Moresby Explorers Ltd. v. Canada (Attorney General)

Moresby Explorers Ltd. v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2001-07-09
Neutral citation
2001 FCT 780
File numbers
T-81-01
Notes
Reported Decision
Decision Content
Federal Court Reports Moresby Explorers Ltd. v. Canada (Attorney General) (T.D.) [2001] 4 F.C. 591
Date: 20010709
Docket: T-81-01
Neutral Citation: 2001 FCT 780
Ottawa, Ontario, this 9th day of July 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
MORESBY EXPLORERS LTD. and
DOUGLAS GOULD
Applicants
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] This is the sequel to the decision of this Court in Moresby Explorers Ltd. v. Gwaii Haanas National Park Reserve, [2000] F.C.J. No. 1944, in which it was held that Moresby Explorers Ltd.'s ("Moresby") application for judicial review was out of time. Another season has rolled around bringing another application which does not, on its face, present an issue of timeliness. The facts, which are lengthy, are largely taken from my decision in the first case.
[2] On July 12, 1988, Canada and British Columbia ("B.C.") signed a "Memorandum of Agreement for The Establishment of South Moresby National Park and National Marine Park, Queen Charlotte Islands, B.C." (The "Park Agreement") which set the foundation for the creation of a terrestrial National Park Reserve (the "National Park Reserve") and a National Marine Park Reserve ("National Marine Park") in the Queen Charlotte Islands.
[3] B.C. transferred administration and control of the National Park Reserve to Canada on or about March 27,1992 pursuant to Order in Council No. 438, and amended on September 10, 1992 by Order in Council No. 1432.
[4] The Park Agreement addressed the delay between the transfer of administration and control of the National Park Reserve and the National Marine Park from B.C. to Canada, and the subsequent designation of these lands as National Parks. Sections 23 and 24 of the Park Agreement, inter alia:
(a) prohibited B.C. from allowing any interest to exist in the National Park Reserve or the National Marine Park without the consent of Canada, pending the transfer of these lands to Canada;
(b) restricted Canada's use of the lands to activities consistent with the National Parks Act and its regulations;
(c) required B.C. to request the Environment and Land Use Committee, pursuant to the Environment and Land Use Act recommend passage of a B.C. Order in Council authorizing Canada to exercise jurisdiction over the National Park Reserve on behalf of B.C.; and
(d) required B.C. to consider Canada's requests for B.C. to take action to remedy any particular problems with respect to the National Park Reserve.
[5] As contemplated by section 24 of the Park Agreement and pursuant to s. 6 of the Environment and Land Use Act ("ELUC"), B.C. passed Order in Council 586 on or about April 19, 1989. This Order transferred authority to manage the National Park Reserve to the Canadian Parks Service, its Director General, and Canadian Parks Service officers and enabled them to manage and administer the land on behalf of B.C. as if the lands were a recreation area under the provincial Park Act. This allowed the Director General to issue permits over the subject lands.
[6] Canada accepted the transfer of administration and control of the National Park Reserve from B.C. on March 28, 1995 by Order in Council P.C. 1995-3/534.
[7] The National Park Reserve was officially set aside as a National Park Reserve and became subject to the National Parks Act and regulations on or about February 22, 1996.
[8] In or about November, 1980 the Council of the Haida Nation (the "Haida") submitted to Canada a comprehensive land claim over the Queen Charlotte Islands, and on June 30, 1983 Canada accepted the Haida claim for negotiation. In accordance with Parks Canada policy, Canada proceeded to establish a national park reserve in the Queen Charlotte Islands, pending the disposition of the Haida claim.
[9] Section 39 of the 1988 Park Agreement contemplated the involvement of the Haida in the planning and implementation of initiatives relating to the National Park Reserve and the National Marine Park, and this formed the basis for Canada to negotiate agreements with the Haida to cooperatively manage these lands.
[10] Order in Council P.C. 1992-1591, dated July 16,1992, authorized the federal Minister of the Environment to enter into an agreement on behalf of Canada with the Haida concerning the management and operation of the Archipelago (which includes the National Park Reserve) in the Queen Charlotte Islands.
[11] On or about January 30, 1993 Canada and the Haida entered the Gwaii Haanas/South Moresby Agreement" (the"Gwaii Haanas Agreement") [see Schedule A] to co-operatively manage the Archipelago. The Archipelago covers the National Park Reserve area, and has been designated by the Haida as a Haida heritage site.
