Moresby Explorers Ltd. v. Canada (Attorney General)

Moresby Explorers Ltd. v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2005-04-29
Neutral citation
2005 FC 592
File numbers
T-23-04
Decision Content
Date: 20050429
Docket: T-23-04
Citation: 2005 FC 592
Ottawa, Ontario, April 29, 2005
Present: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
THE MORESBY EXPLORERS LTD. and
DOUGLAS GOULD
Applicants
and
THE ATTORNEY GENERAL OF CANADA
and COUNCIL OF THE HAIDA NATION
Respondents
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an application for judicial review pursuant to the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, relative to a decision made by Mr. Ernest Gladstone, Superintendent of the Gwaii Haanas National Park Reserve of Canada ("Gwaii Haanas" or the "Park"). That decision, made on or about December 3, 2003, granted Mr. Douglas Gould and The Moresby Explorers Ltd. (the "Applicants") a 2004 commercial business licence for the operation of a tour business in the South Moresby Island region of the Queen Charlotte Islands known as Gwaii Haanas. The licence provided a cap of 2,500 user-days/nights per year, a limit of 22 tour clients per day, and other aspects of a quota system.
[2] The application for judicial review was issued on January 7, 2004, naming the Attorney General of Canada as Respondent. Upon motion by the Council of the Haida Nation ("CHN"), an Order was issued on February 25, 2004, allowing it to intervene and participate as a Respondent in this application.
I. BACKGROUND
[3] Mr. Gould, originally a logger, began operating a commercial tourist guide and transport business in the southern part of Moresby Island in the summer of 1988. He started this enterprise as an individual and following the incorporation of his company, Moresby Explorers Ltd. in 1995, continued to provide tours as a corporate entity. The services available include kayak rentals, transportation, overnight tours, and guides for kayak and dive operations. The Moresby fleet includes a number of boats, forty kayaks and a floating camp located at Crescent Inlet, that is outside the northern boundary of Gwaii Haanas.
[4] The South Moresby Island is the southernmost of the two main islands that comprise the Queen Charlotte Islands. The population of these islands is approximately 5,000 persons, of which approximately 50% are of Haida origin.
[5] In late 1980, the CHN made a comprehensive land claim over the Queen Charlotte Islands, pursuant to the comprehensive claims process, which was accepted for negotiation by Canada on June 30, 1983. A statement of intent to negotiate was submitted by the CHN to the British Columbia Treaty Commission on December 15, 1993. On November 14, 2002, the CHN began an action in the British Columbia Supreme Court seeking a declaration of their aboriginal title to Haida Gwaii.
[6] On July 12, 1988, the governments of Canada and British Columbia executed a "Memorandum of Agreement for the Establishment of South Moresby National Park and National Marine Park, Queen Charlotte Islands, B.C." (the "Parks Agreements"). Pending the resolution of the CHN's overlying land claim, section 39 of the Parks Agreement contemplated the involvement of the CHN in the planning and implementation of initiatives relating to Gwaii Haanas and the National Marine Park, forming the basis for Canada to negotiate agreements with the CHN for cooperative management of these lands.
[7] On or about April 19, 1989, the government of British Columbia passed Order-in-Council No. 586, which transferred authority to manage Gwaii Haanas to the Canadian Parks Service, its Director General and Canadian Parks Service officers, enabling them to manage and administer the lands on behalf of British Columbia as if the lands were a recreation area under the Park Act, R.S.B.C. 1996, c. 344. This authorized the Director General to issue permits relative to the subject lands. On or about March 27, 1992, pursuant to Order-in-Council No. 438, administration and control of Gwaii Haanas was transferred from British Columbia to Canada. The Parks Agreement provided that there would be a delay between the transfer of administration and control of Gwaii Haanas and the National Marine Park from British Columbia to Canada, and the subsequent designation of these lands as national parks.
[8] Subsequently, on July 16, 1992, Order-in-Council P.C. 1992-1591 authorized the federal Minister of the Environment to enter into an agreement on behalf of Canada, with the CHN, concerning the management and operation of the archipelago, including Gwaii Haanas in the Queen Charlotte Islands. On or about January 30, 1993, Canada and the CHN entered the "Gwaii Haanas/South Moresby Agreement" (the "Gwaii Haanas Agreement") to cooperatively manage the archipelago, designated by the CHN as a Haida heritage site, covering the national park reserve area.
