Makivik Corporation v. Canada (Attorney General)

Makivik Corporation v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2021-09-21
Neutral citation
2021 FCA 184
File numbers
A-445-19, A-447-19, A-448-19
Notes
A correction was made on May 17, 2022 Reported Decision
Decision Content
Date: 20210921
Dockets: A-447-19 (lead file)
A-445-19
A-448-19
Citation: 2021 FCA 184
CORAM:
WEBB J.A.
LASKIN J.A.
MACTAVISH J.A.
BETWEEN:
MAKIVIK CORPORATION, THE GRAND COUNCIL OF THE CREES, and NUNAVIK MARINE REGION WILDLIFE BOARD
Appellants/Respondents
by cross-appeal
and
THE ATTORNEY GENERAL OF CANADA
Respondent/Appellant
by cross-appeal
and
NUNAVUT TUNNGAVIK INCORPORATED
Intervener
Heard by online video conference hosted by the Registry on June 7 and 8, 2021.
Judgment delivered at Ottawa, Ontario, on September 21, 2021.
REASONS FOR JUDGMENT BY:
LASKIN J.A.
CONCURRED IN BY:
WEBB JA.
MACTAVISH J.A.
Date: 20210921
Dockets: A-447-19 (lead file)
A-445-19
A-448-19
Citation: 2021 FCA 184
CORAM:
WEBB J.A.
LASKIN J.A.
MACTAVISH J.A.
BETWEEN:
MAKIVIK CORPORATION, THE GRAND COUNCIL OF THE CREES, and NUNAVIK MARINE REGION WILDLIFE BOARD
Appellants/Respondents
by cross-appeal
and
THE ATTORNEY GENERAL OF CANADA
Respondent/Appellant
by cross-appeal
and
NUNAVUT TUNNGAVIK INCORPORATED
Intervener
REASONS FOR JUDGMENT
LASKIN J.A.
Table Of Contents (by paragraph)
Para.
Introduction
1
The NILCA wildlife management regime
15
Principles and objective
16
The NMRWB’s composition and mandate
19
Decision-making criteria
23
Decision-making process
26
The decision-making process for SHB polar bears
29
The application for judicial review
46
Relief sought on appeal
51
Issues
55
Analysis
62
What are the principles applicable to the interpretation of modern treaties and how do they determine this Court’s approach to the review of the Minister’s decision? This includes the standard of appellate review and the standard of review applicable to the Minister’s decision.
62
(1) Modern treaty interpretation
62
(2) Appellate standard of review
64
(3) Standard of review of the Minister’s decision
69
Did the Minister give full regard to the integration of Nunavik Inuit knowledge of wildlife and wildlife habitat with knowledge gained through scientific research when making her decision?
88
Was the Minister’s approach to the Boards’ traditional knowledge study in accordance with NILCA and the honour of the Crown?
100
Does NILCA authorize the Minister’s reliance on a “cautious management approach” as justification for limiting Nunavik Inuit harvesting?
114
Does NILCA authorize the Minister to consider the politics of international trade and/or issues related to CITES [the Convention on International Trade in Endangered Species of Wild Flora and Fauna] when making her decision?
118
Was the Minister’s reliance on the 2014 voluntary agreement authorized by NILCA and in accordance with the honour of the Crown?
127
Was the Minister’s decision to vary the non-quota limitations established by the Boards authorized by NILCA? If yes, was it nonetheless unlawful?
140
Did the application judge commit reviewable error in granting Makivik’s motion to strike out certain portions of the evidence filed by the Attorney General?
147
Should this Court grant declaratory relief?
150
Proposed disposition
158
I. Introduction
[1] The Nunavik Inuit Land Claims Agreement (NILCA [*] ) is a modern treaty between the Nunavik Inuit, represented by the appellant Makivik Corporation, and the Government of Canada. It applies to the offshore region around northern Québec, northern Labrador and offshore northern Labrador. The rights that it grants to the Nunavut Inuit are constitutionally protected by section 35 of the Constitution Act, 1982.
[2] Among the many important provisions of NILCA is Article 5, which establishes a co-management regime for wildlife in the Nunavik Marine Region (NMR). This regime contemplates decision-making roles for both the Nunavik Marine Region Wildlife Board (NMRWB), established under NILCA, and federal and Nunavut Ministers. It also contemplates that in the operation of the regime, Nunavik Inuit approaches to wildlife management, and Nunavik Inuit traditional knowledge of wildlife and wildlife habitat, will be integrated with knowledge gained through scientific research.
