Trophy Lodge NWT Ltd. v. Canada (Attorney General)

Trophy Lodge NWT Ltd. v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2024-04-24
Neutral citation
2024 FC 618
File numbers
T-1225-23
Decision Content
Date: 20240424
Docket: T-1225-23
Citation: 2024 FC 618
Ottawa, Ontario, April 24, 2024
PRESENT: The Honourable Mr. Justice Régimbald
BETWEEN:
TROPHY LODGE NWT LTD
Applicant
and
THE ATTORNEY GENERAL OF CANADA, THE PARKS CANADA AGENCY and ŁUTSËL K’É DENE FIRST NATION
Respondents
Table of Contents
I. Overview 2
II. Background facts 4
A. Thaidene Nëné Park 4
B. Trophy Lodge and the business licence application process 8
C. TDNXDY process to review Trophy Lodge’s application for a business licence 11
D. The TDNXDY reasons denying the issuance of Trophy Lodge’s business licence 13
E. The Superintendent’s Decision 15
F. The PCEO’s review of the Superintendent’s decision 17
III. Issues and standard of review 20
IV. Analysis 27
A. The Canada National Parks Act and the Parks Canada Agency Act 27
B. The process followed by Parks Canada was in breach of procedural fairness 34
C. The TDNXDY’ recommendation is unreasonable 41
(1) The reasons contain numerous factual errors 43
(2) The TDNXDY considered irrelevant factors 46
(3) The TDNXDY does not recommend the closure of Trophy Lodge because of its historical RCMP presence 49
(4) Conclusion 51
D. The Superintendent’s decision 56
E. The PCEO decision is unreasonable 62
(1) The principle of reconciliation 64
(2) The absence of a joint management plan 67
(3) Conclusion 68
V. Costs 69
(1) Costs for the Applicant’s motion for injunctive relief 70
(2) Costs on the application for judicial review 72
VI. Conclusion 72
JUDGMENT AND REASONS
I. Overview [1] The Applicant Trophy Lodge NWT Ltd [the Applicant or Trophy Lodge] is a commercial tourism and sport fishing lodge located at the extreme eastern end of Great Slave Lake in the Northwestern Territories [NWT] that has been operating since 1965.
[2] Trophy Lodge was subject to NWT regulations until 2019, when the Thaidene Nëné National Park Reserve [Thaidene Nëné Park] was created, following a Land Transfer Agreement between Canada and the Government of the NWT [GNWT] and the Agreement to Establish the Thaidene Nëné Indigenous Protected Area and National Park Reserve [the Establishment Agreement] and related agreements between Canada and various First Nations in the NWT. Since then, the Parks Canada Agency [Parks Canada] regulates the Thaidene Nëné Park.
[3] Any business wishing to operate in a national park subject to Parks Canada’s jurisdiction must obtain a licence to do so. In considering whether to issue a license, the superintendent of the park must consider, inter alia, the factors set out in subsection 5(1) of the National Parks of Canada Businesses Regulations, SOR/98-455 [the Regulations].
[4] In 2022, Trophy Lodge was sold to its current owners, who applied for a business licence from Parks Canada. Under the Establishment Agreement, Parks Canada must submit any new licence request to a board established under the Establishment Agreement, for its consideration and recommendation. Following the board’s recommendation, the Superintendent of the Thaidene Nëné Park refused to issue the business licence to the Applicant.
[5] Following a request by the Applicant for a review of the Superintendent’s decision, the President and Chief Executive Officer of Parks Canada [PCEO] denied the application for a business licence to operate the lodge, in part because in denying the licence, Parks Canada is honouring the spirit and intent of the shared management regime under the Establishment Agreement and its commitment to reconciliation.
[6] For the reasons that follow, the PCEO’s decision is unreasonable. While the PCEO can consider Canada’s commitment to reconciliation as a relevant ground upon which to evaluate the licence application to operate Trophy Lodge, the PCEO’s decision must rely on evidence and the business licence application package filed by the Applicant. In this case, the PCEO failed to review the Applicant’s business licence application and failed to provide reasons as to why the business licence had to be denied on the basis of reconciliation, especially considering the fact that the First Nation most affected by the business licence supported its issuance.