[9] The Gwaii Haanas Agreement provided for the establishment of a four person Archipelago Management Board (the "AMB"). Pursuant to section 4.2 of that Agreement, Canada and the CHN are to cooperate in the examination of "all initiatives and undertakings relating to the planning, operation and management of the archipelago". On behalf of Canada, the Superintendant of Gwaii Haanas co-chairs the AMB, together with a representative of the CHN. Two members are appointed by Parks Canada and two by the CHN. Section 9.2 of the Gwaii Haanas Agreement specifically provides for the preservation of Canada's right to assert its jurisdictional authority, as follows:
9.2 Nothing in this Agreement shall fetter or fetter [sic], or be deemed to fetter or limit, in any manner the rights, jurisdiction, authority, obligations or responsibilities of either party or their representatives, except to the extent of the requirement that all reasonable efforts must have been made to reach consensus through the process set out in section 5 of this Agreement.
[10] In accordance with the Gwaii Haanas Agreement, Parks Canada and the AMB established a business licensing process in Gwaii Haanas through the implementation of a quota policy. In 1995, the AMB encouraged tour operators to maintain records of their trips and number of clients, and participate in a voluntary business licensing system by which quota was issued to tour operators in order to access Gwaii Haanas.
[11] Pursuant to the time delay provided by the Parks Agreement, on March 28, 1995, Canada ultimately accepted the transfer of administration and control of Gwaii Haanas from British Columbia by Order-in-Council P.C. 1995-3/534. Gwaii Haanas was set aside as a national park reserve by Order-in-Council P.C. 1996-78, dated January 23, 1996, and became subject to the former Act, now the Canada National Parks Act, S.C. 2000, c. 32 (the "Act"), and the applicable regulations, on or about February 22, 1996. The laws of Canada apply to the terrestrial portion of Gwaii Haanas, above the ordinary high water mark.
[12] Following the designation of Gwaii Haanas as a national park reserve, a mandatory business licencing system and quota policy were adopted to replace the voluntary process that had been introduced in 1995. This mandatory business licensing system, implemented in 1996, involved the imposition of user quotas or allocations on commercial tour operators, distributed on the basis of user-days/nights.
[13] While both the voluntary and mandatory licensing systems were intended to regulate commercial tour operators' access to Gwaii Haanas, one of objectives of the mandatory system was to freeze business activities at existing levels pending an assessment of the impact of those activities on the Park's ecological and cultural integrity and the quality of the visitor experience in Gwaii Haanas. As part of the cooperative management of Gwaii Haanas pursuant to the Gwaii Haanas Agreement, the AMB reviewed all applications for business licences to obtain user quota for the Park. The business licenses and user quota were then issued by the Superintendent pursuant to the former regulations, now section 4.1 of the current National Parks of Canada Business Regulations, SOR/98-455, as amended by SOR/2002-370 (the "Regulations") promulgated under the former National Parks Act, R.S.C., 1985 c. N.-14 (now the Act).
[14] In February 1996, the AMB published a draft strategic management plan to support a thorough review of the impact of visitor use in Gwaii Haanas. This created a provisional annual visitor cap of 33,000 user-day/nights, based approximately on the level of historical use to that date. Under this new policy, only businesses that had operated in the area of the Gwaii Haanas prior to 1996 were eligible to apply for a business licence, and were only licensed to operate the same type and extent of business that they had previously operated, calculated on the basis of documented trips submitted under the voluntary licensing system. As well, a maximum group size of 12 persons per site was established, and a daily maximum limit of visitors anywhere in Gwaii Haanas was set at 175. As a result of this limitation on business activity at existing levels, no licenses were issued to new businesses. At this time, only one Haida-owned business was licensed to operate in Gwaii Haanas.
