[69]

In these reasons, we have identified five situations in which a

derogation from the presumption of reasonableness review is warranted

either on the basis of legislative intent (i.e., legislated standards of review and

statutory appeal mechanisms) or because correctness review is required by

the rule of law (i.e., constitutional questions, general questions of law of

central importance to the legal system as a whole, and questions regarding

jurisdictional boundaries between administrative bodies). This framework is

the product of careful consideration undertaken following extensive

submissions and based on a thorough review of the relevant jurisprudence.

We are of the view, at this time, that these reasons address all of the

situations in which a reviewing court should derogate from the presumption of

reasonableness review. As previously indicated, courts should no longer

engage in a contextual inquiry to determine the standard of review or to rebut

the presumption of reasonableness review. Letting go of this contextual

approach will, we hope, “get the parties away from arguing about the tests

and back to arguing about the substantive merits of their case”: Alberta

Teachers, at para. 36, quoting Dunsmuir, at para. 145, per Binnie J.,

concurring.

[Emphasis added.]

[76] In my view, therefore, the appropriate standard of review to be applied to the

question of the vires of s. 3.1 of the Permit Regulation is one of reasonableness. In

other words, the vires of s. 3.1 of the Permit Regulation is to be determined by an

assessment of whether the decision of Cabinet to enact s. 3.1 was a reasonable

interpretation of its statutory authority to make regulations under ss. 19 and 108 of

the Wildlife Act.

Issuance of Permits

[77] The petitioner submits that the regional managers’ decisions to issue permits

are reviewable on a standard of reasonableness. The respondent makes no specific

submissions on the standard of review.

[78] I agree with the petitioner that, consistent with the Vavilov framework, the

standard of review in relation to the question of the sufficiency of the permits is

reasonableness.

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Constitutional Issues

[79] The parties have correctly identified that the standard of review applicable to

the issue of the constitutional operability of the impugned provisions of the Permit

Regulation is correctness: Vavilov at para. 17.

Is s. 3.1 of the Permit Regulation Ultra Vires?

[80] As indicated, the petitioner submits that s. 3.1 of the Permit Regulation is an

improper subdelegation of legislative authority by the Lieutenant Governor in Council

to the regional managers and, therefore, ultra vires. More specifically, the petitioner

makes three alternative submissions. First, it says that the vires of the present

scheme was determined in Wilderness Committee and that, pursuant to the rule in

Re Hansard Spruce Mills, I should follow this decision. Second, it says that s. 19(1)

of the Wildlife Act requires that Cabinet promulgate regulations containing a

complete code for the issuance of permits and that s. 3.1 of the Permit Regulation

does not contain such a complete code and is, therefore ultra vires. Third, it says

that, if the Wildlife Act does not require a complete code, s. 3.1 of the Permit

Regulation is still ultra vires as the regulations do not provide sufficient guidance or

direction.

[81] I will address each of these alternative arguments.

Is Wilderness Committee Determinative?

[82] Wilderness Committee concerned the legislative scheme relating to the

culling of wolves from aircraft that was in effect in 1988. The specific issue was the

validity of a permit issued by a regional manager to two employees of the Ministry

authorizing them to hunt wolves from a helicopter or aircraft. The resolution of this

issue involved a consideration of s. 20(1) of the 1982 Wildlife Act, S.B.C. 1982, c. 57

[1982 Wildlife Act] and of s.1(n) of the Wildlife Act Permit Regulations, B.C. Reg.

337/82 [1982 Permit Regulation].

[83] Justice Huddart (as she then was) initially addressed the standing of the

petitioner and, after concluding that the petitioner had standing, moved on to

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consider the vires of s. 1(n) of the 1982 Permit Regulation. She commenced her

analysis by setting out the relevant provisions at 97–98:

The Wildlife Act contains the following relevant provisions:

20. (1) A regional manager or a person authorized by him may, to the

extent authorized by and in accordance with regulations made by the

Lieutenant Governor in Council, by the issue of a permit, authorize a

person

(a) to do anything that he may do only by authority of a permit

or that he is prohibited from doing by this Act or the

regulations, or

(b) to omit to do anything that he is required to do by this Act

or the regulations,

subject to and in accordance with whatever conditions, limits and

period or periods he may set forth in the permit ...

(3) Where a regional manager issues a permit respecting the use of

firearms, he may exempt a person from the requirements of section

12 of the Firearm Act and may specify the conveyance or type of

conveyance for which the permit is limited ...

28. ...

(2) A person commits an offence where he

(a) hunts wildlife from an aircraft, or

(b) uses a helicopter for the purposes of transporting hunters

or game, or for hunting except as authorized by regulation.

The Wildlife Act Permit Regulations, B.C. Reg. 337/82 provide in part:

1. A regional manager, by issuing a permit with whatever conditions,

limits and period or periods he may include in or attached [sic] to the

permit may authorize:

(n) a person to carry on an activity prohibited in section 28 of the Act

and to exempt a person from section 12 of the Firearm Act.

[84] I note that s. 20(1) of the 1982 Wildlife Act is substantially identical to s. 19(1)

of the current Wildlife Act. The only difference is that s. 19(1) of the current Wildlife

Act uses gender neutral language. Section 1(n) of the 1982 Permit Regulation is,

however, substantially different from s. 3.1 of the current Permit Regulation, a

difference to which I will return.

[85] After setting out the relevant provisions, Huddart J. observed, at 98, that the

Wildlife Act gives the regional manager the authority to issue permits in accordance

Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource

Operations and Rural Development)

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with regulations made by the Lieutenant Governor in Council and that s. 1(n) of the

1982 Permit Regulation simply transferred the authority to issue permits to the

regional manager:

In short, the Wildlife Act gives the regional manager authority to issue

permits in accordance with regulations made by the Lieutenant Governor in

Council and gives the Lieutenant Governor in Council the authority to make

those regulations. Regulation 1(n) simply transfers the authority to issue

permits to the regional manager.

[86] At 98–99, she explained that this was an improper subdelegation of legislative

authority:

When the legislature gives an officer the authority to issue permits "in

accordance with the regulations made by the Lieutenant Governor in

Council", the legislature has delegated the decision-making power to the

Cabinet. Generally, such regulations would lay out the circumstances under

which the officer may issue permits: how many, during what periods of time,

for what purposes, and so on. They would set out the state of facts required

for a permit to be issued. The regulations would provide a complete scheme

of standards and criteria by which the officer is to be guided and with which

he or she must comply.

Because the regulation in this case transfers the decision-making

power to the regional manager, the regional manager issues permits at his

own unfettered discretion. The petitioners argue that this subdelegation of

discretionary power is unlawful. They have strong support in the

jurisprudence, for the subdelegation of a discretionary power has been held

generally to be unlawful. In A.G. Can. v. Brent, [1956] S.C.R. 318, 114 C.C.C.

296, 2 D.L.R. (2d) 503 [Ont.], the Supreme Court of Canada quashed a

regulation that merely repeated the exact wording of part of the Immigration

Act because (at p. 505):

. . . Parliament had in contemplation the enactment of such

Regulations relevant to the named subject-matters, or some of them,

as in His Excellency in Council's own opinion were advisable, and not

a wide divergence of rules and opinions, everchanging according to

the individual notions of Immigration Officers ... There is no power in

the Governor General in Council to delegate his authority to such

officers.

The same proposition was upheld in Vic Restaurant Inc. v. Montreal

(1958), 17 D.L.R. (2d) 81 (S.C.C.); Kirkpatrick v. Maple Ridge (1983), 49

B.C.L.R. 134, 8 D.L.R. (4th) 66 (C.A.); R. v. Horback, 65 W.W.R. 129, [1968]

1 C.C.C. 234, 64 D.L.R. (2d) 17 (B.C.S.C.); and Dhillon v. Richmond (Mun.)

(1987), 16 B.C.L.R. (2d) 80, 37 M.P.L.R. 243 (S.C.).

The language of the Wildlife Act makes it clear that the legislature

contemplated regulations that would provide guidelines for the regional

manager in the issuance of permits. In addition to the reference to regulations

Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource

Operations and Rural Development)

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in s. 20, s. 110(4) provides that the Lieutenant Governor in Council "may

make regulations respecting the issue of permits and prescribing the

purposes for which permits may be issued".