[7] Because the Applicant’s business licence, had it been issued, would have expired on March 31, 2024, no remedy may be granted in this case – the issue is moot. Nevertheless, at the invitation of the parties, the PCEO’s decision is set aside. The Applicant has filed a new licence application, and the board and Parks Canada may consider the current licence application with the benefit of these reasons.
II. Background facts A. Thaidene Nëné Park [8] Łutsël K’é Dene First Nation [LKDFN] is a band under the Indian Act, RSC, 1985, c I-5. LKDFN has approximately 800 Łutsël K’é and Kaché Denesǫłine members, 400 of whom live in the remote community of Łutsël K’é, in the Northwest Territories. Łutsël K’é is located on the eastern tip of Tu Nedhé, also known as “Great Slave Lake.”
[9] LKDFN, the Northwest Territory Métis Nation [NWTMN], the Deninu Kue First Nation and the Yellowknives Dene First Nation comprise the Akaitcho Dene First Nations. The Akaitcho Dene First Nations are working to advance reconciliation and renew their relationship with the Crown by concluding a modern treaty agreement with Canada and the GNWT, pursuant to a framework agreement signed in 2000. The area comprising the Thaidene Nëné Park is subject to unresolved claims of Aboriginal rights and title by these four Indigenous governments.
[10] Seven bilateral agreements [the Park Agreements] provide for shared management of the Thaidene Nëné Park. For the purposes of this judicial review, the Establishment Agreement between Parks Canada and the LKDFN, and the Land Transfer Agreement between Canada and the GNWT are most important. It is also important to note that the Park Agreements together establish and empower two management boards: a Regional Management Board and an operational management board called Thaidene Nëné Xá Dá Yáłtı, which means “the people that speak for Thaidene Nëné” [TDNXDY]. Of the two boards, only TDNXDY is relevant to this judicial review application.
[11] Parks Canada and the four Indigenous governments therefore jointly manage the Thaidene Nëné Park pursuant to the Park Agreements signed in 2019 and 2020 that provide for a collaborative and consensus-based shared management regime. These agreements underpin the establishment of the Thaidene Nëné Park.
[12] One of these agreements is an agreement between Canada and the GNWT. On August 21, 2019, following negotiations between Canada, the GNWT, and the Akaitcho Dene First Nations, a Land Transfer Agreement transferred lands from the NWT to Canada for the creation of the Thaidene Nëné Park, so that the lands could become a national park subject to the Canada National Parks Act, SC 2000, c 32 [the Parks Act] and its regulations, and managed by the Parks Canada under the Parks Canada Agency Act, SC 1998, c 31 [the PCA Act].
[13] On September 4, 2019, the Thaidene Nëné Park was established by Order in Council, PC 2019-1315, (2019) C Gaz II, 6338. The Thaidene Nëné Park is dedicated to the benefit, education, and enjoyment of all Canadians.
[14] The shared vision of LKDFN and Parks Canada for the Thaidene Nëné Park is reflected in the preamble of the Establishment Agreement:
“Thaidene Nëné is the homeland of the people whose ancestors here laid down the sacred, ethical and practical foundations of their way of life. This land has nurtured and inspired countless generations whose prosperity continues to be ensured by a deep intimacy between the people and the land. For the well being of future generations, this way of life needs to be exercised, nurtured and passed on.”
(Certified Tribunal Record, Applicant’s Record, at p 2271)
[15] Canada and the LKDFN, through the Establishment Agreement, intended to guide the management of the Thaidene Nëné Park. The establishment of boards demonstrates an intention to collaborate in order to maintain and foster the Denesǫłine Way of Life, and to incorporate Łutsël K’e Denesǫłine Knowledge into the planning, management, operation, monitoring and evaluation of the National Park Reserve. The Establishment Agreement also provides for dispute resolution processes if the parties disagree on specific implementation issues.
[16] For example, the Establishment Agreement requires that Parks Canada refer all new business licence applications for access to and use of the lands in the Thaidene Nëné Park to TDNXDY for consideration and recommendation. This includes all proposals, activities, or developments that affect the planning, management, operation, monitoring, and evaluation of Thaidene Nëné Park. TDNXDY must make all recommendations by consensus within 30 days of referral and provide written reasons for their recommendation on request by a party.