[12] The Gwaii Haanas Agreement provides for the establishment of a four-person Archipelago Management Board (the "AMB") whereby Canada and the Haida share and co-operate to "examine all initiatives and undertakings relating to the planning, operation and management of the Archipelago". The Superintendent of the National Park Reserve on behalf of Canada co-chairs the AMB with a representative of the Haida.
[13] Matters that the AMB address include guidelines for the care, protection and enjoyment of National Park Reserve with respect to such things as permits for commercial tour operations.
[14] Nothing in the Gwaii Haanas Agreement fetters or limits the authority of the Superintendent. However, before the Superintendent takes any action, he or she must make an effort to first arrive at a consensus among AMB members for such action.
[15] In accordance with the Gwaii Haanas Agreement, Parks Canada and the AMB established the Quota Policy for a business licensing process in the National Park Reserve.
[16] In 1995, the AMB encouraged tour operators to keep records of their trips and clients, and participate in a voluntary business licensing system by which quota was issued to tour operators to access the National Park Reserve.
[17] In 1996, after the National Park Reserve was officially designated as a national park reserve, a mandatory business licensing system replaced the voluntary process.
[18] Both the voluntary and the mandatory licensing systems were designed to regulate commercial tour operators' access to the National Park Reserve. One of the objectives of the mandatory licensing system was to freeze business activities at existing levels until the impact of those activities on the Park's ecological and cultural integrity, and the quality of the visitor experience in the National Park Reserve could be assessed.
[19] The Quota Policy contained the following elements:
(a) User Quota was calculated based on information submitted by tour operators for trips conducted in the National Park Reserve area prior to its designation in 1996;
(b) No licenses or allocation were given to operators who did not work in the National Park Reserve before 1996;
(c) the existing operators could not change the type of service that they provided before 1996 to make themselves eligible for quota; and
(d) new operators or changes in use would only be considered once a management plan was in place for the National Park Reserve to ensure that the area was managed in accordance with the management plan;
(e) no user quota would be granted to the extent that the activities of a tour operator were in conflict with the Quota Policy or with legislation.
[20] If no conflict arose with policy or legislation, then User Quota was calculated and allocated in the following manner:
(a) the highest number of trips done in any one year prior to 1996;
times:
(b) the demonstrated capacity of the operator's trips, which was the average of the five trips with the highest number of people (crew and clients) on trips conducted prior to 1996;
times:
(c) the length of trips conducted in the year when the most trips were done.
[21] As part of the Canada-Haida co-operative management of the National Park Reserve pursuant to the Gwaii Haanas Agreement, the AMB reviewed all applications for business licenses to obtain User Quota for the National Park Reserve.
[22] The business licenses and User Quota were then issued by the Superintendent pursuant to the National Parks Business Regulations, 1998, SOR 198-455 under the National Parks Act.
[This is the Respondent's position with respect to the issuance of licences. Moresby's position will be explored below.]
[23] In 1989, the Applicants established a float camp in De la Beche Inlet which is located in the proposed National Marine Park.
[24] In 1990, the Applicants applied to Parks Canada for the Commercial Operators Registration. This was a voluntary process. The Applicants' request was denied by Parks Canada on the basis that it could not support any commercial facilities such as the Float Camp in the proposed National Park Reserve or National Marine Park without a management plan in place to support this use. Further, the Applicants were advised by Parks Canada officials that the float camp did not form any proprietary right that would be compensable upon these areas attaining designation as national park reserves.
[25] A 1995 visitor survey was conducted by Parks Canada for the National Park Reserve to determine public opinion. It included questions related to structures similar to the Applicants' float camp. The results of the 1995 survey indicated that the public was not supportive of float camps in the areas that would be designated as national parks.
[26] The Applicants' Float Camp continued to occupy the National Marine Park area without authorization.
[27] Pursuant to the Park Agreement, and at Canada's request, on or about February 28, 1996, B.C. ordered the Applicants to remove all of their improvements from the foreshore of De La Beche Inlet within 60 days.
[28] In March and May of 1996, Parks Canada officials gave the Applicants notice to remove unauthorized float camp attachments, including a water line which was drawing water from inside the National Park Reserve. The float camp remained in De La Beche Inlet in May, 1996.
[29] The Applicants were issued quota to use the National Park Reserve in 1996, but only for activities that did not involve the float camp as it was not authorized to occupy De La Beche and it did not conform to the acceptable uses, or Parks Canada policy.
