Canadian Parks and Wilderness Society v. Maligne Tours Ltd.

Canadian Parks and Wilderness Society v. Maligne Tours Ltd.
Court (s) Database
Federal Court Decisions
Date
2016-02-08
Neutral citation
2016 FC 148
File numbers
T-1808-14
Notes
Digest
Decision Content
Date: 20160208
Docket: T-1808-14
Citation: 2016 FC 148
Ottawa, Ontario, February 8, 2016
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
CANADIAN PARKS AND WILDERNESS SOCIETY AND JASPER ENVIRONMENTAL ASSOCIATION
Applicants
and
MALIGNE TOURS LTD. AND PARKS CANADA AGENCY
Respondents
JUDGMENT AND REASONS
I. INTRODUCTION [1] This is an application under s 18.1 of the Federal Courts Act, RSC 1985, c F-7 [Act] for judicial review of the decision of the Superintendent of Jasper National Park [Superintendent], dated July 25, 2014 which approved for further consideration in the development review process the concept proposal of Maligne Tours Ltd. [Maligne Tours] to develop 10 to 15 tent cabins under a new licence of occupation at Maligne Lake in Jasper National Park, Alberta, subject to a park management plan amendment [Decision].
II. BACKGROUND [2] Both Applicants are non-profit societies with longstanding interests in the maintenance and restoration of ecological integrity within Jasper National Park, as well as Canada’s national parks generally. Canadian Parks and Wilderness Society [CPAWS] is registered under the Canada Not-for-profit Corporations Act, SC 2009, c 23, while Jasper Environmental Association [JEA] is registered under the Province of Alberta’s Societies Act, RSA 2000, c S-14.
[3] The Respondent, Maligne Tours, is a private corporation registered in Alberta under the Business Corporations Act, RSA 2000, c B-9 and has operated since 1953. The Respondent, Parks Canada Agency [Parks Canada], is a body corporate responsible for the implementation of the policies of the Government of Canada and the directions of the Minister of the Environment [Minister] that relate to Canada’s national parks, pursuant to the Parks Canada Agency Act, SC 1998, c 31 [Agency Act].
[4] Maligne Tours leases land from Parks Canada at the north end of Maligne Lake, a glacier-fed lake in Jasper National Park and operates a day lodge and supporting facilities including gift shops, a cafeteria and a boat tour service to Spirit Island. Maligne Tours became the sole provider for such services in the early 1970s. Maligne Tours’ leasehold falls within an area under consideration for designation as a critical habitat under Canada’s Species at Risk Act, SC 2002, c 29 [SARA].
[5] Maligne Lake is a popular attraction throughout the year. Its core tourist season is in the summer when the lake and its surrounding trails are frequented by approximately 300,000 visitors. As a high elevation lake, it is typically ice-bound from early November to the beginning of June. Parks Canada decided in the late 1960s and early 1970s that there would be no commercial visitor accommodations at Maligne Lake, and that the facilities at the north end of the lake would be redeveloped to support day-use activities only. This intent has been reinforced by subsequent park management plans and has not been seriously reconsidered. Maligne Tours has nevertheless made repeated requests over the years for the opportunity to provide commercial accommodations.
[6] In 2012, Maligne Tours approached Parks Canada with ideas for the renewal and redevelopment of its tour facilities at Maligne Lake, including overnight visitor accommodation. In January 2013, Parks Canada informed Maligne Tours that it was willing to consider a redevelopment proposal, subject to conditions, including the submission of a more detailed concept proposal to be included in the Maligne Valley Area Concept Implementation Strategy [Implementation Strategy], which Parks Canada intended to introduce for public review later in the year. The intent of the Implementation Strategy was to advance the priorities for Maligne Valley as set out in the 2010 Jasper National Park Management Plan [Management Plan], including the improvement of visitor ability to connect with the area and the updating of infrastructure, while ensuring the maintenance of high conservation values – particularly with regards to caribou preservation and the improvement of space and security for wildlife such as grizzly bears and harlequin ducks. In May 2013, Parks Canada provided terms of reference to Maligne Tours to guide its redevelopment proposal.