[15] The Applicants were issued a quota in 1996, however their entitlement to quota was reduced by the extent that their historic use of Gwaii Haanas originated from their float camp. At that time, the float camp was located outside the proposed National Marine Park. The justification for this limitation was that the float camp was not authorized to occupy the National Marine Park and accordingly, did not conform to acceptable uses or Parks Canada policy. In August 1997, the Ministry of Environment, Lands and Parks for British Columbia issued a notice of trespass to the Applicants, requiring them to remove the float camp from the designated National Marine Park.
[16] As part of the allocation review process conducted by the AMB, in February 1997, the AMB developed the policy, approved by Parks Canada, according to which businesses that had been inactive for three consecutive years would lose their business licence to operate in Gwaii Haanas and would lose the privilege to be granted a business licence as an existing operator. As well, in 1998, the AMB had reduced quota that had been allocated to operators, but not fully utilized by them. The allocation of quota was reduced from 16,756 to 13,778.
[17] At some time in 1998, the Applicants relocated their float camp to its present location outside Gwaii Haanas and in October of that year, applied for a 1999 business licence and user quota. A business licence and user quota of 1,597 user-days/nights for power boat tours and transport within Gwaii Haanas was issued to the Applicants by the then Superintendent, Stephen Langdon, on November 30, 1998. The Applicants challenged the 1999 user quota assigned to them, objecting in particular to the lack of quota for activities related to their float camp. In this regard, they commenced an application for judicial review on July 16, 1999. This application was dismissed as being out of time because it was not heard until after the expiry of the licence in question; see Moresby Explorers Ltd. v. Gwaii Haanas National Park Reserve, [2000] F.C.J. No. 1944 (T.D.) (QL) ("Moresby No. 1").
[18] In June 1998, the AMB considered the issue of the lack of Haida participation in the commercial tour industry in Gwaii Haanas. In October of that year, the AMB held a meeting with tour operators and indicated that it was considering three possible ways of allocating quota, that is based on the principle of need, the issue of merit and third, the question of a Haida right of first refusal.
[19] In March 1999, a final draft of the Gwaii Haanas Backcountry Management Plan ("the 1999 Backcountry Management Plan") was released. This required park reserve activities to be consistent with the former National Parks Act, supra and associated regulations, the Gwaii Haanas Agreement, Parks Canada principles and Gwaii Haanas principles and management goals. The final version of this plan was produced in September 1999.
[20] Under the 1999 Backcountry Management Plan, Parks Canada, in consultation with the AMB, reviewed and revised quota levels for Gwaii Haanas. In 1999, daily limits for independent travellers to Gwaii Haanas were increased by 25 persons per day; in 2000, those limits were increased again as recommended by the 1999 Back Country Management Plan. Additionally, Parks Canada implemented an overall maximum visitor use level of 33,000 user-days/nights for Gwaii Haanas on an annual basis. One third of the maximum overall user quota was set aside for Haida-owned businesses; Haida businesses must be a minimum of 51% Haida-owned and operated. Of the remaining 22,000 available user-days/nights, 11,000 were made available for non-Haida commercial tour operators and the remaining 11,000 were made available to individual visitors. This policy, introduced in May 1999, is described as the "Haida Allocation Policy" by the Respondent Attorney General and as the "Gwaii Haanas Agreement Policy" by the CHN. The Haida allocation of 11,000 user-days/nights is held communally through the Haida Tribal Society, for the benefit of all Haida.
[21] In July 2001, the Applicants successfully challenged by judicial review, the continued exclusion of their floating camp activities from the calculation of their user allocation. In a decision reported as Moresby Explorers Ltd. v. Canada (Attorney General), [2001] 4 F.C. 591 (T.D.) ("Moresby No. 2"), the Court found that the business licensing policy was intended to fix the activity level in Gwaii Haanas at its historic level while the park management plan was being developed and the carrying capacity of the Park assessed. The Court held that in refusing to recognize that the activities for which the Applicants sought quota were perfectly legal, the then Superintendent did not properly apply her own policy as it related to the Applicants. In the result, the Applicants' user allocation was increased from 1,597 user-days/nights in 2001 to 2,372 for 2002. Since that time, the Applicants have been issued 2,372 user-days/nights, with an over-booking buffer of 10% each season.
