Canadian Parks and Wilderness Society v. Copps

Canadian Parks and Wilderness Society v. Copps
Court (s) Database
Federal Court Decisions
Date
2001-10-16
Neutral citation
2001 FCT 1123
File numbers
T-1066-01
Notes
Digest
Decision Content
Date: 20011016
Docket: T-1066-01
Neutral citation: 2001 FCT 1123
BETWEEN:
CANADIAN PARKS AND WILDERNESS SOCIETY
Applicant
- and -
SHEILA COPPS, MINISTER OF CANADIAN HERITAGE,
and
THE THEBACHA ROAD SOCIETY
Respondents
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] Canadian Parks and Wilderness Society ("CPAWS") seeks judicial review of a decision of the Minister of Canadian Heritage (the "Minister") made the 25th of May, 2001, to authorize the Thebacha Road Society ("Thebacha") to construct and operate a winter road, some 118 kilometres in length, and on a road allowance 10 metres in width, through Wood Buffalo National Park (the "Park").
[2] In its Memorandum of Fact and Law, CPAWS seeks the following relief:
- an Order:
- Declaring that the Minister's authorization of the road is contrary to the powers of the Minister and/or any delegate under sections 4 and 8 of the Canada National Parks Act, Statutes of Canada, 2000, c. 32 and ultra vires the powers of the Minister and/or any delegate under the Canada National Parks Act and the National Parks General Regulations, SOR/78-213;
- Declaring that authorizing construction of the road is contrary to the maintenance or restoration of ecological integrity through the protection of natural resources and natural processes, the first priority in considering all aspects of management of the Park, pursuant to subsection 8(2) of the Canada National Parks Act;
- Quashing the decision of the Minister and/or any delegate to authorize the road;
- Prohibiting the issuance by Parks Canada of a permit under s. 12 of the National Parks General Regulations to Thebacha;
- Costs; and
- Such further and additional relief as this Court deems just.
[3] Alternatively, CPAWS seeks the following relief:
- an Order;
- Declaring that a mandatory statutory step required by the Canadian Environmental Assessment Act, Statutes of Canada, 1992 c. 37, prior to authorizing construction of the road was not complied with, namely the completion of an environmental assessment in compliance with that Act;
- Declaring that the requirements of the Canadian Environmental Assessment Act must be complied with before the Minister and/or any delegate takes any action for the purpose of enabling construction of the road or portion thereof;
- Quashing the decision of the Minister and/or her delegates to authorize construction of the road;
- Prohibiting the respondent and/or any delegates from issuing any approvals or authorizations or taking any action for the purpose of enabling or initiating construction of the road or portion thereof until such time as the requirements of the Canadian Environmental Assessment Act have been complied with;
- Costs; and
- Such further and additional relief as this Court deems just.
BACKGROUND
1) Wood Buffalo National Park
[4] Wood Buffalo National Park is the largest National Park in Canada's National Parks System. It straddles the border between Alberta and the Northwest Territories and is closer to the eastern border of Alberta than to its western border. For ease of reference, two maps situating the Park appear as Schedule I to these reasons.
[5] The following is extracted from the Wood Buffalo National Park Management Plan published in 1985, apparently the most recent Management Plan for the Park[1]:
Wood Buffalo National Park is 44,807 sq. km in size, the largest national park in the country and one of the largest in the world. It is primarily a vast, poorly drained plain covered by forests, grasslands, muskeg and a multitude of meandering streams, shallow lakes and bogs. Being a part of the Interior Plains it is underlain by sedimentary rock. A few outliers of the granitic hills of the Canadian Shield which lies to the east of the plain, are also found within the park. The Peace and Athabasca rivers, meandering through wide floodplains, enter the area from the west and south, converge to form a great inland delta in the western end of Lake Athabasca and then continue north as the Slave River to Great Slave Lake. Elsewhere the level relief and slow percolating drainage have created landscapes such as karstlands and salt plains.
