Date: 20040423
Docket: T-2167-00
Citation: 2004 FC 597
BETWEEN:
PETER G. WHITE MANAGEMENT LTD.,
SUNSHINE VILLAGE CORPORATION,
SKIING LOUISE LTD.,
ROCKY MOUNTAIN SKIING INC., and
RESORTS OF THE CANADIAN ROCKIES INC.
Applicants
and
SHEILA COPPS, MINISTER OF CANADIAN HERITAGE
and ATTORNEY GENERAL OF CANADA
Respondents
INTRODUCTION
[1] These reasons follow the hearing at Calgary, Alberta on the 23rd and 24th of March, 2004 of an application for judicial review of a "decision" of the Minister of Canadian Heritage announced and communicated to the Applicants on the 19th of October, 2000. In their application for judicial review, the Applicants, operators or former operators of commercial ski areas in Banff and Jasper National Parks, characterize the effect of the "decision" in the following terms:
The effect of this Decision is to frustrate plans for development including parking lots, facilities and lifts, notwithstanding previous Long Range Plans or development agreements or arrangements, and to otherwise proscribe commercial operations contrary to lease and other contractual arrangements.
To this point I have used quotation marks surrounding the word "decision", because an issue arises on this application for judicial review as to whether the "decision" is reviewable under section 18.1 of the Federal Courts Act.[1] Hence forward in these reasons the "decision" under review will be referred to as a decision, without parentheses and without, up to the point of my analysis as to reviewability, prejudging the issue of reviewability.
THE PARTIES
[2] The Applicants Peter G. White Management Ltd., Sunshine Village Corporation, Rocky Mountain Skiing Inc., and Resorts of the Canadian Rockies Inc., the last as successor to Skiing Louise Ltd., are the operators of the four (4) commercial ski areas in Banff and Jasper National Parks. Peter G. White Management Ltd. operates the Mount Norquay ski area in Banff National Park, Sunshine Village Corporation operates the Sunshine ski area in the same park and Resorts of the Canadian Rockies Inc. operates the Lake Louise ski area, once again in the same park. Rocky Mountain Skiing Inc. operates the Marmot Basin ski area in Jasper National Park. Those four (4) ski areas are the only commercial ski areas in the National Parks of Canada other than the Mount Aggasiz Ski Resort in Riding Mountain National Park in Manitoba. The four (4) commercial ski areas in Banff and Jasper National Parks have all been in operation since at least the early 1960's. All are within leasehold areas with the leases granted or assigned in favour of the Applicants. With the exception of Sunshine, all operate within the parameters of long term plans which, for sometime, have been generally conceded to be out of date. The Sunshine Ski area long range plan dating from 1978 was apparently withdrawn some years ago. A 1992 Long Range Development Plan Proposal for Sunshine, which was the subject of earlier litigation before this Court[2], was also withdrawn.
[3] The current operators of the four (4) ski areas in Banff and Jasper National Parks will hereafter collectively be referred to as "the Applicants".
[4] The Honourable Sheila Copps was, at the time the decision under review was made, the Minister of Canadian Heritage and as such, pursuant to the National Parks Act[3], was the Minister responsible for the administration, management and control of Canada's National Parks. The Minister's responsibilities under the National Parks Act, and its successor, the Canada National Parks Act[4] are, subject to the Minister's overall direction, entrusted to the Parks Canada Agency ("Parks Canada") by virtue of the Parks Canada Agency Act[5]. The Attorney General of Canada is a Minister in the Government of Canada and would appear to have been named as a respondent pursuant to Rule 303 of the Federal Court Rules, 1998[6].
THE DECISION UNDER REVIEW
[5] The decision under review is reflected in the application for judicial review in the following terms:
1. "Capacity limits [at the four (4) commercial ski areas in Banff and Jasper National Parks] will be permanently capped..."
2. "Any consideration of capacity increases will be limited by . . . the principle of no net negative environmental impact."
3. "There will be no new ski runs or expansion of existing runs, and no significant terrain modification, including glading."
4. "No expansion beyond existing parking lot footprints will be considered."
5. "No new facilities will be considered."
6. "Any expansion of existing facilities considered through a long range plan will be restricted to previously disturbed areas (and) permit no tree cutting..."
7. "Long range plans . . . must adhere to the principle of no net negative environmental impact . . ."
[6] The foregoing decision is extracted with modifications from a "Backgrounder" entitled "Planning and Management of National Park Ski Areas" that was apparently issued by the Minister in connection with a news release, dated the 19th of October, 2000. The news release itself is entitled "MINISTER COPPS ANNOUNCES DECISIONS TO ENSURE NATIONAL PARKS WILL REMAIN A LEGACY FOR ALL CANADIANS." [emphasis added]
[7] The certified tribunal record, which is incorporated in volume 1 of the Respondents' Application Record, consists of a memorandum to the Minister dated the 18th of October, 2000 together with substantially redacted annexes to that memorandum. The memorandum itself commences with a summary in the following terms:
SUMMARY
· C-27, Canada's National Parks Act, is expected to receive Royal Assent in the near future.
· A number of decisions related to the designation of Wilderness Areas, Park Management Plans, Community Plans, Outlying Commercial Accommodations (OCA's), The State of Protected Heritage Areas Report and Ski Area Guidelines are pending.
· Decisions need to be made in order to move forward on the new direction for national parks initiated in the 1996 Banff Bow Valley Study.
· Your approval of this package is recommended.
