Date: 2001-01-04

2001 NUCJ 1

File No.: 000-182-CV

IN THE NUNAVUT COURT OF JUSTICE

BETWEEN:

NOAH KADLAK AND NUNAVUT TUNNGAVIK INCORPORATED

and

MINISTER OF SUSTAINABLE DEVELOPMENT

REASONS FOR JUDGEMENT

REASONS FOR JUDGEMENT OF THE HONOURABLE R.G. KILPATRICK

Heard at Iqaluit, Nunavut

on November 3, 2000

Reasons filed: January 4, 2001

Counsel for the Applicant: Dougald E. Brown

Counsel for the Respondent: Douglas Garson

Date: 2001-01-04

File No.: 000-182-CV

IN THE NUNAVUT COURT OF JUSTICE

BETWEEN:

NOAH KADLAK AND NUNAVUT TUNNGAVIK INCORPORATED

Applicant

and

MINISTER OF SUSTAINABLE DEVELOPMENT

Respondent

REASONS FOR JUDGEMENT

[1] Noah Kadlak lives on Southampton Island in the vastness of Canada’s eastern arctic. He is an experienced Inuk hunter, and a beneficiary under the Nunavut Land Claims Agreement. He lives his life close to the land. In this unforgiving landscape, Noah carries on the proud hunting traditions of his people; traditions that have ensured the survival of the Inuit from time immemorial.

[2] Mr. Kadlak wishes to hunt a polar bear using the traditional methods and technology of his ancestors. The taking of a bear with spear or harpoon is a risky business. There is little room for mistake. The strength, agility and cunning of the bear make it an extremely dangerous and formidable adversary. This form of hunt requires exceptional skill and courage. It is perhaps the ultimate test of the Inuit hunter.

[3] Noah Kadlak has been denied the opportunity to participate in this traditional hunt. The Minister of Sustainable Development for the Government of Nunavut has determined that this form of hunting presents an unwarranted risk to public safety and has refused to grant Mr. Kadlak any exemption from the provisions of section 42(1) of the Wildlife Act R.S.N.W.T. 1988, c. W-4. Mr. Kadlak now brings this application to review the Minister’s decision. He asks the Court to find that the Minister’s exercise of discretion in this case was unreasonable and contrary to law.





Procedural History:

[4] In November 1997, Noah Kadlak applied to the Nunavut Wildlife Management Board (NWMB) for permission to hunt a bear using a spear or harpoon. This application was necessary because section 42(1) of the Wildlife Act RSNWT 1988 c. W-4 permits hunting of bears only with certain prescribed weapons. A spear or harpoon is not an approved weapon for this purpose. Article 5.6.48 of the Nunavut Land Claim Agreement gives the NWMB the power to modify or remove this type of restriction in the Nunavut Settlement Area (defined as a non-quota limitation by Article 5.1.1).

[5] In response to Noah Kadlak’s application, the NWMB granted Mr. Kadlak permission to carry out the traditional hunt, but made this subject to a number of conditions. These conditions included the following:

a) That the person be at least 19 years of age and be an experienced polar bear hunter;

b) That the person sign a comprehensive Release and Indemnity Agreement;

c) That the person be accompanied by at least one other experienced hunter with a firearm that complies with section 42 of the Wildlife Act;

d) That the person first obtain the written endorsement of their HTO and the NWMB.

[6] In accordance with the procedure provided for in the Nunavut Land Claims Agreement, the NWMB forwarded its decision granting permission for the traditional hunt to the Minister of Resources, Wildlife and Economic Development of the NWT by letter dated June 3rd 1998.

[7] On July 17th 1998, The NWT Minister advised the NWMB that he was exercising his jurisdiction under Article 5.3.11 of the Nunavut Land Claims Agreement to disallow the Board’s decision. This decision was made on the basis that the proposed hunt presented an unwarranted risk to public safety within the meaning of Article 5.3.3 of the Nunavut Land Claims Agreement.

[8] The NWMB then reconsidered its original decision as required by Article 5.3.12. The Board reaffirmed the original decision granting the applicant permission to conduct a traditional hunt. This was communicated to the Minister by letter dated September 16th 1998.

[9] The Minister of Sustainable Development for the new Nunavut Territory responded on October 25th, 1999. He confirmed that he was disallowing the Board’s decision to grant permission for a traditional bear hunt on the grounds of public safety. It is this decision by the Minister of Sustainable Development that is now under review in this Court.

