2019 FC, 2019 FC 1023

Date: 20190730 Docket: T-853-18 Citation: 2019 FC 1023 Ottawa, Ontario, July 30, 2019 PRESENT: Madam Justice Strickland BETWEEN: ROBERT GRANDJAMBE JR.

ON HIS OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF MIKISEW CREE FIRST NATION Applicant and PARKS CANADA AGENCY, MINISTER OF ENVIRONMENT AND CLIMATE CHANGE AND SUPERINTENDENT OF WOOD BUFFALO NATIONAL PARK Respondents JUDGMENT AND REASONS [ 1 ] This is an application for judicial review of the April 6, 2018 decision of the Superintendent of Wood Buffalo National Park [Superintendent] refusing the Applicant’s application seeking a permit to construct a harvesting cabin at the location proposed by the Applicant, within Wood Buffalo National Park.

This application is brought on behalf of the Applicant, Robert Grandjambe Jr., and the members of the Mikisew Cree First Nation. Background [ 2 ] The Applicant is a member of the Mikisew Cree First Nation [Mikisew], which is an Indian band within the meaning of the Indian Act , RCS 1985, c I-5, s 2(1). Mikisew is a signatory to Treaty 8. [ 3 ] The Parks Canada Agency [Parks Canada] is a body corporate established pursuant to the Parks Canada Agency Act , SC 1998, c 31 .

As set out therein, it exercises, on behalf of the Minister of Environment and Climate Change [Minister], the powers and performs the duties and functions that relate to national parks, national historic sites, national marine conservation areas, and national heritage areas and programs. It is also responsible for the implementation of policies of the Government of Canada that relate to national parks (s 3, 4(1)(a), 5, and 6). The Superintendent is appointed under the Parks Canada Agency Act .

He is responsible for the management of Wood Buffalo National Park. [ 4 ] Wood Buffalo National Park [WBNP or the Park] is Canada’s largest national park. Indigenous harvesters from many First Nations and Métis communities carry out harvesting activities, such as hunting, trapping, and fishing, within the Park. Four First Nations have reserves in WBNP, these include Salt River First Nation [Salt River], Smith’s Landing First Nation [Smith’s Landing] and Mikisew. Salt River and Smith’s Landing have reserves adjacent to Pine Lake.

Mikisew’s reserve is located approximately 100 km south of Pine Lake. [ 5 ] The Respondent acknowledges that Mikisew and other signatories to Treaty 8 have a constitutional right under s 35 of The Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Constitution Act, 1982 ] and Treaty 8, as modified by the Natural Resources Transfer Agreement ( Natural Resources Transfer Act , SC 1930, c 3 ), to hunt, trap, and fish for food in WBNP, subject to lawful regulation and the Crown’s ability to take up lands for specific purposes. These rights include the building and maintaining of harvesting cabins, also referred to as trapping cabins, which are necessarily incidental to the exercise of treaty rights. As a member of Mikisew, the Applicant individually exercises this collective right.

Approximately 11 Indigenous groups are located in and around the Park. [ 6 ] It is undisputed that the Applicant has exercised his Treaty rights to hunt, fish, and trap since he was young, and continues to do so. He states that he uses the pelts of the animals that he traps to make mitts, hats, moccasins, slippers, and other crafts, some of which he trades and some of which he provides to community members. Further, he consumes the meat from the trapped animals and shares it with members of his family and community.

Trapping also allows the Applicant to pass on traditional knowledge and skills to other Mikisew members. For Mikisew trappers, a harvesting cabin can be necessary for the exercise of their Treaty rights as it provides shelter in winter, allows them to be near their trap lines, which must be tended, and provides a place to prepare bait and snares and to thaw and dry furs. [ 7 ] In the summer of 2014, the Applicant attended at Parks Canada’s office and requested an application package for a harvesting cabin. He indicated that he was planning to build on Pine Lake.

At that time he was told that harvesting cabins were not permitted within 800 metres of the shore of Pine Lake for public safety reasons and because it is the primary recreational area within WBNP. In October 2014, Parks Canada found an unauthorized road cut from Kettle Point Road, along an official hiking trail, to Pine Lake and the start of construction of a cabin about 34 metres from the shore of Pine Lake. Parks Canada contacted the Applicant who confirmed that the construction was his and that he intended to continue to build there.

In November 2014, Parks Canada met with the Chiefs of Salt River, Smith’s Landing and Mikisew Cree First Nations to discuss the construction of the harvesting cabin by the Applicant. Salt River and Smith’s Landing expressed support for the restriction on harvesting cabins within 800 metres of Pine Lake and were of the view that Parks Canada should enforce the restriction. Many communications with the Applicant followed, including explanations as to why the location he had chosen for the cabin was not appropriate and that construction must stop.

The Applicant refused to halt his construction and, ultimately, Parks Canada removed the partially constructed cabin and attempted site restoration. Parks Canada advised the

Applicant that his building supplies were available for pick up. [ 8 ] On July 11, 2017, the Applicant submitted to Parks Canada an Application for Traditional Harvesting Cabin [Permit Application], including a detailed addendum in which he described his background as a trapper and a treaty person, why he wanted to build a cabin, why he selected the location that he had – which was the same location where he had previously commenced construction – and other factors which he submitted supported his application.

The Permit Application also included letters of support from individual members of Salt River, Mikisew, and Smith’s Landing. [ 9 ] On July 28, 2017, the Applicant requested an update on the application and offered to assist in the application process by answering questions, providing clarification, or consulting with potentially affected Indigenous groups. By email of August 15, 2017, the Superintendent confirmed receipt of the Permit Application. He noted that the application, in effect, sought an exemption to Parks Canada’s policy of not allowing traditional harvesting cabins within 800 metres of Pine Lake.

The Superintendent stated that Parks Canada had begun reviewing the package along with correspondence and information collected between 2014 and 2016 related to the cabin’s proposed location, and would let the Applicant know should further information be required. On August 30, 2017, the Applicant wrote to the Superintendent again, stating that he was entitled to a fair process and if he was not to be included in consultations with other Aboriginal groups or people, then he expected the Superintendent would share the details of those consultations and provide the Applicant with the opportunity to respond.

Further, that his Permit Application was to be assessed in a timely manner which took into account his Treaty rights. By email of September 21, 2017, the Superintendent responded, addressing timelines and stating that Parks Canada was currently gathering information on the positions of the three Indigenous groups who had been involved in the file. Once responses from those groups were received, Parks Canada would share their positions with the Applicant, who would then have an opportunity to respond to the views expressed.

The Applicant sent follow-up letters on December 21, 2017, and February 26, 2018. [ 10 ] On April 6, 2018, the Superintendent wrote to the Applicant advising him that his Permit Application had been denied. That decision is the subject of this application for judicial review. Decision Under Review [ 11 ] In his letter, the Superintendent stated that, as indicated in past correspondence, Parks Canada recognized that the Applicant has Treaty 8 harvesting rights within WBNP.

However, it was of the opinion that the location proposed for the harvesting cabin was not appropriate for a number of reasons, including the five that were then listed. [ 12 ] First, both Salt River and Smith’s Landing have reserve lands on Pine Lake. Their Treaty Land Entitlement Agreements [TLEAs] with Canada commit them and Parks Canada to work co-operatively through ongoing consultation in relation to land use and management issues around Pine Lake, both on Reserve lands and on adjacent Parks Canada lands.

As harvesting and harvesting cabins had historically not been permitted within 800 metres of Pine Lake, any change of policy regarding land use would trigger the commitments under the TLEAs and require consultation and discussion with Salt River and Smith Landing. [ 13 ] Second, Salt River had indicated its opposition to the construction of a harvesting cabin at the location proposed by the Applicant. [ 14 ] Third, the proposed location is at the junction of two public trails and close to a trailhead parking lot.

The trails and trailhead parking areas form part of the Pine Lake recreational area visitor facilities. Although WBNP is the largest national park in Canada, Parks Canada maintains a very small number of visitor facilities for public use. Harvesting infrastructure on or adjacent to these facilities is incompatible with the use and enjoyment of the area by all Park visitors. [ 15 ] Fourth, for public safety reasons, harvesting is not permitted within 800 metres of Pine Lake between April 1 and October 31 of each year, as this is a period of high visitor use.