[3] The species subject to this regime include the polar bear. Polar bears are of great cultural, nutritional, social, and economic significance for the Nunavik Inuit. They have harvested polar bears for thousands of years.
[4] This appeal arises from the decision of the Minister of the Environment and Climate Change Canada – the first of its kind by the Minister under NILCA – to vary a decision of the NMRWB. Acting in response to a request by a predecessor of the Minister, the Board had set an annual total allowable take (TAT) – the total number that can be lawfully harvested – of 28 bears for polar bears in the Southern Hudson Bay (SHB) management unit of the NMR. [†] In her decision, the Minister reduced the TAT to 23, and also, among other things, established certain non-quota limitations (NQLs) on harvesting that the NMRWB had rejected and rejected certain other NQLs that the NMRWB had established.
[5] Makivik brought an application for judicial review of the Minister’s decision in the Federal Court. As first constituted, the application sought both a declaration that the Minister’s decision was unauthorized or invalid, and an order quashing the decision and remitting the matter to the Minister to make a new decision. Makivik subsequently amended its notice of application to claim only declaratory relief. It raised a total of 10 issues questioning the Minister’s jurisdiction and the reasonableness or correctness of her decision. These included issues as to the role that Inuit traditional knowledge played – or, according to Makivik, should have played – in the Minister’s decision.
[6] In its argument in the Federal Court, the NMRWB, a respondent to Makivik’s application, also sought declaratory relief, though it did not commence its own application for judicial review. The declarations it sought overlapped to some degree with those sought by Makivik, but were cast in more general terms. In view of this overlap and the manner in which the parties had made their arguments, the application judge dealt with the issues as they had been identified by Makivik.
[7] The application judge dismissed the application (2019 FC 1297, Favel J.). He found fault with the Minister’s decision on one of the 10 issues raised by Makivik, that relating to NQLs. However, he exercised his discretion to decline to grant declaratory relief. He found among other things that to grant declaratory relief at the current stage of development of the wildlife management system would adversely affect the parties’ intention to improve the system, and would be premature. He also took into account the Supreme Court’s call, in First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58 at paras. 33, 60, for judicial forbearance from closely supervising the conduct of parties to modern treaties.
[8] Makivik, the Grand Council of the Crees (GCC) (which represents the Crees of Eeyou Istchee) and the NMRWB now appeal from the judgment of the application judge dismissing the application. Makivik submits that the application judge made errors of principle, of law, and of mixed fact and law in deciding the issues raised by its application for judicial review, and in declining to grant declaratory relief. It sets out a series of declarations that it submits this Court should grant.
[9] Both the GCC and the NMRWB also allege errors on the part of the application judge, and seek declaratory relief. The declarations that they claim are cast in terms different from, though they again in part overlap with, those sought by Makivik.
[10] The respondent, the Attorney General of Canada, cross-appeals from the granting by the application judge of a motion by Makivik to strike out a portion of an affidavit of Dr. Rachel Vallender, filed by the Attorney General. The motion was brought on the basis that the targeted portions of the affidavit set out new information that had not been available to the Minister when she made her decision, and was therefore inadmissible on judicial review. The Attorney General submits that the evidence struck out was relevant to the exercise of the Federal Court’s discretion (and potentially also this Court’s discretion) whether to grant declaratory relief.
[11] For the reasons that follow, I would allow the appeal in part, grant declaratory relief, and dismiss the cross-appeal.
[12] In explaining why I reach these conclusions, I will first review the wildlife management regime set out in NILCA, and the decision-making process for which it provides. I will then consider in turn the issues raised by the parties.
[13] Before proceeding further, I should mention two additional points of context. First, the Minister’s decision in issue in this proceeding was made in relation to both the decision of the NMRWB under NILCA and the identical decision of the Eeyou Marine Region Wildlife Board (EMRWB) under the parallel wildlife co-management regime set out in the Eeyou Marine Region Land Claims Agreement (EMRLCA). EMRLCA is a modern treaty between the Crees of Eeyou Istchee and the Government of Canada, which covers an area off the Quebec shore in the eastern James Bay and southern Hudson Bay. Given the nature of the relationship between the two regimes and the decisions of the two Boards, as well as the scope of the Minister’s decision, I will follow the lead of the parties in referring almost exclusively to the provisions of NILCA and the decision made under it. The conclusions that apply under NILCA also apply under EMRLCA.