The Social and Legal Context of The Nunavut Land Claims Agreement:

[10] Before the coming of organized government, the Inuit lived in scattered camps in the remote regions of what is now the new Territory of Nunavut. They survived in this harsh environment through nomadic hunting activities. The Inuit have developed a close symbiotic relationship to the land, and all the creatures of the air, sea and land upon which they have traditionally depended as a people for their survival. The traditions of the hunt are an important focus of Inuit culture. Even today, Inuit language, art, diet and clothing celebrate the hunt and the animals of the hunt. The preservation of Inuit culture remains closely linked to this traditional way of life. The Inuit right to hunt is understandably the central focus of the Nunavut Land Claims Agreement. This is key to their social and cultural identity as a people.

[11] The Inuit right to harvest wildlife is set out in Article 5.6.1 of the Nunavut Land Claims Agreement. This Article provides that:

“…an Inuk shall have the right to harvest up to the full level of his or her economic, social and cultural needs, subject to this Article.”

Article 5.1.42 further provides that:

“An Inuk may employ any type, method, or technology to harvest pursuant to the terms of this Article that does not … conflict with the laws of general application regarding humane killing of wildlife, public safety and firearms control.”

[12] The provisions of this Agreement were intended by the signatories to be understood and applied in a larger social/legal context that recognized Inuit traditional harvesting practices. As an aid to interpretation, Article 5.1.3 thus proclaims that the Agreement seeks to achieve as one of its objectives:

“… the creation of a system of harvesting rights that reflects the traditional and current levels, patterns and character of Inuit harvesting.”

Under the heading “Principles”, Article 5.1.2 acknowledges that:

"a. Inuit are traditional and current users of wildlife;

b. The rights of Inuit to harvest wildlife flow from their traditional

and current use.”

[13] The Inuit right of harvest proclaimed in the Nunavut Land Claims Agreement is constitutionally protected by virtue of the incorporation of this Agreement into section 35 of Canada’s Constitution Act 1982. In keeping with common law principles of constitutional law and statutory interpretation, the provisions of the Nunavut Land Claims Agreement are to be afforded a large, liberal and purposive interpretation so as to best attain the objectives of this legislation.

The Appropriate Standard of Judicial Review:

[14] The “pragmatic and functional approach” to judicial review of administrative decisions is well entrenched in Canadian jurisprudence. This approach recognizes a continuum of judicial review with certain types of administrative decisions being entitled to more deference from the reviewing Court than others. At the highest end of this continuum, is the standard of correctness. A decision reviewed on this standard will be overturned if it does not fully and strictly comply with the law. At the lowest end, is a standard of patent unreasonableness, where the decision under review can only be overturned if it cannot be rationally supported from the standpoint of a reasonable person. A review conducted on this standard will thus accord significant deference to the administrative body that made the original decision.

[15] It is argued on behalf of the Nunavut Government that the Court should review the Minister’s decision in this case on the basis of the lowest possible standard of judicial review; that of patent unreasonableness. It is argued that the fact that the Minister’s decision was made in the context of an aboriginal land claims agreement is not helpful in determining the appropriate standard of review.

[16] I disagree with both these submissions. The decision made by the Minister in this case restricts or limits a constitutionally protected right of harvest that I have found to be the central focus of the Nunavut Land Claims Agreement. The decision under review does not involve a delicate balancing of polycentric rights as in the Turbot case recently before the Federal Court (see NTI vs. Minister of Fisheries and Oceans (1997) 1997 CanLII 16940 (FC), 149 DLR (4th) 519). It involves an individual’s right of harvest. I find that the individual’s right to determine the method of harvest has been directly impacted by the impugned decision. There is a “prima facie infringement of an aboriginal right” within the meaning of the Sparrow judgment of the Supreme Court of Canada (1990) 1990 CanLII 104 (SCC), 70 DLR(4th)385.

[17] I find that the highest level of judicial review, the standard of correctness, is demanded by the facts of this case. Any lesser standard of review would not be adequate to effectively protect the right proclaimed under the Nunavut Land Claims Agreement; a right that is both recognized and affirmed by section 35 of the Constitution Act . Any lesser standard of review would potentially undermine and erode the very objective that the Nunavut Land Claims Agreement seeks to protect.