[7] A draft Situation Analysis for the Maligne Valley [Situation Analysis] was provided to the Applicants on October 29, 2013. This document was intended to inform the Implementation Strategy and its process, and Parks Canada provided a public comment period which ended on November 22, 2013. Findings from the consultation process were released on March 7, 2014.
[8] Both Applicants provided comments on issues they identified in the Situation Analysis. On November 19, 2013, in a letter to the Superintendent, JEA expressed concern in regards to the potential impact the proposed redevelopment could have on caribou and grizzly bears in the Maligne Lake area. On November 22, 2013, CPAWS wrote to Parks Canada with concerns about information gaps in the Situation Analysis and its redevelopment proposals generally.
[9] Maligne Tours’ Concept Proposal for Responsible Experiential Enhancement at Maligne Lake [Concept Proposal] was received by both Applicants on November 14, 2013. Included in the Concept Proposal were three major initiatives:
a) The redevelopment of Maligne Tours’ day lodge into a 66 unit hotel [Hotel Proposal];
b) The development of a new 10-15 tent cabin overnight site, which would require a new leasehold area [Tent Cabin Proposal]; and
c) The introduction of 12 different visitor experience activities.
[10] Parks Canada received public comments on the Concept Proposal until December 15, 2013. Legal counsel for the Applicants responded to the Concept Proposal in a letter to the Superintendent on December 9, 2013, submitting that the Minister could not and should not approve the proposed redevelopment for the following reasons:
a) The proposed development was contrary to the Management Plan;
b) The proposed development was contrary to the Guiding Principles and the Outlying Commercial Accommodation Guidelines [OCA Guidelines];
c) The proposed development was contrary to the conditions set out in the 2003 renewal of the lease and licenses of occupation for the Maligne Lake developments;
d) The proposed development could jeopardize the survival and recovery of the Maligne Herd of Southern Mountain Caribou;
e) The proposed development would interfere with the use by grizzly bears and harlequin ducks of habitat adjacent to the Maligne Lake Day Use Area; and
f) There was no social science evidence to support the need for overnight accommodation at Maligne Lake.
[11] Parks Canada’s decision-making process in respect of Maligne Lake’s Concept Proposal involves several steps. While Phase 1 involved the preparation of the Concept Proposal at a pre-design level of detail, Phase 2 will involve the preparation of a more detailed Project Proposal that integrates the elements of experiential renewal accepted by Parks Canada for further consideration alongside a Detailed Environmental Impact Analysis. Approvals at this stage will be in the form of permits and lease and licence agreement negotiations.
[12] From October 2013 to January 2014, Parks Canada received approximately 1842 submissions of feedback, including the written responses of three aboriginal communities, related to the Concept Proposal. Support for Maligne Tours tended to welcome a sustainable proposal that will enhance Jasper tourism, as well as the need for an updating of the current day facilities to reflect evolving visitor needs and interests. Objections centered on concerns related to the more contentious, proposed overnight accommodations (the lodge and the tent cabins).
[13] The Applicants received the Superintendent’s Record of Decision on July 30, 2014.
III. DECISION UNDER REVIEW [14] In a letter to Maligne Tours which accompanied a copy of the Record of Decision, the Superintendent indicated that while the Implementation Strategy process and a caribou recovery plan remain works in progress, Parks Canada was able to determine which elements of the Concept Proposal would proceed to the Phase 2 development review stage. After identifying the respective scope, merits and concerns of each of the 14 elements of the Concept Proposal, the Record of Decision accepted all but the proposal for the 66-room lodge.
[15] The Record of Decision states that in reaching its decisions on the Concept Proposal, particular attention was paid to land use direction in the Management Plan as well as Parks Canada’s 2007 document, Redevelopment Guidelines for Outlying Commercial Accommodations and Hostels in the Rocky Mountain National Parks. These policies, as well as Parks Canada’s mandate, serve as the framework for ensuring the maintenance of the values for which the Canadian Rocky Mountain Parks UNESCO World Heritage Site designation was made. Furthermore, the feedback and commentary received by Parks Canada and Maligne Tours was taken into consideration in the Superintendent’s decision-making, and will go on to shape the more detailed submissions to be developed by Maligne Tours in Phase 2, should they decide to proceed with the elements of the Concept Proposal that have been accepted.