[14] Second, the Minister of the Environment, Government of Nunavut, also rendered a decision varying the decision of the NMRWB and the EMRWB on substantially the same terms as the federal Minister, under provisions of NILCA and the EMRLCA very similar to those invoked by the federal Minister. Makivik has commenced an application for judicial review in the Nunavut Court of Justice of the Nunavut Minister’s decision. Counsel for Makivik advise that that application is being held in abeyance pending the outcome of this proceeding. The Attorney General of Nunavut was an intervener in the Federal Court, but does not appear in this appeal.
II. The NILCA wildlife management regime
[15] NILCA came into force in 2008. As mentioned above, Article 5 deals with wildlife management. It is one of many topics that NILCA addresses.
A. Principles and objective
[16] Article 5 begins with statements of the principles that it recognizes and reflects, as well as its objective. By section 5.1.2, these principles include that
“Nunavik Inuit are traditional and current users of wildlife and other resources of the NMR and have developed particular knowledge and understanding of the region and resources” (paragraph 5.1.2(c));
“there is a need for an effective system of wildlife management that respects Nunavik Inuit harvesting rights and priorities” (paragraph 5.1.2(f));
“the wildlife management system and the exercise of Nunavik Inuit harvesting rights are governed by and subject to the principles of conservation” (paragraph 5.1.2(h));
“Nunavik Inuit shall have an effective role in all aspects of wildlife management” (paragraph 5.1.2(i)); and
“Government [defined in section 1.1 as “the Government of Canada or the Government of Nunavut, or both, as the context requires”] has ultimate responsibility for wildlife management and agrees to exercise this responsibility in the NMR in accordance with the provisions of [Article 5]” (paragraph 5.1.2(j)).
[17] The objective of Article 5 is stated in section 5.1.3 to be to create a wildlife management system for the NMR that, among other things,
“defines and protects Nunavik Inuit harvesting rights” (paragraph 5.1.3(a));
“promotes the long-term economic, social and cultural interests of Nunavik Inuit” (paragraph 5.1.3(d));
“recognizes the value of Nunavik Inuit approaches to wildlife management and Nunavik Inuit knowledge of wildlife and wildlife habitat and integrates those approaches with knowledge gained through scientific research” (paragraph 5.1.3(f)); and
“establishes the NMRWB to make decisions pertaining to wildlife management” (paragraph 5.1.3(i)).
[18] Sections 5.1.4 and 5.1.5 elaborate on the content and application of the principles of conservation. By section 5.1.4, “[t]he principles of conservation will be interpreted and applied giving full regard to the principles and objective outlined in sections 5.1.2 and 5.1.3 and the rights and obligations set out in this Article.” Section 5.1.5 states that for the purposes of Article 5, the principles of conservation are:
(a) the maintenance of the natural balance of ecological systems within the NMR;
(b) the maintenance of vital, healthy wildlife populations capable of sustaining harvesting needs as defined in [Article 5];
(c) the protection of wildlife habitat; and
(d) the restoration and revitalization of depleted populations of wildlife and wildlife habitat.
B. The NMRWB’s composition and mandate
[19] Part 5.2 of NILCA establishes the NMRWB as an institution of public government. It consists of seven members: three appointed by Makivik, two by federal ministers, one by a Nunavut minister, and a chairperson chosen jointly by a federal and a Nunavut minister from nominations provided by the other members.
[20] The mandate of the NMRWB is set out in section 5.2.3. According to this provision, the NMRWB is to be “the main instrument of wildlife management in the NMR and the main regulator of access to wildlife and have the primary responsibility in relation thereto in the manner described in [NILCA].” Section 5.2.3 goes on to specify the functions of the NMRWB as including, among other things,
with an exception not relevant here, “establishing, modifying or removing levels of total allowable take for a species, stock or population of wildlife in accordance with sections 5.2.10 and 5.2.11” (paragraph 5.2.3 (a)); and
“establishing, modifying or removing non-quota limitations [defined in section 5.1.1 as “a limitation of any kind, except a total allowable take …]” in accordance with sections 5.2.19 to 5.2.22 (paragraph 5.2.3 (e)).