[17] TDNXDY recommendations are referred to Canada and the LKDFN for their consideration. The recommendations of the TDNXDY must be implemented by one or both of Canada and/or LKDFN, unless there are objections from either of the parties. Where an objection is raised by Canada or the LKDFN to a TDNXDY recommendation, the Establishment Agreement sets out a detailed “Issue Resolution Process” intended to build consensus between Canada and the LKDFN about how to proceed. The Establishment Agreement is therefore an example of a broader process of reconciliation.
[18] However, and notwithstanding the Establishment Agreement, a TDNXDY recommendation is not binding on Parks Canada. Regardless of whether the parties to the Establishment Agreement triggered the Issue Resolution Process, the Superintendent of the Thaidene Nëné Park must consider TDNXDY’s recommendation in their assessment of the proposed licence application under the applicable Regulations in order to approve or deny the issuance of the licence.
[19] While the Establishment Agreement aims at protecting important lands and the Denesǫłine Way of Life for future generations, and to incorporate Łutsël K’e Denesǫłine Knowledge into the planning, management, operation, monitoring and evaluation of the Thaidene Nëné Park, the intent of reconciliation is not limited to the relationship between Canada and the LKDFN. Indeed, one of the main objectives of the Thaidene Nëné Park is to enable tourists to appreciate and understand the relationship between LKDFN and Thaidene Nëné Park. The Establishment Agreement therefore provides that Canada and the LKDFN will develop a visitor guide and orientation materials to inform visitors of the LKDFN’s rights, history, aspirations, cultural practices and the Denesǫłine Way of Life, as well as LKDFN businesses operating in Thaidene Nëné Park.
B. Trophy Lodge and the business licence application process [20] Trophy Lodge is located near Fort Reliance, at the extreme eastern end of Great Slave Lake, in the NWT. Trophy Lodge, at full capacity, may accommodate up to 16 people in a lodge facility that includes a small concession store. Trophy Lodge also includes historical buildings that were part of a former detachment for the RCMP that was operating between 1927 and 1963.
[21] Prior to the establishment of the Thaidene Nëné Park, Trophy Lodge was subject to regulation by the GNWT and a land Lease. The terms of the Lease provided, inter alia, for renewals upon the same terms and conditions, when required. Following the creation of the Thaidene Nëné Park and the Land Transfer Agreement, Trophy Lodge became subject to Parks Canada’s jurisdiction under the Parks Act and the Regulations.
[22] In January of 2021, Trophy Lodge’s previous owner approached potential purchasers to sell the lodge. The Applicant purchased it on or about May 2022 under an Asset Purchase Agreement. On or about September 16, 2022, Parks Canada, having become the property owner following the Land Transfer Agreement with the GNWT, entered into an assumption agreement whereby it, and the former owner of Trophy Lodge, assigned the existing commercial Lease on the lands to the Applicant.
[23] The Applicant applied to Parks Canada for a new business licence on September 26, 2022. Parks Canada reviewed the application package and wrote to Trophy Lodge to recommend changes. Trophy Lodge submitted a revised application package on November 9, 2022, which was then submitted to the TDNXDY for consideration. Trophy Lodge’s business licence application package included the following information:
Part B: Business Information
Type of business – Trophy Lodge will be a fishing lodge: Trophy Lodge has been operating as a fishing lodge since 1965 and we will be operating the lodge the same way as it has been with the previous ownership. By 2025 season we are planning on completing multiple environmental improvements at the lodge, complete training requirements for guides and incorporate guides to assist with improving the lodge experience. We will be improving the Trophy Lodge concession store to offer a wider variety of Indigenous arts and crafts. We will work with local Indigenous communities across the NWT and allow their art, crafts and jewelry to be sold the way that most benefits to them. With the store improvements, it will allow people to stop into the lodge and stock up on supplies during their travels in the area. […]
