[2016] 3 F.C.R. D-5
National Parks
Judicial review of decision of Jasper National Park Superintendent approving, for further consideration in development review process, concept proposal of respondent Maligne Tours Ltd. (respondent) to develop several tent cabins under new licence of occupation at Maligne Lake in Jasper National Park, Alberta, subject to park management plan amendment — Both applicants non-profit societies with longstanding interests in maintenance, restoration of ecological integrity within Jasper National Park, Canada’s national parks — Respondent Maligne Tours Ltd. private corporation in Alberta whereas respondent Parks Canada Agency (Parks Canada) responsible for implementation Government of Canada policies, in particular, relating to Canada’s national parks — Respondent leasing land from Parks Canada at Maligne Lake in Jasper National Park, operating day lodge, supporting facilities there — Respondent approaching Parks Canada with ideas for renewal, redevelopment of tour facilities at Maligne Lake including overnight visitor accommodation — Parks Canada willing to consider respondent’s concept proposal — Including respondent’s redevelopment proposal in 2010 Jasper National Park Management Plan (Management Plan) which Parks Canada later introducing for public review — Applicants receiving respondent’s concept proposal in which three major initiatives outlined including redevelopment of respondent’s day lodge into hotel — Parks Canada’s decision-making process regarding respondent’s concept proposal involving several steps, including preparation of proposal in first phase, further consideration of more detailed proposal in second phase — Whether Superintendent’s decision unlawfully contravening Management Plan; whether Superintendent erring in law or jurisdiction by making decision contingent on future amendment in Management Plan; whether decision unreasonable given failure to support maintenance, restoration of ecological integrity — Applicants mainly arguing that Superintendent’s decision to further consider tent cabin element of respondent’s concept proposal unlawful, ultra vires Superintendent’s jurisdictional power — Superintendent’s decision clearly showing that tent cabin proposal not approved; recognizing that amendment to Management Plan required before Parks Canada can accept proposal for further consideration in development review process — Decision constituting no more than Parks Canada’s consent to proceed to phase two of review process, subject to overriding consideration of amendment to Management Plan — This is so since tent cabin proposal requiring release of new land for overnight accommodation outside community of Jasper, which contradicts Management Plan — However, Management Plan not stating anywhere that Superintendent cannot “consider” concept proposal requiring amendment to Management Plan — While applicants submitting no overnight accommodation should be allowed at Maligne Lake, no evidence suggesting that overnight accommodation will be allowed or that amendment to Management Plan permitting this having any chance of ever materializing — Provision in Management Plan regarding overnight commercial accommodation (section 4.7.1) relied on by applicants not mandating that Superintendent not consider concept proposals requiring Management Plan amendment — Management Plan not mandatory when dealing with concept proposals — Applicants’ view that Management Plan constituting legally-binding document at odds with purpose thereof as general guideline providing for long-term strategic direction — Nothing in Management Plan, federal legislation, regulation or case law supporting proposition that Superintendent cannot consider concept proposal not complying with current Management Plan — Applicants’ argument that Superintendent’s decision also improper rejected — No evidence submitted supporting applicants’ accusations that Superintendent seeking amendments to Management Plan to accommodate respondent — Superintendent’s decision also not unreasonable since applicants’ concerns about ecological integrity of area at issue constituting very matters Parks Canada wanting to examine closely in second phase of review process — Reason for proceeding to phase two with tent cabin proposal set out in decision — For purpose of simply deciding that further consideration should be given to proposal, decision reasonable; no grounds upon which Court could interfere — Application dismissed.
Canadian Parks and Wilderness Society v. Maligne Tours Ltd. (T-1808-14, 2016 FC 148, Russell J., judgment dated February 8, 2016, 45 pp.)