Date: 19990825
Docket: T-1557-98
BETWEEN:
| BRIAN YOUNG, ROCKEY MOUNTAIN RIVER |
GUIDES LTD., and JASPER NATIONAL PARK
PROFESSIONAL RIVER OUTFITTERS ASSOCIATION
Applicants
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
- and -
JASPER ENVIRONMENTAL ASSOCIATION SOCIETY
Intervenor
REASONS FOR ORDER
TEITELBAUM, J:
INTRODUCTION
[1] This application for judicial review arises out of a decision (the Decision) announced on or about the 30th of June 1998 by the Minister of Canadian Heritage (the Minister) to close the Maligne River (the River) in Jasper National Park to all boating activity, beginning in 1999.
FACTS
[2] The decision was announced by way of a news release wherein the respondent announced that the "security of the pre-nesting, nesting and brooding phases of the harlequin ducks could not be assured on the basis of current scientific knowledge."
[3] The Harlequin duck is a migratory bird found along the Atlantic and Pacific coasts of North America. The western population of the Harlequin duck winters in the coastal regions of the Pacific Ocean and migrates in spring to the Rocky Mountains following the melt of the winter snow pack.
[4] Harlequin ducks occupy a narrow ecological niche and have low reproduction potential. The material life cycle of the Harlequin duck following migratory flight involves arrival, foraging, pair bonding, incubation, hatching and brood rearing. The mid-Maligne River is a preferred habitat area for Harlequin ducks within the Maligne Valley.
[5] There is a stable population of approximately thirty to forty Harlequin ducks that belong in the Maligne River where rafting activity takes place. The Maligne Lake Outlet is known as an area of unusually high concentration for Harlequin ducks. Similar concentrations of Harlequin ducks in Alberta are known only on two other rivers in Alberta, neither of which is within Jasper National Park.
[6] In 1986 commercial whitewater rafting activities began on the mid-Maligne section of the mid-Maligne River. This activity grew from six trips in 1986 to nearly 1700 in 1991. Commercial boating on the River dates back to the 1970's.
[7] The applicants offer commercial rafting trips to Park visitors in this area each year from mid-June to sometime in September.
[8] Environmental assessments conducted in relation to the rafting activity in 1986 recommended continuing environmental monitoring.
[9] In 1991, members of the Jasper Environmental Association (the JEA), the intervener, notified Parks Canada of their observations of declining numbers of Harlequin ducks on the River, and encouraged Parks Canada to monitor the ducks to determine the cause of the population decline.
[10] Consequently, a further environmental assessment regarding commercial rafting on the Maligne River was prepared in 1991. The assessment indicated that rafting activity had expanded since 1986, with an adverse impact on Harlequin ducks along the Maligne River.
[11] In 1993, closure of the River for a portion of the year was recommended. The potential for additional mitigative measures was identified as research on Harlequin ducks in the Maligne River area continued.
[12] Since 1993, watercraft on certain parts of the Maligne River and land access from certain parts of the shoreline to the River have been prohibited in the months of May and June to protect the Harlequin ducks" use of the area.
[13] A legal challenge to this closure brought by the applicants in 1993 was abandoned prior to any hearing on the merits, and an action for damages was filed but never pursued beyond the close of pleadings. Scientific research on Harlequin ducks in Jasper National Park was conducted in the period of 1991 to 1996 and at all material times the information obtained was shared with the applicants.
[14] The knowledge base respecting the mid-Maligne River gathered in this research was used in the development of options for the management of visitor use of the mid-Maligne River.
[15] The Jasper National Park Guidelines for River Use Management reserved the decision on use of the mid-Maligne River to a time following public consultation on a series of options presented as a basis for discussion. The four options identified were presented in a separate publication entitled Options Analysis for the Mid-Maligne River in Jasper National Park.
[16] Both the Jasper National Park Guidelines for River Use Management and the Options Analysis for the Mid-Maligne River in Jasper National Park contain a report described as A Summary of Information on Harlequin Ducks. This Summary was prepared from a review of the scientific data then available and distributed to five experts on Harlequin ducks prior to release to ensure that the information was verified by independent review in the scientific community.