[Emphasis added.]

[87] At 100, after rejecting various arguments made by the respondent, Huddart J.

held that s. 1(n) of the 1982 Permit Regulation was ultra vires and the permit issued

pursuant to it was null and void.

[88] The petitioner says the facts in Wilderness Committee are essentially

identical to those before me, that the statutory regime at issue in Wilderness

Committee is “identical in material respects” to the regime before me, and that the

issue in Wilderness Committee is identical to the one before me—namely, whether

the regulations provided an adequate framework for the regional manager’s exercise

of authority. The petitioner says that the well-known test from Re Hansard Spruce

Mills applies and I should similarly determine the current scheme is ultra vires.

[89] In Re Hansard Spruce Mills, Justice Wilson at 592 stated that a trial judge of

this Court should follow the decisions of another judge of this Court unless:

(a) Subsequent decisions have affected the validity of the impugned

judgment;

(b) it is demonstrated that some binding authority in case law, or some

relevant statute was not considered;

(c) the judgment was unconsidered, a nisi prius judgment given in

circumstances familiar to all trial Judges, where the exigencies of the trial

require an immediate decision without opportunity to fully consult authority.

[90] I do not agree with the petitioner that Wilderness Committee has determined

the issues before me or that Re Hansard Spruce Mills applies in the way the

petitioner submits.

[91] The central issue in Wilderness Committee was the vires of s.1(n) of the 1982

Permit Regulation, which merely transferred the decision-making power to the

regional manager. That section has been repealed and replaced with what is now s.

3.1 of the current Permit Regulation. Section 3.1 is considerably more detailed and

specific than was s. 1(n) of the 1982 Permit Regulation. The current scheme is not,

Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource

Operations and Rural Development)

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as the petitioner submits, “identical in material respects” to the regime before

Huddart J. The changes to the regulations are significant. Given these changes, it

cannot be said that Wilderness Committee is in any way determinative of the vires of

s. 3.1 of the current Permit Regulation.

[92] Additionally, I would add that Wilderness Committee predated Vavilov and

that Huddart J. applied a standard of correctness to the review. As I have indicated,

in the post-Vavilov world, the standard is one of reasonableness.

[93] This is not to say that Wilderness Committee has no precedential or

authoritative value. It does. Its authoritative value lies in the interpretation Huddart J.

gave to s. 20(1) of the 1982 Wildlife Act, which is substantially identical to s. 19(1) of

the current Wildlife Act. She held that, by the words “in accordance with regulations

made by the Lieutenant Governor in Council” in s. 20(1) of the 1982 Wildlife Act, the

legislature delegated the power to make regulations to Cabinet and imposed on

Cabinet the obligation to make regulations: Wilderness Committee at 98. This aspect

of her decision is subject to the rule in Re Hansard Spruce Mills. Indeed, I do not

understand the respondent to suggest otherwise. The respondent accepts that

Cabinet is required to enact regulations that contain more detail than was contained

in s. 1(n) of the 1982 Permit Regulation. The respondent submits that Cabinet has

done so with s. 3.1 of the current Permit Regulation.

[94] The fundamental disagreement between the parties is as to the scope of

detail the regulations must provide. The petitioner submits that the regulations must

provide a complete code for the issuance of permits and that s. 3.1 of the current

Permit Regulation falls sufficiently short of this such that it remains an invalid

subdelegation of authority. The respondent, on the other hand, submits that

regulations setting out a complete code are not required. This is the issue to which I

now turn.

Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource

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Does the Wildlife Act Require a Regulation Containing a Complete Code

or Scheme?

[95] In support of its submission that s. 19 of the Wildlife Act requires that Cabinet

promulgate regulations setting out a complete code of the standards and criteria

under which wildlife may be hunted by aircraft, the petitioner relies heavily on the

comments at 98 of Wilderness Committee, where Huddart J. wrote that regulations

generally provide “a complete scheme”. However, in my view, the petitioner reads

too much into this dicta. The issue before Huddart J. was the validity of a regulation

that simply transferred the regulation making power to the regional manager, with no

conditions, standards or criteria. The result was that the regional manager was given

unfettered discretion. The issue was not the sufficiency of the conditions, standards

or criteria. Huddart J. was merely observing that, generally, regulations provide “a

complete scheme”. This observation was not essential to her determination that

there was an unlawful delegation of statutory power. Further, Huddart J. did not hold

that the regulations required by s. 19 of the Wildlife Act must provide a complete

scheme or code. This is apparent from the reasons at 99, where she expressly held

that “the legislature contemplated regulations that would provide “guidelines” to the

regional manager. She did not address, how detailed or extensive those guidelines

needed to be.

[96] The view expressed by Huddart J. that “guidelines” are required is supported

by other authorities to which I have been referred, specifically, Vic Restaurant Inc. v.

City of Montreal, [1959] S.C.R. 58 [Vic Restaurant]; Brant Dairy Co. v. Ontario (Milk

Commission), [1973] S.C.R. 131 [Brant Dairy]; Peralta v. Ontario (1985), 16 D.L.R.

(4th) 259 (Ont. C.A.) [Peralta Ont. C.A.], aff’d [1988] 2 S.C.R. 1045 [Peralta S.C.C.].

Vic Restaurant

[97] Vic Restaurant concerned a refusal by the Director of Police of an application

for renewal of a licence to allow the applicant/appellant to sell liquor at a restaurant

in Montreal. The Charter of the City of Montreal gave the city council the authority to

issue such licences. However, in a bylaw, the City made it a requirement that the

Director of the Police Department approve of any applicant for a licence. In a split

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Operations and Rural Development)

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decision, the Supreme Court of Canada held that this was an improper delegation of

authority. There appears to be predominantly two grounds for the Court’s decision.

First, Justice Locke, writing for the majority, held at 85 that the underlying statute did

not authorize or purport to authorize a subdelegation to the Director of the Police

Department. This aspect of the decision is not in issue before me. Second, Locke J.

noted the absence of any direction in the bylaw to the Director of Police as to the

manner in which he might exercise his discretion. At 76 and 82, he wrote:

. . . The whole controversy relates to the failure to obtain the approval of the

Director of Police. As to that official, while the council was authorized to fix

the "terms and manner of issuing licences", the by-law contains no directions

whatever to the Director of Police as to the manner in which the discretion

given to him to approve or refuse to approve applications for licences was to

be exercised. Thus, the director might refuse his approval upon any ground

which he considered sufficient.

[. . .]

The manner in which the licenses are to be issued has been fixed by the by-

law by vesting the ministerial act of issuing them in the Director of Finance.

The power to fix the terms upon which they are to be issued has been vested

in the city council. For that body to say that before the Director of Finance

may issue a licence, the Director of Police, in his discretion, may prevent its

issue by refusing approval is not to fix the terms, but is rather an attempt to

vest in the Chief of Police power to prescribe the terms, or some of the terms,

upon which the right to a licence depends. In this case, granted the

necessary power had been given to the council by the charter, the by-law

might, as pointed out in the judgment of this Court in Bridge's case, have

prescribed a state of facts the existence of which should render a person

ineligible to receive a permit, as by providing that none such shall be granted

to persons who were guilty of repeated infractions of the city by-laws as to

hours, or of the provisions of the Quebec Liquor Act or who permitted

prostitutes to congregate on their premises or who were otherwise persons of

ill repute. Nothing of this nature appears in this by-law but, as in the cases to

which I have referred in the other provinces, it has been left without direction

to the Chief of Police to decide whether the applicant should or should not be

permitted to carry on a lawful calling.

[Emphasis added.]

[98] In concurring reasons, Justice Cartwright expressed a similar view at 99 and

101:

The impugned provisions of by-law no. 1862 appear to me to be fatally

defective in that no standard, rule or condition is prescribed for the guidance

of the Director of the Police Department in deciding whether to give or to

withhold his approval. It is expressly provided that if that approval is withheld

Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource

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no licence shall issue in respect of the activities or things comprised in 41

sections of the by-law, many of which contain a number of subparagraphs

which in turn include numerous activities.

