Judgments

[1995] 1 F.C. 420

T-137-94

Sunshine Village Corporation (Applicant)

v.

Superintendent of Banff National Park, Director of the Western Region of Parks Canada, Minister of Canadian Heritage and Canadian Parks and Wilderness Society (Respondents)

T-2505-93

Canadian Parks and Wilderness Society (Applicant)

v.

Superintendent of Banff National Park, Director of the Western Region of Parks Canada, Dr. Bruce Leeson, Jean Charest (in his former capacity as Minister of Environment), Monique Landry (Secretary of State of Canada), Attorney General of Canada and Sunshine Village Corporation (Respondents)

Indexed as: Sunshine Village Corp. v. Canada (Superintendent of Banff National Park) (T.D.)

Trial Division, Joyal J.—Vancouver, May 4; Ottawa, October 13, 1994.

Environment — Applicability of EARP Guidelines to long-range development of ski resort in Banff National Park initially approved in 1978, before adoption of EARP Guidelines — Non-retroactivity of Guidelines — Applicability of EARP Guidelines to subsequent implementation of plan components and amendments thereto — Meaning of “proposal,” “implementation” examined — Duplication of review process to be avoided, for sake of finality.

In the mid-70’s, the applicant Sunshine Village Corporation, owner and operator of ski facilities in Banff National Park, presented a long-range plan to expand ski facilities in its designated ski area. Public hearings were initiated in 1976. The Minister responsible for national parks approved the long-range plan for the expansion of Sunshine Village in 1978 and the federal government soon entered into a development agreement. The plan included new lifts, staff accommodation, re-development of existing structures, new sewage treatment facilities, rehabilitation of previously disturbed areas and the development of Goat’s Eye Mountain.

Implementation of the plan proceeded gradually. In 1986, an agreement between Parks Canada and Sunshine reiterated and confirmed the 1978 long-range plan, but also allowed for amendments thereto. Environmental assessment and public consultation would be part of any plan amendment. In 1992, Sunshine submitted a modified long-range plan which was reaffirmed by the Minister of the Environment with the understanding that the environmental assessment review process would apply to each plan component, in a manner consistent with the standard development and approval process in Banff National Park. He stated that there was no need for a full public consultation process since the proposal did not vary significantly from the 1978 plan.

In October 1992, an agreement was entered into by Sunshine and Canadian Parks Service for the development of Goat’s Eye pursuant to the long-range plan. In February 1993, after two stages of review of previous drafts, the environmental assessment of the Goat’s Eye plan was approved and accepted by Parks Canada in a screening decision made in accordance with the EARP Guidelines. The decision stated that formal public consultation was not required because it concerned a component of a larger plan which was approved in 1978 subsequent to extensive public consultation and that the predicted environmental impacts were either insignificant or mitigable with known technology as defined in the EARP Guidelines. In September 1993, Sunshine entered into a construction agreement with Banff National Park officials, specifying tight environmental conditions and control. In October 1993, a restricted activity permit, to clear the lower part of the ski runs, was issued by the Park Superintendent. An injunction application by Canadian Parks and Wilderness Society (CPAWS) was dismissed. CPAWS also made the present application for judicial review to invalidate the construction agreement, the timber cutting permit and the approval of the long-range plan and to require an order that Parks Canada conduct a proper environmental assessment before issuing a timber cutting permit or allowing the development of Goat’s Eye Mountain to proceed.

Parks Canada then invited public comments on the Goat’s Eye development and refused Sunshine’s application for logging permits required for the development. In January 1994, the Minister responsible for national parks determined that public concerns were such that a public review of the expansion proposals was desirable and, acting pursuant to section 13 of the EARP Guidelines, he formally requested that the Minister of the Environment establish an Environmental Assessment Panel to conduct a full public review of both the Goat’s Eye development proposal and the proposed additions to the existing facilities.

Sunshine applied for judicial review of the logging permit refusal and applied for a declaratory judgment (1) that the EARP Guidelines did not apply to the 1978 approvals; (2) that the current ministerial request for a section 13 Panel was not valid; (3) that the process that applied to the balance of development at Sunshine was the standard development approval process in Banff National Park; (4) that the applicant was entitled to the permit it required to continue its Goat’s Eye development and (5) that the January 20, 1994 decision of the Superintendent be quashed.

The main issues were: (1) Did the EARP Guidelines enacted in 1984 apply to the long-range plan and to the Goat’s Eye development? In the affirmative, have they been followed? (2) What discretionary powers had the Minister to request a review panel? (3) What remedies could the Court allow in this case?

Held, Sunshine’s application for judicial review in T-137-94 should be allowed and CPAWS’ application for judicial review in T-2505-93 should be dismissed.

There was a preliminary issue as to CPAWS’ standing to launch its own action. The mootness test elaborated by the Supreme Court of Canada in Borowski v. Canada (Attorney General) was applied. CPAWS’ proceeding was indeed moot since Parks Canada had decided to do what CPAWS was seeking: Parks Canada has set up a review Panel to further assess the environmental impacts of the project. In any event, CPAWS has validly been given the standing of respondent in Sunshine’s application.

With respect to the applicability of the 1984 EARP Guidelines to the Goat’s Eye project and the long-range plan, the general principle is the non-retroactivity of legislation. However, the EARP Guidelines may be said to apply to post-1984 amendments to the initial project.

Before the first permit was issued in October 1993, the Goat’s Eye project had been through an EARP Guidelines screening process with success and all environmental assessments had been dealt with. It had to be remembered that the Superintendent also had a general discretion to issue permits pursuant to section 12 of the National Parks General Regulations.

The problems for Sunshine started when Parks Canada, purporting to act pursuant to section 15 of the Guidelines, invited comments from the public on the Goat’s Eye development project. But public information sessions concerning the long-range plan had been held in December 1992 after the then Minister responsible approved the plan, including the Goat’s Eye project, and the screening process under section 12 had been approved in February 1993, with the mention that no “formal public consultation” was necessary. Section 15, dealing with proposals, was no longer applicable because, once the construction agreement was entered into and the timber cutting permit issued, Sunshine was no longer dealing with a Goat’s Eye “proposal,” but rather with the “implementation” of its project while waiting for the second permit to be issued. For the Superintendent to rely on the public responses to refuse the second permit for the Goat’s Eye project was a jurisdictional error, since there was no longer a “proposal” to deal with. However, any public response to the other components of the long-range plan might still be acceptable since that plan is still in the “proposal” stage, not having gone through any screening process or preliminary environmental assessments.

Parks Canada’s wide discretionary power to grant or refuse timber cutting permits had to be exercised in accordance with procedural fairness, part of which is a legitimate expectation of a certain outcome. Having signed a construction agreement and having been issued a first timber cutting permit, the applicant could reasonably expect that the second permit would be granted.

Section 5 of the EARP Guidelines provides that duplication is to be avoided and that public review should be used as a planning tool at the earliest stages of development of a proposal. First, the general proposal was originally accepted in principle in 1978 and some of the proposals were implemented in the 1980’s in full compliance with the extreme control requirements imposed by Parks Canada pursuant to its statutory obligations to do so. Once the necessary licenses and permits from Parks Canada have been issued, the project could not be said to remain a proposal. Second, Parks Canada adhered to the EARP Guidelines in assessing the environmental impact of development of Goat’s Eye Mountain and found that the possible environmental effects were insignificant or mitigable with known technology. Once a component of an overall proposal has been approved and such component has crossed all the necessary thresholds, the powers of both regulators under either EARP or Parks Canada have been exhausted, the residual implementation control being, as herein, left to the highly rigid regulatory functions of Parks Canada. Furthermore, section 8 of the Guidelines provides that the Guidelines apply only if there is no duplication resulting from the application of the Guidelines. The environmental and ecological controls exercisable by Parks Canada were not only a duplication of the processes under the Guidelines, but far more pervasive, applying to implementation as well as to proposal. The purpose of sections 5 and 8 of the Guidelines is to avoid multiple re-hashing of proposals, especially when an initiating department, like Parks Canada, has more than enough power to investigate and regulate every aspect of ecological and environmental concerns.

