Parks Canada loses Thaıdene Nëné lodge reconciliation case

Parks Canada was unreasonable in rejecting a lodge’s application for a business licence on the grounds of reconciliation, a federal court judge has ruled.

In 2022, the new owners of Trophy Lodge – inside Thaıdene Nëné – asked Parks Canada for a licence to operate as a tourism and fishing business.

Parks Canada said no twice, decisions based in part on the recommendation of a board set up to “speak for Thaıdene Nëné” on important issues.

That board, referred to as an operational management board, said the five RCMP officers who bought the lodge wouldn’t have the “interest or capacity to uphold the vision” for Kaché, a nearby area of cultural significance to Łútsël K’é Dene.

The board also said giving the lodge’s new owners a licence wouldn’t help to create “an Indigenous-led conservation economy that can promote and support Indigenous-owned tourism businesses.”

A Parks Canada superintendent, and then Parks Canada’s president and chief executive, each cited the board’s findings in declaring that the appropriate reconciliatory course of action was to reject the lodge’s application.

The lodge owners took their case to federal court.

More: Read the background to the case

This week, Justice Guy Régimbald said Parks Canada had acted unreasonably.

Régimbald said Parks Canada has the power to consider reconciliation when deciding whether to issue a business licence to the lodge, but its decision “must rest on an appropriate consideration of the evidence and the submissions of the parties.”

Régimbald concluded Parks Canada and the operational management board, known as Thaıdene Nëné Xá Dá Yáłtı, had each reached decisions without appropriately handling the evidence, meaning those decisions were not reasonable.

Even if Parks Canada had originally granted the lodge a licence, that licence would have expired at the end of March. As a result, the judge said, Parks Canada should consider a new licence application from the lodge owners “with the benefit” of the court’s decision.

The ruling could have significant ramifications in the Northwest Territories, where various levels of government and private businesses are grappling with how to meaningfully implement reconciliation.

Régimbald’s decision may provide a future test of what Canada’s courts expect to happen when reconciliation is a central factor in government decision-making.

What the board recommended

Thaıdene Nëné was established as a national park reserve in 2019. The protected area is co-managed by the Łútsël K’é Dene First Nation, Northwest Territory Métis Nation and the federal and territorial governments. The Deninu Kųę́ First Nation and Yellowknives Dene First Nation also provide guidance on stewardship.

The lodge is inside Thaıdene Nëné.

In May 2022, the lodge – which has hosted tourists on the eastern end of Great Slave Lake since 1965 – changed hands. The new owners applied for a business licence. Parks Canada worked with the Łútsël K’é Dene First Nation to develop terms and conditions for that licence.

In early 2023, Régimbald wrote, Parks Canada and the First Nation “jointly presented” Trophy Lodge’s application for a business licence to the operational management board “and supported issuance of the licence.”

But while the First Nation’s chief and council had supported the licence application, the operational management board recommended denying it.

The operational management board wrote in part:

“The issuance of a business license to a lodge operator that has no operational history of lodge ownership, and that may not have the interest or the capacity to uphold the vision that the parties have for the Kaché area is, in the opinion of the board, a failure on the part of Parks Canada to meet the objectives of the agreement, which includes objectives towards facilitating the building of an Indigenous-led conservation economy that can promote and support Indigenous-owned tourism businesses and other ancillary economic development opportunities for the Indigenous people of the area.

“It is the opinion of the board that Parks Canada should have acquired the lease and assets of Trophy Lodge during the establishment process and worked with the other parties to the agreements to establish joint control and management of this strategic and important ecological and cultural area within Thaıdene Nëné, such that the vision for the Kaché area can be realized.”

While the board’s recommendations weren’t directly the subject of judicial review, the judge said the board’s reasoning contained “numerous factual errors.”

The board appeared to ignore factual evidence that didn’t fit its conclusions, the judge wrote.