The size, relative isolation and wilderness character of the park have allowed several endangered species - most notably whooping cranes, bison and peregrine falcons - to survive. By also continuing to provide the basis for the traditional lifestyles of native residents, the park protects a virtually intact northern boreal plains ecosystem: landscape, vegetation, wildlife and culture.
In 1983, the Park was designated a World Heritage Site by the United Nations Educational, Scientific and Cultural Organization, confirming the exceptional universal value of the Park as a cultural or natural site deserving of protection for the benefit of humanity.
[6] The Park is, in most of its expanse, inaccessible by road. A primary road does connect the community of Garden River, close to the western border of the Park and towards its southern border, to other communities outside the Park. The MacKenzie highway system, running north from Peace River to the west of the Park, crosses the Alberta/Northwest Territories boundary and continues in a north-easterly direction north of the northwest portion of the Park with one element of the highway system turning south to cross the north-easterly corner of the Park to eventually connect with Fort Smith which is in the Northwest Territories, outside the Park. A limited network of secondary roads services the easterly portion of the Park and connects Fort Smith, Peace Point, another community within the Park, and Fort Chipewyan on the north shore of Lake Athabasca just to the east of the Park. The proposed winter road here at issue would connect the communities of Garden River and Peace Point, both within the Park.
[7] Fort Chipewyan has a winter road connection south to Fort McMurray across Lake Athabasca. Fort Smith has a direct road connection, principally on primary roads, to Peace River as earlier indicated. Although the winter road at issue would provide a shorter route during the winter from Fort Smith to Peace River, studies have indicated that, because of the nature of the proposed road, it would not be a faster route.
2) The Parties
[8] According to an affidavit of Sam Gunsch, the Executive Director of the Edmonton Chapter of CPAWS, sworn the 29th of May, 2001[2], CPAWS is a national non-profit organization with ten (10) chapters across Canada. CPAWS' general mandate is to promote the protection and expansion of Canada's national and provincial parks. Its goals include: educating the public to recognize the value of and the need for protecting parks and natural areas; promoting the establishment of additional protected national areas; and seeking to ensure that laws protecting park lands in Canada are upheld. Mr. Gunsch attests that CPAWS seeks to ensure that activities that may harm or pose the risk of harm to parks undergo a careful and thorough environmental assessment prior to proceeding. Mr. Gunsch further attests that CPAWS has approximately 20,000 members and supporters across Canada, including 3,000 members of its Edmonton Chapter, and approximately 132 members residing in Northern Alberta and/or the Northwest Territories near the Park.
[9] In the principal affidavit of Richard Power sworn the 3rd of August, 2001 and forming part of the application record of Thebacha in this matter, Mr. Power attests[3]:
The people of Fort Smith, Smith's Landing First Nation, Salt River First Nation and Little Red River Cree First Nation live in the isolated but interconnected communities of Fort Smith, Fort Fitzgerald, and Garden River. Members of the Mikisew Cree First Nation reside at Peace Point, a reserve within [Wood Buffalo National Park]. There are family connections between these communities and many people move between these communities and have families residing in one or more of these communities. [ Wood Buffalo National Park] creates a geographical barrier which cuts off each of the communities from the other and, in particular, divides the eastern communities of Fort Smith and Fort Fitzgerald, from Peace Point, within [Wood Buffalo National Park], and Garden River on the western edges of the Park. For many there is little opportunity to visit with friends and family in the winter months due to the hardships imposed by the lack of access through [Wood Buffalo National Park]. It was largely the interest of connecting these isolated first nation and aboriginal communities that created and kept alive the interest of the residents in exploring transportation options through [Wood Buffalo National Park].
...
The town of Fort Smith is the major municipal supply and services centre in the area and is a municipal corporation established under the Cities, Towns and Villages Act of the Northwest Territories. The town is located along the banks of the Slave River north of the 60th parallel and approximately 1423 kilometres north of Edmonton. The town's population is approximately 2,600, the majority of which has aboriginal ancestry. In particular, approximately 30% of the town residents are Dene and a further 30% are of Métis ancestry. The town's economy is largely dependent on government, Aurora College, a post-secondary institution, and the [Wood Buffalo National Park] administration. Fort Smith also provides services to the communities surrounding [Wood Buffalo National Park].