A large part of the reason for us being so prepared with being market ready is that the ownership has extensive business experience. Andrew Moore owns and operates Yellowknife Sportfishing Adventures out of Yellowknife. Andrew has operated Yellowknife Sportfishing Adventures since 2017 and his business has won tourism awards and been nominated year after year for being an outstanding small business. Trent Hayward and April Bell own and run the Booster Juice Franchise in Yellowknife. They opened Booster Juice in 2018 and have been extremely successful in their operations. Their Booster Juice store has broken multiple National franchise sales records and is properly run to handle traffic into the store. Trent also owns another store, Stocked Hat Store in Yellowknife. Stocked is the only hat store in Yellowknife which is in very high demand. April also owns and operates Et'oa's Earings. Et'oa's Earings is Indigenous made earrings and jewelry by April and sold around the world. April regularly brings together other Indigenous jewelry and craft makers and host's pop-up shops. These pop-up shops have huge line ups of people wanted to buy hers and others Indigenous made jewelry. […]
Describe how your operations will be culturally sensitive to local Indigenous peoples:
Thaidene [Nëné] National Park Reserve is a significant area to Lutsël K'é Dene First Nation, Northwest Territory Métis Nation, Deninu Kue First Nation, and Yellowknives Dene First Nation. We are aware that the people of the Lutsël K'é Dene First Nation still hunt, fish and regularly conduct important cultural activities in the area of our operation. We are aware that there are very sensitive areas that are very close to Trophy Lodge. During the first 2 weeks of August, we will not go to the area of Tsakui Theda (Parry Falls) at any time as it is a sacred area for the people of Lutsël K'é. As a Lodge practice we will make sure that every guest that comes to the lodge is fully aware of the cultural importance of area surrounding the lodge and how not to interfere with any traditional activities or sensitive areas. We have been in contact with Lutsël K'é about the lodge and will continue to regularly be in contact and work with their people to make sure we are not interfering with their way of life in the area of the lodge.
When our communications start again we will be asking for proper wording for land use acknowledgement so we can include it on our social media, website and our advertising.
Part of our ownership, April Bell is an NWT Indigenous person, and we also have an employee that is an NWT Indigenous person. Her job with the RCMP is the NWT's liaison officer for Indigenous policing and directly works with all Indigenous communities. All of the ownership are RCMP employees and regularly take cultural sensitivity awareness courses and have all work in Northern communities throughout the NWT. […]
Describe what economic benefits (employment, procurement, etc.) that your operations may offer to local Indigenous communities:
We hope that our offers economic benefits will be accepted. We will be looking to hire employees and will be requiring contractors. We will have a company policy that will require us to offer any employment, procurement, contractors etc in the following order:
1. Lutsël K'é Dene First Nation
2. Northwest Territory Métis Nation, Deninu Kue First Nation, and Yellowknives Dene First Nation
3. NWT Dene First Nation
4. NWT Residents
If we go through our list in that order, we do not see us having ever having to hire or contract anyone outside of the NWT.
We will generate more interest that we will be able to accommodate, and other businesses will benefit from that. We expect our social media and web presence to create a lot of interest for the area aside from just finishing for wildlife photography, Aurora viewing, cultural experiences that will benefit other Tourism Operators. We will not be offering cultural tours as Trophy Lodge. We want these tours through local cultural tourism operators from Lutsël K'é if requested from our guests.
(Uunila Affidavit at Exhibit V, Applicant’s Record, at p 1745-1748)
[24] Prior to the submission of the business licence application to the TDNXDY, Parks Canada worked with LKDFN to develop proposed terms and conditions for the licence that could be accepted and endorsed by LKDFN Chief and Council.
[25] On January 17 and 18, 2023, Parks Canada and the LKDFN jointly presented Trophy Lodge’s application for a business licence to the TDNXDY, and supported the issuance of the licence.
C. TDNXDY process to review Trophy Lodge’s application for a business licence [26] The TDNXDY was presented with a briefing note from Parks Canada for its evaluation of Trophy Lodge’s proposed business licence (Uunila Affidavit at Exhibit V, Applicant’s Record, at p 1740). The briefing note included the application package of Trophy Lodge and the evaluation criteria on which the TDNXDY was to assess the request. Notably, the briefing note states that the TDNXDY must use the Regulations to assess Trophy Lodge’s application. More specifically, the briefing note explains that Parks Canada and the LKDFN worked together to develop proposed terms and conditions, and that these terms and conditions are “compatible with the [Park] [A]greements and regulations” (Uunila Affidavit at Exhibit V, Applicant’s Record, at p 1740).