Section 13 of the Guidelines should not be used to exercise ministerial discretion to postpone the implementation of projects which have been duly approved and for which the necessary implementation authorizations have been issued. Public concerns over environmental issues should not be made a matter of whim by anyone purporting to act under the authority of either the EARP Guidelines or the National Parks Act and its large volume of regulations. Otherwise, regardless of the many processes to which an applicant had submitted, there would be no finality to any proposal. Once a proposal has been cleared, the purely regulatory process, as in the case of Parks Canada, takes over and that is the limit of any competence or authority under the EARP Guidelines.

The incremental effect of successive components was a matter to be resolved as each programme approaches the actual development stage.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Alberta Business Corporations Act, S.A. 1981, c. B-15.

Environmental Assessment and Review Process Guidelines Order, SOR/84-467, ss. 2, 3, 5, 6, 8, 10, 11, 12, 13, 14, 15.

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Federal Court Rules, C.R.C., c. 663, R. 1602(4) (as enacted by SOR/92-43, s. 19).

National Parks Act, R.S.C., 1985, c. N-14, ss. 4, 5(1.2) (as am. by R.S.C., 1985 (4th Supp.), c. 39, s. 3), 5(1.4) (as am. idem), 7 (as am. by R.S.C., 1985 (3rd Supp.), c. 28, s. 359, Sch., Item 7; (4th Supp.), c. 39, s. 5; S.C. 1991, c. 24, s. 51, Sch. III, Item 9; 1992, c. 47, s. 84, Sch., Item 8).

National Parks General Regulations, SOR/78-213, s. 12.

CASES JUDICIALLY CONSIDERED

APPLIED:

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75 Sask. R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38 C.R.R. 232; 92 N.R. 110; Naskapi-Montagnais Innu Assn. v. Canada (Minister of National Defence), [1990] 3 F.C. 381; (1990), 35 F.T.R. 161; 5 C.E.L.R. (N.S.) 287 (T.D.); Eastmain Band v. Canada (Federal Administrator), [1993] 1 F.C. 501; (1992), 99 D.L.R. (4th) 16; 9 C.E.L.R. (N.S.) 157; [1993] 3 C.N.L.R. 55; 145 N.R. 270 (C.A.); Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643; (1985), 24 D.L.R. (4th) 44; [1986] 1 W.W.R. 577; 69 B.C.L.R. 255; 16 Admin. L.R. 233; 23 C.C.C. (3d) 118; 49 C.R. (3d) 35; 63 N.R. 353; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; (1991), 83 D.L.R. (4th) 297; [1991] 6 W.W.R. 1; 58 B.C.L.R. (2d) 1; 127 N.R. 161; National Anti-Poverty Organization v. Canada (Attorney General), [1989] 3 F.C. 684; (1989), 60 D.L.R. (4th) 712; 36 Admin. L.R. 197; 26 C.P.R. (3d) 440; 99 N.R. 181 (C.A.); revg [1989] 1 F.C. 208; (1988), 32 Admin. L.R. 1; 21 C.P.R. (3d) 305; 21 F.T.R. 33 (T.D.).

DISTINGUISHED:

Curragh Resources Inc. v. Canada (Minister of Justice), [1993] 3 F.C. 729; (1993), 11 C.E.L.R. (N.S.) 173; 155 N.R. 348 (C.A.).

REFERRED TO:

Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; (1988), 54 D.L.R. (4th) 577; 19 Q.A.C. 69; 10 C.H.R.R. D/5559; 36 C.R.R. 1; 90 N.R. 84; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; (1986), 33 D.L.R. (4th) 321; [1987] 1 W.W.R. 603; 23 Admin. L.R. 197; 17 C.P.C. (2d) 289; 71 N.R. 338; Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), [1991] 1 F.C. 641; (1990), 6 C.E.L.R. (N.S.) 89; 121 N.R. 385 (C.A.); affg (1989), 4 C.E.L.R. (N.S.) 201; 31 F.T.R. 1 (F.C.T.D.); Canadian Parks and Wilderness Society v. Canada (Minister of the Environment), [1993] F.C.J. No. 1191 (QL).

AUTHORS CITED

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

APPLICATIONS FOR JUDICIAL REVIEW (1) attacking the decision of the Acting Superintendent of Banff National Park not to issue a logging permit necessary to continue Sunshine Village Corporation’s previously approved development project; (2) attacking the construction agreement between Sunshine Village Corporation and Parks Canada. First application allowed; second application dismissed.

COUNSEL:

Stewart A. G. Elgie for applicant Canadian Parks and Wilderness Society.

John J. L. Hunter for applicant Sunshine Village Corporation.

Kirk N. Lambrecht for respondents.

SOLICITORS:

Sierra Legal Defence Fund, Vancouver, for applicant Canadian Parks and Wilderness Society.

Davis & Company, Vancouver, for applicant Sunshine Village Corporation.

Deputy Attorney General of Canada for respondents.

The following are the reasons for order rendered in English by

Joyal J.: The Court is seized with an application by Sunshine Village Corporation for judicial review pursuant to section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)] of the decision of the Acting Superintendent of Banff National Park, rendered January 20, 1994, not to issue a permit necessary for the continued construction to clear the ski runs, build the lifts and otherwise complete its programme as set out in the construction agreement entered into on September 17, 1993, between the applicant and Parks Canada. The refusal was based on a decision to conduct an environmental assessment of the project under the Environmental Assessment and Review Process Guidelines Order, SOR/84-467. The position of the applicant is that the project is not subject to the EARP Guidelines and that the applicant is entitled to its permit.

Prior to the filing of Sunshine’s application, the Canadian Parks and Wilderness Society [hereinafter CPAWS], on October 22, 1993, also filed an application seeking an order declaring invalid or unlawful the construction agreement between Parks Canada and Sunshine Village Corporation, and the timber cutting permit for the lower part of the ski runs granted on October 7, 1993. CPAWS is also demanding that the decision of the Minister of Environment to approve the long-range plan submitted by Sunshine be declared invalid and of no force and effect. It requires an order that Parks Canada conduct a proper environmental assessment before issuing a timber cutting permit or allowing the development of Goat’s Eye Mountain in Banff to proceed.

BACKGROUND

Sunshine Village Corporation is a company incorporated under the Alberta Business Corporations Act, S.A. 1981, c. B-15, carrying on the business of owning and operating ski facilities bearing the same name. The ski station itself is located roughly half-way between Banff to the east and Lake Louise to the west. The area is an alpine ski area designated by Parks Canada, located within Banff National Park, and has gone through a series of developments over the years for that purpose. Sunshine Village is a short distance south of the Trans-Canada Highway, and the access road leads to a parking lot where formerly a jitney bus, and now a gondola, carries skiers up a narrow defile to a snow-bowl or valley where the ski station’s installations are located. During the mid-1970’s, the applicant, then T.I.W. Industries, presented a long-range plan to expand ski facilities in its designated ski area, on which public hearings were initiated in 1976.

In 1978, the Minister responsible for national parks approved “in principle” the long-range plan for the expansion of Sunshine Village. The plan included new lifts, staff accommodation, re-development of existing structures, new sewage treatment facilities and rehabilitation of previously disturbed areas. The plan also included the development of Goat’s Eye Mountain running down to the left of the gondola line and roughly at right angle to it.

Acting on this approval, the federal government entered into a development agreement in May of 1978.

