Moresby Explorers Ltd. et al. v. Canada (Attorney General), (2001) 208 F.T.R. 189 (TD)

• Judge: Pelletier, J.
• Court: Federal Court (Canada)
• Case Date: May 25, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2001), 208 F.T.R. 189 (TD)

Moresby Explorers Ltd. v. Can. (A.G.) (2001), 208 F.T.R. 189 (TD)

MLB headnote and full text

Temp. Cite: [2001] F.T.R. TBEd. JL.061

Moresby Explorers Ltd. and Douglas Gould (applicants) v. The Attorney General of Canada (respondent)

(T-81-01; 2001 FCT 780)

Indexed As: Moresby Explorers Ltd. et al. v. Canada (Attorney General)

Federal Court of Canada

Trial Division

Pelletier, J.

July 9, 2001.

Summary:

An area in the Queen Charlotte Islands was transferred to the federal government and set aside as a National Park. The Haida Nation's outstanding land claim to the Queen Charlotte Islands led to a Haida-federal government agreement creating the Archipelago Management Board (AMB) to co-operatively manage the Park. The Superintendent of the Park retained ultimate decision-making authority, but was first to try to obtain a consensus among AMB members. A quota policy was established to regulate business licences (tour operators) in the Park. The policy was designed to freeze commercial tours at existing levels until the effect of those activities on the Park's ecological and cultural integrity could be assessed. Moresby Explorers provided, inter alia, kayak and diving tours prior to the institution of the licensing scheme, using an unauthorized float camp within Park boundaries. The float camp moved outside Park boundaries (provincial jurisdiction). However, Moresby continued to be denied quota allocation for diving and kayaking activities because the float camp continued to be used for these activities. Moresby sought judicial review of the decision. Moresby claimed (1) that the Superintendent (the Minister's delegate) improperly delegated decision-making authority to the AMB; (2) that there was no legislative authority to impose a quota policy; and (3) that the Superintendent's discretion respecting Moresby's quota allocation application was improperly exercised on the basis of, inter alia, irrelevant considerations.

The Federal Court of Canada, Trial Division, allowed the application and quashed the Superintendent's decision solely on the basis that the Superintendent misapplied her own policy. Moresby's kayaking and diving activities, previously carried on from the float camp, were a legitimate use of the Park in place when the licensing arrangements were instituted. The Superintendent failed to separate the two separate issues: legitimate pre-existing kayaking and diving activities entitled to quota and how to deal with an unwanted float camp. A blanket refusal to licence activities originating from a float camp located outside Park boundaries was beyond the Superintendent's powers. The lawfulness of the float camp was now a matter of provincial jurisdiction. The Superintendent, in refusing to allocate quota to Moresby for activities originating with the float camp, failed to comply with her own policy in that she had no jurisdiction to interfere with such operations prior to 1996. The court rejected the submissions that there was an impermissible delegation of decision-making authority to the AMB or that the quota policy lacked legislative authority. The matter was remitted to the Superintendent for allocation of quota.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Federal Court of Canada, Trial Division, held that reasonableness simpliciter was the standard of judicial review of discretionary decisions by a Superintendent of the National Park respecting licences and quota allocations for commercial activities in a Park - See paragraphs 87 to 91.

Administrative Law - Topic 7565

Delegated powers - Subdelegation of powers - Prohibition against delegation by delegate (delegatus non potest delegare) - The Superintendent of a National Park in the Queen Charlotte Islands was the Minister's delegate empowered to make licensing decisions to regulate commercial tour business in the Park - The Haida Nation's land claim led to the creation of the Archipelago Management Board (AMB) to co-operatively manage the Park - The Superintendent of the Park retained ultimate decision-making authority, but was to try to obtain a consensus among AMB members prior to making any decision - Licences contained quota allocations, regulating the extent of their activities in the Park - Moresby was denied quota for diving and kayaking - Moresby sought judicial review, submitting that the decision was made by the AMB, not the Superintendent, and that constituted an impermissible delegation of the Superintendent's decision-making authority - The Federal Court of Canada, Trial Division, held that there was no improper delegation - The fact that the Superintendent consulted with the AMB on each decision did not alter the fact that the Superintendent, absent consensus, made the final decision - There was no evidence that the Superintendent failed to exercise independent judgment following consultation - See paragraphs 58 to 85.

Administrative Law - Topic 7568

Delegated powers - Subdelegation of powers - What constitutes a delegation - [See Administrative Law - Topic 7565 ].

