Cultural Discrimination or Cultural Preservation in the Queen Charlottes
On Thursday February 21 the Supreme Court of Canada (“SCC”) refused to hear an appeal of a Federal Court of Appeal (“FCA”) decision, Moresby Explorers Ltd v Canada (Attorney General), 2007 FCA 273 [“Moresby“]. This brought an end process Moresby’s five-year challenge to limits imposed by Government of Canada quota allocations in the Gwaii Haanas National Park Reserve.
Gwaii Haanas National Park Reserve is located in the Queen Charlotte Islands off the coast of British Columbia. The Park is managed by the Archipelago Management Board (“AMB”) which is organized to allow the Government of Canada and the Haida Nation to collaborate on park management without what the FCA describes as “prejudice to either’s position in the negotiation of the Haida land claim over a territory which includes the Park.” The AMB is managed by a Superintendent and governed under the Canada National Parks Act, SC 2000, c 32.
Five years ago an update to the Gwaii Haanas management plan brought in three limits for tour companies in its backcountry management plan for the park: 1) Capping the number of clients per day at 22 for each tour operator 2) Limiting each tour operator to 2,500 clients per year 3) Allocating one third of visitor to the park to Haida tour operators. The object of these policies is the protection of the park’s natural and cultural resources.
Moresby Explorers requested judicial review of all three of these limits, which were upheld in 2005 and affirmed by the FCA. Pelletier J.A found “Discriminatory provisions designed to ameliorate the condition of the historically disadvantaged are not contrary to public policy.” The third limit pertaining to Haida tour operators alone was referred to the SCC in December 2007.
In their submissions to the FCA, Moresby argued that the allocation policies adopted by AMB amounted to administrative discrimination. They submitted that powers exercised by delegated authorities, such as municipal governments or National Park Superintendents, must be exercised strictly within their governing legislation such as the Canada National Parks Act.
An interesting consideration for the court was the total absence of Haida tour operators in the park, while the limits for non-Haida operators was oversubscribed. This created what, Moresby alleged, was an artificial restriction on the growth of its business. Eliminating the Haida / non-Haida restriction could provide immediate relief for tour operators and respect the daily and annual visitor limits in Gwaii Haanas.
To determine if the Regulations are broad enough to enable the AMB to discriminate based on class of business the FCA referred to its 2004 in Sunshine Village Corp v Canada (Parks), 2004 FCA 166 [“Sunshine Village“]
The courts have historically required express or necessarily implied authorization in municipalities’ governing statutes before the municipalities will be allowed to enact discriminatory by-laws. Conversely, when Parliament confers regulation-making authority on the Governor in Council in general terms, in respect of fees for Crown services, the courts approach the review of such regulations in a deferential manner. That is simply a matter of interpreting, in context, the words Parliament has used in accordance with their ordinary and grammatical meaning.
Upon review of the Canada National Parks Act the FCA found the powers of the Park Superintendent to be broad and contain no limitation as to discrimination between classes of business. The court held that conditions pertaining to the “the preservation, control and management of the park” was sufficiently broad to enable the AMB to discriminate based on classes of business based on the 2004 decision in Sunshine Village.
Is the distinction of the FCA between municipal and other delegated authorities in regards to administrative discrimination valid? Sunshine Village held that specific authorization is required before municipalities enact bylaws that discriminate among businesses or individuals. Delegated authorities, such as the AMB, can discriminate in their regulations based on strict interpretation of their governing legislation.
Municipalities have a broader reach and more frequent engagement with citizens through numerous programs and by-laws. In comparison delegated authorities such as natural parks have a comparatively narrower mandate that can be directly modified by parliamentary amendment. Therefore, it is understandable why the FCA upheld Sunshine Village by taking a strict interpretation of AMB’s role under the Canada National Parks Act.
The FCA placed considerable value on cultural protection in Moresby. Discrimination based on race was found to be against public policy goals when it simply reinforces stereotypes based on certain groups. However, discriminating between Haida and non-Haida businesses was deemed acceptable since its object is to “ameliorate the condition of a historically disadvantaged group.”
Numerous affirmative action provisions were found in legislation. These include provisions to increase visible minorities in the workplace in the Employment Equity Act, SC 1995, c 44, and sections of the Canadian Human Rights Act, RSC 1985, c H-6, which reduce disadvantage of groups based on prohibited grounds of discrimination. Moreover limitation guarantee of equality under s. 15(2) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 [“Charter“], protects such distinctions.
The question of the importance of Haida culture to the Gwaii Haanas was also discussed at trial. Mr. Ernie Gladstone, Superintendent and co-Chair of the AMB, provided the following testimony:
The importance of Haida culture to the Park Reserve and to the visitor experience, the AMB considered the possibility of a complete lack of Haida participation in the conducting of commercial tours in the Park Reserve to be unacceptable, as this would have resulted in a considerable void in the interpretation of the area’s natural and cultural heritage.
From personal experience, the Queen Charlottes contain natural and cultural resources unparalleled in Canada and perhaps the world. The SCC was right in upholding the FCA decision that discriminating between Haida and non-Haida tour operators is not ultra vires the AMB. Perhaps a more flexible quota could have been arranged for non-Haida operators such as Moresby until Haida operators are established. However that is a question of pragmatism rather than law.