[. . .]

. . . I agree with my brother Locke that the effect of the by-law is to leave it to

the Director of the Police Department, without direction, to decide whether an

applicant should or should not be permitted to carry on any of the lawful

callings set out in the 41 sections referred to above

[Emphasis added.]

Brant Dairy

[99] Brant Dairy concerned the vires of various regulations made under the Milk

Act of Ontario, the purpose of which was to control the marketing of milk in Ontario.

The scheme involved two entities: the Milk Commission of Ontario (the

“Commission”), which was established by the Milk Act, and the Milk Marketing Board

(the “Board”), which was established by regulation. The Milk Act authorized the

Commission to make regulations concerning the marketing of milk, including the

establishment of quotas, and also authorized it to subdelegate its powers to a

marketing board. The Commission enacted regulation O. Reg. 294/65 delegating

certain of the Commission’s powers to the Board, including certain of the

Commission’s regulation-making authority, in the same terms as conferred to the

Commission in the Milk Act. At 143, Justice Laskin (as he then was), writing for the

majority, observed that the effect of the regulation was to substitute the Board for the

Commission and to transfer the powers granted by the Milk Act from the

Commission to the Board:

The effect of O. Reg. 294/ 65, in its delegation to the Board was, in the first

place, to substitute the Board for the Commission for the exercise of the

powers granted by s. 4(2) of The Milk Act; second, it amounted to an exercise

by the Commission of various of its powers under s. 8 (1) to "authorize" the

Board to do the things specified in the powers, and in this respect it put the

Board in the same position as to those powers as it was in by the delegation

to it of the powers under s. 4 (2) of the Act; and third, it passed to the Board

the various powers of the Commission to "provide", "prohibit" or "require"

certain things by regulation.

[Emphasis in original.]

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[100] Regulation 294/65 also contained a so-called “deem proper” provision in the

same terms as one included in the Milk Act but with substituted names. Specifically,

the Milk Act authorized the Commission to make regulations “for any other reason

that the Commission deems proper.” In O. Reg. 294/65, s. 6(c), the Commission

authorized the Board to make regulations “for any other reason that the marketing

board deems proper.” Justice Laskin held at 143–144 that this transfer of discretion

was not objectionable:

The quoted provisions delegate to the Board the Commission's powers under

paras. 3 and 11 of s. 8 (1) of the Act. The basis of the attack on this

delegation is that the Commission's powers under these paragraphs were

associated with a duty conferred on it alone; the language of the Act was

express that what "the Commission deems proper" was to govern. I cannot

agree with this reading of paras. 3 and 11 of s. 8 (1). In authorizing

unqualified delegation by the Commission to the Board, the Act envisaged a

substitution of the latter for the former to the extent that the Commission

deemed it proper to do so. I take this to mean that the Commission could

lawfully invest the Board with the discretion originally committed to the

Commission in the carrying out of the powers conferred by the Act.

The discretion associated with the powers vested in the Commission by

paras. 3 and 11 were as fully delegable as the powers themselves, of which,

indeed, they are inseparable parts:[. . . ]

[Citation omitted.]

[101] Justice Laskin then turned to consider the regulations passed by the Board.

Some of these were found to be valid as a proper exercise of subdelegated

authority, while others were held to be invalid. At 146–147, Laskin J. wrote:

Section 4 of O. Reg. 52/68 is of another order. It purports to carry out what is

delegated to it under subss. (i), (ii), (iii) and (iv) of s. 6(i) of the Commission’s

Regulation 294/65. These provisions of the Commission’s regulation merely

repeat the statutory terms of para. 11 of s. 8(1) with the substitution of the

words “marketing board” for the word “Commission” in the statute. Paragraph

11 of s. 8(1) is a “providing” clause; the Commission, and, by delegation, the

Board are authorized to provide by regulation for a quota system and for

quotas. What the Board has done has been to exercise the power in the very

terms in which it was given. It has not established a quota system and

allotted quotas, but has simply repeated the formula of the statute, specifying

no standards and leaving everything in its discretion.

I am of the opinion that s. 4 of O. Reg. 52/68 is ultra vires. The fact that the

powers conferred are to be carried out on a basis that the Board deems

proper does not entitle it to keep its standards out of the regulation. The

“deem proper” clause of the empowering statute gives the Board (as

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subdelegate) a wide scope in setting up a quota system and in fixing quotas

but it does not allow the Board to escape its obligation, as I read the statute,

to embody its policies in a regulation.

A statutory body which is empowered to do something by regulation does not

act within its authority by simply repeating the power in a regulation in the

words in which it was conferred. That evades exercise of the power and,

indeed, turns a legislative power into an administrative one. It amounts to a

redelegation by the Board to itself in a form different from that originally

authorized; and that this is illegal is evident from the judgment of this Court

in Attorney General of Canada v. Brent.

[Emphasis added.]

[102] In the result, parts of the regulations passed by the Board were held to be

invalid.

[103] It is notable, however, that O. Reg. 294/65 was not declared invalid by

Laskin J., notwithstanding that its validity was directly in issue. Nonetheless, at 150–

151, he seemed to suggest that O. Reg 294/65 should have provided some

“minimum direction”:

I do not overlook the discretionary element in the grant of authority to the

Commission and, by subdelegation, to the Board in this case and, similarly, to

the relevant tribunals in the Robbins case. What is objectionable, in my view

of the law, is not the breadth of the delegation or the subdelegation but the

failure of the subdelegate (and it would equally be a failure in the Commission

itself as delegate) to provide even a minimum of direction and specification in

s. 4 of O. Reg. 52/68. The Commission was given a discretion to fix the “law”

on enumerated matters, and was authorized to subdelegate its power to the

Board. Either one, as the regulation-making authority, could retain discretion

as to the execution or application of the “law”, but that is not this case so far

as s. 4 is concerned. There was no “law” stated.

[Emphasis added.]

[104] Justice Judson, writing for himself and two other members of the Court, also

commented on the validity of O. Reg. 294/65. At 161–162, he held that the Milk Act

gave the Commission the right to delegate regulation making powers to the Board in

the manner in which it did, stating:

The power of the Commission to deal with these matters is set out in s. 8(1)

of the Act in paras. (3) and (11) respectively. The power of the Commission to

delegate these powers is set out in s. 8(6) of the Act in the following terms:

Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource

Operations and Rural Development) Page 41

8(6) The Commission may delegate to a marketing board such of its

powers under subsection 1 as it considers necessary, and may at any

time terminate any such delegation.

These are very plain words. What the Commission has done in O. Reg.

294/65 is to delegate to the Board its powers as to licensing and quota fixing

as defined by s. 8 (1), para. 3, and s. 8 (1), para. 11, in the precise terms of

the Act. There is no requirement in the Act either as to licences or quotas that

the Commission itself should fix standards, and it has under the statute the

power to delegate to the Board all its discretionary powers with reference to

these two matters. On a plain construction of the Act, there is to me no doubt

about this delegation.

[Emphasis added.]

Peralta

[105] Peralta concerned the vires of regulations made under the federal Fisheries

Act and of regulations made under the provincial Game and Fish Act, both of which

established quotas. The applicants challenged the regulations on grounds of

unauthorized subdelegation to the provincial Minister and unconstitutional

interdelegation of federal legislative authority to the provincial Minister. The Ontario

Court of Appeal held that subdelegation was permitted by the underlying statutes. In

reaching this conclusion, Associate Chief Justice MacKinnon, writing for the Court of

Appeal, noted at 272 that there is no rule against subdelegation, but that it is rather,

at most, a rule of construction:

"There is no rule or presumption for or against subdelegation":

Driedger, "Subordinate Legislation", 38 Can. Bar Rev. 1 (1960), at p. 22. The

language of the statute must be interpreted in light of what the statute is

seeking to achieve. As Professor Willis pointed out, the

maxim delegatus non potest delegare "does not state a rule of law; it is 'at

most a rule of construction and in applying it to a statute 'there, of course,

must be a consideration of the language of the whole enactment and of its

purposes and objects'": Willis, "Delegatus Non Potest Delegare", 21 Can. Bar

Rev. 257 (1943), at p. 257.