[18] In this case, there is no privative clause to limit Court reviews of Ministerial decisions made under Part 6 that limit or restrict the Inuit right of harvesting. The decision under review does not involve difficult technical issues, or issues involving special expertise or competence. It does involve the application of broad public policy considerations to the proposed exercise by the applicant of his right of harvest. It does involve consideration of the legal meaning to attach to the phrase “public safety” as this is found in Article 5.3.3 of the Nunavut Land Claims Agreement. I find that there is nothing about the issues behind this decision that cannot be closely examined by a reviewing Court on a standard of correctness.

[19] The Supreme Court of Canada in the Pushpanathan case (1998 CanLII 778 (SCC), 160 DLR (4th) 193) identified a number of factors that should be considered in determining the standard of review. The list of factors identified by Justice Bastarache was not intended to be complete or comprehensive. This case did not involve the review of a decision that impacted directly upon a constitutionally protected right. Nor was the Supreme Court called upon to consider the application of section 35 of the Constitution Act to the decision then under review. Yet the majority found that the decision of the Immigration and Refugee Board was subject to review on a standard of correctness. In Pushpanathan , the Supreme Court of Canada asked the reviewing Court to look to the overall purpose of the legislation in question, and to examine the nature of the issue behind the decision under review.

[20] I infer that a primary objective of the Nunavut Land Claim Agreement is to protect Inuit harvesting rights from unwarranted state interference through the incorporation of these rights into section 35 of the Constitution Act . It is entirely appropriate to ask the Court to intervene when government decisions adversely impact, or infringe upon those rights protected by the Constitution of this country. By conferring constitutional status and priority upon the Inuit right to harvest wildlife, Parliament and this Territory have sanctioned challenges to social and economic policy objectives embodied in legislation to the extent that this right is, has been, or will be affected. This Court finds that it is well equipped to monitor and maintain the delicate balance between the public interest represented by government and the private interests defined and protected by the Constitution, on the other. Curial deference has very little place in a review involving constitutional issues of this kind.

[21] Counsel for the Government points to the absence of a right of appeal from the Minister’s decision as being a significant indicator of legislative intention to minimize curial review. I disagree. An individual right that is both “recognized and affirmed” by its incorporation into the Constitution Act would be meaningless without a means of enforcement or redress. I find that no right of appeal is necessary to justify a standard of correctness on this review for the reasons that I have identified.

The Standard of Correctness:

[22] Section 35(1) of the Constitution Act does not promise that the rights under the Nunavut Land Claim Agreement will be immune from all forms of government regulation. It does require the Territorial and Federal Crown to justify any decision that impacts adversely upon the promises made and rights conferred in the Land Claims Settlement. A decision by government that affects the exercise of a substantive aboriginal right will only be upheld if it meets the test for justifying an interference with a right recognized and affirmed under section 35(1). This test, and the analysis that precedes it, has been outlined by the Supreme Court of Canada in the case of Regina vs. Sparrow 1990 CanLII 104 (SCC), [1990] 3 CNLR 160; (1990) 70 DLR(4th )385. The Territorial Crown thus has the burden in this case of justifying a decision that clearly restricts the right of harvest, and the right to determine the means of harvest, conferred upon Inuit by the Nunavut Land Claim Agreement.

[23] It is common ground that the only lawful justification for the Minister’s decision to deny the traditional hunt in this case must be found in the provision related to “public safety”. Unfortunately, the Nunavut Land Claim Agreement does not define this phrase as it appears in Article 5.3.3.

[24] Counsel for the Government argues that the phrase “public safety” should be given a broad and expansive definition. This would allow the regulation of risks assumed by individual hunters as members of the public. Such an interpretation would permit the Minister to effectively regulate a dangerous and risky harvesting activity. It is argued that in the case now before the Court, compelling public policy justified Ministerial intervention. It is argued that a prohibition of this activity is necessary to ensure that public health care and public welfare systems are not burdened by having to support individuals and their dependants who are injured or killed in the course of pursuing these risky hunting activities. It is suggested that the same public policy considerations that ultimately resulted in seat belt legislation being upheld as constitutionally valid are analogous to the case at bar.

[25] The applicant, on the other hand, argues that a very restricted or narrow meaning should attach to the phrase “public safety”. It is argued that the Ministerial power to restrict Inuit harvesting should only be allowed to the extent that the hunting activity presents an identifiable risk to the community or public at large. Such a power would thus allow for the imposition of “proximity restrictions” to a harvesting activity in the vicinity of known human population. It would not extend to the risks incurred by individual hunters while pursuing their harvesting activities.