[30] In the Spring of 1997, the Director General of Parks, Western Canada, refused the Applicants' request for additional User Quota of 900 user days/nights for activities related to the float camp on the basis that the float camp did not have a license of occupation and it was not an acceptable activity according to the AMB and Parks Canada policy. These grounds for denying quota to float camp activities were communicated to the Applicants several times in 1997.
[31] Canada requested B.C.'s assistance with respect to the float camp, and the Ministry of Environment, Lands and Parks provided the Applicants with a Notice of Trespass in August, 1997 requiring them to remove the float camp from the designated National Park Reserve and the National Marine Park by September 30, 1997.
[32] In the Fall of 1997, the Applicants submitted further information for trips operated in the Park Reserve in 1988 (pre-1996). The Applicants' received an additional 25 user nights of quota, for powerboat tours which did not involve the float camp.
[33] In or about 1998, the Applicants relocated the float camp to Crescent Inlet, outside the northern boundary of the National Marine Park (the "Float Camp"), and in October of the same year they applied for a 1999 Business License and User Quota.
[34] A business license and User Quota of 1,597 user days/nights for powerboat tours/transport within the National Park Reserve was issued to the Applicants by Superintendent Stephen (Steve) Langdon on November 30, 1998 pursuant to the National Parks Act and its regulations.
[35] The Applicants' protested their 1999 User Quota in letter to the Superintendent dated December 11, 1998, and in particular the fact that they did not have User Quota for activities related to their Float Camp. In response to the protest, the Superintendent stated:
... While I understand your desire to diversify your business, the Archipelago Management Board (AMB) have always maintained that your business will not receive an allocation for trips that involved your float camp while it was located in De la Beche Inlet. Your diving and kayaking tour documentation indicated that the float camp was used during these trips, and thus you cannot be issued an allocation for diving and kayak tours under current policies.
The AMB cannot assign your business additional allocation at this time. However, once the backcountry management plan is complete, you will have an opportunity to apply for additional allocation if impact monitoring programs indicate that Gwaii Haanas can support increased use levels. I expect that the draft backcountry management plan will be released for public and stakeholder review in March, 1999. I encourage you to continue to participate in the discussions that will be established to review the draft, and look forward to our continued dialogue to resolve your ongoing concerns.
[36] In March, 1999, a final draft of the Gwaii Haanas Backcountry Management Plan was released which requires Park Reserve activities to be consistent with the National Parks Act and regulations, the Gwaii Haanas Agreement, Parks Canada Principles and Operational Policies, and Gwaii Haanas Guiding Principles and Management Goals. The final version of this Plan was produced in September, 1999.
[37] In June, 1999 the Applicant again wrote to the Superintendent of Gwaii Haanas with respect to User Quota for his Float camp activities. The Acting Superintendent, Ronald Keith Hamilton, indicated that he would not interfere with the Decision:
As was stated to you in a letter, dated January 29,1999, from Steve Langdon, the Archipelago Management Board (AMB) will not provide you with an allocation for trips that involved your float camp while it was located in De la Beche Inlet. Your diving and kayaking tour documentation indicated that the float camp was used during these trips, and thus you cannot be issued an allocation for diving and kayak tours under current policies.
[38] Following the rejection of its application for judicial review, Moresby applied again for additional quota with respect to its licence for the 2001 season. The request was refused in a letter signed by Richelle Léonard, the new Park Superintendent, dated December 20, 2000. The letter was on AMB letterhead. Ms. Léonard signed in her capacities as Park Superintendent and Co-chair of the AMB. Her letter provided as follows:
No additional allocation for user-days/nights will be issued to you, consistent with previous decisions that the existence of the float camp will convey no proprietary rights or future right to compensation and that it may not be permitted within the proposed National Marine Conservation Area once established.
[39] This decision is the subject of this application for judicial review.
[40] The licence itself was issued on January 25, 2001 and was in the following form:
GWAII HAANAS NATIONAL PARK RESERVE/
HAIDA HERITAGE SITE
2001 Business Licence
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 National Parks Act, National Parks 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 in Gwaii Haanas National Park Reserve/Haida Heritage Site up to December 31, 2001, subject to all terms and conditions set out in the attached Schedule A.
Approved under the Authority of the Approved under the Authority of
National Parks Act, National Parks Business Council of the Haida Nation
Regulations
"Richelle Léonard" "illegible"
Superintendent
Jan 25/01 Jan. 26.01
Date Date
...
