Date: 19990921
Docket: T-1209-98
BETWEEN:
BOW VALLEY NATURALISTS SOCIETY and
BANFF ENVIRONMENTAL ACTION AND RESEARCH SOCIETY
Applicants
AND:
MINISTER OF CANADIAN HERITAGE,
JOHN ALLARD, ACTING SUPERINTENDENT FOR KOOTENAY, YOHO, AND
LAKE LOUISE FIELD UNIT OF PARKS CANADA, and
CANADIAN PACIFIC HOTEL LIMITED
Respondents
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision of John Allard, Acting Superintendent for the Kootenay, Yoho and Lake Louise Unit of Parks Canada, dated April 2, 1998. The decision, made pursuant to paragraph 20(1)(a) of the Canadian Environmental Assessment Act, S.C. 1992, c. 37. (CEAA), held that the adverse environmental effects of the development of a proposed meeting facility by Canadian Pacific Hotels at the Chateau Lake Louise in Banff National Park would likely not be significant.
[2] The applicants seek an order setting aside the determination of the Acting Superintendent, an order prohibiting the Minister from issuing any permits or approvals that would authorize CP Hotels to proceed with the construction of the facility until the requirements of the CEAA have fully been complied with and finally, an order remitting the determination back to the Minister for further assessment under the provisions of sections 15 and 16 of the CEAA.
[3] The applicant, Bow Valley Naturalists Society, is a non-profit society engaged in the study of nature, the education of the public about the natural environment of the Bow Valley region, and the protection and preservation of wildlife, wilderness areas, parks and the natural ecosystem of the region. The applicant, Banff Environmental Action and Research Society, is a non-profit society which is dedicated to the preservation and restoration of wildlife habitat and wilderness in the Eastern slopes of the Canadian Rocky mountains, particularly in Banff National Park.
[4] The respondent, Canadian Pacific Hotels, has operated guest facilities at the Chateau Lake Louise site since 1890, before the site was incorporated into a national park. The hotel opened as a year round facility in 1982. The Chateau currently sits on a leasehold of 62.98 acres and consists of a nine floor main hotel building, three guest wings, three floor parkade, a swimming pool building, an older outside swimming pool, seven staff residence buildings and assorted service buildings. The respondent Minister of Canadian Heritage, acting through Parks Canada, is the responsible authority for the purposes of section 15 of the CEAA.
[5] The following is a summary of the factual background leading up to this application. Banff National Park was established in 1885 and is Canada"s oldest national park. In 1985, the United Nations Educational Scientific and Cultural Organization (UNESCO) designated Banff National Park as a World Heritage Site. The park presently receives more than four million visitors a year. The Lake Louise Management Plan was developed in 1979 and sets out a low-growth scenario for Lake Louise. With respect to the Chateau, the plan concluded that while Chateau Lake Louise would be allowed to renovate in order to operate year-round, no additional overnight visitor capacity would be contemplated in the area. The plan was updated in 1994 and it was confirmed at that time that no additional commercial growth outside of what was planned in 1979 would be permitted.
[6] In 1994, the Minister announced the launch of the Banff Bow Valley Study in response to growing public, scientific and ecological concerns about the environmental health and future of the park. The study was a two-year evaluation of the state of the park and the impact that commercial development and recreational use, both in and around the park, were having on the ecological health of the Valley. The task force submitted its report to the Minister of Canadian Heritage in October of 1996. The report indicated that the level of development in the park had severely stressed land and aquatic ecosystems and the habitat for many large species, such as grizzly bears, was fragmented and unacceptably reduced for a national park.
[7] Parks Canada engaged in further consultation and a stakeholders" review which resulted in the following policy directives concerning development at the Chateau:
| - A ceiling of 3500 overnight guests for upper and lower Lake Louise, and a ceiling of 1166 overnight guests at the Chateau; |
| - A Heritage Tourism strategy as the model for visitor activities and facilities; |
| - Consideration of a proposal for a meeting facility at the Chateau by Parks Canada. |
This policy review culminated in the Banff National Park Management Plan. The plan explained that Parks Canada"s policy was to concentrate development of visitor services in either the town of Banff or the Lake Louise area, under a strict low-growth strategy.
