Moresby Explorers Ltd. v. Can. (A.G.), (2006) 350 N.R. 101 (FCA)

• Judge: Nadon, Sharlow and Pelletier, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 20, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 350 N.R. 101 (FCA);2006 FCA 144

Moresby Explorers Ltd. v. Can. (A.G.) (2006), 350 N.R. 101 (FCA)

MLB headnote and full text

Temp. Cite: [2006] N.R. TBEd. MY.003

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

(A-240-05; 2006 FCA 144)

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

Federal Court of Appeal

Nadon, Sharlow and Pelletier, JJ.A.

April 20, 2006.

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 dismissed the appeal.

Administrative Law - Topic 3347

Judicial review - Practice - Parties (incl. standing) - 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 - Gould and his company (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 - Canada argued that the appli­cants had not acquired standing because they had not been refused a request for ad­di­tional quota - The Federal Court of Ap­peal held that the applicants did not have to wait until the allocation policy caused them loss to challenge it on juris­dictional grounds - Further, Gould could challenge the policy on the basis of his equality rights but he was limited to chal­lenging it on the basis of his own circum­stances - He could not invoke a breach of someone else's rights in support of the Charter ar­gu­ment - See paragraphs 11 and 15 to 21.

Administrative Law - Topic 7526

Delegated powers - Validity of delegated powers - Rules or regulations - Discrimina­tory - 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 - Gould and his company were granted a 2004 commer­cial business li­cence, containing quotas, for the opera­tion of a tour business in the Park - They sought judi­cial review, arguing, inter alia, that the business caps were discriminatory in an administrative law sense - The Fed­eral Court of Appeal rejected the argument - First, the policies applied to all business­es, Haida and non-Haida alike - Second, the limits were deliberately chosen so as not to affect current operations - See para­graphs 22 to 26.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - [See Administrative Law - Topic 3347 ].

Civil Rights - Topic 8666

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Meaning of dis­crimination - 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 - Gould and his company (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 - Gould claimed that the Haida set-aside was a violation of his s. 15 equality rights under the Charter - The Federal Court of Appeal held that s. 15 was not vio­lated - Gould could not establish that he was the object of differen­tial treatment be­cause he had his licence and his quota - Con­se­quently, the Haida allocation policy did not result in differen­tial treatment between him and a person of Haida ances­try seeking to ob­tain a licence to do busi­ness in the park - See paragraphs 37 to 42.

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 - The agreement provided for a four per­son Archipelago Management Board (AMB) - The Park Superintendent co-chaired the AMB - Under the agreement, Parks Canada and the AMB established a busi­ness licensing process through the implementation of a quota policy - The Park Superintendent granted Gould and his company (the applicants) a 2004 commer­cial business licence, containing quotas, for the operation of a tour business in the Park - The applicants argued that the busi­ness caps were not authorized by the Canada National Parks Act and the Regula­tions - They argued that while the legisla­tion per­mitted the Superin­tendent to con­trol busi­nesses operating in the park re­serve to protect the park envi­ronment, it did not permit him (acting through the AMB) to con­trol businesses for other rea­sons, such as the prevention of monop­olies or to ensure a diversity of services - The Federal Court of Appeal affirmed that the Superin­tendent had the power under the Act and Regulations to implement a quota sys­tem - See paragraphs 27 to 36.

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:

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 12].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 13].

Canada (Attorney General) v. Vincent Estate (2005), 339 N.R. 82; 257 D.L.R.(4th) 268; 2005 FCA 272, refd to. [para. 18].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 20].

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81, refd to. [para. 20].

Arcade Amusements Inc. v. Montreal (City), [1985] 1 S.C.R. 368; 58 N.R. 339, refd to. [para. 23].

Moresby Explorers Ltd. et al. v. Canada (Attorney General) (2001), 208 F.T.R. 189; 2001 FCT 780 (T.D.), refd to. [para. 27].

Bristol-Myers Squibb Co. et al. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 533; 334 N.R. 55; 2005 SCC 26, refd to. [para. 32].

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, B.C., on March 13-16, 2006, by Nadon, Sharlow and Pelletier, JJ.A., of the Federal Court of Appeal. Pelletier, J.A., delivered the follow­ing decision for the court, at Ottawa, On­tario, on April 20, 2006.