[16] In 2013, Parks Canada’s initial view on incorporating seasonal visitor accommodations into a redeveloped Maligne Valley was that a hotel proposal ought to be considered, even though it is inconsistent with current policy. Policy must evolve with time and take into account the potential for proposed projects to contribute to visitor experiences at Maligne Lake. Preliminary approval cautioned that Parks Canada was open to a consideration of the commercial accommodation proposal, but no assurances of future development approvals were provided.
[17] The Record of Decision states that Parks Canada’s first priority in decision-making is ecological integrity. Elements of the Concept Proposal that are granted further consideration in Phase 2 will be subject to the environmental impact analysis of Parks Canada. This analysis investigates how components of the proposal interact with ecological integrity, and its results will be used to support subsequent decision-making on the proposal. Visitor experience was a further policy consideration.
[18] Consideration was also given to the terms and conditions of Maligne Tours’ current lease, as well as guidance from several existing Parks Canada policies including: Parks Canada Guiding Principles and Operational Policies (2004); Parks Canada’s Limits to Growth and Development Policy Framework; Parks Canada’s Redevelopment Guidelines for Outlying Commercial Accommodations and Hostels in the Rocky Mountain National Parks (2007); and Parks Canada Management Directive 4.4.6 – Outlying Commercial Accommodations. In national parks, preference is given to basic accommodation facilities such as campgrounds, hostels and shelters. The commercial sector may be invited to provide roofed facilities due to severe climate conditions and the lack of existing or adjacent facilities, but such facilities must not impair the wilderness experience of others, and will be assessed within the context of the Management Plan. They must also stringently conform to the zoning plan.
[19] The Management Plan - which provides the policy framework for achieving Parks Canada’s mandate for strengthening visitor experiences and learning opportunities, improving protection of ecological and cultural resources, strengthening relationships with Aboriginal people and promoting Park stewardship - also guided the Decision. Its key strategies and area concepts contribute to ensuring that visitor use does not impair ecological integrity. This is done by paying careful attention to protecting grizzly bear and caribou populations, wildlife movement corridors, aesthetic values, wilderness attributes and the experiences of other visitors. The Record of Decision notes that the Management Plan, unlike its previous version, makes no direct statement on the subject of overnight commercial accommodations at Maligne Lake.
[20] The key factors considered with regards to the Concept Proposal included:
• Consistency with realty and land use policies: their merits and potential positive and negative effects with respect to ecological integrity; visitor experience; cultural resources; public enjoyment; and learning opportunities;
• Sitting, scale, massing and architectural treatment of buildings;
• The capacities of the area’s infrastructure and natural environments to support the proposals;
• Potential influence on visitation and economic circumstances; and
• Feedback from the public and Aboriginal communities with interests in Jasper National Park.
[21] The Tent Cabin Proposal was accepted for further consideration in the development review process, subject to a successful amendment to the Management Plan to allow consideration for release of new lands. The Decision (contained within the Record of Decision) describes the scope of the proposal as an off-lease activity, targeted at young urban couples, new Canadian couples, international visitors and other independent vacationers, that will require the release of new land under licence of occupation to accommodate 10-15 tent cabins which can house two guests each. The tent cabins will use electric power and propane for heating but will not provide for cooking or fire pits, as breakfast and dinner will be served at the Maligne Lake Chalet. The merits of the project include the increased diversification of accommodations in the Park - a Parks Canada priority - and the opportunity to celebrate the stories of early tourism traditions at Maligne Lake, while helping to fulfill directions in the Management Plan to renew visitor experiences and learning opportunities and to update infrastructure at Maligne Lake.