[10] As noted in the foregoing quotation, members of the Mikisew Cree First Nation reside at Peace Point, a reserve within the Park, and the proposed easterly terminus of the winter road. They oppose construction and operation of the winter road and have filed a parallel application for judicial review of the decision authorizing its construction and operation.[4]
[11] In his affidavit previously cited, Mr. Richard Power attests: that Thebacha is a not for profit society incorporated under the laws of Alberta and the Northwest Territories; that it was created as a means of bringing together various groups residing near Fort Smith and otherwise in the area of the Park with common interests as they concern the proposed winter road; and that its membership is comprised of the town of Fort Smith, Fort Smith Métis Council, Salt River First Nation, Smith's Landing First Nation and Little Red River Cree First Nation.
[12] For obvious reasons, the Mikisew Cree First Nation is not a member of Thebacha.
[13] The Honourable Sheila Copps, Minister of Canadian Heritage, is the member of the Queen's Privy Council for Canada designated by the Governor in Council as the Minister for the purposes of the Canada National Parks Act [the "new Act"][5]. Further, she is the Minister responsible for, and having overall direction of, the Parks Canada Agency established by the Parks Canada Agency Act[6]. By subsection 5(1) of its constating Act, subject to any direction of the designated Minister, the Parks Canada Agency "...may exercise the powers and shall perform the duties and functions that relate to the national parks, national historic sites and other protected heritage areas and heritage protection programs that are conferred on or delegated, assigned or transferred to the Minister [of Canadian Heritage] under any Act or regulation". The Parks Canada Agency Act recites that the Agency is established "...for the purpose of ensuring that Canada's national parks, national historic sites and related heritage areas are protected and presented for this and future generations and in order to further the achievement of the national interest as it relates to those parks, sites and heritage areas and related programs..." .
3) The Road Proposal
[14] As earlier indicated, the proposed road would be approximately 118 kilometres long. It would approximately follow an old, overgrown road right of way between Garden River and Peace Point, both communities within the Park, which right of way roughly follows the north bank of the Peace River. Its design as a winter road would be to accommodate light trucks, cars and vans only; it would not accommodate tractor trailers. The "...old, overgrown road right of way" was a winter road that was used between 1958 and 1960.
[15] Since the abandonment of the earlier winter road, its route, at least along much of its length, has become relatively densely re-vegetated with native species including semi-mature pine, aspen, willow and birch. Notwithstanding the re-vegetation, residents of Garden River and Peace Point, and Parks Canada staff, travel the right of way by snowmobile in winter and, at certain other seasons, by all-terrain vehicles. It was not in dispute before me that construction of the proposed winter road would result in the loss of vegetation along the right of way, some degree of potential or actual erosion of fragile sandy soils, the exposure of some wild life in the Park to poaching and to mortality caused by vehicle collisions and increased risk of harm to sensitive karst landscape features on or adjacent to the right of way. Further, potentially at least, the new winter road would pose a risk of introduction of invasive plant species foreign to the Park environment from soil and seed residues attached to vehicles using the road.
[16] Not surprisingly, given the lack of transportation infrastructure in the region, the proposal to reopen the winter road that was used between 1958 and 1960, is not new. In the Wood Buffalo National Park Management Plan earlier referred to, published in 1985 and, apparently, the most recent Management Plan for the Park, the "Peace River Road" corridor was indicated to be a "Zone IV Recreation Area"[7]. The Plan noted:
This zone designation has resource protection objectives oriented towards minimizing the negative impacts of a broad range of general outdoor opportunities and facilities on the natural environment.