[26] It is argued that to allow the Minister to restrict hunting activities on the basis of risks assumed by individual hunters would “open the door” to significant regulation of the harvesting activities of Inuit. Many Inuit hunting activities contain an element of personal risk. Whaling with a harpoon, walrus hunting on the flow edge, polar bear hunting with a bow and arrow, or crossbow, for example, all pose significant risks, even to the experienced hunter. It is thus argued that the adoption of the “expansive” definition advocated by government could have a significant adverse affect upon the Inuit harvesting rights recognized under section 35(1) of the Constitution Act .

[27] The second stage of the “Sparrow” analysis outlined by the Supreme Court of Canada requires that this Court examine the legislative objective behind the impugned decision. I am satisfied that the decision to restrict the Inuit harvesting right in this case was made pursuant to a “valid” legislative objective within the meaning of the Sparrow case. I further find that the decision to prohibit Noah Kadlak from pursuing the bear with a spear falls lawfully within this valid legislative objective of “public safety.”

[28] In making this finding, the Court accepts that the broader definition of public safety advanced by the government is correct in law. If this Court adopted the narrow definition advanced by the applicant, then many of the restrictions initially imposed by the NWMB upon Noah Kadlak would also be rendered “invalid”. These restrictions appear to have been imposed in an effort to address the risk to the individual hunter pursuing the traditional bear hunt. The provisions of Article 5.3.3 of the Nunavut Land Claim Agreement equally bind the Minister and the NWMB. If the Minister cannot validly restrict hunting activities on the basis of risks assumed by individual hunters, then the NWMB had no basis in law to do so.

[29] While the Court is thus prepared to accord the phrase “public safety” with a broad and expansive definition that would include the assumption of risks by individual hunters, the 2nd stage of the Sparrow type analysis requires that the Minister strictly comply with a” principle” of minimal interference when making his or her decision. Was the Minister’s decision to effectively prohibit the traditional hunt the minimum infringement or restriction of the harvesting right possible in order to achieve the desired objective of public safety as I have defined it? Are there reasonable conditions, short of outright prohibition, that could substantially address the Minister’s concerns? The principle of minimal interference is to be applied liberally, in accordance with constitutional principles of interpretation, to ensure that the rights recognized and affirmed by section 35 of the Constitution Act are not unduly restricted or denied through overzealous government regulation. This Court finds that the concerns raised by the applicant in argument are best addressed in this second stage of analysis.

[30] The “principle” of minimal interference is well entrenched in constitutional litigation in this country. It is a principle adverted to by the majority of the Supreme Court of Canada at p. 187 of the Sparrow judgment. I find that it is also a “principle” that has been expressly built into the criteria circumscribing the Minister’s decision under Article 5.3.3 of the Nunavut Land Claim Agreement. This Article provides as follows:

“Decisions of the NWMB or the Minister made in relation to part 6 shall restrict or limit Inuit harvesting only to the extent necessary:

(a) To effect a valid conservation purpose;

(b) To give effect to the allocation system outlined in this Article, to other provisions of this Article and to Article 40; or

(c) To provide for public health or public safety.”

[31] Before any decision is made to prohibit a particular form of harvesting activity, traditional or otherwise, the NWMB or the Minister must first consider whether other reasonable conditions could effectively address the legitimate public safety or public health concerns arising from the activity. It is clear that the NWMB did this when first authorizing the traditional hunt subject to conditions. There is no evidence before me that the Minister has done so.

[32] The outright prohibition of a traditional Inuit harvesting activity is a drastic step. It is a step of last resort. This is so particularly given the principles and objectives of the Nunavut Land Claim Agreement that appear to recognize and accept the validity of traditional harvesting activities, and their continued importance to contemporary Inuit society. For the reasons given earlier, Government must be prepared to have the justification for such a decision closely scrutinized by the Courts. I am not satisfied on the evidence before me that the Minister’s decision to disallow the NWMB decision in this case satisfied this principle of minimal interference. I am not satisfied in the circumstances of this case, and on the evidence now before me, that reasonable conditions could not have been crafted to address the Minister’s concerns. In the result, the decision of the Minister disallowing the NWMB authorization for a traditional hunt is quashed. It has not met the necessary standard of correctness. The Crown has failed to discharge the burden of justifying the decision under review. This matter is accordingly remitted back to the Minister for his further consideration.

MR. JUSTICE R.G. KILPATRICK

Nunavut Court of Justice

Dated at Iqaluit, Nunavut this 4th day of January, 2001.

Counsel for the Applicant: Dougald E. Brown

Douglas Garson: Counsel for the Respondent