Moresby Explorers Ltd. et al. v. Canada (Attorney General) et al., 2005 FC 592

• Judge: Heneghan, J.
• Court: Federal Court (Canada)
• Case Date: April 29, 2005
• Jurisdiction: Canada (Federal)
• Citations: 2005 FC 592;(2005), 273 F.T.R. 175 (FC)

Moresby Explorers v. Can. (A.G.) (2005), 273 F.T.R. 175 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. MY.022

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

(T-23-04; 2005 FC 592)

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

Federal Court

Heneghan, J.

April 29, 2005.

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 dismissed the application.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - 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 was a co-chair of 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 for the operation of a tour business in the Park that contained quotas - The applicants sought judicial review - At issue, inter alia, was the standard of review - The Federal Court dismissed the application - The court held that the issuance of the licence was a discretionary decision that was reviewable on the standard of whether the decision-maker exercised his discretion to implement the policy in good faith, whether the principles of natural justice were observed where required or whether reliance was placed upon irrelevant or extraneous considerations having regard to the legislative purpose - See paragraphs 74 to 76.

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 - The agreement provided for a four person Archipelago Management Board (AMB) - The Park Superintendent was a co-chair of 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 for the operation of a tour business in the Park that contained quotas - The applicants sought judicial review - The Federal Court held that since the applicants accepted that their allocation for 2004 had been properly allocated and that they have not been refused additional quota on the basis of the Haida Allocation Policy, they were not "directly affected", within the meaning of s. 18.1(1) of the Federal Courts Act by the imposition of that policy and consequently lacked standing to challenge the policy in this judicial review application - Nor did they meet the tri-partite test for public interest standing - The court held that the first test was met where the Superintendent's act in allocating quota pursuant to the Haida Allocation Policy was tantamount to a legislative act - However, the applicants were not directly affected by the policy - Further, there was another reasonable and effective way to bring the Superintendent's Haida Allocation Policy before the court, by a judicial review application instituted by an unsuccessful non-Haida business licence applicant - See paragraphs 85 to 94.

Civil Rights - Topic 8485

Canadian Charter of Rights and Freedoms - Interpretation - Particular subjects - Aboriginal rights (s. 25) - 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 was a co-chair of 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 for the operation of a tour business in the Park that contained quotas - The applicants sought judicial review - At issue, inter alia, was whether the setting aside of one-third of the maximum overall user quota for Haida-owned businesses violated s. 15 of the Charter and, if so, whether s. 25 of the Charter operated to displace the equality rights guaranteed under s. 15 - The Federal Court held that s. 15 was not violated - The applicant Gould had not suffered a loss of human dignity - The court held that the Haida Allocation Policy did not constitute "other rights" under s. 25 of the Charter - See paragraphs 95 to 99.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See Civil Rights - Topic 8485 ].

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 was a co-chair of the AMB - Under the agreement, Parks Canada and the AMB established a business licensing process through the implementation of a quota policy - The Federal Court held that the Superintendent had the power under the Canada National Parks Act and Regulations to implement a quota system - Section 8(1) of the Act provided that the first priority in considering all aspects of the management of parks was the maintenance or restoration of ecological integrity - See paragraphs 79 to 84.

Crown - Topic 6878

Crown lands - National and provincial parks - Restriction or prohibition of activities within (incl. development) - [See Administrative Law - Topic 3202 and Crown - Topic 6874 ].

Crown - Topic 6879

Crown lands - National and provincial parks - Park use permits and licences - [See Administrative Law - Topic 3202 and Crown - Topic 6874 ].

Practice - Topic 219

Persons who can sue and be sued - Individuals and corporations - Status or standing - Validity or interpretation of legislation - [See Administrative law - Topic 3347 ].

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. 17].

Moresby Explorers Ltd. et al. v. Canada (Attorney General), [2001] 4 F.C. 591; 208 F.T.R. 189 (T.D.), refd to. [para. 21].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 30].

Service Employees' International Union, Local 333 v. Nipawin District Staff Nurses' Association et al., [1975] 1 S.C.R. 382, refd to. [para. 30].

Arcade Amusements Inc. v. Montreal (City), [1985] 1 S.C.R. 368; 58 N.R. 339, refd to. [para. 32].

Waldman v. Medical Services Commission (B.C.) et al., [1997] B.C.T.C. Uned. B67; 42 B.C.L.R.(3d) 1 (S.C.), affd. (1999), 128 B.C.A.C. 218; 208 W.A.C. 218; 67 B.C.L.R.(3d) 21 (C.A.), refd to. [para. 33].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 40].

Nowegijick v. Minister of National Revenue et al., [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 45].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, refd to. [para. 45].

Mitchell and Milton Management Ltd. v. Peguis Indian Band et al., [1990] 2 S.C.R. 85; 110 N.R. 241; 67 Man.R.(2d) 81, refd to. [para. 45].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 48].

Ontario Film and Video Appreciation Society and Ontario Board of Censors, Re (1984), 2 O.A.C. 388; 45 O.R.(2d) 80 (C.A.), refd to. [para. 49].

Maple Lodge Farms v. Canada et al., [1982] 2 S.C.R. 2; 44 N.R. 354, appld. [para. 54].

Kwicksutaineuk/Ah-kwa-mish Tribes v. Canada (Minister of Fisheries and Oceans) et al. (2003), 227 F.T.R. 96 (T.D.), refd to. [para. 55].

Canadian Telecommunications Union, Division No. 1 of the United Telegraph Workers v. Canadian Brotherhood of Transport and General Workers et al., [1982] 1 F.C. 603; 42 N.R. 243 (F.C.A.), refd to. [para. 56].

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. 61].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, appld. [para. 66].

Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General), [1993] 3 S.C.R. 675; 160 N.R. 161; 67 O.A.C. 81, refd to. [para. 66].

Hy and Zel's Inc. - see Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General).

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 69].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [para. 73].

Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; 218 N.R. 241, refd to. [para. 73].

Nunavut Tunngavik Inc. v. Canada (Minister of Fisheries and Oceans) (1998), 229 N.R. 249 (F.C.A.), refd to. [para. 74].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 25 [para. 98].

Counsel:

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

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

Louise Mandell, Q.C., and Mary MacAulay, for the respondent, Council of The Haida Nation.

Solicitors of Record:

Mackenzie Fujisawa, Vancouver, British Columbia, for the applicant;

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

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

This application was heard at Vancouver, British Columbia, on October 19 to 22, 2004, by Heneghan, J., of the Federal Court, who delivered the following decision at Ottawa, Ontario, on April 29, 2005.