Grandjambe v. Canada (Parks)

Grandjambe v. Canada (Parks)
Court (s) Database
Federal Court Decisions
Date
2019-07-30
Neutral citation
2019 FC 1023
File numbers
T-853-18
Decision Content
Date: 20190730
Docket: T-853-18
Citation: 2019 FC 1023
Ottawa, Ontario, July 30, 2019
PRESENT: Madam Justice Strickland
BETWEEN:
ROBERT GRANDJAMBE JR. ON HIS OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF MIKISEW CREE FIRST NATION
Applicant
and
PARKS CANADA AGENCY, MINISTER OF ENVIRONMENT AND CLIMATE CHANGE AND SUPERINTENDENT OF WOOD BUFFALO NATIONAL PARK
Respondents
JUDGMENT AND REASONS
[1] This is an application for judicial review of the April 6, 2018 decision of the Superintendent of Wood Buffalo National Park [Superintendent] refusing the Applicant’s application seeking a permit to construct a harvesting cabin at the location proposed by the Applicant, within Wood Buffalo National Park. This application is brought on behalf of the Applicant, Robert Grandjambe Jr., and the members of the Mikisew Cree First Nation.
Background
[2] The Applicant is a member of the Mikisew Cree First Nation [Mikisew], which is an Indian band within the meaning of the Indian Act, RCS 1985, c I-5, s 2(1). Mikisew is a signatory to Treaty 8.
[3] The Parks Canada Agency [Parks Canada] is a body corporate established pursuant to the Parks Canada Agency Act, SC 1998, c 31. As set out therein, it exercises, on behalf of the Minister of Environment and Climate Change [Minister], the powers and performs the duties and functions that relate to national parks, national historic sites, national marine conservation areas, and national heritage areas and programs. It is also responsible for the implementation of policies of the Government of Canada that relate to national parks (s 3, 4(1)(a), 5, and 6). The Superintendent is appointed under the Parks Canada Agency Act. He is responsible for the management of Wood Buffalo National Park.
[4] Wood Buffalo National Park [WBNP or the Park] is Canada’s largest national park. Indigenous harvesters from many First Nations and Métis communities carry out harvesting activities, such as hunting, trapping, and fishing, within the Park. Four First Nations have reserves in WBNP, these include Salt River First Nation [Salt River], Smith’s Landing First Nation [Smith’s Landing] and Mikisew. Salt River and Smith’s Landing have reserves adjacent to Pine Lake. Mikisew’s reserve is located approximately 100 km south of Pine Lake.
[5] The Respondent acknowledges that Mikisew and other signatories to Treaty 8 have a constitutional right under s 35 of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act, 1982] and Treaty 8, as modified by the Natural Resources Transfer Agreement (Natural Resources Transfer Act, SC 1930, c 3), to hunt, trap, and fish for food in WBNP, subject to lawful regulation and the Crown’s ability to take up lands for specific purposes. These rights include the building and maintaining of harvesting cabins, also referred to as trapping cabins, which are necessarily incidental to the exercise of treaty rights. As a member of Mikisew, the Applicant individually exercises this collective right. Approximately 11 Indigenous groups are located in and around the Park.
[6] It is undisputed that the Applicant has exercised his Treaty rights to hunt, fish, and trap since he was young, and continues to do so. He states that he uses the pelts of the animals that he traps to make mitts, hats, moccasins, slippers, and other crafts, some of which he trades and some of which he provides to community members. Further, he consumes the meat from the trapped animals and shares it with members of his family and community. Trapping also allows the Applicant to pass on traditional knowledge and skills to other Mikisew members. For Mikisew trappers, a harvesting cabin can be necessary for the exercise of their Treaty rights as it provides shelter in winter, allows them to be near their trap lines, which must be tended, and provides a place to prepare bait and snares and to thaw and dry furs.