[21] Section 5.2.10 states that subject to the terms of Article 5, and to one exception (again not relevant here), the NMRWB shall have “sole authority to establish or modify or remove from time to time as circumstances require levels of total allowable take or harvesting for all species in the NMR.” By section 5.2.19, the NMRWB has “sole authority to establish, modify or remove, from time to time and as circumstances require, non-quota limitations on harvesting in the NMR.”
[22] Part 5.5 of NILCA addresses decisions made under Article 5. Section 5.5.1 states that judicial review of decisions of the NMRWB shall be available on the grounds set out in the Federal Courts Act, R.S.C. 1985, c. F-7, at the motion of a person personally aggrieved or materially affected by the decision. Section 5.5.2 is a privative clause barring all other forms of review of the NMRWB’s decisions. There are no similar provisions applicable to decisions of the Minister. However, the parties agree that her decisions are subject to judicial review.
C. Decision-making criteria
[23] Part 5.5 includes provisions setting criteria for decision-making applicable to both the NMRWB and the Minister. Key among them is paragraph 5.5.3(a), which stipulates that “[d]ecisions of the NMRWB or a Minister made in relation to Parts 5.2 and 5.3 [which deal with harvesting] shall restrict or limit Nunavik Inuit harvesting only to the extent necessary […] to effect a conservation purpose in accordance with sections 5.1.4 and 5.1.5.”
[24] Subsection 5.5.4.1 is also important in considering the issues raised by the parties as to the Minister’s entitlement to consider certain agreements. It reads as follows:
Certain populations of wildlife found in the NMR cross jurisdictional boundaries and are harvested outside the NMR by persons resident elsewhere. Accordingly, the NMRWB and the Minister in exercising their responsibilities in relation to section 5.2.3, paragraphs 5.2.4 (b), (c), (d), (f), (h), and sections 5.2.10 to 5.2.22, 5.3.8, 5.3.10 and 5.3.11 shall also take account of harvesting activities outside the NMR and the terms of domestic interjurisdictional agreements or international agreements pertaining to such wildlife.
[25] Section 5.1.1 defines “international agreement” as “a wildlife agreement between the Government of Canada and one or more foreign states or associations of foreign states.”
D. Decision-making process
[26] By section 5.5.6, all decisions of the NMRWB in relation to certain specified matters within Government of Canada (as opposed to Nunavut) jurisdiction, including establishing levels of TAT and establishing NQLs, are to be made following the decision-making process set out in sections 5.5.7 to 5.5.13.
[27] These provisions establish a two-way, conversation-like process (see Nacho Nyak Dun at para. 55) that begins with the NMRWB sending the Minister an initial decision, which is not to be made public (section 5.5.7). The Minister must then either accept the decision and notify the NMRWB in writing of its acceptance, or reject it, and “give the NMRWB reasons in writing for so doing” (section 5.5.8). There is no provision for variation at this stage.
[28] Where the Minister rejects the initial decision, the NMRWB must reconsider the decision in light of the Minister’s reasons, and then make and forward to the Minister a final decision, which it may make public (section 5.5.11). The Minister may then accept, reject or vary the final decision, and must again provide reasons in the event of a rejection or variation (section 5.5.12). Where the Minister decides to accept or vary the final decision, the Minister is to “proceed forthwith to do all things necessary to implement the final decision or the final decision as varied” (section 5.5.13).
III. The decision-making process for SHB polar bears
[29] By section 5.2.18 of NILCA, the NMRWB is to conduct its review for various species, stocks or populations from time to time as requested by, among others, the appropriate Minister.
[30] In January 2012, following a significant increase in the polar bear harvest in 2010-2011, and in response to a letter from the then chair of the NMRWB expressing concern that other processes were pre-empting the NMRWB’s mandate, the then federal Minister of the Environment asked the NMRWB to establish a level of TAT for each subpopulation of polar bears in the NMR, and to work toward the development of a management plan. There are three subpopulations of polar bears in the NMR: Davis Strait, Foxe Basin and SHB. The NMRWB decided to focus first on the SHB management unit. Not only Nunavik Inuit, but also Nunavut Inuit and the Crees of Eeyou Istchee, harvest polar bears in SHB.
[31] After a delay pending completion of an aerial survey of the polar bear population, the NMRWB convened a three-day public hearing in Inukjuak, Quebec in February 2014, and invited pre-hearing written submissions. More than a dozen parties filed written submissions, and most of these parties also made oral submissions at the hearing. The parties included government departments, aboriginal organizations, environmental non-governmental organizations, local Inuit hunting groups, and individual Inuit hunters.