An alternative cabin location, away from visitor facilities and more than 800 metres from the lake, would be more appropriate as it could be used for harvesting throughout the year with fewer safety concerns and lower potential impacts to reserve lands of other Indigenous groups and other Park users. [ 16 ] Finally, the 2010 Park Management Plan (WBNP Management Plan 2010 [Management Plan]) highlights the Pine Lake area and indicates the important role that Salt River and Smith’s Landing have in that area, stating that " “The purpose of this Pine Lake Area Management Approach is to provide Wood Buffalo National Park, SLFN [Salt River] and SRFN [Smith’s Landing] with a plan that promotes compatible land-use and development for reserve and park lands at Pine Lake” " . [ 17 ] The Superintendent stated, as had been previously discussed, that the majority of WBNP lands are available for the construction, with a permit, of a harvesting cabin ancillary to Treaty 8 harvesting rights, that Parks Canada had offered to work with the Applicant to find another location that would be mutually acceptable and, had explained the basis of its concerns with the current proposed location.

Parks Canada reiterated its desire to work with the Applicant in this regard and wished to be clear that it fully supported the Applicant’s Treaty 8 harvesting and ancillary rights, while making every effort to be equally respectful of the rights of other Treaty 8 beneficiaries as well as to provide basic recreational facilities to park visitors in a few limited locations. [ 18 ] I note that the certified tribunal record [CTR] also contains a 12-page document, with attachments, entitled " “Record of Decision – Robert Grandjambe Jr’s request for an exemption to build a harvesting cabin at Pine Lake Wood Buffalo National Park” " [Record of Decision], which sets out the rationale for the decision.

The Record of Decision is to be considered as part of the decision and can be considered in assessing the adequacy of reasons ( Mitchell v Canada , 2015 FC 1117 at paras 28–31 ). Similarly, it is open to a court, if necessary, to look to the record for the purpose of assessing the reasonableness of a decision.

The record can also be utilized by a reviewing court to supplement, but not supplant, the analysis of the decision-maker ( Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para 15 ); Delta Air Lines Inc v Lukács , 2018 SCC 2 at paras 23–24 ; Williams Lake Indian Band v Canada (Aboriginal Affairs and Northern Development) , 2018 SCC 4 at para 116 ). Relevant Legislation and Guidelines

Wood Buffalo National Park Game Regulations, SOR/78-830 [ 19 ] Trapping within WBNP is governed by the Wood Buffalo National Park Game Regulations , SOR/78-830 [ WBNP Game Regulations ], made pursuant to the Canada National Parks Act , (SC 2000, c 32). Relevant to this application are s 7, 13, 14, and 50(1) – (4): " 7 No person shall hunt, trap or discharge a firearm within eight hundred metres of the shoreline of Pine Lake from April 1 to October 31 in any year.

" " 7 " " Il est interdit, entre le 1 er avril et le 31 octobre de chaque année, de chasser, piéger ou décharger une arme à feu dans un rayon de 800 m de la rive du lac Pine. " " … " " […] " " 13 A trapping permit authorizing the holder thereof to hunt fur bearing animals may be issued by the superintendent to any person who " " (

a) is the holder of a general hunting permit; and " " (

b) is named in a certificate of registration for the trapping area, whether or not he is the holder of the certificate. " " 13 " "

Le directeur du parc peut délivrer un permis de piégeage autorisant la chasse d’animaux à fourrure au détenteur d’un permis général de chasse dont le nom paraît sur un certificat d’enregistrement applicable à un secteur de piégeage, qu’il en soit le détenteur ou non. " " 14

(1) A certificate of registration for a trapping area may be issued by the superintendent to a person either on his own behalf or on behalf of two or more persons, if each person is the holder of a general hunting permit. " " 14 (1) " "

Le directeur du parc peut délivrer un certificat d’enregistrement applicable à un secteur de piégeage au nom d’une ou de plusieurs personnes à condition que chacune détienne un permis général de chasse. " "

(2) Where a certificate of registration is issued pursuant to subsection (1), the superintendent may add the name of a person to the certificate if written permission is obtained from " " (2) " " Au certificat d’enregistrement visé au paragraphe (1), le directeur du parc peut ajouter le nom d’une autre personne, à condition d’en obtenir l’autorisation écrite " " (

a) the holder of the certificate, where the certificate is issued on behalf of one person; " " a) " " du détenteur du certificat, lorsqu’il a été délivré au nom d’une seule personne; " " (

b) the holder of the certificate and the second group member, where the certificate is issued on behalf of two persons; or " " b) " " du détenteur du certificat et de la seconde personne, lorsque le certificat a été délivré au nom de deux personnes; ou " " (

c) the holder of the certificate and the majority of the other group members, where the certificate is issued on behalf of three or more persons. " " c) " " du détenteur du certificat et de la majorité des membres du groupe, lorsque le certificat a été délivré au nom de trois personnes ou plus. " " … " " […] " " 50

(1) The superintendent is authorized to issue a trapper’s cabin permit to any person named in a certificate of registration. " " 50 (1) " "

Le directeur du parc est autorisé à délivrer un permis de cabane de trappeur aux personnes inscrites sur un certificat d’enregistrement. " "

(2) An application for a trapper’s cabin permit shall " " (

a) be made on a form supplied by the superintendent; and " " (

b) contain the information required by the form and any additional information requested by the superintendent. " " (2) " " Pour obtenir un permis de cabane de trappeur il faut remplir le formulaire distribué à cette fin par le directeur du parc et fournir, le cas échéant, les renseignements complémentaires qu’il peut exiger. " "

(3) No person shall erect or alter any building, cabin or structure in the Park unless he does so under and in accordance with a trapper’s cabin permit. " " (3) " " Il est interdit de construire ou de transformer un bâtiment ou une construction dans le parc, en contravention aux conditions d’un permis de cabane de trappeur. " "

(4) The superintendent may refuse to issue a trapper’s cabin permit if the proposed trapper’s cabin is not compatible in design or size with the proposed location. " " (4) " "

Le directeur du parc peut refuser de délivrer le permis de cabane de trappeur si la forme ou les dimensions de la cabane prévue sont incompatibles avec l’emplacement proposé. " Wood Buffalo National Park Application for Traditional Harvesting Cabin [ 20 ] In accordance with s 50(2) of the WBNP Game Regulations , which states that an application for a trapper’s cabin permit shall be made on a form supplied by the superintendent and contain the information required by the form and any additional information requested by the superintendent, Parks Canada developed the " “Wood Buffalo National Park Application for Traditional Harvesting

Cabin” " . [ 21 ] This application seeks information from an applicant as to the proposed cabin and also includes the " “WBNP Generic Environmental Assessment Screening Guidelines for Traditional Harvesting Cabin Applications” " [Harvesting Cabin Application Guidelines]. These are stated to apply to Treaty 8 members and Métis individuals who are registered trappers in the Park.

They also describe the application process, including: that a minimum of six weeks will be allocated for the processing of applications; that, when practical, a site visit by Park staff and the applicant will take place during which potential impacts to natural and cultural resources, public safety hazards, and any other concerns will be identified and assessed for significance; that an environmental impact analysis will be completed to assess impacts and to identify any changes to the cabin construction that could mitigate them; and, that WBNP will consult with relevant Aboriginal organizations around the Park and that applicants are encouraged to engage in these consultations on their own initiative with the objective of obtaining support from the harvesters in the area.

The Harvesting Cabin Application Guidelines also set out that some restrictions apply to the construction of traditional use cabins to ensure visitor safety and conservation stating that: Cabins will not be approved in the following locations, these locations include but are not limited to: All Zone 1 designated areas including the Whooping Crane Nesting grounds and the Salt Plains Within 800m of Pine Lake, day use areas, recreational trails, group camps, backcountry campgrounds (example: Rainbow Lakes) Sweetgrass Landing and Sweetgrass Stations [ 22 ] The Harvesting Cabin Application Guidelines also address cabin site guidelines, including, for example, that the cabin and any associated buildings ( e.g. outhouse and fuel storage shed) must be at least 31 metres (100 feet) from the nearest body of water.

