Date: 20050429
Docket: T-23-04
Citation: 2005 FC 592
Ottawa, Ontario, April 29, 2005
Present: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
THE MORESBY EXPLORERS LTD. and
DOUGLAS GOULD
Applicants
and
THE ATTORNEY GENERAL OF CANADA
and COUNCIL OF THE HAIDA NATION
Respondents
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an application for judicial review pursuant to the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, relative to a decision made by Mr. Ernest Gladstone, Superintendent of the Gwaii Haanas National Park Reserve of Canada ("Gwaii Haanas" or the "Park"). That decision, made on or about December 3, 2003, granted Mr. Douglas Gould and The Moresby Explorers Ltd. (the "Applicants") a 2004 commercial business licence for the operation of a tour business in the South Moresby Island region of the Queen Charlotte Islands known as Gwaii Haanas. The licence provided a cap of 2,500 user-days/nights per year, a limit of 22 tour clients per day, and other aspects of a quota system.
[2] The application for judicial review was issued on January 7, 2004, naming the Attorney General of Canada as Respondent. Upon motion by the Council of the Haida Nation ("CHN"), an Order was issued on February 25, 2004, allowing it to intervene and participate as a Respondent in this application.
I. BACKGROUND
[3] Mr. Gould, originally a logger, began operating a commercial tourist guide and transport business in the southern part of Moresby Island in the summer of 1988. He started this enterprise as an individual and following the incorporation of his company, Moresby Explorers Ltd. in 1995, continued to provide tours as a corporate entity. The services available include kayak rentals, transportation, overnight tours, and guides for kayak and dive operations. The Moresby fleet includes a number of boats, forty kayaks and a floating camp located at Crescent Inlet, that is outside the northern boundary of Gwaii Haanas.
[4] The South Moresby Island is the southernmost of the two main islands that comprise the Queen Charlotte Islands. The population of these islands is approximately 5,000 persons, of which approximately 50% are of Haida origin.
[5] In late 1980, the CHN made a comprehensive land claim over the Queen Charlotte Islands, pursuant to the comprehensive claims process, which was accepted for negotiation by Canada on June 30, 1983. A statement of intent to negotiate was submitted by the CHN to the British Columbia Treaty Commission on December 15, 1993. On November 14, 2002, the CHN began an action in the British Columbia Supreme Court seeking a declaration of their aboriginal title to Haida Gwaii.
[6] On July 12, 1988, the governments of Canada and British Columbia executed a "Memorandum of Agreement for the Establishment of South Moresby National Park and National Marine Park, Queen Charlotte Islands, B.C." (the "Parks Agreements"). Pending the resolution of the CHN's overlying land claim, section 39 of the Parks Agreement contemplated the involvement of the CHN in the planning and implementation of initiatives relating to Gwaii Haanas and the National Marine Park, forming the basis for Canada to negotiate agreements with the CHN for cooperative management of these lands.
[7] On or about April 19, 1989, the government of British Columbia passed Order-in-Council No. 586, which transferred authority to manage Gwaii Haanas to the Canadian Parks Service, its Director General and Canadian Parks Service officers, enabling them to manage and administer the lands on behalf of British Columbia as if the lands were a recreation area under the Park Act, R.S.B.C. 1996, c. 344. This authorized the Director General to issue permits relative to the subject lands. On or about March 27, 1992, pursuant to Order-in-Council No. 438, administration and control of Gwaii Haanas was transferred from British Columbia to Canada. The Parks Agreement provided that there would be a delay between the transfer of administration and control of Gwaii Haanas and the National Marine Park from British Columbia to Canada, and the subsequent designation of these lands as national parks.
[8] Subsequently, on July 16, 1992, Order-in-Council P.C. 1992-1591 authorized the federal Minister of the Environment to enter into an agreement on behalf of Canada, with the CHN, concerning the management and operation of the archipelago, including Gwaii Haanas in the Queen Charlotte Islands. On or about January 30, 1993, Canada and the CHN entered the "Gwaii Haanas/South Moresby Agreement" (the "Gwaii Haanas Agreement") to cooperatively manage the archipelago, designated by the CHN as a Haida heritage site, covering the national park reserve area.
[9] The Gwaii Haanas Agreement provided for the establishment of a four person Archipelago Management Board (the "AMB"). Pursuant to section 4.2 of that Agreement, Canada and the CHN are to cooperate in the examination of "all initiatives and undertakings relating to the planning, operation and management of the archipelago". On behalf of Canada, the Superintendant of Gwaii Haanas co-chairs the AMB, together with a representative of the CHN. Two members are appointed by Parks Canada and two by the CHN. Section 9.2 of the Gwaii Haanas Agreement specifically provides for the preservation of Canada's right to assert its jurisdictional authority, as follows:
9.2 Nothing in this Agreement shall fetter or fetter [sic], or be deemed to fetter or limit, in any manner the rights, jurisdiction, authority, obligations or responsibilities of either party or their representatives, except to the extent of the requirement that all reasonable efforts must have been made to reach consensus through the process set out in section 5 of this Agreement.
[10] In accordance with the Gwaii Haanas Agreement, Parks Canada and the AMB established a business licensing process in Gwaii Haanas through the implementation of a quota policy. In 1995, the AMB encouraged tour operators to maintain records of their trips and number of clients, and participate in a voluntary business licensing system by which quota was issued to tour operators in order to access Gwaii Haanas.
[11] Pursuant to the time delay provided by the Parks Agreement, on March 28, 1995, Canada ultimately accepted the transfer of administration and control of Gwaii Haanas from British Columbia by Order-in-Council P.C. 1995-3/534. Gwaii Haanas was set aside as a national park reserve by Order-in-Council P.C. 1996-78, dated January 23, 1996, and became subject to the former Act, now the Canada National Parks Act, S.C. 2000, c. 32 (the "Act"), and the applicable regulations, on or about February 22, 1996. The laws of Canada apply to the terrestrial portion of Gwaii Haanas, above the ordinary high water mark.
[12] Following the designation of Gwaii Haanas as a national park reserve, a mandatory business licencing system and quota policy were adopted to replace the voluntary process that had been introduced in 1995. This mandatory business licensing system, implemented in 1996, involved the imposition of user quotas or allocations on commercial tour operators, distributed on the basis of user-days/nights.
[13] While both the voluntary and mandatory licensing systems were intended to regulate commercial tour operators' access to Gwaii Haanas, one of objectives of the mandatory system was to freeze business activities at existing levels pending an assessment of the impact of those activities on the Park's ecological and cultural integrity and the quality of the visitor experience in Gwaii Haanas. As part of the cooperative management of Gwaii Haanas pursuant to the Gwaii Haanas Agreement, the AMB reviewed all applications for business licences to obtain user quota for the Park. The business licenses and user quota were then issued by the Superintendent pursuant to the former regulations, now section 4.1 of the current National Parks of Canada Business Regulations, SOR/98-455, as amended by SOR/2002-370 (the "Regulations") promulgated under the former National Parks Act, R.S.C., 1985 c. N.-14 (now the Act).