[32] Following the hearing, the NMRWB concluded that it required further information from users of the resource before it could make a decision. It commissioned a study of Inuit traditional knowledge (ITK) of polar bears, which entailed interviewing elders, hunters, and local officials in three Nunavik communities. The results of the study were summarized in a seven-page table. While the NMRWB retained a third party to prepare a final report, only the summary was available at the time of the decisions of the NMRWB and the Minister in relation to the SHB subpopulation. The final report did not become available until May 2018; it was not part of the record before the application judge, and is not before this Court.
[33] The NMRWB proceeded to make its decision and forward it to the Minister. Its decision set the TAT for SHB polar bears at 28 bears per year, a level that it saw as representing the low end of estimated past annual harvests, and as having allowed the population to remain relatively stable. It concluded that the Crees of Eeyou Istchee would be permitted to harvest at least one polar bear of the 28. It also decided that there should be no requirement of sex-selective harvesting, but set out nine other NQLs.
[34] In explaining its decision on the TAT, the NMRWB stated that, while further work was required to improve the way by which ITK is brought together with knowledge gained by scientific research for decision-making, it had made efforts to consider knowledge from all sources. This included the available ITK. It added that based on the information it had gathered, it had concluded that the SHB polar bear subpopulation continued to be relatively healthy, despite environmental changes, and that historical harvest levels had been sustainable. It noted that while some scientific data indicated that polar bears’ body condition was deteriorating, Inuit had not observed a similar trend.
[35] The NMRWB also set out the basis for its decision not to require sex-selective harvesting. It noted among other things that according to harvest records, Nunavik Inuit had historically harvested SHB polar bears at a 2:1 (male:female) ratio, so that legislating that requirement would be contrary to the “only to the extent necessary” provision of NILCA section 5.5.3.
[36] In listing the nine NQLs that its decision would establish, the NMRWB advised that a majority of them had been adapted from the 1984 agreement on polar bear hunting between the Quebec government and the Nunavik Fishing and Trapping Association and from recent voluntary agreements.
[37] The Deputy Minister of Environment Canada (acting for the Minister during an electoral period), rejected the NMRWB’s decision, and in particular the 28-bear TAT, under paragraph 5.5.3(a) of NILCA (quoted in part above at paragraph 23). In his letter advising the NMRWB of the rejection, the Deputy Minister expressed the view that a regional TAT of 28 polar bears was likely not sustainable. He went on to state that “a maximum sustainable harvest of 4.5 percent should not be exceeded as it could cause the population to decline.”
[38] The letter also stated that in reconsidering its decision, the NMRWB should include a sex-selective harvest of two males to one female. In addition, the letter asked that a voluntary agreement on harvesting levels that had been concluded in 2014 be considered in the reconsideration process, on the basis that it was a “domestic interjurisdictional agreement” within the meaning of NILCA subsection 5.5.4.1 (quoted above at paragraph 24). The Deputy Minister’s letter made no mention of ITK or of any reservations concerning it. The letter also said nothing about the nine NQLs that the NMRWB had included in its decision.
[39] In accordance with the process set out in NILCA, the NMRWB reconsidered its decision in light of the written reasons provided by the Deputy Minister, and issued and sent to the Minister its final decision.
[40] The decision re-affirmed the TAT of 28 bears, which it again described as at the low-end of historical Nunavik Inuit harvests. It also rejected the recommendation for a sex-selective harvest, which, it stated, would go against traditional Inuit values, upset the natural balance of wildlife populations, and tend to remove the fittest breeders. The decision referred in some detail to the available ITK. It disagreed with the characterization of the 2014 voluntary agreement as a “domestic interjurisdictional agreement,” and noted that, in any case, the agreement was expressly entered into “without prejudice to the decision-making processes defined in the applicable Land Claims Agreements.” With respect to NQLs, it stated that “[b]ecause neither government offered concerns about the non-quota limitations proposed initially, the Boards [had] maintained them, in their entirety, within the final decision.”