SCHEDULE A
Gwaii Haanas National Park Reserve/Haida Heritage Site 2001 Business Licence
...
7. The licensee is entitled to no more than 1,541 user-days/nights for powerboat tours/transport within Gwaii Haanas up to December 31, 2001.
[41] The statutory provisions dealing with the administration of national parks are reproduced in Schedule B to these reasons.
[42] The National Parks Act entrusts the management of the national parks to the Minister (subsection 5(1)). The Governor General in Council is authorized to make regulations with respect to "controlling trades, business, ... occupations and other activities or undertakings and prescribing the places where any such activities or undertakings may be carried on, and the levying of licence fees ..." (paragraph 7(1)(p)). The Parks Canada Agency Act provides that the duties and functions of the Minister under the National Parks Act may be exercised by the Agency, and those duties may be carried out by Agency officers or employees " appointed to serve in the Agency in a capacity appropriate to the exercise of the power or the performance of the duty or function" (subsections 5(1) and 5(2)). The National Parks Businesses Regulations provide that no person may carry on a business in a park without a licence issued by the Superintendent. In the course of issuing licences, the Superintendent may have regard to the "preservation, control and management" of the park. (paragraph 5(1)(d)). In addition to granting the licence, the Superintendent is authorized to attach conditions to licences to deal with " any other matter that is necessary for the preservation, control and management of the park." (paragraph 5(3)(d)).
[43] Moresby argues that the Superintendent as the delegate of the Minister's authority, constituted as such by the National Parks Businesses Regulations, is not entitled to delegate her authority to the AMB. There is no statutory mandate for such a delegation which, on its face, would fly in the face of the maxim "delegatus non potest delegare". Opinion is divided as to whether it is more serious to act without statutory mandate or to fly in the face of a latin maxim. The evidence that the Superintendent has delegated or abdicated her authority arises from the circumstances of the AMB. All of Moresby's dealings with respect to its business licence have been through the offices of the AMB. Inquiries are directed to AMB staff and are responded to by them. The Superintendent signs the licences as Co-chair of the AMB as does a representative of the Haida Nation. At various points, Moresby was advised in correspondence that the AMB would not approve or grant additional quota.
[44] For example, in a letter dated April 15, 1996, from Mr. Ron Hamilton, Manager, Heritage Resource Conservation, Moresby was advised that:
... The AMB recognizes that your float camp may be incompatible with the final management plan, hence the notification of the potential incompatibility.
[45] In 1999, Moresby was advised in another letter from Mr. Hamilton that:
...the Archipelago Management Board (AMB) will not provide you with an allocation for trips that involved your float camp while it was located in De la Beche Inlet. Your diving and kayaking tour documentation indicated that the float camp was used during these trips, and thus you cannot be issued an allocation for diving and kayak tours under current policies.
[46] The decision from which this application for judicial review is taken was written on AMB letterhead and was signed by Richelle Léonard in her capacity as Co-chair of the AMB as well as Park Superintendent.
[47] Moresby notes as well that the provisions of the Gwaii Haanas Agreement, cited below, make it clear that the Superintendent must take all issues relating to park management to the AMB. The Superintendent does not have the ability to control the AMB due to the requirement that decisions be made by consensus. The result, in Moresby's eyes, is that the AMB is the real decision-maker.
[48] The second line of attack on the decision is that the AMB's own policy of "level of historic use" has not been properly applied to Moresby because the policy has been misconstrued by reference to irrelevant and extraneous considerations. The illegality of the float camp anchorage in De La Beche Inlet, and the references to the Backcountry policy are instances of considerations which are irrelevant to the question of Moresby's entitlement to quota on the basis of level of historic use.
[49] Canada argues first and foremost that decisions involving quota allocation are policy decisions which are not justiciable. It relies upon a series of cases from Canada and England in support of the proposition that judicial review does not lie with respect to the making of policy. A representative example of such statements can be found in the following extract from Carpenter Fishing Corp. v. Canada, [1998] 2 F.C. 548 where the following appears:
[para28] The imposition of a quota policy (as opposed to the granting of a specific licence) is a discretionary decision in the nature of policy or legislative action.