[8] Following the summary, the substance of the Memorandum is in the following terms:
Background
· On June 26, 1998, arising out of the process started in 1996 with the Banff Bow Valley Study, you announced new protection measures for Canada's national parks. As part of this package, you also announced that a legislative framework for park communities would be introduced to establish legal boundaries for each of the seven park communities, establish permanent caps on the amount of commercial development to be allowed and to adopt a number of ecologically-focused planning principles, including the requirement to use a no net environmental impact principle in all future development.
· At that time, a moratorium was put in place on development on all commercial accommodation facilities inside and outside park communities, and a panel was established to recommend the appropriate rate of development related to OCA's [Outlying Commercial Accommodations]. The panel was also tasked with carrying-out public consultations on ski area guidelines.
· In March 2000, C-27, Canada's National Parks Act, was introduced in Parliament. When proclaimed, C-27 will legally enshrine that ecological integrity is the first consideration in all decisions related to national parks, will permit the Governor in Council, by regulation, to declare specially designated Wilderness Areas in national parks and will provide the regulatory framework for park communities outlined in the June 1998 decision.
· C-27 was quickly followed by the release of the Panel Report on the Ecological Integrity of Canada's National Parks. This Red Book II initiated panel of experts had been tasked with studying the health of Canada's national parks. The report was a wake-up call for a fundamental change to the way national parks are managed. You accepted the recommendations of the panel report, and asked the CEO of the Parks Canada Agency (PCA) to begin the job of implementing them. You also committed to designating Wilderness Areas in four national parks by June 2000, proceeding with a decision on OCA's and the approving of Community Plans in the near future.
· Throughout this process, the PCA, in consultation with its stakeholders, has been developing Park Management Plans for a number of parks, including Jasper, Kootenay, Yoho and Waterton. The plans, modeled on the Banff Management Plan, have been approved and are ready for tabling in the House.
Considerations
· Appropriate and extensive consultation has taken place with stakeholders on all of these issues. Decisions are required now in order to implement the direction initiated in the 1996 Banff Bow Valley study and reinforced in C-27 and by the Panel on the Ecological Integrity of Canada's National Parks.
· C-27 [the Bill to enact the Canada National Parks Act] is scheduled for Third Reading the week of October 16th in the Senate of Canada, and Royal Assent is expected shortly after. The regulatory authority for many of these decisions will soon exist in law.
· Decisions on these issues will provide clarity and certainty for Parks Canada and its partners, and will allow the PCA to devote its time to what its primary mandate is - protecting Canada's national parks for future generations.
· Recommendations for your consideration are attached. ... [emphasis added]
[9] Annexes A to D are entirely redacted in the Tribunal Record. Annex E, entitled "Existing Interim Ski Area Guidelines" is included in the Tribunal Record in full. Annex F entitled "Ski Area Policy" is partially redacted but the elements of the decision sought to be reviewed would appear to be extracted from recommendations contained in that Annex. Finally, all Annexes following Annex F are totally redacted.
[10] It is worthy of note that Annex F uses the term "policy" both in its title and in a subheading setting forth the recommended "policy". Throughout the hearing of this application for judicial review, expressions such as "policy guidelines" and "policy parameters" were used repeatedly to describe the decision under review.
[11] In any event, it was not in dispute before the Court that the decision sought to be reviewed, in the terms in which it was presented, was reasonably extracted from the broader decisions made by the Minister in relation to national parks policy on either the 18th or 19th of October, 2000.
BACKGROUND
[12] Both the affidavit filed on behalf of the Applicants, on which cross-examination was conducted, and the affidavit filed on behalf of the Respondents, on which there was no cross-examination, outline a long history of broadly based consultation and of direct discussions between the Applicants and, in one case, a predecessor of one of the Applicants, and Parks Canada. Suffice it to say that the Applicants' affiant documents that history through twenty-six (26) exhibits to his affidavit extending to some 1,084 pages. The Respondents' affiant documents the same history through a further ten (10) exhibits extending to 615 pages. Elements of the transcript of the cross-examination on the Applicants' affidavit that appear in the Respondents' Record provide a further four (4) exhibits extending to 195 pages.
[13] Despite the protracted consultations and negotiations, and the general recognition that the long range plans underlying the operation of the four (4) commercial ski areas are substantially out of date, the documentation before the Court discloses little progress toward the development of a consensus between the Applicants and Parks Canada on new and updated long range plans. This might in part be due to the fact that, while existing long range plans and the now abandoned long range plan in respect of Sunshine Village each provide for capacity limits, as recently as May of 2001, only the Lake Louise ski area was operating at or near its capacity limit. At that time, the Lake Louise ski area was already the largest of the ski areas in Banff and Jasper National Parks and was one of the largest ski areas in Canada.[7]
[14] On the 26th of April, 1999, the Honourable Andy Mitchell, then Secretary of State (Parks), released the recommendations of the Outlying Commercial Accommodation Panel on draft ski areas guidelines for national parks. A news release issued that day[8] disclosed that the Minister announced a number of decisions based on that Panel's recommendations. Those decisions are recorded in the news release as including the following:
· No new ski areas will be permitted in national parks. However, existing ski areas are recognized as the cornerstone of winter tourism in the mountain parks and will be allowed to continue.
· Maintenance of the ecological integrity of our national parks is our primary responsibility, ski areas will be managed accordingly. Their Long Range Plans must be capable of assessing the cumulative impacts of ski area development.
· Ski areas management will be consistent with the principles outlined in the June 26, 1998 announcement of new protection measures for Canada's National Parks: a) appropriate use; b) clear limits to development; c) management practices reflecting their location in a national park; and, d) no net negative environmental impact.