One of the provisions of the development agreement reads as follows:

5. Her Majesty covenants and agrees that contemporaneously with approving the plans and specifications submitted by the Developer Her Majesty’s lawful representatives will issue such permits and licenses as are required by the Regulations under the National Parks Act and as are necessary in order to proceed with construction of the improvements. The Developer agrees that it will not cut down or permit the cutting down, interfere with or permit the interference with any timber, trees or other vegetation upon the lands or impair or permit the impairment of the natural beauty of the lands without first having obtained the permission of the Superintendent such permission not to be unreasonably withheld.

Pursuant to the agreement, the Sunshine Village gondola was constructed and opened to the public for the 1979-1980 season, and the parking lot was expanded. Furthermore, ski facilities adjacent to Goat’s Eye Mountain were developed in the 1980’s.

In March of 1981, a portion of Banff National Park was leased from the Government to Sunshine Village Corporation, with the lease expiring in the year 2020. Sunshine holds the lease through assignment consented to by Parks Canada. The lease provides, at paragraph 6, that the applicant will “operate a first class ski resort” on the leased land. Goat’s Eye Mountain is within the boundaries of the leasehold.

The lease approved the expansion of the existing operations and further development of downhill skiing facilities. The question of timber cutting permits was dealt with in the following terms:

9. The Lessee agrees that it will not cut down or permit the cutting down, interfere with or permit the interference with any timber, trees or other vegetation upon the land or impair or permit the impairment of the natural beauty of the land without first having obtained the permission of the Superintendent such permission not to be unreasonably withheld.

Acting upon the 1978 approvals, work on Goat’s Eye continued with some cutting of lift lines. In 1986, an agreement between Parks Canada and Sunshine reiterated and confirmed the 1978 long-range plan, but also allowed for amendments to the plan. Environmental assessment and public consultation would be part of any plan amendment. In accordance with this, in April of 1987, public consultation was held due to Sunshine’s proposal for greater skier capacity. Parks Canada also required that Sunshine complete an initial environmental evaluation (IEE) of the project. The proposal was eventually withdrawn.

Further discussions took place on the long-range plan and in April 1989, after Parks Canada had analyzed the plan, the Minister of Environment requested a modified proposal by Sunshine.

Between 1988 and 1992 there were lengthy delays in the development of substantially modified proposals. In July 1991, the Goat’s Eye Planning Committee met, consisting of representatives of Sunshine and Parks Canada. The minutes indicate that:

The approval process for Goat’s Eye was described as follows:

1. Conceptual approval—contained in 1978 development approval.

2. Implementation approval—subsequent to a development plan and environmental assessment mutually satisfactory to both Canadian Parks Service and Sunshine Village Corporation.

3. Construction Agreement—is a contract between CPS and SVC which details the specific aspects of constructing the project.

In February 1992, a three-day planning conference was held at Banff and Sunshine Village. In May of 1992, Sunshine submitted its draft of a modified long-range plan, which included Goat’s Eye Mountain, to the Minister of Environment. It sought approval for new parking areas, changes to the existing leasehold boundary area, expansion of on-site hotel and construction of new ski lifts.

In July of 1992, Sunshine submitted a Goat’s Eye plan for construction of lifts, ski runs and a day lodge. At the end of the same month, a preliminary environmental assessment of the May 1992 long-range plan was elaborated. The general impression was that the project was possible within environmental, economic and engineering constraints. The only exception was the question of parking space.

In August 1992, the Minister of Environment and responsible for Canadian Parks Service, then the Honourable Jean Charest, reaffirmed the long-range plan:

as submitted, with the understanding that:

—the environmental assessment review process will apply to each plan component, in a manner consistent with the standard development and approval process in Banff National Park.

He also stated that there was “no need for a full public consultation process” since the proposal did not vary significantly from the 1978 plan. He also approved the additional parking, accommodation, and daily skier capacity.

In October 1992, an agreement was entered into by Sunshine and Canadian Parks Service for the development of Goat’s Eye pursuant to the long-range plan. In early December, 1992, Canadian Parks Service and Sunshine jointly hosted two public information sessions to explain the long-range development plan.

On February 12, 1993, after two stages of review of previous drafts, the environmental assessment of the Goat’s Eye plan was approved and accepted by Parks Canada in a screening decision made in accordance with the EARP Guidelines. This approval was signed by Bruce F. Leeson, Chief of the Environmental Assessment Sciences Division of Canadian Parks Service and Charlie Winkan, Superintendent of Banff National Park. The decision included the following observations:

Formal public consultation is not required because development of the Goat’s Eye pod is a component of a larger plan which was approved in 1978 subsequent to extensive public consultation.

…

Environmental impacts predicted to result from the proposed development of Goat’s Eye Mountain for skiing at Sunshine Village are either insignificant or mitigable with known technology as defined in section 12(c) of Environmental Assessment and Review Process Guidelines Order 1984.

In September of 1993, Sunshine entered into a construction agreement with Banff National Park officials, to set out the terms under which the development of Goat’s Eye would take place pursuant to the 1992 Goat’s Eye screening decision. The agreement referred to the timber removal process and the environmental caution and tight conditions associated with the restricted timber removal activities. It also required the attendance of an Environmental Surveillance Officer almost daily at the site.

The agreement further required that Sunshine comply with bonding provisions. On October 5, 1993, the bond required was delivered by Sunshine to the Superintendent of Banff National Park.

The agreement also provided, in Part II:

1. Complete plans … of each component of this project must be submitted to and approved by the Superintendent prior to commencement of construction.

If, in the reasonable opinion of the Superintendent, the plans … would lead to environmental impacts which are unacceptable or unnecessary, or are, in the Superintendent’s opinion, not in the best interests of Parks Canada, he may deny approval.

2. No site disturbance or construction of any component of this project may commence on a site until a Building Permit has been issued by the Superintendent.

On October 7, 1993, a restricted activity permit was issued for the purpose of clearing ski runs as specified in the construction agreement. The permit was to be effective from October 7 to November 15, 1993, to clear the lower part of the ski runs.

In late October 1993, after clearance of trees had commenced but before it was concluded, the issuance of the restricted activity permit was challenged in this Court by the Canadian Parks and Wilderness Society, an environmental group. Its injunction application, in file T-2505-93 [Canadian Parks and Wilderness Society v. Canada (Minister of the Environment), [1993] F.C.J. No. 1191 (QL)], was dismissed by Justice Strayer and the fall programme has since been completed. CPAWS is primarily concerned with preserving the integrity of ecosystems in Canada’s national and provincial parks and other protected areas. It is seeking to set aside the construction agreement and the restricted activity permit on the ground that proper environmental assessments under the EARP Guidelines have not been conducted, and for an order that such assessments be conducted.

The winter programme, which needed a permit in order to proceed, was to commence as soon as the snow pack was sufficient to permit environmentally safe operations. The construction programme provided that logging would be carried out in these areas primarily by removing the timber over the snow during the winter or to the extent necessary by helicopter in the summer.

On December 22, 1993, Parks Canada, acting pursuant to section 15 of the EARP Guidelines, placed advertisements in local papers under the heading “Public Notice,” inviting comments on the Goat’s Eye development from the public within 30 days. Sunshine objected to this procedure since the development had already been approved and was underway.

It is alleged by Sunshine that the Superintendent of the Park gave verbal assurances that assuming no new significant environmental impact was revealed through this process, the permit for the winter programme would be issued on the 31st day from the notice, which should have been January 21, 1994. Meetings were held before that date in order to discuss the next steps of the construction programme.

On January 20, 1994, Sunshine was advised by the Acting Superintendent that:

Parks Canada will require some time to review the comments received and seek the Minister’s determination of public interest in accordance with EARPGO.

The logging permits were in fact not issued on January 21, 1994. It is of that decision that this Court is seized with a request for judicial review, the application having been filed on January 25, 1994.

