A History of Canada's National Parks
Volume II

Chapter 5
Land and Lease Problems (1885 to 1973)

Introduction

Land use, with its attendant problems, forms a very interesting phase of national park administration. When the first national park in Canada was created at Banff in 1887, the Park Superintendent became involved in a controversy over the disposition of townsite lots required by entrepreneurs and residents. Land use policy had been changed at Ottawa almost overnight, and prospective purchasers of townsite lots found themselves occupying the role of lessees. The form of lease first offered by the Crown was almost totally rejected by the lessees. An acceptable lease vested in the leaseholders, rights comparable to those contained in a freehold title.

During ensuing years, the form of lease authorizing occupation of park lands has undergone many changes, particularly those which affected the review and payment of rental. The terms of the early leases provided for payment of an annual rental fixed for the entire term of 42 years. The rate of rental originally was based on a percentage of the value of the land occupied. A "fixed" rental favoured the lessee, because the annual payment failed to reflect the increasing value of the leasehold. The opening of townsites in other parks, notably in Jasper and Waterton Lakes, led to changes in the form of lease granted to applicants, including a decennial review of rental. Lessees at Banff, however, enjoyed the advantages of the original lease form for many years.

Early attempts by senior park administrators to invoke increases in land rentals met with little success. The recommendations of a commission on which the park residents were represented were rejected by the leaseholders. Eventually, moderate increases in land rental rates were achieved by negotiation.

In 1958, the provision in park leases of a right to perpetual renewal, inherent since 1887, was deleted from new leases. A major revision in leasehold policy, announced in 1965 by the federal minister responsible for national parks, was bitterly opposed by leaseholders. A major cause for protest was a decision to ignore the right to perpetual renewal contained in expiring leases. Redress was sought in the courts, which sustained the appeals of two leaseholders, and led to the restoration by the minister of the rights to renewal previously held.

Plans announced in 1961 to review park rentals in 1970 and apply a rental formula recommended by a team of consultants also met with opposition. The rental formula adopted provided for a rental rate based on a percentage of the market value of the land as determined by independent appraisers. A review board, established to hear appeals of leaseholders from the valuation placed on lands occupied, recommended many adjustments which were made. A small minority decided to exercise a right contained in their leases whereby the rental could be determined in a court of law.

Early Leasing Policy

When the founding fathers of Canada's national park system made provision in the Rocky Mountains Park Act of 1887 for the disposal of land by lease for the purposes of trade, industry and ordinary habitation, they initiated a phase of administration that would bother park officials for many years to come. The terms for which leases were drawn, the rates of rental to be charged, and the right to perpetual renewal would, collectively and separately, produce problems requiring extended negotiation, frequent legislation and considerable pacification.

While the survey of Banff Townsite was under way in 1886, George Stewart, the surveyor and later the park superintendent, was advised by the Departmental Secretary, John Hall, that lots in the townsite north of the Bow River would be sold, and that leases would be issued for villa lots in the park reservation south of the river.¹ In his letter of October 20, Mr. Hall also asked Mr. Stewart for an opinion on the value which should be placed on the townsite lots. Stewart was informed that the minister considered that the prevailing price for lots in Calgary — $75 for corner lots and $50 for inside lots — "would probably be about right".

In reply, Stewart agreed that these figures were fair and reasonable as average prices, provided the location of lots should determine the final price. On November 24, Stewart forwarded to the Deputy Minister a copy of his preliminary plan for the "town plot", together with a list of the lots he had sold. A list of villa lots for which applications had been received was also included, for which an annual rental of $30 was suggested.² Valuations on the lots sold ranged from a high of $200 for a corner lot on Banff Avenue to $50 for an inside lot on Bear or Beaver Streets. Further sales were suspended by the Deputy Minister pending a decision on what lands would be required by the Canadian Pacific Railway Company, if its divisional point was moved from Canmore to Banff. Meanwhile, execution of deeds or leases of lots at Banff was not possible until statutory authority had been provided and survey plans had been approved by the Surveyor General.

By April, 1887, the Hon. Thomas White, Minister of the Interior, was in a position to introduce in Parliament a bill to establish Banff National Park and authorize regulations for its administration. As originally drawn, the draft bill provided for the lease or sale of lands within the park, but before it received final reading on May 6, Section 4 of the proposed act had been altered to restrict disposal of land only by lease. Concurrently, Park Superintendent Stewart was advised by telegram that "lots within Park Reservation including townsite can only be leased, not sold".³

The new act, which established Rocky Mountains Park, came into force on June 23, 1887, when it received royal assent. It made provision for the establishment of regulations by the Governor in Council for:

"The lease for any term of years of such parcels of land in the park as he deems advisable in the public interest for the construction of buildings for ordinary habitation and purposes of trade and industry, and for the accommodation or persons resorting to the park".

On June 24, the day after the act received assent, Deputy Minister Burgess informed Superintendent Stewart that regulations would be framed governing the class of buildings that might be erected in the townsite and in the park, and that he should arrange with those who had made deposits on purchases of lots to convert such purchases into leases. The rental for each lot was to be calculated on the basis of 10 per cent of the price which had been fixed by the superintendent, together with $2 additional per annum to cover the expenses of administration.⁴ The percentage of land value was to remain, for the next 40 years, the basic formula for fixing lot rentals in the parks.

First Lease Form

In December, 1887, T.G. Rothwell, Legal Adviser of the Department of the Interior, was requested by the Departmental Secretary to prepare a form of lease for park lands under the authority of the new Rocky Mountains Park Act. The completed draft lease provided for a term of 21 years at a fixed rental per year, and with no privilege of renewal. It was approved by the Minister and at his request, referred to the Minister of Justice for comment. On its return to the Deputy Minister of the Interior, second thoughts on the matter of renewal led to amendments. On request, the Department of Justice drafted additional clauses providing for a renewal of the original term of 21 years, further renewals, "and so on forever", subject to a review of the rental by the Minister at the end of each renewal term.⁵

The evolution of the so-called "perpetual renewal lease" no doubt had its beginning six months earlier when the bill to establish Rocky Mountains Park was debated in Parliament. In the closing hours of the debate on May 3, 1887, the leader of the opposition, Sir Richard Cartwright, suggested a time limit be established for leases of park lands. The Prime Minister, Sir John A. Macdonald, replied in part:

"There is an objection to fixing a limit ... we cannot say what length of time we can get people to take leases for in order to induce them to put up handsome buildings. Twenty-one years are suggested as sufficient, but people will not build handsome houses on 21-year leases. If there is to be a limit at all, there must be the right of renewal. I think the honourable gentleman and the House may trust any government with the settlement of that question in the interest of the property".⁶

Although the first park regulations which authorized the Minister to issue leases for terms of 21 years were not established until November, 1889, the new lease form was used in 1888. The first lease, dated April 30 of that year, was issued to Dr. R.H. Brett covering the site of the Sanitarium Hotel. The new lease form, however, was not acceptable to most of the citizens of Banff, particularly those who had made deposits on lots for which they had expected a title in fee simple. Mr. Rothwell was sent to the park late in 1889 to report on the matter. Following consideration of his report, the park regulations were amended effective July 1, 1890, to provide for the issue of leases for a term of 42 years with a right to subsequent renewals for terms of 42 years.⁷

Mr. Rothwell's investigation had led him to believe that lots in Banff Townsite should be sold. His original report of January 3, 1890, is not available, but almost sixteen years later to the day, when an amendment to the Rocky Mountains Park Act permitting the sale of lots was under consideration, he reviewed his earlier findings in a memorandum to the Deputy Minister dated January 4, 1906.⁸

"Before the above-mentioned Act became law, a number of lots (in Banff) had actually been sold, and after the Act became law the purchasers were refused any title but a leasehold title, and the lease which was then submitted was for a very short term only, 21 years with the right of renewal. It was also objectionable in other respects to not only those who had expected a fee simple title; but to those who were willing to accept a lease... .

"My views did not however, meet with approval. On the contrary, the then Minister and Deputy Minister and the then Secretary and Superintendent of the Park and the then Superintendent of Mines (Mr. Pearce) who were present in the Minister's room when I pressed the views set out in the report referred to, all disagreed with me. The lands in the Yellowstone and other parks of the United States were only disposed of by lease — it had been agreed with the Canadian Pacific Railway Company not to sell any lands in the park — a large amount of money has been and would have to be expended in the Banff townsite — and other reasons were considered sufficient for adhering to the decision not to sell any lands within the boundaries of the Rocky Mountains Park".

"I then submitted the present form of lease, which was satisfactory to all who were willing to accept a leasehold title, and it was approved and has since been used. Its term, though only one of forty-two years, is virtually forever, as under its renewal conditions the term may be renewed for a term of similar length and so on forever . . . .

"A change in the policy of disposal of lots in Banff will not only call for an amendment of the Park Act. It may also entail the consideration of some old claims, and will certainly call for the sale of all lots in Banff now under lease. It would be most unfair to allow all new applicants a better title than those who have accepted the Department's policy and taken leases. It will also result in placing Banff under the municipal laws of the Province of Alberta".

By July, 1890, the revised lease form (202 X) providing for terms of 42 years, and perpetual renewals for similar periods, was available for use. Leaseholders who had accepted the original 21-year lease form were permitted to exchange them for leases having the longer term. The Department also issued leases to Banff residents who had declined to accept the original form. In some cases, the long-deferred leases, although executed in 1891 or later, were back-dated to 1887. This arrangement permitted acceptance of assignments of leasehold interest made by holders of lots before the lease-form controversy was settled.

The lease authorized by the 1890 park regulations actually was printed in two forms. One, designed for use in the Townsite of Banff, permitted use of the lot for any purpose other than those enumerated in a special restrictive clause, except with written permission of the Minis ter. These exceptions included use of the lot for the purposes of an hotel, saloon, drug store, abattoir, butcher or fish shop. The other form of lease for lands outside the townsite or for villa lots in the townsite, restricted the use of the land to the purpose specified. The use of these lease forms in Banff park was continued for many years, subject to minor amendments. An additional clause inserted in the lease forms in 1913, made the leases and any renewals thereof subject to all park regulations then in force or enacted in future.⁹

Under prevailing practice, each prospective lessee was required to complete an agreement to lease. The terms of the agreement gave the applicant possession of the land for one year; required payment of one year's rental in advance; and, prior to the expiration of the term, required the erection of a building or dwelling satisfactory to the Superintendent. On fulfilment of all conditions of the agreement, the lessee was entitled to a lease, issued over the signature of the Minister or his deputy. When circumstances warranted, an extension of the agreement was authorized. Periodically, vacant lots in the townsite were made available for entry, subject to completion of an application form and payment of the first year's rental.

Prior to 1920, residents of Banff had the privilege of leasing two adjoining lots, subject to the condition that the building erected on one of them had a value equal to that stipulated by the building requirements for two separate lots. This concession was made as an inducement to residents to help improve the appearance of the townsite by erecting superior dwellings and developing attractive lawns and gardens. The practice, however, also generated the existence of numerous long-term leases of unimproved or vacant lots in the townsite. All leases issued contained a clause requiring the written consent of the Minister to any transfer or assignment of leasehold interest. Consequently, the Department in March, 1920, instituted a rule whereby consent to the transfer of a lease covering a vacant lot was withheld unless a building was erected thereon.¹⁰

Renewal of Leases

In 1929, officers of the National Parks Branch were faced with the prospect of renewing the early leases for lots in Banff which were dated from 1887 onward. Under the terms of their leases, lessees had the option of renewing them for a further term of 42 years. Provided the lessee had complied with all the terms of the lease, the Minister of the Interior was obligated to issue renewal. The Minister, however had the authority to review the rental payable for the new term of 42 years. In the event that the lessee failed to concur in the new rate of rental, the lease form provided for the appointment of a board of arbitrators to fix and determine the rent.

In March, 1929, Parks Commissioner Harkin called to the attention of Deputy Minister Cory, the desirability of increasing the prevailing rates of lot rentals which had been in force since 1888. These ranged from $8 to $20 for business lots on Banff Avenue, and $8 for inside lots and $9.50 for corner lots elsewhere in the townsite. Exceptions were large residential lots along the Bow River and in the Villa Lot section of the townsite south of the river where the average rental was $ 15 per lot. Mr. Harkin cited the increase in property values over the past 40 years and to the conveniences and services supplied by the Department to residents for which neither tax or other assessment was payable. Generally, it was considered that the Department was entitled to a fair return on the present value of properties under lease.

Vigorous resistance by Banff citizens to any increase in rental was forseen and, in order to avoid special arbitration as each lease came up for renewal, it was recommended that the Department appoint a commission of three members to review the matter. As proposed, the members of the commission, consisting of a federal judge, a representative of the Banff citizens appointed by the Advisory Council, and a representative of the Department, would investigate conditions on the ground. After consultation with the property owners, they would then recommend what was considered to be a fair and equitable rental for the various classes of property in Banff.¹¹

The proposal was submitted to the Banff Advisory Council and accepted. The Minister appointed as Chairman of the Commission, His Honour Judge William A. Macdonald of Calgary. The Banff citizens group named S.A. Armstrong, a former councillor as its representative, and Arthur L. Ford, the Park Superintendent was selected to represent the Department of the Interior. Following an interview with Commissioner Harkin and a preliminary meeting in Calgary in September, the Commission held a public hearing at Banff on October 7 and 8, 1929. Citizens who voiced opinions were almost unanimous in their opposition to any increase in rentals. It was persistently urged by leaseholders that any enhancement in land values was due largely to the efforts of the citizens, and to those of other agencies including the Canadian Pacific Railway Company. On the other hand, submissions on behalf of the Department contended that the Federal Government, as owner of the land, was entitled to receive a fair return based on the actual value of the land regardless of the agency that may have contributed to the enhanced valuations. The report of the Commissioners concluded with the following paragraph:

"Having surveyed the whole situation and having made mutual concessions where necessary, the Commissioners by unanimous agreement recommend the rentals set forth in the following schedule as fair and reasonable and a proper charge to exact on the renewal of leases in the townsite".¹²

The increases proposed by the Commission were, with a few exceptions, about 50 per cent in advance of current rates for residential properties. In the four business blocks facing on Banff Avenue, where stores and hotels occupied the choicest sites, rates of rental recommended ranged from $47 to a high of $114 for a corner lot. Elsewhere in the townsite, rates of $12 and $14 were recommended in lieu of $8 for inside lots and $9.50 for corner lots. Rentals for villa lots in Blocks A and B of the townsite and in the section south of the Bow River which contained large lots reserved for superior dwellings, were rated at $22.50 instead of the prevailing rental of $15 per year.

Although the report of the Commission on rentals was received from Judge Macdonald by the Minister in November, 1929, consideration of its recommendations was deferred. Bills were being introduced in Parliament at the current session providing respectively for the transfer of the natural resources in Alberta to the province, and for the establishment of a new Act governing the administration of national parks. The Transfer of Resources bill, when approved, would give the Federal Government legislative jurisdiction within the parks, and the National Parks Act, as contemplated, would authorize the levying of taxes on park residents for all municipal improvements.

At the request of its president, James Brewster, the Banff Advisory Council had been provided in June, 1930, with a copy of the Commission's report. Later it was published in the local newspaper. On October 15, the recommendations contained in the report were rejected by a resolution of Council. The resolution affirmed that sufficient reasons had not been advanced by the Department's representative to warrant any increase in lot rentals, and that the leaseholders had been largely responsible for any development that may have occurred.¹³

With the Natural Resources Acts and the National Parks Act incorporated in the Statutes of Canada, the Deputy Commissioner of Parks on December 18, 1930, wrote the Deputy Minister requesting a decision on the rentals recommended by the Macdonald Commission. It was suggested that two courses were open to the Department, (a) to increase rentals upon the renewal of leases or (b) continue the present rentals and impose a tax on lease-holders to recover the cost of municipal services not covered by lot rentals.

Meanwhile, a change of government had occurred in August, 1930, and a new minister headed the Department. The country was also entering the early phases of a period later known as "the depression years". A reluctance on the part of the Department to impose either increased rentals or new taxation on park residents appeared evident, as the Commissioner of Parks was called on to supply voluminous statistics on park administrative matters. These related to the cost of providing various services in the townsite, the revenue accruing from various sources in the parks, and the amounts that would be required to meet the cost of services provided, should taxation be imposed. One resident, who held several expired leases, offered to accept an increase of 100 per cent over his current rental, but as the figures suggested fell far short of those recommended for business properties in Banff, the offer was not accepted. Finally, after the current lease form in use was revised by the Department of Justice, the Commissioner of Parks was notified by the Deputy Minister on March 12, 1934, that the Banff leases were to be renewed on the prescribed form at the same rental as that charged in the original leases.¹⁴

Decennial Review Inaugurated

By the terms of the original leases for lands in Banff and Yoho Parks, the Minister of the Interior was obliged not only to renew such leases on expiry, but also to determine the rental for the entire term of renewal at the beginning of such term. By happy circumstance, however, a different procedure had been in effect in other parks after 1914. Following the survey of the first townsite lots in Waterton Lakes Park in 1910, Howard Douglas, then Commissioner of Dominion Parks at Edmonton, suggested in a letter to the Secretary of the Interior that, when establishing the annual rentals for these lots, the leases should contain a provision whereby the rental payable would be subject to review every ten years.¹⁵ This recommendation, although radical at the time, was referred to R.H. Campbell, Superintendent of Forestry, who was then responsible for the administration of the national parks. Campbell endorsed the proposal in a submission to the Deputy Minister, observing that if it was adopted, the Department would be free to share to some extent the natural increase in land values, and be able to adjust the rental more frequently than every 42 years. The recommendation was accepted by the Deputy Minister and approved by the Minister, the Honourable Frank Oliver.¹⁶

Before the first leases were issued in Waterton Park Townsite, the matter of an appropriate lease form for the Townsite of Jasper, surveyed in 1912, also arose. The ruling made for Waterton Lakes Park was made applicable to Jasper Park and on request, the Deputy Minister of Justice prepared a revised habendum clause for the lease form then in use.¹⁷ The new lease form created was known as No. 2. It provided for an initial term of 42 years, renewable in perpetuity for additional terms of 42 years, but subject to a provision that on the first day of January, 1920, and at intervals of 10 years thereafter, the rental would be subject to review by the lessor. Should any lessee not agree to the rental so determined at the beginning of each period of 10 years or fraction thereof, he could, by the terms of the lease, have the rental determined by a judge of the Exchequer Court, rather than by a board of arbitrators as authorized by the earlier leases.