· Operating practices of the highest environmental standards and quality will be developed and integrated by the ski operators.
· Replacement and upgrade of existing facilities will be permitted only if it does not result in an increase in the ski area capacity established in existing Long Range Plans.
· No new development will be permitted if it results in an increase in the ski area capacity established in existing Long Range Plans.
· New development will only be considered if it is covered in an existing Long Range Plan.
· Cumulative impact assessment of new development projects must consider the effects of other current and anticipated projects.
· Ski area parking lots will not be allowed to expand beyond their existing footprint except onto non-vegetated, previously disturbed lands.
· A review to confirm the current ski area capacity at all ski areas will be completed within the next 4 months.
· Ski areas regulations will be developed and will address issues such as:
- Compliance
- Enforcement
- Penalties
- Performance bond
[emphasis added]
[15] The news release continued:
Mr. Mitchell further announced that Parks Canada will work with a special team of advisors to collect views and feedback on the remainder of the OCA Panel's recommendations. Their work will be completed June 30, 1999 and will form the basis for the preparation of ski area guidelines which will be finalized by the end of September 1999, and the preparation of a ski area maintenance and operations manual which will be completed by the ski area operators within a year. ...
[16] In a pattern often reflected in the voluminous material before the Court, none of the steps outlined in the foregoing quotation would appear to have been achieved within the time lines indicated. Indeed, the Applicants or , in one case a predecessor, sought judicial review of some elements of the decision of the 26th of April, 1999[9]. That application for judicial review was eventually discontinued.
[17] The Respondents' affiant attests in relation to the "impasse" resulting from the decision of the 26th of April, 1999:
I was personally involved in consultations with the Applicants intended to resolve this impasse. It was my clear understanding from this, and in particular from my discussions with representatives of the Applicants, that the Applicants would accept the parameters which are now challenged in this most recent litigation - with the possible exception of that parameter applying to parking lots.[10]
[18] In the next following paragraph of his affidavit, the Respondents' affiant recites the fact that, as a result of the decision here under review, the Respondents anticipated that the Applicants, presumably in cooperation with Parks Canada, would finalize new Long Range Plans by October of 2002. Once again, this expectation proved to be very substantially optimistic. Nothing in the material now before the Court and nothing in the presentations of counsel before the Court on this application for judicial review would indicate any significant progress in the development of new Long Range Plans for the four (4) commercial ski areas operated by the Applicants.
THE ISSUES
[19] The points in issue on this application for judicial review, as disclosed in the Applicants' Memorandum of Fact and Law, are essentially the following:
1) Is the decision under review one that qualifies for judicial review under the Federal Courts Act?
2) If so, what is the applicable standard of review?
3) Did the Respondents act without jurisdiction, act beyond their jurisdiction, or refuse to exercise their jurisdiction in making the decision under review?
4) In making the decision under review, did the Respondents breach principles of natural justice and procedural fairness, including the audi alteram partem rule?
5) Did the Respondents err in law and jurisdiction by deciding to abandon, modify, or decommission projects at the four (4) ski areas without first complying with the Canadian Environmental Assessment Act?
[20] Counsel for the Respondents essentially accepted the foregoing issues without modification.
RELEVANT STATUTORY PROVISIONS
[21] The relevant portions of the Federal Court Act, now the Federal Courts Act, read as follows:
2. (1) In this Act,
2. (1) Les définitions qui suivent s'appliquent à la présente loi.
...
...
"federal board, commission or other tribunal" means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;
« _office fédéral_ » Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d'une prérogative royale, à l'exclusion de la Cour canadienne de l'impôt et ses juges, d'un organisme constitué sous le régime d'une loi provinciale ou d'une personne ou d'un groupe de personnes nommées aux termes d'une loi provinciale ou de l'article 96 de la Loi constitutionnelle de 1867.
...
...
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l'objet de la demande.
(2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.
(2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Cour fédérale peut, avant ou après l'expiration de ces trente jours, fixer ou accorder.
...
...
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas_:
a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer;
b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;
c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à la loi.
... [emphasis added]
... [je souligne]
[22] The following provisions of the National Parks Act are relevant to this application for judicial review.
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.
5. (1) Sous réserve de l'article 8.2, les parcs sont placés sous l'autoritédu ministre
(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.
(1.1) 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) Maintenance of ecological integrity through the protection of natural resources shall be the first priority when considering park zoning and visitor use in a management plan.
(1.2) En ce qui concerne le zonage du parc et l'utilisation par les visiteurs, il importe en premier lieu de préserver l'intégritéécologique et, à cette fin, de protéger les ressources naturelles.
(1.3) The Minister shall review the management plan of a park every five years and shall cause any amendments to the plan to be laid with the plan before each House of Parliament.
(1.3) Le ministre réexamine le plan de gestion de chaque parc tous les cinq ans et le fait déposer - avec ses modifications, le cas échéant - devant chaque chambre du Parlement.
(1.4) The Minister shall, as appropriate, provide opportunities for public participation at the national, regional and local levels in the development of parks policy, management plans and such other matters as the Minister deems relevant.
(1.4) Le ministre favorise, dans les cas indiqués, la participation du public, à l'échelle nationale, régionale et locale, à l'élaboration de la politique et des plans de gestion des parcs ainsi que des autres mesures qu'il juge utiles.
1.5) The Minister shall report to Parliament every two years on the state of the parks and progress towards establishing new parks.
