Moresby Explorers Ltd. v. Can. (A.G.), (2007) 367 N.R. 204 (FCA)

• Judge: Nadon, Sharlow and Pelletier, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: March 26, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 367 N.R. 204 (FCA);2007 FCA 273

Moresby Explorers Ltd. v. Can. (A.G.) (2007), 367 N.R. 204 (FCA)

MLB headnote and full text

Temp. Cite: [2007] N.R. TBEd. SE.015

The Moresby Explorers Ltd. and Douglas Gould (appellants/applicants) v. The Attorney General of Canada and Council of the Haida Nation (respondents/respondents)

(A-240-05; 2007 FCA 273)

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

Federal Court of Appeal

Nadon, Sharlow and Pelletier, JJ.A.

August 30, 2007.

Summary:

The Superintendent of the Gwaii Haanas National Park Reserve of Canada (the Park) granted Gould and his company (the applicants) a 2004 commercial business licence for the operation of a tour business in the Park. The licence imposed user quotas. The applicants sought judicial review.

The Federal Court, in a decision reported at 273 F.T.R. 175, dismissed the application. The applicants appealed.

The Federal Court of Appeal, in a decision reported at 350 N.R. 101, dismissed the appeal. The parties were reconvened for argument on the question of whether the Haida Allocation Policy was invalid on the basis that the enabling legislation did not permit the Superintendent to discriminate between tour operators on the basis of race or size of business.

The Federal Court of Appeal also dismissed this aspect of the appeal, holding that there was nothing in the Act or the Regulations which would prohibit such a distinction.

Crown - Topic 6874

Crown lands - National and provincial parks - Superintendent - Powers - The federal government and the Council of the Haida Nation (CHN) entered into an agreement to cooperatively manage a national park reserve area, an archipelago designated by the CHN as a Haida heritage site - A business licensing process was established through the implementation of a quota policy - The applicants were granted a 2004 commercial business licence, containing quotas, for the operation of a tour business in the Park - They sought judicial review - They challenged, inter alia, the Haida allocation policy according to which one-third of the total available quota was allocated to Haida controlled businesses - Their application was dismissed - The applicants appealed, submitting, inter alia, that the Haida allocation policy was invalid on the basis that the enabling legislation did not permit the Superintendent to discriminate between tour operators on the basis of race or size of business - The Federal Court of Appeal rejected the submission and dismissed the appeal.

Crown - Topic 6878

Crown lands - National and provincial parks - Restriction or prohibition of activities within (incl. development) - [See Crown - Topic 6874 ].

Crown - Topic 6879

Crown lands - National and provincial parks - Park use permits and licences - [See Crown - Topic 6874 ].

Cases Noticed:

Sunshine Village Corp. v. Parks Canada et al., [2004] 3 F.C.R. 600; 320 N.R. 331; 2004 FCA 166, reving. [2003] 4 F.C. 459; 233 F.T.R. 125; 2003 FCT 546, folld. [para. 19].

Aerlinte Eireann Teoranta et al. v. Canada (1990), 107 N.R. 129; 68 D.L.R.(4th) 220 (F.C.A.), refd to. [para. 22].

Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 24].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 24].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 24].

Krause et al. v. Canada et al., [1999] 2 F.C. 476; 236 N.R. 317 (F.C.A.), refd to. [para. 24].

Counsel:

Christopher Harvey, Q.C., for the appellants;

Sean Gaudet, for the respondent, Attorney General of Canada;

Louise Mandell, Q.C., and Mary Locke Macaulay, for the respondent, Council of the Haida Nation.

Solicitors of Record:

MacKenzie Fujisawa, Vancouver, British Columbia, for the appellants;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, Attorney General of Canada;

Mandell Pinder, Vancouver, British Columbia, for the respondent, Council of the Haida Nation.

This appeal was heard at Vancouver, British Columbia, on March 26, 2007, by Nadon, Sharlow and Pelletier, JJ.A., of the Federal Court of Appeal. Pelletier, J.A., delivered the following decision for the court on August 30, 2007.