Administrative Law - Topic 9116

Boards and tribunals - Judicial review - Review of administrative policy or discretion - The Federal Court of Canada, Trial Division, stated that "it is indisputable that pure policy decisions are generally beyond the reach of the courts" - Courts were reluctant to interfere with "political" decisions except where their constitutionality was challenged, because it was not the court's function to assess the wisdom of government policy - The court stated that "while the wisdom of the quota policy is not a subject for judicial review except on the basis set out in Maple Leaf Farms i.e. bad faith, extraneous considerations etc., the application of the policy to specific cases of licensing can be reviewed on the usual grounds of judicial review, providing care is taken to avoid trenching upon the policy issues implicit in the licensing decision" - See paragraphs 53 to 57.

Crown - Topic 6879

Crown lands - National and provincial parks - Park use permits and licences - An area in the Queen Charlotte Islands was set aside as a National Park - A quota policy was established to regulate business licences (tour operators) in the Park - The policy froze commercial tours at existing 1996 levels until the effect of those activities could be assessed - Moresby Explorers provided, inter alia, kayak and diving tours prior to the institution of the licensing scheme, using an unauthorized float camp within Park boundaries - The float camp moved outside Park boundaries (provincial jurisdiction) - However, Moresby continued to be denied quota allocation for diving and kayaking activities because the float camp continued to be used for these activities - Moresby sought judicial review - The Federal Court of Canada, Trial Division, allowed the application and quashed the Superintendent's decision on the basis that Superintendent misapplied her own policy - Moresby's kayaking and diving activities, previously carried on from the float camp, were a legitimate use of the Park in place when the licensing arrangements were instituted - The Superintendent failed to separate the two separate issues: legitimate pre-existing kayaking and diving activities entitled to quota and how to deal with an unwanted float camp - A blanket refusal to licence activities originating from a float camp located outside Park boundaries was beyond the Superintendent's powers - The lawfulness of the float camp was now a matter of provincial jurisdiction - The Superintendent, in refusing to allocate quota to Moresby for activities originating with the float camp, failed to comply with her own policy in that she had no jurisdiction to interfere with such operations prior to 1996 - The matter was remitted to the Superintendent for allocation of quota - See paragraphs 92 to 116.

Cases Noticed:

Moresby Explorers Ltd. et al. v. Gwaii Haanas National Park Reserve et al., [2000] F.T.R. Uned. 787 (T.D.), refd to. [para. 1].

Carpenter Fishing Corp. et al. v. Canada (Minister of Fisheries and Oceans) et al., [1998] 2 F.C. 548; 221 N.R. 372 (F.C.A.), refd to. [para. 49].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 53].

Maple Lodge Farms v. Canada, [1981] 1 F.C. 500; 42 N.R. 312 (F.C.A.), refd to. [para. 54].

Agricultural Products Marketing Act, Re (1978), 19 N.R. 361; 84 D.L.R.(3d) 257 (S.C.C.), refd to. [para. 58].

Prince Edward Island Potato Marketing Board v. H.B. Willis Inc., [1952] 2 S.C.R. 392, refd to. [para. 58].

Brant Dairy Co. v. Milk Commission (Ont.) (1972), 30 D.L.R.(3d) 559 (S.C.C.), refd to. [para. 61].

Baluyut v. Minister of Employment and Immigration et al., [1992] 3 F.C. 420; 56 F.T.R. 186 (T.D.), refd to. [para. 79].

Evans (K.F.) Ltd. v. Canada (Minister of Foreign Affairs), [1997] 1 F.C. 405; 122 F.T.R. 105 (T.D.), refd to. [para. 81].

Holland v. Canada (Attorney General) (2000), 188 F.T.R. 305 (T.D.), refd to. [para. 83].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, refd to. [para. 87].

Statutes Noticed:

National Parks Act, R.S.C. 1985, c. N-14, sect. 4, sect. 5(1), sect. 5(1.1), sect. 5(1.2) [para. 55]; sect. 7(1), sect. 8.2 [Schedule B]; sect. 8.5(1) [para. 63]; sect. 8.5(2), sect. 8.5(3), sect. 8.5(4) [Schedule B].

National Parks Act Regulations (Can.), National Parks Business Licensing Regulations, SOR/198-455, sect. 3, sect. 5, sect. 6 [para. 111].

National Parks Business Licensing Regulations - see National Parks Act Regulations (Can.).

Parks Canada Agency Act, S.C. 1998, c. 31, sect. 5 [Schedule B].

Counsel:

Christopher Harvey, for the applicants;

Suzanne S. William, for the respondent.

Solicitors of Record:

Fasken Martineau DuMuolin LLP, Vancouver, B.C., for the applicants;

Miller Thompson LLP, Vancouver, B.C., for the respondent.

This application was heard on May 25, 2001, at Vancouver, B.C., before Pelletier, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on July 9, 2001.