[14] In February 1996, the AMB published a draft strategic management plan to support a thorough review of the impact of visitor use in Gwaii Haanas. This created a provisional annual visitor cap of 33,000 user-day/nights, based approximately on the level of historical use to that date. Under this new policy, only businesses that had operated in the area of the Gwaii Haanas prior to 1996 were eligible to apply for a business licence, and were only licensed to operate the same type and extent of business that they had previously operated, calculated on the basis of documented trips submitted under the voluntary licensing system. As well, a maximum group size of 12 persons per site was established, and a daily maximum limit of visitors anywhere in Gwaii Haanas was set at 175. As a result of this limitation on business activity at existing levels, no licenses were issued to new businesses. At this time, only one Haida-owned business was licensed to operate in Gwaii Haanas.
[15] The Applicants were issued a quota in 1996, however their entitlement to quota was reduced by the extent that their historic use of Gwaii Haanas originated from their float camp. At that time, the float camp was located outside the proposed National Marine Park. The justification for this limitation was that the float camp was not authorized to occupy the National Marine Park and accordingly, did not conform to acceptable uses or Parks Canada policy. In August 1997, the Ministry of Environment, Lands and Parks for British Columbia issued a notice of trespass to the Applicants, requiring them to remove the float camp from the designated National Marine Park.
[16] As part of the allocation review process conducted by the AMB, in February 1997, the AMB developed the policy, approved by Parks Canada, according to which businesses that had been inactive for three consecutive years would lose their business licence to operate in Gwaii Haanas and would lose the privilege to be granted a business licence as an existing operator. As well, in 1998, the AMB had reduced quota that had been allocated to operators, but not fully utilized by them. The allocation of quota was reduced from 16,756 to 13,778.
[17] At some time in 1998, the Applicants relocated their float camp to its present location outside Gwaii Haanas and in October of that year, applied for a 1999 business licence and user quota. A business licence and user quota of 1,597 user-days/nights for power boat tours and transport within Gwaii Haanas was issued to the Applicants by the then Superintendent, Stephen Langdon, on November 30, 1998. The Applicants challenged the 1999 user quota assigned to them, objecting in particular to the lack of quota for activities related to their float camp. In this regard, they commenced an application for judicial review on July 16, 1999. This application was dismissed as being out of time because it was not heard until after the expiry of the licence in question; see Moresby Explorers Ltd. v. Gwaii Haanas National Park Reserve, [2000] F.C.J. No. 1944 (T.D.) (QL) ("Moresby No. 1").
[18] In June 1998, the AMB considered the issue of the lack of Haida participation in the commercial tour industry in Gwaii Haanas. In October of that year, the AMB held a meeting with tour operators and indicated that it was considering three possible ways of allocating quota, that is based on the principle of need, the issue of merit and third, the question of a Haida right of first refusal.
[19] In March 1999, a final draft of the Gwaii Haanas Backcountry Management Plan ("the 1999 Backcountry Management Plan") was released. This required park reserve activities to be consistent with the former National Parks Act, supra and associated regulations, the Gwaii Haanas Agreement, Parks Canada principles and Gwaii Haanas principles and management goals. The final version of this plan was produced in September 1999.
[20] Under the 1999 Backcountry Management Plan, Parks Canada, in consultation with the AMB, reviewed and revised quota levels for Gwaii Haanas. In 1999, daily limits for independent travellers to Gwaii Haanas were increased by 25 persons per day; in 2000, those limits were increased again as recommended by the 1999 Back Country Management Plan. Additionally, Parks Canada implemented an overall maximum visitor use level of 33,000 user-days/nights for Gwaii Haanas on an annual basis. One third of the maximum overall user quota was set aside for Haida-owned businesses; Haida businesses must be a minimum of 51% Haida-owned and operated. Of the remaining 22,000 available user-days/nights, 11,000 were made available for non-Haida commercial tour operators and the remaining 11,000 were made available to individual visitors. This policy, introduced in May 1999, is described as the "Haida Allocation Policy" by the Respondent Attorney General and as the "Gwaii Haanas Agreement Policy" by the CHN. The Haida allocation of 11,000 user-days/nights is held communally through the Haida Tribal Society, for the benefit of all Haida.
[21] In July 2001, the Applicants successfully challenged by judicial review, the continued exclusion of their floating camp activities from the calculation of their user allocation. In a decision reported as Moresby Explorers Ltd. v. Canada (Attorney General), [2001] 4 F.C. 591 (T.D.) ("Moresby No. 2"), the Court found that the business licensing policy was intended to fix the activity level in Gwaii Haanas at its historic level while the park management plan was being developed and the carrying capacity of the Park assessed. The Court held that in refusing to recognize that the activities for which the Applicants sought quota were perfectly legal, the then Superintendent did not properly apply her own policy as it related to the Applicants. In the result, the Applicants' user allocation was increased from 1,597 user-days/nights in 2001 to 2,372 for 2002. Since that time, the Applicants have been issued 2,372 user-days/nights, with an over-booking buffer of 10% each season.
[22] Since the introduction of the mandatory licensing system in 1996, the formula for calculating commercial user allocation has changed. Parks Canada has monitored the use of quotas by businesses holding licenses to operate in Gwaii Haanas, in order to ensure that the quota is not being "wasted". Accordingly, in 2000 Parks Canada reevaluated the actual use levels of license holders and reassessed allocations to more accurately reflect existing use. The current formula, introduced in 2002, involved averaging the operator's best three years from 1996 to 2001 inclusive, with the addition of a further 10% for flexibility. As well, operators are allowed to exceed their allocation by a further 10% over-booking "buffer".
[23] On May 1, 2003, a 22 tour-client per day limit was implemented as part of the changes that were incorporated in the original 1999 Gwaii Haanas Backcountry Management Plan. As well, other restrictions were imposed on commercial tour operators and individual visitors to Gwaii Haanas, such as the maximum daily limit of 300 visitors established in 1999, of whom 200 may be tour clients during the peak summer season, and the "group size policy" introduced in 1996. The 22 tour-client per day limit was put in place following an extensive public consultation process, including a public meeting to which all tour operators were invited in November 2002 and the distribution of a public questionnaire in January 2003.
[24] The 2,500 user-days/nights allocation cap was also introduced in the 2003 Gwaii Haanas Backcountry Management Plan published in August 2003. The cap does not include the over booking buffer of 10% that is granted to every licence holder. Parks Canada and the AMB explained the rationale for the 2,500 user-days/nights allocation cap in the 2003 Backcountry Management Plan, as follows:
Management Actions
...