That same day, the Minister responsible for national parks determined that public concerns were such that a public review of the expansion proposals at Sunshine Village was desirable. Acting pursuant to section 13 of the EARP Guidelines, he formally requested that the Minister of the Environment establish an Environmental Assessment Panel to conduct a full public review of both the Goat’s Eye development proposal and the proposed additions to the existing facilities.

EARP GUIDELINES

Pertinent sections of the Guidelines read as follows:

3. The Process shall be a self assessment process under which the initiating department shall, as early in the planning process as possible and before irrevocable decisions are taken, ensure that the environmental implications of all proposals for which it is the decision making authority are fully considered and where the implications are significant, refer the proposal to the Minister for public review by a Panel.

…

5. (1) Where a proposal is subject to environmental regulation, independently of the Process, duplication in terms of public reviews is to be avoided.

(2) For the purpose of avoiding the duplication referred to in subsection (1), the initiating department shall use a public review under the Process as a planning tool at the earliest stages of development of the proposal rather than as a regulatory mechanism and make the results of the public review available for use in any regulatory deliberations respecting the proposal.

6. These Guidelines shall apply to any proposal

(a) that is to be undertaken directly by an initiating department;

(b) that may have an environmental effect on an area of federal responsibility;

(c) for which the Government of Canada makes a financial commitment; or

(d) that is located on lands, including the offshore, that are administered by the Government of Canada.

…

8. Where a board or an agency of the Government of Canada or a regulatory body has a regulatory function in respect of a proposal, these Guidelines shall apply to that board, agency or body only if there is no legal impediment to or duplication resulting from the application of these Guidelines.

…

10. (1) Every initiating department shall ensure that each proposal for which it is the decision making authority shall be subject to an environmental screening or initial assessment to determine whether, and the extent to which, there may be any potentially adverse environmental effects from the proposal.

(2) Any decisions to be made as a result of the environmental screening or initial assessment referred to in subsection (1) shall be made by the initiating department and not delegated to any other body.

11. For the purposes of the environmental screening and initial assessment referred to in subsection 10(1), the initiating department shall develop, in cooperation with the Office,

(a) a list identifying the types of proposals that would not produce any adverse environmental effects and that would, as a result, be automatically excluded from the Process; and

(b) a list identifying the types of proposals that would produce significant adverse environmental effects and that would be automatically referred to the Minister for public review by a Panel.

12. Every initiating department shall screen or assess each proposal for which it is the decision making authority to determine if

(a) the proposal is of a type identified by the list described under paragraph 11(a), in which case the proposal may automatically proceed;

(b) the proposal is of a type identified by the list described under paragraph 11(b), in which case the proposal shall be referred to the Minister for public review by a Panel;

(c) the potentially adverse environmental effects that may be caused by the proposal are insignificant or mitigable with known technology, in which case the proposal may proceed or proceed with the mitigation, as the case may be;

(d) the potentially adverse environmental effects that may be caused by the proposal are unknown, in which case the proposal shall either require further study and subsequent rescreening or reassessment or be referred to the Minister for public review by a Panel;

(e) the potentially adverse environmental effects that may be caused by the proposal are significant, as determined in accordance with criteria developed by the Office in cooperation with the initiating department, in which case the proposal shall be referred to the Minister for public review by a Panel; or

(f) the potentially adverse environmental effects that may be caused by the proposal are unacceptable, in which case the proposal shall either be modified and subsequently rescreened or reassessed or be abandoned.

…

13. Notwithstanding the determination concerning a proposal made pursuant to section 12, if public concern about the proposal is such that a public review is desirable, the initiating department shall refer the proposal to the Minister for public review by a Panel.

…

15. The initiating department shall ensure

(a) after a determination concerning a proposal has been made pursuant to section 12 or a referral concerning the proposal has been made pursuant to section 13, and

(b) before any mitigation or compensation measures are implemented pursuant to section 14,

that the public have access to the information on and the opportunity to respond to the proposal in accordance with the spirit and principles of the Access to Information Act.

ISSUES

The main issues may be outlined as follows:

(1) Do the EARP Guidelines enacted in 1984 apply to the long-range plan and to the Goat’s Eye development? In the affirmative, have they been followed?

(2) What discretionary powers has the Minister to request a review panel?

(3) What remedies can the Court allow in this case?

APPLICANT’S (SUNSHINE) POSITION

The position of the applicant is that since the Goat’s Eye development was approved in 1978 and that the EARP Guidelines did not come into effect until 1984, these Guidelines do not apply as they have no retroactive effect. They could therefore not be used to justify the refusal of the second permit. The applicant needs this permit to clear the upper portions of the runs since the lower portions were cleared during the fall. It would have been convenient that the logging zones be started before that point in the spring when there is too little snow to transport the logs out. Since that time of year has now passed, the only environmentally safe way in which it can be completed is by helicopter, which could double the cost of the programme.

In support of its application, Sunshine has filed amongst others an affidavit of Charles Zinkan, who is the Superintendent of Banff and also a respondent to these proceedings. He states that the site and the long-range development plan were approved after many environmental assessments. He is of the view that public interest requires that proponents be able to fully rely on such governments approvals in order to carry out their projects and that withdrawing the approval will undermine the integrity of the approval and permit process.

The applicant submits that the federal government has consistently taken the position that the decision to approve the Goat’s Eye project was made in 1978 and that since then, the many procedures taken have been to reconfirm the project. The non-retroactivity of the Guidelines was confirmed by Parks Canada when it prepared a press line to set out its position in CPAWS’ application for an injunction in file T-2505-93. It reads as follows:

The Goat’s Eye project approval dates back to 1978 and was approved by Hugh Faulkner, then Minister responsible for National Parks. Although not legally required, as the approval pre-dated the 1984 Federal Environment Assessment and Review Order Guidelines, Parks Canada did undertake an environmental screening of the proposal. The screening indicated that the environmental impact was acceptable and the document has been made available to the public.

The applicant further supports its position by showing that the policy surrounding the Guidelines is that they have a prospective intent of avoiding duplication in public reviews. Also, such review is used as a planning tool at the earliest stages of development of the proposal rather that as a regulatory mechanism.

The applicant makes reference to two decisions of the Federal Court in which the prospective nature of the EARP Guidelines has been commented upon. In Naskapi-Montagnais Innu Assn. v. Canada (Minister of National Defence), [1990] 3 F.C. 381 (T.D.), Madam Justice Reed commented, at page 390:

The decisions to enter into the exchanges of notes with the United Kingdom (1979), the United States (1976) and the Federal Republic of Germany (1981 and 1983) would, of course, fall outside the scope of the Order for another reason as well: they were taken before the EARP Guidelines Order came into force, in 1984.

Also, in Eastmain Band v. Canada (Federal Administrator), [1993] 1 F.C. 501 (C.A.), at page 533, the Court held that “[t]he Order cannot apply retroactively to decisions validly made” and dismissed the challenge to a decision made in 1975.

As there is no exception clearly expressed, the applicant submits that pursuant to Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pages 742-745 and Driedger, Construction of Statutes, 2nd ed. (1983), at pages 185 et seq., the general principle is that statutory instruments should not be applied retroactively.

As an alternative argument, the applicant submits that even if the Guidelines do apply, they have been complied with. Although the 1978 approval pre-dates the EARP Guidelines, Parks Canada has gone ahead with an initial screening in accordance with the EARP Guidelines. Thus, it submits that even if the Court should find that the EARP Guidelines did apply to this project, they afford no basis for refusing the permit because the requirements of the EARP Guidelines Order have been met.

The applicant argues that what is required under the EARP Guidelines is that the initiating department do an initial screening to determine whether the project will produce “significant adverse environmental effects”, as required by section 11 of the EARP Guidelines. A preliminary environmental assessment of the revised May 1992 long-range plan which included Goat’s Eye was done by Dr. Leeson. It forecast no significant environmental effect from the project and pointed out that because of the similarity between this plan and the one that had already been approved in 1978, neither comprehensive public consultation nor a major environmental assessment would be necessary.