Following the adoption of a scale of rentals for lots in Waterton Park and Jasper Townsites, the new lease form was put into use. It was later adopted, with minor modifications, for use in all other parks except Banff. The use of the older form, which provided for review of rental only at the end of each term of 42 years, was continued for all lots in Banff until about 1925, when the lease form providing for a review of rental every ten years, was issued for new leases.

Revival of Lot Rental Review

Early in 1936, Commissioner Harkin revived the previous attempt to have rentals increased when expiring leases issued for lots in Banff Townsite and in the Townsite of Field in Yoho Park were renewed. In a submission to Deputy Minister Wardle, it was observed that since the decision had been made two years earlier to renew leases at the same rental that had governed the original leases, fewer than 30 leases had been renewed between 1930 and 1936. Consequently it was thought that the Department (under a new ministry since 1935) might wish to consider the matter of providing for reasonable increases in the rental rate for future leases. The current practice was to provide for an adjustment of rental every 10 years, beginning in 1940, except in the cases of the Banff leases issued prior to 1925 which contained no provision for rental review. A further consideration was the fact that action taken on renewal of old leases had a bearing on the adjustment of rental in the new leases every 10 years. It was believed that the Department could not reasonably increase the rental in new leases issued if a definite policy was not decided on whereby old leases were renewed at new rentals.¹⁸

Departmental action on these recommendations was deferred for some time, and pending a decision, the National Parks Branch withheld the issuing of renewal leases. By May, 1939, the Minister, the Honourable T.A. Crerar, had decided that the rentals on renewal leases in Banff should be increased, and that no more leases should be issued unless the lease form provided for a review and revision of rental. On August 18, the Superintendent was authorized to discuss rental with those whose leases had expired, and try to arrive at a fair rate. By mid-September, the Superintendent was able to report that holders of leases in commercial zones were willing to accept increases in rentals, provided the new rate was applicable for the full term of 42 years.

Bargaining between the Department and the lessees continued and in October 1939, the Minister authorized the offer of a lease for a term of 21 years, at a rental agreed upon by the lessees and the Superintendent as fair and reasonable.¹⁹ This proposal was rejected by the leaseholders. Finally, after receiving a strong recommendation from Manley Edwards, M.P. for Calgary South, the Minister in August, 1940, approved the renewal of expired leases for a term of 42 years. This approval was contingent on the rental for the first 21 years, — reached by agreement between the lessee and the Superintendent, being — substantially higher than the former rental. At the end of 21 years, the rental would be subject to revision. A further condition was that at the end of the second renewal term of 42 years, the third renewal lease would be in a form providing for review of rental every 10 years.²⁰ Two months later, the Superintendent reported that increases in rental for business properties were acceptable to the lessees in Banff, but that he was not disposed to recommend increases in the rentals for residential properties. Out of the prolonged lease and rental controversy came a new lease form (178 A) approved by the Department of Justice, which incorporated the proposals approved by the Minister for lessees desiring renewals of leases issued on the early forms. The back log of unrenewed leases was cleared, and three individuals who had accepted the 21-year lease were permitted to exchange them for the new form providing for a 42 year tenure. Increases in rentals for business lots were made applicable. Although the increase was based on the Superintendent's recommendation and the lessee's acceptance, the formula evolved worked out to an annual rental of $50 for hotel sites and $20 to $40 a year for other lots, depending on location.

Rentals in Parks Other Than Banff

Under the terms of the general lease form used in national parks since 1914, the habendum clause, which defined the extent of the estate enjoyed by the lessee, provided for annual review of lot rentals every 10 years, viz, 1920, 1930, 1940. No increases had been recommended in 1920 and 1930, but in November 1939, action was taken to review rentals in parks other than Banff. In most of these parks, the rates of rental had not changed since lots in townsites were first made available for lease. Moreover, the rentals assessed reflected no distinction in the purpose for which the lots were leased, i.e. business or ordinary residence. Any variation in the rental payable in a townsite depended on the location of the lot.

The decision not to increase the rates of rental for residential properties in Banff led to a consensus that similar action was desirable in other parks. Alternatively, the increase in rentals for business lots in Banff required consideration of similar action in townsites such as Jasper, Radium Hot Spring, Field, Waterton Park, Waskesiu and Wasagaming.

Following consultation with the park superintendents, the Director of the Lands, Parks and Forests Branch recommended to the Deputy Minister on March 18, 1940 that business rentals be increased only in the Townsite of Jasper. Here again the increases were based on the superintendent's recommendation, subject to agreement by the lessee concerned. Increases of approximately 250 per cent were recommended. The revised rates, approved by the Minister, required lessees who had been paying $8 and $9.50 per year for business sites to pay $20 and $25 per year. Two large, prominent lots were rated at $30 per year.²¹

Housing for Veterans

An interesting development in the closing years of World War 2 was the action taken to facilitate the reestablishment of veterans who, prior to their enlistment, were permanent residents of the national parks. An amendment made to the Veterans Land Act in 1945, authorized the Minister of Veterans Affairs, with the approval of the Governor in Council, to enter into an agreement with the Minister of Mines and Resources for the settlement of veterans on any Dominion Lands that the Minister of Mines and Resources might recommend as specially suitable for this purpose. On April 7, 1946, the ministers of the two departments completed an agreement that would enable veterans to obtain a grant of $2,320 from the Department of Veterans Affairs to assist them in erecting a building on lands within national parks for the purposes of a residence.²² A number of lots in Banff were made available without charge, and agreements to lease were issued to qualified veterans.

Arrangements were later made whereby a veteran who held an agreement to lease a lot and had a dwelling well under way, might obtain under the terms of the National Housing Act, a loan to be secured by mortgage. On approval of a loan by the Director of the Veterans' Land Administration and by the Central Mortgage and Housing Corporation, the Department of Mines and Resources agreed to issue a long term lease for the lot concerned prior to the completion of the building.²³ The issue of the lease, however, was subject to the condition that the company advancing the loan would furnish an undertaking completed by its signing officers to the effect that the funds being disbursed would be used to complete the building in accordance with plans and specifications approved by the lending agency and by the Department of Mines and Resources. The lease, duly completed by the lessee and the Minister, was then delivered to the lending agency on the written request of the lessee.²⁴ The lease contained special convenants providing for the completion, within a stated period of a building having a stipulated value, and an undertaking by the lessee that he would not sell or dispose of the lease within a period of 10 years of the date of issue, without the prior consent of the Minister of Veterans Affairs. The Minister of Mines and Resources in turn agreed to notify the lending agency of any breach of the terms or convenants of the lease and to allow a reasonable period within which to remedy the breach.

The practice of issuing leases for lots in park townsites to war veterans prior to the completion of the proposed improvements, led to an extension of the arrangement to other park residents wishing to obtain housing and building improvement loans on the security of a mortgage. As in the case of veterans, the leases contained convenants providing for the completion of the improvements proposed within a stipulated period. The lending agency supplied a written undertaking over its corporate seal that funds provided would be disbursed for the completion of a building in accordance with approved plans, and the Department of Mines and Resources in turn agreed to provide due notice of any breach of covenants in the lease.

Review of Land Rentals

1950 Rental Review

Before the close of 1949, another task relating to the administration of land faced the National Parks Bureau at Ottawa. The 10-year period for the review of lot rentals as required by the majority of park leases fell due in 1950. Following the procedure employed in 1939, park superintendents were requested to assess the situation and submit recommendations for any revisions of rental which they considered desirable in the park under their supervision. As the decisions reached would chart the course for the next 10 years, the superintendents were asked to consider especially, the increase in the cost of maintaining the townsites and in extending public services, to which lease-holders made little or no contribution.²⁵

Replies from all superintendents concerned indicated their belief that prevailing rentals were low. This opinion stemmed not only from the cost of providing public services in townsites, but also from the enhanced valuations placed on improved leaseholds by lessees offering them for sale. Increases suggested for Banff ranged from 20 to 30 per cent, and for Jasper from 35 to 90 per cent. Recommendations for rental increases in other parks followed this pattern.

A statement of existing and suggested rentals for the various park townsites was submitted to the Director of the Development Services Branch by the Controller of the National Parks Bureau, with the recommendation that the proposals be confirmed. The Director forwarded the submission to the Deputy Minister with the comment that the recommendations were fair, but that any recommendation of a departmental officer was bound to be met with opposition from the leaseholders. The Director expressed the view that in order to make any upward revision of leasehold rent acceptable to park residents, it would be necessary to have an investigation made by an independent authority. It was recalled that an Alberta judge headed a rental inquiry at Banff in 1929.

This recommendation was approved by the Deputy Minister, H.L. Keenleyside. The Minister, the Honourable R.H. Winters, asked his Parliamentary Secretary, George Prudham, M.P. to suggest the names of several individuals whom he considered were qualified to undertake a study of rentals at some of the larger parks. Eventually, Harry O. Patriquin, a chartered accountant from Edmonton was selected to undertake an investigation under the Inquiries Act, and his appointment as a commissioner was authorized by the Governor in Council.²⁶

Mr. Patriquin's terms of reference confined his studies to Banff and Jasper Townsites. He was provided with details of existing rentals and those recommended by the park superintendents; copies of the various forms of lease in use; comparative statements of appropriations and revenue pertaining to public services in national park townsites; townsite plans; and a copy of the report of the Macdonald Commission which looked into the rental question at Banff in 1929.

Commissioner Patriquin visited Ottawa for discussions with officers of the National Parks Branch and spent several days in Banff and Jasper where the superintendents were interviewed. His report was received in Ottawa in late December, 1950.²⁷ Its recommendations for rentals followed closely those suggested by the park superintendents. The report was submitted to the Deputy Minister with a recommendation that the proposals be implemented. The Deputy Minister, General Hugh Young, however, had some misgivings over two features of the report. One concerned the suggested rentals for business lots which he considered too low. General Young's other point centred on the fact that many of the leases in Banff Townsite would not come up for review in 1950, as the form approved in 1940 for lease renewals in Banff provided for review of rentals at intervals of 21 years only. As a result of this anomaly, any increases adopted would be 100 per cent effective in Jasper but only about 20 per cent effective in Banff.

Following a consultation at Edmonton in March, 1951 with James Smart, Director of National Parks, Mr. Patriquin in April submitted a revised report. It incorporated a revised schedule of rentals for business lots in Banff and Jasper together with a proposal whereby leases for residential lots in Banff coming up for renewal between the years 1951 and 1955 would be subject to a progressive annual increase of 10 per cent.²⁸ This would result in five years in a 50 per cent increase over the basic rental recommendation for 1950. With minor amendments the new rental proposals were submitted to the Department for approval. In passing on the report to the Minister, Deputy Minister Young recommended that in place of a progressive increase of 10 per cent over a five-year period, that rentals coming up for review in 1951 be 20 per cent over the 1950 recommendation, and that no further change be made until 1955, when a further assessment of residential rentals in Banff would be made. The amended rental formula was approved by the Minister in May, 1951.²⁹

The adoption of the Patriquin report increased rentals in Banff and Jasper substantially. The rate for business lots in Banff now had a ceiling of $75 per year and a minimum of $30 per year. The rate for residential lots ranged from $14.40 to $18, and for villa lots it was $24. The new scale for Jasper required lessees of business lots to pay $45 to $55 a year. For residential lots the new rates were $12 to $15 per year.

Using the rental schedule adopted for Banff and Jasper Parks as a basis of comparison, the Director of National Parks in May, 1951, submitted to the Deputy Minister for approval, recommendations for increases in the rentals for Kootenay, Yoho, Waterton Lakes, Prince Albert and Riding Mountain Parks. As proposed for the period from 1950 to 1960, the increases ranged from 25 to 75 per cent for business lots and from 20 to 25 per cent for residential lots. The rates, as approved on May 24 were not considered excessive, for up to that time no differential existed between the rental rates for business lots and those for residential lots in Yoho, Kootenay, Waterton Lakes and Prince Albert National Parks.

The 1950 rental review for Banff leases actually was not concluded until 1955, when further consideration of rates for residential lots was necessary to conform with the decision of the Minister in 1951. The latest review was accomplished at departmental level following consultation between the Director of the Parks and the Park Superintendent. On the premise that lease holders should contribute, through lot rentals, to the increasing cost of providing municipal services, a recommendation was made that existing rentals of $14.40 and $18 for lots in Banff north of the Bow River be increased to $16 and $20. For villa lots, a rate of $30 instead of the prevailing rate of $24 was proposed. These recommendations were approved by the Deputy Minister and had the effect of doubling the rate of rental for residential lots in Banff over those which existed in 1949.³⁰

Disposal of Townsite Lots

The right to lease lots for business or residential purposes in Banff Townsite had from the earliest days, been subject to public competition. Periodically, lists of cancelled or undeveloped lots were posted in public places or advertised in the daily newspapers of the nearest cities and lots were then disposed of to the highest bidder. Eventually all choice business lots in Banff were leased and prospective business men were forced to obtain suitable sites by the purchase of an existing leasehold. This transaction required assignment of the lease with the consent of the Minister. Extensions to the townsite had the effect of maintaining sufficient residential lots to meet the demand until after World War 2.

The method of leasing lots in Banff Townsite was not followed in other park townsites. In Jasper, Waterton Lakes, Yoho, Prince Albert and Riding Mountain Parks, lots had been disposed of following a public call for applications. Successful applicants were required to deposit a year's rental in advance and execute an agreement to lease. On completion of the terms of the agreement, a lease for a term of 42 years was issued by the Department. An exception to this practice was made in 1949, when a number of choice lots at Lake Edith in Jasper National Park were disposed of by tender for the purposes of summer residence in the park.

By 1949, the number of available lots in park townsites and subdivisions had declined, and to the cost of surveying extensions was added substantial outlays for the installation of streets, water and sewer services. The disposal of lots in several recently surveyed blocks in Banff Townsite and in an extension to the Lakeview summer cottage subdivision in Prince Albert National Park was under consideration. The successful sale of lots at Lake Edith in Jasper Park, subject to an upset price, and the fact that the existing method of disposal weighed heavily in favour of the lessee, led the Controller of the National Parks Bureau to recommend to the Director that in future all townsite lots, whether business or residential, be disposed of by public competition subject to payment of an upset price. All park superintendents, with one exception, concurred in the proposal. A recommendation to the Deputy Minister that the new procedure be adopted, was approved on January 14, 1950.³¹ Under the policy adopted, lots remaining undisposed of following a competition were available for disposal later to qualified applicants on payment of the upset price previously determined.

Lodge and Bungalow Camp Leases

Prior to 1921, visitor accommodation in the national parks outside townsites was limited to a few mountain hotels owned by the Canadian Pacific Railway Company. That year, the company built the first of a chain of summer tourist camps' at Wapta Lake in Yoho National Park. The site was on the route of the proposed motor road from Lake Louise to Field. The camp consisted of a central lodge containing dining facilities, and a group of cabins heated by stoves. Similar developments were erected by the company at Lake O'Hara and in the Yoho Valley in 1922, and at Moraine Lake and Radium Hot Springs in 1923. Occupation of the land except that at Radium, was authorized by an 'odd parcel lease'. This document, issued for terms of from five to 10 years, closely resembled the townsite lease. The rental was fixed for the term of the lease, renewal of the lease was at the option of the Minister, and the Crown retained the right to enter upon and utilize any portion of the premises for a public purpose.

In 1928, the odd-parcel lease was supplanted by a new document known as a licence of occupation. It contained many of the clauses incorporated in the former document. It limited the operation of the camps to the summer months, contained the optional provision for renewal, and normally provided for rental calculated at a rate of $10 for each acre of land occupied.

The improvement and extension of park highways influenced applications from private individuals for the right to construct and operate what were known as "auto bungalow camps". The cabin units provided overnight accommodation and light housekeeping facilities. A number of sites for these camps were made available by the Department through public competition in Kootenay, Yoho, Jasper, Waterton Lakes, Prince Albert and Riding Mountain National Parks. Successful applicants were issued licences of occupation for terms of 21 years. In 1934, two very desirable sites, each containing about three acres, were disposed of in Banff National Park. Each licence provided for a rental of $50 per year for the entire term.