[7] In the summer of 2014, the Applicant attended at Parks Canada’s office and requested an application package for a harvesting cabin. He indicated that he was planning to build on Pine Lake. At that time he was told that harvesting cabins were not permitted within 800 metres of the shore of Pine Lake for public safety reasons and because it is the primary recreational area within WBNP. In October 2014, Parks Canada found an unauthorized road cut from Kettle Point Road, along an official hiking trail, to Pine Lake and the start of construction of a cabin about 34 metres from the shore of Pine Lake. Parks Canada contacted the Applicant who confirmed that the construction was his and that he intended to continue to build there. In November 2014, Parks Canada met with the Chiefs of Salt River, Smith’s Landing and Mikisew Cree First Nations to discuss the construction of the harvesting cabin by the Applicant. Salt River and Smith’s Landing expressed support for the restriction on harvesting cabins within 800 metres of Pine Lake and were of the view that Parks Canada should enforce the restriction. Many communications with the Applicant followed, including explanations as to why the location he had chosen for the cabin was not appropriate and that construction must stop. The Applicant refused to halt his construction and, ultimately, Parks Canada removed the partially constructed cabin and attempted site restoration. Parks Canada advised the Applicant that his building supplies were available for pick up.
[8] On July 11, 2017, the Applicant submitted to Parks Canada an Application for Traditional Harvesting Cabin [Permit Application], including a detailed addendum in which he described his background as a trapper and a treaty person, why he wanted to build a cabin, why he selected the location that he had – which was the same location where he had previously commenced construction – and other factors which he submitted supported his application. The Permit Application also included letters of support from individual members of Salt River, Mikisew, and Smith’s Landing.
[9] On July 28, 2017, the Applicant requested an update on the application and offered to assist in the application process by answering questions, providing clarification, or consulting with potentially affected Indigenous groups. By email of August 15, 2017, the Superintendent confirmed receipt of the Permit Application. He noted that the application, in effect, sought an exemption to Parks Canada’s policy of not allowing traditional harvesting cabins within 800 metres of Pine Lake. The Superintendent stated that Parks Canada had begun reviewing the package along with correspondence and information collected between 2014 and 2016 related to the cabin’s proposed location, and would let the Applicant know should further information be required. On August 30, 2017, the Applicant wrote to the Superintendent again, stating that he was entitled to a fair process and if he was not to be included in consultations with other Aboriginal groups or people, then he expected the Superintendent would share the details of those consultations and provide the Applicant with the opportunity to respond. Further, that his Permit Application was to be assessed in a timely manner which took into account his Treaty rights. By email of September 21, 2017, the Superintendent responded, addressing timelines and stating that Parks Canada was currently gathering information on the positions of the three Indigenous groups who had been involved in the file. Once responses from those groups were received, Parks Canada would share their positions with the Applicant, who would then have an opportunity to respond to the views expressed. The Applicant sent follow-up letters on December 21, 2017, and February 26, 2018.
[10] On April 6, 2018, the Superintendent wrote to the Applicant advising him that his Permit Application had been denied. That decision is the subject of this application for judicial review.
Decision Under Review
[11] In his letter, the Superintendent stated that, as indicated in past correspondence, Parks Canada recognized that the Applicant has Treaty 8 harvesting rights within WBNP. However, it was of the opinion that the location proposed for the harvesting cabin was not appropriate for a number of reasons, including the five that were then listed.
[12] First, both Salt River and Smith’s Landing have reserve lands on Pine Lake. Their Treaty Land Entitlement Agreements [TLEAs] with Canada commit them and Parks Canada to work co-operatively through ongoing consultation in relation to land use and management issues around Pine Lake, both on Reserve lands and on adjacent Parks Canada lands. As harvesting and harvesting cabins had historically not been permitted within 800 metres of Pine Lake, any change of policy regarding land use would trigger the commitments under the TLEAs and require consultation and discussion with Salt River and Smith Landing.
[13] Second, Salt River had indicated its opposition to the construction of a harvesting cabin at the location proposed by the Applicant.
[14] Third, the proposed location is at the junction of two public trails and close to a trailhead parking lot. The trails and trailhead parking areas form part of the Pine Lake recreational area visitor facilities. Although WBNP is the largest national park in Canada, Parks Canada maintains a very small number of visitor facilities for public use. Harvesting infrastructure on or adjacent to these facilities is incompatible with the use and enjoyment of the area by all Park visitors.