[106] Associate Chief Justice MacKinnon also observed at 270–271 that the use of

the word “respecting” in the enabling statute indicated an intention to subdelegate,

as did the necessity of subdelegation:

This conclusion does not, of course, answer the fundamental

question, is there authority to subdelegate? Section 34(g) of the Fisheries

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Act allows for the Governor in Council to make regulations "respecting the

terms and conditions under which a lease or licence may be issued"

(emphasis in original). In dealing with this subsection the Divisional Court

judge quoted the wording of the subsection as it stood prior to the

amendment by R.S.C. 1970, c. 17 (1st Supp.). That wording

was "prescribing the terms and conditions under which a licence or lease is to

be issued" (emphasis added). By the amendment it can be seen that the

wording of the subsection was brought in line with s. 34(b) to (k). The

amendment must have had some purpose and significance and, in my

opinion, Parliament was ensuring that the Governor in Council was

empowered to delegate to others the administration of its regulations.

Accordingly, I differ from the view expressed by the Divisional Court judge

that "the clear intent" of Parliament was that the "discretionary power" was

entrusted to the Governor in Council and no one else. It is difficult to accept

that Parliament intended that the Governor in Council administer in detail the

myriad of situations existing across Canada from the suburban areas to the

remote north. If the respondents are right, the Governor in Council, in

administering the regulations in the instant case, would be expected to

allocate the thousands of individual quotas within the over-all maximum quota

it had set with relation to yellow pickerel as well as divide up the various

water areas.

[107] At 272, MacKinnon A.C.J.O. noted that considerable weight is given to

“administrative necessity” when considering whether subdelegation was intended:

When courts have considered whether delegation of ministerial

powers was intended, considerable weight has been given to "administrative

necessity", that is, it could not have been expected that the Minister (in this

case the Governor in Council) would exercise all the administrative powers

given to him. Further, in such cases the suitability of the delegate has been a

material factor in determining whether such delegation is intended and lawful:

see Lanham, "Delegation and the Alter Ego Principle", 100 L.Q.R. 587(1984).

[108] Further, at 278, MacKinnon A.C.J.O. addressed an argument, similar to the

one made before me, that the regulation transferred the entirety of the discretion

from the Governor in Council to the Minister. In rejecting this submission, MacKinnon

A.C.J.O. held this was not the case as the regulation provided general policy and

guidelines:

Mr. Scott forcefully argued that by virtue of s. 29(4) of the Ontario

Fishery Regulations, the Governor in Council had effectively abdicated to the

Minister all its powers which it and it alone could exercise. However, when

one examines the regulations it is clear that this is not so. For example, they

detail the general conditions applicable to commercial fishing and to gill-nets

and trawl-nets (ss. 30 to 43, 46, 57 to 59). They divide the waters of Ontario

special areas and they establish global quotas for commercial fishing of

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particular species from those waters (ss. 34, 39(5) and (6), 46(2), 59(1)).

Commercial fish are defined in the definition section, and their minimum sizes

are set out in Sch. VIII of the Ontario Fishery Regulations. The effect of the

regulations was to set general policy and in setting the individual quotas

within those policy guide-lines, the Minister was acting in a fashion consistent

with the regulations.

[Emphasis added.]

[109] The Supreme Court Canada dismissed the appeal of Peralta “substantially for

the reasons given by MacKinnon A.C.J.O. for the Ontario Court of Appeal”: Peralta

S.C.C.

[110] It is to be emphasized that in neither Vic Restaurant, Brant Dairy, nor Peralta

did the Supreme Court of Canada state that regulations must provide a complete

code or scheme for the authorized subdelegate. Rather, what was required was

“directions,” “guidance,” “general policy,” or “guidelines.” Moreover, the sufficiency of

the directions depended on the particular statutory scheme.

[111] Other relevant cases to which I have been referred are British Columbia (Milk

Marketing Board) v. Aquilini, 1997 2061 (B.C.S.C.) [Bari III B.C.S.C.], aff’d

(1998) 59 B.C.L.R. (3d) 143 (C.A.) [Bari III B.C.C.A.]; Dene Nation v. R., [1984] 2

F.C. 942 [Dene Nation]; and International Forest Products Limited. v. Her Majesty

the Queen in Right of the Province of British Columbia, 2006 BCSC 233

[International Forest Products Ltd.].

Bari III

[112] Bari III concerned the validity of a regulation made under the Canadian Dairy

Commission Act which, at s. 12(1)(a), authorized the Governor in Council to make

regulations “providing for the marketing of any dairy product on a quota basis.” The

regulation in issue, inter alia, granted to various provincial Boards the power to allot

the provincial quota to persons in the province. The argument advanced was that the

regulation was an impermissible delegation of authority to the provincial Boards. At

trial, relying largely on Peralta, Justice Wong in Bari III B.C.S.C. held, at paras. 88

and 107, that the statute authorized subdelegation. At para. 108, he then turned to

what he considered to be the second issue which was whether the regulation

Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource

Operations and Rural Development)

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“created a sufficiently complete ‘general rule of conduct or legislative scheme’".

At para. 109, he phrased the issue as whether the regulations “provide for a clear

identification of who is to administer the scheme and how they are to implement the

scheme?” He ultimately determined that the regulations were sufficient.

[113] On appeal, the Court of Appeal in Bari III B.C.C.A. agreed with the trial judge

that the regulation provided “sufficient definition” and was not invalid:

[31]

The learned trial judge considered that the actions of the CDC, the

CMSMC, and the Board which were carried out under the DPM Regs were

based on an analysis of the "particular facts in place at the time" or the basic

characteristics of making administrative decisions within this intricate system.

In the result, I respectfully agree with the learned trial judge when he wrote at

paragraph 128 of his lengthy reasons:

I agree with the submission of Counsel for the Attorney General of

Canada that this scheme has sufficient definition that the functions of

the CDC, CMSMC and the Board are to administrate, not legislate,

and I so find. Accordingly, I also find the subdelegation of federal

authority to be intra vires.

[Emphasis added.]

Dene Nation

[114] Dene Nation involved the validity of regulations under the federal Northern

Inland Waters Act. The underlying statute in the case authorized the Governor in

Council to make regulations authorizing the use of water in a water management

area without a licence. The impugned Northern Inland Waters Regulations, s. 11,

provided that water could be used without a licence “if the controller has stated in

writing that he is satisfied that the proposed use would meet the applicable

requirement of subsection 10(1) of the Act” and provided three additional criteria

were met. Justice Reed held that this was an impermissible delegation of authority

as follows:

[15]

I agree that the controller was not authorized to act legislatively e.g.,

by making regulations or rules. What occurred instead was the transformation

by regulation of a legislative power into an administrative or a quasi-judicial

power, and the conferral of that power on the controller.

[. . .]

[17]

In this case there has not been a wholesale delegation as in

the Brant and Brent cases (supra); some legislative guidance is given. The

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proposed use must be for municipal or water engineering purposes; the

quantity must be less than 50,000 gallons a day; and the requirements of

subsection 10(1) must be met. However, not enough legislative guidance has

been given to escape the conclusion that an unauthorized sub-delegation has

occurred. Subsection 10(1) does not provide a sufficiently complete code of

requirement. Instead it sets up parameters within which discretionary

judgments must be made.

[18]

In my view, Parliament intended that the Regulations themselves

would set out fully all the requirements necessary for authorization. On

reading paragraph 26(g) of the Act, it is clear that the authorization was to

occur in the Regulations not by decision of a sub-delegate having

discretionary powers. I am not even convinced that Parliament contemplated

the establishment of an officer, such as the controller, to grant authorizations

to use water without a licence. Although, on this point the law is clearly as

counsel for the defendant submitted: a delegate legislator may sub-delegate

to another body administrative power if necessary to do so in order to

implement the scheme or the standards established. The decisions in Vic

Restaurant Inc. v. City of Montreal, [1959] S.C.R. 58; Lamoureux v. City of

Beaconsfield, [1978] 1 S.C.R. 134 and R. v. Joy Oil Co. Ltd., [1964] 1 O.R.

119 (C.A.), were cited to me for this proposition.

[Emphasis added.]