New Basis for Rental

In February, 1937, the Minister of Mines and Resources, the Honourable T.A. Crerar, expressed the view that in disposing of bungalow concessions in future, the Department should share in the gross revenues derived from the rental of accommodation.³² This opinion was formed following an inspection of the national parks in 1936, during which the Minister observed that existing camps were enjoying a very substantial turnover, while paying very little for the use of facilities provided by the Department. This directive was implemented when additional bungalow camp sites were disposed of in Banff, Jasper, Elk Island and Riding Mountain National Parks. In approving a call for applications for the areas designated, the Minister directed that each applicant should indicate the percentage of gross receipts that he was prepared to pay as rental. The successful applicants later were granted licences of occupation that provided, according to tenders made, for payment of rental at rates ranging from six to 25 per cent of the gross receipts from rental of cabins.

Two years later, one of the licensees, W.F. Becker, who had bid 25 per cent for a site at Banff, made representations that it was not possible to operate at a profit on this basis and requested that an adjustment be made in the rate. In April, 1940, the fee structure for all automobile bungalow camp concessions was reviewed by the Department. The Controller, National Parks Bureau, suggested that the practice of charging one operator 25 per cent of gross receipts while others paid lower percentages, was unfair. Eventually, the Minister agreed to a uniform rate of five per cent of gross receipts for all concessions subject to the condition that the concessionnaires would be responsible for maintaining the grounds surrounding their concession, and that they would accept new licences providing for payment of the new rate, which, after a period of five years, would be subject to review.³³

The licence fee was reviewed in January, 1946 and on the recommendation of the Controller of National Parks, the five per cent rate was approved for a further 10-year period. Three years later, a further reduction was made. In January, 1949, C.R. Kiefer, who operated a high-class cabin development a mile south of Jasper Townsite, applied to the Department for a reduction in his licence fee of five per cent of receipts from cabin rentals. This rate, he claimed, was high and unjust, and to substantiate his application, enclosed copies of financial statements which indicated a loss on his operations. Discussions involving the Branch Financial Adviser disclosed that some operators were experiencing financial difficulties because of reconstruction of highways within and outside the national parks. Consequently it was recommended that the licence fee be reduced from five to three per cent of gross receipts. The proposal was approved by the Minister, the Honourable James MacKinnon, on the condition that the rate would be subject to review following each period of three years.³⁴ On December 21, 1951, the Deputy Minister concurred in a recommendation made by the Director of National Parks that the rate of three per cent be confirmed until 1955.

Further representations to the Minister were made by Mr. Kiefer and the operators of four other bungalow camps in Jasper National Park in December, 1952. A brief, submitted through the local Member of Parliament, objected to the basing of rental on a percentage of receipts, while hotels and other business enterprises in Jasper Townsite were charged a flat annual rate on lots. The Department took the stand that on the basis of land actually occupied, and because of other assessments made on business premises within townsites, the rental for bungalow camps was not excessive. The operators, however, were advised by the Minister that the Department would be glad to review the matter when the existing rate came up for review in 1955.

Although the three per cent formula for rental on bungalow camp developments was approved by the Department for the three years commencing April 1, 1955, changes were in the offing. The operators of five camps in Jasper National Park, through their solicitor, continued their objections to the status quo, and in 1956, the Deputy Minister's office, with the assistance of the Department's Economic Adviser, developed for the consideration of the Minister alternative proposals for amending the rental. These involved (a) charging rental on a basis of a percentage of the operator's profit; (b) allowing a basic deduction to cover interest on investment before applying a percentage charge; (c) applying a sliding scale of rentals depending on tourist occupancy, and (d) allowing a tax-free period of three years for all new motels and bungalow camps erected outside a townsite.

On February 20, 1956, the Minister approved the offering of a new formula to the operators of bungalow camps.³⁵ Under the proposal, concessionnaires accepting the offer would pay a rental based on two per cent of gross revenue accruing from rental of accommodation at full occupancy for 60 days, and four per cent of gross revenue from rental accommodation, less the amount paid under the two per cent formula. These payments were offset by rebates based on (a) an amount equal to three per cent of the operator's investment in buildings and equipment and (b) an amount equal to six per cent for depreciation on the yearly depreciated value of the premises.

The new formula was accepted by the majority of bungalow camp operators, who surrendered their licences of occupation for documents containing the new rental provisions. Valuations of visitor accommodation developments were undertaken for the Department of Resources and Development by the Central Mortgage and Housing Corporation. To qualify for refunds of overpaid rental, licensees were required to submit financial statements certified by a public accountant, including balance sheet, a statement of revenues and expenditures, and a statement of profit and loss for the calendar year ended December 31.

Lease Renewal Privileges Withdrawn

The establishment within the National Parks Branch in 1957 of a Planning Section resulted in a review of basic administrative policies including those governing the occupation and use of park land. A matter of concern to the Guidance Committee on Planning was the possibility of restricting the issue of leases for dwellings to persons whose residence in the parks was necessary for their proper operation. Similarly, it was considered desirable that businesses operated in the park be restricted to those necessary or desirable for park development, and for the accommodation or convenience of visitors or residents.

The existence within the parks of summer cottage subdivisions was also regarded as inconsistent with the uses and purposes of the parks. By memorandum of February 12, 1958, the Director of National Parks requested the Legal Adviser of the Department for suggestions on ways and means of extinguishing leases containing provision for perpetual renewal, and for the elimination from the parks of private cottages or summer homes.

On April 14, 1958, the Legal Adviser, E.R. Olson, replied stating that as far as existing leases were concerned, no unilateral changes were possible. In other words, the extinguishment of leases could be effected only by expropriation or by legislation. It was suggested, however that the deletion of the renewal clause from new leases would be in order, but that a clause permitting Her Majesty as lessor to renew a lease as she saw fit, did not appear either necessary or desirable.³⁶

In September, 1958, a number of recommendations concerning the use and disposal of park lands were made to the Deputy Minister. Included was a proposal that the provision for perpetual renewal be deleted from all forms of leases. This recommendation was approved early in 1959, and for two years thereafter, leases issued for lands within or outside park townsites contained no right of renewal.³⁷ An additional change in lease policy was approved in 1959 by the Deputy Minister when provision for periodical review of rental was deleted from lease and licence forms. This action followed a recommendation made by the Director, National Parks Branch, on the suggestion of the Departmental Legal Adviser.³⁸

Leasing of Cottage Sites Ended

The recommendations of the Guidance Committee on Planning that the leasing of lots in summer cottage subdivisions be discontinued was implemented in July, 1959. In the course of an inspection of national parks in western Canada that summer, Deputy Minister R.G. Robertson advised an officer of the Clear Lake Cottage Owners' Association in Riding Mountain National Park that no further leases for summer cottage sites were being granted. This announcement was given a wide coverage in western Canada by the daily press, especially in Manitoba and Saskatchewan, and was brought to the attention of the Minister, the Honourable Alvin Hamilton at Saskatoon during the following month. According to a press report, Mr. Hamilton confirmed the ban on the leasing of cottage sites, but stated that it was a temporary measure, and would be subject to review following the completion of studies which had been undertaken by a special parks planning group.³⁹

The Deputy Minister's announcement actually was an extension of a departmental ruling which had been made more than three years earlier. In April, 1956, the Director, National Parks Branch was informed by memorandum from the Assistant Deputy Minister, C.W. Jackson, that no further applications for leases of lots in summer subdivisions should be accepted in blocks in which no summer cottage development had yet occurred. The policy announced in 1959, although then termed 'temporary' became in reality, a permanent one, as no lots in park townsites and subdivisions have since been disposed of for the purposes of a summer home.

Longer Leases Wanted

Meanwhile, the operators of bungalow camps and motel accommodation in the western parks continued to press the Minister of Northern Affairs for changes in policy affecting the leasing of land for tourist accommodation developments. Regulations enacted in June, 1930, shortly after the National Parks Act came into force, restricted the issue of leases for the purposes of residence and trade to lots in park townsites, and the issue of licences to lands located outside townsites for the purposes of visitor accommodation. New regulations made in December, 1947, restricted the maximum terms for a licence of occupation to 21 years.⁴⁰ An amendment made to the General Regulations of the National Parks in December, 1954, authorized the Minister, or an officer of the Department acting on behalf of the Minister, to issue leases for lots in townsites for a term of 42 years, provided the lot had a value of less than $5,000. The regulations also authorized the issue of leases for a parcel of land outside a townsite, having a value of less than $5,000, provided the land had been surveyed in accordance with the provisions of the Canada Lands Surveys Act.⁴¹ In cases where the value of a lot or a parcel had a value of $5,000 or more, the authority of the Governor in Council for the issue of a lease was required.

Agitation for Lease and Rental Changes

Early in 1959, the owners of some 41 motels and bungalow camps in Banff, Jasper, Kootenay, Yoho and Waterton Lakes National Parks formed the Mountain Parks Motel Association. In its application to the Government of Alberta under the Societies Act, the association set out its objectives, which included the following:

(e) to unite the motel and bungalow camp operators in the National Parks of Canada in the Canadian Rockies, for the purpose of determining and expressing effectively views of those engaged in the business on matters affecting such business;

(l) to make representations to relevant government bodies with view to obtaining an equitable system of taxation, assessment and rental fees, and to secure the enactment and enforcement of laws and ordinances for the further protection, convenience and welfare of motel and bungalow camp operators.

By arrangement, the officers of the Association met with the Minister of Northern Affairs, the Honourable Alvin Hamilton, on April 22, 1959 to submit a brief on matters affecting the operation of visitor accommodation in the parks. The brief was critical of the maximum term (21 years) for which leases were drawn; the lack of security on which to finance developments or extensions; and the basis of rental charges and business licence fees levied against operators of visitor accommodation. Particular objection was taken to the form of lease providing for rental on the basis of two and four per cent of gross receipts, which required submitting to the Department audited financial statements. Following the interview, the Minister promised that a copy of the brief would be submitted to the Institute of Local Government and that officers of the institute would be requested to interview the Association's solicitor in order that its views might be given full attention.

Crawford Report Recommendations

As reported in Chapter 4, the Institute of Local Government, Queen's University, was engaged in May, 1959, to study and report on various matters including self-government for park residents, control of business activities, and the basis of rentals or fees payable under the terms of leases and licences of park lands. The institute was also requested to recommend the maximum periods for which leases and licences should be issued.

The recommendations of Professor K.G. Crawford, who was responsible for the study, were to have a profound influence on future lease policy. Probably the most important recommendation concerning the use of park lands was that respecting the basis of rental. Professor Crawford suggested that in future, rentals be fixed at six per cent of the assessed value of the land, regardless of whether or not it was located within or outside townsites.

Although it involved a radical departure from previous rental formulas, the recommendation had one feature to commend it. It would place all lessees or licensees on a uniform basis of rental thereby removing one of the main grievances of bungalow camp and motel operators. This was the anomaly of having to pay rental on a basis of gross receipts, while operators of hotels, motels or other businesses within townsites were charged on a flat rate.

Professor Crawford's comment on the number of years for which leases should be drawn stressed the fact that no lease should extend for a period longer than the economic life of the improvements. Conversely, the lease should be of sufficient duration to permit the lessee to recover his investment. Although remarking that a 50-year term sounded better and looked neater, he considered that a change from the prevailing maximum term of 42 years within a townsite and 21 years outside a townsite would be difficult to justify. Accordingly, he recommended retention of 42 and 21 year terms for leases, with provision for appropriate renewals commensurate with the physical state of the properties concerned. A maximum of three consecutive renewals, one of 2 1 years one of 11 years and one of 10 years, was suggested as a reasonable compromise.⁴²

A detailed study of the recommendations contained in the "Crawford Report" was undertaken by officers of the National Parks Branch following its receipt in March, 1960. Copies of the report were forwarded to the Superintendents of Banff, Jasper and Waterton Lakes National Parks, to the Advisory Council or Chamber of Commerce in these parks, and to members of parliament for the ridings in which the parks were situated.

As already mentioned, some of the recommendations of the report dealing with self-government, grants to advisory councils, public relations, and the advertising of concessions for tourist accommodation received early attention and approval in principle. On the other hand, those dealing with the contentious matters of leases, land rentals and business licences required more intensive study.

The suggested change in the method of calculating rental for park land on the basis of a percentage of the assessed value of the property found favour with the Mountain Parks Motel Association and the Jasper Chamber of Commerce. The Banff Advisory Council, however objected to any change in the existing basis of rentals. The Department favoured a change, but found implementation complicated by two major factors. In order to make the new system workable throughout the national park system, up-to-date and equalized assessments of all properties were required. A review of assessment rolls available, disclosed that they would require equalization, owing to wide discrepancies in the methods of assessment of lands in each province.

Another complication arose from the fact that the majority of park leases provided for rental review in 1960, either on January 1, or April 1. Over the years, the rental review clause in successive lease forms had been subject to revision. Consultation with the Department's legal advisers revealed that although some 650 leases contained a rental clause that would permit adjustment of the rental following the first day of the review period, nearly 1,000 leases contained a rental clause that required determination of the rent, by the Minister, prior to the first day of the review period. Consequently, any attempt to adjust arbitrary rentals between 1960 and the next review period in 1970 was bound to result in a situation prejudicial to the interest of a great many lessees.

New Rental Proposals

After a number of conferences involving the Deputy Minister, the Director of National Parks, and members of his staff were held, in which submissions, charts and other supporting material were analyzed, the Director of Parks submitted to the Deputy Minister what proved to be acceptable proposals in two lengthy memoranda dated May 4, and 5, 1961.⁴³ The principal recommendations respecting rentals were:

(a) rentals approved in 1950 for leasehold properties in park townsites continue in effect until the 1970 review date;

(b) lessees be informed that commencing in 1970, land rentals would be based on a percentage of the assessed value of the land;

(c) that following the equalization of assessments of lands throughout the national park system, approval would be given to a percentage of assessed value that would produce a fair economic rental.

(d) lessees of motel and bungalow camp sites be offered, for the interim period from 1960 to 1970, an alternative formula for land rental, based on the average rental paid on a percentage basis during 1959 and 1960.

(e) National Parks Businesses Regulations be amended to provide for an annual licence fee of $5 for each motel or bungalow camp development that is placed on a fixed fee basis of rental after April 1, 1961.

(f) officers of the Department meet with officers of the Mountain Parks Motel Association and discuss the proposals for the basis of determining land rental for motel and bungalow camp developments.

Recommendations respecting leases and licences included the following:

(1) future leases covering lots in townsites and subdivisions, and lands outside townsites surveyed under the provisions of the Canada Lands Surveys Act, be granted for terms of 42 years, with provision for renewal for 21 years if the Minister considered such renewal to be in the public interest;

(2) licences covering parcels of land outside townsites and subdivisions, which were not surveyed, be confined to terms of 10 years.

(3) in cases where a lessee was entitled to a renewal in perpetuity under the terms of his lease, and was not prepared to accept a new lease providing for a 21-year renewal, that a lease containing provision for a renewal of 42 years be granted.

(4) the effective date of any renewal lease or licence involving a change in rental formula, which had been withheld pending consideration of the Crawford Report, be made effective in January, 1961.

The recommendations were accepted by the Deputy Minister and the Minister, the Honourable Walter Dinsdale, as a basis of negotiation. The Minister requested that discussions be held with the motel operators and with the representatives of citizen groups at which the recommendations would be advanced as proposals and not on the basis of decisions already taken.

Accordingly, meetings were arranged for June 8 and 9, 1961 at Banff by the Regional Supervisor of Western Parks, at which the proposals were outlined by him to representatives of the Motel Association, and to representatives of the Banff and Waterton Park Advisory Councils and the Jasper Park Chamber of Commerce. The Regional Supervisor was supported in the discussions by two officers from the National Parks Branch at Ottawa, who had a wide knowledge of lease and land rental matters.

The immediate reaction of the groups to which the Minister's offer was conveyed was equivocal. The proposed moratorium of the review on rental until 1970 was favourably received but the Chairman of the Banff Advisory Council registered strong opposition to the proposed implementation of a rental formula based on a percentage of the assessed value of the property concerned. The Motel Association, through its president, C.R. Kiefer, and its solicitor, E.E. Bishop, expressed the opinion that the interim rental arrangement offered operators of motels and bungalow camps for the period 1961-1969 fell far short of placing them on a footing equal to that of lessees of townsite lots who paid rental on a flat rate basis. It was agreed at the meeting that the Motel Association, the Banff and Waterton Townsite Advisory Councils, and the Jasper Chamber of Commerce, all would forward submissions incorporating their views and counter recommendations.

The first group to respond was the Mountain Parks Motel Association. Its brief indicated acceptance of the Department's proposals including those providing for 42-year leases and 21-year renewals. The principle of a land rental based on a percentage of the assessed value of land occupied also was endorsed, and review of rentals at intervals of 10 years accepted.

On the other hand, objection was taken to the basis of rental proposed for the interim period 1961 to 1969 inclusive. The Association argued that, having regard to the seasonal character of its members' operations, the fixed rental as proposed (the average amount paid in 1959 and 1960 under the formula), should be reduced by five-twelfths for the non-operative period of November to March inclusive. It also requested an additional rebate of three-twelfths as compensation for the cost of providing sewer, water and other services which, in townsites, were available to lessees. The Association also suggested that all fixed fee land rentals in effect prior to the adoption of the proposed new rental formula should be adjusted retroactively to January 1, 1961.

