BANFF – Prominent Banff businessman, conservationist and politician Peter Poole has lost his legal fight over development decisions and the population cap in the national park townsite.
On April 4, the Federal Court of Canada dismissed a request by Poole, owner of Arctos & Bird Management Ltd., for judicial review of Parks Canada’s decision to consolidate leases for several lots for the redevelopment of the Homestead Inn, owned by Fuji Starlight Express.
Justice Shirzad Ahmed determined Poole, who owns the Bison Courtyard adjacent to the Homestead and Melissa’s, failed to demonstrate a real stake or genuine public interest in the issue.
“As the applicant does not qualify for standing, it is unnecessary to proceed with an analysis of the merits of this case,” said Justice Ahmed in his 17-page decision.
At the core of Poole’s application for judicial review is Banff’s residential population cap. He argues the Banff management plan directly ties the issue of commercial development to the matter of population growth pressures.
The national park’s management plan states it is anticipated Banff’s permanent population will not exceed 8,000 and that decisions of Parks Canada and the Town of Banff, including business licences, shall proactively take this into account.
Poole argues this is a hard cap and that Parks Canada did not “proactively” take this into account when making the lease consolidation decision to pave the way for existing 28-room hotel to be torn down and replaced with a new 71-room hotel.
“In very ordinary language, retroactively managing is to drive a car by only looking in the rearview mirror, only seeing where we’ve come,” said Poole, noting Banff’s population is already beyond 8,000. “To proactively manage means it’s like a skier looking down the slope at where you’re going.”
Justice Ahmed acknowledged whether the minister must proactively consider population objectives in the management plan when making discretionary leasing decisions is a serious one, but consolidation of leases itself is not particularly serious.
“Rather, it concerns an administrative housekeeping measures that has no independent impact on the Town of Banff’s population,” said Ahmed.
Ahmed accepted that Arctos & Bird should be commended for its interest in environmental sustainability and preservation of the park and has conducted itself in a manner consistent with this vision.
“However, the applicant’s commitment to the park’s preservation is not the same thing as having a real stake or genuine interest in the decision under review – that is, the lease consolidation decision itself,” he said.
“Arctos is only concerned with what follows consolidation (i.e. development and the putative population increase), not consolidation itself (which is, in any event, population neutral).”
Ahmed said Poole’s claim to a genuine public interest is undermined by the fact that he has mounted various challenges to the approval of Fuji’s hotel development permits, noting many of those challenges have nothing to do with the Town’s population.
He said Poole challenged Fuji’s development permits on the grounds it constituted an illegal subdivision, doesn’t retain sight lines or comply with the land use bylaw in terms of height, garbage and recycling requirements, and poor design of the building.
“Those prior challenges are relevant when determining whether Artcos’ interest is genuinely motivated by public interest in ensuring compliance with the Banff Management Plan’s population targets,” said Ahmed. “This logically leads to the conclusion that Arctos’ interest in the matter at hand is both public and private in nature”.
In an interview, Poole said the federal court’s decision now means Catherine McKenna, the minister responsible for Parks Canada, will provide clarity in keeping with the recommendation of a parliamentary standing committee.
He pointed to the committee’s March 2017 recommendation that Parks Canada adhere to existing limits placed on development as outlined in legislation or in park management plans, guidelines and policy.
“I believe that Minister McKenna will uphold the parliamentary committee’s recommendation and provide leadership to Parks Canada and Town of Banff on population cap,” he said, noting the rewrite of the management plan is getting underway.
Parks Canada, which argued administrative lease consolidation doesn’t effect Banff’s residential population, would not comment because there’s a 30-day appeal period.