“Specifically, the conclusion that the applicants did not ‘have the interest or the capacity to uphold the vision’ nor facilitate ‘the building of an Indigenous-led conservation economy’ is contradicted by the applicant’s proposal that it will make substantive investments that would benefit the environment; prioritize employees, procurement and contracts for the Akaitcho Dene First Nations; close the area of Tsakui Theda (Parry Falls) during the first two weeks of August for sacred use of the people of Łutsël K’é; and propose cultural tours offered through local tourism operators,” the judge wrote, citing aspects of the lodge owners’ application.

The board’s recommendations “do not engage with any of this evidence and do not explain why the information provided by the applicant cannot satisfy it that the business licence should be issued,” Régimbald added.

“[The board] certainly did not explain why the proposed terms and conditions, endorsed by both Parks Canada and LKDFN, were insufficient and undermined reconciliation.”

The judge said the board’s recommendations appeared grounded in how it felt Parks Canada should have acted in the past, rather than what the applicant was proposing in the present.

Its written recommendations “rather demonstrate that it recommended the refusal of the applicant’s business licence because of its grievances with Canada and the GNWT,” the judge wrote.

“These grievances have nothing to do with the applicant. The [board’s] consideration of the proposed business licence application was tainted by concerns with the GNWT’s transfer of the lease over Trophy Lodge to Parks Canada and the leaseholder’s indeterminate right of land occupancy, as expressed throughout its reasons for the decision.”

The board didn’t ask for the lodge to be shut down or express concern about it operating as a tourist destination, the judge continued, and did not “identify any issue with the applicant’s proposed business licence and terms and conditions – except that it is not Indigenous-led or Indigenous-owned.” Yet the lodge’s owners had specified in their application that one of them is Indigenous.

How Parks Canada handled its decision

Parks Canada did not have to accept the board’s recommendations.

However, a Parks Canada superintendent issued the lodge with a rejection notice, stating: “The board and two nations have indicated they do not support the issuance of the licence.”

That wasn’t correct, the judge ruled.

While the Łútsël K’é Dene First Nation and NWT Métis Nation had stated they “respected” the board’s recommendations, Régimbald wrote, that’s not the same as agreeing – and the First Nation’s chief and council were already on record supporting the application.

Based on the written record available, “it is erroneous to suggest that two Nations did not support the issuance of the licence,” the judge wrote.

Régimbald also noted the lodge owners had been given no opportunity to respond to the board’s concerns.

Meanwhile, the lodge owners appealed to Parks Canada’s chief executive officer after the initial decision from the superintendent.

The chief executive officer again issued a rejection, stating in part that the principles of “mutual trust-building and reconciliation after decades of exclusion and separation” supersede all other considerations.

But the judge said the chief executive officer hadn’t even had the original application package to review, and failed to engage with significant pieces of evidence in issuing a decision.

“A finding that reconciliation requires the denial of a business licence must rest on an appropriate consideration of the evidence and the submissions of the parties, including the applicant’s business licence application package and the First Nation’s opinion regarding the objective of reconciliation. Parks Canada’s reasons must demonstrate, on the basis of evidence, why such refusal is necessary to achieve that purpose,” the judge wrote.

Without having the applicants’ original submission, he continued, the chief executive officer was “incapable of assessing and holistically determining the basis of the superintendent’s decision and its correctness.”

More: Read the judge’s decision in full

Further, the chief executive officer “provided no reasons justifying” the decision to reject the licence.

“There is no discussion on what evidence was relied upon,” the judge wrote, and no attempt is made to explain why the board’s recommendations should outweigh the First Nation’s support for the proposed business licence, which LKDFN had written was “compatible with the park agreements and regulations.”

“If a business licence must be denied because of the objective of reconciliation, Parks Canada must rely on evidence suggesting that the objective of reconciliation would be undermined if the business licence was awarded, and that no term or condition could mitigate the issues,” the judge wrote.

The chief executive officer did not explain why the board’s recommendations “were wholeheartedly accepted on reconciliation and the contrary evidence dismissed,” and that was “a fundamental flaw,” the judge concluded.

The outcome of this case does not mean Trophy Lodge will immediately receive a licence and open for business, and the judge had no power to order that.

Parks Canada is already in possession of a new application from the lodge owners, and the licensing process is expected to play out again.

How long that will take and what the conclusion will be are unclear.