[17] The Plan continued[8]:
The limited number of Zone IV areas is also due to the limited capability of the park area, as determined by conventional landscape assessment methods, to generate and sustain recreational use of an intensity and type that makes the Zone IV designation appropriate. Despite this overall limitation, however, a number of areas not currently subject to recreational use warrant Zone IV status due to their characteristics and location. The two noteworthy examples are the Parsons Lake Road corridor and related salt plains viewpoint, and the Peace River Road corridor. The latter corridor is essentially the right-of-way which was cleared in the early 1960's. The initial investigation of the road concept (1982) determined that this alignment was the most suitable route, should a road be built along the Peace River. The designation of this corridor as Zone IV reflects the acceptance in principle of the road concept, subject to the results of detailed studies and discussions, and satisfactory conclusions of assessments carried out under the Environmental Assessment and Review Process.
It is worthy of note that the "road concept" then accepted in principle was not limited to a winter road.
[18] Parks Canada does not dispute that an all-season road has "...long been pursued as an objective by groups and individuals in the region".[9]
[19] Mr. Gunsch attests in his principal affidavit[10] at paragraph 19:
The [current] winter road project arose from a formal written submission made by the town of Fort Smith to the Secretary of State for Parks in December 1998 entitled "Opening the Trail to the Future of Wood Buffalo National Park". The proposal, ... sought approval of an all-season road following the general route of the present winter road proposal. The expressed rationale for the requested all-season road is that it will lead to an increase in tourism to Fort Smith, and a decrease in transportation costs to the community... . [emphasis in original]
[20] In the executive summary to the submission entitled "Opening the Trail to the Future of Wood Buffalo National Park"[11], the following appears:
For the past forty years, Fort Smith has been requesting a road-link with the south through Wood Buffalo National Park. The establishment of the Park immediately south and west of Fort Smith effectively prevented the development of a direct route to the south via road that could have enabled the community to maintain its strategic position along the north-south transportation routes that it had at the time of the fur trade, when waterways were the main arteries of transportation in the Northwest. As a consequence, the Park has stymied the development of Fort Smith and the entire Northeast Alberta/South Slave region.
...
Fort Smith and the communities in the region are requesting approval for the western extension of the all weather road from Peace Point along the existing right-of-way to Garden River on the western park boundary - a distance of some 120 Kilometres. From there, a gravel road would be built outside the Park some 40 kilometres to connect with Alberta Highway #58 at Wentzel River. This route - known as the Peace River Road - is authorized by the Management Plan for Wood Buffalo National Park. In fact, it is the only southern access road allowed by the Management Plan . Parks Canada does not object to the road being built but has made clear that the development of the road can only proceed if resources outside of Parks Canada can be secured.
...
...A direct road link is the single most important development measure that could be taken to stimulate economic development in the region and would be of practical benefit to Park administration. ...
[21] In a brief document entitled "Advice/Recommendation to the Minister" dated the 10th of September, 1999[12], Parks Canada addressed the issue of construction of a winter road through the Park. The key elements relating to the issue were indicated to be:
· Re-opening the winter road has been approved subject to an environmental screening.
· Acceptance of the Community's proposal for an all-season road along the winter route would be subject to project design, a comprehensive study under CEAA, and project sponsorship and financing.
Under the heading "Background" to the foregoing, Parks Canada noted:
...
· During a visit to Fort Smith, N.W.T. on August 11, 1999, the Minister of Canadian Heritage, agreed to consider a two-phased approach to a road south through Wood Buffalo National Park. The first phase would involve the re-opening of a winter road, subject to an environmental screening. The second phase would involve the construction of an all season road, subject to a comprehensive assessment under CEAA [the Canadian Environmental Assessment Act].