[8] In September of 1996, CP Hotels put forward a proposal for the development of a new meeting facility at Chateau Lake Louise. At present, the Chateau"s meeting facilities are limited, ill-suited and are a serious deficiency and impediment to the operation of a year-round, world-class heritage tourism hotel. The hotel has only 5.3 square feet of meeting space per guest room. By comparison, other hotels in Banff National Park have between 42.2 and 98.7 square feet of meeting space per guest room.
[9] Parks Canada studied the proposal and on January 9, 1997, issued revised Terms of Reference for an environmental screening of a meeting facility. Thereafter, in May or June of 1997, CP Hotels submitted its revised proposal, titled the Chateau Lake Louise Long Range Development Plan, 1997, setting out CP Hotels" long term vision for the Chateau while at the same time attempting to reflect the public concerns and the ecological and policy goals identified in the Banff National Park Management Plan.
[10] The Plan envisioned many developments although the meeting facility is the first project to be pursued. The proposed 148,547 square foot facility is planned as a seven-story building with six meeting rooms, a seven-hundred person meeting hall, a two-hundred and fifty-two seat dining room and eighty-one new guest rooms. It is proposed as an additional wing to the hotel, and will be constructed partly on the site of an existing surface parking lot and abandoned boiler building.
[11] In addition, the Long Range Plan incorporated many mitigation measures, such as implementing a Green Partnership Program for environmental stewardship; water system upgrades and pumping station modifications in conjunction with a program to monitor conditions in Lake Louise and to provide intake metre readings to Parks Canada Environment Assessment Office. The Chateau agreed to cap development to 1,126 guests per night by the year 2000, which is below the allowable limit of 1,166. Furthermore, CP Hotels agreed to return 20.5 acres of undisturbed land on the Chateau leasehold to Parks Canada, thereby reducing the leasehold to only what is needed for operations and limiting, if not eliminating, the prospect of further development.
[12] As part of their proposal, CP Hotels conducted an environmental screening and prepared a report called "The Chateau Lake Louise Meeting Facility Banff National Park Screening, June 1997". The purpose of the screening was to determine the environmental effects of the meeting facility. To that end, it addressed the following issues: staff housing, habitat loss, water supply, community impact, waster water treatment, parking needs, electrical supply, traffic, waste stream management, public involvement, demand analysis, mitigation measures, alternatives, cumulative effects, construction impacts, knowledge deficiencies and increased use.
[13] The screening was presented for public consultation and on August 12 and 13, 1997, Parks Canada conducted open houses in Lake Louise and Calgary. The Chateau Long Range Plan and the screening were presented in open houses in Lake Louise and Calgary on August 18 and 19, 1997, and at a stakeholders" meeting on September 11 of the same year. The results of the consultative process were set out in a public concerns analysis prepared by Parks Canada in a report titled "Results of the Consultative Process for the Proposed Long-Term Development Plan, Meeting Facility Proposal and the Environmental Assessment for the Meeting Facility" dated October 17, 1997.
[14] The MacLeod Institute, a third party consultant retained by Parks Canada made an independent review of CP Hotels" June 1997 screening, and provided a list of areas which required more scrutiny, additional information or more critical analysis. Thereafter, in response to concerns identified through the public consultation process and internal review within Parks Canada, CP Hotels submitted additional screening documents.
[15] On April 2, 1998, the Acting Superintendent John Allard concluded that the project was not likely to have a significant environmental impact provided that the mitigation measures associated with the project were implemented. By letter dated July 3, 1998, from G. Fortin, Executive Director, Mountain Parks, Department of Canadian Heritage, approval of the meeting facility was confirmed and the specific requirements for mitigation were set out.