Set an allocation cap at 2,500 user-days/nights for both Haida and non-Haida allocations. This will prevent any single company from holding all of the Haida or non-Haida allocation, thus creating a business environment that favours smaller, owner-operated companies rather than larger corporations with fewer local ties.
[25] On November 25, 2003, the Applicants submitted a written application for a business licence and were issued their 2004 license on December 8, 2003, with an allocation of 2,374 user-days/nights. That licence provides as follows:
Gwaii Haanas National Park Reserve and Haida Heritage Site
Business owners and their employees have a continuing responsibility to minimize the impact of their activities upon Gwaii Haanas. By being aware of what constitutes proper conduct within Gwaii Haanas, business operators set an example and send a message to visitors through their business practices. They share a responsibility to educate and inform visitors about Gwaii Haanas' unique and sensitive features.
No person shall, within Gwaii Haanas, carry on any trade, calling, industry, employment or occupation carried on for gain or profit unless he/she is a holder of an annual licence issued pursuant to the Canada National Parks Act, National Parks of Canada Businesses Regulations and the Council of the Haida Nation.
Moresby Explorers Ltd. and/or Douglas Gould is hereby licensed to carry on powerboat tours/transport, kayak outfitting and guided tours, and dive platform activities in Gwaii Haanas National Park Reserve and Haida Heritage Site up to December 31, 2004, subject to all terms and conditions set out in the attached Schedule A.
| Approved under the Authority of the Canada National Parks Act, National Parks of Canada Businesses Regulations
[signature] Superintendent December 3, 2003 |
|
Approved under the Authority of the Council of the Haida Nation
[signature] December 4, 2003 |
[26] Schedule A attached to the license contains various terms and conditions, a number of which require the licensee to satisfy the requirements of the Superintendent and the CHN representative. Article 10 of the terms and conditions set out in Schedule A provides as follows:
10. The licensee is entitled to no more than 2,372 user-days/nights (plus an additional 237 user-days/nights as an overbooking buffer) for powerboat tours/transport, kayak outfitting and guided tours, and dive platform within Gwaii Haanas up to December 31, 2004. The licensee is limited to bringing no more than 22 tour clients per day into Gwaii Haanas. This daily limit does not apply to transport clients.
[27] In terms of user allocation, the Applicants are the largest business operators in Gwaii Haanas. Their 2,372 user-days/nights allocation is the largest allocation issued for any business in the 2004 season. However, the Applicants have never reached this level of use. Their allocation use between 2000 and 2003 was as follows: 1,383 user-days/nights in 2000; 1,767 user-days/nights in 2001; 1,808 user-days/nights in 2002; and 1,749 user-days/nights in 2003.
[28] The Applicants agree that the 2004 allocation was properly calculated, according to the formula introduced in 2002, and concede that their business is "not immediately affected by the annual 2,500 visitor per-business quota limit".
[29] For the 2004 season, the quota allocation to non-Haida business is 13,778 user-days/nights. However, the amount actually used by non-Haida operators has been significantly less, that is 7,574 user-days/nights in 2001 and 7,369 user-days/nights in 2002. According to the 2003 Backcountry Management Plan, there is no possibility of pooling the unused allocation for use by other tour operators, unless the cumulative allocation is less than 11,000 user-days/nights. Haida quota allocation in 2003 was 320 user-days/nights of which only 37 were used.
II. SUBMISSIONS
A. Applicants' Submissions
[30] The Applicants submit that the standard of review in this case is correctness because they are raising questions of jurisdiction and reliance on extraneous factors. In those circumstances, the Court is required to interpret the legislation and the scope of the Superintendent's jurisdiction. In this regard, the Applicants rely on Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at page 1005 and Service Employees International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382 at 389.
[31] The Applicants argue that the 22 tour client per day limitation and the annual 2,500 user-days/nights per tour operator allocation, as set out in Schedule A, Article 10 of their 2004 licence, is discriminatory and ultra vires the jurisdiction of the Superintendent, in his capacity as representative of Parks Canada. They argue that the Act and Regulations do not authorize the Superintendent to implement a licensing quota scheme that has the effect of limiting the size of their business.
[32] Relying on the administrative law principle that unless the enabling statute expressly, or by necessary implication confers such power, a subordinate legislature, that is, the Governor in Council, has no power to enact by-laws which discriminate between classes of people, regardless of the benign purpose of the discrimination. In this regard, the Applicants rely on Montreal (City) v. Arcade Amusements Inc., [1985] 1 S.C.R. 368. Although this decision deals specifically with municipal by-laws, the Applicants argue that nothing in the language of this decision limits the application of this principle strictly to municipal by-laws.
[33] The Applicants further argue that the principle that delegated powers under an enactment may not be exercised in a discriminatory manner, unless expressly authorized by the enabling statute, applies to all delegated statutory powers of legislation and of administration. In this regard, the Applicants rely on Waldman v. British Columbia (Medical Services Commission) (1997), 42 B.C.L.R. (3d)1 (B.C.S.C.), affirmed (1999), 67 B.C.L.R. (3d) 21 (B.C.C.A.)
[34] The Applicants further submit that the Act and Regulations do not authorize the regulation of commercial business size by means of terms and conditions attached to business licenses. Referring to this Court's analysis of sections 4 and 5 of the former National Parks Act, supra, in Moresby No. 2, supra, the Applicants argue that the purpose of the legislation is to ensure the maintenance of national parks for future generations. In this regard, the Applicants rely on page 612 of that decision as follows:
In my view, the references to visitor utilization in the context of preserving the park for future generations and maintaining the ecological integrity of the parks are sufficient authorization for the Superintendent to limit access to the park for those purposes. I conclude that there is no impediment to the implementation of a quota scheme which is designed to protect the park.
[35] According to the Applicants, there is presently an annual limit of 33,000 user-days/nights, a daily limit of 300 visitors and a per site limit of 12 visitors in place to protect the ecological integrity of Gwaii Haanas. The Regulations provide guidance as to the factors to be taken into consideration by the Superintendent in granting a business licence. These factors confirm that the mandate of the Superintendent is restricted to such things as preserving the natural and cultural resources of the Park and protecting the safety, health and enjoyment of visitors. The Applicants note that business size is not on the list of relevant factors and accordingly, the Superintendent has no jurisdiction to determine business licence and quota questions based on the size of a particular tourist business. Furthermore, the Applicants submit that the suppression of monopolies is not within the mandate of the Superintendent.
[36] The Applicants advance similar arguments with respect to the Haida Allocation Policy. Beginning with the premise that delegated powers under an enactment may not be exercised in a discriminatory manner, in the absence of express authorization by an enabling statute, the Applicants argue that the Superintendent has no jurisdiction to determine business licence and quota questions on the basis of race.