An environmental assessment was prepared by Sunshine following the terms of reference set out by Parks Canada, and was made available to the public at the public meetings in December 1992. A formal screening decision of Goat’s Eye under EARP was successful. It concluded that the environmental effects of the Goat’s Eye project would be “either insignificant or mitigable with known technology” pursuant to section 12 of the EARP Guidelines, and it should proceed.

Due to public concerns expressed, the issue of whether there should be further public review came before the responsible Minister, as contemplated by section 13 of the EARP Guidelines. On August 31, 1992, the responsible Minister Charest approved the proposal and refused to order further public review:

Given that the proposal does not vary significantly from the 1978 plan, I believe that there is no need for a full public consultation process.

The applicant argues that if Goat’s Eye is not subject to EARP, reliance on those Guidelines to delay the permit to which the applicant is entitled is jurisdictional error. But even if EARP did apply, the requirements have been complied with, and the Minister under section 13, judged it not necessary to demand further assessments. It is not open to the present Minister to initiate a section 13 review of a project which the previous Minister expressly approved without further review. In any event, the project is no longer a “proposal” pursuant to section 13 but an “implementation” of a project already approved. Furthermore, the applicant answers to CPAWS’ allegation that “cumulative effects” on the environment have to be examined, by stating that there is no legal requirements to consider cumulative effects under the EARP Guidelines.

The applicant suggests that for components of the 1993 plan approved by Minister Charest that are different than the 1978 plan, the standard development approval process in Banff National Park should apply. This process references a four-step plan with built-in environmental checks and balances that may or may not lead to site specific building permit issuance.

The applicant submits that for a determination of whether a more detailed environmental assessment is necessary, the 1981 (revised 1985) Parks Canada Management Directions 2.4.2 applies. This directive states that those activities which conform to the original purpose of the facility are normally exempt from screening for environmental impact under EARP. This exemption should have been applied to the post-1984 Sunshine expansion proposals.

For these reasons, the applicant seeks a declaratory judgment (1) that EARP does not apply to the 1978 approvals; (2) that the current ministerial request for a section 13 panel is not valid; (3) that the process that applies to the balance of development at Sunshine is the standard development approval process in Banff National Park; (4) that the applicant is entitled to the permit it requires to continue its Goat’s Eye development and (5) that the January 20, 1994, decision of the Superintendent be quashed.

The applicant also challenges CPAWS’ standing to launch its proceeding. As CPAWS does not have a private right in the matter, the only way it can bring this proceeding is through public interest standing. The applicant suggests that the principles set out in Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, have not been met, therefore CPAWS should not be granted standing. It is Sunshine’s position that the issue brought forward by CPAWS is academic, since the action is to set aside the agreements in order to have further environmental assessments which, in any event, Parks Canada has decided to do.

RESPONDENT’S (CPAWS’) POSITION

CPAWS argues that it has standing to launch its proceeding since the principle issue in its action is that Parks Canada, the Superintendent and the Minister of Environment committed jurisdictional error by entering into a construction agreement with Sunshine, by issuing a timber cutting permit to Sunshine and by approving the 1992 long-range plan without first complying with the EARP Guidelines. CPAWS requests that the Court order the federal respondents to fully consider the overall environmental effects of Sunshine’s proposals. That issue is not moot and is not being dealt with in Sunshine’s action. It adds that it may be Sunshine’s action that is premature since Parks Canada has not yet decided whether or not to issue the permits needed to complete the project.

CPAWS argues that timber harvesting activities associated with the Goat’s Eye development proposal will significantly disturb the subalpine forest ecosystems such that it will take more than 300 years for them to recover their pre-disturbance ecological state, if they recover at all. Therefore, the project should be subjected to the EARP Guidelines and environmental assessments. These guidelines do apply, as the 1978 plan was only approved “in principle.” Since then, many amendments have been made and as the proposal deals with federal lands, Parks Canada was required to fulfil the requirements of the EARP Guidelines Order before entering into a construction agreement, issuing timber cutting permits, or otherwise approving the proposal.

Goat’s Eye is an integral part of Sunshine’s long-range development plan and the position taken by CPAWS is that these were indeed proposals and not implementations. CPAWS submits that Parks Canada conducted two separate environmental screenings for the two proposals. The two proposals are integrally related and both were before Parks Canada at the same time and they cannot be separated for the purposes of environmental assessment. By releasing an isolated environmental screening of Goat’s Eye development, CPAWS argues that Parks Canada failed to consider the full environmental effect of Sunshine’s overall proposal and thus failed to “ensure that the environmental implications of all proposals … are fully considered,” as required by section 3 of the EARP Guidelines.

CPAWS submits that the construction of an initial phase after a limited assessment may favour approving subsequent phases, even though the overall proposal might have been disapproved had the environmental impacts of all phases been considered together. This issue is clearly explained in Parks Canada’s draft environmental screening of the 1992 long-range development proposal:

It is clear however, that frequently the sum effect of a number of individual developments is different, in both quantity and quality, than the effects of each component in isolation.

This is the case with the Sunshine Village Corporation 1992 development proposal.

On a site by site, or project by project basis, most of the elements of the 1992 plan do not have major impacts. They do, however, contribute to an already significant level of environmental effects. Frequently, the development of one component creates a momentum which lead to other development elsewhere. An example is the construction of lifts and terrain on Goat’s Eye which have driven the need to develop new parking lots.

Parks Canada succinctly explained the need to consider cumulative effects:

The importance of including the environmental effects of previous activities, or other activities within the area, has been recognized as increasingly important because of the significance of cumulative effects ….

To meet the objectives of this Environmental Screening, the potential significance of the environmental impacts which may result from the proposed development must be assessed. The significance of those impacts cannot be determined in isolation, without reference to the existing level of impacts experienced within the ecosystem.

In the June 1993 draft screening of Sunshine’s long-range proposal, at page 135, Parks Canada assessed the situation as follows:

Development at Sunshine is an example of incremental development. Approvals given in both 1965 and 1977 included commitments to limit growth, based on the understanding that the acceptable limit to environmental impact had been reached. Subsequent decisions were based on a review of new impacts likely to result from new development, with no reference to the level of environmental impacts which the area already experienced. Although each new development proposal in isolation appeared to be environmentally acceptable, the resulting cumulative effect of all development has created a significant negative environmental impact.

CPAWS argues that if Parks Canada had considered cumulative effects in assessing the potential environmental effects from the Goat’s Eye proposal, it is quite likely that it would have determined, on the basis of the evidence before it, that the effects would be “significant” or “unacceptable” (which would have required that the proposal be referred to a review Panel or rejected under section 12 of the EARP Guidelines).

CPAWS also submits that the screening decision failed to consider whether the proposal’s potential environmental effects were “insignificant” or whether these effects were “mitigable with known technology.” Pursuant to section 12, whether the potential environmental effects of a proposal are significant or are mitigable with known technology, has two different consequences: a finding that the potential effects are mitigable with known technology invokes section 14 of the EARP Guidelines, which requires the department to ensure that necessary mitigation measures are implemented; or a finding that the potential effects are insignificant does not require the department to ensure that mitigation measures are implemented.

CPAWS’ position is that not only did Parks Canada and the Superintendent make an error, but the Minister of Environment also erred in approving Sunshine’s 1992 long-range development proposal. By giving his approval before the proposal had been subjected to environmental assessment, the Minister directly contravened the requirements of section 3 of the EARP Guidelines and thus also committed an error of jurisdiction.

FEDERAL RESPONDENTS’ POSITION

It is the position of the respondents that the EARP Guidelines apply to Sunshine’s long-range development plan proposal and to Sunshine’s detailed 1992 Goat’s Eye proposal. Basically, the 1978 approval was one in principle, in which the then Honourable Hugh Faulkner stated “I cannot overemphasize that approval in principle of the development proposals requires your firm commitment to environmental rehabilitation and protection measures.”