[22] Thus, CPAWS' concern reflected in this application for judicial review is not merely a winter road approval but, in fact, subject to a comprehensive environmental assessment, an all-season road, accomplished in two stages. This, despite the fact, that in a news release, dated the 25th of May, 2001, the same day on which approval to the winter road project was given, the following paragraph appears[13]:
Today's approval is for the re-establishment of a winter road only. Parks Canada has clearly stated that it is not prepared to consider an all-weather road proposal. The upcoming Wood Buffalo National Park Management Plan review will clearly state this direction and it will also be reflected in the scoping document and enshrined in the final plan. [emphasis added]
[23] Counsel for CPAWS emphasized the fact that, on at least five separate occasions, Parks Canada acknowledged that the winter road was not needed for "park purposes"[14].
THE DECISION UNDER REVIEW
[24] In a document entitled "Parks Canada Determination Regarding the Thebacha Road Society Proposal to Reopen a Winter Snow Road in Wood Buffalo National Park"[15], Parks Canada examines and comments on the winter road proposal under the following headings: Background; Appropriateness; Environmental Effects; Public Concern; and Road Realignment and Environmental Assessment Amendment and concludes in the following terms under the heading Finding And Determination:
Parks Canada and it's co-Responsible Authority HRDC [Human Resources Development Canada] have found the proposed reopening of the Garden River to Peace Point winter snow road is not in contradiction with Parks Canada plans and policy, (or other federal laws and regulations). It is determined that, taking into account the implementation of the Thebacha Road Society's mitigation measures, the project (construction, maintenance and operation of a winter snow road) is not likely to cause significant adverse environmental effects.
Subject to the implementation of the mitigating measures, including adaptive management and environmental management strategies, the winter snow road project is approved and can proceed.
The foregoing is the decision here under review. It was followed by an extensive Construction and Operating Agreement dated the 22nd of June, 2001, and executed on behalf of the Thebacha Road Society on the 26th of June, 2001 and on behalf of Her Majesty the Queen by the Director General, Parks Canada, western and northern Canada, on the 3rd of July, 2001. Counsel for the Minister anticipates that four permits will issue under the National Park Fire Protection Regulations and the National Park General Regulations to give effect to and to facilitate the implementation of the Agreement. They would apparently relate to flammable liquid storage, burning, clearing of the right-of-way and water withdrawal[16].
THE ISSUES
[25] In CPAWS' Memorandum of Fact and Law, the issues raised on this application for judicial review are described in substantially the following terms[17]:
· 1) Under the Canada National Parks Act:
a) Does the Minister have the implied power to approve a road through a national park, where no such power is granted in specific terms in the new Act and the road is not for park purposes?
b) Can the Minister approve a road through a national park where the first and determinative factor in her decision was not ecological integrity, and there is no evidence that she even considered ecological integrity at all?
c) Can Parks Canada issue a permit under section 12 of the National Parks General Regulations[18] to destroy 118 kilometres worth of park vegetation for a non-park management purpose?
· 2) Under the Canadian Environmental Assessment Act:
d) Can Parks Canada choose to ignore Thebacha's clearly stated intention to convert the winter road here under consideration into a full season road when determining the scope of the project to be assessed, even to the point of cleansing the project proposal of its original reference to the proposed full season road?
e) Can Parks Canada assess the road by way of a screening assessment, rather than a comprehensive study, where the obligation to conduct a comprehensive study arises whenever a proposed project within a national park conflicts with that park's management plan, and the winter road project materially conflicts with Wood Buffalo's 1984 Management Plan?
f) Can Parks Canada prevent timely public access to the registry of assessment documents maintained under the Canadian Environmental Assessment Act, by requiring the public to make an access to information request for the documents before they are released, with the result that members of the public are denied access to the assessment documents held in the registry until after the period for public comment on the assessment has ended?
While the issues before the Court, as above stated, are in somewhat argumentative language and are substantially restated in the Memorandum of Fact and Law filed on behalf of Thebacha, I will respond to the issues in the form presented by CPAWS.
THE LEGISLATIVE SCHEMES
1) The Canada National Parks Act
[26] The Canada National Parks Act (the "new Act") was assented to on the 20th of October, 2000. The provisions of the new Act that are here at issue came into force on the 19th of February, 2001[19]. Thus, the provisions at issue are of very recent vintage. Counsel assured me that this is the first occasion on which they have come before a Court for interpretation, at least in the context of an application such as this.