[37] The Applicants say that, through the Haida Allocation Policy, the Superintendent has imported a racial qualification that is contrary to the existing legislative scheme. They argue that the Act empowers the Governor in Council to authorize the Minister to enter into the Gwaii Haanas Agreement. However, this Agreement was not intended to alter the law. In this regard, the Applicants rely on pages 615-616 of the decision in Moresby No. 2, supra, as follows:
It is repugnant to our system of government to contemplate a situation in which laws passed in Parliament after public debate are modified or set aside by the government in an agreement negotiated in private. Even if one assumed that this were possible, only the clearest words could justify it.
[38] The Applicant submits that neither the Act nor the Regulations recognize race as a relevant consideration to be taken into account by the Superintendent in allocating the business licences for Gwaii Haanas. Further, they submit that the Haida Allocation Policy cannot be construed as satisfying the purpose of the legislation, which is the preservation of the ecological and cultural integrity of the Park.
[39] In the event that the Haida Allocation Policy and quota restrictions attached to the Applicants' 2004 licence are found to be within the statutory authority of the Superintendent, the Applicants advance an alternative argument that the determination of business licence and quota questions on the basis of business size or race are void for being inconsistent with the equality guarantee provided by section 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c.11 (the "Charter").
[40] In this regard, the Applicants argue that the Superintendent has imposed a quota system and racially-based allocation policy on persons conducting tourism businesses in a national park. These activities involve private sector enterprise on public lands, subject to public licensing. The Applicants submit that the licensing policy adopted by the Superintendent affects the livelihood opportunities of Canadian citizens and as such, is subject to a high level of Charter protection and scrutiny. The Applicants here rely on the decision in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
[41] The Applicants argue that these allocation policies do not recognize equal opportunity rights among all Canadian citizens. As for the Haida Allocation Policy, they argue that they are barred by reason of racial background from access to half of the available commercial quota of 22,000 user-days/nights. That policy has the effect of setting 11,000 as the effective ceiling for non-Haida operators, a category which was oversubscribed from the outset of this new policy. The practical result is that there will be no increase in non-Haida tour businesses operating in Gwaii Haanas in the foreseeable future. The Applicants argue that race, and grounds analogous to race, are enumerated grounds for section 15 protection and that withholding or limiting business licences on the basis of such an enumerated ground constitutes discrimination for the purposes of that provision.
[42] The Applicants also argue that the quota system adopted in the terms and conditions of the 2004 licence also raises a section 15 objection. They point to the "clawback" of 2,000 user-days/nights from those operators not using the full extent of their quotas and argue that, because the non-Haida allocation remains above the 11,000 user-days/nights limit, further reduction of the non-Haida allocation will occur. The Applicants argue that absent any justification for this quota system based on ecological integrity, these limits are effectively a consequence of the unlawful race-based Haida Allocation Policy.
[43] The Applicants further argue that the breach of their section 15 equality rights have not been overridden in the present case, either by Parliament's use of the notwithstanding clause in section 35, the presence of affirmative action programs pursuant to section 15(2), by the application of section 25 of the Charter, and that the breach of section 15(1) cannot be justified pursuant to section 1 of the Charter. Any of the foregoing means can, in certain circumstances, override the section 15 guarantee of inequality but according to the Applicants, none of these circumstances apply in the present case for the following reasons.
[44] First, there is no doubt that the notwithstanding clause has not been engaged. Second, the Applicants argue that the Haida Allocation Policy and associated quota system do not constitute affirmative action programs within the meaning of section 15(2) of the Charter. They note that there is no factual basis to support such arguments and indeed, upon cross-examination, the President of the CHN, unequivocally stated that the Haida people were not disadvantaged. This witness, Guujaaw, declined to disclose the financial statements of the CHN or the Haida tribal society.
[45] Next, the Applicants argue that section 25 of the Charter is not engaged here to displace the equality rights guaranteed under section 15. They argue that apart from the section 25 exception, in all other activities where aboriginal people work with other Canadians, the Supreme Court has held that equal rights apply for the protection of all. In this regard, the Applicants rely on Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Mitchell v. M.N.R., 2001 SCC 33; and Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85.
[46] Also, in relation to section 25, the Applicants argue that the Gwaii Haanas Agreement is not a section 35 treaty or land claims agreement. The Agreement itself makes that clear. In constitutional terms, the Applicants submit that the Gwaii Haanas Agreement is an ordinary Agreement entered into between the Government of Canada and a group of citizens. It has deliberately not been accorded constitutional status and consequently, section 25 cannot operate to displace the equality rights guarantee under section 15 of the Charter.
[47] Alternatively, even if the Gwaii Haanas Agreement were a section 35 Agreement, the Applicants submit that section 25 would not be engaged because there is nothing in that Agreement which conflicts with the equality rights of other Canadians. The guarantee of equality rights in section 15 does not abrogate or derogate from any right given to the Haida under the Gwaii Haanas Agreement, according to the Applicants.
[48] In any event, the Applicants submit that section 1 of the Charter does not save the challenged Haida Allocation Policy and quota system from attack, on section 15 grounds. The application of section 1 requires that several conditions be met, that is that the limit must be pressing and substantial; the limit must be rationally connected to the objectives sought to be achieved, with minimal impairment of Charter rights and must be proportional. In this regard, the Applicants rely on R. v. Oakes, [1986] 1 S.C.R. 103.
[49] In any event, the Applicants argue that limits on Charter rights must be prescribed by law and the exercise of unstructured and administrative discretion does not qualify. Here, the Applicants rely on Re Ontario Film and Video Appreciation Society and Ontario Board of Censors (1984), 45 O.R. (2d) 80 (C.A.).
B. Submissions of the Respondent Council of the Haida Nation
[50] The CHN relies on section 25 only, in responding to this application. It submits that the Gwaii Haanas Agreement, including the Haida Allocation Policy, constitutes "other rights" for the purposes of section 25 of the Charter.
[51] Specifically, the CHN argues that the Gwaii Haanas Agreement and the Haida Allocation Policy constitute an interim co-management arrangement between the Haida and the Crown, securing Haida rights and interests and inviting Haida participation in the decision making process. As well, it submits that there is a strong prima facie case of aboriginal title and rights arising in the pre-treaty period, and that the Crown is aware of this strong prima facie case. As well, the CHN argues that the purposes of the Gwaii Haanas Agreement, including the Haida allocation process, are closely connected with the purposes recognized and affirmed by aboriginal rights provisions in the Constitution Act, 1982, supra.
[52] It is the CHN's position that if this Court finds that the Gwaii Haanas Agreement, together with the Haida Allocation Policy, constitutes "other rights" for the purposes of section 25, then that finding will be determinative and the Haida Allocation Policy will be shielded from the application of section 15(1) of the Charter.
[53] Alternatively, if a Charter analysis is found to be required, the CHN argues that the application of section 15 to the Gwaii Haanas Agreement, including the Haida Allocation Policy, abrogates or derogates from the rights and freedoms inherent in that process. In other words, application of section 15 would impair the CHN's ability to achieve the purpose of reconciliation contemplated by the Gwaii Haanas Agreement.