[15] Fourth, for public safety reasons, harvesting is not permitted within 800 metres of Pine Lake between April 1 and October 31 of each year, as this is a period of high visitor use. An alternative cabin location, away from visitor facilities and more than 800 metres from the lake, would be more appropriate as it could be used for harvesting throughout the year with fewer safety concerns and lower potential impacts to reserve lands of other Indigenous groups and other Park users.
[16] Finally, the 2010 Park Management Plan (WBNP Management Plan 2010 [Management Plan]) highlights the Pine Lake area and indicates the important role that Salt River and Smith’s Landing have in that area, stating that “The purpose of this Pine Lake Area Management Approach is to provide Wood Buffalo National Park, SLFN [Salt River] and SRFN [Smith’s Landing] with a plan that promotes compatible land-use and development for reserve and park lands at Pine Lake”.
[17] The Superintendent stated, as had been previously discussed, that the majority of WBNP lands are available for the construction, with a permit, of a harvesting cabin ancillary to Treaty 8 harvesting rights, that Parks Canada had offered to work with the Applicant to find another location that would be mutually acceptable and, had explained the basis of its concerns with the current proposed location. Parks Canada reiterated its desire to work with the Applicant in this regard and wished to be clear that it fully supported the Applicant’s Treaty 8 harvesting and ancillary rights, while making every effort to be equally respectful of the rights of other Treaty 8 beneficiaries as well as to provide basic recreational facilities to park visitors in a few limited locations.
[18] I note that the certified tribunal record [CTR] also contains a 12-page document, with attachments, entitled “Record of Decision – Robert Grandjambe Jr’s request for an exemption to build a harvesting cabin at Pine Lake Wood Buffalo National Park” [Record of Decision], which sets out the rationale for the decision. The Record of Decision is to be considered as part of the decision and can be considered in assessing the adequacy of reasons (Mitchell v Canada, 2015 FC 1117 at paras 28–31). Similarly, it is open to a court, if necessary, to look to the record for the purpose of assessing the reasonableness of a decision. The record can also be utilized by a reviewing court to supplement, but not supplant, the analysis of the decision-maker (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 15); Delta Air Lines Inc v Lukács, 2018 SCC 2 at paras 23–24; Williams Lake Indian Band v Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4 at para 116).
Relevant Legislation and Guidelines
Wood Buffalo National Park Game Regulations, SOR/78-830
[19] Trapping within WBNP is governed by the Wood Buffalo National Park Game Regulations, SOR/78-830 [WBNP Game Regulations], made pursuant to the Canada National Parks Act, (SC 2000, c 32). Relevant to this application are s 7, 13, 14, and 50(1) – (4):
7 No person shall hunt, trap or discharge a firearm within eight hundred metres of the shoreline of Pine Lake from April 1 to October 31 in any year.
7 Il est interdit, entre le 1er avril et le 31 octobre de chaque année, de chasser, piéger ou décharger une arme à feu dans un rayon de 800 m de la rive du lac Pine.
…
[…]
13 A trapping permit authorizing the holder thereof to hunt fur bearing animals may be issued by the superintendent to any person who
(a) is the holder of a general hunting permit; and
(b) is named in a certificate of registration for the trapping area, whether or not he is the holder of the certificate.
13 Le directeur du parc peut délivrer un permis de piégeage autorisant la chasse d’animaux à fourrure au détenteur d’un permis général de chasse dont le nom paraît sur un certificat d’enregistrement applicable à un secteur de piégeage, qu’il en soit le détenteur ou non.
14 (1) A certificate of registration for a trapping area may be issued by the superintendent to a person either on his own behalf or on behalf of two or more persons, if each person is the holder of a general hunting permit.
14 (1) Le directeur du parc peut délivrer un certificat d’enregistrement applicable à un secteur de piégeage au nom d’une ou de plusieurs personnes à condition que chacune détienne un permis général de chasse.