[41] After the NMRWB had rendered its final decision but before the Minister had rendered hers, Environment and Climate Change Canada (ECCC) officials met with the NMRWB and raised for the first time some of their concerns relating to the NQLs included in the Board’s final decision. They followed up the meeting by sending to the NMRWB a chart setting out their concerns. The NMRWB responded in a letter to ECCC stating that it was “greatly concerned that this exchange is coming after the final decision was issued,” and that it was especially disappointing when ECCC had the opportunity to raise these issues through its technical advisors during the Boards’ deliberations, but failed to do so.
[42] The Minister varied the NMRWB’s final decision. She reduced the annual TAT from 28 to 23, of which one was expected to be allocated to the Cree of Eeyou Istchee. Further, while she accepted certain NQLs included in the NMRWB’s final decision, she also added others – most notably, the requirement of a sex-selective harvest of one female for two males – and rejected or varied four. It was this decision of the Minister, rendered in October 2016, that was the subject of the application for judicial review.
[43] In her letter accompanying the decision, the Minister stated that she would be open to reconsidering the total allowable take when new survey results and the complete ITK study became available. In the concluding paragraph, she stated that for future decisions, her Department would “work closely with the [Boards] through technical advisors to ensure that they are informed of concerns earlier in the process, and to enhance opportunities for the use of traditional knowledge in the management of polar bears.”
[44] The Minister advised in the letter that her reasons for varying the TAT and NQLs were described in an analysis document, which she also provided. That document explained that the decision “[took] into account that there are differences between the available scientific information and Traditional Knowledge, that new science and Traditional Knowledge [would] be available within a year or two, and that it [was] important to avoid actions that could jeopardize trade in polar bear parts.” The decision also recognized, the document stated, “the need to exercise caution so as to ensure a sustainable harvest, and the fact that once new information [was] available, the TAT [could] be re-assessed.”
[45] The document went on to state that the TAT of 23 bears established a harvest of close to 4.5%, “which aligns with the widely accepted sustainable removal level.” It stated further that the available information had been weighed carefully in determining the varied TAT, and that the TAT set out in the NMRWB’s final decision was “likely not sustainable.” It noted that there were some similarities and some differences as between ITK and scientific data in relation to subpopulation size and body condition of the polar bears in SHB. With respect to the NQL of a sex-selective harvest, it stated among other things that the limitation was consistent with polar bear management regimes across Canada and “consistent with a cautionary approach.”
IV. The application for judicial review
[46] As noted above, Makivik initially sought, in its notice of application for judicial review of the Minister’s decision to vary, both declaratory relief and an order quashing the decision and remitting the matter for redetermination. In amending its notice of application, Makivik abandoned the claim for quashing relief and claimed declaratory relief only, based on the 10 issues that it formulated and argued before the application judge. As also noted above, the application judge agreed with Makivik on one of those issues – whether the Minister’s decision to establish a sex-selective harvest and vary other NQLs decided by the NMRWB was unreasonable – but declined to grant declaratory relief.
[47] Rather than include here a more detailed overall review of the application judge’s decision, I will discuss his conclusions and reasoning below on an issue-by-issue basis, as they relate to the issues on appeal.
[48] I should, however, mention at this juncture that it was in the course of the application, when the record before the Minister when she made her decision was disclosed, that the appellants learned of what they assert were the “true reasons” for the Minister’s decision to vary the NMRWB’s final decision – that Government officials in ECCC had decided that they could not rely on, or had to give minimal weight to, the ITK that was before the NMRWB – and the Minister’s failure to disclose those reasons.
[49] The record contained a memorandum to the Minister with an appendix setting out for the Minister the rationale for varying the NMRWB’s final decision. The appendix raised certain methodological and other issues relating to the available ITK. It commented on the two sources of ITK considered by the NMRWB in the following terms:
Unfortunately, both are provided without needed context, and this makes it difficult for the Government of Canada and Nunavut to consider this information alongside recent scientific results. For example, the public documents describing TK information contain no information about the number of people interviewed or about the spatial scale at which the observations were made. It is therefore difficult to determine whether this is a consensus position of all knowledge holders and the geographic coverage this TK pertains to.
[50] In referring to the NMRWB’s report that traditional harvest levels were higher than previously assumed and documented, the memorandum noted that “[t]he lack of an official reporting system in Quebec until recently [made] it challenging to determine the historical rates of take accurately from this subpopulation by Nunavik Inuit.” It went on to state that “[u]nderstanding what science or TK can tell us about the status of a subpopulation requires a more detailed assessment of the assumptions and biases of both scientific and TK observations.” Referring to differences in the assessment of polar bears’ body conditions by scientific studies and by TK, the memorandum stated that “the conclusions that can be drawn from these differing observations require more detailed analysis. These conflicting conclusions, however, are a source of uncertainty that supports a cautious approach to management decisions for conservation.”