[115] I do not find Dene Nation to be of much assistance. First, it is clear that in

Dene Nation there was a delegation of a statutory power to an entity that was not

even referred to in the underlying statute: Dene Nation at para. 12. That is very

different from the other authorities to which I have been referred and to the case

before me where s. 19 of the Wildlife Act specifically empowers the regional

managers to issue permits. Thus, Dene Nation concerned delegation to an

unauthorized subdelegate rather than the sufficiency of the delegating regulations.

The comment of Reed J. that the regulation “should set out fully all the requirements

necessary” may be accurate where there is a subdelegation of a statutory power to a

complete stranger but not where the subdelegation is expressly authorized by the

underlying statute. In Vic Restaurant, Brant Dairy, and Peralta, the Supreme Court of

Canada has said that, where the subdelegation is authorized, what is required is

general direction or guidance.

International Forest Products Ltd.

[116] The final case to which I was referred is International Forest Products Ltd.

This case involved a challenge to stumpage charges which were made under the

Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource

Operations and Rural Development)

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Forest Act and Scaling Regulation. One of the many issues in the case concerned

whether the Lieutenant Governor in Council was permitted to subdelegate the

method of scaling to a District Manager. The Forest Act gave the Lieutenant

Governor in Council the statutory authority to pass regulations concerning scaling

and also expressly authorized subdelegation to other persons. Notwithstanding this

authority to subdelegate, the petitioner argued that the Forest Act required there be

regulations setting out the scaling procedures. Justice B.I. Cohen addressed these

arguments at paras. 271–275. Importantly, at para. 272, he held that a requirement

that a subdelegate exercise a power “according to the prescribed procedures” does

not mandate that all scaling procedures be set out in the regulations, but merely

requires the subdelegate to comply with such regulations as are made. Additionally,

he addressed the distinction between a power to make regulations “respecting” a

subject-matter and a power to make regulations “prescribing” a subject-matter.

Although acknowledging the former had been held to allow subdelegation and the

latter did not, he held that no automatic prohibition on subdelegation could be

derived from the use of the word “prescribed”:

[271]

Although s. 151(1.1) gives the Lieutenant Governor in Council clear

authority to delegate some of his or her powers, Interfor says that this general

power to delegate cannot apply to the Lieutenant Governor in Council’s

power to pass regulations concerning scaling procedures, since s. 96(1)(a) of

the Act requires scaling procedures to be “prescribed”, meaning set down by

regulation. Interfor also submits that use of the word “prescribed” means the

Legislature intended no further delegation of the power to legislate scaling

procedures, citing Peralta v. Ontario (1985), 1985 3125 (ON CA), 16

D.L.R. (4th) 259 at 270-273, 49 O.R. (2d) 705 (C.A.), aff’d 1988 28

(SCC), [1988] 2 S.C.R. 1045, 56 D.L.R. (4th) 575; and E.A. Driedger, The

Composition of Legislation, 2nd ed. (Ottawa: Dept. of Justice, 1976) at 192-

93.

[272]

As discussed above, I do not accept Interfor’s interpretation of s.

96(1)(a) of the Act. The subsection states: “A person who scales or purports

to scale timber under this Act … must carry out the scale according to the

prescribed procedures….”. I find that a logical and grammatical reading of s.

96(1)(a) does not mandate that all scaling procedures must be set out in the

regulations, but rather that a person purporting to conduct a scale must follow

the scaling procedures that are set out in the regulations.

[273]

I also disagree with Interfor’s interpretation of Peralta, supra. In that

case, the Ontario Court of Appeal found at pp. 270-271, in obiter, that

Parliament had intended the Governor in Council to have the power to

delegate in regard to the power to make regulations “prescribing the terms

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and conditions under which a licence or lease is to be issued.” No automatic

prohibition on subdelegation can be inferred from use of the word

“prescribed.”

[274]

Furthermore, Driedger’s The Composition of Legislation, supra, does

not support Interfor’s position. In discussing subdelegation at p. 193, the

author suggests that a delegate with the power to make

regulations respecting a subject-matter could authorize some other person to

fix applicable regulations, whereas a delegate with the power to make

regulations prescribing a subject-matter could not delegate that power to

another (emphasis added). In this case, s. 151(2)(n) gives the Lieutenant

Governor in Council the power to makes regulations respecting scaling.

[275]

In the result, I find that s. 96(1)(a) does not interfere with the

Lieutenant Governor in Council’s express statutory authority to delegate a

matter or confer a discretion on a person (including in relation to scaling).

[Emphasis added.]

[117] Justice Cohen also addressed an argument advanced by the petitioner that

the Lieutenant Governor in Council had provided insufficient guidance to the District

Manager. At para. 288, he held that the “sufficient constraints” principle was an

exception to the general rule against subdelegation and had no application where

there was a statutory authorization to "delegate a matter" and "confer a discretion"

on a person:

[285] Interfor says that when a delegate has made a partial subdelegation

of its powers, it must set out a "sufficiently complete code" (Dene Nation v.

R., [1984] 2 F.C. 942 (Fed. T.D.), at 948) or "sufficiently complete 'general

rule of conduct or legislative scheme'" (Bari III, supra, at para. 108) to

constrain the subdelegate's discretion, as otherwise the subdelegation is

invalid.

[. . .]

[288] I do not agree with Interfor's submissions in this regard. The sufficient

constraints principle is an exception to the general rule against

subdelegation.

[289] In this case, the general rule against subdelegation does not apply,

and so neither does an exception to it. Here, unlike in Kirkpatrick , Dene

Nation, Western Canada Wilderness Committee and Bari III, supra, there is

express statutory authority allowing subdelegation of a discretionary power

(emphasis added). That this case is not analogous to any of the cases cited

by Interfor is demonstrated by the comments of Reed J. in Dene

Nation, supra, who in determining that there had been an illegal delegation of

power in that case, stated at p. 948: "There is nothing in the Act from which

one can infer any intention that part or all of that power should be conferred

on a subdelegate to be exercised in a discretionary fashion."

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[290] In this case, the Lieutenant Governor in Council is statutorily

authorized to "delegate a matter" and "confer a discretion" on a person. It is

therefore intra vires the Lieutenant Governor in Council to subdelegate to

designated Ministry officials an unfettered discretion to approve a particular

method of scaling.

[118] I note that there are inconsistencies between International Forest Products

Ltd. and Wilderness Committee. In both cases, the underlying statutes authorized

subdelegation. In International Forest Products, the subdelegate was to exercise the

delegated power “in accordance with prescribed procedures.” In Wilderness

Committee the subdelegate was to exercise the delegated power “in accordance

with regulations.” The quoted phrases are similar yet were interpreted differently. In

International Forest Products Ltd., Cohen J. held that the phrase “in accordance with

prescribed procedures” did not mandate that Cabinet pass regulations, but merely

required the subdelegate to comply with such regulations as were passed. However,

in Wilderness Committee, Huddart J. held that the phrase “in accordance with

regulations” required that regulations containing guidelines be promulgated.

[119] A second but related inconsistency relates to the so-called “sufficient

constraints principle.” In International Forest Products Ltd., Cohen J. held that this

principle applies only as an exception to the general rule against subdelegation and

had no application where subdelegation was expressly authorized. However, in

Wilderness Committee, Huddart J. applied the principle notwithstanding that the

subdelegation was expressly authorized.

[120] In my view, the decision of Huddart J. in Wilderness Committee is more

consistent with the various decisions of the Supreme Court of Canada than is that of

Cohen J. in International Forest Products Ltd. In particular, in Brant Dairy, the

Supreme Court of Canada held that there needed to be regulations providing some

guidelines or directions, notwithstanding that the subdelegation was expressly

authorized by the underlying statute.

[121] In Donald J.M. Brown, Q.C., The Honorable John M. Evans, and David

Fairlie, Judicial Review of Administrative Action in Canada (Thomson Reuters: 2009)

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(loose-leaf updated 2021), ch. 13, at § 13:21, the learned authors also address the

need for delegating instruments to contain some minimum standards or criteria,

although they also point out that the authorities have failed to establish a clear test

for what those standards or criteria should be:

Accordingly, some minimum standards or criteria must be included in the

delegating instrument, even where the instrument authorizes decisions to be

made by the very body having the power to make the subordinate legislation.

