The West Kootenay Community EcoSociety (“EcoSociety”) successfully petitioned to set aside the decision of the Minister of Water, Land, and Air Protection to move the driveway of a small provincial park to a location 30 metres to the east

Administrative law – Decisions of administrative tribunals – Ministerial orders – Environmental issues – Parks – Judicial review application – Crown immunity

West Kootenay Community EcoSociety v. British Columbia (Ministry of Water, Land, and Air Protection), [2005] B.C.J. No. 1224, British Columbia Supreme Court, May 30, 2005, Prowse J.

Grohman Narrows Provincial Park is located near Nelson, British Columbia. The Park has a wetland area that is the natural habitat of a number of provincially significant blue-listed plant, animal and insect species, including the painted turtle.

The Minister of Water, Land, and Air Protection (the “Minister”) decided to move the location of the entrance road to the park from its original location to a location 30 metres to the east. The EcoSociety brought an application under the Judicial Review Procedure Act for review of the Minister’s decision.

The facts of this case disclosed that the painted turtle nesting habitat would be disturbed by relocating the entranceway of the park. The Minister’s decision to move the park entrance appeared to be based on a request from a private land developer across the road from the park.

The Court considered whether the Minister’s decision was subject to the review under the Judicial Review Procedure Act (“JRPA”). Under the Park Act, it was apparent that in the course of making decisions pertaining to the improvement, development and use of the park, the Minister could permit land in the park to be destroyed or disturbed if that destruction or disturbance did not restrict, prevent or inhibit the preservation of the natural environment for the inspiration, use and enjoyment of the public.

Arguments were made by the Ministry that although the Minister’s power appeared to be a statutory power of decision as defined in the JRPA, it should nevertheless not be subject to review because of section 14(2) of the Interpretation Act. Section 14(2) of the Interpretation Act effectively provides Crown immunity from statutes that would bind or affect the use of land. However, the Court held that the Park Act constituted an express waiver of the Crown immunity in respect of land use or that, in the alternative, Crown immunity had been waived by necessary implication. The Park Act had the purpose of regulating the manner in which “the Crown uses, manages and administers parks” and therefore it was manifest from the very terms of the statute that the Legislature intended the Crown to be bound by its provisions.

The Respondents further argued that the Minister’s decision should not be subject to review because it pertained to the management of property. The Court held that although a decision of the Minister about whom to hire to build a road in a park might be the type of property management decision excluded from review under the JRPA, the decision to build a road or move a road within a park did not fall within the management of property exclusion because it pertained to the use and activities of the individuals who used the park and therefore pertained to their rights, privileges and eligibility to benefits in it. The Court held that the decision of the Minister in agreeing to move the entrance to the park was subject to review under the JRPA.

The Court then moved on to determine whether the Minister’s decision was unauthorized or patently unreasonable. The Court held that under the Park Act, the Minister could only permit land in the park to be disturbed or destroyed when required for the improvement, development or use of the park and that even then, that disturbance, destruction or damage to the park land must not be contrary to the designated purpose of the park. The decision-making powers of the Minister under the Park Act were characterized as placing the Minister in a “stewardship role” in respect of the park lands.

The Court reviewed the evidence on the record and held that the Minister made the decision to move the park entrance to accommodate a problem that the developer across the highway was experiencing because the access road to its property had to align with the access road to the park in order to meet Ministry of Transportation standards. There was nothing in the record that disclosed that the location of the park entrance was inherently unsafe. The movement of the driveway was not something that pertained to the improvement, development or use of the park, but solely to the accommodation of the private developer. As such, the Court held that the decision to move the park entrance was an unauthorized exercise of the Minister’s statutory power of decision under section 9(7) of the Park Act. As a result, the Minister’s decision was set aside.

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