1.5) Tous les deux ans, le ministre fait rapport au Parlement sur la situation des parcs et sur les mesures prises en vue de la création de parcs.
...
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8.3 (1) The portions of parks specified in Schedule III are hereby designated commercial ski areas.
8.3 (1) Les zones mentionnées à l'annexe III constituent des stations commerciales de ski.
(2) The Minister may not grant a lease or licence of occupation of public lands in a park, other than lands situated within a commercial ski area referred to in subsection (1), for the purpose of a commercial ski facility.
(2) Le ministre ne peut accorder de baux ou de permis d'occupation pour d'autres installations commerciales de ski.
(3) The Governor in Council may, by an order amending Schedule III, designate a portion of Banff National Park in the vicinity of Mount Norquay and in the vicinity of Sunshine Village Ski Area a commercial ski area, but that Schedule is not subject to subsequent amendment by the Governor in Council. [emphasis added]
(3) Le gouverneur en conseil peut, par décret, modifier l'annexe III une fois pour y ajouter la délimitation de la station de ski de Mont Norquay et de Sunshine Village, parc national Banff.
[je souligne]
[23] Section 8.2 of the Act, referred to in subsection 5(1), is not relevant for the purposes of this matter. All of the Applicants' commercial ski areas are specified in Schedule III to the National Parks Act and are therefore designated as commercial ski areas. While section 7 of the National Parks Act provides a very broad regulation making authority, counsel before me assured me that no regulations enacted under that authority are directly relevant for the purpose of this application for judicial review.
[24] The following provisions of the Canadian Environmental Assessment Act[11] are relevant for the purposes of this judicial review.
WHEREAS the Government of Canada seeks to achieve sustainable development by conserving and enhancing environmental quality and by encouraging and promoting economic development that conserves and enhances environmental quality;
WHEREAS environmental assessment provides an effective means of integrating environmental factors into planning and decision-making processes in a manner that promotes sustainable development;
Attendu_:
que le gouvernement fédéral vise au développement durable par des actions de conservation et d'amélioration de la qualité de l'environnement ainsi que de promotion d'une croissance économique de nature à contribuer à la réalisation de ces fins;
que l'évaluation environnementale constitue un outil efficace pour la prise en compte des facteurs environnementaux dans les processus de planification et de décision, de façon à promouvoir un développement durable;
WHEREAS the Government of Canada is committed to exercising leadership within Canada and internationally in anticipating and preventing the degradation of environmental quality and at the same time ensuring that economic development is compatible with the high value Canadians place on environmental quality;
que le gouvernement fédéral s'engage à jouer un rôle moteur tant au plan national qu'au plan international dans la prévention de la dégradation de grande valeur qu'accordent les Canadiens à l'environnement;
WHEREAS the Government of Canada is committed to facilitating public participation in the environmental assessment of projects to be carried out by or with the approval or assistance of the Government of Canada and providing access to the information on which those environmental assessments are based;
que le gouvernement fédéral s'engage à favoriser la participation de la population à l'évaluation environnementale des projets à entreprendre par lui ou approuvés ou aidés par lui, ainsi qu'à fournir l'accès à l'information sur laquelle se fonde cette évaluation,
2. (1) In this Act,
2. (1) Les définitions qui suivent s'appliquent à la présente loi.
...
...
"federal authority" means
(a) a Minister of the Crown in right of Canada,
« _autorité fédérale_ »
a) Ministre fédéral;
...
...
"environmental assessment" means, in respect of a project, an assessment of the environmental effects of the project that is conducted in accordance with this Act and the regulations;
...
« _évaluation environnementale_ » Évaluation des effets environnementaux d'un projet effectuée conformément à la présente loi et aux règlements.
...
"project" means
(a) in relation to a physical work, any proposed construction, operation, modification, decommissioning, abandonment or other undertaking in relation to that physical work, or
« _projet_ » Réalisation - y compris l'exploitation, la modification, la désaffectation ou la fermeture - d'un ouvrage ou
...
...
"proponent", in respect of a project, means the person, body, federal authority or government that proposes the project;
« _promoteur_ » Autorité fédérale ou gouvernement, personne physique ou morale ou tout organisme qui propose un projet.
...
...
"responsible authority", in relation to a project, means a federal authority that is required pursuant to subsection 11(1) to ensure that an environmental assessment of the project is conducted;
...
« _autorité responsable_ » L'autorité fédérale qui, en conformité avec le paragraphe 11(1), est tenue de veiller à ce qu'il soit procédé à l'évaluation environnementale d'un projet.
...
4. The purposes of this Act are
(a) to ensure that the environmental effects of projects receive careful consideration before responsible authorities take actions in connection with them;
(b) to encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy;
4. La présente loi a pour objet_:
a) de permettre aux autorités responsables de prendre des mesures à l'égard de tout projet susceptible d'avoir des effets environnementaux en se fondant sur un jugement éclairé quant à ces effets;
b) d'inciter ces autorités à favoriser un développement durable propice à la salubrité de l'environnement et à la santé de l'économie;
(b.1) to ensure that responsible authorities carry out their responsibilities in a coordinated manner with a view to eliminating unnecessary duplication in the environmental assessment process;
(c) to ensure that projects that are to be carried out in Canada or on federal lands do not cause significant adverse environmental effects outside the jurisdictions in which the projects are carried out; and
(d) to ensure that there be an opportunity for public participation in the environmental assessment process.
b.1) de faire en sorte que les autorités responsables s'acquittent de leurs obligations afin d'éviter tout double emploi dans le processus d'évaluation environnementale;
c) de faire en sorte que les éventuels effets environnementaux négatifs importants des projets devant être réalisés dans les limites du Canada ou du territoire domanial ne débordent pas ces limites;
d) de veiller à ce que le public ait la possibilité de participer au processus d'évaluation environnementale.
