Federal court reviews Maligne Lake development proposal
EDMONTON – The fate of Maligne Tours’ development proposal now rests in the hands of a federal court judge who must decide if Parks Canada erred in its decision to approve the company’s plans to build overnight accommodations at the lake.
Ecojustice, on behalf of the Canadian Parks and Wilderness Society (CPAWS) and the Jasper Environmental Association (JEA), filed an application for a judicial review in 2014, alleging that overnight accommodation at the lake would undermine the law and set a dangerous precedent for development in Canada’s national parks.
On Oct. 27, lawyers from Ecojustice and Parks Canada put forward their arguments to Justice James Russell in an Edmonton court room.
Maligne Tours did not represent itself in court, but filed its own submissions to the judge.
The focus of the judicial review was whether Greg Fenton, Jasper’s former superintendent, had the legal authority to approve Maligne Tours’ development proposal for 15 tent cabins.
A large part of the discussion focused on the fact that Fenton’s decision would require an amendment to the park’s management plan in order for the proposal to proceed.
Currently, the management plan prohibits the release of new land for overnight commercial accommodations outside of the Jasper townsite.
In light of the prohibition, Ecojustice asked the judge to quash Fenton’s decision.
“This application is about a decision maker acting outside of his authority and by doing so enabling commercial development within a national park,” said Melissa Gorrie, a lawyer for Ecojustice.
The Ecojustice lawyers argued Fenton didn’t have the legal authority to ask for an amendment and that the park’s management plan is legally binding.
“He is calling for an amendment in response to a development proposal that is completely contrary to the management planning scheme that exists,” argued Gorrie.
“He doesn’t have the authority to be looking at the idea of an amendment at all.”
According to Fraser Thomson, the other lawyer for Ecojustice, the management plan is legally binding and therefore the superintendent must follow it.
“The superintendent made his approval of the cabin proposal contingent on the subsequent amendment of the management plan. That’s an important fact, because nothing is more demonstrative of the fact that the superintendent was bound by the management plan than the fact that he conducted himself as if he was bound by the management plan,” said Thomson.
Fenton was present for the judicial review, but declined to comment.
In July 2014, Fenton rejected Maligne Tours’ proposal to construct a 66-room hotel, but accepted the company’s 13 remaining proposals, including the proposed development of 15 tent cabins at the lake.
Pat Crowley, manager of Maligne Tours, attended the judicial review, but declined to comment.
According to Gorrie, when Maligne Tours put its proposal out for public comment it received almost 2,000 submissions, 99 per cent of which rejected it.
Parks Canada’s lawyers urged the judge to consider the approval of the plan as a “conceptual approval” of the first phase of the development process.
“It is quite clear from the wording that there was no guarantee of any further approval,” said Christine Ashcroft, a lawyer for Parks Canada.
“It was always anticipated that there would be proper submission of a detailed design level proposal and that there would be further review, including a detailed environmental impact review of the proposal.”
She argued that following Ecojustice’s line of thought, Parks Canada would not be able to consider any new ideas or new proposals that are not already contemplated in the park’s management plan.
“This court is actually determining whether Parks Canada can even consider a development proposal contrary to a management plan,” said Ashcroft.
“The applicants view the management plan as legislation, they treat it as regulation. We say that the management plan is a key policy document, but it is not legally binding and it may be changed.”
Ashcroft went on to explain that the Canada National Parks Act includes the ability to make changes to management plans and therefore they are not binding.
She also agreed with the lawyers from Ecojustice that the ecological integrity of Canada’s national parks is Parks Canada’s first priority, but she noted that it isn’t the agency’s only priority.
In her closing arguments, Ashcroft described Fenton’s decision as “completely reasonable” and suggested it showed a balance between ecological integrity and visitor experience.
Alison Ronson, executive director of CPAWS’ northern Alberta chapter, declined to speculate about the court case, but warned that if Ecojustice fails to quash Fenton’s decision it could set a dangerous precedent for other national parks.
“If this decision is allowed to stand it’s a slippery slope that could potentially allow private operators in all national parks across Canada to open management plans and open up policies for personal and private benefits,” said Ronson.
As well as setting a precedent, the JEA is also concerned about the effect tent cabins could have on wildlife in the Maligne Valley, in particular the endangered Maligne caribou herd and the local grizzly population.
“Overnight accommodations at Maligne Lake would bring increased foot and vehicle traffic to the area at night and in the early morning when wildlife is most active,” said Jill Seaton, chair of the JEA, in a press release.
“This presents both ecological and safety concerns because Maligne Lake is within the habitat of an endangered caribou herd and is part of an important grizzly bear corridor.”
Seaton and Ronson were both present for the judicial review.
The judge didn’t provide an indication as to when he would make his decision.