(2) Where a certificate of registration is issued pursuant to subsection (1), the superintendent may add the name of a person to the certificate if written permission is obtained from
(2) Au certificat d’enregistrement visé au paragraphe (1), le directeur du parc peut ajouter le nom d’une autre personne, à condition d’en obtenir l’autorisation écrite
(a) the holder of the certificate, where the certificate is issued on behalf of one person;
a) du détenteur du certificat, lorsqu’il a été délivré au nom d’une seule personne;
(b) the holder of the certificate and the second group member, where the certificate is issued on behalf of two persons; or
b) du détenteur du certificat et de la seconde personne, lorsque le certificat a été délivré au nom de deux personnes; ou
(c) the holder of the certificate and the majority of the other group members, where the certificate is issued on behalf of three or more persons.
c) du détenteur du certificat et de la majorité des membres du groupe, lorsque le certificat a été délivré au nom de trois personnes ou plus.
…
[…]
50 (1) The superintendent is authorized to issue a trapper’s cabin permit to any person named in a certificate of registration.
50 (1) Le directeur du parc est autorisé à délivrer un permis de cabane de trappeur aux personnes inscrites sur un certificat d’enregistrement.
(2) An application for a trapper’s cabin permit shall
(a) be made on a form supplied by the superintendent; and
(b) contain the information required by the form and any additional information requested by the superintendent.
(2) Pour obtenir un permis de cabane de trappeur il faut remplir le formulaire distribué à cette fin par le directeur du parc et fournir, le cas échéant, les renseignements complémentaires qu’il peut exiger.
(3) No person shall erect or alter any building, cabin or structure in the Park unless he does so under and in accordance with a trapper’s cabin permit.
(3) Il est interdit de construire ou de transformer un bâtiment ou une construction dans le parc, en contravention aux conditions d’un permis de cabane de trappeur.
(4) The superintendent may refuse to issue a trapper’s cabin permit if the proposed trapper’s cabin is not compatible in design or size with the proposed location.
(4) Le directeur du parc peut refuser de délivrer le permis de cabane de trappeur si la forme ou les dimensions de la cabane prévue sont incompatibles avec l’emplacement proposé.
Wood Buffalo National Park Application for Traditional Harvesting Cabin
[20] In accordance with s 50(2) of the WBNP Game Regulations, which states that an application for a trapper’s cabin permit shall be made on a form supplied by the superintendent and contain the information required by the form and any additional information requested by the superintendent, Parks Canada developed the “Wood Buffalo National Park Application for Traditional Harvesting Cabin”.
[21] This application seeks information from an applicant as to the proposed cabin and also includes the “WBNP Generic Environmental Assessment Screening Guidelines for Traditional Harvesting Cabin Applications” [Harvesting Cabin Application Guidelines]. These are stated to apply to Treaty 8 members and Métis individuals who are registered trappers in the Park. They also describe the application process, including: that a minimum of six weeks will be allocated for the processing of applications; that, when practical, a site visit by Park staff and the applicant will take place during which potential impacts to natural and cultural resources, public safety hazards, and any other concerns will be identified and assessed for significance; that an environmental impact analysis will be completed to assess impacts and to identify any changes to the cabin construction that could mitigate them; and, that WBNP will consult with relevant Aboriginal organizations around the Park and that applicants are encouraged to engage in these consultations on their own initiative with the objective of obtaining support from the harvesters in the area. The Harvesting Cabin Application Guidelines also set out that some restrictions apply to the construction of traditional use cabins to ensure visitor safety and conservation stating that:
Cabins will not be approved in the following locations, these locations include but are not limited to:
All Zone 1 designated areas including the Whooping Crane Nesting grounds and the Salt Plains
Within 800m of Pine Lake, day use areas, recreational trails, group camps, backcountry campgrounds (example: Rainbow Lakes)
Sweetgrass Landing and Sweetgrass Stations
[22] The Harvesting Cabin Application Guidelines also address cabin site guidelines, including, for example, that the cabin and any associated buildings (e.g. outhouse and fuel storage shed) must be at least 31 metres (100 feet) from the nearest body of water.