[16] The applicants now seek to have that decision set aside on the grounds that the Minister erred in law and jurisdiction in purporting to carry out the environmental assessment of the Convention Centre without complying with the requirement of the CEAA. The Minister is also alleged to have erred in law and jurisdiction in making a final determination under paragraph 20(1)(a) of the Act, that the project is not likely to cause significant adverse environmental effects, without first complying with the requirements of the legislation.
[17] In Pushpanathan v. Canada, [1998] 1 S.C.R. 982, the Supreme Court adopted a pragmatic and functional approach to the determination of the appropriate standard of judicial review in cases of this nature. The effect of the Supreme Court"s decision was recently examined in this Court by Reed, J. in Kerth v. Canada (Minister of Human Resources Development) , T-1801-98, August 13, 1999:
| The overriding consideration is the intention of the legislature: did it intend that a reviewing court accord the decision under review deference, or was a full right of appeal intended, or does the relevant standard fall somewhere on the spectrum that lies between these two poles. Also, the standard of review must be determined by reference to the specific nature of the decision under review. The same standard will not necessarily apply to all decisions of the same decision-maker. The factors to be assessed according to Pushpanathan are: (1) the legislative provisions governing the review process, including whether there is a privative clause; (2) the degree of expertise of the tribunal with respect to the question in issue, as compared to the degree of expertise the reviewing court has on that subject; (3) the purpose of the legislation and the nature of the decision-maker; that is, whether the decision-maker is balancing public policy considerations (sometimes vaguely worded) as opposed to adjudicating the rights of individuals; (4) the nature of the decision under review, including whether it is a question of law or a question of fact. |
[18] The overriding consideration is the intention of the legislature: did it intend that a reviewing court accord the decision under review deference, or was a full right of appeal intended, or does the relevant standard fall somewhere on the spectrum that lies between these two poles. Also, the standard of review must be determined by reference to the specific nature of the decision under review. The same standard will not necessarily apply to all decisions of the same decision-maker. The factors to be assessed according to Pushpanathan are: (1) the legislative provisions governing the review process, including whether there is a privative clause; (2) the degree of expertise of the tribunal with respect to the question in issue, as compared to the degree of expertise the reviewing court has on that subject; (3) the purpose of the legislation and the nature of the decision-maker; that is, whether the decision-maker is balancing public policy considerations (sometimes vaguely worded) as opposed to adjudicating the rights of individuals; (4) the nature of the decision under review, including whether it is a question of law or a question of fact.
[19] An Environmental Assessment is a tool by which the environmental effects of a project are forecasted. Section 5 of the Act requires that an assessment be completed before a federal authority "under a provision prescribed pursuant to paragraph 59(f), issues a permit or license, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part."
[20] The process for conducting an Environmental Assessment is set out in sections 14 through 17 of the Canadian Environmental Assessment Act. In order to accommodate a wide range of projects, the level of detail required of an assessment varies according to the nature and size of the project involved and the significance of the predicted effects associated with the proposed project. Section 14 stipulates that an environmental assessment shall consist of either a screening and screening report; a comprehensive study and comprehensive study report; or a review panel and review panel report. Subsection 15(1) provides that the scope of an assessment "shall be determined by the responsible authority." Similarly, subsection 16(3) states that the factors to be taken into consideration in a screening "shall be determined by the responsible authority."
[21] The Chateau Long Range Plan consists of five components: the meeting facility, swimming pool and spa restoration, Tom Wilson Room conversion, staff housing and an additional level to the existing parkade. The respondent CP Hotels acknowledges that an Environmental Assessment would be required should it decide to proceed with the staff housing and parkade expansions. In addition, it has agreed to conduct separate Environmental Assessments in respect of each of the other components of the Plan, including the proposed swimming pool and spa restoration and the Tom Wilson room conversion, should these be pursued. It maintains however, that the screening and screening report which formed the Environmental Assessment for the meeting facility meets the requirements of the CEAA.