[27] The briefing note then sets out subsection 5(1) of the Regulations, and also states that the TDNXDY may consider “[f]actors from the [P]ark [A]greements to consider that correlate to section 5(1) of the regulations.” The briefing note then includes, at Appendix 2, the “economic opportunities clauses” from the Establishment Agreement including, inter alia, clause 3.7.1 of the Establishment Agreement, which provides:
3.7.1 The Parties will develop and implement policies and procedures for procuring goods and services and allocating Business Licenses that maximize Łutsël K’é Denesǫłine participation in economic opportunities relating to Thaidene Nëné.
(Certified Tribunal Record, Applicant’s Record, at p 2280)
[28] Notably, however, the Establishment Agreement, and the “economic opportunities clauses” criteria contained therein, was never disclosed to the Applicant prior to their business licence application. Moreover, the briefing note submitted by Parks Canada to the TDNXDY, including the evaluation criteria established by Parks Canada and the business licence application package put together by the Applicant, along with the terms and conditions supported by the LKDFN, were not provided to the PCEO in its review of the Superintendent’s decision.
D. The TDNXDY reasons denying the issuance of Trophy Lodge’s business licence [29] On January 18, 2023, TDNXDY stated verbally that it had reached a consensus recommendation that Trophy Lodge’s business licence application should not be granted.
[30] On January 30, 2023, TDNXDY issued its reasons. TDNXDY opined that issuing the business licence to Trophy Lodge would undermine the spirit and intent of the shared management agreement between Parks Canada and the LKDFN, despite LKDFN supporting the business licence application.
[31] The written reasons note that the parties agreed to protect the Denesǫłine Way of Life, promote culturally relevant visitor experiences, and maximize LKDFN participation in economic opportunities related to the Park Reserve. TDNXDY further noted that a key consideration for their recommendation was the business’ geographic location within the Kaché region, a sacred and culturally significant site in Thaidene Nëné. TDNXDY also references the colonial history of the site as a former RCMP post. The TDNXDY’s reasons were, in part, as follows:
[…]
It is the TDNXDY’s opinion that granting a Parks Canada business license to the owners of Trophy Lodge will serve to undermine the spirit and intent of the Establishment Agreement signed between the PCA and the LKDFN, particularly with respect to the parties’ mutual agreement to protect the [Denesǫłine] Way of Life, promote culturally relevant Visitor Experiences, and to maximise [Łutsël K’é Denesǫłine] participation in economic opportunities related to Thaidene Nëné. The geographic location of this property and business is a key consideration in this case. Specifically, the TDNXDY is concerned about:
- Whether the owners can adequately support the vision of the Parties for Kaché (Reliance) area; and,
- The long-term impact that the indeterminant nature of Trophy lease (and by extension the right to apply for a license to carry out business activities) will have in undermining the Agreement objectives in the Kaché area.
Can Trophy Lodge serve to protect the [Denesǫłine] Way of Life, promoting culturally relevant Visitor Experiences, and maximize [Łutsël K’é Denesǫłine] participation in economic opportunities related to Thaidene Nëné?
Trophy Lodge is located in the Kach[é] area (Reliance). The Kach[é] area is the heart’s center of Thaidene Nëné, and one of its most sacred and culturally significant sites.
The parties to the Agreement hold a collective understanding that the Kaché area is not only a sacred place for the LKDFN, but also a strategic area for tourists who will be visiting the Thaidene Nëné, who will either stay at a lodge to enjoy land-based and cultural activities showcasing the [Denesǫłine] Way of Life or use the lodge as a staging area to access the barrens, or both. This location is critical and strategic for the long-term viability of a conservation economy in Thaidene Nëné.
The issuance of a business license to a lodge operator that has no operational history of lodge ownership and that may not have the interest or the capacity to uphold the vision that the parties have for the Kach[é] area is, in the opinion of the Board, a failure on the part of Parks Canada to meet the objectives of the Agreement, which includes objectives towards facilitating the building of an Indigenous-led conservation economy that can promote and support Indigenous-owned tourism businesses and other ancillary economic development opportunities for the Indigenous people of the area. It is the opinion of the Board that Parks Canada should have acquired the lease and assets of Trophy Lodge during the establishment process and worked with the other parties to the Agreements to establish joint control and management of this strategic and important ecological and cultural area within Thaidene Nëné, such that the vision for the Kach[é] area can be realized.