Preliminary Issue – Admissibility of Affidavits [ 23 ] In support of this application for judicial review, the Applicant has filed an 89-paragraph affidavit sworn on July 9, 2018 [Grandjambe Affidavit], as well as an affidavit of Chief Archie Waquan of the Mikisew Cree First Nation, sworn on July 9, 2018 [Waquan Affidavit]. [ 24 ] The Respondents note that much of this affidavit evidence is duplicative of the content of the record that was before the Superintendent or is not challenged. However, some of the content of the affidavits was not before the Superintendent when he made the decision under review.

The Respondents have identified this content in Appendix B of their written representations and submit that this evidence should be given little or no weight. [ 25 ] As a general rule, the evidentiary record before the Court on judicial review is restricted to the record that was before the decision- maker. That is, evidence that could have been placed before the decision-maker is not admissible before the reviewing court. This is because Parliament gave administrative decision-makers and the courts different roles.

Administrative decision-makers, and not the courts, have jurisdiction to determine certain matters on their merits. A court cannot allow itself to become a forum for fact finding on the merits of the matter.

However, there are recognized exceptions to this general rule, including the acceptance of an affidavit that: provides general background in circumstances where that information might assist the Court’s understanding of the issues relevant to the judicial review; brings to the attention of the Court procedural defects that cannot be found in the evidentiary record; or, highlights the complete absence of evidence before the administrative decision-maker when it made a particular finding ( Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright) , 2012 FCA 22 at paras 19 , 20; Bernard v Canada Revenue Agency , 2015 FCA 263 at paras 13–28 ). [ 26 ] While the Applicant acknowledges the general rule, he submits that the challenged affidavit evidence should be admitted because it contains information that would have been before the Superintendent had he fulfilled his promise to provide the Applicant with an opportunity to respond to concerns raised regarding the Permit Application.

Additionally, because it is necessary given the constitutional nature of the issues raised by the applications.

That is, the Superintendent’s decision unjustifiably infringed the Applicant’s Treaty rights and was unreasonable, in part, because it failed to uphold the honour of the Crown. [ 27 ] In my view, to the extent that the Applicant is suggesting that he would have put the information contained in the affidavits before the Superintendent had he known that the Superintendent was not going to advise him of the results of the Superintendent’s consultations with Salt River and Smith’s Landing, this does not make the content admissible.

This is because the challenged content of the affidavits primarily concerns his trapping history and that of his family. It does not directly pertain to the allegation of a breach of procedural fairness arising from the Superintendent’s failure to provide the results of his consultation with Salt River and Smith’s Landing to the Applicant and the concerns of those First Nation with the proposed harvesting cabin location.

The Respondents acknowledge that paragraphs 59, 62, 68, 87, and 89 of the Grandjambe Affidavit do pertain to the alleged breach of procedural fairness and therefore fall within the procedural fairness exception, they do not challenge the admissibility of those paragraphs. I also note that the challenged content was known to the Applicant before the Superintendent’s decision, and there is also no explanation provided as to why it could not have been put before the Superintendent in the Permit Application.

Other challenged paragraphs of the Grandjambe Affidavit directly respond to the Superintendent’s decision or express the Applicant’s view of how the decision impacted his ability to trap on his trapline. [ 28 ] To the extent that the challenged evidence goes to the merits of the matter and could have been, but was not, previously provided, it is not admissible. Evidence that speaks directly to the alleged breach of procedural fairness is admissible.

As to evidence that is said to speak to the infringement of the Applicant’s Treaty rights, given my finding below that this issue cannot be resolved by way of this application for judicial review, it is not relevant. [ 29 ] In the result, paragraphs 5, 7, 9, 13–15, 18, 20–24, 26–44, 50–53, 56, and 69–77 of the Grandjambe Affidavit are inadmissible as this evidence was not before the Superintendent and does not fall under the any of the exceptions to this general rule. Exhibits D–H,

referenced in those paragraphs, are therefore also inadmissible. [30] As to the Waquan Affidavit, the Respondents note that it contains new information and opinion, not found in the record, withrespect to hunting in WBNP, Mikisew, and the WBNP Game Regulations. The Respondents submit that, while much of the content is notin dispute, nor was it before the Superintendent. In my view, for the same reasons as set out with respect to the Grandjambe Affidavit,paragraphs 2–20 and paragraph 22, in part (the third sentence, opinion evidence), of the Waquan Affidavit are also in admissible.

Issues and standard of Review [31] In my view, the issues to be determined in this application for judicial review can be framed as follows: 1. Was the decision to refuse the Permit Application reasonable? 2. Was there a breach of procedural fairness? 3. Is this the appropriate venue to consider whether the decision infringed upon the Applicant’s Treaty rights? If so, were those rightsinfringed? [32] The parties submit, and I agree, that a standard of reasonableness applies to the decision itself.

This Court has previously found thata discretionary decision made by the superintendent of a national park, pursuant to his or her statutorily-granted authority, is reviewableon a standard of reasonableness (Canadian Parks and Wilderness Society v Maligne Tours Ltd, 2016 FC 148 at para 27; Sunshine VillageCorporation v Parks Canada Agency, 2014 FC 604 at para 30; Burley v Canada (Attorney General), 2008 FC 588 at para 39).

Theparties also agree that the decision must be constitutionally sound (Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153at paras 205, 224, 226 [Tsleil-Waututh]) and that consideration of constitutional issues in the decision can be viewed as an aspect ofreasonableness (Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resources Operations), 2017 SCC 54 at paras 77 and82. [33] As to the second issue, the standard of review of correctness applies to issues of procedural fairness (Mission Institution v Khela,2014 SCC 24 at para 79; (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43).

That said, Justice Rennie of theFederal Court of Appeal recently stated that a court assessing a procedural fairness argument is required to ask whether the procedurewas fair having regard to all of the circumstances, including the factors set out in Baker v Canada (Minister of Citizenship andImmigration), (SCC), [1999] 2 SCR 817 [Baker]. And, with a sharp focus on the nature of the substantive rightsinvolved and the consequences for an individual, whether a fair and just process was followed.

Regardless of how much deference isaccorded administrative tribunals in the exercise of their discretion to make procedural choices, the ultimate question remains whetherthe applicant knew the case to meet and had a full and fair chance to respond (Canadian Pacific Railway Company v Canada (AttorneyGeneral), 2018 FCA 69 at paras 54–56). Issue 1: Was the decision refusing the Permit Applicationreasonable? Applicant’s Position [34] The Applicant submits that the decision is unreasonable because it falls outside of the range of possible, reasonable outcomes and isnot adequately explained by the reasons.

Further, the Superintendent unreasonably exercised the narrow discretion afforded by s 50(4) ofthe WBNP Game Regulations in a manner that is inconsistent with the honour of the Crown. The Applicant then sets out why he thinkseach of the five reasons offered by the Superintendent is unreasonable. [35] First, the Applicant argues that the Superintendent fettered his discretion by relying on the policy which prohibits the constructionof harvesting cabins within 800 metres of Pine Lake.

The policy is unwritten, and the decision does not explain why harvesting cabinsdiffer in principle from other cabins which currently exist within the 800-metre buffer zone, and no consideration was given to thespecific circumstances of the case. Instead, the Superintendent impermissibly deferred to the policy.

Additionally, the Superintendentexplained that a change in the policy to allow harvesting cabins within 800 metres of Pine Lake would require consultation with SaltRiver and Smith’s Landing, but he did not explain why a requirement to enter into consultation renders the proposed locationunreasonable. [36] Next, the Applicant submits that it was also unreasonable for the Superintendent to rely, without explanation, on the opposition ofSalt River to the construction of the harvesting cabin at the proposed location.

According to the Applicant, the record contains no basisfor Salt River’s opposition and ignores his evidence of support for the construction. Nor does the record contain any evidence that theproposed cabin would have an adverse impact on the rights or interests of Salt River. In deferring to Salt River’s opposition, theSuperintendent again fettered his discretion. [37] As to the Superintendent’s third reason, the Applicant argues that the Superintendent failed to explain why the proposed cabin isincompatible with the use of the Park by visitors.