Preliminary Issue – Admissibility of Affidavits
[23] In support of this application for judicial review, the Applicant has filed an 89-paragraph affidavit sworn on July 9, 2018 [Grandjambe Affidavit], as well as an affidavit of Chief Archie Waquan of the Mikisew Cree First Nation, sworn on July 9, 2018 [Waquan Affidavit].
[24] The Respondents note that much of this affidavit evidence is duplicative of the content of the record that was before the Superintendent or is not challenged. However, some of the content of the affidavits was not before the Superintendent when he made the decision under review. The Respondents have identified this content in Appendix B of their written representations and submit that this evidence should be given little or no weight.
[25] As a general rule, the evidentiary record before the Court on judicial review is restricted to the record that was before the decision-maker. That is, evidence that could have been placed before the decision-maker is not admissible before the reviewing court. This is because Parliament gave administrative decision-makers and the courts different roles. Administrative decision-makers, and not the courts, have jurisdiction to determine certain matters on their merits. A court cannot allow itself to become a forum for fact finding on the merits of the matter. However, there are recognized exceptions to this general rule, including the acceptance of an affidavit that: provides general background in circumstances where that information might assist the Court’s understanding of the issues relevant to the judicial review; brings to the attention of the Court procedural defects that cannot be found in the evidentiary record; or, highlights the complete absence of evidence before the administrative decision-maker when it made a particular finding (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 19, 20; Bernard v Canada Revenue Agency, 2015 FCA 263 at paras 13–28).
[26] While the Applicant acknowledges the general rule, he submits that the challenged affidavit evidence should be admitted because it contains information that would have been before the Superintendent had he fulfilled his promise to provide the Applicant with an opportunity to respond to concerns raised regarding the Permit Application. Additionally, because it is necessary given the constitutional nature of the issues raised by the applications. That is, the Superintendent’s decision unjustifiably infringed the Applicant’s Treaty rights and was unreasonable, in part, because it failed to uphold the honour of the Crown.
[27] In my view, to the extent that the Applicant is suggesting that he would have put the information contained in the affidavits before the Superintendent had he known that the Superintendent was not going to advise him of the results of the Superintendent’s consultations with Salt River and Smith’s Landing, this does not make the content admissible. This is because the challenged content of the affidavits primarily concerns his trapping history and that of his family. It does not directly pertain to the allegation of a breach of procedural fairness arising from the Superintendent’s failure to provide the results of his consultation with Salt River and Smith’s Landing to the Applicant and the concerns of those First Nation with the proposed harvesting cabin location. The Respondents acknowledge that paragraphs 59, 62, 68, 87, and 89 of the Grandjambe Affidavit do pertain to the alleged breach of procedural fairness and therefore fall within the procedural fairness exception, they do not challenge the admissibility of those paragraphs. I also note that the challenged content was known to the Applicant before the Superintendent’s decision, and there is also no explanation provided as to why it could not have been put before the Superintendent in the Permit Application. Other challenged paragraphs of the Grandjambe Affidavit directly respond to the Superintendent’s decision or express the Applicant’s view of how the decision impacted his ability to trap on his trapline.
[28] To the extent that the challenged evidence goes to the merits of the matter and could have been, but was not, previously provided, it is not admissible. Evidence that speaks directly to the alleged breach of procedural fairness is admissible. As to evidence that is said to speak to the infringement of the Applicant’s Treaty rights, given my finding below that this issue cannot be resolved by way of this application for judicial review, it is not relevant.
[29] In the result, paragraphs 5, 7, 9, 13–15, 18, 20–24, 26–44, 50–53, 56, and 69–77 of the Grandjambe Affidavit are inadmissible as this evidence was not before the Superintendent and does not fall under the any of the exceptions to this general rule. Exhibits D–H, referenced in those paragraphs, are therefore also inadmissible.