Addressing historic and ongoing alienation of land in the Kach[é] area
There is also a very serious problem with the leasehold interest associated with Trophy Lodge that has a history of colonial occupation associated with it, and that may continue to place barriers in front of the parties with respect to the vision for the Kach[é] area. The TDNXDY has written to the parties negotiating modern treaties and self-government agreements in the region about the way in which this Territorial lease, and other leases, were transferred to the PCA by the Government of the Northwest Territories (GNWT). […]
When Thaidene Nëné was established in 2019, a land transfer agreement between the GNWT and PCA was signed. Within that agreement there were provisions to ensure that the existing GNWT leases would transfer to the PCA, however, this commercial lease was transferred in a form that granted the lessee with an indeterminate right of land occupancy. LKDFN was not notified of these changes. In the opinion of the TDNXDY, the GNWT's actions to change the term of this commercial lease before its transfer to Parks Canada is a continuation of bad faith actions on behalf of the Crown in the Kach[é] area.
[…]
(Certified Tribunal Record, Applicant’s Record, at pp2233–2234)
E. The Superintendent’s Decision [32] On February 15, 2023, the Acting Field Unit Superintendent at the time [Superintendent] of Parks Canada wrote to the Applicant to provide its reasons for denying their application for a business licence. It is important to note that the Applicant was not able to provide submissions to the Superintendent in response to the TDNXDY’s recommendation to deny the issuance of the business licence.
[33] The letter states that in making the decision, the Superintendent considered the business licence application package, relevant agreements that create the shared management regime, TDNXDY’s recommendation, and the fact that LKDFN and NWTMN did not object to TDNXDY’s recommendation.
[34] In the Superintendent’s reasons, it is noted that the proposed business supported visitor use and enjoyment of the Park Reserve (Regulations, paragraph 5(1)(b)) and that the application proposed a number of improvements related to guest safety and environmental protection (Regulations, paragraph 5(1)(c)). The Superintendent recognized these elements as supporting the issuance of a business licence, but ultimately placed greater weight on factors relevant to paragraphs 5(1)(a) and 5(1)(d) of the Regulations.
[35] The Superintendent’s decision stated in part:
[…]
Following careful deliberation and consideration of many factors, including the content of the application, related agreements (Parks Canada’s impact and benefit agreement with Northwest territory Métis Nation; the establishment agreement with Łutsël K’é Dene First Nation; and the Land Transfer agreement with the Government of the Northwest Territories), and the advice of the Board, LKDFN and Northwest Territory Métis Nation (NWTMN), Parks Canada has made the decision not to issue the licence. […]
As part of the “preservation, control and management of the park” Parks Canada must consider all relevant park agreements, including the commitment to be guided by the Board in making operational decisions. […]
The business activities proposed in your application support visitor use and enjoyment of Thaidene [Nëné] National Park Reserve, and would provide clients with an opportunity to connect to the natural environment through unguided fishing and remote lodge accommodations. In your application you also outline a number of proposed improvements to infrastructure and operations, which are related to the safety of guests and environmental protections on the site. Moreover, your application demonstrated a willingness to support economic benefit to local Indigenous communities via your proposed employment and procurement policy.
Parks Canada also recognizes that you hold a lease for a “commercial – outpost camp.” You have invested time, money and resources to acquire the leasehold and physical assets. Despite these supportive elements, there are other factors that Parks Canada is required to consider. […]
Parks Canada’s decision is based on: the effect of the business on the natural and cultural resources of the park (paragraph 5(1)(a) of the Regulations); and the preservation, control and management of the park (paragraph 5(1)(d)).
In making the decision, Parks Canada considered the following two key factors:
1. Parks Canada has been advised by the Board and Indigenous governments that the Kaché area, where Trophy Lodge is located, is highly culturally sensitive. Management planning, zoning, and policy development for this area have yet to occur. Given the uncertainty of this area’s future regarding visitor use, tourism and business operations, we are not able to issue a licence in good faith while undertaking a collaborative management planning process with Indigenous government partners (paragraph 5(1)(a) and (d)).
2. The spirit and intent of the Thaidene [Nëné] agreements is to support shared management of the park. In regards to this decision, the Board and two nations have indicated they do not support the issuance of the licence. Reconciliation and relationships with Indigenous partners are paramount for Parks Canada in regards to Thaidene [Nëné] National Park Reserve (paragraph 5(1)(d)).
These factors outweigh the benefit that the proposed business may have in terms of the factors in section 5(1). As a result, Parks Canada must refuse the business licence.