[22] The Decision identified concerns about the fixed roof lodge proposal (detraction from scenic values, failure to support ecological goals and policies, etc), but found that such concerns apply to a lesser extent to the Tent Cabin Proposal for which the development needed is smaller in scale, less intense and easily reversible, enabling an adaptive management approach. Additional concerns include: the need for active management (including the enforcement of regulations related to wildlife attractants) and intelligent design in order to avoid and respond to wildlife-human conflicts; the required release of new lands (which contradicts s 4.7.1 of the Management Plan); the potential for the quality of visitor experiences to be reduced by the lack of privacy for cabin guests; and the location of the cabin site which is imbedded within a heavily visited day-use area.
[23] The Decision indicates that Parks Canada is prepared to consider the Tent Cabin Proposal, subject to the successful completion of an amendment to the Management Plan. This, alongside the other decisions contained within the Record of Decision, allows for the development of a comprehensive project proposal which will be considered by Parks Canada alongside a Detailed Environmental Impact Analysis, the review of which will provide additional opportunities for public comment.
IV. ISSUES [24] The Applicants have raised the following separate but interrelated issues in this application:
1. Does the Decision unlawfully contravene the Management Plan?
2. Did the Superintendent err in law or jurisdiction by making the Decision contingent on a future amendment in the Management Plan?
3. Is the Decision unreasonable given its failure to support the maintenance and restoration of ecological integrity?
V. STANDARD OF REVIEW [25] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[26] In Canada (Attorney General) v Banff (Development Appeal Board), 2013 ABCA 127 [Banff], the Alberta Court of Appeal held that the standard of correctness will apply to decisions of a Development Appeal Board “on the interpretation of statutes, bylaws, and other similar planning instruments.” However, given that the first issue for determination in this judicial review engages the expertise of the Superintendent and is primarily based on the interpretation of the Management Plan within the context of a particular set of facts, deference should be extended and the standard of review will be reasonableness: Dunsmuir, above, at paras 53-54.
[27] As regards the second issue, a true jurisdictional issue is reviewable on the standard of correctness. However, in this instance, the Superintendent is acting within his statutorily-granted jurisdiction in allowing the Tent Cabin Proposal to advance through the development review process towards the next phase of consideration. Given the discretionary nature and the expertise and experience that this necessitates, the Superintendent’s Decision, made pursuant to his authority to manage a national park, is reviewable on a reasonableness standard: Burley v Canada (Attorney General), 2008 FC 588; Sunshine Village Corporation v Parks Canada Agency et al, 2014 FC 604 at para 30 [Sunshine Village].
[28] The third issue will clearly also be reviewed on the reasonableness standard.
[29] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
VI. STATUTORY PROVISIONS [30] The following provisions of the Agency Act are applicable in this proceeding:
Minister Responsible
Ministre Responsable
4. (1) The Minister is responsible for the Agency and the powers, duties and functions of the Minister, in that capacity, extend to and include all matters over which Parliament has jurisdiction, not by law assigned to any other department, board or agency of the Government of Canada, relating to
4. (1) Le ministre est responsable de l’Agence et, à ce titre, ses attributions s’étendent de façon générale à tous les domaines de compétence fédérale non attribués de droit à d’autres ministères ou organismes et liés :
(a) areas of natural or historical significance to the nation, including national parks, national marine conservation areas, national historic sites, historic canals, historic muse ums established under the Historic Sites and Monuments Act, Saguenay-St. Lawrence Marine Park and Rouge National Urban Park;
a) aux lieux naturels ou historiques d’importance pour la nation, notamment les parcs nationaux, les aires marines nationales de conservation, les lieux historiques nationaux, les canaux historiques, les musées historiques créés en vertu de la Loi sur les lieux et monuments historiques, le parc marin du Saguenay — Saint-Laurent et le parc urbain national de la Rouge;
(b) heritage railway stations, heritage lighthouses, federal heritage buildings, historic places in Canada, federal archaeology and Canadian heritage rivers; and
b) aux gares ferroviaires patrimoniales, aux phares patrimoniaux, aux édifices fédéraux patrimoniaux, aux lieux patrimoniaux au Canada, à l’archéologie fédérale et aux rivières du patrimoine canadien;
(c) the design and implementation of programs that relate primarily to built heritage.
c) à la mise sur pied et la mise en œuvre de programmes visant principalement le patrimoine bâti.