In other words, the subdelegation of decision-making power must be made

less "subjective" than the power contained in the statute, by including in the

instrument subdelegating the power some objective criteria that limit or

"structure" its exercise.

As yet, no clear tests or criteria have been articulated to assist in determining

the degree of discretion that can be conferred when discretionary decision-

making is subdelegated. . .

[Citations omitted.]

[122] In my view, the foregoing authorities do not establish any requirement that

regulations respecting the exercise of an authorized subdelegated power must

include a complete code. To the contrary, the balance of the authorities establish

that the regulations must provide some direction, guidance, or guidelines. Moreover,

the degree of direction or guidance required depends on the particular statutes in

issue. In some circumstances, as exemplified by Brant Dairy and to a lesser extent

by International Forest Products Ltd., where there is statutorily authorized

subdelegation and the subdelegate is itself given discretionary powers, the amount

of direction required is minimal.

Does the Permit Regulation Contain Sufficient Direction or Guidance?

[123] The next question is whether s. 3.1 of the Permit Regulation provides

sufficient guidance or direction. The petitioner submits it does not whereas the

respondent submits it does.

[124] Section 3.1 prescribes various conditions that must be met for a regional

manager to issue a permit. The conditions vary depending on the nature of the

permit. In respect of permits for the hunting of wildlife from an aircraft the conditions

are: first, that the regional manager is satisfied the permit applicant has sufficient

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skill to undertake the activity (s. 3.1(3)(a)); and, second, by the conjunction of ss.

3.1(2)(a) and 3.1(3)(b), the regional manager may only issue permits for specific

purposes or in specific circumstances. Those specific purposes or circumstances as

set out in s. 3.1(2), are:

(a) the activity to be undertaken under the permit is for one of the following

purposes:

(i) a scientific purpose;

(ii) an educational purpose;

(iii) to destroy wildlife that is dangerous to public safety;

(iv) to destroy wildlife that is so badly injured that prolonging the

animal's life would result in the animal suffering unduly;

(v) to address a matter of animal health among wildlife populations;

(vi) to control wildlife populations;

(vii) to accommodate hunting by a person with a physical disability, or

(b) the regional manager considers that issuing the permit is necessary for

the proper management of a wildlife resource.

[125] Section 3.1 of the Permit Regulation is not a complete code and leaves much

to the discretion of the regional manager. For example, the Permit Regulation does

not provide any guidance on what skills are required for a permit to be issued.

Accordingly, the regional manager has discretion to determine whether an applicant

for a permit has “sufficient skill to undertake the activity.” Similarly, it is left to the

discretion of the regional manager to determine if “issuing the permit is necessary for

the proper management of a wildlife resource.” Again, no criteria are set in the

regulations for the making of such decisions.

[126] Nonetheless, in the circumstances, I am satisfied that there is sufficient

guidance in s. 3.1 of the Permit Regulation and it is not ultra vires. In reaching this

result I am guided by the fact that the legislature intended the regional manager to

have a significant amount of discretion in the issuance of permits. This follows from

the closing words of s. 19(1) of the Wildlife Act, which provide:

. . . subject to and in accordance with those conditions, limits and period or

periods the regional manager may set out in the permit and, despite anything

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contained in this Act or the regulations, that person has that authority during

the term of the permit.

[Emphasis added.]

[127] By the underlined words the legislature gives the regional manager the

discretionary power to set the conditions, limits, and period or periods of the permits.

Thus, by direct legislative grant, the regional manager is delegated the power to set

the conditions, limits, and periods of permits. This is wholly inconsistent with any

suggestion that the regional manager does not have any discretion on their own.

The legislature clearly contemplated and intended that the regional manager would

have significant discretion in setting the terms of permits.

[128] Additionally, the closing words of s. 19(1) of the Wildlife Act indicate that the

legislature intended that the regulations to be promulgated by Cabinet would do little

more than authorize the regional manager to issue permits and provide very general

guidelines. Otherwise, the regional manager would not have been given the

discretion to set the “conditions, limits and period or periods” of the permits.

[129] Section 19(4) of the Wildlife Act is to a similar effect. It provides that the

regional manager “may amend the conditions of a permit as determined by him or

her.” Again, this is consistent with the regional manager setting the terms and

conditions of permits and inconsistent with the suggestion that Cabinet must do so

by regulation.

[130] I note that Huddart J. did not consider the closing words of s. 19 in

Wilderness Committee. I further note that those closing words make this case more

similar to Brant Dairy and International Forest Products than to any of the other

cases to which I have been referred.

[131] I also take into account the multiple objects and purposes of the Wildlife Act.

Broadly framed, the purpose is to manage wildlife in British Columbia, including

through programs to preserve, protect, and increase the health of wildlife: Diversified

Holdings Ltd. v. British Columbia (1983), 143 D.L.R. (3d) 529 (B.C.C.A.) at 536. The

management of wildlife is multi-faceted. It involves the designation of wildlife

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management areas, the establishment of wildlife sanctuaries, the regulation of alien

species, the regulation of hunting, fishing, and trapping (including training and

licencing), and the regulation of guides and outfitters. The Wildlife Act also defines

“wildlife” very broadly as including raptors, threatened species, endangered species,

game, other species of vertebrates prescribed by regulation (B.C. Reg. 168/90), and,

in certain circumstances, fish. The number of species governed by the Wildlife Act is

vast, as is the geographic area: the entire province of British Columbia. There are

multiple permutations and combinations of scenarios that could arise as a result of

the number of species covered and the large geographic area. In terms of simple

practicality or administrative efficiency, it would be impossible for Cabinet to address

these many different scenarios by regulations. In fact, to require Cabinet to do so

would undermine the broad objective of the Wildlife Act; to preserve, protect, and

increase the health of wildlife. To illustrate this point, I turn to the petitioner’s

submissions as to what the regulations ought to contain.

[132] The petitioner submits that the Permit Regulation ought to prescribe the

following conditions or terms for permits for the hunting of wildlife from aircraft:

(i) who may obtain a permit including the objective standards and criteria for

holding a permit and for hunting under the permit (e.g. proof of insurance,

proof of requisite training) (ss. 108(2)(c), (d) and (k));

(ii) what species may be subject to an aerial cull including objective standards

and criteria for triggering a cull (e.g. herd/pack size or density in relation to

habitat conditions or other species and their distribution) (s. 108(2)(l));

(iii) what form or forms of aerial hunting are allowed (tracking, net gunning,

chasing, lethal shooting) (ss. 1 (“hunt”), 108(2)(s), 1 08(3)(d));

(iv) where the hunting may occur including as defined by terrain or proximity

to inhabited areas (ss. 108(2)(l.2) and 108(3)(d));

(v) when the hunting may occur including any seasonal restrictions (s. 1

08(3)(e));

(vi) subject to what limits including the maximum permit length, the maximum

number of permits allowed in a region, the maximum number of animals that

may be killed and how that limit interacts with bag limits under the Hunting

Regulation (ss. 1 08(2)(l), (1.2) and 108(3)(d));

(vii) subject to what protective measures including provision for the safe

handling of firearms in hunting by air, the safe exercise of other activities

within the permit area including under an overlapping permit, and the

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protection of a species or habitat that may be adversely impacted by the

activities (ss. 108(2)(s) and 108(3)(d)).

[133] In my view, these submissions fail to take into account that permits for the

hunting of wildlife from aircraft are necessarily ad hoc in nature. They are issued to

address specific issues, as and when they arise. Cabinet cannot possibly anticipate

the various circumstances that may arise. For example, Cabinet cannot prescribe by

regulation the species subject to aerial culling as this will depend on the wildlife

issue that has arisen. Similarly, Cabinet cannot be expected to prescribe by

regulation the geographical area of the hunt as this will depend on where in the

province the issue has arisen. The same concerns apply to the type of aerial

hunting allowed, the period of the hunt and the number of permits needed. All of

these depend on the circumstances that have arisen. The current permits are for the

aerial culling of wolves due to their predatory affect on select caribou populations.