The reply of the Waterton Townsite Advisory Council to the Minister's proposals was prompt and positive. Its chairman, Frank Goble, advised the Honourable Mr. Dinsdale that the moratorium on rental review, the proposed new basis of rental and the revised terms for leases with 21-year renewals, were all acceptable. The Jasper Chamber of Commerce indicated its support for the stand taken by the Motel Association on land rental, and made no adverse comment on other items. No reply was received from the Banff Advisory Council.

Analyses of correspondence and submissions received from citizen groups and the Motel Association indicated that the main obstacle in reaching agreement with the Minister's proposals on land and rental matters revolved around the rental to be paid by operators of visitor accommodation outside townsites during the period from 1961 to 1969. During a study of the Motel Association's brief, officers of the National Parks Branch prepared exhaustive data and tabulations including statements of current receipts of rental from visitor accommodation developments within and outside townsites, and estimated receipts under alternative rental formulas. These studies disclosed that concessionaires operating within townsites and paying rental on a flat rate enjoyed a preferential position financially, compared with operators located outside townsites who paid rental on the basis of a percentage of gross receipts.

Thomas Plunkett, an authority on municipal government matters, who had been engaged in studies undertaken by the Glassco Commission, was consulted. Mr. Plunkett supported the contention of the Motel Association that concessionaires providing visitor accommodation outside townsites and paying rent on a percentage basis had been subject to discrimination, as compared to concessionaires within townsites who were charged rental on a flat rate.

Following an exhaustive review of all the circumstances, and the submission of several explanatory memoranda, the Director of National Parks recommended to the Deputy Minister on October 10, 1961, that:

(1) land rentals for motels and bungalow camps in all parks — previously paid on a percentage of gross receipts from rental of accommodation — be based for the period January 1, 1961 to December 31, 1969, at a rate of one third the net rental actually paid in 1959 and 1960, subject to a minimum annual rental of $25.⁴⁴

(2) the basis of land rental, both in and outside townsites, effective January 1, 1970, be a percentage (to be determined) of the assessed value of the land occupied.

(3) rentals be subject to review at intervals of 10 years from January 1, 1970.

(4) the assessment of land for rental purposes be based on methods of assessment developed by the Province of Alberta.

(5) lessees holding short term leases of lands utilized for visitor accommodation developments and located outside surveyed townsites be permitted, following a legal survey of their sites, to exchange their leases for documents providing for a term of 42 years with the right of renewal for 21 years.

An earlier recommendation that lease terms for lots in townsites and subdivisions, currently restricted to 42 years, be extended by provision for a renewal term of 21 years, had already been accepted.

The Director's recommendations also included a proposal for standardizing the basis on which various forms of visitor accommodation were licensed. Instead of calculating the business licence fee on the number of rooms, suites, cabin or motel units available, it was recommended that in future the fee be related to the number of guests that normally could be accommodated on a "per pillow" basis. As proposed, operators restricted to seasonal operation would enjoy a reduced rate for each guest accommodated as compared with operators who carried on a business the year-round. If adopted, the change would require motel and bungalow camp operators and owners who exchanged leases providing for payment of rental on a percentage of receipts for leases requiring rental payment on a flat rate basis, to pay a higher business licence fee. On the other hand, operators who chose to continue rental payments on a percentage basis, would enjoy the nominal business licence fee of $5 for each accommodation development.

New Rental Formula Adopted

All recommendations were concurred in by the Deputy Minister and approved by the Minister, the Honourable Walter Dinsdale.⁴⁵ The decisions reached were conveyed personally from the Honourable Mr. Dinsdale to the Mountain Parks Motel Association, the Waterton Townsite and Banff Advisory Councils, and the Jasper Chamber of Commerce. Members of Parliament representing Banff, Jasper, and Waterton Lakes National Parks were also recipients of letters from the Minister.

Individual lessees of bungalow and motel sites were notified by letter from the relevant park superintendents of the new rental and lease policies. This letter made it clear that acceptance of the new interim rental formula for the period 1961-1969 was optional. Concurrently the lessees of lots in townsites and subdivisions, whose rental was subject to review in 1960 and 1961, were advised by letter from the superintendents of the decision to postpone review of existing rentals until 1970. Lessees were also advised of the impending change in the rental formula in 1970 to a percentage of the assessed value of the land.⁴⁶

New Policies Implemented

Implementation of the leasehold and land rental policies announced by the Honourable Walter Dinsdale was undertaken promptly. New lease forms were developed and approved for the leasing of lots in the townsites and subdivisions (179-62) and for motels and bungalow camps elsewhere (224-62). This action permitted the reduction of a backlog of leases which had been withheld for renewal pending a settlement of the issues involved. Owners of the motels and bungalow camps were issued with the new leases at the revised rate of rental, following the surrender of leases which had provided for rental payments based on a percentage of gross receipts.

The newly-extended terms of leases, which included the right of renewal were given legal status by an amendment to the General Regulations of the National Parks. The amendment was approved by the Governor in Council on March 1, 1962.⁴⁷ An extensive revision of the Businesses Regulations of the National Parks, which standardized the licence fees for various types of visitor accommodation, was approved on April 12, 1962.⁴⁸ The change reduced the number of categories of accommodation from five to one, which provided for licensing on the basis of the number of guests that normally could be accommodated in the establishment concerned. The amendment also made provision for a reduced fee in cases where the lease limited operations to the summer visitor season.

More Changes Ahead

Lessees in the national parks were destined to enjoy their newly-acquired rights and privileges in respect of lease terms and renewals for a comparatively short period. A general election held in April, 1963 resulted in a change of government, and the Honourable Arthur Laing replaced the Honourable Walter Dinsdale as Minister of Northern Affairs and National Resources. In June, 1963, R. Gordon Robertson was appointed Clerk of the Privy Council and Secretary of the Cabinet and his assistant, Ernest A. Côté was appointed Deputy Minister.

It soon became apparent that neither the new minister nor his deputy concurred in the prevailing leasehold structure. A matter of early concern was the prevailing practice of granting consent to the transfer or assignment of leasehold interest in park lands as a matter of routine. From the earliest days of park administration, leases of lands in parks had included a clause requiring the consent, in writing, of the Minister to any transfer or assignment of interest. Records indicated that over the years, leasehold title to park lands had passed from one party to another with attendant accruals in value of both lands and buildings, without any portion of the accrued profit being received by the Crown. Annual rentals, originally based on the value of the land, were extremely low, and bore no relation to rentals or to the tax structure to be found in areas outside the parks.

In cases where it became necessary for the Crown to acquire or extinguish certain leaseholds to meet the need for more visitor facilities or for the accommodation of those serving the public, the prices asked for a surrender of leasehold interest were exorbitant. Considering the fact that the Crown was attempting to buy back its own property, it became evident that some individuals held a favoured position in perpetuity, in parks belonging to and supported by Canadian citizens.

Effects of New National Park Policy

Studies undertaken on behalf of the Department by consultants had indicated the need for a more positive position with respect to the qualifications of those desiring to obtain leaseholds within townsites for residential purposes. The continued assignment of interest in lands used for residential purposes to individuals other than those required to live in a park by reason of their livelihood or terms of employment appeared questionable. Although these assignments produced growing evidence of accelerating real estate values with each change of ownership, the Crown continued to receive no share of the profits, while land rentals remained frozen until 1970. Consequently, the new Minister, the Honourable Arthur Laing, directed that a review of current leasehold practices be undertaken.

National Parks Policy Statement

On September 18, 1964, Mr. Laing announced in the House of Commons that a Statement of National Parks Policy had been approved by the Cabinet and adopted to provide guidelines for the administration, development, use and purposes of the national parks. This statement of policy was a positive step towards the development of more specific and detailed planning on many aspects of administration including leasehold matters. The policy adopted for leasehold matters was supported by reports of consultants which pointed out deficiencies in existing leasehold practices, and by the findings of the Glassco Commission which also had looked into the matter.

Policy adopted in respect of townsites, subdivisions and residence in the parks would in future exert a profound influence on leasehold administration. Consequently we find in the policy statement that "a townsite is an intrusion and should be permitted to develop in a park only if, by reason of the services it provides, the visitor is better able to enjoy the park for what it is". Similarly, "The development of park townsites should be governed by the present and future needs of visitors to the parks. A townsite if required should be developed to provide the necessary visitor services and recreations in accordance with the purposes of the park. It should not provide the extra entertainments and services common to urban living throughout Canada .... Channelling of townsite growth and redevelopment toward the best and most appropriate land use from a parks standpoint should be done in such a way as to avoid economic hardship to the residents. The control of lease transfers is one means of achieving this objective".

On the subject of park residence, the approved policy is outlined: "Only persons engaged in the administration of the park or the supply of necessary visitor services and their dependents, should be permitted permanent residence in a park, and then only if residence outside the park is not practicable". Similarly, "Permanent residence in a national park should be looked upon, not as a right for those providing services, but as a privilege to be extended only if it is not feasible to commute from residential areas outside the park".

Summer cottage development in parks no longer is permitted. Leasing of lots in cottage subdivisions was discontinued in 1959, and the policy adopted prohibits the issue of further leases for this purpose. A long term objective is the acquisition of all existing summer home sites within national parks.

Study Committee Appointed

By December, 1963, a fact-finding committee headed by the Department's Economic Adviser had been appointed to review leasehold policies, and gradually, changes in existing practices were instituted. A draft policy statement had been prepared by October, 1964, but its adoption was deferred pending the consideration of some related items. However, proposed assignments of leases submitted for the consent of the Minister were closely examined, and park superintendents received instructions from the Director of National Parks that assignments sent forward should be accompanied by a clear statement of the prospective assignee's intended use of the property concerned.

In February, 1965, an interim policy governing the renewal of leases containing clauses providing for perpetual renewal was approved by the Deputy Minister. A new lease form provided for a term of 42 years, and on expiry, renewal for an additional term of 21 years. Under the terms of the lease, the rental, set at the existing rate, would be subject to review annually until 1970.⁴⁹

In March, 1965, policy respecting assignments was confirmed. Park superintendents received advice that requests for the assignment of leases, covering both residential and commercial properties, would be considered for consent only if the lessee was prepared to surrender his existing lease for a 42-year non-renewable lease. In cases where the assignment of residential property was contemplated, consent was forthcoming only if the prospective assignee was obliged to live in a park by reason of the nature of his employment.⁵⁰

Commercial Leaseholds

Changes in the terms of existing commercial leases were not proposed unless a transfer of leasehold title was considered. Where a change in ownership was proposed, the Minister might refuse consent to an assignment of interest in an existing lease, but would not unreasonably withhold consent to a renegotiated lease, which would contain no provision for renewal. Property-holders were cautioned against undertaking commitments until details of the terms and conditions under which an assignment would receive consent by the Minister were obtained.

The allocation or disposition of previously unencumbered lands for the establishment of commercial enterprises would be under a system of bidding. The terms of the commercial lease would vary according to the nature and economics of the commercial enterprise concerned. In all cases, the new lease issued would be for a fixed term with no provision for renewal. On expiry, the improvements on the land would revert to the Crown.

Residents in Protest

As the implications of the new leasing policy became known, residents of the western parks united in protest. A newly-formed Jasper Residents Association, together with the Jasper Chamber of Commerce and the Banff-Lake Louise Chamber of Commerce, submitted to the Minister briefs or letters setting out their objections to the revised terms and forms of leases, consents to assignments and related procedures. Criticism centred on the terms of new leases for residential property which provided for the absolute loss of leasehold interest on the expiry of the lease, which no longer provided for renewal. Senator Donald Cameron, a resident and property-holder in Banff, Alberta, wrote to the Prime Minister, calling for a Royal Commission to investigate the entire national park leasing policy. The Chairman of the Waterton Townsite Advisory Council suggested in a letter to Mr. Laing that the latter submit his resignation.

A slight modification of policy affecting residential leases was contained in a press release authorized by the Minister in August, 1965 in conjunction with the disposal of 24 residential lots in the Townsite of Jasper. The item contained the information that although the terms of leases for these lots would be restricted to 42 years, with the improvements reverting to the Crown at the end of that period, lessees would receive compensation on the expiry of their leases, based on a fair market value of the dwelling or other improvements erected on the lot. Alternatively, if at the end of the term, the property was not required by the Crown for other purposes, the dwelling would become a Crown rental unit and the occupant would have the right of first refusal for rental or a further lease term under conditions to be agreed on at that time.⁵¹

High Level Meeting

A rising hostility among park residents to the new leasing arrangements led to a meeting between representatives of various organizations in the parks and a sub-committee of the Cabinet. The Honourable Arthur Laing, Minister of Northern Affairs and National Resources, accompanied by the Honourable Harry Hays, Minister of Agriculture, and the Honourable Mitchell Sharp, Minister of Trade and Commerce, met with the delegation in Ottawa on August 10, 1965. Senator Cameron introduced the members of the delegation, who individually presented condensed versions of briefs which were submitted for consideration.

Mr. Laing defended his policies respecting leases and assignments, and provided the delegates with details of some of the transactions which had helped to focus attention on a situation which he considered to be prejudicial to the public interest. Several of these involved sales of leasehold interest with profits accruing to the successive vendors, although the Crown received only a small nominal rental and shared no part of the increased value or gain. A more complicated "deal" was that involving a service station lot in Banff where the lessee, who paid the Crown an annual rental of $30 per year, sublet the property at a rental of $1,200 per year for a term of 15 years, renewable for another five years. The sub-lessee had agreed to construct on the lot a new service station at a cost of $30,000, which at the end of the 20-year sub-lease, would revert to the original lessee.⁵²

Mr. Laing assured the delegates that persons required, by reasons of business or employment, to live in the park, would be able on retirement to remain in the park, provided they had established residence at least five years before such retirement. The delegates also received confirmation of the provision in future residential leases that, on their expiry, lessees would receive compensation at a fair market value of improvements placed on their property. Insofar as commercial properties were concerned, the Minister stated that lessees would be expected to write off the capital cost of the business during the term of the lease, and on expiry of the lease, the property, with improvements, would revert to the Crown.

An outcome of the meeting between the delegation and the cabinet ministers was the release of a policy statement by the Honourable Mr. Laing. This took the form of a letter dated August 25, 1965, sent by the Minister to all leaseholders of lands used for year-round residence in the national parks. In his letter, Mr. Laing stressed the need for park lands to be under control in order to ensure their long-range use in accordance with fundamental objectives inherent in the creation of national parks.⁵³

Leases for residential properties in future would be drawn for terms of 42 years without provision for renewal. On termination of the 42-year term, compensation would be paid to the lessee, based on fair-market value. The lease also would contain a provision that occupants of dwellings on residential properties must be required to live in a park by reason of their business and employment. If the land was not required for other purposes at the end of the lease term, the dwelling units would become Crown rental units, and the occupants at that time would have the right of first refusal to rent the premises, provided they proved to be satisfactory tenants.

The Minister reaffirmed that with respect to residential leases subject to rental review, there would be no increase in existing rents until 1970. In cases where consent to the assignment of residential leases was sought, any lease having an unexpired term in excess of 42 years, including any renewal feature, would be replaced by the standard lease containing provision for a 42-year term. Consents to assignment also would be granted only when assurance was received that the prospective occupant of the property met the park residence requirement.

In cases of involuntary assignment, necessitated by the devolution of property through the operation of a will, the Minister said that no changes in the lease terms were contemplated. He also gave assurance that the park residence rule would not apply to leases covering the seasonal occupancy of park lands. At the same time, notice was given that the long-term objective, as set out in the statement of National Parks Policy, was to acquire gradually, all existing summer-home or cottage sites.

The Minister's statement of leasehold policy, as outlined in the letter sent to lessees of park residential properties, was made available a few months later to interested inquirers in the form of printed folders. These publications set out clearly and concisely, the essential features of the National Parks Residential Leasehold Policy and the Commercial Leasehold Policy.

Proposed Leasehold Corporation

Meanwhile, the adoption of a statement of National Park Policy, and the increasing complexities of administering public lands in the national parks had led to a new and radical proposal. In April 1965, the Minister of Northern Affairs and National Resources obtained from the Cabinet, approval of a proposal whereby the administration of public lands in the national parks would be delegated to a Crown Corporation to be established by Act of Parliament. As proposed, the National Parks Leasehold Corporation would have the power to (1) administer all leases in the national parks; (2) buy, or with the approval of the Minister, expropriate leasehold interests and freehold land in the parks, construct, let contracts, hire persons and (3) enjoy such other corporate powers as might be appropriate.

The proposal stemmed from a realization that the current administration of park lands held under leases and licences failed to protect the interest of the public of Canada, and that commercial leases in particular failed to reflect a return to the Crown which in any way related to the enormous expenditures which the public of Canada had contributed to the development of parks. As proposed, a revised policy relating to residential leases, effective from 1970, would provide for a rental related to the current market value of the leasehold interest. Concurrently, each leasehold involving the use of public land for commercial purposes would be handled as an individual transaction on commercial principles, which would take into account the economic worth of the site and the nature of the proposed commercial operation.

In the implementation of a new leasehold policy which anticipated the expropriation of some leases and the extinguishing of undesirable conditions in others, it was considered that a larger and better-trained staff would be required. The possibility of distorting the structure of national park administration by a growth of staff and the problems of leasing administration, which properly should be oriented toward park planning, development and preservation, also was anticipated. Additionally, direct departmental administration of leases on more exacting terms, pointed to additional pressure on senior administrators as concessionnaires and others pressed for more favourable terms. Consequently, it was concluded that the separation of leasehold affairs from normal park administration was desirable.