Ministerial Direction
Instruction du Ministre
(2) The Minister has the overall direction of the Agency, which shall comply with any general or special direction given by the Minister with reference to the carrying out of its responsibilities.
(2) Le ministre fixe les grandes orientations à suivre par l’Agence, à qui il incombe de se conformer aux instructions générales ou particulières qu’il lui donne en ce qui a trait à la réalisation de sa mission.
[31] The following provisions of the Canada National Parks Act, SC 2000, c 32 [Parks Act] are applicable in this proceeding:
2. (1) “ecological integrity” means, with respect to a park, a condition that is determined to be characteristic of its natural region and likely to persist, including abiotic components and the composition and abundance of native species and biological communities, rates of change and supporting processes.
2. (1) « intégrité écologique » L’état d’un parc jugé caractéristique de la région naturelle dont il fait partie et qui sera vraisemblablement maintenu, notamment les éléments abiotiques, la composition et l’abondance des espèces indigènes et des communautés biologiques ainsi que le rythme des changements et le maintien des processus écologiques.
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Parks dedicated to public
Usage public des parcs
4.(1) The national parks of Canada are hereby dedicated to the people of Canada for their benefit, education and enjoyment, subject to this Act and the regulations, and the parks shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations.
4. (1) Les parcs sont créés à l’intention du peuple canadien pour son bienfait, son agrément et l’enrichissement de ses connaissances, sous réserve de la présente loi et des règlements; ils doivent être entretenus et utilisés de façon à rester intacts pour les générations futures.
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Management by Minister
Autorité Compétente
8. (1) The Minister is responsible for the administration, management and control of parks, including the administration of public lands in parks and, for that purpose, the Minister may use and occupy those lands
8. (1) Les parcs, y compris les terres domaniales qui y sont situées, sont placés sous l’autorité du ministre; celui-ci peut, dans l’exercice de cette autorité, utiliser et occuper les terres domaniales situées dans les parcs.
Ecological Integrity
Intégrité Écologique
(2) Maintenance or restoration of ecological integrity, through the protection of natural resources and natural processes, shall be the first priority of the Minister when considering all aspects of the management of parks.
(2) La préservation ou le rétablissement de l’intégrité écologique par la protection des ressources naturelles et des processus écologiques sont la première priorité du ministre pour tous les aspects de la gestion des parcs.
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Management Plans
Plan directeur
11. (1) The Minister shall, within five years after a park is established, prepare a management plan for the park containing a long-term ecological vision for the park, a set of ecological integrity objectives and indicators and provisions for resource protection and restoration, zoning, visitor use, public awareness and performance evaluation, which shall be tabled in each House of Parliament.
11. (1) Dans les cinq ans suivant la création d’un parc, le ministre établit un plan directeur de celui-ci qui présente des vues à long terme sur l’écologie du parc et prévoit un ensemble d’objectifs et d’indicateurs relatifs à l’intégrité écologique, et des dispositions visant la protection et le rétablissement des ressources, les modalités d’utilisation du parc par les visiteurs, le zonage, la sensibilisation du public et l’évaluation du rendement; il le fait déposer devant chaque chambre du Parlement.
Review of Management Plans by Minister
Examen du plan directeur par le ministre
(2) The Minister shall review the management plan for each park at least every 10 years and shall cause any amendments to the plan to be tabled in each House of Parliament.
(2) Le ministre procède à l’examen du plan au moins tous les dix ans par la suite et, le cas échéant, fait déposer ses modifications devant chacune de ces chambres.