The detailed plans or specifications for the Goat’s Eye development were put forward in the 1980’s. The EARP Guidelines came into effect in 1984, while the official plan for Goat’s Eye was presented in 1992. Since then, public hearings were held and modified proposals were submitted. From that point of view, says the Crown, there is no question that the EARP Guidelines apply. The 1992 Minister’s approval stated that it was subject to environmental assessment consistent with the normal planning process.

After the fall permit had expired and pursuant to section 15 of the EARP Guidelines, Parks Canada published a notice concerning the restricted activity permit for the higher elevation forestry clearing. The public response was compiled and Sunshine was advised that Parks Canada would require time to review the comments received. The Crown contends that the Superintendent did not refuse the permit, but only delayed it pending the outcome of the Environmental Assessment Panel. This was done pursuant to the discretionary power of the Superintendent to issue a permit under section 12 of the National Parks General Regulations [SOR/78-213].

On January 25, 1994, the Minister responsible for national parks, exercising powers granted to him by section 13 of the EARP Guidelines, determined that public concerns relating to commercial expansion at Sunshine Village within Banff National Park were such that a public review was desirable. Depending on the outcome of this proceeding, expansion proposals for Sunshine Village will be referred to an Environmental Assessment Panel. This Panel would hold public hearings and would specifically address the cumulative effects of the proposals. The respondents believe they should not be compelled to grant the permit pending public review. They add that contracted relationships between Sunshine and Parks Canada do not fetter the discretion of the Superintendent of Banff to withhold further timber cutting permits pending the Panel review.

The respondent Crown submits that the Guidelines define an environmental assessment process with two stages of review. The first stage of the process is an environmental screening or initial assessment to determine whether there may be potentially adverse environmental effects from the proposal. The second stage is a public review by an independent Environmental Assessment Panel. The Minister may refer a proposal to a Panel notwithstanding that the environmental effects of that proposal have been found to be insignificant. The respondents refer to Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), [1991] 1 F.C. 641 (C.A.), at page 656, where Iacobucci C.J. for the Federal Court Appeal Division ruled that the second stage can be triggered at any time in which the Minister decides that public concern is such that a public review is desirable:

The second stage is a public review process by an independently established Environmental Assessment Panel that can be triggered by (i) the Minister so deciding where public concern indicates a public review is desirable [s. 13] (ii) the proposal being of a type that is on a list that calls for automatic referral to the Minister for public review by a Panel [combined operation of paragraphs 11(b) and 12(b) of EARPGO] and (iii) the initial assessment revealing prescribed circumstances that call for public review by a Panel [ss. 12, 20].

The respondents disagree with Sunshine’s opinion that the Guidelines have been met due to the screening decision. A decision under paragraph 12(c) of the EARP Guidelines does not mean that a project can proceed without opportunity for public response to the project under section 15 of the Guidelines, or without the possibility of public concerns being such that a public review by a Panel under section 13 may become desirable. Indeed, section 13 expressly provides that the Minister may weigh public concerns “[n]otwithstanding the determination concerning a proposal made pursuant to section 12.”

With respect to the applicant CPAWS, it is the position of the federal respondents that no useful purpose would be served by granting the relief which the group seeks. The decision of the Minister to refer the proposal to an Environmental Assessment Panel, which will hold public hearings and examine cumulative effects of the proposals, answers the issues raised by CPAWS. No further useful purpose would be served by granting the relief sought by CPAWS since its action has become moot.

FINDINGS

As a preliminary issue, I will tackle the question of CPAWS’ standing to launch its own action. Both Sunshine and the federal respondents are of the opinion that CPAWS’ action is moot. The proper test to apply was elaborated by the Supreme Court in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at page 353:

The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly, if subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.

I must agree with the mootness of CPAWS’ proceeding. CPAWS was seeking environmental assessments of Sunshine’s project pursuant to the EARP Guidelines. This goal may have been valid at the time the proceedings were initiated, but since Parks Canada has decided to set-up a review Panel to further assess the environmental impacts of the project, the action is no longer necessary. CPAWS’s request to invalidate the construction agreement, the timber cutting permit and the approval of the long-range plan can be dealt with in conjunction with the issue as to whether or not the EARP Guidelines applied to those situations, and whether or not they were followed. One must not forget, in any event, that CPAWS has validly been given the standing of respondent in Sunshine’s application.

I would also add as a preliminary issue that Rule 1602(4) of the Federal Court Rules [C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)] prescribes that only one decision may be the object of judicial review in an application, in this case being the Superintendent’s refusal or delay of the second permit. Nevertheless, there is involved in the complex issues argued by the parties the question of the application of the EARP Guidelines, which of course include the Minister’s decision under section 13 and that, in my view, deserves comment.

I now turn to one of the main issues: the applicability of the 1984 EARP Guidelines to the Goat’s Eye project and the long-range plan.

The general principle is that unless it is expressly mentioned, any piece of legislation has no retroactive effect. The Court’s decisions in Naskapi-Montagnais, supra and Eastmain, supra indicate that the EARP Guidelines do not have a retroactive effect on the initial project of 1978. However, since the Guidelines’ adoption in 1984, many amendments were made to the original plan; to those, the EARP Guidelines may be said to apply.

Although Sunshine made an initial proposal in 1978, the approval was one in principle which has been upgraded through the years by further specifics of components of the plan. I believe it would be a non-sense for the Minister to approve amendments to a plan in 1992 but have to look at the environmental standards of 1978 before approving it. It was clear throughout the plan’s development that environmental standards had to be met. Sunshine even agreed to the screening process pursuant to the EARP Guidelines.

The next step is to look at how these guidelines were applied. In February 1993, the Goat’s Eye project went through a screening process with success pursuant to section 12 of the EARP Guidelines. In September of that same year, the parties entered into a construction agreement. On October 7, 1993, a restricted activity permit was issued by the Superintendent for the purpose of clearing the ski runs in accordance with the agreement. One can therefore assume that all environmental assessments, dealing with the Goat’s Eye project only, had been dealt with before that first permit was issued. The Superintendent must have felt that the plans and the work to be done were adequate. Again, I refer to the Superintendent’s powers pursuant to the construction agreement:

1. Complete plans, specifications and descriptions of each component of this project must be submitted to and approved by the Superintendent prior to commencement of construction.

If, in the reasonable opinion of the Superintendent, the plans, specifications and descriptions which have been submitted are inadequate in any way, or would lead to environmental impacts which are unacceptable or unnecessary, or are, in the Superintendent’s opinion, not in the best interests of Parks Canada, he may deny approval.

2. No site disturbance or construction of any component of this project may commence on site until a Building Permit has been issued by the Superintendent.

The Superintendent also has the general discretion to issue permits pursuant to section 12 of the National Parks General Regulations. But one must assume that once the construction agreement had been entered into, all the environmental concerns had been dealt with. This is what seemed to have been the intent at the July 1991 Goat’s Eye Planning Committee; once the environment assessments were passed, the construction agreement was the next step.

The problems for Sunshine started when Parks Canada, purporting to act pursuant to section 15 of the Guidelines, invited comments from the public on the Goat’s Eye development project. Section 15 provides:

15. The initiating department shall ensure

(a) after a determination concerning a proposal has been made pursuant to section 12 or a referral concerning the proposal has been made pursuant to section 13, and

(b) before any mitigation or compensation measures are implemented pursuant to section 14,

that the public have access to the information on and the opportunity to respond to the proposal in accordance with the spirit and principles of the Access to Information Act.

Contrary to Parks Canada’s actions, section 15 does not impose thirty-day deadlines nor does it request Parks Canada to put up notices inviting responses. Public information sessions concerning the long-range plan were held in December of 1992 after the then Minister Charest approved the plan of which the Goat’s Eye project was part. Specific to the Goat’s Eye project, the screening process under section 12 was approved in February of 1993. This approval included that no “formal public consultation” was necessary.