C. Submissions of the Respondent Attorney General of Canada
[54] The first issue addressed by this Respondent is the applicable standard of review. The AGC takes the position that the matters at issue relate to policy decisions that the Superintendent took, on the recommendation of the AMB in introducing the 22 tour-client per day limit and the 2,500 user-days/nights allocation cap. The AGC submits that these are general conditions that apply to all businesses as opposed to applying only to the specific circumstances of the Applicants. As such, the applicable standard of review for policy decisions is that set out in Maple Lodge Farms v. Canada, [1982] 2 S.C.R. 2, that is whether the discretion to implement the policy was exercised in good faith, that the principles of natural justice were observed where required, and consideration was given to relevant factors, without regard to extraneous or irrelevant factors.
[55] The AGC submits that both the 22 tour-client per day limitation contained in the Applicants' licence as well as the 2,500 user-days/nights allocation cap adopted in the 2003 Backcountry Management Plan, are lawful. However, with respect to the 2,500 user-days/nights allocation cap, the AGC argues that the Applicants are not directly affected by that cap as a result of their allocation under the 2004 licence of 2,372 user-days/nights and accordingly, lack standing to challenge this quota. In this regard, the AGC relies on section 18.1(1) of the Federal Courts Act, supra and Kwicksutaineuk/Ah-kwa-mish Tribes v. Canada (2003), 227 F.T.R. 96 (T.D.).
[56] In response to the Applicants' argument that they will likely be the first operators to reach the 2,500 cap, the AGC takes the position that the mere possibility that the Applicants may be affected by that policy in the future is insufficient to grant them standing. The AGC here relies on the decision in Canadian Telecommunications Union v. C.B.R.T. & W., [1982] 1 F.C. 603 (C.A.). In any event, the AGC argues that both the 22 tour-client per day limitation and the 2,500 user-days/nights allocation cap constitute a quota policy intended to ensure the protection of the natural and cultural resources of Gwaii Haanas and to ensure that visitors enjoy a diversity of services in the Park.
[57] As well, the AGC relies in the decision of this Court in Moresby No. 2, supra, at page 612, where the Court rejected the argument that the Minister and the Superintendent did not have legislative authority to impose a quota policy, regardless of a substantive content.
[58] As well, the AGC argues that the Superintendent's authority to issue business licences for Gwaii Haanas flows from section 16(3) of the Act and is set forth in section 4.1 of the Regulations.
[59] Furthermore, the Superintendent is required to consider the effect of the business on several factors, set out in section 5(1) of the Regulations. The AGC argues that the 22 tour-client per day policy is intended to address those factors and is directly related to the group limit of 12 persons per site, implemented in 1996 as a means of controlling group size in the Park. Likewise, the 2,500 user-days/nights allocation is intended to promote small local owner-operator businesses, to prevent the development of monopolies and consequently, keeping visitor opportunities affordable with access to a diverse spectrum of services.
[60] The AGC argues that it is well established law that the imposition of a quota system, as opposed to the granting of a specific licence, is a discretionary decision in the nature of policy or legislative action. As such, it is not reviewable, except on the limited grounds described in Maple Lodge Farms, supra.
[61] Specifically, the AGC then argues that there is no allegation that the Superintendent's decision to introduce the 22 tour-client per day limitation and the 2,500 user-days/nights allocation was motivated by bad faith. Second, in respect of the application of the principles of natural justice, the AGC argues that the rules of natural justice do not generally apply to policy decisions of this nature and in this regard relies on Carpenter Fishing Corp. v. Canada, [1998] 2 F.C. 548 (F.C.A.). As well, the quota policy was implemented following an extensive public consultation with commercial tour operators, including the Applicants, as appears from the affidavit of D. Madsen, filed as part of the AGC's application record.
[62] Third, the AGC submits that the quota policy was not based on irrelevant considerations extraneous to the legislative purpose of the Act, which the preservation, protection, management and control of Canada's national parks.
[63] The AGC submits that the quota policy is consistent with the broad purpose of national parks set out in section 4(1) of the Act and the consideration set out in section 5(1) of the Regulations. He further argues that it is beyond the Court's mandate to review the wisdom of policy decisions, such as the challenged quota policy.
[64] The AGC further argues that the quota policy is not discriminatory in the administrative law sense, although he questions whether the principle of administrative law discrimination applies to regulations promulgated by the Governor in Council. Nonetheless, the quota policy applies to all businesses operating in the Park, regardless of ownership or size.
[65] With respect to the Haida Allocation Policy, the AGC questions whether the Applicants have standing to question this policy, in light of the fact that they have been issued a business licence and given an allocation of 2,372 user-days/nights. The AGC notes that the Applicants do not challenge the allocation granted to them in their 2004 licence and concede that the allocation has been properly calculated. Therefore, not being directly affected by the Haida Allocation Policy, the AGC submits that the Applicants lack the requisite standing to challenge it in this application for judicial review.
[66] It is the AGC's position that the only avenue left for the Applicants to challenge the Haida Allocation Policy is on the basis of "public interest standing". The test for such standing has been developed by the Supreme Court of Canada and includes three requirements which can be interpreted in this case to include the following:
a) Whether there is a serious issue as to the constitutional validity of the Haida application policy;
b) Whether the Applicants are directly affected by the Haida Allocation Policy or have a genuine issue in its validity; and
c) Whether there is any other reasonable and effective way that the constitutional validity of the Haida Allocation Policy can be brought before the Court.
In this regard, the AGC relies on the decision in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236 and Hy and Zel's Inc. v. Ontario (Attorney General), [1993] 3 S.C.R. 675.
[67] The AGC argues that the Applicants are not directly affected by the Haida Allocation Policy nor have a genuine interest in its validity. Further, there is another more reasonable and effective way to challenge the validity of the Haida Allocation Policy because an unsuccessful applicant for a business licence may bring an application for judicial review in respect of a refusal by the Superintendent to issue such licence.
[68] As for section 15 of the Charter, the AGC argues that the Haida Allocation Policy is intended to provide economic opportunities to members of the Haida Nation by setting aside a percentage of the overall user allocation available distribution to tour operators in the park reserve. Having regard to all relevant contextual factors, the AGC submits that the Haida Allocation Policy does not result in substantive discrimination in violation of the Applicants' section 15 equality rights.
[69] The AGC relies on the substantive equality analysis provided by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497. According to that decision, three broad inquiries are to be addressed: first whether the law, program or activity imposes differential treatment between the claimant and others; second, whether this differential treatment is based on one or more enumerated or analogous grounds; and third, whether the impugned law, program or activity has a purpose or effect that is substantively discriminatory. The AGC argues that this three part inquiry is to be exercised in a purposive and contextual manner in order to allow the realization of the strong remedial purpose inherent in section 15 of the Charter.
