Maligne Lake Development Court Battle

  • Published on May 08 2017 |
  • by Alison Ronson |
  • This article is tagged as:

This blog post is brought to you by Jaclyn Ludwig at the University of Alberta. We will be featuring guest blog posts for the next few months from University students. See Jaclyn's previous blog for an introduction to the issue discussed in this blog.

Canada’s National Parks are a special treasure to Canadians. It comes as no surprise then, that the National Parks enjoy protective, special purpose legislation.  Under the Canada National Parks Act, (the “Parks Act”) National Park planning is also given a special stature.  The approval of a National Park Management Plan (“Park Plan”) is not delegated to the Minister or her staff - it is reserved for review and approval by a vote in the House of Commons and the Senate.  The same applies to amendments; they must also be approved by a vote in the House of Commons and the Senate.  Canadians have the right to expect, and to demand, that the administrators of our National Parks fully respect the plans and directions debated in and approved by the House of Commons and the Senate.  We also have the right to expect that our judges, who are charged with interpreting the rules related to our National Parks, will give proper weight to the express directions of Parliament and the Senate, as set out in the Parks Act, and in approved Park Plans.

Section 4.7.1 of the approved Jasper National Park Management Plan is a rule that prohibits the release of new land for overnight commercial accommodation outside of the community of Jasper by way of the “Direction on Outlying Facilities and Marmot Basin.” This is not a mere recommendation or guiding principle.  It is an explicit and clear direction.  It is a rule, plain and simple.

In an interpretation of this rule [the “Maligne Decision”], Canada’s Federal Court has determined that Jasper Park administrators can review, for conditional approval (though not actually approve), a commercial proposal which requires the release of new land in Jasper National Park, directly contrary to the rule. This decision undermines the authority of Parliament and has sanctioned the use of precious Park resources to evaluate proposals that are in express violation of planning directives approved by the House of Commons and the Senate. Should Parks staff deeply involve themselves in evaluating and conditionally approving proposals that directly contradict the Park’s Plan Directives, in the hope that the directives will later be reversed by a vote in the House and Senate, or should Parks staff involve themselves in such proposals only after the directives have been reversed by such votes? As things stand now, the Court has sanctioned the former and undermined the latter.

The Maligne Decision Undermines Democracy

In the Courts view, Canadians would be deprived of innovative proposals if this rule would prevent Park administrative staff from evaluating prohibited proposals (Maligne Decision, Paragraph 81). The Judge went so far as to ask the applicants whether they were seriously arguing that Parks staff should not be allowed to consider proposals that couldn’t be approved unless the Park Plan was amended.  The way in which the Judge put the question implies that the answer would obviously be that this wasn’t seriously being argued.  Well the answer might surprise him- that is exactly what is being argued.  That is consistent with the planning process approved by, and only to be amended by, votes in the House and the Senate.  Allowing Park staff to evaluate proposals that directly contradict approved planning directives is not consistent with the process.  What is the point of the House and the Senate approving a directive prohibiting release of new land for overnight commercial accommodation outside of the community of Jasper, if the Park staff turns around and gets deeply involved in, and conditionally approves, such accommodation? It is important to note that the proposal isn’t substantially compliant with the plan, requiring only minor amendments to clarify its appropriateness.  No, the proposal is directly contradictory to the plan and requires a reversal of the existing plan directive ( Maligne Decision, Paragraph 32).  It is not the purview of Park staff to reverse government approved directives.

We will not be deprived of innovative proposals.  They can come forward immediately if they fall within the approved plan. If they require amendments to the plan, they can come forward later, if the House and the Senate are prepared to open the door to them by approving the required amendment. However, how is the government to know this amendment should be made? Allowing companies to put forward proposals that violate the Management Plan and considering them with the idea that an amendment can be made to allow them, raises the danger of inside lobbying. What is more, this decision, which allows a single operator to make a prohibited proposal, does deprive Canadians of the opportunity to consider proposals from others who might come forward if the process were opened properly with the required amendments already in place.  Then Parks Canada could invite everyone interested to make innovative proposals for newly released land. As it stands, this legal interpretation allows for an indirect method of sole sourcing an opportunity for developing newly released land to a single operator.

The Maligne Decision Creates a Conflict of Interest

How can the Park staff independently assist the Minister in evaluating a reversal of a planning directive if they have already conditionally approved a development that requires the reversal of that directive?  What position is the House and the Senate put in when asked to reverse a planning directive when their staff have already conditionally approved a development that requires the reversal? Have we not already led the commercial operator down the road of believing his proposal is worth spending considerable effort and resources on because it will later be approved? Talk about putting the cart before the caribou!

The Maligne Decision Results in Misplaced Priorities

The first priority of the Minister and his staff is clearly set out in section 8(2) of the Parks Act:

(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.

Parks Canada has identified the status of the caribou as one of the most pressing challenges facing Jasper National Park and has determined that commercial development is one of the threats to their survival. Most of the Maligne Valley has been identified by Parks Canada as important caribou habitat and its own documents identify the impact on the sustainability of the herd if even one caribou is lost. The Maligne herd subpopulation has declined from 68 animals in 1998 to 4 in 2014. The Committee on the Status of Endangered Wildlife in Canada [COSEWIC] evaluated Southern Mountain Caribou as endangered in May 2014, meaning they face imminent extirpation or extinction (Maligne Decision Paragraph 45).

What would we rather have: Park staff evaluating commercial proposals that violate our planning directives, or Park staff creating plans or reviewing proposals that would preserve the environment of threatened species in our Parks?  Section 8(2) expresses our democratic will on this question.  We have limited resources and we have given specific direction on how they are to be prioritized.  We think we all know what Parks staff would say if they were asked if they have enough resources even to meet their first priority.  How does it make sense to interpret the Act and the Plan in such a way as to encourage and sanction the use of limited resources to evaluate a prohibited proposal when we are challenged to find enough resources to fulfill an expressly approved mandate?

The Positive Side

Although Judge Russel dismissed the legal challenge brought by Ecojustice on behalf of the Canadian Parks and Wilderness Society (CPAWS) and the Jasper Environmental Association (JEA), he did acknowledge that the Maligne Tours’ proposal contravenes the Parks Management Plan, and could not be implemented without an amendment to the Plan. This represents a victory for CPAWS and JEA in light of statements by our current government that they are dedicated to limiting commercial development in our National Parks. There is hope that will mean proposals such as this will not attain the approval they seek, no matter how much consideration they are given.

What Can You Do

You can make a difference. CPAWS has established efficient ways for you to urge our politicians and Park management to restrict commercial development of our National Parks. You can sign a pledge advocating against more commercial developments in our National Parks. You can also sign a petition to say no to the release of protected lands for new overnight accommodation development in Jasper National Park.