[50] Later, in the same case, the following caution appears:
When examining an attack on an administrative action--the granting of the licence--a component of which is a legislative action --the establishment of a quota policy--reviewing courts should be careful not to apply to the legislative component the standard of review applicable to administrative functions. The line may be a fine one to draw but whenever an indirect attack on a quota policy is made through a direct attack on the granting of a licence, courts should isolate the former and apply to it the standards applicable to the review of legislative action as defined in Maple Lodge Farms.
[51] Canada argues the whole issue of quota policy, as opposed to the issue of a specific licence is beyond the scope of this Court's power of judicial review.
[52] Furthermore, Canada points to the National Parks Act which it says authorizes it, in fact requires it, to act in the interests of conservation and preservation of wilderness areas. It claims that this gives it the right to impose conditions on business licences relating to matters occurring outside the park boundaries. Parks Canada policy and international conventions both require the Agency to act in the best interests of the environment and the local ecology. These obligations justify the Superintendent's concerns about the operation of Moresby's float camp.
[53] It is perhaps appropriate to deal first with Canada's argument as to justiciability, going as they do to the root of the argument. It is indisputable that pure policy decisions are generally beyond the reach of the courts. This is explained in many ways but ultimately the Court's reticence to interfere with such decisions is, or should be, due to the fact that policy decisions engage the political accountability of those who make such decisions. We do not have a formal doctrine of division of powers as between the branches of government in this country but, for the most part, there is a reluctance on the part of the courts to interfere with "political decisions" except in response to a constitutional challenge to their validity. See the discussion in Operation Dismantle v. Canada, [1985] 1 S.C.R. 441 where, following a lengthy review of the American and English jurisprudence on this issue, the Supreme Court concluded:
[para 63] ...Accordingly, if the Court were simply being asked to express its opinion on the wisdom of the executive's exercise of its defence powers in this case, the Court would have to decline. It cannot substitute its opinion for that of the executive to whom the decision-making power is given by the Constitution. Because the effect of the appellants' action is to challenge the wisdom of the government's defence policy, it is tempting to say that the Court should in the same way refuse to involve itself. However, I think this would be to miss the point, to fail to focus on the question which is before us. The question before us is not whether the government's defence policy is sound but whether or not it violates the appellants' rights under s. 7 of the Charter of Rights and Freedoms.
[54] This arises in the constitutional context but the point is the same whether the issue is constitutional law or administrative law: it is not the function of the courts to assess the wisdom of government policy, as expressed either in legislation or in specific acts, such as an international agreement. To that extent the argument as to justiciability must succeed. But as pointed out in Carpenter, there are limits to this immunity from review. The policy is reviewable on the grounds set out in Maple Lodge Farms v. Canada, [1981] 1 F.C. 500.
[55] Moresby challenges the right of the Minister and the Superintendent to impose a quota policy, whatever its content, saying that they lack the legislative authority to do so. Sections 4 and 5 of the National Parks Act, supra, provide an indication of a wide discretion on the part of the Minister to take whatever steps are necessary to ensure the maintenance of the parks for future generations:
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 parcs sont créés à l'intention du peuple canadien afin que celui-ci puisse les utiliser pour son plaisir et l'enrichissement de ses connaissances, dans le cadre de la présente loi et de ses règlements; ils doivent être entretenus et utilisés de façon à rester intacts pour les générations futures.
5. (1) Subject to section 8.2, the administration, management and control of the parks shall be under the direction of the Minister.
(1.1) The Minister shall, within five years after the proclamation of a park under any Act of Parliament, cause to be laid before each House of Parliament a management plan for that park in respect of resource protection, zoning, visitor use and any other matter that the Minister considers appropriate.
(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.
5. (1) Sous réserve de l'article 8.2, les parcs sont placés sous l'autorité du ministre.
(1.1) Dans les cinq ans suivant la proclamation portant création d'un parc sous le régime d'une loi fédérale, le ministre fait déposer devant chaque chambre du Parlement un plan de gestion du parc en ce qui touche la protection des ressources, le zonage, les modalités d'utilisation par les visiteurs et toute autre question qu'il juge indiquée.
(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.
emphasis added
[56] While Moresby points to particular pieces of legislation which it says clearly establish the right to introduce quotas, it is my view that the nature of the subject matter dictates what is appropriate language to establish a right to control access to the park, for that is what the quotas in issue here are intended to do. 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. There is no evidence before me that the quota scheme in issue here is anything other than a means of protecting the ecological integrity of the Gwaii Haanas area.