(Certified Tribunal Record, Applicant’s Record, at pp 2260–2263)
F. The PCEO’s review of the Superintendent’s decision [36] On March 13, 2023, the Applicant submitted a nine (9) page letter asking the PCEO to review the Superintendent’s decision.
[37] Notably, the Certified Tribunal Record demonstrates that the PCEO did not receive the business licence application package put together by the Applicant, including the proposed terms and conditions that were supported by Parks Canada and LKDFN. The PCEO also did not receive a copy of the briefing note and evaluation criteria put together by Parks Canada and provided to TDNXDY for its evaluation of the licence application, which states that “Parks Canada and Łutsël K’é have worked together to develop proposed terms and conditions. […] They are compatible with the [Park] [A]greements and regulations” (Uunila Affidavit at Exhibit V, Applicant’s Record, at p 1740).
[38] On May 17, 2023, the PCEO dismissed the Applicant’s request for review [the Decision]. The PCEO stated that it carefully reviewed the Applicant’s submissions and explained that it does not doubt the Applicant’s “intent, experience, and goodwill” or “the potential economic, cultural, and environmental benefits” outlined, but that principles of “mutual trust-building and reconciliation after decades of exclusion and separation” supersede all other considerations in deciding the licence application. The letter explained that the Superintendent did not rely on those parts of TDNXDY’s recommendation that the Applicant’s submissions primarily impugn as erroneous, and that it was appropriate for the Superintendent to consider TDNXDY’s recommendation as it represents the interests of the Thaidene Nëné Park.
[39] The Decision concluded that the Superintendent correctly situated TDNXDY’s recommendation and appropriately based its decision to deny the business licence on considerations pursuant to paragraphs 5(1)(a) and 5(1)(d) of the Regulations. The PCEO found that, in doing so, Parks Canada is honouring the spirit and intent of the shared management regime and its commitment to reconciliation.
[40] The PCEO’s Decision stated, in part:
[…]
I have reviewed your letter carefully, as well as all supporting documentation that informed the Superintendent’s deliberations, including the National Parks of Canada Businesses Regulations, and I have decided that the decision of the Superintendent to deny the business licence application was correct. […]
I made my decision with a good deal of thought and consideration. I note that the previous owners of Trophy Lodge operated under a business licence for many years, and I have no reason to doubt the intent, experience and goodwill of you and your partners with respect to the planned operation of Trophy Lodge and the potential economic, cultural, and environmental benefits you outline. However, these are not the only factors that I must consider.
Parks Canada’s relationship with Indigenous partners is based on principles of mutual trust-building and reconciliation after decades of exclusion and separation from the land of Indigenous Peoples in previous national park establishment processes. Those principles must supersede all others.
In your letter, you reference several factors related to Thaidene Nëné xá dá yáłtı (TDNXDY)’s decision and advice that you feel were applied by them in error and, further, that you feel the Superintendent improperly replied on. It is my role at his stage to assess the factors that informed the Superintendent’s decision, rather than the factors that contributed to TDNXDY’s advice.
The Superintendent’s reasons for not demonstrate a wholesale adoption of TDNXDY’s reasoning for their opposition to the licence. The Superintendent did not reply on TDNXDY’s comments about (in their view) Trophy Lodge’s lack of experience, nor did he rely on speculation that Trophy Lodge “may not have the interest or the capacity to uphold the vision of the parties” with respect to the Kaché area. The ownership structure of Trophy Lodge was not a central factor in the Superintendent’s decision. Rather, the decision was grounded in two key factors: principles of reconciliation, and a desire to respect joint management planning and policy development, which have yet to occur, both of which strongly implicate section 5(1)(d) of the National Parks of Canada Businesses Regulations with respect to the participation of the Indigenous partners in “the preservation, control and management of the park.” […]
I am confident that the Superintendent and staff for Parks Canada’s Southwest Northwest Territories Field Unit acted diligently and in good faith in providing advice to guide your application at its various stages. I am also confident that the Superintendent situated the advice of TDNXDY correctly, and appropriately based his decision on sections 5(1)(a) and 5(1)(d) of the National Parks of Canada Businesses Regulations.
In doing so, Parks Canada is honouring the spirit and intent of Thaidene Nëné agreements with respect to shared management and its commitment to advancing reconciliation with Indigenous Peoples.