[22] Based on the facts of this case, the legislation and the principles of law set out in Pushpanathan, I am satisfied that there is no basis which would warrant this Court"s interference with the decision of the Acting Superintendent for the Kootenay, Yoho and Lake Louise Unit of Parks Canada.
[23] First, Parks Canada is the authority charged with the responsibility of maintaining national parks unimpaired for the enjoyment of future generations and the maintenance of ecological integrity through the protection of natural resources. This is particularly true in the context of Banff National Park, which holds a unique position among Canada"s national parks. For this reason, Parks Canada has engaged in a detailed and thorough review of the park"s ecological habitat and the inter-relation between human activity and that habitat, culminating in the1997 Banff National Park Management Plan. Decisions with respect to the appropriate level of human activity in the context of Banff National Park, the management and policy goals established for the park and the protection of its ecological integrity are a highly specialized field in which Parks Canada has significant knowledge and expertise.
[24] An important and crucial aspect of the CEEA is Parliament"s recognition of Park"s Canada"s expertise and its participation in extensive studies and planning exercises related to environmental concerns. It is for this reason that the authority is expressly provided with a broad discretion to determine the scope of the project to be assessed and the scope of the assessment to be conducted. This discretion ensures that the assessment will adequately address the specific characteristics of each project in light of the planning and management polices in place to ensure environmental integrity. It allows Parks Canada to establish the scope of projects and environmental assessments and to determine the appropriate level of sustainable development.
[25] Furthermore, the purpose of the Canadian Environmental Assessment Act, as stated in the preamble to the Act and in section 4, is to ensure the integration of environmental factors into planning and decision-making processes so as to promote sustainable development in a coordinated manner. The objective of the legislation therefore, is not to prevent any or all development of environmentally sensitive areas, but to balance that development against the unique ecological circumstances of the area in question. When dealing with this type of legislative objective, the Court must be sensitive to the limited scope of its judicial review power. As stated in Pushpanathan at p. 1008:
| Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balancing act between different constituencies, then the appropriateness of court supervision diminishes. |
| (emphasis added) |
[26] In the present case, the meeting facility in question is proposed as an additional wing to the existing hotel and will be constructed on the site of an existing surface parking lot and abandoned boiler building. It does not require that additional parking or staff housing be constructed, nor does it in any way impact upon the health spa, the swimming pool or the Tom Wilson room conversion. The environmental assessment methodology adopted by Parks Canada in respect of the meeting facility project contemplates additional Environmental Assessment approvals and ongoing monitoring for various aspects of the meeting facility project and the other components of the Chateau Long Range Plan, if constructed. These are mitigation measures which are within Parks Canada"s authority under paragraph 20(1)(a) of the CEAA to require as conditions of the approval.
[27] The Environmental Screening documents include a description of each and every component of the Chateau Long Range Plan, a prediction of the environmental and cumulative effects of all components in combination with existing facilities and the measures to mitigate the negative effects of the overall plan. With this overall assessment of the environmental effects of the Chateau Long Range Plan in place, Parks Canada was able to grant approval of the meeting facility project because it fell within the range of predicted residual effects after mitigation efforts proposed for the entire leasehold. Parks Canada will now be in a position to assess each component of the Plan, if and when they proceed, with the benefit of specific Environmental Assessments in respect of each component.
[28] For all of these reasons therefore, I am satisfied that the Environmental Assessment in respect of the meeting facility meets the requirement of the Canadian Environmental Assessment Act and properly incorporates the management plans of Banff National Park and the community plan of Lake Louse. I cannot ascertain that the Acting Superintendent committed any reviewable error in either fact or in law in making his decision which would justify this Court"s intervention.
[29] The application is dismissed. Costs to the respondents.
JUDGE
OTTAWA, Ontario
September 21, 1999