[57] Consequently, I agree that while the wisdom of the quota policy is not a subject for judicial review except on the basis set out in Maple Leaf Farms i.e. bad faith, extraneous considerations etc., the application of the policy to specific cases of licensing can be reviewed on the usual grounds of judicial review, providing care is taken to avoid trenching upon the policy issues implicit in the licensing decision.
[58] Turning now to the issue of delegation, Moresby's analysis relies upon certain Supreme Court of Canada cases dealing with delegation between the Federal and Provincial governments to further interprovincial marketing schemes:
Reference re Agricultural Products Marketing Act (1978), 84 D.L.R. (3rd) 257
Prince Edward Island Potato Marketing Board v. H.B. Willis Inc., [1952] 2 S.C.R. 392
[59] The issue of delegation has a different cast in the constitutional sense than it does in the administrative law context. The marketing board cases generally arise as a result of a "division of powers" challenge to a particular scheme, where it is alleged that one level of government is invading an area of jurisdiction reserved to the other level of government by the Constitution Act, 1867. Or, to be somewhat more precise, such cases arise when a citizen complains that the two levels of government have ignored the strictures of the Constitution in their haste to achieve administrative efficiency. In that context, delegation is a matter of the division of powers in sections 91 and 92 of the Constitution Act, 1867 and not an issue to be decided according to administrative law principles. The following short passage from Reference re Agricultural Products Marketing Act upon which Moresby relies, illustrates the point nicely:
... Nor can a federal-provincial agreement be a basis for enlarging either the legislative authority of Parliament or of a provincial legislature. If the power asserted is not found in the Constitution, it cannot be given by agreement.
Reference re Agricultural Products Marketing Act at p. 282
[60] Moresby relies on this passage as authority for the proposition that neither the Park Agreement nor the Gwaii Haanas Agreement can confer jurisdiction upon the AMB which the applicable legislation confers on others. However, it can be seen from the passage that the barrier to transfer of jurisdiction is the Constitution, not administrative law principles. The focus on the division of powers appears clearly enough from this extract itself but if any doubt remains, one need only read the preceding two sentences.
The intimation is that, in the case of a product passing into interprovincial and export trade as well as having an intraprovincial market, overall regulatory control may be exercised under federal legislation where it is the result of a Dominion-Provincial agreement to which all Provinces were parties. This is to take an enlarged view of the federal trade and commerce power which is not supported by an existing authority.
Reference re Agricultural Products Marketing Act at p. 282
It is clear from these sentences that these cases do not address the issues raised by improper delegation as they appear in an administrative law context.
[61] Moresby also relies upon cases having to do with delegation from one agency to another:
Brant Dairy Co. Ltd. v. Milk Commission of Ontario (1972) 30 D.L.R. (3rd) 559
[62] In the Brant Dairy case, provincial regulations provided that the Ontario Milk Commission has the power to fix, cancel or reduce milk producer's quotas. The Commission purported to make its own regulations which delegated this power to the Ontario Milk Marketing Board which then dealt with quota matters in its own name. The Supreme Court of Canada held that the wholesale delegation of the Commission's powers had the effect of converting a legislative power into an administrative power and was impermissible delegation.
[63] If, as Moresby asserts, the effective decision-maker in this matter is the AMB, what is the legal basis for its assertion of authority? While the authority of the Superintendent can be traced to the National Parks Act, there is no equivalent clear trail of authority for the AMB. There is authority for the Gwaii Haanas Agreement in subsection 8.5(1) of the National Parks Act which provides as follows:
8.5 (1) The Governor in Council may authorize the Minister to enter into an agreement with the Council of the Haida Nation respecting the management and operation of the lands described in Schedule VI, referred to in this section as the Gwaii Haanas Archipelago.
8.5 (1) Le gouverneur en conseil peut autoriser le ministre à conclure un accord avec le Conseil de la nation haida concernant la gestion et l'exploitation des terres décrites à l'annexe VI -- dans le présent article, l'archipel de Gwaii Haanas.
[64] The difficulty is that while an agreement has been signed, there is no authorization for it by the Governor General in Council, either in the form of an authorization to proceed or a ratification of the Agreement. As a result, the Gwaii Haanas Agreement is legally insufficient to justify any transfer of authority to the AMB.