While the Superintendent notes the presence of a parking lot, hiking trails, and a road,he fails to explain why these features are incompatible with the presence of a harvesting cabin. A proposed use will only be incompatibleif it is contrary to the purpose underlying the Crown’s occupancy of the Park and prevents the realizing of that purpose (R v Sundown, (SCC), [1999] 1 SCR 393 at paras 9, 41 [Sundown]). There is no suggestion in the evidence or the reasons that theproposed harvesting cabin would prevent Park visitors from engaging in recreational activities.

Rather, the Applicant’s uncontestedevidence shows that the proposed cabin is perfectly compatible with that purpose and it was not open to the Superintendent to concludeotherwise without reasons. Moreover, the unreasonableness of the decision is heightened by its constitutional context. To be consistent

with the honour of the Crown, the refusal was required to be reasonable and to be accompanied by a meaningful explanation for the denial of the Applicant’s Treaty right. However, the reasons provided by the Superintendent do not meet that standard. [ 38 ] Fourth, the Applicant submits that the Superintendent unreasonably concluded that there were safety concerns associated with the proposed location of the harvesting cabin. This finding ignores the Applicant’s evidence that he would not harvest within 800 metres of Pine Lake.

Additionally, the Superintendent neglected to explain how the proposed cabin would have an impact on reserve lands and other Park users so as to render the cabin incompatible with the chosen location. [ 39 ] Finally, the Applicant submits that it was unreasonable for the Superintendent to rely on the Management Plan.

The Pine Lake Area Management Approach has not yet been developed and the decision does not disclose why the Superintendent believes that the proposed cabin is incompatible with the Management Plan. [ 40 ] The Applicant submits that, in whole, the reasons do not provide a statutory, constitutional, or administrative law basis to deny his Permit Application and admits of only one reasonable outcome – being that the cabin and its proposed uses are compatible with the proposed location. Respondents’ Position [ 41 ] The Respondents submit that, read as a whole and in light of the record, the decision was reasonable.

Significant deference should be afforded to the view of park officials that a particular action was consistent with the discharge of broad statutory duties ( Canadian Parks and Wilderness Society v Canada (Minister of Canadian Heritage) , 2003 FCA 197 at paras 45 , 68–69, 99). The Superintendent was obliged to weigh competing, and to some degree irreconcilable, interests.

In doing so, he identified key policy considerations, including the Applicant’s Treaty rights, the Treaty rights and interests of nearby First Nations, ecological integrity, visitor experience – including safety concerns, the availability of alternative suitable locations, and the Management Plan. He then weighed the specific merits and concerns of the Applicant’s proposed cabin location with relevant policy concerns. [ 42 ] As to the Applicant’s Treaty rights, the decision appropriately considered the Applicant’s and Mikisew’s Treaty rights as a fundamental issue in considering the Permit Application.

It repeatedly affirms the Treaty right to have a harvesting cabin within WBNP, and the Superintendent indicated that there would likely be no concern with a harvesting cabin located outside the 800-metre recreational zone around Pine Lake. Further, a 2013 map shows dozens of Mikisew harvesting cabins within WBNP. Here, the Superintendent’s concern was with the precise location of the proposed cabin and its impact on other rights and interests. [ 43 ] The Superintendent also appropriately consulted the two First Nations situated closest to the proposed harvesting cabin, and Mikisew.

This respected Salt River and Smith Landing’s Treaty rights and fulfilled the obligations contained in the TLEAs. It was also reflective of Parks Canada’s policy of working collaboratively in relation to land use and management, as reflected in the Management Plan. [ 44 ] The Superintendent also considered ecological preservation and the impact on Park visitor use. The broad authority of the Superintendent to manage the Park and harvesting activities go beyond location compatibility with design and size of harvesting cabins.

And, in any event, a harvesting cabin of any design and size would be incompatible with the Applicant’s proposed location within the 800-metre zone. The reasons set out the importance of Pine Lake as the most visited location in WBNP and as one of the few areas accessible to the public by vehicle. Further, the proposed cabin is located at the junction of two trails and close to a trailhead parking lot, and harvesting activities are incompatible with the use and enjoyment of these areas by all Park visitors.

The 800-metre restriction on harvesting or harvesting cabins protects visitor enjoyment and public safety. [ 45 ] The decision also discusses the possibility of other locations for the Applicant’s cabin and reasonably concludes that a harvesting cabin could be located elsewhere and still meet the Applicant’s needs. The Superintendent is very familiar with WBNP, and his exercise of discretion on this issue is owed deference.

And, while by way of the Grandjambe Affidavit the Applicant now offers new reasons why other locations are unsuitable, these were not before the Superintendent and cannot be used to impugn the reasonableness of the decision. [ 46 ] In sum, the decision reasonably concludes that the Applicant’s chosen location is not the only place in WBNP that would meet his needs or that would allow him to exercise his Treaty rights without undue hardship.

Analysis [ 47 ] In my view, it is helpful to first set out some of the legislative and other backdrop information to provide context to this issue. [ 48 ] In that regard, it is of note that s 2(2) of the Canada National Parks Act states that nothing in that Act shall be construed so as to abrogate or derogate from the protection provided for existing Aboriginal or Treaty rights of the Aboriginal Peoples of Canada by the recognition and affirmation of those rights in s 35 of the Constitution Act, 1982 .

Subsection 4(1) states that the national parks of Canada are dedicated to the people of Canada for their benefit, education, and enjoyment, subject to the Act and the regulations, and the parks shall be maintained and made use of so as to leave them unimpaired for the enjoyment of future generations. The Minister is responsible for the administration, management, and control of parks (s 8(1)).

Maintenance or restoration of ecological integrity, through the protection of natural resources and natural processes, shall be the first priority of the Minister when considering all aspects of the management of parks (s 8(2)).

As to management plans, the Minister is required, within five years after a park is established, to prepare a management plan for the park containing a long-term ecological vision for the park, a set of ecological integrity objectives and indicators, and provisions for resource protection and restoration, zoning, visitor use, public awareness, and performance evaluation, which shall be tabled in each House of Parliament. In this case, that plan is the Management Plan. [ 49 ] The Management Plan states that WBNP encompasses an area of 44,807 square kilometres.

It is Canada’s largest national park, a United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage Site, and the second largest national park in the world. It also sets out three key strategies, the first of which is " “Towards a Shared Vision” " , which focuses on building

relationships between local Aboriginal groups and communities. Parks Canada will work towards the establishment of a management structure with local Aboriginal groups, recognizing that ecological integrity and cultural resources will be improved with support from local Aboriginal groups. Local communities will be aware of, and provided with, opportunities to actively and meaningfully participate in Park management decisions, and visitor experience in the Park and public outreach education efforts for the Park will involve both local Aboriginal groups and local communities.

As to Area Management Approaches, the Management Plan notes that there are two, one of which is Pine Lake, and that area management approaches are effective for specific geographic locations within the Park that require more detailed planning. The Pine Lake Area Management Approach promotes compatible land-use and development for reserve and Park lands at Pine Lake. The Management Plan states that the key strategies and areas management approaches will improve ecosystem conservation and facilitate visitor experience initiatives. [ 50 ]

Section 6.2 of the Management Plan concerns the Pine Lake Area Management Approach. This

section states that the aquamarine waters of Pine Lake are a WBNP landmark. The lake is formed by several sinkholes that have merged together and is fed by underground springs. It is surrounded by mixed-wood boreal forest and is " “a highly-prized community recreational asset” " . The land surrounding Pine Lake is shared amongst three groups, Parks Canada, Salt River, and Smith’s landing. TLEAs grant both of these First Nations a parcel of land on the east side of Pine Lake.

These lands, which abut one another at the edge of the lake, are accessible via foot around the lake’s perimeter or by boat across the lake; no development at either site currently exists. On the west side of Pine Lake, Parks Canada land accommodates the only serviced campground in the Park. This facility receives moderate use throughout the summer months. There is also an interpretive theatre and a day use area which can accommodate ten groups is nearby. At the south end of the lake is a group camp, accessible via a low-grade road, which can accommodate 50 people.