Section 15 seems to seek public opinion for “proposals.” If the Goat’s Eye project, which had passed all the standards pursuant to section 12 of the EARP Guidelines, was considered a “proposal,” why was the section 15 requirement for public notice not dealt with before the construction agreement was entered into in September of 1993 or before the timber cutting permit was granted in October of 1993?

Assuming all the time that EARP Guidelines were still applicable, the section 15 requirement should have kicked in once the section 12 approval of the Goat’s Eye project was decided in February of 1993. This was not done until nearly a year later when the Goat’s Eye programme was already being implemented. No doubt that in the meantime, Parks Canada, under the construction agreement and its regulations, maintained its discretion to grant the necessary permits, but in the circumstances, such discretion was to be exercised reasonably and pursuant to procedural fairness.

I appreciate that contractual agreements do not vitiate any powers or jurisdiction granted to Parks Canada pursuant to its statute or regulations, but once the construction agreement was entered into and the timber cutting permit was issued, Sunshine was no longer dealing with a Goat’s Eye “proposal,” but rather with the “implementation” of its project while waiting for the second permit to be issued. Section 15 deals with “proposal” which I do not believe the Goat’s Eye project was in this case. “Proposal” is defined in the Guidelines as follows:

2. …

“proposal” includes any initiative, undertaking or activity for which the Government of Canada has a decision making responsibility.

It would seem to me that by entering into a construction agreement and granting a timber cutting permit for the lower part of the ski runs, that the Government had already made a decision and was no longer dealing with a proposal. The agreement was under way and being implemented. I do not understand what initiated a section 15 notice at the time it was done, although I am quite aware that public information and response had been an ongoing process since the birth of the project in 1978.

For the Superintendent to rely on the public responses to refuse the second permit to Goat’s Eye project was a jurisdictional error, since there was no longer a “proposal” to deal with. I would therefore conclude that the Superintendent’s decision to rely on such response, in the circumstances, was an error subject to judicial review. I would add, however, that any public response to the other components of long-range plan might still be acceptable since that plan is still in the “proposal” stage, having not gone through any screening process or preliminary environmental assessments.

Notwithstanding Park Canada’s wide discretionary power to grant or refuse timber cutting permits, courts have established that such a decision can be reviewed in cases where there has been a violation of principles of natural justice. To follow these principles is a duty that rests upon every public authority making administrative decisions: Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643. According to Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at page 557, a legitimate expectation of a certain outcome is part of procedural fairness. This ground applies where the applicant could reasonably expect that a regular practice would continue: National Anti-Poverty Organization v. Canada (Attorney General), [1989] 3 F.C. 684 (C.A.), at page 708. Having signed a construction agreement and having been issued a first timber cutting permit, it is quite reasonable to conclude that the applicant could reasonably expect that the second permit would be granted. This is further supported by the fact that the Superintendent and representatives of Sunshine met to discuss the next steps of the construction programme while waiting for the second permit to be issued.

Before discussing the issue of possible remedies, however, I should make a few comments on what appears to me to be a double-whammy directed at Sunshine Village.

First of all, section 5 of the EARP Guidelines provides as follows:

5. (1) Where a proposal is subject to environmental regulation, independently of the Process, duplication in terms of public reviews is to be avoided.

(2) For the purpose of avoiding the duplication referred to in subsection (1), the initiating department shall use a public review under the Process as a planning tool at the earliest stages of development of the proposal rather than as a regulatory mechanism and make the results of the public review available for use in any regulatory deliberations respecting the proposal. [Underline mine.]

It seems to me that such is a guideline which the federal respondents might not have followed. Sunshine’s proposal has been on the Minister’s desk since 1978 when the proposal was approved in principle. Since then, and up until the refusal to grant a second permit in January 1994, proposals and modifications were subjected to many stages before implementation: development agreements, environmental assessments under the EARP Guidelines, public consultations, and finally a construction agreement with strict conditions imposed on Sunshine, such as daily surveillance of all operations.

In accordance with this construction agreement, Sunshine’s programme became operational with the issuance of a permit to clear the lower portion of the mountain during the period from October 7 to November 15, 1993.

I have already recited what happened when CPAWS challenged the validity of the construction agreement on the grounds that proper environmental assessments under the EARP Guidelines had not been conducted. Purporting to act pursuant to section 15 of the Guidelines, Parks Canada initiated a public consultation process. The result is well known: the construction programme was halted, Parks Canada delayed the issuance of any further permits in order to study the public’s responses and, as if by sheer coincidence, the Minister, pursuant to section 13, ordered a public review by a Panel.

Referring now to section 5 of the Guidelines, to what extent has there been duplication of the review process? Parks Canada, under its enabling statute, the National Parks Act, R.S.C., 1985, c. N-14, exercises extensive control and management of national parks. Under section 4, national parks of Canada are dedicated to the people of Canada for their benefit, education and enjoyment. In subsection 5(1.2) [as am. by R.S.C., 1985 (4th Supp.), c. 39, s. 3], it is stipulated that the maintenance of ecological integrity through the protection of natural resources shall be “the first priority when considering park zoning and visitor use in a management plan.” In subsection 5(1.4) [as am. idem], opportunities are to be provided for public participation at the national, regional and local levels in the development of parks policy and management plans. Finally, under section 7 [as am. by R.S.C., 1985 (3rd Supp.), c. 28, s. 359, Sch., Item 7; (4th Supp.), c. 39, s. 5; S.C. 1991, c. 24, s. 51, Sch. III, Item 9; 1992, c. 47, s. 84, Sch., Item 8], the Governor in Council may make regulations for the preservation, control and management of the parks and specifically, the protection of the flora, fauna, fish, soil, waters, fossils, natural features, air quality and cultural, historical and archeological resources comprised in some three dozen heads of regulatory powers. These powers are so extensive that they enabled some 160 separate orders in council to be enacted. The list and sub-lists alone of these regulations take up a dozen pages.

What strikes me as very odd in this whole affair is the number of thresholds an applicant must cross before any residual discretion to the Minister pursuant to section 13 of the EARP Guidelines becomes exhausted. The Guidelines speak of proposals. These proposals cannot remain in limbo and left to ministerial discretion for all times. Sooner or later, a proposal, as in the case before me, is made to the initiating department of government, herein Parks Canada. The general proposal was originally accepted in principle in 1978. Some of the proposals were implemented in the 1980’s and notwithstanding the absence at that time of the more formal or general requirements contained in the EARP Guidelines, it seems evident to me that what was implemented was in full compliance with the extreme control requirements imposed by Parks Canada pursuant to its statutory obligations to do so. Once the necessary licenses and permits from Parks Canada have been issued, I fail to see clearly how the applicant’s proposal can still be a proposal in regards to Goat’s Eye Mountain, and thereby giving authority to the Minister to order a stop to everything and have the whole issue, including Goat’s Eye Mountain, be the subject of a public review by a Panel.

In assessing the environmental impact of development of that mountain, Parks Canada adhered to the EARP Guidelines. Further, it found that the development complied with paragraph 12(c) of the Guidelines and that the possible adverse environmental effects were insignificant or mitigable with known technology. Now no one could question the credibility of their finding. If any institution knows anything about environmental impacts, it is Parks Canada which, for decades, has not only had the knowledge and expertise, but more, the statutory duty to ensure the ecological and environmental sanctity of national parks in general and Banff National Park in particular.