[70] After reviewing all of these elements, the AGC concludes by saying that the Applicants have failed to establish that the Haida Allocation Policy imposes differential treatment on them on the basis of race, and further, that the policy results in substantive discrimination.
[71] Alternatively, the AGC argues that if the Haida Allocation Policy is found to be in violation of the Applicants' section 15 equality rights, that violation is still a reasonable limit which can be demonstrably justified in a free and democratic society. In this regard, the AGC argues that the purposes of the Haida Allocation Policy are pressing and substantial. That policy encourages people of Haida ancestry to become involved in commercial tour operations in Gwaii Haanas, including the presentation of aspects of the Haida culture to visitors. Additionally, the Haida Allocation Policy rectifies the situation that arose when the Haida were effectively frozen out of the park reserve with the introduction of the mandatory business licencing in 1996. Finally, according to the AGC, the policy provides economic benefits to the Haida people by giving them access to commercial tour opportunities.
[72] The AGC also submits that the Haida Allocation Policy is rationally connected with the purpose of alleviating the disadvantaged situation of the Haida people. The policy is consistent with other programs developed by the Government of Canada and by Parks Canada to assist aboriginal people in establishing and maintaining businesses, thereby giving economic benefits to aboriginal people and their communities.
[73] As well, the AGC argues that the Haida Allocation Policy minimally impairs the Applicants' section 15 rights. Here, the AGC relies on the decision in Thomson Newspapers Co. v. Canada (The Attorney General), [1988] 1 S.C.R. 877 and Libman v. Québec (A.G.), [1997] 3 S.C.R. 569, for the principle that government action will fail the "minimum impairment test" only if there are other clearly superior measures, that is measures which are equally effective but significantly less intrusive. According to the AGC, the Haida allocation policy impairs the Applicants' section 15 rights no more than is reasonably necessary.
III. DISCUSSION AND DISPOSITION
[74] This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act, supra. Generally, the remedy available upon an application for judicial review is limited to a determination of whether the decision in question was properly made, that is within the legal authority of the decision-maker. In Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) (1998), 229 N.R. 249 (F.C.A.), the Federal Court of Appeal discussed the scope of judicial review in the following terms at page 255:
In other words, the court in judicial review proceedings is concerned with the legality of the ministerial decision resulting from an exercise of discretion, not its opportunity, wisdom or soundness (see Canadian Association of Regulated Importers et al. v. Canada (Attorney General) et al., [1994] 2 F.C. 247; 164 N.R. 342, at p.260 (F.C.A.)). This means, in this case, that the reviewing court ought to look at the manner in which the Minister exercised his discretion to determine whether the Minister acted in bad faith or on the basis of irrelevant factors, failed to take into account relevant factors or ignored relevant provisions which conditioned or limited the exercise of his otherwise absolute discretion. [Citations omitted]
[75] The decision here under challenge is a licencing decision, that is the decision of the Park Superintendent to issue a business licence, with conditions, to the Applicants. The authority of the Park Superintendent to issue such licences was confirmed by the Court in Moresby No. 2, supra. In that decision, the Court allowed the application for judicial review brought by the Applicants relative to the exclusion of their float camp activities from the calculation of their user allocation, on the grounds that this exclusion was contrary to the policy governing the issuance of licenses in Gwaii Haanas Park.
[76] In the present case, the Applicants were issued a commercial business licence for 2004. This licence imposed an allocation cap of 2,500 user-day/nights per year and a limit of 22 tour clients per day. Notwithstanding the submissions of the Applicants that this decision is reviewable on the standard of correctness because it involves a misinterpretation and misapplication of the applicable legislation, I agree with the arguments advanced by the Respondents that the decision is essentially a discretionary one, reviewable on the standard set out in Maple Lodge Farms,supra. According to that decision, the test is whether the decision-maker exercised his discretion to implement the policy in good faith, whether the principles of natural justice were observed where required or whether reliance was placed upon irrelevant or extraneous considerations having regard to the legislative purpose.
[77] The Applicants are here attempting to cast the issuance of the business licence in terms of either administrative discrimination or of discrimination contrary to section 15 of the Charter, which cannot be justified under section 1. The basis of their argument is that the limitations attached to the 2004 licence are directly related to race. In this regard, the Applicants argue that the Haida Allocation Policy, relied on by the Superintendent, imports a racial qualification to the issuance of licences which is not authorized by the legislative scheme. The Applicants object to any distinction being made, in the issuance of licences, upon racial considerations.
[78] The Applicants have received a commercial business licence for 2004, with conditions, that is the 22 tour-client per day limitation and the annual 2,500 user-days/nights per tour operator allocation. The Applicants' present allocation is below the 2,500 limit; they have received an allocation of 2,372 user-day/nights and they do not contest the calculation of this figure. However, the 22 tour-client per day limitation does apply to the Applicants, as it does to all tour operators holding business licences in Gwaii Haanas. While it is possible to address the two aspects of the limitations separately, the Applicants' objection to both is substantively the same, that is the consideration of race. The Applicants' challenge to the quota policy has to be assessed in light of the factors identified in Maple Lodge, supra.
[79] The first question is whether the Superintendent had the legislative authority to impose a quota policy. In this regard, both the Applicants and the Respondent refer to the decision of this Court in Moresby, No. 2, supra., where the Court found, at paragraph 56, that there was no impediment to the implementation of a quota scheme designed with park protection as its central objective. Since that decision, the content of the quota policy has changed. However, in my opinion, provided that the challenged limitations can be reasonably characterized as addressing the objectives of Park protection, the Superintendent should be granted wide discretion, subject to review only on the limited grounds set out in Maple Lodge, supra.
[80] The Applicants have not alleged that the Superintendent acted in bad faith in adopting the quota policy. In my opinion, the disposition of this application turns on whether the Superintendent exercised his discretion in accordance of the requirements of natural justice and adopted the quota policy in accordance with the purposes set out in sections 4 and 8 of the Act.