By March, 1967, legislation for the creation of the proposed Leasehold Corporation was ready for submission to Parliament in the form of an amendment to the National Parks Act. Although the bill appeared on the order paper in May, 1967, it was not introduced for debate during the 1966-1967 session. Proposed amendments to the National Parks Act suffered a similar fate during the following session of Parliament. It was not until the session of 1969-70 that the bill was debated in the House of Commons, and received second reading.⁵⁴ Although referred to the Standing Committee on Indian Affairs and Northern Development, the bill failed to receive third reading before the session ended. In October, 1970, the amendments providing for the establishment of a Crown Leasehold Corporation were dropped from the Department's Legislative program.

More Agitation for Lease Changes

Legal Advice Engaged

Mr. Laing's letter sent on August 25, 1965, to leaseholders of park lands in the western national parks failed to silence critics of his leasehold policies. The Chambers of Commerce of Banff and Jasper engaged the services and support of George H. Steer, Q.C., a prominent lawyer of Edmonton, to plead their case with the Government at Ottawa. Mr. Steer wrote the Prime Minister on August 30, 1965, suggesting the appointment of a Royal Commission to look into what he considered a repudiation by the Government of its contracts with the lessees as exemplified in leases issued under the authority of the Dominion Forest Reserves and Parks Act. Mr. Steer's letter also reviewed quite exhaustively, federal and provincial legislation which he believed applicable to leaseholders and their rights to perpetual renewal of leases.⁵⁵

In a subsequent communication, Mr. Steer brought to the attention of the Prime Minister, sections of the Alberta Lands Titles Act which authorized registration in Land Titles Offices of leases of lands in the parks, plans of which were deposited with the provincial Registrars of Lands. Mr. Steer offered his opinion that the registration of a leasehold interest entitled the lessee to the full protection of his leasehold title so as to make it indefeasible.

The Prime Minister advised Mr. Steer that his representations would be brought to the attention of the Minister of Northern Affairs and National Resources. He also expressed the view that there seemed to be no adequate cause for a Royal Commission or a formal board of enquiry, but promised to have the matter looked into at the official level.

Alberta Government Enlisted

Representatives of citizens' groups in Banff, Jasper and Waterton Lakes National Parks, including the Lake Louise area, presented a brief to Premier E.S. Manning of Alberta on October 28, 1965. This brief took issue with the leasehold policies instituted by the Minister of Northern Affairs and National Resources for Canada, and solicited the support of the provincial authorities in having the park leasing controversy reviewed by a federal commission.⁵⁶

In turn, Mr. Manning wrote to the Prime Minister about his discussions with members of the delegation. He mentioned specifically the policy of the federal department in substituting for current leases, a new standard form granting a lease for a term of 42 years without privilege of renewal, and of the use of the "consent" clause to force the relinquishment of leases having perpetual rights of renewal. He also suggested that lessees who had registered their leases and received a certificate of title under the Provincial Lands Title Act had an indefeasible title to rights granted under the terms of the lease. The proposed policy, Mr. Manning stated, would detrimentally affect the development of the tourist industry of Alberta.⁵⁷

The legal implications of these submissions were examined by law officers of the Crown at Ottawa who held that the Minister of Northern Affairs and National Resources had the power to refuse to consent to any legal voluntary assignment of a lease and that any lease assigned by a lessee without the Minister's consent would be subject to forfeiture by the Minister. The opinion was also expressed that leasehold interest to lands in national parks was governed by the National Parks Act, by other federal legislation, by the lease that was issued thereunder, and by the Crown's right of expropriation.

In his reply of February 4, 1966 to Premier Manning, the Right Honourable L.B. Pearson advised that the law officers of the Crown had disclaimed any knowledge that would make the Crown in right of Canada subject to the Alberta Lands Titles Act. He also stated there appeared to be no evidence that the substitution of a term of at least 42 years from the present time in lieu of the so-called perpetual renewal of leases had any significant effect on the present day worth of the leasehold interests concerned. Reference was made to new legislation that the Government proposed to introduce concerning the administration of leasehold matters in the national parks. Full opportunity, he promised, would be afforded park residents and others to make their views known before any final decision was taken by the Government. The Prime Minister's letter was tabled in the House of Commons on February 16, 1966.⁵⁸

A sequel to Mr. Pearson's exchange of correspondence with Premier Manning of Alberta was the distribution by the Government of Alberta of a brief entitled "The Detrimental Effect of the National Park Policy on the Tourist Industry of Alberta". A copy of the brief, prepared in January, 1966 by an Alberta advertising agency and an Alberta public relations firm, was received by the Honourable Arthur Laing, Minister of Northern Affairs and National Resources, in February, 1966, from the Honourable A. Russell Patrick, Minister of Industry and Development for Alberta. The brief criticised many aspects of national park administration, including its leasehold policy, the control of business expansion, lack of accommodation for residents, and the policy adopted on winter recreation and associated development.

Mr. Laing's rebuttal also took the form of a brief, which examined and reviewed in detail, each phase of park administration to which exception had been taken. In a foreword to his brief, Mr. Laing observed that "the statements in the (Alberta) brief are based, in my opinion, on the incorrect and unsupported assumption that the policies which govern the administration of the national parks are detrimental to the tourist industry of Alberta". The Minister also expressed the hope that everyone who had received a copy of the Alberta brief would be provided with a copy of his comments. In concluding his remarks, Mr. Laing stated "In my view, the National Parks in Alberta are a boon not only to Albertans but to citizens of Canada as a whole, and further, rather than being a serious detriment to Alberta's tourist industry, they are probably the greatest tourist attraction that Alberta has".⁵⁹

Commons Committee Reviews Policy

An opportunity for further discussion of national park leasehold policy followed the appointment of the Standing Committee on Northern Affairs and National Resources of the House of Commons in February, 1966. The committee, whose primary function was a discussion of the Departmental estimates for the coming fiscal year, included several members of Parliament representing constituencies which enclosed national parks. At the opening session of the committee held on March 31, the Honourable Arthur Laing, Minister of the Department, introduced his Parliamentary Assistant, Dr. S. Haidasz; his Deputy Minister, E.A. Côté, and his Assistant Deputy Ministers, J.A. MacDonald and R.F. Battle. The Minister then followed with a statement relating to the administration of his department and its varied activities in the Northwest Territories, National Parks, National Historic Parks and Sites. During his introduction, Mr. Laing observed that considerable criticism had occurred over leaseholds in the parks, and that in the next several months "we can arrange a debate to bring out the facts".⁶⁰

As the various votes or items in the estimates came up for discussion, the Minister, his deputy or his assistants, undertook the necessary answers or explanations. During a review of the program for Jasper National Park, Dr. Hugh Horner, M.P. for Jasper-Edson, proposed to the Committee Chairman, Hubert Badanai, M.P., that consideration be given to the appearance before the committee of representatives of the ratepayers' associations in Jasper, Banff and Waterton Lakes National Parks. The proposal was accepted by the Committee, on the understanding that the Minister of Northern Affairs would make the necessary arrangements for their appearance.

The first invited witness from a national park to appear before the Committee was John A. Clark, Chairman of the Jasper Residents' Association, who was present on May 26, 1966. Mr. Clark expressed appreciation for the opportunity to appear before the Committee and reviewed the contents of a telegram he previously had sent the Chairman. This message had extended an invitation of the Committee to hold meetings and discuss park problems in townsites in the western national parks. The witness then reviewed with the members of the committee several items of concern to his association which had been brought to the attention of the Minister by letter earlier in the year. These 'gripes' included the termination of the 'lessees' right to perpetual renewal of their leases through the medium of the Minister's power of consent to assignments of leasehold title. Such action, the witness affirmed, was "legal blackmail". Mr. Clark also was critical of the land rental charged on lots which recently had been made available to bona fide residents of Jasper Townsite.⁶¹

H.C. Craig, President of the Waterton Park Chamber of Commerce, appeared before the Committee on June 7, 1966. A local businessman in Waterton Park Townsite, Mr. Craig reviewed some of the problems experienced in the operation of visitor accommodation. He too, was critical of the new park leasehold policy, and especially of the reduction in the terms of leases brought about by the abolition of the perpetual renewal clause. The witness observed that in Waterton Lakes Park, due to its situation, little transient business was available, and that practically all business activities were restricted to four months of the year. Consequently it took three years to complete a normal year of full business. It was his opinion that a 42-year lease gave the holder only 14 years of actual occupation for business purposes, and that it would be impossible to write off an investment in a business enterprise during a lease term of 42 years.⁶²

Between May 31 and June 23, the Committee also heard representations from officers of the National and Provincial Parks Association of Canada; the Canadian Wildlife Association, Inc.; and the Canadian Audubon Society.

The Standing Committee was empowered on November 1, 1966, to adjourn from place to place and to obtain further information relating to National and Historic Parks and Sites. An itinerary adopted on November 22 involved visits to Banff and Jasper National Parks for public hearings, and a side trip to Elk Island National Park.⁶³ On November 30, the Committee opened its sessions in the Townsite of Banff where a number of witnesses were interviewed between that date and noon of December 2. On the day following, December 3, the Committee reconvened in the Townsite of Jasper. The Committee later visited Edmonton, Elk Island National Park and Calgary before returning to Ottawa.

During its sessions in Banff and Jasper, the Committee heard 38 witnesses in formal proceedings, including officers of the Banff Advisory Council and the Chambers of Commerce of Banff-Lake Louise, Waterton Park, and Jasper. Other groups and individuals appearing before the Committee represented the Canadian Youth Hostels Association, Jasper Residents Association, Mountain Parks Motel Association, Calgary Chamber of Commerce, and various other organizations interested in the provision of visitor services and accommodation, recreation and wildlife conservation.

In Calgary the members of the Committee were addressed at an informal gathering by the Honourable A.R. Patrick, Minister of Industry and Development for Alberta. The Committee received, during its visits to western Canada or supplementary to its sessions there, a total of 19 briefs, statements and communications. The Senior Assistant Deputy Minister of Indian Affairs and Northern Development — the new name of the Department from October 1, 1966 — attended all sessions in Banff and Jasper, and took an active part in the discussions.

A sequel to the hearings held in Banff and Jasper National Parks was the adoption on January 12, 1967 of a resolution by the Standing Committee that John A. MacDonald, Senior Assistant Deputy Minister of Indian Affairs and Northern Development, be invited to brief the Committee on the major issues of National Park policy. One week later, on January 19, the Committee approved a motion that Mr. George H. Steer, Q.C., of Edmonton, be invited to be present when Mr. MacDoald gave evidence.

Accompanied by Mr. Laing, Mr. MacDonald appeared before the Committee on February 16, 1967.⁶⁴ Mr. Steer was present in the role of an observer. Mr. MacDonald came to the meeting with a printed document of 46 pages entitled "Statement of the National Parks of Canada to the Standing Committee on Northern Affairs and National Resources from the Department of Indian Affairs and Northern Development". He commenced his testimony by stating that he welcomed the opportunity to appear and offer some comments on the wide variety of matters that were raised in briefs and in verbal testimony given before the Committee in Ottawa and in western Canada. This, of necessity, had produced a lengthy presentation which he proposed to review, skipping, for purposes of brevity, sections constituting reaffirmations of policy. Mr. MacDonald then proceeded with a summary of the factual material in his brief, under general headings of (1) National Parks purpose, planning and development; (2) Land Tenure System; (3) Administration Problems in the National Parks; and (4) National Parks Goals. Mr. MacDonald stressed the primary purposes of national parks, emphasizing the need for advance planning, including the creation of wilderness and transition zones in the parks, the relation of tourism to the parks, and the development of trails and facilities for the enjoyment of natural areas.

Considerable explanation was devoted to the National Park Leasehold Policy which was set out in a 12-page section of the brief. This part of the statement actually was the first complete printed statement of national parks leasehold policy to be made available since Mr. Laing assumed responsibility for the administration of the Department. It reviewed the past history of the lease problem, explained the need for changes which had been made, and set out the latest rules for the leasing of park lands for commercial development, for residence in the parks, and for the occupation of land for summer residence (cottage) purposes.

Mr. MacDonald then proceeded with a review of policy concerned with the preservation of natural resources within parks — the management of forests, protection of mineral resources from exploitation, the control of pollution and the conservation of wild animal life. An explanation of the role of townsites in national parks was made, and attention was called to the measures which had been taken to improve financial and management services.

The review of national park activities required a second appearance of the Senior Assistant Deputy Minister before the Committee. This occurred on February 28. After concluding his statement on leaseholds in the park townsites, Mr. MacDonald called attention to the portion of his brief which summarized directions and goals of the national parks system which were inherent in the National Parks Policy statement of 1964.

Throughout his discourse Mr. MacDonald was questioned extensively by the members of the Committee. At the conclusion of his testimony, he informed the Chairman that supplementary to the brief, he had information dealing with cases in which hardship appeared to have been sustained by park residents and concessionnaires. It was agreed that this statement would be tabled and referred to the sub-committee on agenda and procedure. The statement later appeared as Appendix (XI) to the Report of the Committee.⁶⁵

In its Sixth Report dated March 21, 1967, the Committee recorded its recommendations based on evidence heard in Ottawa, Banff, and Jasper. In summary, the Committee:

(a) supported the principles set out in the dedication clause (4) of the National Parks Act;

(b) favoured the concept of organization of the parks into areas incorporating wilderness, semi-wilderness, including recreation areas; and visitor service centres.

(c) endorsed long range planning and decentralization of authority by the establishment of regional offices;

(d) called attention to a serious problem of communication between the Department on one hand, and residents and operators in the parks on the other.

(e) recommended the testing in the courts of the validity of Departmental policy in not renewing perpetual leases.

(f) recommended that with respect to residential leaseholds, immediate action be taken to provide for boards of arbitration to determine compensation due lessees on expiry of their leases.

(g) endorsed the commercial leasehold policy, subject to the condition that lease terms granted be adequate to ensure an adequate supply of capital for visitor services.

(h) recommended that the government continue to substitute new-form leases for old-form commercial leases which do not provide for reversion of assets on termination.

(i) with respect to compensation at the end of commercial lease terms, the Committee expressed satisfaction that the period for recovery of investment, which in most cases is 42 years or longer, is sufficient for recovery of investment without compensation, except on the recommendation of the proposed National Parks Leasehold Corporation.

(j) noted the Minister's statement to the Committee that legislation would be introduced to establish a National Parks Leasehold Corporation to administer leases.

(k) recommended that additional national parks be established throughout the nation in cooperation and consultation with provincial governments.⁶⁶

Crown Involved in Court Action

Court Decision Requested

Less than a month after the report of the Standing Committee was published, George H. Steer, Q.C., wrote to the Minister from Edmonton calling attention to a recommendation of the Committee that the validity of the Government's policy in not renewing perpetually-renewable leases be tested in the courts. In his letter of April 19, 1967, Mr. Steer suggested that Mr. Laing might now be willing to have the matter of the Minister's power to grant leases with provision for renewal referred to the Supreme Court of Canada. Mr. Laing's reply avoided both acceptance or refusal, but stated that the opinion of the Deputy Attorney General of Canada had been secured, and that the course being pursued was legal and indeed to do otherwise would be contrary to the law. Mr. Laing reaffirmed that the current policy was a reasonable compromise of the public and private interest, and no specific hardship directly related to the policy had been imposed on any leaseholder.

The legal opinion referred to by Mr. Laing had been obtained from the Deputy Attorney General on December 2, 1966. Advice had been requested by the Legal Adviser of the Department of Indian Affairs on the question of whether or not the Crown was legally liable to renew, on the same terms and conditions other than rent, two leases for lands in Banff and Jasper Parks granted by the Minister of the Interior prior to 1930, when the National Park Act had come into force. In both cases the leases, which contained provision for perpetual renewal, had expired.

The leases in question had been issued pursuant to regulations made originally in 1909 under the Rocky Mountains Park Act and re-established in 1913 under authority of the Dominion Forest Reserves and Parks Act, 1911. Under those regulations, the Minister of the Interior was empowered to issue leases for building lots for any term not exceeding 42 years at rentals to be fixed from time to time by him. The leases might also contain "the right of renewal". In respect of this legislation, the Attorney General observed,

"The leases in question purport to require the Crown to grant a renewal lease in the same terms and conditions in perpetuity subject to a rent to be as agreed upon, or in the event of no agreement, to be fixed by arbitration."

"In my view, the Minister of the Interior did not have power to grant a right of renewal in those terms, and therefore that portion of the lease was ultra vires his power and authority and cannot therefore be enforced."

"In view of the foregoing, there is no existing authority for the Minister to grant a lease of land in Banff National Park which, in effect, would be renewable in perpetuity.

"Accordingly, it is my view that if an action were brought against the Crown for specific performance of the convenant to grant a renewal lease, renewable in perpetuity, the Crown would have a valid defence to such action for the above reasons."⁶⁷

The recommendations of the Standing Committee on Northern Affairs and National Resources, and the explanations made by the Minister and his departmental staff failed to curb prevailing opposition to the prevailing leasehold policy. Holders of expiring leases that had contained provision for perpetual renewal, on application for renewal leases in the same form, were offered the new standard lease form for a fixed term, usually 42 years, minus any renewal clause. On refusal, lessees were advised by the park superintendent concerned that they would be considered to be overholding tenants.