[65] Assuming that this surprising conclusion is the result of insufficient or inadequate legal research and that the Gwaii Haanas Agreement has been properly authorized, the issue still remains how authority for management of the Park could be moved from its statutory designate, the Superintendent, to the AMB. The argument would have to be that in providing for an agreement with respect to the management of the Park area, Parliament must be taken to have authorized Canada to negotiate an agreement which incorporated terms which differed from those contained in the Act. If that were not the case, what purpose would an agreement as to the management of the Park serve? It is not necessary to negotiate an agreement to do exactly what the Act says is to be done.
[66] There is an inherent improbability in the notion that Parliament would authorize the Governor in Council to rewrite the law in an agreement with the Haida . Whether one characterizes this as an aspect of the rule of law, or as a matter of political accountability, the result is the same. 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. One would not expect to see such a doctrine invoked by implication, as it would have to be in this case.
[67] Furthermore, there is subject matter for this Agreement without having recourse to such a theory. The Gwaii Haanas Agreement is a solution to the problem of competing claims over the same territory. Both Canada and the Haida Nation claim competence to manage the Gwaii Haanas area. Canada relies upon the National Parks Act and the legislation specific to the Gwaii Haanas Park Reserve. The Haida Nation relies upon its claim of aboriginal rights in its ancestral territory. It is in the interests of both parties to join in a structure which permits decisions to be made without having to decide by whose authority they come to be made. The requirement that consensus be sought on all decisions is a device for allowing decisions to be made without allocating jurisdiction for the subject matter of the decision to one party or the other. It is fundamental to the interests of both parties to be able to say that a particular decision was made by their authority. For that reason, it would be contrary to the logic which lead to the creation of the AMB, for either party to delegate, or be seen to delegate, their authority to the AMB. Each must be seen to act under the authority which it claims.
[68] Lest this be considered to be fanciful conjecture on my part, the preamble to the Gwaii Haanas Agreement provides evidence as the position of each party with respect to the Park Reserve:
The Haida Nation sees the Archipelago as Haida Lands, subject to the collective and individual rights of the Haida citizens, the sovereignty of the Hereditary Chiefs, and jurisdiction of the Council of the Haida Nation. The Haida Nation owns these lands and waters by virtue of heredity, subject to the laws of the Constitution of the Haida Nation, and the legislative jurisdiction of the Haida House of Assembly.
The Government of Canada views the Archipelago as Crown land, subject to certain private rights or interests, and subject to the sovereignty of her Majesty the Queen and the legislative jurisdiction of the Parliament of Canada and the Legislature of the Province of British Columbia.
The Haida have designated and managed the Archipelago as the "Gwaii Haanas Heritage Site", and thereby will maintain the area in its natural state while continuing their traditional way of life as they have for countless generations. In this way the Haida Nation will sustain the continuity of their culture while allowing for the enjoyment of visitors.
[69] The AMB provides an administrative structure in which issues are discussed and decisions made. It has staff which carry out some of the many functions associated with running a park. The fact that one of those staff might convey information about the business licence scheme or the quota policy does not mean that the AMB dictated the policy to the Superintendent. Specifically, the fact that Anna Gajda, Backcountry Activites Officer, wrote to Moresby in March of 1996 to advise, among other things, that no quota would be allocated to Moresby arising from the use of its float camp does not prove that the Superintendent was not responsible for that decision. It simply shows that the Superintendent has the benefit of an administrative staff in running the park.
[70] While this may be fine in theory, Moresby points to an incident which it says is evidence of the fact that the AMB can overrule the Superintendent. Moresby arrived at a gentleman's agreement with Ron Hamilton (who was Superintendent at the time) that he would be given one year's notice to move his float camp. The following year, 1996, he was ordered to move his float camp without the notice which he had been promised. The justification for failing to keep the agreement was set out in a letter from Anna Gajda, on AMB letterhead, dated March 28, 1996 in which she said:
Although Mr. Hamilton gave you verbal assurance of one year advance notice for float camp removal at the Commercial Operators' Meeting in October 1995, this assurance was given before he was aware that your operation was in violation of the National Parks Act and Regulations. I refer you to a letter concerning this matter which is being forwarded to you under separate cover.
[71] Mr. Hamilton's letter dated April 15, 1996 sets out the violations of policy and legislation which triggered the demand for removal:
Other operators have not been given the same notice of "no proprietary interest" because their operations are not in potential conflict with Parks Canada policy as is your float camp. The float camp comes under the definition of a "backcountry lodge", Parks Canada Management Directive 4.6.16. According to this directive, a backcountry lodge will be considered only when it is consistent with an approved park management plan. Further to that, the