[22] Since the introduction of the mandatory licensing system in 1996, the formula for calculating commercial user allocation has changed. Parks Canada has monitored the use of quotas by businesses holding licenses to operate in Gwaii Haanas, in order to ensure that the quota is not being "wasted". Accordingly, in 2000 Parks Canada reevaluated the actual use levels of license holders and reassessed allocations to more accurately reflect existing use. The current formula, introduced in 2002, involved averaging the operator's best three years from 1996 to 2001 inclusive, with the addition of a further 10% for flexibility. As well, operators are allowed to exceed their allocation by a further 10% over-booking "buffer".
[23] On May 1, 2003, a 22 tour-client per day limit was implemented as part of the changes that were incorporated in the original 1999 Gwaii Haanas Backcountry Management Plan. As well, other restrictions were imposed on commercial tour operators and individual visitors to Gwaii Haanas, such as the maximum daily limit of 300 visitors established in 1999, of whom 200 may be tour clients during the peak summer season, and the "group size policy" introduced in 1996. The 22 tour-client per day limit was put in place following an extensive public consultation process, including a public meeting to which all tour operators were invited in November 2002 and the distribution of a public questionnaire in January 2003.
[24] The 2,500 user-days/nights allocation cap was also introduced in the 2003 Gwaii Haanas Backcountry Management Plan published in August 2003. The cap does not include the over booking buffer of 10% that is granted to every licence holder. Parks Canada and the AMB explained the rationale for the 2,500 user-days/nights allocation cap in the 2003 Backcountry Management Plan, as follows:
Management Actions
...
Set an allocation cap at 2,500 user-days/nights for both Haida and non-Haida allocations. This will prevent any single company from holding all of the Haida or non-Haida allocation, thus creating a business environment that favours smaller, owner-operated companies rather than larger corporations with fewer local ties.
[25] On November 25, 2003, the Applicants submitted a written application for a business licence and were issued their 2004 license on December 8, 2003, with an allocation of 2,374 user-days/nights. That licence provides as follows:
Gwaii Haanas National Park Reserve and Haida Heritage Site
Business owners and their employees have a continuing responsibility to minimize the impact of their activities upon Gwaii Haanas. By being aware of what constitutes proper conduct within Gwaii Haanas, business operators set an example and send a message to visitors through their business practices. They share a responsibility to educate and inform visitors about Gwaii Haanas' unique and sensitive features.
No person shall, within Gwaii Haanas, carry on any trade, calling, industry, employment or occupation carried on for gain or profit unless he/she is a holder of an annual licence issued pursuant to the Canada National Parks Act, National Parks of Canada Businesses Regulations and the Council of the Haida Nation.
Moresby Explorers Ltd. and/or Douglas Gould is hereby licensed to carry on powerboat tours/transport, kayak outfitting and guided tours, and dive platform activities in Gwaii Haanas National Park Reserve and Haida Heritage Site up to December 31, 2004, subject to all terms and conditions set out in the attached Schedule A.
Approved under the Authority of the Canada National Parks Act, National Parks of Canada Businesses Regulations
[signature]
Superintendent
December 3, 2003
Approved under the Authority of the Council of the Haida Nation
[signature]
December 4, 2003
[26] Schedule A attached to the license contains various terms and conditions, a number of which require the licensee to satisfy the requirements of the Superintendent and the CHN representative. Article 10 of the terms and conditions set out in Schedule A provides as follows:
10. The licensee is entitled to no more than 2,372 user-days/nights (plus an additional 237 user-days/nights as an overbooking buffer) for powerboat tours/transport, kayak outfitting and guided tours, and dive platform within Gwaii Haanas up to December 31, 2004. The licensee is limited to bringing no more than 22 tour clients per day into Gwaii Haanas. This daily limit does not apply to transport clients.
[27] In terms of user allocation, the Applicants are the largest business operators in Gwaii Haanas. Their 2,372 user-days/nights allocation is the largest allocation issued for any business in the 2004 season. However, the Applicants have never reached this level of use. Their allocation use between 2000 and 2003 was as follows: 1,383 user-days/nights in 2000; 1,767 user-days/nights in 2001; 1,808 user-days/nights in 2002; and 1,749 user-days/nights in 2003.
