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  
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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  
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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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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,  
Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource  
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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 speciesunder 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;  
Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource  
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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 aircraftan 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:  
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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  
Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource  
Operations and Rural Development)  
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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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Operations and Rural Development) Page 23  
[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. 2023, 3133; Canadian Council of Churches at 249250,  
252253.  
[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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Operations and Rural Development)  
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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 issuesgiven the circumstances of that case.  
[72] In Hudson’s Bay Company ULC v. Ontario (Attorney General), 2020 ONSC  
8046, at paras. 3739, 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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Operations and Rural Development)  
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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. 4748 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. 6061.  
[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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Operations and Rural Development)  
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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.  
Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource  
Operations and Rural Development)  
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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  
Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource  
Operations and Rural Development)  
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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 9798:  
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 9899, 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 menamely, 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 Councilin 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  
Operations and Rural Development)  
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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  
Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource  
Operations and Rural Development)  
Page 37  
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  
Operations and Rural Development)  
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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.]  
Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource  
Operations and Rural Development)  
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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 143144 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 146147, 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  
Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource  
Operations and Rural Development)  
Page 40  
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 161162, 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 270271 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  
Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource  
Operations and Rural Development)  
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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  
Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource  
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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  
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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 Actand 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  
Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource  
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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  
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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. 271275. 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 respectinga  
subject-matter and a power to make regulations prescribinga 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 petitioners  
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. 2728; Vision Avant-Garde Inc. v. Superintendent of  
Financial Institutions, 2000 BCSC 423; Walters v. Agricultural Land Commission,  
2016 BCSC 1618 at paras. 135136.  
[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.  
Pacific Wild Alliance v. British Columbia (Forests, Lands, Natural Resource  
Operations and Rural Development)  
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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.  
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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.  
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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.