At the northwest edge of the lake are Park cabins with a public parking area and a boat launch facility. There are also 16 private cottages situated on the west shore on Crown lands. [ 51 ] The Management Plan states that: The purpose of the Pine Lake Area Management Approach is to provide Wood Buffalo National Park, Smith’s Landing First Nation and the Salt River First Nation with a plan that promotes compatible land-use and development for reserve and park lands at Pine Lake.

The Pine Lake Area Management Approach will provide opportunities for sustainable land-use that meet the needs and requirements of the Smith’s Landing First Nation and the Salt River First Nation as defined in their Treaty Land Entitlement Agreement and Parks Canada as defined under the Canada National Parks Act . The Pine Lake Area Management Approach links to the key strategies: Towards a Shared Vison and Connecting to the Magic of the Boreal Plains. [ 52 ] The Management Plan also speaks to cooperative management of national parks with surrounding Aboriginal groups.

Section 8.0 of the Management Plan is entitled " “Zoning and Wilderness Area Declaration” " . This

section states that Parks Canada’s zoning system provides a means to reflect principles of ecological integrity by protecting park lands and resources and ensuring a minimum of human- induced change. The zoning system classifies areas in national parks according to their need for protection and establishes limits on what uses can occur in each park, including the suitability of these areas for visitor activities.

There are five zones in WBNP: Zone I – Special Preservation (10% of the Park) Zone II – Wilderness (86% of the Park) Zone III – Natural Environment (3% of the Park) Zone IV – Outdoor Recreation (1% of the Park) Zone V – Park Services (0% of the Park) [ 53 ] The Management Plan states that Zone IV accommodates a broad range of opportunities for understanding, appreciating, and enjoying the Park’s heritage. Essential services are provided in ways that have the least possible impact on the ecological integrity of the Park. Pine Lake is defined as a Resort Subdivision as per

Schedule II of the Lease and License of Occupational Regulations and is designated Zone IV. In 1961, cottage lots were put up for lease and there are currently 16 cottages within a formally surveyed cottage sub-division. [ 54 ]

Section 9.0, " “Parks Administration and Operations” " , addresses administration of Treaty Land Entitlements, noting that recent negotiations with Mikisew, Smith’s Landing, and Salt River have produced TLEAs that have led to the creation of reserves within Park boundaries. Negotiations with other groups are ongoing, each of which will have some impact on the management of the Park and, based on precedent, they are expected to produce new opportunities for collaboration on Park ecological and cultural resource management and the development of the Park’s visitor experience. [ 55 ] The record also contains the TLEAs that Salt River and Smith’s Landing have entered into with Parks Canada.

Schedule I of the Salt River TLEA describes that Parks Canada and Salt River seek to establish their shared objectives and a consultation framework in relation to reserve lands within the Park, to work co-operatively with Smith’s Landing in relation to land use and management issues affecting the Salt River reserve located adjacent to the Smith’s Landing reserve, and that Parks Canada and Salt River are committed to ongoing consultation with each other in relation to land use planning in respect to reserve lands and adjacent lands in the Park.

Section 8.1 provides that each of these three entities shall appoint members to a Pine Lake Land Use Advisory Committee, which will strive for consensus and provide its advice to the respective Chiefs, Councils, and the Park Superintendent on listed matters which include policies and procedures in respect of land use planning requirements as well as hunting and public safety.

Similar provisions are found in the Smith’s Landing TLEA. [ 56 ] It is also important to note at the outset that, in this matter, there is no issue as to the existence of the Applicant’s Treaty 8 harvesting rights, as demonstrated from the record. For example, in its November 30, 2014 letter to the Applicant, following up on a call with the then-superintendent’s and Parks Canada’s concerns about the Applicant’s construction of a harvesting cabin on a public trail at

Pine Lake, the then-superintendent stated that he wanted to make it clear that Parks Canada recognized that the Applicant has Treaty 8harvesting rights in WBNP and stated that Parks Canada has taken a broad approach to cabin construction insofar as it is reasonablyincidental to traditional harvesting in the Park. The letter describes the process Parks Canada has developed for approving constructionof traditional harvesting cabins in WBNP and describes why the cabin site selected by the Applicant was unsuitable.

This was repeated inthe Parks Canada letter of August 6, 2015, wherein the Superintendent stated that Parks Canada agreed that the Applicant has harvestingrights within WBNP, including the ancillary right to build a cabin for the exercise of those rights, but it had concluded that the particularlocation where the Applicant had commenced construction (without a permit) was not appropriate for a harvesting cabin and set outParks Canada’s reasons for this.

In the first sentence of the April 6, 2018 decision letter, the Superintendent again acknowledged thatParks Canada recognizes that the Applicant has Treaty 8 harvesting rights within WBNP but that it is Parks Canada’s considered opinionthat the proposed harvesting cabin location was not appropriate. Scope of Discretion of the Superintendent [57] The parties disagree about the scope of the Superintendent’s discretion to deny or approve the harvesting cabin Permit Application. [58] The Applicant and the Respondents agree that s 50(1) of the WBNP Game Regulations is discretionary.

It permits theSuperintendent to issue a trapper’s cabin permit to any person named in a certificate of registration. [59] Where they part ways is that the Applicant interprets s 50(4) to severely narrow the Superintendent’s discretion to refuse a permit tothe circumstance where the proposed cabin is not compatible in design or size with the proposed location. Further, that compatibility is ahigh standard which has not been adequately addressed and is not met in this case. More specifically, the Applicant submits that theSuperintendent’s discretion is prescribed by s 50(4) of the WBNP Game Regulations.

The Permit Application could only be refused "“ifthe proposed trapper’s cabin is not compatible in design or size with the proposed location”", and the Superintendent was required toexercise that narrow discretion in a manner that upheld the honour of the Crown. Here, the Applicant was added to a certificate ofregistration for trapping area 1204, he had a right to trap and, therefore, a right to have a trapper’s cabin permit issued to him unless itwas not compatible in design or size with the proposed location (WBNP Game Regulations, s 2(1), 14(2), 50(4)).

The Applicant submitsthat the existence of this narrow discretion is explained by R v Adams, (SCC), [1996] 3 SCR 101 at para 54 [Adams],which also demonstrates that unstructured discretion is not permitted.

Further, that s 50(4) of the WBNP Game Regulations does not dealwith alternate locations and that the issuance of permits is not a matter of land planning and zoning as the Respondents submit. [60] The Respondents see the Superintendent’s discretion as broad and, flowing from his general mandate and obligations to manage andadminister the Park, guided generally by the Canada National Parks Act, the Management Plan and Parks Canada’s obligations underthe TLEAs.

Further, s 50(4) states only one circumstance in which the Superintendent "“may refuse”" to issue a trapper’s cabin permit.Pursuant to s 50(1), it is open to the Superintendent to reasonably exercise his discretion to refuse a permit based on other factors and hisknowledge and expertise, which is what he has done in this case.

The Respondents submit that it was reasonable for the Superintendentto consider key policy considerations, including the Treaty rights of the Applicant, Treaty rights and interests of nearby First Nations,ecological integrity, visitor experience – including safety concerns, the availability of alternative suitable sites, as well as theManagement Plan and the key strategies it identifies, including the facilitation of visitor experiences, public outreach, education, and thebuilding and improving of relationships with partners and stakeholders. [61] I am not persuaded that Adams assists the Applicant.

There, the Supreme Court was considering whether there was an infringementof an Aboriginal right and stated: 54 I am of the view that the same approach should not be adopted in identifying infringements under s. 35(1) of theConstitution Act, 1982. In light of the Crown’s unique fiduciary obligations towards aboriginal peoples, Parliament may notsimply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights in a substantialnumber of applications in the absence of some explicit guidance.

If a statute confers an administrative discretion which maycarry significant consequences for the exercise of an aboriginal right, the statute or its delegate regulations must outlinespecific criteria for the granting or refusal of that discretion which seek to accommodate the existence of aboriginal rights.