Among lessees so affected was Mr. George Steer, Q.C., who had been prominently identified as counsel for ratepayers' associations and chambers of commerce in the western national parks. On receipt of advice from the Superintendent of Jasper National Park that he would be considered an overholding tenant of a lot in the Lake Edith Subdivision in that park, Mr. Steer rejoined that he regarded himself as a tenant in possession under the terms of the original lease extended from the date of its expiration for the period of 42 years, and, at the expiry of that term, to be further renewed.⁶⁸

Finally, the objections to the leasehold policy took positive and meaningful form. On November 20, 1967, a Joint Petition of Right was filed in the Exchequer Court of Canada by George H. Steer, Q.C., on behalf of two lessees in Jasper National Park, petitioning the Court for an order declaring that each of the said lessees was entitled to a renewal of his lease for a further term of 42 years, such lease to contain all of the clauses in his original lease, including perpetual renewal, but excepting the rent to be paid. One of the suppliants, W.A. Walker, held an expired lease for a residential lot in the Lake Edith Subdivision, while the other suppliant, M.E. Clark and Son, Ltd., held a lease for a commercial lot in the Townsite of Jasper.⁶⁹

Responsibility for the Crown's defence of the suit rested with the Federal Department of Justice. With the assistance of officers of the National and Historic Parks Branch of the Department of Indian Affairs and Northern Development, the law officers of the Crown prepared a Statement of Defence which was filed with the Registrar of the Exchequer Court on January 31, 1968. This statement denied the right of the Minister of Indian Affairs to grant a lease in the terms alleged in the Petition of Right. Eventually, the trial was set for November 19-20, 1968, in the Court House at Edmonton, with the Honourable Justice H.F. Gibson presiding.

The Trial

When the Exchequer Court (now the Federal Court) was convened in Edmonton on November 19, a large group of interested spectators occupied the public gallery. Included were officers of citizens' associations in Banff and Jasper, representatives of chambers of commerce in the western parks, and other interested national park residents. George H. Steer Q.C., conducted the case for the suppliants, Walker and Clark. The Crown was presented by Peter M. Troop, Director of the Property Section, Department of Justice, Ottawa. Mr. Troop was assisted by two law officers of the Crown. Observers included the Superintendent of Jasper National Park, the Banff Townsite Manager and two members of the staff of the National and Historic Parks Branch at Ottawa.

Mr. Steer led off for the suppliants, taking up most of the first day with his argument. In the Petition of Right filed by Mr. Steer on behalf of his clients, the suppliants had claimed that each of them was entitled to a renewal of their lease for a further term of 42 years on October 1, 1966 and on October 1, 1967, respectively. The renewals, it was alleged, should contain all the clauses included in the original lease — except as to the rental to be paid. The renewal clauses in the expired leases, which were basically the keystone of the lawsuit, read as follows:

"And it is hereby agreed by and between the parties to these presents that if at the expiration of the said term of forty-two years the lessee shall be desirous of taking a renewal lease of the said demised premises, and shall of such desire prior to such expiration give to the Minister six months' notice in writing, and shall have paid the rent hereby reserved, and observed, performed, fulfilled and abided by the stipulations, terms and conditions herein expressed and contained and on her part, to be observed, performed, fulfilled and abided by, then His Majesty, His successors or assigns shall and will grant unto the lessee the said demised premises for a second term of forty-two years, by a lease containing the like stipulations, terms and conditions as are in these presents expressed and contained, except as to the rent to be paid by the lessee during such second term, and that the amount of such rent, in case His Majesty, His successors or assigns, and the lessee shall fail to agree thereupon, shall be fixed and determined by the award and arbitrament of three arbitrators, one of whom shall be named by the Minister, another by the lessee, and the third by the two so named, and said arbitrators in fixing the amount of such rent shall calculate the same altogether as ground rent of a parcel of land situated as the said premises shall then be situated, and the value of any buildings, tenements, houses or erections placed thereon by the lessee shall not be taken into account in fixing such rent; and the rent so to be fixed and determined shall be payable half-yearly as is hereinbefore provided with respect to the rent reserved under these presents, and shall commence immediately upon the termination of the term hereby granted.

"And it is further agreed that if at the expiration of such second term the lessee shall be desirous of again renewing such lease, and shall give to the Minister the like notice as is hereinbefore provided with respect to the first renewal thereof, and shall have paid the rent, and observed, performed, fulfilled and abided by the stipulations, terms and conditions in the first renewal lease expressed and contained, then His Majesty, His successors or assigns shall and will grant a further renewal lease to the lessee for a further term of forty-two years, subject to the like stipulations, terms and conditions, as are herein before provided with respect to such first renewal lease, the amount of rent to be payable under such second renewal lease to be fixed and determined in the manner above provided and set forth; and so on at the end of every renewal term; it being the true intent and meaning of these presents that at the end of the hereby granted term of forty-two years and also at the end of every renewal term of forty-two years, so to be granted as aforesaid, and upon the observance and fulfilment of, and compliance with the like requirements as are hereinbefore provided with respect to such first and second renewals, there shall be granted a further renewal term or lease of the said demised premises, containing the like stipulations, terms and conditions, and at a rent fixed and determined, as are hereinbefore respectively provided, and so on forever."⁷⁰

Mr. Steer's argument in respect of the Minister's right to issue a lease in perpetuity was concentrated mainly on the wording of regulations established on August 8, 1913, for the management of Dominion Forest Reserves. These regulations were made under the authority of the Dominion Forest Reserves and Parks Act, which contained authority for the management and control both of Forest Reserves and Dominion (National) Parks. By way of explanation, one section (17) authorized the Governor in Council to make regulations for the management of Forest Reserves, and another section (18) authorized the establishment of regulations for the control and management of Dominion Parks. The 1913 regulations, cited by Mr. Steer, authorized the issue of leases by the Minister of the Interior covering building lots in duly established "summer resorts" in Forest Reserves, "for a period of 42 years, renewable in like periods, at a rental to be fixed by the Minister".

Mr. Steer also based part of his argument on an amendment to the Alberta Lands Titles Act made in 1917, which permitted the acceptance for registration, by the Registrars of Land Titles, of original or certified copies of leases for surveyed lands in the National Parks in Alberta, plans of which were filed in the Land Titles Office concerned. On registration of their leases, lessees received in return, a Certificate of Leasehold Title. Mr. Steer held that through the registration of leases or copies certified by the Deputy Minister of the Interior, and the acceptance of a Certificate of Leasehold Title, the recipient was thereby entitled to a perpetual right to lands for which such certificate had been issued.⁷¹

In his rebuttal for the Crown, Mr. Troop rejected the arguments of counsel for the suppliants. He reviewed early legislation relating to the establishment of national parks, and took the position that the only regulations which could have authorized the granting of leases in Jasper Park in 1924 and 1925 were the Regulations for the National Parks of Canada made on June 21, 1909, by Order in Council P.C. 1340. He emphasized that these regulations could not authorize the Minister of the Interior to grant a lease renewable in perpetuity in any national park of Canada. The power of the Minister to grant a lease pursuant to the 1909 regulations he stated, was limited to a fixed term, not exceeding 42 years, together with one renewal, provided the lease reserved to the Minister and his successors, the power to fix, from time to time, the rent reserved.

The regulations which had been established in 1913, under Section 17 of the Forest Reserves and Parks Act, Mr. Troop argued, were designed only for the administration of forest reserves, and there was no reason whatever to believe that the subdivision of Lake Edith in Jasper National Park could possibly come under Forest Reserve regulations. Conversely, the 1909 regulations established for Rocky Mountains Park and other park reserves had been re-established in 1911 and made applicable to the national parks established that year under the authority of the Dominion Forest Reserves and Parks Act. At no time had the latter act provided for the establishment within national parks of "summer resorts", and the section relating to "townsites" in forest reserves contained no provision for renewal of leases.

In reviewing the question of whether or not Parliament had taken away any rights the lessees had under the terms of their leases, Mr. Troop held that lessees at all times were dependent on the statutory authority in force at the time of renewal. Both leases in question contained a clause making them subject to the observation of all regulations for national parks in force from time to time. Regulations in force in 1966 and 1967 when renewal of the leases had been applied for, authorized the Minister to issue leases for lots in townsites and subdivisions for terms not exceeding 42 years, with provision for one renewal for a further term of 21 years.⁷²

Mr. Steer's argument on the application of the Alberta Lands Titles Act on park leases was rejected by Mr. Troop. The registration or filing of plans of survey on park lands in the Provincial Lands Titles offices, he contended, in no way vested title in right of the province to the lands surveyed nor did the Certificate of Leasehold Title issued to a lessee following registration of his lease provide an interest beyond the initial term of 42 years or less.

The presiding judge, the Honourable Hugh F. Gibson, promised a decision within two to three weeks. Actually, his judgement was delivered on December 18, 1968, and it upheld the argument of the suppliants that the Government must renew in similar form, national park leases which contained a clause providing for the right of perpetual renewal. In his Reasons for Judgement, Justice Gibson set out the issues to be resolved by the Court. These were:

"Firstly, what were the applicable regulations under which each of these subject leases was originally granted to the respective predecessors in title of the suppliants?

"Secondly, whether the applicable regulations authorized the designated Minister at that time to grant leases of the respective lands described in these leases, renewable in perpetuity?

"Thirdly, whether the Parliament of Canada since the granting of the original leases (in 1924 and 1925) and by the time in 1966 when the original term of 42 years in these leases had expired and the time for requesting the granting or renewals had come, has taken away the right to grant renewals in perpetuity if such right of renewal ever existed?

"Fourthly, whether the fifth covenant in each of these leases makes applicable the present National Parks Regulations? The relevant paragraph of the leases read:

"That this lease and any renewal thereof, shall be subject to all Regulations for the control and management of Dominion Parks now in force, or which may hereafter be made from time to time in that behalf, by the Governor in Council".

"Fifthly, whether the Alberta Land Titles Act has any application to the issues herein?"⁷³

The Judgement

In respect of the first question, Judge Gibson held that the applicable regulations under which the leases were originally granted were the 1909 regulations as reestablished by the Governor in Council on June 6, 1911, and made under section 18 (2) of the Dominion Forest Reserves and Parks Act, 1911.

As to the second question, the Judge held that the intention to covenant for perpetual renewal is unequivocally expressed in the renewal clauses in the subject leases. He also ruled that there was no equivocation in the language employed in the relevant regulations and that those regulations gave the designated Minister, at this time, the power to grant leases containing a convenant giving the right of renewal in perpetuity; and that certain words contained in these convenants for renewal relating to the fixing of rent which the Minister had no power to insert at the time, are severable from the other clauses and can be disregarded, leaving the rest of the renewal clause unaffected.

The decision of Judge Gibson on the third question was that the Parliament has not taken away the right of renewal contained in the subject leases by subsequent legislation and regulations now in force because of the saving provisions of section 36(c) of the Interpretation Act, Statutes of Canada, 1967, C.7.

The fourth question, relating to the applicability of the clause in the lease making it subject to all park regulations, both currently in force and enacted in future, was decided in favour of the suppliants. The judgement given was "That the fifth covenant of the two leases do not make applicable all the regulations in force at the original date of the subject leases or which were made thereafter in that behalf by the Governor in Council, but instead the two leases are subject only to those regulations which are in the nature of policy regulations by reason of such fifth convenant of these leases".

As to the fifth and final question, Judge Gibson ruled that the Alberta Lands Titles Act had no application to the issues therein.

The judgement concluded by declaring that the suppliants were entitled to the relief sought by the Petition of Right together with costs.⁷⁴

Aftermath of Court Decision

Court Decision Appealed

Although the decision of the Exchequer Court in favour of the lessees was hailed with satisfaction by residents of the western parks, the matter was far from settled. Following a consultation involving officers of the Department of Indian Affairs, the National and Historic Parks Branch, and the Department of Justice, a recommendation that the judgement be appealed in the Supreme Court of Canada was approved by the Minister of Indian Affairs. Notice of appeal was filed with the Court on January 8, 1969, and the case was heard in Ottawa on October 27 and 28, 1969.

The case for the Crown was based on the following grounds:

(a) that the relevant regulations, in effect when the leases were made, did not give the Minister the power to issue leases, renewable at the option of the lessees, for successive terms of 42 years, renewable in perpetuity.

(b) that at the time the respondents sought renewal of their leases, the Minister was prohibited by the National Parks Act, c. 33, S.C. 1930, and regulations made pursuant to it from issuing leases in the terms of the convenant for renewal.

Counsel for the Crown at the hearing was C.R.O. Munro, Q.C., assisted by A.S. Ross, both of the Department of Justice at Ottawa. The respondents were represented by G.H. Steer, Q.C., and G.A.C. Steer, Q.C., of Edmonton.

A majority judgement written by the Honourable Justice R. Martland and concurred in by five other members of the Court, including the Chief Justice, dismissed the appeal with costs. Three members of the Court dissented from the majority judgement given. The judgement not only held that the regulations in force when the leases were issued authorized such issue, but reversed the judgement of the Exchequer Court in declaring the leases were made under authority of the regulations enacted in 1913 for the protection, care and management of Dominion Forests Reserves.

The second point raised by the appellant was that the National Parks Act, 1930, and regulations made thereunder, prohibited renewal of leases in the terms of the convenant for renewal. On this argument, the Court ruled that the Crown was obligated to perform its contracts, and that the power of the Minister to make any new leases was no less broad than it was when the original leases were made. The judgement went on to state:

"The National Parks Act and the regulations enacted pursuant thereto are not to be construed as applying retrospectively so as to take away rights already created. They lay down rules applicable from the date of enactment regarding the disposition of property in the National Parks, but in the absence of clear and specific terms to that effect they should not be interpreted so as to divest the respondents of contractual rights and equitable interests already validly granted to them."⁷⁵

Renewal Leases Issued

An interesting feature of the judgement rendered by the Supreme Court of Canada in the case of Walker and Clark was the fact that it applied only to the right of renewal of leases issued prior to the enactment of the National Parks Act in May 1930. The Court did not deal with the question of leases issued after that date. Consequently, the validity of the right to renewal of leases granted after May 30, 1930, remained undecided.⁷⁶

Faced with the option of implementing the perpetual renewal clauses in leases issued prior to May, 1930, or of extinguishing such rights by legislation or acquisition, the Department decided to proceed with the issue of leases in the form decreed by the Court. By August, 1970, the number of overholding tenants who had held leases for which the original term had expired, had reached 75. These individuals now began to press for the renewal of leases to which they were entitled. A form of lease, incorporating terms and conditions contained in the original leases, was prepared by the Department's legal officer and approved for use. Slight variations in the form of the new leases were found necessary to comply with the wording of the original leases. For example, in some cases the leases to be renewed provided for arbitration when the lessee and the Minister failed to agree on the rental payable at the expiry of the lease term. In others, the original lease provided for a referral of the disputed rental to the Exchequer (now the Federal) Court of Canada for adjudication.

New Rental Formula

The issue of new leases however, was complicated by the application of a new rental formula which, nearly eight years before, had been forecast for 1970. The new formula, to be based on a percentage of the value of land, had its origin in the report of the Institute of Local Government prepared for the Department in 1960. It recommended a rate of rental calculated on a percentage of the assessed value of the land. Professor Grant Crawford, author of the report, had suggested a rate of six per cent which then was the borrowing rate of the Federal Government.

The application of a new system for fixing land rental in 1970 had been announced by the Minister of Northern Affairs, the Honourable Walter Dinsdale in 1962, although no final decision had been made on the actual percentage to be adopted. In 1966, the Honourable Arthur Laing, then Minister, had confirmed the new approach in fixing rentals on a percentage basis, but on the basis of market rather than the assessed value of the land to be leased. Although assessment rolls prepared by provincial authorities for school and other taxing purposes were available in most of the larger national parks, the basis of assessment varied in different parts of Canada. Rather than try to make the necessary adjustments by a process of equalization, a decision was reached by the Department whereby a percentage, approved at six per cent, would apply to the real or market value of the land.

Appraisal of Lands

In order to establish the market value of the lands under lease in the widely-dispersed national parks, the Department in July, 1968, solicited tenders from professional firms or individuals qualified to carry out the necessary appraisals. The invitations to tender were accompanied by reference material and a schedule of the properties requiring valuation.⁷⁷ Community or advisory groups composed of representative citizens in the national parks were notified by the Regional Directors of the action being taken.

By September, 1968, all interested valuators had submitted proposals, including an estimate of costs of carrying out property valuations. After careful evaluation of the submissions, in consultation with federal government real estate officers and an independent valuator, appraisers were engaged to make the valuations. Contracts, calling for completion of the work by specified dates, were issued following Treasury Board approval in the spring of 1969.

Contracts for the appraisal work in nine of the parks in western Canada were divided among five consulting firms. Similar services required in national parks in Ontario and in the Atlantic Provinces were undertaken by four different appraisers. The target date for completion of the valuations varied in different parks, but all work was completed by September 30, 1969, at a cost of about $175,000.

The work of evaluating park lands was carried out under guidelines developed by the National and Historic Parks Branch at Ottawa. The terms of reference included the following statement:

"The purpose of the appraisal is to determine the real value of all Crown-owned leased land and such other land as may be designated in the National Parks, exclusive of improvements placed thereon by the lessees". Only the land occupied — exclusive of improvements — was appraised. Although existing Zoning Regulations were applicable to properties appraised, where non-conforming use of land existed, the appraisal was based on present-use value. The appraisers were encouraged to discuss relevant factors with lessees, including demand, availability, costs, trends and zoning.