5. (1) An environmental assessment of a project is required before a federal authority exercises one of the following powers or performs one of the following duties or functions in respect of a project, namely, where a federal authority
(a) is the proponent of the project and does any act or thing that commits the federal authority to carrying out the project in whole or in part;
(b) makes or authorizes payments or provides a guarantee for a loan or any other form of financial assistance to the proponent for the purpose of enabling the project to be carried out in whole or in part, except where the financial assistance is in the form of any reduction, avoidance, deferral, removal, refund, remission or other form of relief from the payment of any tax, duty or impost imposed under any Act of Parliament, unless that financial assistance is provided for the purpose of enabling an individual project specifically named in the Act, regulation or order that provides the relief to be carried out;
5. (1) L'évaluation environnementale d'un projet est effectuée avant l'exercice d'une des attributions suivantes_:
a) une autorité fédérale en est le promoteur et le met en oeuvre en tout ou en partie;
b) une autorité fédérale accorde à un promoteur en vue de l'aider à mettre en oeuvre le projet en tout ou en partie un financement, une garantie d'emprunt ou toute autre aide financière, sauf si l'aide financière est accordée sous forme d'allègement - notamment réduction, évitement, report, remboursement, annulation ou remise - d'une taxe ou d'un impôt qui est prévu sous le régime d'une loi fédérale, à moins que cette aide soit accordée en vue de permettre la mise en oeuvre d'un projet particulier spécifié nommément dans la loi, le règlement ou le décret prévoyant l'allègement;
(c) has the administration of federal lands and sells, leases or otherwise disposes of those lands or any interests in those lands, or transfers the administration and control of those lands or interests to Her Majesty in right of a province, for the purpose of enabling the project to be carried out in whole or in part; or
c) une autorité fédérale administre le territoire domanial et en autorise la cession, notamment par vente ou cession à bail, ou celle de tout droit foncier relatif à celui-ci ou en transfère à Sa Majesté du chef d'une province l'administration et le contrôle, en vue de la mise en oeuvre du projet en tout ou en partie;
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[25] It was not in dispute before me that, in respect of a "project" within any of the commercial ski areas of the Applicants, the appropriate Applicant would be the proponent and the Minister would be the "responsible authority". It was further not in dispute that any new long range plan for a commercial ski area would likely contemplate "projects" and would require a "comprehensive study".
ANALYSIS
1) Is the decision sought to be reviewed reviewable under the Federal Courts Act?
[26] As earlier noted in these reasons, the decision under review is in the nature of "policy guidelines" or "policy parameters" to govern the development of new long range plans for the commercial ski areas in Banff and Jasper National Parks. Thus, it might be seen not to be "a decision or an order of a federal board, commission or other tribunal..." within the contemplation of subsection 18.1(2) of the Federal Courts Act.
[27] In Morneault v. Canada (Attorney General)[12], Justice Stone, for the Court, wrote at paragraph [42]:
...Judicial review under section 18.1 is not limited to a "decision or order". This is clear from subsection 18.1(1) which enables the Attorney General of Canada and "anyone directly affected by a matter" to seek judicial review. It is plain from the section as a whole that, while a decision or order is a "matter" that may be reviewed, a "matter" other than a decision or order may also be reviewed. ... I am satisfied that the respondent [here the equivalent of the Applicants] is directly affected by the findings and that they are amenable to review under section 18.1. The findings are exceptionally important to the respondent because of the impact on his reputation. ... [emphasis added, some text and one citation omitted]
[28] I am satisfied that the decision here under review is of exceptional importance to the Applicants, not because of the impact of the decision on their reputations, but because of the potential impact on their business interests.
[29] The Court went on to consider the issue of the origin of the "matter" there before it. Justice Stone wrote at paragraph [43]:
To be reviewable under section 18.1 a "matter" must yet emanate from "a federal board, commission or other tribunal". Such was the case in Krause, .... The phrase "federal board, commission or other tribunal" is defined in section 2 of the Act to mean "any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament". ... [emphasis added]
[30] On the facts of this application for judicial review, I am satisfied that the Minister, in making the decision under review, was a person exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament, the National Parks Act. Thus, she falls within the definition "federal board, commission or other tribunal". Further, within the framework of subsection 18.1(1) of the Federal Courts Act, I am satisfied that the Minister, in making the decision under review dealt with a "matter" and that the Applicants are persons "...directly affected by [the] matter" in a manner that is exceptionally important to them. In the result, I am satisfied that the decision sought to be reviewed is amenable to judicial review by this Court under sections 18 and 18.1 of the Federal Courts Act. I did not hear counsel for the Respondents to strenuously appose such a conclusion. Rather, counsel for the Respondents strenuously urged that, on an application for judicial review such as this, given the nature of the decision under review, great deference is owed by this Court to the decision-maker.