Inthe absence of such specific guidance, the statute will fail to provide representatives of the Crown with sufficient directivesto fulfil their fiduciary duties, and the statute will be found to represent an infringement of aboriginal rights under theSparrow test. [62] The Supreme Court found the scheme both imposed undue hardship on the appellant and interfered with his preferred means ofexercising his rights. [63] The Applicant’s submission implies that, based on Adams, the intention of Parliament in implementing s 50(4) of the WBNP GameRegulations was to limit the Superintendent’s discretion to the narrow circumstance where the proposed cabin is not compatible in designor size with the proposed location.

However, the Applicant provides no evidence, authority, or other source to support this impliedintention of Parliament or his submission that Adams explains the narrow discretion afforded to the Superintendent by s 50(4). [64] I also note that, subsequently, in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, the Supreme Court appearsto have recognized that policy and other initiatives may serve to guard against unstructured discretion and provide guidance for decisionmakers: 51 It is open to governments to set up regulatory schemes to address the procedural requirements appropriate to differentproblems at different stages, thereby strengthening the reconciliation process and reducing recourse to the courts.

As notedin R. v. Adams, (SCC), [1996] 3 S.C.R. 101, at para. 54, the government “may not simply adopt anunstructured discretionary administrative regime which risks infringing aboriginal rights in a substantial number ofapplications in the absence of some explicit guidance”. It should be observed that, since October 2002, British Columbia hashad a Provincial Policy for Consultation with First Nations to direct the terms of provincial ministries’ and agencies’operational guidelines.

Such a policy, while falling short of a regulatory scheme, may guard against unstructured discretionand provide a guide for decision-makers.

[65] Here, the Harvesting Cabin Applications Guidelines, described above, form a part of the Permit Application and set out theapplication process and the considerations that come into play when assessing an application.

In my view, this serves to mitigate theApplicant’s submission of unstructured decision making, as does the previously described overall Canada National Parks Act regime. [66] The Applicant is also of the view that the narrow discretion which he submits is afforded to the Superintendent is supported by themaxim expressio unius est exclusio alterius (to express one thing is to exclude another), relying on the dissenting reasons of the SupremeCourt of Canada in Law Society of British Columbia v Trinity Western University, 2018 SCC 32 at para 282 [Trinity College]. [67] I would first note that the Supreme Court of Canada has also indicated that caution should be exercised when relying on the use ofexpressio unius est exclusio alterius as an interpretive tool.

In Turgeon v Dominion Bank, (SCC), [1930] SCR 67 at page70 the Court stated: The maxim, expressio unius est exclusio alterius, enunciates a principle which has its application in the construction ofstatutes and written instruments, and no doubt it has its uses when it aids to discover the intention; but, as has been said,while it is often a valuable servant, it is a dangerous master to follow. Much depends upon the context. One has to realizethat a general rule of

interpretation is not always in the mind of a draughtsman; that accidents occur; that there may beinadvertence; that sometimes unnecessary expressions are introduced, ex abundanti cautela, by way of least resistance, tosatisfy an insistent interest, without any thought of limiting the general provision; and so the axiom is held not to be ofuniversal application. [68] And, in AYSA Amateur Youth Soccer Association v Canada (Revenue Agency), 2007 SCC 42: 15 The words used by Parliament in the ITA provisions concerning RCAAAs show no express intention that the RCAAAregime occupies the field for sports associations; that is, there are no words in the ITA which state that the only way forsports organizations to achieve the same tax treatment as charities is to qualify as an RCAAA.

Therefore, to find an occupiedfield, it would be necessary to interpret the express creation of RCAAA status for nationwide amateur athletic associations asimplying the exclusion of all other sports organizations from charitable status. However, arguments based on impliedmeaning must be viewed with caution. As Professor Sullivan notes: While reliance on implied exclusion for this purpose [determining if a provision is exhaustive] can be helpful, itcan also be misleading. What the courts are looking for is evidence that a particular provision is meant to be anexhaustive statement of the law concerning a matter.

To show that the provision expressly or specificallyaddresses the matter is not enough. [Footnote deleted; p. 266.] [69] However, as noted above, in this case the Applicant points to no evidence that s 50(4) of the WBNP Game Regulations wasintended to be an exhaustive exclusionary provision. [70] In any event, and in my view, Trinity College does not assist the Applicant.

There, Justices Côté and Brown were discussing thelimits of the exercise of discretion of an administrative decision-maker and, in that context, found that an exercise of discretion taken foran improper purpose or on the basis of irrelevant considerations will be unreasonable.

They were of the view that the purpose of a rulerelied upon by the Law Society of British Colombia [LSBC] was limited to the assessment of fitness of individual applicants for licencesand that any exercise of the LSBC’s discretion for a purpose extending beyond the express limits set out under its rule-making powerswould be ultra vires and: [282] More particularly, the Rule does not grant the LSBC authority to regulate law schools. Applying the maxim ofstatutory

interpretation expressio unius est exclusio alterius (“to express one thing is to exclude another”), we can presumethat the legislator did not intend to include the governing of law schools among the LSBC’s rule-making powers at s. 11.The scope of its mandate is limited to governance of “the society, lawyers, law firms, articled students and applicants”. Hadthe legislator intended to grant the LSBC supervisory powers over law schools, it would have explicitly provided for such asignificant grant of authority. [71] Justices Côté and Brown went on to state that their

interpretation was consistent with the purpose of the British Columbia LegalProfession Act, SBC 1998, ch 9 as a whole, and that a careful reading of that Act revealed that the scope of the LSBC’s mandate waslimited to the governance of the practice of law.

The provisions of the Legal Profession Act only related to matters relevant to thegovernance of the legal profession and its constituent parts (the LSBC, lawyers, law firms, articled students, and applicants). [72] Here the Applicant has not asserted that the Superintendent’s exercise of discretion was done for an improper purpose or on thebasis of irrelevant considerations.

Further, and significantly, the majority of the Supreme Court of Canada in Trinity College found thatthe Legal Profession Act required benchers to consider the overarching objective of protecting the public interest in the administration ofjustice when determining the requirements for admission into the profession, including whether to approve a particular school. [73] Similarly, here, the Superintendent’s mandate is an overarching one. In my view, as seen from the above, the Superintendent’smandate is broad and is not restricted only to a consideration of s 50(4) of the WBNP Game Regulations.

That mandate is exercised, inpart, by the application and enforcement of the WBNP Game Regulations, including s 50. It also undoubtedly requires considering theexercise of collective Treaty rights by individuals, such as the Applicant.

But it also requires that the Treaty rights and interests of thevarious First Nations who have reserves within the Park are taken into consideration, as seen from the TLEAs, as well as the preservationof the ecology of the Park for the enjoyment of visitors and future generations of all Canadians, as demonstrated by the Canada NationalParks Act and the Management Plan implemented pursuant to that Act. [74] Put otherwise, I do not agree with the Applicant that s 50(4) is to be interpreted and applied in isolation from the remainder of thatsection as well as the Superintendent’s broader mandate. [75] Subsection 50(1) states that the Superintendent "“may”" issue a trapper’s cabin to any person named in a certificate of registration.Thus, pursuant to that provision, the Superintendent’s discretion to issue, or not issue, a permit is limited by the requirement that an

applicant be named in a certificate. If the applicant is not so named, then the Superintendent cannot issue a permit. Nor is this a circumstance where the issuance of the permit is mandatory if certain stipulated conditions are met. Section 50(2), however, requires that the application must be made in the form supplied by the Superintendent and must contain the information required by that form and any additional information requested by the Superintendent.

As this is a mandatory requirement placed on an applicant, the Superintendent does not have the discretion to issue a permit if s 50(2) has not been complied with. Pursuant to s 50(4), the Superintendent " “may refuse” " to issue a permit if the proposed " “cabin is not compatible in design or size with the proposed location” " .

I do not agree with the Applicant that s 50(4), which itself utilizes discretionary language, must be read to restrict the Superintendent’s discretion under s 50(1) such that the only circumstance in which a permit could be refused would be if the design or size of the proposed cabin is not compatible with the proposed location. [ 76 ] Were that the intent of Parliament, the provision would read " “the superintendent may only refuse” " to issue a permit based on incompatibility of design or size with the proposed location.