(Certified Tribunal Record, Applicant’s Record, at pp 2231–2232)
III. Issues and standard of review [41] The Applicant raises two issues for judicial review:
Whether the PCEO’s Decision breached procedural fairness;
Whether the PCEO’s Decision is unreasonable.
[42] On the procedural fairness issue, as held in Caron v Canada (Attorney General), 2022 FCA 196 at paragraph 5, allegations of breaches of procedural fairness are reviewed according to a standard equivalent to correctness: “When engaging in a procedural fairness analysis, [the] Court must assess the procedures and safeguards required, and, if they have not been met, the Court must intervene” (see also Mission Institution v Khela, 2014 SCC 24 at para 79; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 33–34 [Canadian Pacific]; Canadian Hardwood Plywood and Veneer Association v Canada (Attorney General), 2023 FCA 74 at para 57).
[43] As reiterated in Canadian Pacific at paragraph 54, the role of the reviewing court on procedural fairness issues is simply to determine whether the procedure that was followed was fair, having regard to the particular circumstances of the case: “The ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond” (at para 56).
[44] The standard of review applicable to the merits of the PCEO’s decision is that of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 25 [Vavilov]; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at paras 7, 39–44 [Mason]).
[45] Following this standard, Mason, relying on Vavilov, teaches that the reviewing court must first look to the reasons of the administrative decision maker in order to assess the justification for the decision. Moreover, the Supreme Court of Canada [SCC] reiterates the need to “develop and strengthen a culture of justification” (Mason at paras 8, 58–60, 63; Vavilov at paras 14, 81, 84, 86).
[46] In Mason, the SCC explains how a reviewing court must conduct a judicial review of a decision. A decision may be unreasonable if the reviewing court identifies a fundamental flaw, either because of a lack of internal logic in the reasoning or because of a lack of justification given the factual and legal constraints affecting the decision (Mason at para 64).
[47] The SCC identifies a series of factual and legal constraints that the decision maker must examine and justify, depending on the applicable context, in order for the decision to be sufficiently justified within the meaning of Vavilov. The burden of justification varies, but the decision maker must be “aware” of the essential elements, “sensitive to the issue before [it]” and “meaningfully grapple with key issues or central arguments raised by the parties” (Mason at paras 69, 74; Vavilov at paras 120, 128). The decision maker must consider the main arguments and evidence of the parties and give reasons as to why particular arguments were accepted or dismissed, and the evidence that was accepted or rejected in the decision-making process (Mason at paras 73–74; Vavilov at paras 126–128).
[48] In particular, the decision maker must ensure that they consider the principles of statutory interpretation, the applicable statutory, common law or international law rules, the evidence and main arguments of the parties, the practices and previous decisions of the administrative tribunal, and the potential and possibly severe consequences of the decision on the party concerned or on a broad class of persons, as well as the overall issues. Failure to give proper consideration to any of these factors, or to provide adequate reasons for the decision, may constitute a serious deficiency that causes a reviewing court to “lose confidence” in the decision maker’s decision (Mason at paras 64, 66–76).
[49] When the decision maker sets out its reasons, it is not enough for the decision to be justifiable; it must be justified by reasons that establish the transparency and intelligibility of the decision-making process (Mason at paras 59–60; Vavilov at paras 81, 84, 86). The Court must determine whether, by examining the reasoning followed and the result obtained, the decision is based on an internally coherent and rational chain of analysis that can be justified in light of the legal and factual constraints to which the decision maker is subject (Mason at paras 8, 58–61; Vavilov at paras 12, 15, 24, 85–86). The decision will be unreasonable if it lacks internal logic or if the reviewing court is unable to follow the decision maker’s reasoning without “encountering any fatal flaws in its overarching logic” (Mason at para 65, citing Vavilov at paras 102–103).
[50] On the other hand, the reviewing court must not create its own yardstick and then use it to measure what the administrator did (Mason at para 62; Vavilov at para 83). Nevertheless, reasonableness review is not a “rubber-stamping” process, it is a robust form of review (Mason at paras 8, 63; Vavilov at paras 12–13).
[51] Accordingly, on judicial review under the standard of reasonableness, the reviewing court must assess the reasons for the decision “holistically and contextually” in light of the history and context of the proceedings, the evi