[81] The operative legislative scheme provides the mandate for the Superintendent. Section 4 of the Act describes the rationale for creating national parks. Section 8 assigns responsibility to the Minister for the administration, management and control of public lands in national parks. Section 11 requires the Minister to prepare a management plan written five years after the establishment of a park.
| 4. (1) 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 parks shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations (2) Park reserves are established in accordance with this Act for the purpose referred to in subsection (1) where an area or a portion of an area proposed for a park is subject to a claim in respect of aboriginal rights that has been accepted for negotiation by the Government of Canada. |
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4. (1) Les parcs sont créés à l'intention du peuple canadien pour son agrément et l'enrichissement de ses connaissances; ils doivent être entretenus et utilisés conformément à la présente loi et aux règlements de façon à rester intacts pour les générations futures. (2) Sont également créées, aux fins énoncées au paragraphe (1), des réserves à vocation de parc lorsqu'un peuple autochtone revendique des droits ancestraux sur tout ou partie du territoire d'un projet de parc et que le gouvernement fédéral a accepté d'engager des négociations à cet égard. |
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8. (1) The Minister is responsible for the administration, management and control of parks, including the administration of public lands in parks and, for that purpose, the Minister may use and occupy those lands. (2) Maintenance or restoration of ecological integrity, through the protection of natural resources and natural processes, shall be the first priority of the Minister when considering all aspects of the management of parks. |
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8. (1) Les parcs, y compris les terres domaniales qui y sont situées, sont placés sous l'autorité du ministre; celui-ci peut, dans l'exercice de cette autorité, utiliser et occuper les terres domaniales situées dans les parcs. (2) La préservation ou le rétablissement de l'intégrité écologique par la protection des ressources naturelles et des processus écologiques sont la première priorité du ministre pour tous les aspects de la gestion des parcs. |
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11. (1) The Minister shall, within five years after a park is established, prepare a management plan for the park containing a long-term ecological vision for the park, a set of ecological integrity objectives and indicators and provisions for resource protection and restoration, zoning, visitor use, public awareness and performance evaluation, which shall be tabled in each House of Parliament. (2) The Minister shall review the management plan for each park every five years, and any amendments to a plan shall be tabled with the plan in each House of Parliament. |
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11. (1) Dans les cinq ans suivant la création d'un parc, le ministre établit un plan directeur de celui-ci qui présente des vues à long terme sur l'écologie du parc et prévoit un ensemble d'objectifs et d'indicateurs relatifs à l'intégrité écologique, et des dispositions visant la protection et le rétablissement des ressources, les modalités d'utilisation du parc par les visiteurs, le zonage, la sensibilisation du public et l'évaluation du rendement; il le fait déposer devant chaque chambre du Parlement. (2) Le ministre réexamine le plan au moins tous les cinq ans par la suite et, le cas échéant, le fait déposer avec ses modifications devant chacune de ces chambres. |
[82] The Regulations, authorized by section 16 of the Act, identify the factors to be considered by the Superintendent in granting licences. Sections 4.1 and 5 of the Regulations provide as follows:
| 4.1 The superintendent may, on application by a person in accordance with section 4, and having regard to the matters to be considered under subsection 5(1), issue a licence to that person to carry on the business indicated in the application. DORS/2002-370, art. 5.
5. (1) In determining whether to issue a licence and under what terms and conditions, if any, the superintendent shall consider the effect of the business on (a) the natural and cultural resources of the park; (b) the safety, health and enjoyment of persons visiting or residing in the park; (c) the safety and health of persons availing themselves of the goods or services offered by the business; and (d) the preservation, control and management of the park. (2) The superintendent must set out as terms and conditions in a licence (a) the types of goods and services that will be offered by the business; and (b) the address, if any, at which, or a description of the area in the park in which, the business is to be carried on. (3) Depending on the type of business, the superintendent may, in addition to the terms and conditions mentioned in subsection (2), set out in a licence terms and conditions that specify (a) the hours of operation; (b) the equipment that shall be used; (c) the health, safety, fire prevention and environmental protection requirements; and (d) any other matter that is necessary for the preservation, control and management of the park. DORS/2002-370, art. 10(F). |
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4.1 Le directeur peut, sur présentation d'une demande conforme à l'article 4 et après avoir pris en considération les éléments mentionnés au paragraphe 5(1), délivrer un permis visant l'exploitation du commerce mentionné dans la demande. SOR/2002-370, s. 5.
5. (1) Le directeur doit, pour décider s'il y a lieu de délivrer un permis et, le cas échéant, en déterminer les conditions, prendre en considération les conséquences de l'exploitation du commerce sur les éléments suivants : a) les ressources naturelles et culturelles du parc; b) la sécurité, la santé et l'agrément des visiteurs et des résidents du parc; c) la sécurité et la santé des personnes qui se prévalent des biens ou services offerts par le commerce; d) la préservation, la surveillance et l'administration du parc. (2) Le directeur doit indiquer à titre de condition dans le permis : a) les types de biens et services qu'offrira le commerce; b) l'adresse du commerce, le cas échéant, ou une description des lieux du parc où il sera exploité. (3) Compte tenu du type de commerce visé, le directeur peut, en sus des conditions visées au paragraphe (2), assortir le permis de conditions portant sur ce qui suit: a) les heures d'ouverture; b) l'équipement à utiliser; c) les exigences visant la santé, la sécurité, la prévention des incendies et la protection de l'environnement; d) tout autre élément nécessaire à la préservation, à la surveillance et à l'administration du parc. SOR/2002-370, s. 10(F). |
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[83] The Act provides at section 8(1) that the first priority in considering all aspects of the management of parks is the maintenance or restoration of ecological integrity. The Applicants have argued that limiting business size is an extraneous or irrelevant consideration. However, in my opinion, the imposition of limits on the number of tour-clients permitted in the Park daily, as well as a cap on the total number of user-days/nights, appears to be consistent with the goals of ecological integrity and preservation of a positive visitor experience at Gwaii Haanas.
[84] As well, the record amply demonstrates that the quota policy was implemented following an extensive public consultation process with commercial tour operators, including the Applicants. For these reasons, in my opinion, this aspect of the judicial review application should be dismissed on the grounds that the Superintendent acted within his jurisdiction in adopting the quota policy.
[85] The next issue is the Applicants' challenge to the Haida Allocation Policy, relative to which the question of standing arises. Subsection 18.1(1) of the Federal Courts Act, supra reads as follows:
| 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. [emphasis added]
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Since the Applicants accept that their allocation for 2004 has been properly allocated and that they have not been refused additional quota on the basis of the Haida Allocation Policy, I am satisfied that they are not "directly affected", within the meaning of subsection 18.1(1) of the Federal Courts Act, supra by the imposition of that policy and consequently lack standing to challenge the policy in this judicial review application.
[86] Having concluded that the Applicants do not have standing, as the Respondent argues, the only basis upon which they can challenge the Haida Allocation Policy is by seeking public interest standing.
[87] In Canadian Council of Churches, supra, the Supreme Court of Canada set out a three part test for granting of public interest standing. That test provides that an applicant must establish that there is a serious issue raised, that the applicant has a genuine issue in the matter, and that there is no other reasonable and effective way to bring the matter before the Court.
[88] With respect to this tripartite test, there is not legislation before the Court the validity of which is at issue. If, however, the act of the Superintendent in allocating quota pursuant to the Haida Allocation Policy were read as tantamount to a legislative act, and I am satisfied that it should be so read, then the first aspect of the test must be answered in the affirmative. I am satisfied that there is a justifiable and serious issue as to the validity of the Superintendent's Haida Allocation Policy.