[31] I am satisfied that my conclusion regarding jurisdiction is consistent with the more recent decision of this Court in Larny Holdings Ltd. v. Canada (Minister of Health)[13] where Justice Nadon, now of the Federal Court of Appeal, wrote at paragraph [18]:
Mr. Justice Stone's remarks in Morneault, ... like those of Décary J.A. in Gestion Complexe, ..., are to the effect that judicial review under section 18 of the [Federal Courts] Act must be given a broad and liberal interpretation, as a result of which a wide range of administrative actions will fall within the Court's judicial review mandate. It is also clear that judicial review is no longer restricted to decisions or orders that a decision maker was expressly charged to make under the enabling legislation. Rather, judicial review will extend to decisions or orders that determine a party's rights, even if the decision at issue is not the ultimate decision. It also follows from the Court of Appeal's decision in Morneault, ..., that the word "matter" found in section 18.1 of the Act is not restricted to "decisions or orders", but encompasses any matter in regard to which a remedy might be available under section 18 or subsection 18.1(3). [citations omitted]
[32] It certainly was not in issue before me that, if the Applicants were to be successful on this application for judicial review, a remedy would be available to them within the scope of subsection 18.1(3) of the Federal Courts Act.
2) What is the Applicable Standard of Review?
[33] Counsel for the Applicants urged that the appropriate standard of review is correctness while counsel for the Respondents urged that the appropriate standard of review is patent unreasonableness. For the purposes of this issue question, I am satisfied that there are two (2) distinct aspects of the decision under review, the first being whether or not the Minister had the jurisdiction to make the decision under review and the second being, assuming jurisdiction, whether or not the decision under review is sustainable.
[34] The first issue question, that is, whether or not the Minister had the authority to make the decision under review is, I am satisfied, a pure question of law in the interpretation of her role under the National Parks Act. On that issue, I am satisfied that the appropriate standard of review is correctness.
[35] Applying the pragmatic and functional approach and the four (4) contextual factors on which it is based, namely, the presence or absence of a privative clause or statutory right of appeal, the expertise of the tribunal, here the Minister, relative to that of the reviewing Court on the issue in question, the purpose of the legislation generally and of the provision or provisions under which she purported to act in particular, and, finally, the nature of the question, law, fact or mixed law and fact[14], I reach the following conclusions. First, there is no privative clause or statutory right of appeal provided under the National Parks Act. Secondly, the Minister can hardly be said, with great respect, to have greater expertise on statutory interpretation than does this Court. On the other hand, her expertise on National Parks policy and administration, management and control, as the responsible Minister, warrants substantial deference. Thirdly, the purpose of the National Parks Act and the provision thereof conferring a broad power of administration, management and control of the National Parks on the Minister with a view to ensuring that they are maintained and made use of so as to leave them unimpaired for the enjoyment of future generations would, I am satisfied, once again warrant significant deference to the Minister in the exercise of the authority conferred on her. That being said, the authority conferred on her does not extend, of itself, to the interpretation, as a matter of law, of her statutory mandate. That leads to the fourth contextual factor being the nature of the question, the interpretation of the National Parks Act itself. I am satisfied that the last of the four (4) contextual factors, the nature of the question, is the governing factor in determining the question of standard of review of the Minister's authority to act as she did. As earlier indicated, I am satisfied that that question must be reviewed on a standard of correctness.
[36] I reach a different conclusion with regard to review of the decision of the Minister, assuming her authority to make it. As forecasted in the preceding paragraph, I am satisfied that great deference is owed in that regard.
[37] In Maple Lodge Farms v. Government of Canada[15], Justice McIntyre, for the Court, wrote at pages 6 to 8:
There is nothing improper or unlawful for the Minister charged with responsibility for the administration of the general scheme provided for in the Act and Regulations to formulate and to state general requirements for the granting of import permits. It will be helpful to applicants for permits to know in general terms what the policy and practice of the Minister will be. To give the guidelines the effect contended for by the appellant would be to elevate ministerial directions to the level of law and fetter the Minister in the exercise of his discretion. Le Dain J. dealt with this question at some length and said, at p. 513:
The Minister may validly and properly indicate the kind of considerations by which he will be guided as a general rule in the exercise of his discretion ..., but he cannot fetter his discretion by treating the guidelines as binding upon him and excluding other valid or relevant reasons for the exercise of his discretion ... .
...
In construing statutes such as those under consideration in this appeal, which provide for far-reaching and frequently complicated administrative schemes, the judicial approach should be to endeavour within the scope of the legislation to give effect to its provisions so that the administrative agencies created may function effectively, as the legislation intended. In my view, in dealing with legislation of this nature, the courts should, wherever possible, avoid a narrow, technical construction, and endeavour to make effective the legislative intent as applied to the administrative scheme involved. It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. [citations and some text omitted]
[38] In Canadian Assn. of Regulated Importers v. Canada (Attorney General)[16], Justice Linden, for the Court, wrote at page 255:
The first issue is whether the Minister's issuance of the notice to importers ... was a discretionary decision in the nature of policy or legislative action, which is virtually unreviewable, or whether it was the exercise of a statutory power, reviewable according to the ordinary principles of administrative law. The Trial Judge held that it was the exercise of a statutory power and hence reviewable in the ordinary way, wherefrom she proceeded to quash the decision. With respect, I am of a different view - that the promulgation of the notice was a discretionary act in the nature of a policy guideline and hence was largely immune from review.
[39] Justice Linden continued at page 257:
After all, these policy guidelines are not regulations; they may be easily changed from time to time, depending on the economic and political climate as well as the international situation. They are a useful guide only, which is as it should be.
...
Although the Trial Judge was correct in noting that these guidelines would cause economic loss to certain parties, they were, nevertheless, in my view, discretionary policy guidelines, and hence, within the purview of the Minister and not subject to ordinary review, save according to the three exceptions set out in Maple Lodge Farms.