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Powers of superintendents
Pouvoirs du directeur
16. (3) Regulations made under this section may authorize the superintendent of a park, in the circumstances and subject to the limits that may be specified in the regulations,
16. (3) Les règlements pris sous le régime du présent article peuvent habiliter le directeur d’un parc, dans les circonstances et sous réserve des limites qu’ils prévoient, à :
(a) to vary any requirement of the regulations for purposes of public safety or the conservation of natural resources in the park;
(a) en modifier les exigences à l’égard du parc en vue de la protection du public ou de la préservation de ses ressources naturelles;
(b) to issue, amend, suspend and revoke permits, licences and other authorizations in relation to any matter that is the subject of regulations and to set their terms and conditions; and
(b) délivrer, modifier, suspendre ou révoquer des licences, permis ou autres autorisations relativement à ces matières et en fixer les conditions;
(c) to order the taking of any action to counter any threat to public health or to remedy the consequences of any breach of the regulations in the park.
(c) ordonner la prise de mesures afin de parer aux menaces pour la santé publique ou de remédier aux conséquences des contraventions aux règlements dans le parc.
VII. ARGUMENT A. Applicants (1) Contravention of the Management Plan [32] Section 4.7.1 of the Management Plan prohibits, by way of the “Direction on Outlying Facilities and Marmot Basin,” the release of new land for overnight commercial accommodation outside of the community of Jasper [Prohibitive Provision]. The Record of Decision acknowledges that the Tent Cabin Proposal will require the release of new land, and is therefore clearly contradictory to s 4.7.1 of the Management Plan.
[33] The Prohibitive Provision is binding, either as ministerial direction pursuant to s 4 of the Agency Act, or as subordinate legislation, or both. The Applicants submit that the Prohibitive Provision constitutes a “general or special direction” of the Minister, and is supported by the Management Plan and its supporting policy which consistently reference it as “direction.” The Federal Court of Appeal has said that such directive provisions are capable of being binding on Parks Canada: Peter G White Management Ltd v Canada (Minister of Canadian Heritage), 2006 FCA 190 [Peter G White].
[34] The Applicants say that the Management Plan is legislative in nature as it addresses the overall direction of Jasper National Park for the next 10 to 15 years, applies to general governance over time, and serves as a framework for planning and decision-making for the whole park. It is therefore consistent with the criteria set out in the Supreme Court of Canada’s decision in Vancouver Transportation Authority v Canadian Federation of Students, 2009 SCC 31; it has general application, is accessible to the public, and establishes rights and obligations of others over a period of time.
[35] In order to determine whether the Management Plan is subordinate legislation with the power of law, the Applicants apply a two-step analysis, scrutinizing first the statutory scheme to determine whether the enabling statute is capable of supporting a power to create subordinate legislation, then the instrument itself to determine whether it is mandatory. See Guelph (City) v Wellington-Dufferin-Guelph Health Unit, [2011] OJ No 6396 at para 102; Friends of the Oldman River Society v Canada (Minister of Transport), [1992] SCJ No 1 at paras 33-37. The Applicants say that as per s 4(2) of the Agency Act, the Management Plan’s legislative intent is in part to permit the Minister to bind Parks Canada through ministerial direction. Further, the Management Plan was promulgated and tabled in Parliament by the Minister under the statutory authority of the Parks Act and Agency Act. These are exercises of authority that the Federal Court of Appeal has identified as possibly giving the force of law to a management plan: Peter G White, above.
[36] The Applicants say this is made evident through the use of mandatory and unambiguous language such as “shall” and “must,” the Management Plan is mandatory: Peter G White, above, at paras 30, 70; Banff, above. This is further made clear in the Record of Decision’s explanation for the removal of a provision in a previous version of the document, stating that it was eliminated “in part because it restricted flexibility to consider new ideas of potential merit.” Given that the Record of Decision indicates that Parks Canada will have to undertake a review of the Management Plan to allow for consideration of the release of additional lands, the Superintendent clearly realized that the prohibition against the release of new lands is mandatory, as an amendment would otherwise not be required.
[37] The Applicants further submit that the Superintendent failed to apply the OCA Guidelines as required by the Management Plan. Section 2.6 of the OCA Guidelines prohibits new OCAs outside the town site of Jasper. Where the OCA Guidelines define an OCA as “any privately operated, road-accessible mountain national park visitor accommodation,” the Record of Decision defines OCA as a “privately owned and operated low-density, roofed, overnight visitor accommodation…on leased land within a national park and accessible by road.” This reliance on an unsupported definition marks a failure to consider the OCA Guidelines in the context of the Tent Cabin Proposal, something that the Applicants submit the Superintendent was obligated to do.