[28] The Applicants agree that the 2004 allocation was properly calculated, according to the formula introduced in 2002, and concede that their business is "not immediately affected by the annual 2,500 visitor per-business quota limit".
[29] For the 2004 season, the quota allocation to non-Haida business is 13,778 user-days/nights. However, the amount actually used by non-Haida operators has been significantly less, that is 7,574 user-days/nights in 2001 and 7,369 user-days/nights in 2002. According to the 2003 Backcountry Management Plan, there is no possibility of pooling the unused allocation for use by other tour operators, unless the cumulative allocation is less than 11,000 user-days/nights. Haida quota allocation in 2003 was 320 user-days/nights of which only 37 were used.
II. SUBMISSIONS
A. Applicants' Submissions
[30] The Applicants submit that the standard of review in this case is correctness because they are raising questions of jurisdiction and reliance on extraneous factors. In those circumstances, the Court is required to interpret the legislation and the scope of the Superintendent's jurisdiction. In this regard, the Applicants rely on Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at page 1005 and Service Employees International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382 at 389.
[31] The Applicants argue that the 22 tour client per day limitation and the annual 2,500 user-days/nights per tour operator allocation, as set out in Schedule A, Article 10 of their 2004 licence, is discriminatory and ultra vires the jurisdiction of the Superintendent, in his capacity as representative of Parks Canada. They argue that the Act and Regulations do not authorize the Superintendent to implement a licensing quota scheme that has the effect of limiting the size of their business.
[32] Relying on the administrative law principle that unless the enabling statute expressly, or by necessary implication confers such power, a subordinate legislature, that is, the Governor in Council, has no power to enact by-laws which discriminate between classes of people, regardless of the benign purpose of the discrimination. In this regard, the Applicants rely on Montreal (City) v. Arcade Amusements Inc., [1985] 1 S.C.R. 368. Although this decision deals specifically with municipal by-laws, the Applicants argue that nothing in the language of this decision limits the application of this principle strictly to municipal by-laws.
[33] The Applicants further argue that the principle that delegated powers under an enactment may not be exercised in a discriminatory manner, unless expressly authorized by the enabling statute, applies to all delegated statutory powers of legislation and of administration. In this regard, the Applicants rely on Waldman v. British Columbia (Medical Services Commission) (1997), 42 B.C.L.R. (3d)1 (B.C.S.C.), affirmed (1999), 67 B.C.L.R. (3d) 21 (B.C.C.A.)
[34] The Applicants further submit that the Act and Regulations do not authorize the regulation of commercial business size by means of terms and conditions attached to business licenses. Referring to this Court's analysis of sections 4 and 5 of the former National Parks Act, supra, in Moresby No. 2, supra, the Applicants argue that the purpose of the legislation is to ensure the maintenance of national parks for future generations. In this regard, the Applicants rely on page 612 of that decision as follows:
In my view, the references to visitor utilization in the context of preserving the park for future generations and maintaining the ecological integrity of the parks are sufficient authorization for the Superintendent to limit access to the park for those purposes. I conclude that there is no impediment to the implementation of a quota scheme which is designed to protect the park.
[35] According to the Applicants, there is presently an annual limit of 33,000 user-days/nights, a daily limit of 300 visitors and a per site limit of 12 visitors in place to protect the ecological integrity of Gwaii Haanas. The Regulations provide guidance as to the factors to be taken into consideration by the Superintendent in granting a business licence. These factors confirm that the mandate of the Superintendent is restricted to such things as preserving the natural and cultural resources of the Park and protecting the safety, health and enjoyment of visitors. The Applicants note that business size is not on the list of relevant factors and accordingly, the Superintendent has no jurisdiction to determine business licence and quota questions based on the size of a particular tourist business. Furthermore, the Applicants submit that the suppression of monopolies is not within the mandate of the Superintendent.
[36] The Applicants advance similar arguments with respect to the Haida Allocation Policy. Beginning with the premise that delegated powers under an enactment may not be exercised in a discriminatory manner, in the absence of express authorization by an enabling statute, the Applicants argue that the Superintendent has no jurisdiction to determine business licence and quota questions on the basis of race.