[30] As to the Waquan Affidavit, the Respondents note that it contains new information and opinion, not found in the record, with respect to hunting in WBNP, Mikisew, and the WBNP Game Regulations. The Respondents submit that, while much of the content is not in dispute, nor was it before the Superintendent. In my view, for the same reasons as set out with respect to the Grandjambe Affidavit, paragraphs 2–20 and paragraph 22, in part (the third sentence, opinion evidence), of the Waquan Affidavit are also in admissible.
Issues and standard of Review
[31] In my view, the issues to be determined in this application for judicial review can be framed as follows:
Was the decision to refuse the Permit Application reasonable?
Was there a breach of procedural fairness?
Is this the appropriate venue to consider whether the decision infringed upon the Applicant’s Treaty rights? If so, were those rights infringed?
[32] The parties submit, and I agree, that a standard of reasonableness applies to the decision itself. This Court has previously found that a discretionary decision made by the superintendent of a national park, pursuant to his or her statutorily-granted authority, is reviewable on a standard of reasonableness (Canadian Parks and Wilderness Society v Maligne Tours Ltd, 2016 FC 148 at para 27; Sunshine Village Corporation v Parks Canada Agency, 2014 FC 604 at para 30; Burley v Canada (Attorney General), 2008 FC 588 at para 39). The parties also agree that the decision must be constitutionally sound (Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153 at paras 205, 224, 226 [Tsleil-Waututh]) and that consideration of constitutional issues in the decision can be viewed as an aspect of reasonableness (Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resources Operations), 2017 SCC 54 at paras 77 and 82.
[33] As to the second issue, the standard of review of correctness applies to issues of procedural fairness (Mission Institution v Khela, 2014 SCC 24 at para 79; (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43). That said, Justice Rennie of the Federal Court of Appeal recently stated that a court assessing a procedural fairness argument is required to ask whether the procedure was fair having regard to all of the circumstances, including the factors set out in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker]. And, with a sharp focus on the nature of the substantive rights involved and the consequences for an individual, whether a fair and just process was followed. Regardless of how much deference is accorded administrative tribunals in the exercise of their discretion to make procedural choices, the ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 54–56).
Issue 1: Was the decision refusing the Permit Application reasonable?
Applicant’s Position
[34] The Applicant submits that the decision is unreasonable because it falls outside of the range of possible, reasonable outcomes and is not adequately explained by the reasons. Further, the Superintendent unreasonably exercised the narrow discretion afforded by s 50(4) of the WBNP Game Regulations in a manner that is inconsistent with the honour of the Crown. The Applicant then sets out why he thinks each of the five reasons offered by the Superintendent is unreasonable.
[35] First, the Applicant argues that the Superintendent fettered his discretion by relying on the policy which prohibits the construction of harvesting cabins within 800 metres of Pine Lake. The policy is unwritten, and the decision does not explain why harvesting cabins differ in principle from other cabins which currently exist within the 800-metre buffer zone, and no consideration was given to the specific circumstances of the case. Instead, the Superintendent impermissibly deferred to the policy. Additionally, the Superintendent explained that a change in the policy to allow harvesting cabins within 800 metres of Pine Lake would require consultation with Salt River and Smith’s Landing, but he did not explain why a requirement to enter into consultation renders the proposed location unreasonable.
[36] Next, the Applicant submits that it was also unreasonable for the Superintendent to rely, without explanation, on the opposition of Salt River to the construction of the harvesting cabin at the proposed location. According to the Applicant, the record contains no basis for Salt River’s opposition and ignores his evidence of support for the construction. Nor does the record contain any evidence that the proposed cabin would have an adverse impact on the rights or interests of Salt River. In deferring to Salt River’s opposition, the Superintendent again fettered his discretion.