[38] In making the Decision in contravention of the Prohibitive Provision included in the Management Plan, and by failing to apply the OCA Guidelines, the Superintendent erred in law or, in the alternative, acted unreasonably.
(2) The Contingent, Future Management Plan Amendment [39] By making his approval of the Tent Cabin Proposal contingent on a future amendment to the Management Plan, the Applicants submit that the Superintendent erred in law or jurisdiction or, in the alternative, made an unreasonable decision. In terms of the first argument, the power to consider and decide upon amendments to the Management Plan is the jurisdiction of the Minister; the Superintendent is not authorized by the legislative and policy scheme to consider a future amendment, and so he disregarded or misapprehended the parameters of his decision-making authority. The Court should not sanction ultra vires conduct, as to do so would undermine the hierarchical nature of delegated authority.
[40] The alternative, second argument, is that the Superintendent exercised his discretion improperly, particularly through the consideration of irrelevant grounds and the making of the Decision for an improper purpose: Chernipeski v Lacombe (Town) (1996), 45 Alta LR (3d) 207 [Chernipeski]. The Superintendent was required to only consider the current Management Plan and the statutory scheme that authorizes his activity, not speculative implications such as a potential future amendment: R v Fortune, 2012 BCSC 2031.
[41] The Applicants further submit that a potential future amendment was considered for an improper purpose, something that the Supreme Court of Canada has held will result in an ultra vires decision: Shell Canada Products Ltd v Vancouver (City), [1994] 1 SCR 231 [Shell Canada]. The purpose for considering an amendment to the Management Plan is not stated in the Record of Decision. However, no review has been conducted to identify “changed circumstances,” and no “changed circumstances” have been identified that would warrant amendment. Commercial development is not a “changed circumstance.” It can therefore be assumed that the consideration of a future amendment was done solely to allow the proposed commercial accommodations. This purpose is contrary to the governing legislation. In International Union of Operating Engineers, Local 904 v Newfoundland (Labour Relations Board), 135 Nfld & PEIR 350 (SCTD) [Operating Engineers], the Newfoundland Supreme Court (Trial Division) held that the Board should not seek a legislative amendment to defeat the anticipated effect of a submission it had taken under reserve. The Applicants argue that similarly, in the present case, the Superintendent should not seek and rely on an amendment to the Management Plan to defeat the anticipated effect of making a decision based on the existing Management Plan. This is an improper purpose.
[42] The Applicants say that the amendment process is clearly intended to keep development decisions separate from long-term management plan decisions. The piecemeal amendment of the Management Plan for the furtherance of development would be antithetical to its primary purpose of maintaining ecological integrity for future generations.
(3) The Failure to Support Ecological Integrity [43] The Applicants further submit that the Superintendent did not comply with the legal obligations set out in the Parks Act, the Management Plan, the OCA Guidelines and SARA to give first priority to ecological integrity. The Record of Decision says that the “ecological concerns identified for the fixed roof/hotel accommodation element apply to a lesser extent to the tent cabins…” and goes on to identify an additional concern related to potential for wildlife-human conflicts (created by the tent cabin site). The evidence of impacts to ecological integrity associated with the Tent Cabin Proposal make the Decision unreasonable, particularly given the reliance of the Superintendent on the same ecological concerns to justify the rejection of the Hotel Proposal.
[44] No evidence was provided to support the assertion that concerns related to the Tent Cabin Proposal will be significantly less than those related to the Hotel Proposal. The Applicants argue that, given that the Tent Cabin Proposal requires the release of additional lands and increases the opportunity for wildlife-human conflicts, it is arguable that some of the impacts would be even more significant. Furthermore, the reversibility assumption is questionable, as even with a less-permanent construction, a guest unit will create an ecological footprint of similar impact.
