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Judge dismisses Maligne court battle in Jasper park

Maligne Lake Boathouse. | N. Veerman photo

Maligne Lake Boathouse. | N. Veerman photo

A federal court judge has dismissed a legal challenge disputing Parks Canada’s 2014 approval of a conceptual proposal for overnight accommodation at Maligne Lake.

The judicial review was filed by Ecojustice on behalf of the Canadian Parks and Wilderness Society (CPAWS) and the Jasper Environmental Association (JEA)—two conservation groups concerned that overnight accommodation at the lake would negatively affect threatened wildlife in the Maligne Valley.

In an Edmonton courtroom last October, lawyers from Ecojustice argued that Jasper National Park’s former superintendent, Greg Fenton, lacked the legal authority to approve Maligne Tours’ conceptual proposal for the development of 15 tent cabins at the north end of Maligne Lake. Ecojustice based its argument on the park management plan, which prohibits the release of new land for overnight accommodation outside of the Jasper townsite.

In his Feb. 8 ruling, Justice James Russell dismissed Ecojustice’s argument, pointing out that nowhere in the park management plan does it say the superintendent is prohibited from considering conceptual proposals that contravene the current management plan.

Russell also noted that Fenton’s decision wasn’t an approval of the development, it merely gave Maligne Tours permission to move on to the second phase of the development process—detailed design drawings and an environmental assessment.

“It is evident that, as yet, no decision has been made that contravenes the Management Plan. In fact, the Superintendent has made it clear that Maligne Tours’ concept proposal cannot be implemented at any time unless the Management Plan is amended in a way that would permit the implementation of the proposal,” wrote Russell.

“In other words, it is clear from [Fenton’s] decision that Maligne Tours’ proposal will never be approved if it contravenes the Management Plan, either in its present or future form.”
Russell said there are serious implications to Ecojustice’s argument, which suggests any conceptual proposal that contravenes the park management plan should be outright dismissed.

“Understandably, the Applicants want to nip this concept proposal in the bud,” he wrote, acknowledging the conservation group’s concerns about overnight accommodation at Maligne Lake.

“To do so, they are asking the Court to prevent the Superintendent and Parks Canada from even considering it. This would require the Court to find that, as a matter of law, whenever Parks Canada receives a concept proposal that requires a Management Plan amendment before it could be approved, that proposal must be rejected outright without any consideration of its merits and the possible benefits it might bring for the park.

“Surely, the Applicants do not want the Court to embrace a position that could prevent consideration of habitat and wildlife enhancing proposals if they happen to require some amendment to the current Management Plan?”

Although he dismissed the case, Russell did make it clear that, in order for the tent cabins to receive full approval, there would have to be an amendment to the management plan, and such an amendment could only be made by the Minister of Environment and Climate Change.

That fact brings solace to both CPAWS and the JEA.

“[Justin Trudeau’s] mandate letter to the federal environment minister made clear that the current federal government would like to limit commercial development in our national parks and that does include inappropriate proposals like the Mother Canada statue or further outlying commercial accommodations in Jasper or the expansion of the Lake Louise ski hill,” said Alison Ronson, executive director of the Northern Alberta chapter of CPAWS.

“If they adhere to that mandate and that promise that they made during the election, then we are encouraged and hope that these sorts of proposals don’t have any teeth going forward.”

In a statement, Parks Canada said it has a rigorous development review process to both limit development and maintain ecological integrity within national parks.

“The ruling is confirmation that Parks Canada acted in accordance with the law and the superintendent’s decision to move to phase 2 of the process was reasonable,” it states.

“It is important to note that Parks Canada has not approved any new development at Maligne Lake. If a proposal were to go forward, there would be opportunities for public engagement and a detailed environmental impact assessment would be completed prior [to] final decisions by Parks Canada.”

Brewster Travel Canada, which acquired Maligne Tours last month, did not return phone calls to comment on whether it plans to proceed with its predecessor’s proposal to construct tent cabins next to the lake.

Ecojustice is still reviewing Russell’s decision and considering possible next steps, according to Fraser Thomson, a lawyer for the non-profit environmental law organization.

“It’s still early days. The decision came out on Monday and usually what happens is it takes some time to analyze it and to think about it and to determine what next steps we are going to take.”

Nicole Veerman
editor@fitzhugh.ca

With files from Paul Clarke

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