[17] During the period of public consultation, the applicants requested and were granted an extension of time to participate in the public consultation. They also requested specific information and were provided with this information. The applicants provided written submissions, including written reports from an expert in the field. The JEA also submitted written comments on the various options open to Parks Canada.
[18] Parks Canada analysed the submissions received and then prepared a package of materials, including a recommendation, for review and decision by the respondent Minister.
[19] The package included a Table comparing use options to the level of management certainty for protecting key life stages of the Harlequin ducks on the mid-Maligne River. The Questions and Answers component of the package provided the rationale for the Parks recommendation in response to the criticisms of the applicants. The Parks Canada recommendation noted that the commercial activities of the applicants would be allocated to other rivers in Jasper National Park more suitable for in stream use based on environmental and ecological conditions.
[20] The respondent Minister agreed with the recommendations. As a result, the applicants commenced this judicial review proceeding.
[21] This Court granted Intervener status to the JEA on conditions expressed in the Order of the Court dated January 12, 1999.
[22] The JEA is a nonprofit society registered under the Alberta Societies Act, the members of which all reside in the town of Jasper.
[23] The JEA is the only environmental organization in Jasper National Park, focussing exclusively on environmental issues which relate to and impact on the health of the park.
[24] For the last ten years, the JEA and its members have been particularly involved in issues concerning the management and preservation of the Maligne Valley and River in Jasper National Park.
[25] The JEA and its members have been studying the Maligne River Harlequin ducks since commercial rafting started.
[26] The National Parks Act, R.S.C. 1985, c. N-14 (the Act), was passed in 1930. Section 4 of the Act provides that National Parks are dedicated to the people of Canada for their benefit, education and enjoyment, and "shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations". Section 5 of the Act requires the Minister to develop a "management plan" for each national park in respect to resource protection, zoning and visitor use and to ensure "ecological integrity through the protection of natural resources".
[27] A number of Conventions were signed over the years by the Canadian government and many policies were developed by Parks Canada in order to protect the environment found in Jasper Park.
ISSUE
[28] Did the respondent, in deciding to close the mid-Maligne River to all watercraft use, violate a duty of fairness arising out of the legitimate expectation of consultation leading to a reason-based decision?
ARGUMENTS OF THE APPLICANTS
[29] The applicants submit that the evidence in this case shows that by both express undertaking by the Minister and course of conduct, the Minister provoked a legitimate expectation of public consultation of stakeholders and a fair and reasonable consideration in decision-making. They add that the failure to reach a fair decision based on the facts renders the decision void.
Lack of consultation prior to presenting options
[30] The applicants allege that through her representations and the process set out by the respondent in deciding the outcome of commercial rafting on the River, the respondent provided legitimate expectation of fairness to those involved in the process. They argue that this Court has a duty to ensure, as a matter of good administration, the expected decision-making process was respected, and in accordance with the National Parks Act.
[31] The applicants contend that the "options" chosen were unduly restrictive and all proceeded on the presumption that there is a causal connection between duck decline and rafting on the river. According to the applicants, no effort was made to explore other control devices. They submit that despite the call by the Association to open up the decision-making process with respect to the Options Analysis , by that time the "options" had already been fixed allowing for no meaningful consideration. The applicants allege that given the expectations of the stakeholders, such a limitation at the earliest date of the consulting process is a breach of standards of procedural fairness.
The decision-making standard was changed
[32] The applicants argue that the respondent applied a standard of assured zero effect on ecology to her decision process which offends the principles of fairness. According to the applicants such a standard is neither in keeping with the expectation provided to the applicants, nor with respect to the goals of the National Parks Act. The National Parks of Canada were not, are not, and will not be entirely undisturbed habitats.
No consultation on the basis of significant additional information
[33] The applicants contend that the lack of opportunity to comment on further information, identified as significant, is in breach of the principles of fairness. They submit that the options contained in the Options Analysis did not include or included very little new information. The applicants claim that, accordingly, options 1 and 3 must have been excluded from the decision-making process before the consultation process ever began and that option 2 could not have been a realistic consideration at the time of the Options Analysis since it could not be said to "assure" the security of Harlequin ducks.