[89] The Respondent does not argue a lack of a serious issue but rather focuses on the remaining two parts of the test. In my opinion, the Applicants are not, as yet, directly affected by the Haida Allocation Policy. The recognition of that policy by the Superintendent is a matter within his discretion. That policy must be assessed in light of the limited grounds of review set out in Maple Lodge, supra.
[90] The Haida Allocation Policy was implemented as a result of negotiation and consensus between the CHN and the Government of Canada, through the administrative body of the AMB. The Gwaii Haanas Agreement was entered into in the spirit of cooperative management in an effort to address the concerns of both the CHN and the Government of Canada, pending resolution of the CHN's comprehensive land claim over the park reserve area. In this context, it cannot be said that the Superintendent implemented the policy in bad faith.
[91] The Applicants raise an argument about natural justice in relation to this policy. They note that in October 1998, the AMB held a meeting with tour operators to discuss the possible ways of allocating quota. Three options were discussed, that is allocation based on need, allocation based on merit and thirdly, allocation on the basis of a Haida right of first refusal. The Applicants argue that the first notice they received of the Haida Allocation Policy was with the release of the final draft of the 1999 Backcountry Management Plan. Although there may be an argument here on the basis of natural justice, it is noteworthy that the Applicants did not challenge this policy, which has been in place since 1999, in their previous litigation relative to their operations in Gwaii Haanas.
[92] Based on the foregoing, I conclude that the Applicants are not "directly affected" by the validity of the Haida Allocation Policy that is at issue.
[93] I turn now to the third part of the test for public interest standing, that there is no other "reasonable and effective way" to bring the Superintendent's Haida Allocation Policy before this Court. In my opinion, the Applicants have not shown that they meet this criterion. I am satisfied that there is indeed another reasonable and effective way to challenge the validity of the Superintendent's policy that is the subject of this application, that is to say, by judicial review application instituted by an unsuccessful non-Haida business licence applicant. In the present case, the Applicants have received a licence, although they are unhappy with its terms and conditions.
[94] In the result, I am satisfied that the Applicants lack standing to pursue this application for judicial review with respect to the Haida Allocation Policy.
[95] Next, I turn to the arguments advanced by the Applicants concerning unlawful discrimination, contrary to section 15 of the Charter. I agree with the submissions advanced by the Respondent, that the restrictions on the Applicants' 2004 licence do not violate section 15 of the Charter. Section 15 provides as follows:
| 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. |
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15. (1) La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques. (2) Le paragraphe (1) n'a pas pour effet d'interdire les lois, programmes ou activités destinés à améliorer la situation d'individus ou de groupes défavorisés, notamment du fait de leur race, de leur origine nationale ou ethnique, de leur couleur, de leur religion, de leur sexe, de leur âge ou de leurs déficiences mentales ou physiques. |
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[96] It is well settled that not every differential treatment gives rise to discrimination. In Law v. Canada, supra, the Supreme Court proposed a purposive and contextual approach to section 15(1) and added the requirement that an applicant must not only demonstrate differential treatment on enumerated or analogous grounds of discrimination, but must also show that the differential treatment results in a loss of human dignity. At page 530, the Court says as follows:
Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society.
[97] I do not accept the Applicants' argument that, as a result of the Haida Allocation Policy, the Applicant Mr. Gould has suffered a loss of human dignity, in light of this analysis. In consideration of the contextual factors referred to by the Respondent, I dismiss the Applicants' arguments in this regard.
[98] Finally, there remains the issue of the application of section 25 of the Charter, an argument that was advanced by the Respondent CHN. Section 25 provides as follows:
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25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. |
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25. Le fait que la présente charte garantit certains droits et libertés ne porte pas atteinte aux droits ou libertés - ancestraux, issus de traités ou autres - des peuples autochtones du Canada, notamment : a) aux droits ou libertés reconnus par la proclamation royale du 7 octobre 1763; b) aux droits ou libertés existants issus d'accords sur des revendications territoriales ou ceux susceptibles d'être ainsi acquis.
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[99] Section 25 has received relatively little judicial scrutiny to date. It operates to shield the rights of aboriginal peoples from negative impacts that the Charter may have on section 25 rights. The reference to "other rights or freedoms" in section 25 arguably could have the right of protecting aboriginal rights or freedoms that are not otherwise constitutionally recognized and affirmed by section 35(1). However, as argued by the Respondent Attorney General, an interim agreement such as the Gwaii Haanas Agreement does not automatically generate "other rights" for the purposes of section 25. As well, the CHN has improperly characterized the Gwaii Haanas Agreement as a co-management arrangement which secures Haida rights and interests.
[100] I am not persuaded that the Haida Allocation Policy constitutes "other rights" for the purposes of the Charter. As well, the arguments advanced by the CHN in this regard suggest that it is seeking a predetermination of its rights relative to the lands comprising the Gwaii Haanas National Park and that issue is not within the jurisdiction of this Court upon an application for judicial review.
[101] In light of the foregoing, this application for judicial review is dismissed, as well as the constitutional question raised by the Applicant. The quota restrictions imposed in Article 10 of Schedule A to the licence granted to the Applicant, namely the 22 tour-client per day limitation and the annual 2,500 user-days/nights per tour operator limitation, were within the statutory authority of the Superintendent. I conclude, as well, that the Applicants lack standing to challenge the Haida Allocation Policy.
[102] I reject the arguments advanced by the Applicants that the Haida Allocation Policy and quota restrictions are inconsistent with and contrary to the equality guarantee provided by section 15(1) of the Charter. I also conclude that there is no basis for the application of section 25 of the Charter.
[103] In the result, the application is dismissed. The only issue remaining is costs. In that regard, I am not persuaded that both Respondents should have their costs. The Respondent AGC carried the burden in responding to this application for judicial review. The Respondent CHN played a lesser role in opposing the application for judicial review. In these circumstances and in the exercise of my discretion, I decline to order costs in favour of the CHN. The AGC shall have his costs.
ORDER
This application for judicial review is dismissed with costs to the AGC, no costs to the CHN.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-23-04
STYLE OF CAUSE: The Moresby Explorers Ltd. et al. v. The Attorney
General of Canada et al.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: 19-22 October 2004
REASONS FOR ORDER
AND ORDER: HENEGHAN J.
APPEARANCES:
Mr. Christopher Harvey, Q.C. FOR APPLICANT
Mr. Sean Gaudet FOR RESPONDENT ATTORNEY GENERAL OF CANADA
Ms. Louise Mandell, Q.C.
Ms. Mary MacAulay FOR RESPONDENT COUNCIL OF THE HAIDA NATION
SOLICITORS OF RECORD:
Mackenzie Fujisawa FOR APPLICANT
Vancouver, BC
Mandell Pinder
Vancouver, BC FOR RESPONDENT COUNCIL OF THE HAIDA NATION
John H. Sims, Q.C.
Deputy Attorney General
of Canada FOR RESPONDENT ATTORNEY GENERAL OF CANADA