Other scenarios involving other species could arise in other geographic areas and

every scenario would involve different requirements. The Permit Regulation cannot

possibly address all such scenarios and to require Cabinet to anticipate all such

scenarios and include them in the Permit Regulation would undermine the very

purpose of the Wildlife Act.

[134] In my view, the legislature has recognized that the ability of Cabinet to

provide detailed regulations is limited by the variety of species covered by the

Wildlife Act, the large geographic area covered and the multiplicity of possible

scenarios that might arise requiring action to preserve and protect wildlife. It is for

this reason that the legislature has expressly delegated to the regional manager the

power to set the conditions, limits, and period or periods of the permits.

[135] In the circumstances, I am satisfied that the decision of Cabinet to enact

s. 3.1 of the Permit Regulation was a reasonable interpretation of its statutory

authority to make regulations under s. 19 of the Wildlife Act and that the regulations

are not ultra vires. I would add that, if reviewed to a standard of correctness, the

general guidance provided by s. 3.1 of the Permit Regulation is sufficient and the

regulation is not ultra vires.

Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource

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Are the Permits Invalid?

[136] Although the petitioner acknowledges that there are no outstanding permits, it

nevertheless requests a declaration that any future permits “must specify the specific

conditions upon which the permit is issued, including the conditions which render it

necessary for the proper management of the specific wildlife resource that wolves be

hunted by helicopter.”

[137] Declaratory relief is discretionary and is often refused where there is no lis, or

live issue, between the parties, or the circumstances are such that a proper factual

foundation is not before the Court, or what is requested is an opinion of the Court:

Tele-Mobile Company v. B.C., 2013 BCCA 216 at paras. 11, 13; Rattray Estate (Re),

2019 BCSC 1611 at paras. 27–28; Vision Avant-Garde Inc. v. Superintendent of

Financial Institutions, 2000 BCSC 423; Walters v. Agricultural Land Commission,

2016 BCSC 1618 at paras. 135–136.

[138] The petitioner has abandoned that part of the petition requesting a declaration

that permits issued be declared null and void. Therefore, there is currently no lis, or

live issue, between the parties in relation to permits.

[139] Further, there are no outstanding permits and it is not known whether permits

will be issued in the future or, if issued, what information they will or will not contain.

It also cannot be presumed that future permits, if issued, will be in the same terms

as past permits, given that the Permit Regulation was amended subsequent to the

filing of the petition and no permits have been issued under the amended

regulations.

[140] Thus, there is no proper factual foundation for the declaratory relief

requested. In the circumstances, the petitioner is asking this Court to give a

speculative opinion on what permits issued in the future should contain. This is not

an appropriate question for judicial review.

[141] I therefore decline to exercise my discretion to provide declaratory relief as to

what future permits must contain.

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Are ss. 19(1) or (3) of the Wildlife Act and s. 3.1 of the Permit Regulation

Inoperative?

[142] The petitioner submits that s. 3.1 of the Permit Regulation is in conflict with

ss. 78(1), 79(1) and (2), 80(1), 526, and 527(1) of the Canadian Aviation Security

Regulations, 2012 and, pursuant to the doctrine of paramountcy, is rendered

inoperative to the extent of the conflict. The respondent submits that there is no

conflict and the doctrine of paramountcy is not invoked.

[143] As indicated, this issue is to be reviewed to a standard of correctness.

Canadian Aviation Security Regulations, 2012

[144] The petitioner’s constitutional argument requires consideration of ss. 78, 79,

80, 526, and 527 of the Canadian Aviation Security Regulations, 2012. These

provisions prohibit persons from carrying, having access to, or transporting weapons

at aerodromes or onboard aircraft and prohibit air carriers from allowing a person

onboard an aircraft to carry, have access to, or transport a weapon on an aircraft.

The exact provisions are as follows:

Prohibitions – carriage, transportation and access

78 (1) Subject to subsection (2), a person must not carry, transport or have

access to a weapon, an explosive substance or an incendiary device at an

aerodrome.

[. . .]

Weapons

79 (1) Subject to subsections (2.1) to (4), a person must not carry or have

access to a weapon on board an aircraft.

Explosive substance and incendiary devices

(2) A person other than an air carrier must not carry or have access to an

explosive substance or incendiary device on board an aircraft.

[. . .]

General prohibitions

80 (1) Subject to subsection (3), a person must not transport any of the

following goods on board an aircraft operated by an air carrier or tender them

for transportation by an air carrier:

(a) a loaded firearm;

(b) an explosive substance other than ammunition; and

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(c) an incendiary device.

[. . .]

Weapons

526 (1) An air carrier must not allow a person who is on board an aircraft to

carry or have access to a weapon unless the air carrier has authorized the

person to do so under section 531 or 533.

Explosive substances and incendiary devices

(2) An air carrier must not allow a person who is on board an aircraft to carry

or have access to an explosive substance or an incendiary device.

Transport of loaded firearms

527 (1) An air carrier must not knowingly allow a person, other than a

Canadian in-flight security officer who is acting in the course of their duties, to

transport a loaded firearm on board an aircraft.

Transport of explosive substances and incendiary devices

(2) An air carrier must not knowingly allow a person to transport an explosive

substance, other than ammunition, or an incendiary device on board an

aircraft unless the person notifies the air carrier before the explosive

substance or incendiary device arrives at the aerodrome where it is to be

accepted by the air carrier for transportation.

[145] Exemptions from these various prohibitions are available pursuant to s. 5.9(2)

of the Aeronautics Act, R.S.C. 1985, c. A-2 [Aeronautics Act], as follows:

Exemption by Minister

(2) The Minister or an officer of the Department of Transport authorized by

the Minister for the purpose of this subsection may, on any terms and

conditions that the Minister or officer, as the case may be, considers

necessary, exempt any person, aeronautical product, aerodrome, facility or

service, or any class of persons, aeronautical products, aerodromes, facilities

or services, from the application of any regulation, order or security measure

made under this Part if the exemption, in the opinion of the Minister or officer,

as the case may be, is in the public interest and is not likely to adversely

affect aviation safety or security.

[146] It is common ground that, between November 2020 and February 2021,

pursuant to s. 5.9(2) of the Aeronautics Act, the Director General, Aviation Security

for the federal Minister of Transport, issued four exemptions from the Canadian

Aviation Security Regulations, 2012 to permit holders to allow them to carry out the

wolf cull during that period. Notwithstanding the issuance of such exemptions, the

petitioner submits that the Permit Regulation remains in conflict with the Canadian

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Aviation Security Regulations, 2012 and, pursuant to the doctrine of paramountcy, is

rendered inoperative to the extent of the conflict.

General Principles

[147] The applicable law is summarized in Saskatchewan (Attorney General) v.

Lemare Lake Logging Ltd., 2015 SCC 53 [Lemare Lake Logging Ltd.], as follows:

[15] The guiding mantra of the paramountcy analysis is that "where there is

an inconsistency between validly enacted but overlapping provincial and

federal legislation, the provincial legislation is inoperative to the extent of the

inconsistency" [. . .]

[16] The first step in the analysis is to determine whether the federal and

provincial laws are validly enacted. This requires looking at the pith and

substance of the legislation to determine whether the matter comes within the

jurisdiction of the enacting legislature. Assuming both laws are validly

enacted, the second step requires consideration of whether any overlap

between the two laws constitutes a conflict sufficient to render the provincial

law inoperative. A provincial law will be deemed to be inoperative to the

extent that it conflicts with or is inconsistent with the federal law [. . .]

[17] Two kinds of conflict are at play: (1) an operational conflict, where

compliance with both the federal and provincial law is impossible; and

(2) frustration of purpose, where the provincial law thwarts the purpose of the

federal law [. . .]

[18] The operational conflict branch of the paramountcy doctrine requires

that there be "actual conflict" between the federal and provincial legislation,

that is, "the same citizens are being told to do inconsistent things": [. . .]

Stated otherwise, operational conflict arises "where one enactment says 'yes'

and the other says 'no', such that 'compliance with one is defiance of the

other'" [. . .]

[19] Under the second branch of the paramountcy analysis, provincial

legislation will be found to be inoperative when it frustrates the purpose of a

federal law: [. . .]