However, s 50(2) requires an application for a permit to be submitted and s 50(3) precludes construction without a permit. Viewed in the context of the

section as a whole, and in the context of the legislative scheme overall, this cannot mean that if an application is made that is deficient or, if a permit issued under an application would cause environmental or ecological damage that could not be appropriately mitigated, such as the destruction of rare habitat, nesting grounds, or other sensitive area, that the cabin must be nevertheless approved – unless its design or size is not compatible with the proposed location.

Further, in that example design and/or size are not the factors that would preclude the issuance of a permit; a cabin of any design or of any size would give rise to the ecological concern. Rather, as here, the superintendent would be exercising his or her discretion based on the proposed location of the cabin. [ 77 ] In my view, s 50(4) applies in a circumstance where a proposed cabin is otherwise acceptable, but its size or design is not compatible with the proposed location.

For example, the Harvesting Cabin Application Guidelines state that the main purpose of a cabin is to afford shelter to harvesters while they are engaged in harvesting activities in WBNP. " “Trapper’s Cabin” " is defined in the WBNP Game Regulations as meaning a building or structure erected in a trapping area used as temporary living quarters by a person or persons actively engaged in trapping.

Thus, the erection of a large accommodation that more resembles a permanent home than temporary living quarters for trappers may not be compatible in design or size with the proposed location, which is related to the active engagement in trapping. [ 78 ] Finally, I note that when appearing before me at the hearing of this application for judicial review, Applicant’s counsel conceded that the Superintendent could consider factors other than the proposed cabin’s " “design or size” " .

Specifically, the Court asked the Applicant’s counsel if he was relying on the suggestion that the only factor that the Superintendent was entitled to consider with respect to the Permit Application was whether the proposed cabin’s " “design or size” " was compatible with the proposed location and, if so, whether that meant the Superintendent was not entitled, for example, to consider the Treaty and other interests of Salt River and Smith’s Landing. Counsel responded that the Superintendent could consider other factors, such as the rights and interests of other First Nations and location.

In his view, the issue then becomes whether the Superintendent reasonably exercised his discretion in making a finding of incompatibility in accordance with the high standard that this attracts. [ 79 ] In my view, for the reasons above, the Applicant’s assertion that the Superintendent’s discretion to refuse his Permit Application was restricted to s 50(4) cannot succeed. [ 80 ] The Superintendent had discretion under s 50(1) of the WBNP Game Regulations to issue a trapper’s cabin permit if the Applicant is named on a certificate of registration, which is undisputed in this case, and if the Applicant submitted an application in accordance with s 50(2).

The Superintendent was entitled to assess the Permit Application and exercise his discretion in the context of the Harvesting Cabin Application Guidelines and his overall mandate. The Superintendent also had the discretion to refuse an otherwise compliant application on the basis that the proposed cabin’s design or size was not compatible with the proposed location. Fettering of Discretion [ 81 ] The Applicant also submits that the Superintendent fettered his discretion.

According to the Applicant, this is established by the Superintendent’s statement that harvesting and harvesting cabins have historically not been permitted within 800 metres of Pine Lake and that any change of policy regarding land use would trigger the Salt River and Smith’s Landing TLEA commitments to work cooperatively through ongoing consultation to in relation to land use and management issues around Pine Lake. [ 82 ] I note that the fettering of discretion was addressed by Justice Stratas in Stemijon Investments Ltd v Canada (Attorney General) , 2011 FCA 299 , who stated as follows: [24] Dunsmuir reaffirms a longstanding, cardinal principle: “all exercises of public authority must find their source in law” (paragraphs 27-28).

Any decision that draws upon something other than the law – for example a decision based solely upon an informal policy statement without regard or cognizance of law, cannot fall within the range of what is acceptable and defensible and, thus, be reasonable as that is defined in Dunsmuir at paragraph 47.

A decision that is the product of a fettered discretion must per se be unreasonable. … [60] However, as explained in paragraphs 20-25 above, decision-makers who have a broad discretion under a law cannot fetter the exercise of their discretion by relying exclusively on an administrative policy: Thamotharem , supra at paragraph 59; Maple Lodge Farms , supra at page 6; Dunsmuir , supra (as explained in paragraph 24 above). An administrative policy is not law. It cannot cut down the discretion that the law gives to a decision-maker. It cannot amend the legislator’s law.

A policy can aid or guide the exercise of discretion under a law, but it cannot dictate in a binding way how that discretion is to be exercised. And, as stated by Justice McTavish in Gordon v Canada (Attorney General) , 2016 FC 643 :

[29] While decision-makers are permitted to consider, and indeed, base their decisions on administrative guidelines, a decision-maker will fetter their discretion if they treat a guideline as binding: Waycobah First Nation v. Canada (Attorney General) , 2011 FCA 191 at para. 28 , 421 N.R. 193. Administrative guidelines do not have the force of law.

They therefore cannot be relied on in a way that limits the discretion conferred on a decision-maker by statute: Stemijon Investments , above, at para. 60. (Also see Kanthasamy v Canada (Citizenship and Immigration) , 2015 SCC 61 at para 32 ). [ 83 ] As to the " “policy” " of not permitting harvesting cabins within 800 metres of Pine Lake, it is correct that this is not a formal policy. The Superintendent refers to it as being a historic application.

It does, however, appear in writing in the Harvesting Cabin Application Guidelines, which state that cabins will not be permitted within 800 metres of Pine Lake, day use areas, recreational trails, group camps, and backcountry campgrounds. [ 84 ] In my view, the Superintendent did not fetter his discretion. This is not a situation where the Superintendent treated a policy or guideline as binding upon him and excluded other valid or relevant considerations in the exercise of his discretion.

Rather, here it is clear from the decision and the Record of Decision that the Superintendent considered a number of factors in reaching his decision, including consistency with land use planning, ecological integrity, visitor experience, the Management Plan, Treaty 8 rights, the TLEAs, Salt Lake’s opposition to the proposed cabin location, and that he did so in the context of the specific circumstances of the Permit Application. [ 85 ] As to the Applicant’s submission that there is no explanation as to why the need to consult about potential exceptions to the application of the 800-metre policy with First Nations renders the cabin incompatible with the proposed location; in my view, this conflates an acknowledged consultation obligation with a conclusion as to the incompatibility of the proposed location as they are described in the decision. [ 86 ] Specifically, in the decision the Superintendent first addressed the 800-metre exclusion policy and found that any change to this would trigger the consultation commitments under the Salt River and Smith’s Landing TLEAs.

In his third listed reason, the Superintendent addressed the proposed cabin location in relation to trails and other facilities that form a part of the Pine Lake recreational area visitor facilities.

The Superintendent stated that " “[h]arvesting infrastructure on or adjacent to those facilities is incompatible with the use and enjoyment of the area by all park visitors” " . [ 87 ] The Record of Decision also includes information as to incompatible use and as to the consultation concern, including that: One percent of the Park is zoned for recreational use to allow for the development of visitor infrastructure and visitor experiences that encourages tourism and visitor experiences in the Park while reducing potential conflict with other uses such as the exercise of Treaty and Asserted Metis Rights.

Most of the Zone 4 areas allow for traditional harvesting and building activities with three restricted areas, one of which is Pine Lake due to the presence of increased visitor traffic, visitor rental cabins, privately held lease lots, the Parks’ only campground, a group campground and, a trail network; Pine Lake is the main recreational setting in WBNP. While WBNP is vast, the area set aside for visitor use is very small. Within the 1% zoned as recreational, less than .001% of that area has restrictions on harvesting and harvesting infrastructure.

Pine Lake was originally excluded from cabin building and harvesting because of the density of visitor use, the presence of private lease lots, and, most importantly, the presence of reserves belonging to two First Nations; The Management Plan establishes that improvement of relationships with the 11 Aboriginal groups in WBNP is key to its future success and management. The Management Plan makes no direct statement on the subject of harvesting cabins at Pine Lake but does establish the need to work together and respect each other in making decisions and that Pine Lake is an area of special interest and concern.