Increase in Rental

The adoption of a rental formula based on a percentage of the market value of the leased land promised greatly increased rental payments by lessees. Rentals established in 1950 had been carried over to 1970. In many cases, these rentals were barely nominal, and had little relation to a rental which, according to the terms of many of the leases, provided for a rate "equal to the full value of the tenement".

A statistical analysis of revised rentals for Banff, Jasper and Waterton Park Townsites calculated at six per cent of the appraised value of the land revealed changes resulting from the application of the new formula. In Banff, where the residential rentals ranged according to location, from $16 to $30 per lot, per annum, the new median rates in residential zones 1 and 2 were $214 and $197 respectively. Similarly, in the commercial zone where the highest lot rental was $75 per year, the new median rate had risen to $829.

In Jasper, where rentals had been slightly lower, increases also were indicated. Residential rates, which had ranged from $12 to $15 per lot, were supplanted by median rates of $146, $151, and $233 in residential zones 1, 2, and 3. Lots zoned for commercial use and formerly rated at $45 and $55 per year, were increased to a minimum rental of $160 and a median rent of $1,776.

Rates for residential lots in Waterton Park Townsite rose from an average rate of $15 to a range of from $75 to $324. In the commercial zone, where the average rate had been $20 per lot, rentals were increased to a median of $295, with a low and high range of from $60 to $3,420.⁷⁸

Rental Review Board

On completion of the appraisals, the Regional Director of Western Parks issued a public statement outlining the appeal procedure for lessees having objections to the valuations placed on their leaseholds. This involved application to a Rental Review Board which would convene hearings in various parks at which lessees might appear and present arguments against inequalities of valuation, or have cases of economic hardship reviewed. As contemplated, the Review Board would comprise three members. Of these, the Chairman and a representative to the National Parks administration, would be appointed by the Minister, and function at all hearings. A third member of the Board representing the lessees, would be named by a citizen's group representing the property-holders in each park or group of parks for which hearings were proposed. Consequently, the third position on the Board was filled by a different person at each hearing.

On December 12, 1969, lessees in each park where leases provided for decennial review of rental, were formally notified by letter, signed by the Acting Director, National and Historic Parks Branch, of the new rental payable by them in 1970. The new rate represented six per cent of the value of the leasehold, exclusive of improvements, as recently appraised. The letter also contained the information that although in some cases leases provided for payment of rental prior to April 7, 1970, the Minister had decided on April 1, as the date for the first payment of rental at the new rate. Attention also was directed to the opportunity of having the appraised valuation of the land reviewed by the Rental Appeal Board.⁷⁹

Rental Increase Deferred

Before the Board commenced its hearings, the Honourable Jean Chrétien announced on February 20, 1970, that the payment of revised land rentals in the parks would be deferred until 1971. This announcement followed a decision of the Cabinet, confirmed by Treasury Board on February 19, as part of the anti-inflationary policy of the Government, to defer certain price and fee increases. Among these were land rentals.⁸⁰ All leaseholders in the parks were notified by letter signed by the Director, National and Historic Parks Branch of the Minister's decision. Recipients of the letter also were advised that the deferment of rental increases would not affect the decision to establish Appeal Boards to hear cases involving leaseholders who considered their revised rentals inequitable.⁸¹

Appeal Board Personnel

Action to appoint the Appraisal Review Board was instituted in January, 1970. Park residents were invited by the superintendents to nominate a member who would represent them at a hearing for that park. Louis Howard, mortgage manager for the Prudential Insurance Company of America at Calgary, was appointed as the representative for the National and Historic Parks Branch. In August, 1970, the Honourable C. Campbell McLaurin of Calgary, formerly Chief Justice, Appellate Division of the Supreme Court of Alberta, accepted the invitation of the Minister to serve as Chairman of the Board.⁸² The Board personnel was completed by a representative for each of the communities in Banff, Jasper, Waterton Lakes, Kootenay, Yoho, Glacier and Prince Albert National Parks. Leaseholders in Riding Mountain National Park nominated two representatives, one on behalf of commercial leaseholders and the other to act for summer residents.

Board Hearings

The Appraisal Appeal Board opened its hearings in Banff on October 26, 1970. Its terms of reference included an examination of the basis, methods and techniques employed in the preparation of the appraisals. It had the responsibility for ensuring that the appraisals established equitable property values. The Board was free to recommend to the Minister such adjustments as it believed to be warranted.⁸³ At its hearings for each park, the Board had in attendance either the appraiser who carried out the valuations, or a representative of the appraisal firm, as well as the local Board representative of the lessees.

The hearings at Banff were carried on into December, 1970, during which about 180 cases were reviewed. The Board then proceeded to Jasper where more than 350 leaseholders had objected to the appraisals made. Appeals from lessees in Yoho and Glacier National Parks were heard at Banff in February, 1971. The hearing for Waterton Lakes National Park was convened at Lethbridge, Alberta, on March 25, when 18 appeals were reviewed. No appeals were received from Elk Island National Park. The hearing of appeals in Riding Mountain National Park generated considerable interest. The Board met at Wasagaming Townsite on August 16, when the leaseholders were supported not only by their representatives, but also by three solicitors and an independent appraiser retained by their solicitors. The final hearing, for Prince Albert National Park, Saskatchewan, was held at Waskesiu Townsite on August 20, 1971, where one appeal and five other cases were reviewed.

The recommendations of the Appraisal Review Board were generally acceptable to the Department at Ottawa. However, an examination of reports covering the hearings at Banff and Jasper disclosed that the Board had, in some cases, overlooked the terms of reference under which the appraisers had operated. These had provided for valuations to be based on the highest and best use of the properties concerned. The Board, instead, had decided that the appraisals in some zones, should be based on the actual improvements located on the property. Following a meeting between officers of the National and Historic Parks Branch and the Department's representative on the Board, the Chairman of the Board was requested by the Senior Assistant Deputy Minister to reconvene the Board in Calgary.

The meeting, held on June 9, 1971 was attended by all members of the Board, the Assistant Director (General) and the Chief of the Property Management Division of the Parks Branch, and two members of the staff of the Regional Director. After recommendations of the Board for Banff and Jasper Parks were reviewed, agreement was reached that assessments for certain properties would be re-examined and re-established according to the highest and best use of the land.⁸⁴ Revised reports subsequently were submitted by the Chairman to the Department at Ottawa.

Rental Reviews Concluded

By September, 1971, the hearings of the Appraisal Review Board had been concluded and their recommendations submitted to Ottawa for consideration by the Minister. An analysis of the reports relating to the mountain national parks, which included leasehold properties in the Townsites of Banff, Jasper, Waterton Park and Field, was completed by October 1. The Departmental review disclosed that the Board had reduced some valuations by up to 50 per cent of the original appraisals. The reason for this variation was that although the appraisals were based on the highest and best use to which the properties could be developed, the Board's recommendations were based on the actual use of the lands involved, notwithstanding that some properties were zoned for high use. In such cases, the Board had been requested to establish new values reflecting the highest and the best use as indicated in the original appraisals. Consequently, the Department had recourse to three options in determining the values to be used for rental purposes. These were:

(1) the original appraised values of 1969 based on the highest and best use under existing zoning regulations;

(2) the Appraisal Review Board's valuation based on the actual use of the land;

(3) the Appraisal Review Board's valuation on the highest and best use to which properties could be developed under the zoning regulations.

A recommendation was made to the Minister that option No. 2 be confirmed, subject to the reservation that should the use of a property change — for example from residential to commercial — the rental would then be subject to review.⁸⁵

An analysis of recommendations submitted by the Appraisal Review Board following the hearings in Prince Albert Park revealed that very few changes in the original appraisals were recommended. In fact, the Board commended very highly the work of the appraiser engaged by the Department. Conversely, quite significant reductions were recommended by the Board in Riding Mountain National Park, where the appraisers had failed to take into account the levy assessed by the Department against lessees for the cost of installing and maintaining water and sewer services. The Board also recommended that rental be based on current land use rather than the highest and best use. The acceptance of the Board's findings for Prince Albert and Riding Mountain National Parks was recommended to the Minister, with the proviso that, should a change in the use of any property be contemplated, the established rental should be subject to review.⁸⁶

Postponement of Rental Increases

Second Rental Deferment

Meanwhile, a second deferment in the application of new rentals, based on the appraised value of the land occupied, had been sanctioned. On February 10, 1971, the Minister, the Honourable Jean Chrétien, requested the President of the Treasury Board to reconsider its directive of February 26, 1970, which called for the implementation of revised rentals on April 1, 1971. There were sound reasons for deferment. The hearings of the Appraisal Review Board were still in progress, and available information indicated that substantial adjustments in proposed rentals might be recommended by the Board. Moreover, the Minister had requested his Parliamentary Secretary, J. Judd Buchanan, M.P., to undertake a review of leasehold and townsite matters in the western national parks through personal contacts with the residential and business communities in the parks. This was still under way. The Minister's request was approved by Treasury Board and permission to withhold rental increases to April 1, 1972 was granted.⁸⁷ Subsequently, all leaseholders whose land rental was subject to review in 1970 were advised by letter, signed by the Director, National and Historic Parks Branch, of the Minister's decision.

Parliamentary Secretary Involved

Reference has been made to the review of leasehold and townsite matters which had been delegated to the Minister's Parliamentary Secretary. This review, or study, had been initiated by Russell C. Honey, M.P., early in 1970, while Parliamentary Secretary to Mr. Chrétien. Mr. Honey was succeeded on October 1, 1970 by J. Judd Buchanan, M.P. who continued the study. The terms of reference included an examination of the factors and leasehold problems affecting residents and businessmen in the national parks, as well as consideration of ways and means whereby the residents might participate as fully as possible in townsite affairs. Both Mr. Honey and Mr. Buchanan had devoted considerable time to their assignment, and meetings held in various parks permitted discussions with leaseholders, citizens' groups in Banff and Jasper, including the Banff Advisory Council, and the school boards in each park. The Banff and Jasper School Boards in turn, had enlisted the assistance of the Alberta Department of Municipal Affairs in the preparation of a feasibility study on municipal autonomy for the townsites of Banff and Jasper.⁸⁸

Consultant's Study

Another study designed to assess the quality and efficiency of policies, management and practices of land tenure in the national parks, and to recommend any changes necessary to adapt existing policies to sound property management principles, was initiated in November, 1970. The study, recommended by the Director, National and Historic Parks Branch, was approved by the Deputy Minister in January, 1971. Following clearance with the Federal Treasury Board on March 1971, contracts were entered into with two consultant firms experienced in real estate appraisals, North and Leonard, Inc., of Montreal and Vancouver, and Admar, Inc., of Montreal, Quebec.⁸⁹

The terms of reference required the study team to review the principles and methods of existing land tenure in the national parks, the financial aspects of the public and private investment involved, and the economic land return to the Crown; to review and assess past and relevant studies of leasehold policies and townsite administration; and to co-operate and exchange information with the Minister's Parliamentary Assistant conducting an independent review of townsite matters. The consultants were also required to recommend a leasehold policy consistent with the present philosophy of the National Parks System.

This study was commenced in April, 1971, with the assistance of the Chief, Property Management Division, of the National and Historic Parks Branch at Ottawa. The consultants arranged meetings with various citizen's groups in the western parks, including chambers of commerce, advisory councils and others, with a view to obtaining the opinions and recommendations of the residential and business communities. National Parks personnel were excluded from most of these discussions. A preliminary report was received from North and Leonard, Inc., in November, 1971, but the term of the contract was extended to July 31, 1972, in order to broaden the scope of the study.

The final report, in three sections, was submitted to the Director, National and Historic Parks Branch, on December 29, 1972. Section I, entitled Leasehold Policy Structure, represented the suggested composition of the Leasehold Policy Manual, prepared originally in the Branch in 1969, and serves as a summary of the entire study. Background material for major elements of the Leasehold Policy Manual is contained in Sections II and III.

Following its receipt, the report was analyzed by the Property Management Division, and several items in the text were referred to the authors for correction or clarification. After the amended report was received by the Department, copies were forwarded to the Regional Directors and the superintendents of several parks for comment. In addition, a copy of the report, from which matter considered confidential had been deleted, was made available to the Banff Advisory Council, the Jasper Chamber of Commerce, and the Waterton Park Chamber of Commerce. The report was neither accepted nor rejected by the Department, and little reaction was received from any of the organizations which had received a copy.

Increases are Forgiven

By early 1972, the National and Historic Parks Branch was awaiting ministerial authority to inaugurate the new scale of land rentals in the national parks, effective April 1, 1972. A further delay, however, was to occur. In mid-February, 1972, the Minister decided that the implementation of the new rental scale, modified by the recommendations of the Appraisal Review Board, should be deferred until the studies undertaken by his Parliamentary Secretary and by the professional consultants engaged by the Department were completed. Concurrence was obtained from Treasury Board on March 30, 1972.⁹⁰

Details of this latest development in the controversial rental issue were made public in a press release issued by Allen Sulatycky, M.P. for Rocky Mountain, who had succeeded J.J. Buchanan on February 3, 1972. Lessees also were advised by letter from the Director, National and Historic Sites Parks Branch, that the Minister had 'forgiven' the amounts of all rental increases in the national parks until April 1, 1973.⁹¹

Further Lease Policy Changes

Anomalies in Rentals

The successive deferment or forgiveness of rental increases for lands held under lease or licence in the national parks placed many lessees in an anomalous situation. For example, lots in a newly-surveyed residential subdivision in Banff were opened in 1966 for leasing by individuals whose terms of employment required them to live in the park. Rentals were fixed on the basis of a percentage of the market value of the lots and averaged about $200 a year. Similarly, a group of lots in Jasper Townsite was made available in 1968 for lease to qualified residents. Here the rentals, which averaged about $150 per year, also were determined on the basis of a percentage of the market value of the land.

Conversely, lessees of residential lots located in comparable residential zones of Banff and Jasper Townsites were required to pay rentals on the much lower scale approved by the Minister between 1951 and 1955. Rental rates for the latter category of lessees represented only 11 to 12 per cent of those payable for the more recently-leased properties. Another group of lessees enjoying a preferred position in respect of rentals payable were operators of bungalow cabin, motel and other visitor accommodation developments who benefited from drastic reductions authorized by the Minister in 1961. These concessionnaires, who, as previously explained, had their rentals adjusted from a percentage basis to a flat rate, remained in a most favourable economic position as compared to those whose leases dated from 1966 onwards.

Reinstatement of Perpetual Leases

The Supreme Court decision of March 20, 1970, that confirmed the legality of the perpetual renewal clauses in park leases issued prior to May 30, 1930, revealed a confusing situation in respect of two classes of leases. These were (1) perpetual leases which, on expiry, were renewed for a fixed term of 42 years without provision for renewal, and (2) leases containing perpetual renewal clauses issued between 1930 and 1958.

After the Court decision was announced, many lessees who had accepted fixed-term leases in return for their surrendered perpetual leases, considered that they should receive the same consideration being extended to those who were now eligible for a renewal lease with future renewals guaranteed in perpetuity. Applications from this class of lessee were considered carefully by the Department, and consultation with the Department's Legal Adviser revealed that practically all lessees, prior to accepting renewal leases for fixed terms, had not executed formal surrenders of their rights to perpetual renewal. Consequently, notwithstanding the acceptance by a lessee of a fixed term lease, it was the opinion of the Legal Adviser that in those cases, "the original perpetually renewable lease subsists and may be renewed in accordance with its terms upon surrender of the fixed term lease if there is authority to grant such renewal".⁹²

The Legal Adviser also stated that although the Supreme Court decision in the Walker Case probably provided all the authority required to renew perpetual renewal leases of the same class as those considered in that case, namely, perpetual renewable leases granted prior to the coming into force of the National Parks Act in 1930, the decision did not apply to leases granted after 1930.

On August 22, 1972, problems affecting the renewal of park leases were reviewed by the Director in a lengthy submission to the Deputy Minister. It was recalled that no problem existed in respect of leases issued prior to May 30, 1930, which contained rights of renewal. By virtue of the Supreme Court decision, renewal leases containing a right to perpetual renewal had been issued both to overholding tenants who had refused to accept leases drawn for a fixed term, and to lessees whose leases had expired.

With regard to lessees who, between 1958 and the date of the Supreme Court ruling in March, 1970, had accepted either a renewal lease for a fixed term of 42 years or a lease for 42 years with the option of a 21-year renewal, a revised Government policy appeared desirable. The Legal Adviser had confirmed that, subject to the inclusion in the General Regulations of the National Parks of the necessary authority, it would be possible to implement a "reinstatement" policy covering lease-renewal rights. Consequently, it was recommended to the Deputy Minister that, in keeping with a policy accepted by the Minister on February 11, 1971, lessees be permitted to surrender existing fixed-term replacement leases, for which renewals of original perpetual leases would be substituted. Such reinstatements would, in accordance with the Minister's previously approved policy, be subject to the following conditions:

1 that the 42-year or 42-plus-21-year leases which had replaced the perpetually renewable leases had not been assigned;

2 that the lessee was not in default of, or in breach of, any covenant or condition of his lease;

3 that no conflict in the land use permissible by the former lease was involved.