[45] Parks Canada has identified the status of the caribou as one of the most pressing challenges facing Jasper National Park, and has determined that commercial development is one of the threats to their survival. Most of the Maligne Valley has been identified by Parks Canada as important caribou habitat and its own documents identify the impact on the sustainability of the herd if even one caribou is lost. The Maligne herd subpopulation has declined from 68 animals in 1998 to 4 in 2014. The Committee on the Status of Endangered Wildlife in Canada [COSEWIC] evaluated Southern Mountain Caribou as endangered in May 2014, meaning they face imminent extirpation or extinction.
[46] Parks Canada has the responsibility to implement SARA in the national parks; this includes an obligation to protect species at risk and their habitats. The Minister released the “Strategy for the Woodland Caribou, Southern Mountain population (Rangifer tarandus caribou) in Canada” as required under SARA – the goal of which, the Applicants argue, is clearly not being met. Given the current state of the herd and that commercial development has been identified as a threat, it is clear that allowing further development and releasing further lands in the area would be contrary to the recovery strategy and the requirements of SARA.
[47] The Applicants say that the protection of ecological integrity in the Maligne Valley also necessitates the protection and recovery of grizzly bears and their habitat, a priority identified by Parks Canada in the Management Plan. COSEWIC recommended in 2002 and 2012 that grizzly bears be identified as a species of special concern under SARA.
[48] Additional development within the Maligne Valley is not compatible with the recovery of the Maligne caribou herd and protection of grizzly bears, and the Tent Cabin Proposal poses a new risk to their habitat security. Loss of an ecosystem is contrary to the obligations of the Minister under s 8(2) of the Parks Act: ZooCheck Canada v Parks Canada Agency, 2008 FC 540. The Applicants argue that, in this case, to allow development that contributes to the loss of a species is similarly contrary to those same obligations.
[49] The Record of Decision is contradictory and unreasonable because it disallows the Hotel Proposal for its failure to comply with Parks Canada documents (the Management Plan and OCA Guidelines, when denying its approval) but ignores the failure of the Tent Cabin Proposal to comply with those same documents.
[50] The Applicants submit that the national, public nature of the matter at hand and the importance of maintaining ecological integrity make it vital that the Court order the declaratory relief sought: Nagalingam v Canada (Public Safety and Emergency Preparedness), 2012 FC 362 at para 18. The prohibitions sought are appropriate: the Superintendent has acted outside of his authority and Parks Canada must be prevented from taking future steps prior to the determination by the Court of the legality of the Decision. Certiorari is also appropriate and the Decision should be squashed.
B. Respondents – Parks Canada [51] Parks Canada fundamentally disagrees with the Applicants’ characterization of the Decision. It was a Phase 1, conceptual level decision and has simply permitted the Tent Cabin Proposal to proceed to Phase 2 of the development review process. At that point, a detailed examination of the Tent Cabin Proposal’s interaction with ecological integrity will occur, and Maligne Tours will need to submit to the Superintendent a more robust proposal as well as an environmental impact analysis for review and consideration.
(1) The Decision is Lawful [52] Parks Canada submits that the Decision is lawful because: the Superintendent had the legal authority to make it; it does not contravene the Management Plan; and management plans are guidelines, not subordinate legislation or binding directions.
[53] As per the Agency Act, the Minister’s powers, duties and functions extend to all matters relating to national parks over which Parliament has jurisdiction and which are not otherwise assigned. In Canadian Parks & Wilderness Society v Canada, 2003 FCA 197 [CPAWS v Canada], the Federal Court of Appeal found the Minister’s power to authorize the construction of a road through a national park arose from the Minister’s responsibility to administer and manage national parks as per s 8(1) of the Parks Act. The Court pointed out that responsibility, without power, would be of little practical utility (at para 41). In addition, the Court noted that, as stated in Maple Lodge Farms Ltd v Canada, [1982] 2 SCR 2 at para 7, the judicial approach in construing statutes should be to avoid a narrow, technical construction and to give effect to the legislative intent as applied to the administrative scheme involved.
[54] The Court has repeatedly recognized the legislative authority and responsibility of superintendents to manage national par