[27] The new Act, as it appears in the second volume of the Statutes of Canada for the year 2000 and in its electronic format, is preceded in its substantive form by a "Table of Provisions" and the following:
SUMMARY
The purpose of this enactment is to revise and consolidate the National Parks Act and, in particular, to
(a) provide a procedure for the future establishment of new parks and the enlargement of existing ones;
(b) add several new parks and park reserves and adjust the land descriptions of certain existing parks;
(c) enhance protection for wildlife and other park resources;
(d) provide for the continuation of traditional resource harvesting activities in keeping with comprehensive land claim agreements and federal-provincial agreements to establish parks;
(e) fix the boundaries of communities in parks and restrict commercial development in those communities; and
(f) make miscellaneous technical and housekeeping amendments.
SOMMAIRE
Le texte modifie et refond la Loi sur les parcs nationaux. En voici les points saillants:
a) établissement de la procédure de création d'agrandissement des parcs;
b) création de parcs et de réserves à vocation de parc et modification des descriptions de certains parcs existants;
c) protection accrue de la faune et des autres ressources dans les parcs;
d) autorisation des activités traditionelles en matière de ressources, en conformité avec les ententes sur les revendications territoriales globales et les ententes fédéro-provinciales portant création des parcs;
e) délimitation des collectivités situées dans les parcs et réglementation du développement commercial au sein de celles-ci;
f) modifications diverses mineures ou de nature administrative.
[28] Clearly of the purposes stated, for the purposes of this matter, the reference to enhancement of protection of wildlife and other park resources would appear to be the most important. I would interpret "other park resources" in the foregoing context to include the flora and natural objects within a National Park.
[29] None of the counsel appearing before me referred me to the foregoing summary statement as an interpretative aid or as being in any other way relevant for the purposes of this matter. Nor was I able in my own research to discover any guidance, from Parliament or otherwise, that would aid in a determination of the objective that Parliament, or indeed the Government, had in mind when it undertook to incorporate such a summary statement, and this in the context where such summary statements have been appearing in annual bound volumes of the Statutes of Canada since 1994.[20]
[30] For reasons that I will briefly elaborate later in these reasons, I am satisfied that neither Parliament nor the Government could have determined to add such useful "summaries" to the statute book without reason. I am prepared to determine that at least a portion of that reason was to provide an aid to interpretation somewhat akin to "legislative history". As I have indicated, I will have more to say on this subject later in these reasons.
[31] The most relevant provisions of the new Act are set out in Schedule II to these reasons.
[32] Subsection 12(1) of the National Parks General Regulations[21] reads as follows:
12. (1) The superintendent may issue a permit to any person authorizing the person to remove, deface, damage or destroy any flora or natural objects in a Park for purposes of Park management.
[emphasis added]
12. (1) Le directeur du parc peut délivrer un permis pour l'enlèvement, la mutilation, l'endommagement ou la destruction de la flore et de matières naturelles aux fins de la gestion du parc.
[je souligne]
[33] In section 2 of the same Regulations, the terms "flora" and "natural object" are defined for the purposes of those Regulations in the following terms:
"flora" means any plant matter, living or dead, and includes fungi and moulds;
...
"natural object" means any natural material, soil, sand, gravel, rock, mineral, fossil or other object of natural phenomenon not included within the terms flora and fauna that is located within a Park;
["flore" la définition n'apparaît pas dans la base de données;]
« matières naturelles » , matériaux naturels tels que de la terre, du sable, du gravier, de la pierre, des minéraux, des fossiles, ou tout autre objet d'origine naturelle non inclus dans la flore ou la faune;
As noted in the foregoing quotation, no definition of the term "flore", the French language equivalent of the term "flora", appears in either the hard copy version or the electronic version of the Regulations of Canada. However, the term "flora" is defined in the National Historic Parks General Regulations[22] in terms identical to the terms of the definition "flora" in the National Parks General Regulations except that the words "...but does not include the fossil remains" are added. A definition of the equivalent French language term "flore" appears in the National Historic Park General Regulations as follows:
"flore" designe toutes plantes, vivantes ou mortes, et comprend les champignons et moisissures mais non les restes fossiles.