[37] As to the Superintendent’s third reason, the Applicant argues that the Superintendent failed to explain why the proposed cabin is incompatible with the use of the Park by visitors. While the Superintendent notes the presence of a parking lot, hiking trails, and a road, he fails to explain why these features are incompatible with the presence of a harvesting cabin. A proposed use will only be incompatible if it is contrary to the purpose underlying the Crown’s occupancy of the Park and prevents the realizing of that purpose (R v Sundown, [1999] 1 SCR 393 at paras 9, 41 [Sundown]). There is no suggestion in the evidence or the reasons that the proposed harvesting cabin would prevent Park visitors from engaging in recreational activities. Rather, the Applicant’s uncontested evidence shows that the proposed cabin is perfectly compatible with that purpose and it was not open to the Superintendent to conclude otherwise without reasons. Moreover, the unreasonableness of the decision is heightened by its constitutional context. To be consistent with the honour of the Crown, the refusal was required to be reasonable and to be accompanied by a meaningful explanation for the denial of the Applicant’s Treaty right. However, the reasons provided by the Superintendent do not meet that standard.
[38] Fourth, the Applicant submits that the Superintendent unreasonably concluded that there were safety concerns associated with the proposed location of the harvesting cabin. This finding ignores the Applicant’s evidence that he would not harvest within 800 metres of Pine Lake. Additionally, the Superintendent neglected to explain how the proposed cabin would have an impact on reserve lands and other Park users so as to render the cabin incompatible with the chosen location.
[39] Finally, the Applicant submits that it was unreasonable for the Superintendent to rely on the Management Plan. The Pine Lake Area Management Approach has not yet been developed and the decision does not disclose why the Superintendent believes that the proposed cabin is incompatible with the Management Plan.
[40] The Applicant submits that, in whole, the reasons do not provide a statutory, constitutional, or administrative law basis to deny his Permit Application and admits of only one reasonable outcome – being that the cabin and its proposed uses are compatible with the proposed location.
Respondents’ Position
[41] The Respondents submit that, read as a whole and in light of the record, the decision was reasonable. Significant deference should be afforded to the view of park officials that a particular action was consistent with the discharge of broad statutory duties (Canadian Parks and Wilderness Society v Canada (Minister of Canadian Heritage), 2003 FCA 197 at paras 45, 68–69, 99). The Superintendent was obliged to weigh competing, and to some degree irreconcilable, interests. In doing so, he identified key policy considerations, including the Applicant’s Treaty rights, the Treaty rights and interests of nearby First Nations, ecological integrity, visitor experience – including safety concerns, the availability of alternative suitable locations, and the Management Plan. He then weighed the specific merits and concerns of the Applicant’s proposed cabin location with relevant policy concerns.
[42] As to the Applicant’s Treaty rights, the decision appropriately considered the Applicant’s and Mikisew’s Treaty rights as a fundamental issue in considering the Permit Application. It repeatedly affirms the Treaty right to have a harvesting cabin within WBNP, and the Superintendent indicated that there would likely be no concern with a harvesting cabin located outside the 800-metre recreational zone around Pine Lake. Further, a 2013 map shows dozens of Mikisew harvesting cabins within WBNP. Here, the Superintendent’s concern was with the precise location of the proposed cabin and its impact on other rights and interests.
[43] The Superintendent also appropriately consulted the two First Nations situated closest to the proposed harvesting cabin, and Mikisew. This respected Salt River and Smith Landing’s Treaty rights and fulfilled the obligations contained in the TLEAs. It was also reflective of Parks Canada’s policy of working collaboratively in relation to land use and management, as reflected in the Management Plan.
[44] The Superintendent also considered ecological preservation and the impact on Park visitor use. The broad authority of the Superintendent to manage the Park and harvesting activities go beyond location compatibility with design and size of harvesting cabins. And, in any event, a harvesting cabin of any design and size would be incompatible with the Applicant’s proposed location within the 800-metre zone. The reasons set out the importance of Pine Lake as the most visited location in WBNP and as one of the few areas accessible to the public by vehicle. Further, the proposed cabin is located at the junction of two trails and close to a trailhead parking lot, and harvesting activities are incompatible with the use and enjoyment of these areas by all Park visitors. The 800-metre restriction on harvesting or harvesting cabins protects visitor enjoyment and public safety.