The Record of Decision states that this puts the Park in a difficult situation when Aboriginal partners are not in agreement about a course of action and there is not an agreed upon process for consensus or reconciliation between the different views and opinions of different partners as individuals and organizations; As to Treaty 8, a First Nation’s treaty right to hunt in their traditional expeditionary style encompasses the right to build shelters as a reasonable incident to that right ( R v Sundown ).

A number of harvesting cabins have been built in WBNP over the past decade to facilitate the ongoing traditional use of the Park. The Record of Decision states that this is the first harvesting cabin application for an area which is both opposed by neighbouring First Nations and where the Crown’s pre-existing use of the land (primary visitor use infrastructure) is incompatible with the treaty right being exercised.

Various considerations are set out, including the Applicant’s right to conduct traditional harvesting activities in the Park and the ancillary right to build a cabin; the TLEAs, which commit Parks Canada to work to develop shared objectives and a consultation framework with Salt River and Smith’s Landing in the management of the Pine Lake area, the record noting that while progress has stalled, the commitment still exists; and, that Salt River has a development plan that will see a number of cabins and lodges built on the edge of Pine Lake and will include considerations as to human waste management so as not to impact the lake.

The Record of Decision states that the Applicant’s cabin proposal is closest to Salt River’s reserve. It has effectively cut this large sink hole off from the rest of the lake isolating its waters from the rest of the lake; the issue is the location selected with respect to Salt River and Smith’s Landing reserves and the existing Park visitor infrastructure and the lack of consensus between Parks Canada’s Aboriginal partners on a solution they can all support. Past applicants for traditional harvesting cabins around Pine Lake have accepted the park policy and built away from the lake to minimise any conflict.

The Applicant’s request placed the Park in a situation where it could not consider changing the restriction on harvesting infrastructure within 800 m of Pine Lake unilaterally while respecting its TLEA requirements for consultation and planning with regard to Pine Lake development as well as the administrative requirement for public consultation due to the Management Plan’s Pine Lake Areas Management Approach.

Parks Canada was therefore open it to a possible court challenge from its Indigenous partners and the general public or, if it denies the request, to a court challenge by the Applicant based on his Treaty rights and their application within the Park; Three Aboriginal communities were approached for input. Salt River was not supportive, Mikisew supported the Applicant’s proposal, and Smith’s Landing was not responsive to a request for their position. The Record of Decision indicates that, based on the above Parks Canada then conducted its analysis, setting out the key factors for consideration.

It then weighed the various factors. Under " “scope” " , it noted that the proposal encompassed a harvesting cabin, a shed and an outhouse. Further, that the proposed cabin would be directly on an existing park trail system and would be subject to

visitors on location through the summer months who are hiking the trails and enjoying the wilderness.

It then noted the merits of the location, including that the lake front is a spectacular location for a cabin; that the Park has offered to work with the Applicant to develop interpretive and educational programming at Pine Lake using Parks Canada existing infrastructure; the cabin would contribute to the Applicant’s economic activities through trapping and teaching but that carrying out those activates in another location within the Park would have similar benefits; the TLEAs with Salt River and Smith’s Landing preclude the uses of a firearms, hunting or trappings within 800 metres of Pine Lake between April 1 and October 31 of any year and the Applicant had indicated that he would respect this.

As to concerns, these are listed and include that: “This single cabin, taken in isolation on the lakefront, may not seem large but with the proposed plans and development of Salt River’s Pine Lake Reserve and localized improvements to Park’s Canada’s visitor infrastructure, in this very small area that has been set aside for visitor development, it would detract from the area’s exceptional values and be in conflict with the character and use of the area, an could adversely affect enjoyment for many Park visitors” [ 88 ] The decision states that a harvesting cabin in the proposed location is incompatible with the use and enjoyment of the area by all Park visitors.

Contrary to the Applicant’s submission, the decision does not make a finding that the need to consult with other First Nations renders the cabin incompatible with the proposed location. The obligation to consult was a discrete consideration, although it could, and did, give rise to concerns with the proposed location of the trapping cabin.

Adequacy of Reasons [ 89 ] The Applicant submits that, in a variety of ways, the Superintendent’s reasons were inadequate, including in finding that the location of the proposed harvesting cabin was incompatible with the use of the Park by visitors. [ 90 ] I now note, as a preliminary point, that as stated by the Federal Court of Appeal in Tsleil-Waututh at paragraphs 293 and 295: [293] … the adequacy of reasons is not a “stand-alone basis for quashing a decision”. Rather, reasons are relevant to the overall assessment of reasonableness.

Further, reasons “must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” ( Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708, at paragraph 14 ). … [295] Reasons need not include all of the relevant arguments, statutory provisions or jurisprudence. A decision-maker need not make an explicit finding on each constituent element leading to the final conclusion.

Reasons are adequate if they allow the reviewing court to understand why the decision-maker made its decision and permit the reviewing court to determine whether the conclusion is within the range of acceptable outcomes. [ 91 ] Further, in my view, the record adequately explains why the harvesting cabin at the proposed location is incompatible with the use and enjoyment of the area by all Park visitors. [ 92 ] In that regard, I would also note that, in the letter from the then-superintendent dated November 30, 2014, it was explained that Pine Lake is a unique area, being the primary recreational area in the Park.

Further, the role of the Management Plan and Area Management Approach to ensure compatible land use and development was explained, and the letter stated that the 800-metre harvesting restriction reflected the special status of Park land which Smith’s Landing and Salt River had agreed to follow in their TLEAs.

Additionally, that Parks Canada has developed a process for approving the construction of traditional harvesting cabins in WBNP, which process had the support of the Park’s Aboriginal constituency " “This process is used to ensure that construction of a cabin does not have an impact on the park’s culture or ecological character, or conflict with the Treaty or Aboriginal rights of other rights holders and is compatible with other park uses and activities related to the location” " .

As to the specifics of the proposed cabin, the letter noted that it is situated beside Lane Lake Trail, an established hiking trail which leads from Pine Lake to Lane Lake, and on the Lake Side Trail, which leads to the day use areas. It is also located near a popular public swimming beach, which means it has a high likelihood of impacting the use and enjoyment of the immediate area for other Park users. Thus, the selected cabin site was unsuitable. [ 93 ] By letter of August 6, 2015, the then-superintendent listed five reasons why the proposed location was not appropriate, which are included the above reasons.

He also pointed out that the WBNP Game Regulations preclude harvesting within 800 metres of Pine Lake between April 1 and October 31 every year. Use of the cabin for recreational purposes would not be permitted during that time. Another location for the cabin, 800 metres from the lake, would be more appropriate as it would have no impact of other Park users, or other Aboriginal groups, and could be used for harvesting at other times of the year.

Further, the TLEAs commit all parties to the development of a Pine Lake Advisory Committee to discuss, amongst other things, the harmonization of policies, plans, regulations, and by-laws. Since harvesting cabins have historically not been permitted within 800 metres of Pine Lake, a change of policy to allow for harvesting cabins in this area required consultation and discussion with both Salt River and Smiths’ Landing. Construction of the cabin was not in accordance with that approach.

By letter of November 5, 2015, Parks Canada again noted that it had explained to the Applicant that cabin applications are not provided for the Pine Lake area due to its high recreational use. [ 94 ] Compatibility is not defined in the WBNP Game Regulations , and it is only referenced there in the context of s 50(4). Nor is compatibility otherwise defined in the Canada National Parks Act or other relevant legislation.

While the Superintendent could perhaps have provided explicit, concrete examples as to how the proposed harvesting cabin is incompatible with the recreational use of the area, in my view, why it is incompatible is apparent from the Record of Decision. Further, the Superintendent has expertise as to Park usage and visitor expectations, and his assessment of compatibility is to be afforded deference. [ 95 ] The Applicant submits that while incompatibility is not defined in the WBNP Game Regulations , the treatment of that concept in Sundown is instructive. There, Mr.

Sundown, a First Nation member, hunted and fished in a provincial park. In order to carry out those activities, he constructed a log cabin in the park. He was convicted of building a permanent dwelling on park lands without permi

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