If public policy calls for increasing awareness of environmental concerns, it may be said that the situation of Sunshine Village becomes one of meeting a hydra-headed approval and control system where the initiating department may, as the evidence discloses, apply either head to do what ostensibly it is legally authorized to do. The caveat to this, of course, is that the Guidelines set up a system of environmental controls over proposals whereby Parks Canada’s regulatory process involves both proposal and implementation. Once a component of an overall proposal has been approved and such component has crossed all the necessary thresholds, it seems to me that the powers of both regulators under either EARP or Parks Canada have been exhausted, the residual implementation control being, as in the case before me, left to the highly rigid regulatory functions of Parks Canada.

Of course, my view of the matter is also buttressed by references to section 8 of the Guidelines which says that the Guidelines apply to a regulatory body only if there is no legal impediment to or duplication resulting from the application of the Guidelines. If one should compare the Guidelines requirements to those imposed under the National Parks Act, it becomes abundantly clear that the environmental and ecological controls exercisable by Parks Canada are not only a duplication of the processes under the Guidelines, but are as well far more pervasive. It is also clear that where the Guidelines refer to proposals only, Parks Canada regulations touch upon every proposal and every narrow and singular aspect of implementation.

In my respectful view, the provisions of both section 5 and section 8 of the Guidelines are there for a purpose. They are there to avoid multiple re-hashing of proposals, especially when an initiating department, like Parks Canada, has more than the necessary clout to look into and regulate every single aspect of ecological and environmental concerns.

Admittedly, subsection 5(2) provides for a public review under the Guidelines, but this is restricted to use as a planning tool in the earliest stages of development of a proposal. Whatever interpretation difficulty one might have with this subsection, the same cannot be said of the explicit provision found in section 8. This section clearly states that the Guidelines do not apply to a regulatory body if duplication would result from the application of the Guidelines. I should conclude that such is the situation with respect to Goat’s Eye Mountain.

I need not elaborate further on that approach to that aspect of the case before me. Admittedly, an environmental assessment of the Goat’s Eye proposal was made under the Guidelines. What is done is done. Having found, however, that the proposal met the test, that a construction agreement was duly executed, that an initial implementation was carried out, I fail to see where any further impediment under the Guidelines may be raised at this time.

To argue a contrary position, in my view, would mean that whichever way the winds of politics might blow, any proposal is subject at all stages of any development programme to a regulatory guillotine: should a proposal be approved under the EARP Guidelines, and the regulatory body, Parks Canada, acts in conformity with it and issues implementation authorizations necessary for it under its own regulatory process, the way would still be open for the exercise of ministerial discretion under section 13. Perhaps there are other provisions under Parks Canada regulations to order a public review or otherwise postpone the implementation, but with respect, section 13 would not be one of them.

In my view, public concerns over environmental issues should not be made a matter of whim by anyone purporting to act under the authority of either the EARP Guidelines or the authority of the National Parks Act and its large volume of regulations. It would mean that no matter the many processes to which an applicant must submit, there is no finality to any proposal. This is especially relevant when dealing with a development which is planned not in relation to a wilderness area or to carve out some commercial use from pristine parks territory, but is earmarked for an area which has been specially “designated” under the National Parks Act Schedule as a recreational ski area.

It might not be untoward to observe that for Sunshine Village Corporation, its capital as well as the viability of its operations are always at risk. Admittedly, the risk is enhanced by reason of the fact that it must operate in a highly controlled area and the issue of public interest will be a constant throughout. In my view, however, the expensive processes imposed on the developer to ensure that the public interest is respected have been going on for many years, and it is clear that development plans for Goat’s Eye Mountain have been known to the public for a considerable time. Parks Canada’s own witness, as I have earlier mentioned, provided evidence giving full support to that fact. While, of course, a court cannot question ministerial discretion for public interest purposes, the discretion must nevertheless be exercised according to law.

I might briefly refer in this respect to Curragh Resources Inc. v. Canada (Minister of Justice), [1993] 3 F.C. 729, where the Federal Court of Appeal ruled that notwithstanding the regulatory process involving the Yukon Territory Water Board, there was superadded the more generic environmental control under EARP which enabled the Minister involved to add further conditions to that particular proposal. At that stage, however, the whole Curragh Resources project was at the “proposal” stage. I suggest, however, that once a proposal has been cleared, the purely regulatory process, as in the case of Parks Canada, takes over and that is the limit of any competence or authority available under the EARP Guidelines.

Any contrary proposition, in my respectful view, becomes merely a matter of a purported exercise of ministerial discretion which has no foundation in law.

In December 1993, after it had not only entered into a construction agreement with Sunshine Village, but had also furthered the implementation of the Goat’s Eye proposal by issuing the necessary implementation permits, Parks Canada decided, for what had been the third time, to initiate further public consultations. The evidence is silent as to what provoked Parks Canada to do this. The evidence is also silent on what pushed the Minister to order a public review by a Panel. All I can say is that by that time, the Goat’s Eye component had long gone past the “proposal” stage and was now subject only to the regulatory authority of Parks Canada. At that stage, it is my opinion that any authority under section 13 had been exhausted.

I must now make another observation. The CPAWS’ argument is that the environmental concerns over the whole development proposal approved by the Minister in 1978 and later approved again by another minister in 1992, cannot be studied in the context of any individual component of the proposal. According to CPAWS, an environmental assessment of an individual component cannot provide the whole answer, as the cumulative or incremental effect of component A added to component B, etc., might create a total environmental impact otherwise unpredictable or unforeseen on a component by component approach. There might be merit in this, but whatever cumulative effect component B might have on component A and so on with component C is a matter to be resolved as each programme approaches the actual development stage. The risk is with the developper in that respect. The clout left to the initiating department would assure everyone, in my view, that environmental concerns within the context of the Parks Canada Regulations could be addressed and respected. That the results might not meet the interests of environmental groups or of Sunshine Village is another matter altogether.

CONCLUSION

No comments or observations I have made in these reasons are meant to cast a critical eye on the conduct of Parks Canada. The Court takes judicial notice of the pull and tug of competing forces associated with any proposal or development plan in Banff National Park, which imposes on Parks Canada a balancing act requiring constant and delicate handling. As far as Sunshine Village is concerned, no complaint was voiced that throughout the several years of gestation leading to a kind of still-birth, the give and take experienced by both parties was not one based on mutual understanding of their respective interests.

Nevertheless, Parks Canada must still conduct its affairs according to law. All the more must it do so when its statutory and regulatory powers are so extensive as to touch upon every single element of human conduct within the Park’s boundaries. Involved in all of this, of course, is the constant preoccupation with the public interest, recognizing that as in the case before me, public interest considerations must be applied in respect of a particular plan or proposal. There is also imposed on such a public authority as Parks Canada the concomitant duty to have respect for undertakings, to exercise fairness and maintain an even-handed approach in its multifarious dealings with all its residents.

I am fully aware, as is made clear from the evidence before me, that the parallel dispositions of the EARP Guidelines and Parks Canada Regulations should leave many to wonder as to which ones might apply in any particular case, the Guidelines themselves being less than a clear imposition of what a “proposal” and a “process” are all about.

Nevertheless, I have found that whether or not the EARP Guidelines apply, these have been complied with and there is no residual power under section 13. I have also found that the Superintendent’s decision in refusing a second permit should be quashed. Admittedly, Parks Canada’s statutory and regulatory powers over all fields of activity being largely discretionary, Sunshine Village might very well have to run through an extremely tight slalom flush, as it were, only to find that there is no exit and that the Goat’s Eye programme is still up in the air. To avoid this and pursuant to paragraph 18.1(3)(b) of the Federal Court Act, I am directing that the issue be returned to Parks Canada for reconsideration in the light of the findings and observations I have made in these reasons.

ORDER

1. The application for judicial review by Sunshine Village in file No. T-137-94 is allowed. The impugned decision of Parks Canada is quashed and the matter referred back to Parks Canada for reconsideration in the light of the findings and observations I have made in the reasons for order.

2. The application for judicial review by the Canadian Parks and Wilderness Society in file No. T-2505-93 is dismissed.