[20] Significantly, against the background of the two paramountcy

paradigms of operational conflict and frustration of purpose, this Court

cautioned in Canadian Western Bank that "[t]he fact that Parliament has

legislated in respect of a matter does not lead to the presumption that in so

doing it intended to rule out any possible provincial action in respect of that

subject": para. 74. The fundamental rule of constitutional interpretation is,

instead, that "[w]hen a federal statute can be properly interpreted so as not to

interfere with a provincial statute, such an interpretation is to be applied in

preference to another applicable construction which would bring about a

conflict between the two statutes": [. . .]

[21] Given the guiding principle of cooperative federalism, paramountcy

must be narrowly construed. Whether under the operational conflict or the

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frustration of federal purpose branches of the paramountcy analysis, courts

must take a "restrained approach", and harmonious interpretations of federal

and provincial legislation should be favoured over interpretations that result in

incompatibility [. . .]

[22] Constitutional doctrine should give due weight to the principle of

cooperative federalism: Canadian Western Bank, at para. 24. This principle

allows for some interplay, and indeed overlap, between both federal and

provincial legislation [. . .] Cooperative federalism accordingly "normally

favours — except where there is an actual conflict — the application of valid

rules adopted by governments at both levels as opposed to favouring a

principle of relative inapplicability designed to protect powers assigned

exclusively to the federal government or to the provinces": [. . .]

[23] While the principle of cooperative federalism cannot be seen as

imposing limits on the otherwise valid exercise of legislative competence, it

may be invoked to "facilitate interlocking federal and provincial legislative

schemes and to avoid unnecessary constraints on provincial legislative

action": [. . .] In line with this principle, absent clear evidence that Parliament

intended a broader statutory purpose, courts should avoid an expansive

interpretation of the purpose of federal legislation which will bring it into

conflict with provincial legislation. As this Court said in Marcotte, "care must

be taken not to give too broad a scope to paramountcy on the basis of

frustration of federal purpose": para. 72; see also Canadian Western Bank, at

para. 74. This means that the purpose of federal legislation should not be

artificially broadened beyond its intended scope. To improperly broaden the

intended purpose of a federal enactment is inconsistent with the principle of

cooperative federalism. At some point in the future, it may be argued that the

two branches of the paramountcy test are no longer analytically necessary or

useful, but that is a question for another day.

[Citations omitted.]

[148] The first step in the analysis is to consider whether the provincial and federal

laws are validly enacted, which involves a pith and substance analysis. I do not need

to address this step as it is not suggested by the petitioner that ss. 19(1) and (3) of

the Wildlife Act or s. 3.1 of the Permit Regulation are invalid in the sense that they

do not come within the constitutional jurisdiction of the Province of British Columbia.

Indeed, any such argument would likely be bound to fail. Similarly, it is not

suggested by the parties that the impugned provisions of the Canadian Aviation

Security Regulations, 2012 are an invalid exercise of the constitutional jurisdiction of

the Federal Government. Again, any such submission would be bound to fail. Thus, I

proceed on the basis that these laws are validly enacted.

Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource

Operations and Rural Development)

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[149] The second step of the analysis involves whether there is an overlap between

the federal and provincial laws and, if so, whether that overlap constitutes a conflict

sufficient to render the provincial law inoperative. As explained at para. 17 of Lemare

Lake Logging Ltd., there are two kinds of conflict: (1) an “operational conflict,” where

compliance with both the federal and provincial law is impossible, and (2) “frustration

of purpose,” where the provincial law thwarts the purpose of the federal law.

[150] The petitioner submits that there is an overlap that amounts to an operational

conflict giving rise to the doctrine of paramountcy. More specifically, the petitioner

says that the Wildlife Act and Permit Regulation allow the carrying of firearms on

aircraft and the shooting of firearms from aircraft and are in conflict with the

provisions of the Canadian Aviation Security Regulations, 2012, which prohibit such

activities.

[151] I do not agree that there is any conflict between the Wildlife Act and Permit

Regulation and the Canadian Aviation Security Regulations, 2012. Both the Wildlife

Act and the Canadian Aviation Security Regulations, 2012 prohibit the carrying and

use of firearms on aircraft. The two Acts are, therefore, entirely consistent in this

regard. Similarly, both the Wildlife Act and the Canadian Aviation Security

Regulations, 2012 through s. 5.9(2) of the Aeronautics Act provide for exemptions

from these prohibitions. Again, they are entirely consistent in this.

[152] The only inconsistency that could arise is if an exemption was obtained under

one Act but not the other. In such a case the exemption holder would be exempt

from the provisions of the Act for which the exemption was obtained, but not the

other Act. For example, if an exemption was obtained under the Canadian Aviation

Security Regulations, 2012, the exemption holder would be permitted to carry a

firearm on an aircraft in British Columbia, but would not be permitted to hunt from an

aircraft in British Columbia. Under this scenario, the provisions of the provincial

Firearm Act prohibiting the carrying of firearms on aircraft might be inoperative under

the paramountcy doctrine but not the provisions of the Wildlife Act prohibiting

hunting from aircraft.

Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource

Operations and Rural Development)

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[153] The other possibility is where an exemption is obtained under the Permit

Regulation, but not under the Canadian Aviation Security Regulations, 2012. It is this

scenario that the petitioner says gives rise to conflict and to the paramountcy

doctrine. However, this is not an operational conflict.

[154] In Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161 at 191, Justice

Dickson, writing for the majority of the Court, commented on the kind of conflict that

would trigger the rule of federal paramountcy:

In principle, there would seem to be no good reason to speak of paramountcy

and preclusion except where there is actual conflict in operation, as where

one enactment says “yes” and the other says “no”; “the same citizens are

being told to do inconsistent things”; compliance with one is defiance of the

other.

[155] In the scenario I have described, there is no conflict in the sense that "the

same citizens are being told to do inconsistent things" or “compliance with one is

defiance of the other.” The permit holder, in this scenario, is not obliged by the

permit to carry a firearm on an aircraft or to shoot from an aircraft. He or she is not

required to do something prohibited by the Canadian Aviation Security Regulations,

2012. He or she is merely exempted from the prohibitions contained in the Wildlife

Act and the Firearm Act. It is true that the permit holder will not be able to conduct

the activity allowed by the permit without also obtaining an exemption under the

Canadian Aviation Security Regulations, 2012, but this does not mean that the two

Acts are in conflict. The permit holder can comply with both Acts by simply obtaining

an exemption under the Canadian Aviation Security Regulations, 2012.

[156] The petitioner additionally submits that there is a conflict in that permits, when

issued, do not address firearm safety within the context of aviation. It says that, for

the provincial scheme to align with the federal exemptions, the province must by

regulation address firearm safety within the context of aviation. In my view, the

petitioner’s argument on this point is misguided. In particular, the petitioner

presumes that the province has the constitutional authority to legislate firearm safety

on aircraft. This is a very dubious proposition.

Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource

Operations and Rural Development)

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[157] In my opinion, it is clear that there is no actual conflict between the provincial

and federal enactments and the doctrine of paramountcy has no application. In fact,

what has occurred here is a classic example of the federal and provincial

governments enacting valid laws that necessarily overlap but do not conflict.

Moreover, the exemptions are an example of cooperative federalism in action.

Production of Documents

[158] Before concluding, I note that in para. 8 of Part 1 of the amended petition the

petitioner requested interim orders for the production of various documents by the

respondent. At the hearing before me, the petitioner advised that such orders were

not needed but that it wished me to nevertheless address the disclosure provided by

the respondent which the petitioner said was deficient. I decline to do so. The relief

requested in para. 8 of Part 1 of the amended petition is interim relief. The petitioner

could have brought an application to address the disclosure issues but did not.

[159] Additionally, the petitioner is essentially seeking the opinion of the Court on

what documents should be disclosed for the purpose of potential future proceedings.

This is not an appropriate question for judicial review and not an appropriate use of

scarce judicial resources.

Conclusions

[160] For the reasons set out above, I find that the petitioner has standing to bring

this petition, but the petition is otherwise dismissed.

[161] If necessary, the parties have leave to speak with me on the issue of costs.

“Giaschi J.”