[37] The Applicants say that, through the Haida Allocation Policy, the Superintendent has imported a racial qualification that is contrary to the existing legislative scheme. They argue that the Act empowers the Governor in Council to authorize the Minister to enter into the Gwaii Haanas Agreement. However, this Agreement was not intended to alter the law. In this regard, the Applicants rely on pages 615-616 of the decision in Moresby No. 2, supra, as follows:
It is repugnant to our system of government to contemplate a situation in which laws passed in Parliament after public debate are modified or set aside by the government in an agreement negotiated in private. Even if one assumed that this were possible, only the clearest words could justify it.
[38] The Applicant submits that neither the Act nor the Regulations recognize race as a relevant consideration to be taken into account by the Superintendent in allocating the business licences for Gwaii Haanas. Further, they submit that the Haida Allocation Policy cannot be construed as satisfying the purpose of the legislation, which is the preservation of the ecological and cultural integrity of the Park.
[39] In the event that the Haida Allocation Policy and quota restrictions attached to the Applicants' 2004 licence are found to be within the statutory authority of the Superintendent, the Applicants advance an alternative argument that the determination of business licence and quota questions on the basis of business size or race are void for being inconsistent with the equality guarantee provided by section 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c.11 (the "Charter").
[40] In this regard, the Applicants argue that the Superintendent has imposed a quota system and racially-based allocation policy on persons conducting tourism businesses in a national park. These activities involve private sector enterprise on public lands, subject to public licensing. The Applicants submit that the licensing policy adopted by the Superintendent affects the livelihood opportunities of Canadian citizens and as such, is subject to a high level of Charter protection and scrutiny. The Applicants here rely on the decision in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
[41] The Applicants argue that these allocation policies do not recognize equal opportunity rights among all Canadian citizens. As for the Haida Allocation Policy, they argue that they are barred by reason of racial background from access to half of the available commercial quota of 22,000 user-days/nights. That policy has the effect of setting 11,000 as the effective ceiling for non-Haida operators, a category which was oversubscribed from the outset of this new policy. The practical result is that there will be no increase in non-Haida tour businesses operating in Gwaii Haanas in the foreseeable future. The Applicants argue that race, and grounds analogous to race, are enumerated grounds for section 15 protection and that withholding or limiting business licences on the basis of such an enumerated ground constitutes discrimination for the purposes of that provision.
[42] The Applicants also argue that the quota system adopted in the terms and conditions of the 2004 licence also raises a section 15 objection. They point to the "clawback" of 2,000 user-days/nights from those operators not using the full extent of their quotas and argue that, because the non-Haida allocation remains above the 11,000 user-days/nights limit, further reduction of the non-Haida allocation will occur. The Applicants argue that absent any justification for this quota system based on ecological integrity, these limits are effectively a consequence of the unlawful race-based Haida Allocation Policy.
[43] The Applicants further argue that the breach of their section 15 equality rights have not been overridden in the present case, either by Parliament's use of the notwithstanding clause in section 35, the presence of affirmative action programs pursuant to section 15(2), by the application of section 25 of the Charter, and that the breach of section 15(1) cannot be justified pursuant to section 1 of the Charter. Any of the foregoing means can, in certain circumstances, override the section 15 guarantee of inequality but according to the Applicants, none of these circumstances apply in the present case for the following reasons.
[44] First, there is no doubt that the notwithstanding clause has not been engaged. Second, the Applicants argue that the Haida Allocation Policy and associated quota system do not constitute affirmative action programs within the meaning of section 15(2) of the Charter. They note that there is no factual basis to support such arguments and indeed, upon cross-examination, the President of the CHN, unequivocally stated that the Haida people were not disadvantaged. This witness, Guujaaw, declined to disclose the financial statements of the CHN or the Haida tribal society.
[45] Next, the Applicants argue that section 25 of the Charter is not engaged here to displace the equality rights guaranteed under section 15. They argue that apart from the section 25 exception, in all other activities where aboriginal people work with other Canadians, the Supreme Court has held that equal rights apply for the protection of all. In this regard, the Applicants rely on Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Mitchell v. M.N.R., 2001 SCC 33; and Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85.