I am prepared to adopt the foregoing French language definition of "flore" for the purposes of the National Parks General Regulations with the words "...mais non les restes fossiles" deleted.
2) The Canadian Environmental Assessment Act
[34] The relevant provisions of the Canadian Environmental Assessment Act for the purposes of this matter are set out in Schedule III to these reasons.
[35] Section 23 of the Law List Regulations[23] identifies subsection 12(1) of the National Parks General Regulations[24] quoted above, as a provision authorizing the grant of a permit in respect of a project for which an environmental assessment is a prerequisite. "Project" is defined in subsection 2(1) of the Canadian Environmental Assessment Act to include a "modification" of a physical work. More will be said of CPAWS' interpretation of the implications of the interrelationship of these provisions later in these reasons.
ANALYSIS
(1) Does the Minister have the implied power to approve a road through a
National Park, when no such power is granted in the new Act and the road is not for park purposes?
[36] Counsel for CPAWS urged that the new Act, in all of its detail, is, in effect, a code that should be interpreted strictly against a conferring on the Minister, or a delegate acting on her behalf, of a power not conferred in express terms by the new Act. In support of his submission, counsel referred me to Brown & Evans, Judicial Review of Administrative Action In Canada,[25] where the learned authors wrote the following at paragraph 13:1100 on page 13-1, under the heading "The Need For a Grant of Authority":
It is a fundamental principle of public law that all governmental action be supported by a grant of legal authority. With two minor qualifications, the actions and decisions of public officials and institutions that affect the rights of individuals have no legal force or effect unless authorized by a grant of statutory authority, either express or necessarily implied. Neither individuals nor institutions have inherent powers by virtue of the fact that they perform governmental functions. And although it is not a requirement that the legal source of authority be specified on the face of an administrative order, if challenged it must be possible to identify the supporting legal authorization. [citations omitted, underlining added, italics in original)
The learned authors continue at paragraph 13:1221, on pages 13-5 and 6:
As creatures of statute, administrative bodies have only such legal authority as the legislature has expressly or by implication conferred on them. And, subject to any constitutional limitations, the legislature can provide what the agency may or may not do, by the use of appropriate statutory language. However, to attribute the capacity to define the scope of, and limits on, governmental power to the legislature alone is quite misleading because it ignores the central role played by the courts, through the interpretation of legislation.
There is perhaps no clearer indication of the importance of the judiciary in administrative law than the development of the strong presumption by the courts that, when the legislature confers a grant of authority, the powers thereby granted are of limited scope: that is, they are not as extensive as those of the legislature itself. This point has been eloquently expressed in one of the most famous judgments delivered in the Supreme Court of Canada... [citations omitted, underlining added]
[37] The reference to a famous judgment delivered in the Supreme Court of Canada in the foregoing quotation is to Roncarelli v. Duplessis.[26] While the foregoing quotations sound a cautionary note, they clearly preserve the statutory interpretative role of Courts such as this in contexts such as that before me. They also expressly preserve the concept of conferral of authority by express words or by necessary implication.
[38] The dedication of the National Parks of Canada to the public that is reflected in subsection 4(1) of the new Act is essentially the same as that which was found in section 4 of the National Parks Act[27], (the "former Act"). Section 4 of the former Act read as follows:
4. 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 National Parks shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations.
4. Les parc nationaux du Canada sont par les présentes dédiés au peuple canadien pour son bénéfice, son instruction et sa jouissance, sous réserve des dispositions de la présente loi et des règlements, et les parcs nationaux doivent être
entretenus et utilisés de manière qu'ils restent intacts pour la jouissance des générations futures.