[40] In Canadian Parks and Wilderness Society v. Canada (Minister of Canadian Heritage)[17] Justice Evans, for the Court, considered at length the standard of review of a decision of the same Minister of Canadian Heritage whose decision is here under review but, on the facts of that matter, her discretionary decision, made under the Canada National Parks Act, involved the issuance of a permit for a winter road through Wood Buffalo National Park. After specific reference to Dr. Q. v. College of Physicians and Surgeons of British Columbia[18], Justice Evans applied a standard of patent unreasonableness.
[41] While the Canadian Parks and Wilderness decision, at a factual level, dealt with a specific discretionary decision, I am satisfied that all three of the foregoing authorities are applicable on the facts of this matter where the decision under review is of a more general nature and much more in the nature of a policy direction or of the establishment of policy parameters than in the nature of a specific discretionary decision.
[42] For the foregoing reasons, I am satisfied that the standard of review of the question of whether or not the decision of the Minister that is under review was open to her is patent unreasonableness.
3) Did the Respondent act without jurisdiction, beyond her jurisdiction, or refuse to exercise her jurisdiction in making the decision under review
[43] On the facts of this matter, this issue is restricted to acting without jurisdiction or beyond jurisdiction. The question of a refusal to exercise jurisdiction does not arise.
[44] Section 4 and subsection 5(1) of the National Parks Act are quoted earlier in these reasons. Section 4, in addition to providing a dedication of the National Parks of Canada to the people of Canada, provides that they shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations. Subsection 5(1), which is made subject to section 8.2, provides that the administration, management and control of the parks shall be under the direction of the Minister. Counsel before me were in agreement that section 8.2 is irrelevant for the purposes of this matter.
[45] In Canadian Parks and Wilderness Society v. Canada[19], Justice Evans wrote at paragraphs [40] and [41]:
...Responsibility is not power. However, it will often be ineffective to confer responsibility without also granting the power necessary to discharge it. Responsibility for the administration, management and control of parks, including the administration of public lands in parks, without the power to do anything would, in my opinion, deprive the statutory conferral of responsibility of much practical utility.
Parliament is generally taken to intend to confer the powers necessary to give efficacy to the administrative schemes that it creates. One of the best-known modern judicial statements of this approach to the interpretation of legislation is found in the reasons of McIntyre J., when writing for the Court in Maple Lodge Farms Ltd. v. Canada, ...:
In construing statutes ... which provide for far-reaching and frequently complicated administrative schemes, the judicial approach should be to endeavour within the scope of the legislation to give effect to its provisions so that the administrative agencies created may function effectively, as the legislation intended. In my view, in dealing with legislation of this nature, the courts should, wherever possible, avoid a narrow, technical construction, and endeavour to make effective the legislative intent as applied to the administrative scheme involved.
[citation omitted]
[46] The foregoing extract from reasons of Justice McIntyre in Maple Lodge Farms[20] is quoted earlier in these reasons, in a broader context, and supports an approach to the interpretation of the relevant provisions of the National Parks Act that renders effective the intent of Parliament in vesting the Minister with administrative responsibility. Maple Lodge Farms cautions that a Minister cannot fetter his or her discretion by treating guidelines issued by him or her as binding on him or her or a successor Minister. It further cautions that ministerial guidelines or parameters such as those here at issue must be made in good faith and, where required, in accordance with the principles of natural justice and not upon the basis of considerations irrelevant or extraneous to the statutory purpose. Apart from such limitations, it supports the view that exercise of a broad statutory power in support of an equally broad statutory mandate or responsibility such as that here reflected in subsection 5(1), of the National Parks Act directed to the objective provided in section 4, should not be interfered with.
[47] On the facts of this matter, I am satisfied that the responsibility conferred on the Minister by subsection 5(1) of the National Parks Act, directed to the objective set out in section 4, against a standard of review of correctness, is sufficient authority to support the issuance by the Minister of what I am satisfied are policy guidelines or policy parameters reflected in the decision under review. It is trite to say that the Minister could not fetter her own discretion or that of any successor Minister if a case were presented demonstrating that the guidelines or parameters under review produce an unwarranted result. But that question is not now before the Court. Notwithstanding the rather absolute and arbitrary nature of some aspects of the guidelines or parameters, there is nothing before me to indicate that the Minister or any successor to her would regard herself or himself as forever precluded from adapting to the facts of a particular situation that warranted variation of the guidelines or parameters.
[48] Against a standard of review of correctness, I am satisfied that a decision in the nature of that here under review was open to the Minister. Against a standard of review of patent unreasonableness, I am satisfied that the specific decision adopted by the Minister was open to her.
4) Did the Minister breach the principles of natural justice and procedural fairness, including the audi alteram partem rule?
[49] I am satisfied that the answer to this issue question is "no". As earlier indicated in these reasons, the decision under review was preceded by extensive public consultations involving the Applicants and extensive bilateral discussions between the Applicants and Parks Canada. The previous guidelines or parameters issued by the Honourable Andy Mitchell in April of 1999 forecasted the direction in which the Minister was moving. While that decision was also attacked by judicial review, that judicial review was discontinued. As noted earlier in these reasons, the Respondents' affiant attested to the fact that he was personally involved in consultations with the Applicants intended to resolve the impasse that arose out of that earlier decision. As earlier noted, he attested:
It was my clear understanding from this, and in particular from my discussions with representatives of the Applicants, that the Applicants would accept the parameters which are now challenged in this most recent litigation - with the possible exception of that parameter applying to parking lots.