This recommendation received the approval of the Deputy Minister.⁹³

There remained for consideration, the policy of granting renewals of leases issued after May 30, 1930, which had contained the right of perpetual renewal. Under clause 3 (1) of the General Regulations of the National Parks, approved by Order in Council on March 1, 1962, the term of a lease for lands in a park which had been legally surveyed was restricted to 42 years with the option of renewal for 21 years. Consequent to the opinion of the Legal Adviser that renewal in perpetuity of leases issued after 1930 was possible, provided the necessary authority was included in the General Regulations, and subject to certain stipulated conditions, a recommendation was made to the Deputy Minister that the necessary amendment to the regulations be made. Under the proposed regulation, such renewal leases, containing a right to perpetual renewal, would be granted to a person who;

(a) was not an assignee of the lease in the course of a transaction that included its surrender to the Crown; and

(b) who had relinquished the option of renewal in perpetuity and accepted a lease that did not contain such option.

These recommendations also received the approval of the Deputy Minister.⁹⁴

New Regulations Established

Rather than amend the General Regulations of the National Parks which authorized the granting of leases and licences of park lands, it was decided to revoke the pertinent sections of the existing general regulations and establish new ones to be known as the National Parks Lease and Licence of Occupation Regulations. The new regulations were established on May 8, 1973, when they received approval of the Governor General in Council.⁹⁵

The Lease and Licence of Occupation Regulations contained provision for the granting of leases of townsite lots, subdivision lots, and public lands outside townsites and subdivisions, as authorized by the National Parks Act, for terms not exceeding 42 years, with provision for renewal for further terms of 21 years. The new regulations also provided for the granting of renewal leases of public lands in accordance with the convenant of renewal or perpetual renewal where the previous lease was granted prior to the coming into force of the new regulations, and neither the lease nor the right of renewal had been surrendered to the Crown or otherwise extinguished.

A further provision permitted former holders of perpetual leases, who had accepted renewals of such leases which did not contain provision for further renewal, to regain such right of perpetual renewal. In June, 1973, all lessees eligible for an exchange of such leases received a letter from the Minister, setting out the conditions under which existing leases could be replaced. These conditions stipulated that:

1 neither the original lease nor the right of perpetual renewal had been formally surrendered to Her Majesty or otherwise extinguished;

2 the present lease has not been assigned except by devolution on the death of a lessee;

3 the lessee is not in default or breach of the present lease;

4 the leased lands are now being used for a purpose permitted by the original lease; and

5 this offer is accepted and the exchange takes place before March 31, 1975.

The Minister's letter suggested to the recipient that any decision to accept the offer should be considered carefully in the light of possible advantages contained in existing leases. If the offer was acceptable it was suggested that the lessee contact the park superintendent concerned.⁹⁶

Rental Increases Implemented

In November, 1972, the Minister of Indian Affairs and Northern Development was requested by Treasury Board to review fee structures and other charges to visitors and users of national parks, in the light of escalating costs of their administration. Subsequently, the Minister decided that further forgiveness of land rental increases should be discontinued and the President of the Treasury Board was asked to concur in the implementation of a new rental schedule effective April 1, 1973. Treasury Board granted approval to this request on January 25, 1973.⁹⁷

A general press release issued by the Director of National Parks, Western Region, confirmed the decision to enforce the rental rates which had been approved following land appraisals and hearings by the Rental Review Board. The press release revealed that the Minister was prepared to review individual cases where the increased land rentals would create financial hardship. Subsequently, each lessee received in February 1973, a communication from the Director, National and Historic Parks Branch, setting out the land rental which had been determined by the Minister, based on a rate of six per cent of the appraised value of the land occupied.

Within a period of one month, approximately 70 communications had been received from lessees by the Minister, requesting reconsideration of the rental as determined, by reason of financial hardship. These cases were given careful consideration following submission by the applicants of pertinent details of their financial situation, and a number of reductions were made by fixing a nominal rental for the remaining years of the period subject to review. It was made clear to successful appellants that rental forgiveness would apply only for so long as the lessee's financial situation remained essentially as represented by him, and that such benefit in no way was assignable or transferable.

Federal Court Appeals

The majority of existing leases of lands in the national parks provide for periodic review of rental, with a large proportion being subject to review every 10 years. The terms of many of the leases in force also permit the lessee, in cases where he is not in agreement with the rental determined by the Minister, to have the matter referred either to the Exchequer (now the Federal) Court or to a board of arbitrators for adjudication. Following the receipt of notice of the implementation of an increase in rental, approximately 125 lessees made applications to have their rents reviewed and determined by the relevant tribunal. A number of appeals were found to be ineligible for such action as the terms of the leases established the Minister as the sole authority to fix the rent. Steps to refer the remaining cases to the Federal Court were initiated in April 1973.⁹⁸

It was determined that the cost of submitting some 80 lawsuits to the Federal Court would probably be out of all proportion to the revenue generated by increased rentals. Consequently, it was decided to institute court action by selecting from each zoning group in a townsite, two or three properties that would represent as many variables as possible. It was expected that the decision of the Court in these cases would be fairly indicative of the course future decisions would take. At the time this text was written, the necessary preparatory work leading to hearings by the Federal Court was under way.

Conclusion

In retrospect, many of the difficulties experienced in the administration of national park lands might have been avoided had it been possible to adopt and maintain a consistent lease and rental policy that was fair to entrepreneurs, to residents and to the Canadian taxpayers, who theoretically own the parks. It is interesting to observe that over a period of 85 years, the basis for fixing rentals, after a full cycle, reverted to that originally adopted in 1887. That is, a rental based on a percentage of the value of the land. This principle, discarded for a series of unsatisfactory alternatives dictated mainly by political expediency, was re-affirmed following the adoption of recommendations made by professional consultants after intensive studies.

The outcry over the very substantial rental increases announced in 1970 might have been avoided, had the recommendations made some 40 years earlier by a board of arbitration established by the Government, been heeded by the responsible ministry. The acceptance of recommendations on land rentals, made by the MacDonald Commission of 1929, would have paved the way for periodic, justifiable increases, calculated to reflect both the ever-increasing real value of the lands occupied and the value of public services enjoyed by the lessees at little or no cost. Instead, token rental increases, fixed at lengthy intervals without benefit of a reasoned basis, were imposed. Consequently, the decision made in the mid-1960's to adopt a new rental formula based on the value of land, now greatly enhanced in value, produced resentment from lesses who, perhaps unconsciously, had for many years lived in a taxpayer's paradise.

In fairness to the lessees, some of the measures taken to adjust the imbalance between land values and rentals were disparate. For example, the decision of the Minister in 1937 to charge the operators of bungalow camps a percentage of gross receipts from the rental of visitor accommodation, while permitting operators of lodges and hotels within and outside townsites to pay rental on a flat rate per lot or acre, was indeed questionable. In most cases, the operators of cabins and motels located outside townsites were dependent on their own efforts for the provision of services such as water, sewer, refuse disposal, and, in most cases, electric power. Conversely, their urban competitors had ready access to these services supplied by the national park administration or by private enterprise at authorized rates. Later, however, the percentage-paying entrepreneur came into his own in 1961, when, following a persistent lobby, the Mountain Parks Motel Association secured for its members a new deal. Rentals were adjusted at the rate of one-third of those payable during the previous two years.

The dissatisfaction of lessees over terms of leases, review of rental, and the right to renewal of leases were largely an inheritance from the original administrators of the park system. Early regulations established under the authority of existing legislation provided for the issue of leases for terms of 42 years, with the right of renewal. Unfortunately, the right of 'perpetual' renewal was affirmed neither by statute nor regulation, and until 1930, park administrators simply followed the pattern established by the leases issued after 1890, which contained such right. As explained earlier in this chapter, the right of lease renewal was intended to guarantee a security of tenure for a park resident erecting a dwelling for his own use or conducting a business providing an essential service for park visitors.

A new era began with the enactment of the National Parks Act in 1930, and regulations made under its authority restricted the maximum term of a lease to 42 years, but neither the statute nor the regulation confirmed or implied any right of renewal. Nevertheless, for some unexplained reason, the issue of new leases containing a right to perpetual renewal was continued until 1959, when the privilege was withdrawn.

The abrogation of a long-enjoyed right invariably invites opposition, and demands for longer leases, with enhanced financial security, led to a change. In 1962, the Minister, acceding to the organized protests of citizen groups and the operators of visitor accommodation and other businesses, had the park regulations revised to provide for the renewal of leases on expiry for an additional term of 21 years.

This concession brought temporary peace between lessees and the park leasing authority, and little objection to the modified lease forms was raised. The new situation, however, was rudely disturbed following a change of government in 1963, and the adoption of a new leasing policy announced by the Honourable Arthur Laing in 1964 and 1965. Residence in the national parks was restricted to those who provided essential services to park residents and visitors, and was enforced by strict control of leasehold assignments. New leases were drawn for fixed terms, the right of lease renewal was eliminated, and on expiry of the term of the new form of lease, improvements on the land reverted to the Crown without compensation. Although the policy in respect of residential leases was modified to provide compensation for improvements on expiry of leases, criticism in the form of letters, petitions and resolutions poured in on the Minister.

Holders of expiring leases refused to accept the watered-down documents offered by the Crown, and two residents of Jasper National Park successfully petitioned the Exchequer Court of Canada for the right to contest the new leasing policy of the Department of Indian Affairs and Northern Development. In the ensuing action, the appellants were successful, and an appeal launched by the Minister on behalf of the Crown was rejected by majority decision of the Supreme Court of Canada. The right to perpetual renewal of leases issued prior to 1930 now was confirmed. A later decision of the Minister to recognize renewal rights, under certain conditions, of holders of leases issued after 1930, obviated possible additional litigation, and certainly future embarrassement for officers of the Department charged with the administration of land in the national parks.

The radical change in the land administration policy however, has had compensatory effects. Lands in the parks which, notwithstanding the National Parks Act and regulations, are subject to impairment in order to permit their public use, will in future be subject to much stricter control. The right to live in a park will, quite properly, be restricted to those engaged in essential services. Careful planning and zoning practices should help to preserve, to a greater degree, the principles set out in the National Parks Act. Residents and concessionnaires will contribute in rentals and fees, a more equitable share of the cost of preserving and maintaining the park heritage. On the completion and evaluation of the studies which have been instituted, it should be possible to adopt a firm but equitable policy covering all phases of land use in the national parks.

References

1 Department of the Interior. National Parks Branch File B 21, Vol. 1A, (letter Oct. 20, 1886)

2 Ibid. Nov. 24, 1886

3 Ibid. May 3, 1887

4 Ibid. June 24, 1887

5 National Parks Branch File B.20, Vol. 1, Feb. 25, 1888

6 Hansard, May 3, 1887

7 Order in Council P.C. 1694, June 30, 1890

8 National Parks Branch File B.2, Vol. 1, Jan. 4, 1906

9 National Parks Branch File B.20, Vol. 1, May 7, 1913

10 National Parks Branch File B.21, Vol. 3, March 12, 1920

11 National Parks Branch File B.21, Vol. 4, March 11, 1929

12 Ibid. Oct. 28, 1929

13 National Parks Branch File B.21, Vol. 5, (letter Oct. 16, 1930)

14 National Parks Branch File B.21, Vol. 6, March 12, 1934

15 National Parks Branch File W.20, Vol. 1, Nov. 23, 1910

16 Ibid. July 26, 1911

17 National Parks Branch File J.20, Vol. 1, April 1, 1914

18 National Parks Branch File B.21, Vol. 6, Jan. 22, 1936

19 National Parks Branch File B.21, Vol. 11, Oct. 17, 1939

20 National Parks Branch File B.21, Vol. 12, Aug. 14, 1940

21 National Parks Branch File J.21, Vol. 3, April 9, 1940

22 National Parks Branch File U.21, Vol. 2

23 Ibid. May 12, 1948

24 Ibid. Aug. 19, 1949

25 Ibid. Dec. 16, 1949

26 Order in Council P.C. 81/5955, Dec. 9, 1950

27 National Parks Branch File U.21, Vol. 3, Dec. 14, 1950

28 Ibid. April 24, 1951

29 Ibid. May 11, 1951

30 National Parks Branch File B.21, Feb. 23, 1955

31 National Parks Branch File U.21, Vol. 2

32 National Parks Branch File U.16-l12, Vol. 1, Feb. 12, 1937

33 Ibid. April 9, 1940

34 Ibid. Jan. 29, 1949

35 Ibid. (Vol. 3), Feb. 20, 1956

36 National Parks Branch File U.21, Vol. 4

37 Ibid. (Vol. 5), Feb. 2, 1959

38 National Parks Branch File HO 55-9-2, March 17, 1959

39 Ottawa Journal, Aug. 31, 1959, National Parks Branch File U 21, Vol. 5

40 Order in Council P.C. 5045, Dec. 8, 1947

41 Order in Council P.C. 1954-1918, Dec. 8, 1954

42 Supplement to the Report of the Institute of Local Government, 1960 National Parks Branch File U.155-1, Vol. 2

43 National Parks Branch File U.21, Vol. 6

44 National Parks Branch File U. 16-112, Vol. 5, Oct. 10, 1961

45 National Parks Branch File U.121-16, Nov. 14, 1961

46 National Parks Branch File U.21, Vol. 6, Dec. 22, 1961

47 Order in Council P.C. 1962-268, March 1, 1962

48 Order in Council P.C. 1962-528, April 12, 1962

49 National Parks Branch File U.21, Vol. 8, Feb. 5, 1965

50 Ibid. March 26, 1965

51 Ibid. Aug. 6, 1965

52 Toronto Globe and Mail, Aug. 17, 1965

53 National Parks Branch File U.21, Vol. 10, Aug. 25, 1965

54 Hansard, March 4, 1970

55 National Parks Branch File U.21, Vol. 12

56 Ibid.

57 The Jasper Gateway, Vol. 2, No. 1, Jan. 13, 1966

58 Hansard, Feb. 16, 1966

59 National Parks Branch File U.21, Vol. 13, March 1966

60 Standing Committee on Northern Affairs and National Resources. Minutes of Proceedings and Evidence, No. 1. Queens Printer, Ottawa, 1966

61 Ibid., Minute No. 6

62 Ibid., Minute No. 9

63 Ibid., Minute No. 19

64 Ibid., Minute No. 23

65 Ibid., Minute No. 25

66 Ibid., Minute No. 26

67 National Parks Branch File 90/5-L2 (Policy) Dec. 2, 1966

68 National Parks Branch File U. 21 (Law) Vol. I, Jan. 26, 1967

69 Ibid.

70 Canada Law Reports — Exchequer Court of Canada, 1969, Vol. 1, P. 419. Queens Printer, Ottawa, 1969

71 National Parks Branch File U. 21 (Law) No. 2, Memorandum Nov. 25, 1968

72 Ibid.

73 Exchequer Court Reports, 1969, Vol. 1

74 Ibid.

75 Dominion Law Reports, 1970, Vol. 1, P. 173

76 National Parks Branch File 90/5-L2 (Law) Letter July 20, 1971

77 National Parks Branch File 90/5-L2 (Rental) Vol. 1, July 17, 1968

78 National Parks Branch File 90/5-L2 (Rental) Vol. 3, Jan. 30, 1970

79 Ibid. Dec. 12, 1969

80 Treasury Board Minute 694910, Feb. 26, 1970. National Parks Branch File 90/5-L2, Vol. 3

81 National Parks Branch File 90/5-L2 (Rental) Vol. 4, March 17, 1970

82 Ibid. Letter from Minister to the Hon. C. Campbell McLaurin, Sept. 2, 1970

83 Ibid.

84 Ibid. (Vol. 5) June 9, 1971

85 Ibid. (Vol.6) Memorandum Oct. 1, 1971

86 National Parks Branch File 90/5-L2 (Policy) Volume 3, Memorandum Nov. 3, 1971

87 Treasury Board Minute 702868, March 24, 1971. National Parks Branch File 90/5-L2 (Rental) Volume 5

88 Statement of Allen Sulatycky, M.P. on Land Rentals, March 29, 1972. National Parks Branch File 90/5-L2 (Rental) Vol. 6

89 Treasury Board Minute 703860, June 3, 1971 and Treasury Board Minute 706832, Sept. 9, 1971. National Parks Branch File 90/5-L2 (Policy) Vol. 2.

90 Treasury Board Minute 711389, Mar. 30, 1972. National Parks Branch File 90/5-L2 (Policy) Vol. 4

91 National Parks Branch File 90/5-L2 (Rental) Vol. 6. May 1, 1972

92 Memorandum from Legal Adviser, June 12, 1972. National Parks Branch File 90/5-L2 (Policy) Vol. 4

93 Memorandum Aug. 22, 1972 Director to Senior Assistant Deputy Minister. National Parks Branch File 90/5-L2 (Policy) Vol. 4

94 Ibid.

95 Order in Council P.C. 1973-1052, May 8, 1973

96 Enclosed with letter from Senior Assistant Deputy Minister to Superintendents of Banff, Jasper, Yoho and Waterton Lakes National Parks, June 7, 1973. File 90/5-L2 (Policy) Vol. 6

97 Treasury Board Minute 717395, Jan. 25, 1973. File 90/5-L2 (Rental) Vol. 7

98 Memorandum from Director, Policy, Planning and Research, Parks Canada, to Director, Legal Services. April 17, 1973. File 90/5-L2 (Rental) Vol. 8.