[46] Also, in relation to section 25, the Applicants argue that the Gwaii Haanas Agreement is not a section 35 treaty or land claims agreement. The Agreement itself makes that clear. In constitutional terms, the Applicants submit that the Gwaii Haanas Agreement is an ordinary Agreement entered into between the Government of Canada and a group of citizens. It has deliberately not been accorded constitutional status and consequently, section 25 cannot operate to displace the equality rights guarantee under section 15 of the Charter.
[47] Alternatively, even if the Gwaii Haanas Agreement were a section 35 Agreement, the Applicants submit that section 25 would not be engaged because there is nothing in that Agreement which conflicts with the equality rights of other Canadians. The guarantee of equality rights in section 15 does not abrogate or derogate from any right given to the Haida under the Gwaii Haanas Agreement, according to the Applicants.
[48] In any event, the Applicants submit that section 1 of the Charter does not save the challenged Haida Allocation Policy and quota system from attack, on section 15 grounds. The application of section 1 requires that several conditions be met, that is that the limit must be pressing and substantial; the limit must be rationally connected to the objectives sought to be achieved, with minimal impairment of Charter rights and must be proportional. In this regard, the Applicants rely on R. v. Oakes, [1986] 1 S.C.R. 103.
[49] In any event, the Applicants argue that limits on Charter rights must be prescribed by law and the exercise of unstructured and administrative discretion does not qualify. Here, the Applicants rely on Re Ontario Film and Video Appreciation Society and Ontario Board of Censors (1984), 45 O.R. (2d) 80 (C.A.).
B. Submissions of the Respondent Council of the Haida Nation
[50] The CHN relies on section 25 only, in responding to this application. It submits that the Gwaii Haanas Agreement, including the Haida Allocation Policy, constitutes "other rights" for the purposes of section 25 of the Charter.
[51] Specifically, the CHN argues that the Gwaii Haanas Agreement and the Haida Allocation Policy constitute an interim co-management arrangement between the Haida and the Crown, securing Haida rights and interests and inviting Haida participation in the decision making process. As well, it submits that there is a strong prima facie case of aboriginal title and rights arising in the pre-treaty period, and that the Crown is aware of this strong prima facie case. As well, the CHN argues that the purposes of the Gwaii Haanas Agreement, including the Haida allocation process, are closely connected with the purposes recognized and affirmed by aboriginal rights provisions in the Constitution Act, 1982, supra.
[52] It is the CHN's position that if this Court finds that the Gwaii Haanas Agreement, together with the Haida Allocation Policy, constitutes "other rights" for the purposes of section 25, then that finding will be determinative and the Haida Allocation Policy will be shielded from the application of section 15(1) of the Charter.
[53] Alternatively, if a Charter analysis is found to be required, the CHN argues that the application of section 15 to the Gwaii Haanas Agreement, including the Haida Allocation Policy, abrogates or derogates from the rights and freedoms inherent in that process. In other words, application of section 15 would impair the CHN's ability to achieve the purpose of reconciliation contemplated by the Gwaii Haanas Agreement.
C. Submissions of the Respondent Attorney General of Canada
[54] The first issue addressed by this Respondent is the applicable standard of review. The AGC takes the position that the matters at issue relate to policy decisions that the Superintendent took, on the recommendation of the AMB in introducing the 22 tour-client per day limit and the 2,500 user-days/nights allocation cap. The AGC submits that these are general conditions that apply to all businesses as opposed to applying only to the specific circumstances of the Applicants. As such, the applicable standard of review for policy decisions is that set out in Maple Lodge Farms v. Canada, [1982] 2 S.C.R. 2, that is whether the discretion to implement the policy was exercised in good faith, that the principles of natural justice were observed where required, and consideration was given to relevant factors, without regard to extraneous or irrelevant factors.
[55] The AGC submits that both the 22 tour-client per day limitation contained in the Applicants' licence as well as the 2,500 user-days/nights allocation cap adopted in the 2003 Backcountry Management Plan, are lawful. However, with respect to the 2,500 user-days/nights allocation cap, the AGC argues that the Applicants are not directly affected by that cap as a result of their allocation under the 2004 licence of 2,372 user-days/nights and accordingly, lack standing to challenge this quota. In this regard, the AGC relies on section 18.1(1) of the Federal Courts Act, supra and Kwicksutaineuk/Ah-kwa-mish Tribes v. Canada (2003), 227 F.T.R. 96 (T.D.).
