ENVIRONMENT |
Canadian Parks and Wilderness Society v. Canada (Minister of Canadian Heritage)
T-1066-01
2001 FCT 1123, Gibson J.
16/10/01
53 pp.
Judicial review of decision of Minister of Canadian Heritage to authorize construction, operation of winter road through Wood Buffalo National Park, Canada's largest national park, straddling border between Alberta, Northwest Territories--Park protects virtually intact northern boreal plains ecosystem: landscape, vegetation, wildlife (including several endangered species eg. whooping crane, bison, peregrine falcons), culture--Designated world heritage site, confirming exceptional universal value as cultural or natural site deserving of protection for benefit of humanity-- Inaccessible by road for most of its expanse--Proposed road would approximately follow old, overgrown road right-of-way, used between 1958 and 1960, now densely re-vegetated --Residents travel right-of-way by snowmobile in winter, all-terrain vehicles during certain other seasons--Design as winter road would accommodate light trucks, cars, vans only, not tractor trailers--Proposed winter road would result in loss of vegetation along right-of-way, some degree of potential or actual erosion of fragile sandy soils, exposure of some wildlife in Park to poaching, mortality caused by vehicle collisions, increased risk of harm to sensitive karst landscape features on or adjacent to right of way--Potentially posing risk of introduction of invasive plant species foreign to Park environment from soil, seed residues attached to vehicles using road--Proposal to re-open winter road not new--All-season road long pursued by groups in region--Despite news release stating Parks Canada not prepared to consider all-weather road proposal, CPAWS' concern not merely winter road approval but, subject to comprehensive environmental assessment, all-season road accomplished in two stages-- Approval of winter snow road subject to mitigating measures including adaptive management, environmental measures-- Canada National Parks Act coming into force February 19, 2001--Preceded by "Summary", stating purpose of enactment to "enhance protection for wildlife and other park resources" --Since neither Parliament nor Government could have determined to add such useful "summaries" without reason, at least portion of that reason to provide aid to interpretation somewhat akin to "legislative history"--National Parks General Regulations, s. 12 permitting superintendent to issue permit authorizing removal, defacement, damage or destruction of any flora or natural objects in Park "for purposes of Park management"--Environmental assessment prerequisite to issuance of s. 12 permit--(1) Whether Minister having implied power to approve road through National Park, when no such power granted in new Act and road not for Park purposes--Dedication of National Parks of Canada to people of Canada essentially same under both new, former National Parks Acts--Delicate balance between human interests, environmental considerations referred to by Teitelbaum J. in Young v. Canada (Attorney General) (1999), 174 F.T.R. 100 (F.C.T.D.) well reflected in both new, former s. 4--But CPAWS' submitting law substantially changed--S. 5(1) of former Act placing administration, management, control of National Parks under direction of Minister--S. 8(1) of new Act providing Minister responsible for administration, management, control of Parks, including administration of public lands in Parks--S. 5(1.2) of former Act limited first priority accorded to "ecological integrity" through protection of natural resources to circumstances where park zoning and visitor use in management plan being considered--Under new Act, maintenance or restoration of ecological integrity, through protection of natural resources and natural processes required to be first priority of Minister when considering all aspects of management of parks--Evolution from s. 5(1) of former Act to s. 8(1) of new Act formal, as opposed to substantive, change--Brief review of legislative history disclosing no substantive purpose in change of form-- Discloses no intent to circumscribe Minister's discretion in administration, management, control of Parks--Decision under review within discretion accorded by s. 8(1)--Record consistent with Minister according first, although not sole, priority to ecological integrity in arriving at decision under review--S. 4(1) of new Act requiring delicate balancing of conflicting interests which include benefit, enjoyment of those living in, and in close proximity to, Wood Buffalo National Park, particularly when Park so remote--While Wood Buffalo National Park, like other National Parks, dedicated to people of Canada as whole, not unreasonable to give special consideration to limited number of people of Canada most directly affected by management or decisions affecting Park-- (2) Whether Minister can approve road through National Park where first and determinative factor in decision not ecological integrity, and no evidence considered ecological integrity at all--S. 8(2) not requiring ecological integrity be "determinative factor", but simply "first" priority--Totality of evidence establishing it was--Although not using phrase "ecological integrity" in decision-making, or decision, ecological integrity taken into account--(3) Whether Parks Canada can issue permit under National Parks General Regulations, s. 12 to destroy 118 kilometres worth of park vegetation for non-park management purpose--False premise re: non-park management purpose--While winter road may not itself be required for park management purposes, once decision to authorize construction within Park taken, "park management purposes" expanded by decision itself to comprehend what is necessary to implement decision to allow winter road, with implied ongoing right to use and duty to maintain--Decision renders removal, defacement, damage, destruction of flora, natural objects, to extent required consistent with all reasonable mitigating measures, park management purpose--(4) Whether Parks Canada can choose to ignore respondent Thebacha Road Society's clearly stated intention to convert winter road into full-season road when determining scope of project to be assessed, even to point of cleansing project proposal of its original reference to proposed full-season road--Under Canadian Environmental Assessment Act, s. 15 Minister determined "scope" of project, for assessment purposes, to be winter road project--CPAWS urging "scoping" constituted reviewable error since "project" defined in relation to physical work such as road, not only construction, operation of road, but any proposed modification of road--CPAWS urging discretionary decision of Minister to "scope" project in manner limiting it to winter road, while ignoring long history of ultimate goal of all-season road, constituted unreasonable exercise of discretion-- Minister determined to treat winter road, any future proposal to build all-season road in same corridor as two separate projects, not as two phases of single project--Acted within scope of discretion--Project, as contemplated by Minister, regardless of what Thebacha may contemplate, winter road-- Decision reasonable--(5) Whether Parks Canada can assess road by way of screening assessment rather than comprehensive study, where obligation to conduct compre-hensive study arises whenever proposed project within national park conflicts with that park's management plan, and winter road project materially conflicts with Wood Buffalo's 1984 Management Plan--Management Plan neither contemplating nor preventing use of route for winter snow road--1984 Wood Buffalo National Park management plan directs reactivated roadway must "essentially" conform to 1958 snow road alignment--Proposed road follows original route except for 2.5 km--Proposed winter road project not conflicting with Park's Management Plan--Respondent acted within scope of discretion in determining to assess winter road project by way of screening assessment rather than by way of comprehensive study--(6) Whether Parks Canada can prevent timely public access to Registry of assessment documents maintained under Canadian Environmental Assessment Act, by requiring public to make access to information request for documents before released with result members of public denied access to assessment documents held in Registry until after period for public comment on assessment ended-- Assessment Act, s. 55(1) providing public registry shall be established, operated to ensure convenient public access to registry--While acknowledging CPAWS initially not given access to records in public registry in manner consistent with intention of s. 55, respondents submitting documents requested and extended opportunity for comment eventually provided--Mandatory "shall" used in Assessment Act, s. 55(1) --Prejudice caused by failure to comply would not appear to have been great; mere delay in opportunity to participate in public consultation--Consequences of Court finding of nullity would be great to those not directly impacted by non-compliance--Failure of Minister's officials to fully comply with requirements of s. 55(1) should not, in all of circumstances, result in rendering of totality of process leading to decision under review of no force or effect--Application dismissed--National Parks Act, R.S.C., 1985, c. N-14, ss. 4, 5--Canada National Parks Act, S.C. 2000, c. 32, ss. 4, 8 --National Parks General Regulations, SOR/78-213, s. 12-- Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 15, 55.