[39] In Young et al. v. Canada (Attorney General)[28], my colleague Mr. Justice Teitelbaum, by reference to the former Act, wrote at paragraph [52],
...The Minister responsible for the National Parks of Canada or her delegate have some expertise relative to management of parks. Furthermore, the National Parks Act provides the Minister with broad statutory power to administer, manage and control Canada's Parks. Parliament even appears to have intended discretion to be a central feature in the operation of the National Parks because of the importance of balancing human interests and environmental considerations. ...
The delicate balance between human interests and environmental considerations referred to by Justice Teitelbaum is well reflected in subsection 4(1) of the new Act and the equivalent section 4 of the former Act.
[40] Counsel for the applicant urged, first, that the context in which Mr. Justice Teitelbaum made the foregoing statement was substantially different from that before me, and that the new legislative scheme rendered Mr. Justice Teitelbaum's pronouncement inapplicable to the facts of this matter.
[41] I am not satisfied that the differing contexts between that which was before Mr. Justice Teitelbaum and that which is before me, of themselves, render Mr. Justice Teitelbaum's pronouncement inapt to this matter. However, the submission on behalf of CPAWS that the law has substantially changed, deserves more substantive consideration.
[42] Central to the argument of counsel for CPAWS is a comparison of subsections 8(1) and (2) of the new Act and subsections 5(1) and (1.2) of the former Act. The relevant provisions of the new Act appear in Schedule II. Subsections 5(1) and (1.2) of the former Act read as follows:
5. (1) Subject to section 8.2, the administration, management and control of the parks shall be under the direction of the Minister.
...
5. (1) Sous réserve de l'article 8.2, les parcs sont placés sous l'autorité du ministre.
...
(1.2) Maintenance of ecological integrity through the protection of natural resources shall be the first priority when considering park zoning and visitor use in a management plan.
(1.2) En ce qui concerne le zonage du parc et l'utilisation par les visiteurs, il importe en premier lieu de préserver l'intégrité écologique et, à cette fin, de protéger les ressources naturelles.
Subsection 5(1) of the former Act, subject to another provision that is not relevant for the purposes of this matter, place the administration, management and control of the National Parks under the direction of the Minister. Subsection 8(1) of the new Act provides that the Minister is responsible for the administration, management and control of Parks, including the administration of public lands in Parks.
[43] Subsection 5(1.2) of the former Act limited the first priority accorded to "ecological integrity" through the protection of natural resources to circumstances where park zoning and visitor use in a management plan were being considered. Under the new Act, maintenance or restoration of ecological integrity, through the protection of natural resources and natural processes is required to be first priority of the Minister "...when considering all aspects of the management of parks." "Ecological integrity" was not defined in the former Act. It is defined in the new Act in the following terms:
"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.
« _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.
[44] The foregoing changes, when read together with the detailed provisions of the new Act:
- regarding agreements (subsection 10(2));
- restricting disposition, use and occupancy of public lands in a National Park (section 13);
- regarding disposition by leases of and easements or servitudes over public lands in a Park, which do not extend to roadways of the nature here at issue (subsection 15(1)); and
- the extensive authority of the Governor in Council to make regulations respecting a wide range of subject matter including "the establishment, maintenance, administration and use of roads... and the circumstances under which they must be open or may be closed to public traffic or use" (subsection 16(1));
lead inevitably to a conclusion, counsel for CPAWS submits, that the discretion of the Minister or her delegate that was inherent or implicit in subsection 5(1) of the former Act has been severely curtailed, if not eliminated, to the point where the decision here under review should have been taken by the Governor in Council, by regulation, by a delegate under the authority of a regulation made by the Governor in Council, or perhaps even by Parliament itself. Counsel urges that this was particularly true in circumstances where, on the face of the record before me, there was no evidence whatsoever that the Minister or her delegate had given "first priority" in arriving at the decision under review to maintenance or restoration of ecological integrity.
[45] Neither counsel for the Minister nor counsel for Thebacha referred me to any regulation enacted