[45] The decision also discusses the possibility of other locations for the Applicant’s cabin and reasonably concludes that a harvesting cabin could be located elsewhere and still meet the Applicant’s needs. The Superintendent is very familiar with WBNP, and his exercise of discretion on this issue is owed deference. And, while by way of the Grandjambe Affidavit the Applicant now offers new reasons why other locations are unsuitable, these were not before the Superintendent and cannot be used to impugn the reasonableness of the decision.
[46] In sum, the decision reasonably concludes that the Applicant’s chosen location is not the only place in WBNP that would meet his needs or that would allow him to exercise his Treaty rights without undue hardship.
Analysis
[47] In my view, it is helpful to first set out some of the legislative and other backdrop information to provide context to this issue.
[48] In that regard, it is of note that s 2(2) of the Canada National Parks Act states that nothing in that Act shall be construed so as to abrogate or derogate from the protection provided for existing Aboriginal or Treaty rights of the Aboriginal Peoples of Canada by the recognition and affirmation of those rights in s 35 of the Constitution Act, 1982. Subsection 4(1) states that the national parks of Canada are dedicated to the people of Canada for their benefit, education, and enjoyment, subject to the 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. The Minister is responsible for the administration, management, and control of parks (s 8(1)). 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 (s 8(2)). As to management plans, the Minister is required, within five years after a park is established, to 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. In this case, that plan is the Management Plan.
[49] The Management Plan states that WBNP encompasses an area of 44,807 square kilometres. It is Canada’s largest national park, a United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage Site, and the second largest national park in the world. It also sets out three key strategies, the first of which is “Towards a Shared Vision”, which focuses on building relationships between local Aboriginal groups and communities. Parks Canada will work towards the establishment of a management structure with local Aboriginal groups, recognizing that ecological integrity and cultural resources will be improved with support from local Aboriginal groups. Local communities will be aware of, and provided with, opportunities to actively and meaningfully participate in Park management decisions, and visitor experience in the Park and public outreach education efforts for the Park will involve both local Aboriginal groups and local communities. As to Area Management Approaches, the Management Plan notes that there are two, one of which is Pine Lake, and that area management approaches are effective for specific geographic locations within the Park that require more detailed planning. The Pine Lake Area Management Approach promotes compatible land-use and development for reserve and Park lands at Pine Lake. The Management Plan states that the key strategies and areas management approaches will improve ecosystem conservation and facilitate visitor experience initiatives.
[50] Section 6.2 of the Management Plan concerns the Pine Lake Area Management Approach. This section states that the aquamarine waters of Pine Lake are a WBNP landmark. The lake is formed by several sinkholes that have merged together and is fed by underground springs. It is surrounded by mixed-wood boreal forest and is “a highly-prized community recreational asset”. The land surrounding Pine Lake is shared amongst three groups, Parks Canada, Salt River, and Smith’s landing. TLEAs grant both of these First Nations a parcel of land on the east side of Pine Lake. These lands, which abut one another at the edge of the lake, are accessible via foot around the lake’s perimeter or by boat across the lake; no development at either site currently exists. On the west side of Pine Lake, Parks Canada land accommodates the only serviced campground in the Park. This facility receives moderate use throughout the summer months. There is also an interpretive theatre and a day use area which can accommodate ten groups is nearby. At the south end of the lake is a group camp, accessible via a low-grade road, which can accommodate 50 people. At the northwest edge of the lake are Park cabins with a public parking area and a boat launch facility. There are also 16 private cottages situated on the west shore on Crown lands.
[51] The Management Plan states that:
The purpose of the Pine Lake Area Management Approach is to provide Wood Buffalo National Park, Smith’s Landing First Nation and the Salt River First Nation with a plan that promotes compatible land-use and development for reserve and park lands at Pine Lake. The Pine Lake Area Management Approach will provide opportunities for sustainable land-use that meet the needs and requirements of the Smith’s Landing First Nation and the Salt River First Nation as defined in their Treaty Land Entitlement Agreement and Parks Canada as defined under the Canada National Parks Act.
The Pine Lake Area Management Approach links to the key strategies: Towards a Shared Vison and Connecting to the Magic of