Société pour la protection des parcs et des sites naturels du Canada v. Canada (Ministre du patrimoine), 2003 CAF 197 (2003)

Federal Court Reports

Canadian Parks and Wilderness Society v. Canada (Minister of Canadian Heritage) (C.A.) [2003] 4 F.C. 672

Date: 20030430

Docket: A-658-01

Citation: 2003 FCA 197

CORAM: ROTHSTEIN J.A.

EVANS J.A.

MALONE J.A.

BETWEEN:

CANADIAN PARKS AND WILDERNESS SOCIETY

Appellant

and

SHEILA COPPS, MINISTER OF CANADIAN HERITAGE

and

THE THEBACHA ROAD SOCIETY

Respondents

Heard at Edmonton, Alberta, on February 6, 2003.

Judgment delivered at Ottawa, Ontario, on April 30, 2003.

REASONS FOR JUDGMENT BY: EVANS J.A.

CONCURRED IN BY: ROTHSTEIN J.A.

MALONE J.A.

Date: 20030430

Docket: A-658-01

Citation: 2003 FCA 197

CORAM: ROTHSTEIN J.A.

EVANS J.A.

MALONE J.A.

BETWEEN:

CANADIAN PARKS AND WILDERNESS SOCIETY

Appellant

and

SHEILA COPPS, MINISTER OF CANADIAN HERITAGE

and

THE THEBACHA ROAD SOCIETY

Respondents

REASONS FOR JUDGMENT

EVANS J.A.

A. INTRODUCTION

[1] Wood Buffalo National Park is the biggest national park in Canada and one of the world's largest. Situated mainly in northern Alberta, and partly in the Northwest Territories, the Park measures nearly 45,000 square kilometres. It was established in 1922 especially to protect the resident bison and today remains home to the largest herd of free-roaming bison in the world. The Park also contains the last known nesting area of the endangered whooping crane, the finest example of gypsum karst landforms in North America, and vast undisturbed boreal forests. In recognition of its ecological importance, Wood Buffalo National Park was declared a UNESCO world heritage site in 1987.

[2] These proceedings arise from the approval of a proposal to establish a winter road in the Park. The road would occupy less than 1% of the park's total area. The Canadian Parks and Wilderness Society ("CPAWS") applied for judicial review of the approval of the road by the Minister of Canadian Heritage, acting through her delegate, the Director General, Western and Northern, Parks Canada Agency. The Minister made the decision to approve the road after considering an environmental screening assessment report and concluding that the proposed road was "not likely to cause significant adverse environmental effects".

[3] In a decision rendered on October 16, 2001, and reported as Canadian Parks and Wilderness Society v. Canada (Minister of Canadian Heritage) (2001), 212 F.T.R. 1, 2001 FCT 1123, Gibson J. dismissed CPAWS' application for judicial review. This is an appeal by CPAWS from that decision. It advances three principal grounds on which Gibson J.'s decision should be set aside and the approval of the road quashed.

[4] First, the Minister has no power to approve the construction of a road for non-park purposes. Since such a power would be incompatible with the statutory scheme governing national parks, it cannot be inferred from the Minister's responsibility for the management of national parks, including the administration of public lands in the parks, that was conferred by subsection 8(1) of the Canada National Parks Act , S.C. 2000, c. 32 ("CNPA"), which came into force in February 2001.

[5] Second, in approving the construction of the road, the Minister failed to discharge the statutory duty imposed by subsection 8(2) of the CNPA to make the "maintenance or restoration of ecological integrity ... the first priority of the Minister when considering all aspects of the management of parks." In her reasons for decision, the Minister did not expressly take into account the maintenance of ecological integrity as the first priority, but referred only to the absence of significant adverse environmental effects. The Minister thus erred in law in the exercise of her discretion by failing to take into consideration a relevant factor or, in the alternative, the decision was unreasonable in light of the material before her.

[6] Third, subsection 12(1) of the National Parks General Regulations , SOR/78-213 (&q...

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