A Closed Door Process of Decision-Making
[34] The applicants allege that they provided a position into the process that was unassailable in logic, and that the Minister chose to change the decision-making process and end consultations. They add that the initial complaint, and all of the studies undertaken by Parks Canada have associated only one variable: commercial rafting, but that the decision applies to both commercial rafting and kayaking. According to the applicants, this process breaches the principles of fairness.
ARGUMENTS OF THE RESPONDENT (Supported by the Intervenor)
Standard of Review
[35] The respondent submits that the case at bar falls within the spectrum of review standards in which patent unreasonableness is the appropriate standard of review. The respondent explains that the Minister responsible for the National Parks of Canada has broad statutory powers to administer, manage and control the park and the discretion to determine which matter should be the subject of opportunity for public participation. The respondent alleges that the existence of broad discretionary powers indicates that judicial deference is appropriate. The respondent contends that Parliament intended discretion to be a central feature in the operation of the National Parks and that the nature of the specific issue before the Minister in this case relative to the expertise of Parks Canada indicates that reasonableness is an appropriate standard of review.
[36] The respondent argues that since the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, but rather as a delicate balancing between different interests and considerations, then the appropriateness of court supervision diminishes.
The Doctrine of Legitimate Expectation
[37] The respondent submits that the doctrine of legitimate expectation cannot create substantive rights. The respondent adds that Parks Canada and the Minister responsible followed the procedure which the applicants could reasonably have expected to be followed as described in the Options Analysis document.
Lack of consultation prior to presenting options
[38] The respondent rejects the applicants" submission that the presentation of four primary options precluded meaningful consideration of other options. The respondent alleges that Parks Canada presented options for discussion and sought any new information that could be incorporated into its analysis and decision-making. The respondent contends that the fact the applicants" views were not accepted by Parks Canada does not mean that they were not given meaningful consideration.
The decision-making standard was changed
[39] The respondent traverses the applicants" submission that the standard zero effect on the ecology was introduced for some other standard. The respondent argues that the relocation of rafting activity from one area to another based upon environmental concern is a prudent action taken in the context of policy and legislation.
No consultation on the basis of significant additional information
[40] The respondent rejects the applicants" submission that they were not given any opportunity to comment on additional information provided during the consultation period. The respondent submits that there was no expectation that information received during the consultation period would be subject to another round of consultation.
A Closed Door Process of Decision-Making
[41] The respondent traverses the submission of the applicants to the effect that the decision-making in this case was a closed door process. The respondent alleges that the fact the public consultative process undertaken by Parks Canada would engage a polycentric expression of interests, and that these interests should be reflected in the decision-making process, is an expression of the transparency of the process.
Facts are not the cornerstone of the decision at issue
[42] The respondent contends that it is not the role of this Court in these proceedings to become an academy of science to arbitrate conflicting scientific predictions. According to the respondent, there is reasonable evidence that the Harlequin ducks are vulnerable to disturbance and strong scientific evidence that watercraft use disturbs these birds during courtship and foraging, reducing their feeding time and increasing their energy expenditure. The respondent adds that Parks Canada may reasonably consider the level of certainty associated with use options for the River and the potential effects of these options on the birds.
ORDER SOUGHT:
[43] The applicants request that this Court:
| a) declare the Minister"s decision void insofar as it has not been reached fairly, and; |
| b) issue an order in the nature of certiorari and allow the regime on the River to continue as it has been in years past. |
ANALYSIS
Standard of review
[44] The fundamental issue to be resolved in this case is to determine the appropriate standard of review of the Minister"s decision.
[45] In the most recent case of Baker v. Canada (Minister of Citizenship and Immigration)1, the Supreme Court of Canada held:The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected. The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker. Several factors are relevant to determining the content of the duty of fairness: (1) the nature of the decision being made and process following in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself. This list is not exhaustive.
[46] The case at bar is, of course, very different from the Baker case that dealt with a section 114(2) of the Immigration Act, that is, a Humanitarian and Compassionate hearing pursuant to the Immigration Act.
[47] What I take from the Baker case for the case at bar, are the factors to be considered by the Court in reviewing a Minister"s decision.