[50] While the Applicants present a different picture of the extent and substance of the consultation between themselves and Parks Canada representatives following the earlier decision as to guidelines or parameters, the Applicants chose not to cross-examine the Respondents' affiant on the foregoing extract from his affidavit or, indeed, on any aspect of his affidavit. I find no basis on which to question the substance of the Respondents' affiant's attestation regarding consultations following the April 26, 1999 decision and the impression with which he was left following those consultations. The Respondents' affiant was a senior public servant in the Parks Canada Agency with responsibilities related directly to the management of Banff and Jasper National Parks and other Mountain Parks. I am prepared to assume that he was directly involved in the provision of advice to the Minister that led to the decision under review. In the result, I am further prepared to assume that his impression of the outcome of consultations with the Applicants following the April 26, 1999 decision would have been made known to the Minister.
[51] Finally on this issue, I am not satisfied that the appropriate content of the principles of natural justice and procedural fairness, including the audi alteram partem rule, on all the facts of this matter, imposed an obligation on the Minister to disclose the decision under review in draft form to the Applicants and to provide them with an opportunity to respond to the draft, prior to her adoption of the decision under review. It is trite law that the content of the duty of procedural fairness varies with the circumstances of the case. Here, given the extensive history of public consultations and private discussions between the Applicants and the Parks Canada Agency, the prior decision of April 26, 1999 and the nature of the decision, policy guidelines or parameters, I am satisfied that the content of the duty of fairness owed by the Minister to the Applicants was not extensive and was fulfilled on the facts of this matter.
5) Did the Respondents err in law and jurisdiction by deciding to abandon, modify, or decommission projects at the Four Ski Areas without first complying with the Canadian Environmental Assessment Act?
[52] Against the provisions of the Canadian Environmental Assessment Act quoted earlier in these reasons, as well as certain other provisions that counsel for the Applicants urges supplement the impact of the quoted provisions on the facts of this matter, counsel urges that the Minister erred in a reviewable manner in publishing the decision under review without first complying with the Canadian Environmental Assessment Act. More specifically, counsel urges that the impact of the Minister's decision was to decommission, force the abandonment of or substantially modify existing projects without first ensuring that a comprehensive study under the terms of the Canadian Environmental Assessment Act was carried out. By contrast, counsel for the Respondents urges that the decision under review simply does not decommission, force the abandonment of, or the modification of, any existing projects in the four (4) commercial ski areas in Banff and Jasper National Park.
[53] Throughout these reasons, I have noted that during the hearing of this application for judicial review, expressions such as "policy guidelines" and "policy parameters" were used repeatedly to describe the decision under review. I am satisfied that the two (2) descriptors are appropriate to the decision under review. Given the totality of the evidence before the Court, and the nature of the decision under review, I cannot conclude that the decision resulted in the decommissioning of, or forced the abandonment of, or the modification of, any "existing project" in any of the four (4) commercial ski operations in Banff and Jasper National Park. In the result, I conclude that the decision under review was in no way incompatible with giving full effect to the Canadian Environment Assessment Act.
[54] In the result, the answer to this final issue question is an emphatic "no".
CONCLUSION
[55] Based upon the foregoing analysis, this application for judicial review will be dismissed.
COSTS
[56] Counsel for both the Applicants and the Respondents expressed at hearing their agreement that costs should follow the event on this application for judicial review. Counsel for the Respondents, in particular, urged that if the Respondents were successful, costs should go in their favour and should be fixed rather than left for assessment. He urged a fixed figure of $2,000.00 or $3,000.00.
[57] In the exercise of my discretion, costs will be awarded in favour of the Respondents, fixed in the amount of $3,000.00, inclusive of all disbursements.
________________________________
J.F.C.
Ottawa, Ontario
April 23, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2167-00
STYLE OF CAUSE: PETER G. WHITE MANAGEMENT LTD. ET AL v.
SHEILA COPPS ET AL
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: March 23 & 24, 2004
REASONS BY THE HONOURABLE MR. JUSTICE GIBSON
APPEARANCES:
Mr. Daniel P. Carroll FOR APPLICANTS
Mr. Kirk N. Lambrecht FOR RESPONDENTS
SOLICITORS OF RECORD:
Field LLP - Edmonton, AB FOR APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENTS
[1] R.S.C. 1985, c. F-7.
[2] See Sunshine Village Corp. v. Canada (Minister of Canadian Heritage) [1998] F.C.J. No. 1779 (Q.L.)(F.C.T.D.).
[3] R.S.C. 1985, c. N-14.
[4] S.C. 2000, c. 32.
[5] S.C. 1998, c. 31.
[6] SOR/98-106.
[7] Affidavit of Charles Zinkan, paragraph 12, Respondents' Record, Volume II, page 029.
[8] Applicants' Record, Volume III, Tab V, pages 1001and 1002.
[9] Court File: T-928-99.
[10] Respondents' Record, Volume II, page 031, paragraph 31.
[11] S.C. 1992, c. 37.
[12] (2000), 189 D.L.R. (4th) 96 (F.C.A.).
[13] [2003] 1 F.C. 541.
[14] See: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] S.C.R. 982 at paragraphs [29] to [38].
[15] [1982] 2 S.C.R. 2.
[16] [1994] 2 F.C. 247 (C.A.).
[17] [2003] 4 F.C. 672 (F.C.A.)
[18] [2003] 1 S.C.R. 226.
[19] Supra, note 17.
[20] Supra, note 15.