[56] In response to the Applicants' argument that they will likely be the first operators to reach the 2,500 cap, the AGC takes the position that the mere possibility that the Applicants may be affected by that policy in the future is insufficient to grant them standing. The AGC here relies on the decision in Canadian Telecommunications Union v. C.B.R.T. & W., [1982] 1 F.C. 603 (C.A.). In any event, the AGC argues that both the 22 tour-client per day limitation and the 2,500 user-days/nights allocation cap constitute a quota policy intended to ensure the protection of the natural and cultural resources of Gwaii Haanas and to ensure that visitors enjoy a diversity of services in the Park.
[57] As well, the AGC relies in the decision of this Court in Moresby No. 2, supra, at page 612, where the Court rejected the argument that the Minister and the Superintendent did not have legislative authority to impose a quota policy, regardless of a substantive content.
[58] As well, the AGC argues that the Superintendent's authority to issue business licences for Gwaii Haanas flows from section 16(3) of the Act and is set forth in section 4.1 of the Regulations.
[59] Furthermore, the Superintendent is required to consider the effect of the business on several factors, set out in section 5(1) of the Regulations. The AGC argues that the 22 tour-client per day policy is intended to address those factors and is directly related to the group limit of 12 persons per site, implemented in 1996 as a means of controlling group size in the Park. Likewise, the 2,500 user-days/nights allocation is intended to promote small local owner-operator businesses, to prevent the development of monopolies and consequently, keeping visitor opportunities affordable with access to a diverse spectrum of services.
[60] The AGC argues that it is well established law that the imposition of a quota system, as opposed to the granting of a specific licence, is a discretionary decision in the nature of policy or legislative action. As such, it is not reviewable, except on the limited grounds described in Maple Lodge Farms, supra.
[61] Specifically, the AGC then argues that there is no allegation that the Superintendent's decision to introduce the 22 tour-client per day limitation and the 2,500 user-days/nights allocation was motivated by bad faith. Second, in respect of the application of the principles of natural justice, the AGC argues that the rules of natural justice do not generally apply to policy decisions of this nature and in this regard relies on Carpenter Fishing Corp. v. Canada, [1998] 2 F.C. 548 (F.C.A.). As well, the quota policy was implemented following an extensive public consultation with commercial tour operators, including the Applicants, as appears from the affidavit of D. Madsen, filed as part of the AGC's application record.
[62] Third, the AGC submits that the quota policy was not based on irrelevant considerations extraneous to the legislative purpose of the Act, which the preservation, protection, management and control of Canada's national parks.
[63] The AGC submits that the quota policy is consistent with the broad purpose of national parks set out in section 4(1) of the Act and the consideration set out in section 5(1) of the Regulations. He further argues that it is beyond the Court's mandate to review the wisdom of policy decisions, such as the challenged quota policy.
[64] The AGC further argues that the quota policy is not discriminatory in the administrative law sense, although he questions whether the principle of administrative law discrimination applies to regulations promulgated by the Governor in Council. Nonetheless, the quota policy applies to all businesses operating in the Park, regardless of ownership or size.
[65] With respect to the Haida Allocation Policy, the AGC questions whether the Applicants have standing to question this policy, in light of the fact that they have been issued a business licence and given an allocation of 2,372 user-days/nights. The AGC notes that the Applicants do not challenge the allocation granted to them in their 2004 licence and concede that the allocation has been properly calculated. Therefore, not being directly affected by the Haida Allocation Policy, the AGC submits that the Applicants lack the requisite standing to challenge it in this application for judicial review.
[66] It is the AGC's position that the only avenue left for the Applicants to challenge the Haida Allocation Policy is on the basis of "public interest standing". The test for such standing has been developed by the Supreme Court of Canada and includes three requirements which can be interpreted in this case to include the following:
a) Whether there is a serious issue as to the constitutional validity of the Haida ap