[48] First, I am satisfied, the Supreme Court establishes that the absence of a privative clause is only one of the factors involved in determining the standard of review and that other factors must also be considered.
[49] The Baker case also confirms that the expertise of the decision-maker is a factor militating in favour of deference. A third factor for consideration is the purpose of the provision in particular and of the Act as a whole.
[50] A fourth factor considers the nature of the problem in question, especially whether it relates to determination of law and/or facts.
[51] According to the Supreme Court (L"Heureux-Dubé J.), these factors (the list is not exhaustive) must be balanced to arrive at the appropriate standard of review. In the Baker case, the Supreme Court of Canada came to the conclusion that the appropriate standard of review was reasonableness simpliciter.
[52] The factors examined in the Baker case seem to be comparable to those in the case at bar. As is the case with the Immigration Act, the National Parks Act, has no privative clause. The Minister responsible for the National Parks of Canada or her delegate have some expertise relative to management of parks. Furthermore, the National Parks Act provides the Minister with broad statutory power to administer, manage and control Canada"s Parks. Parliament even appears to have intended discretion to be a central feature in the operation of the National Parks because of the importance of balancing human interests and environmental considerations. The issues raised in the applicants" argument seem to be based on the Minister"s appreciation of the evidence that was before the Minister. Consequently, the nature of the problem in this case seems to relate to determination of facts. In light of all these factors, it appears clear that the appropriate standard of review in the circumstances of this case is reasonableness.
Was the decision reasonable?
The doctrine of legitimate expectation
[53] It is trite law that legitimate expectation cannot create substantive rights. Although the applicants disagree with the substantive correctness of the decision, in considering all of the evidence, it appears the procedure which the applicants could reasonably have expected to be followed, was respected by the Minister.
Lack of consultation prior to presenting options
[54] There appears to be no evidence to the effect that the Minister did not consult stakeholders prior to presenting the four options. The fact that the applicants" views were not accepted by Parks Canada does not mean that they were not considered.
The decision-making standard was changed
[55] I am satisfied the Minister"s decision reflects the balancing of human interest and environmental concerns. Although the Minister has decided to close the Maligne River in Jasper National Park to all boating activity, she has given the applicants the opportunity of offering commercial rafting services in alternative river locations within the Park. The relocation of rafting activity from one area to another based on reasonable environmental concerns appears to be a prudent action, not a zero effect action.
No consultation on the basis of significant additional information
[56] It does not appear to me, from the evidence, that the Minister created any expectation that information received during the consultation period would be the subject of an additional round of consultation.
A Closed Door Process of Decision-Making
[57] It appears clear that the fact the public consultative process undertaken by Parks Canada would engage a polycentric expression of interests, and that these interests should be reflected in the decision-making process, is an expression of the transparency of the process.
Facts are not the cornerstone of the decision at issue
[58] The experts" evidence was analysed by the Minister who concluded that there is reasonable evidence that the Harlequin ducks are vulnerable to disturbance and strong scientific evidence that watercraft use disturbs these birds during courtship and foraging, reducing their feeding time and increasing their energy expenditure. The applicants demand solid scientific proof of a causal connection between rafting and the decline of the birds" population in the River. I am satisfied that what the applicants demand is an impossibility. I am satisfied that there are no absolute certainties in science, only probabilities and it was reasonable for the Minister to conclude that on the evidence, as a whole, the Harlequin ducks are vulnerable to disturbance.
[59] In conclusion, procedural fairness deals with procedure and practice during the decision-making process, not the results of that process. Most of the issues raised by the applicants relate to the substantive question of the validity and merits of the Minister"s decision, and not to the procedure followed by the Minister in making her decision. During the period of consultation, the applicants requested and were granted an extension of time to participate in the public consultation. They also requested specific information and were provided with this information. They submitted whatever evidence they wished to submit. I am satisfied all the evidence they provided was in fact considered. At least, I have no evidence that the evidence submitted by the applicants was not considered.
[60] The Minister must make a decision based on the evidence. This she did. It is unfortunate for the applicants that the Minister decided in a manner that the applicants" submissions were not accepted.
[61] The application for judicial review is denied with costs in favour of the respondent.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
August 25, 1999
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