V. Relief sought on appeal
[51] Makivik’s framing of the issues and the declaratory relief sought has evolved to some extent, at least in form, since the hearing in the Federal Court. On this appeal, it now asks this Court to set aside the judgment of the Federal Court and grant six declarations, based on the failures on the part of the Minister that it asserts. For two of the proposed declarations, alternatives are also provided. I propose to examine the issues largely using the framing adopted by Makivik in its memorandum of fact and law in this appeal.
[52] Though they did not file their own applications for judicial review, the appellants the GCC and the NMRWB also claim declaratory relief, in terms that, again, are different from, though they overlap to some degree with, the terms of the relief claimed by Makivik. For example, the GCC seeks among other things a declaration “that the Minister disregarded the nation-to-nation partnership established by the NILCA for the co-management of wildlife in the NMR,” and the NMRWB seeks among other things a declaration “that the Minister may only ‘reject’ or ‘vary’ a decision by the [NMRWB] to the extent that said decision is unreasonable.” Makivik’s claim encompasses neither of these broad declarations. The Attorney General objects to the other appellants seeking relief outside the bounds of that claimed by Makivik.
[53] I agree that they are not entitled to do so. The scope of an application for judicial review is determined by the applicant in its notice of application, which is to contain both “a precise statement of the relief sought,” and “a complete and concise statement of the grounds intended to be argued”: Federal Courts Rules, S.O.R./98-106, rule 301. A respondent to an application for judicial review – like the GCC and the NMRWB in the Federal Court here – must file its own application if it wishes to seek review of the decision on grounds different from those put forward by the applicant: Larsson v. Canada, [1997] F.C.J. No. 1044 (C.A.) at paras. 27-28, 216 N.R. 315; Systèmes Equinox Inc. v. Canada (Public Works and Government Services), 2012 FCA 51 at para. 12.
[54] Having had no entitlement at first instance to raise grounds beyond those raised by Makivik, or to seek relief beyond that claimed by Makivik, these appellants can hardly go beyond those grounds and claims for relief on appeal, and assert that the application judge erred in denying them remedies they did not properly seek. The general rule that new issues may not be raised on appeal applies: Shoan v. Canada (Attorney General), 2020 FCA 174 at para. 13. However, like the application judge (see paragraph 75 of his reasons), I will consider the submissions of the GCC and the NMRWB as they relate to the substance of the issues framed and relief sought by Makivik.
VI. Issues
[55] I now turn to the issues raised by Makivik, at paragraph 42 of its memorandum – issues that underlie its claims for corresponding declaratory relief, set out at paragraph 140 of its memorandum – and to the issue raised by the Attorney General’s cross-appeal. I will first list these issues, and then deal with them, and a further issue that arises, in turn.
What are the principles applicable to the interpretation of modern treaties and how do they determine this Court’s approach to the review of the Minister’s decision? This includes the standard of appellate review and the standard of review applicable to the Minister’s decision.
Did the Minister give full regard to the integration of Nunavik Inuit knowledge of wildlife and wildlife habitat with knowledge gained through scientific research when making her decision?
Was the Minister’s approach to the Boards’ traditional knowledge study in accordance with NILCA and the honour of the Crown?
Does NILCA authorize the Minister’s reliance on a “cautious management approach” as justification for limiting Nunavik Inuit harvesting?
Does NILCA authorize the Minister to consider the politics of international trade and/or issues related to CITES [the Convention on International Trade in Endangered Species of Wild Flora and Fauna] when making her decision?
Was the Minister’s reliance on the 2014 voluntary agreement authorized by NILCA and in accordance with the honour of the Crown?
Was the Minister’s decision to vary the non-quota limitations established by the Boards authorized by NILCA? If yes, was it nonetheless unlawful?
Did the application judge commit reviewable error in granting Makivik’s motion to strike out certain portions of the evidence filed by the Attorney General?
[56] To this list I would add a further issue, which arises directly from the relief sought by Makivik:
Should this Court grant declaratory relief?
[57] In approaching these issues, I am mindful, like the application judge, of the Supreme Court’s directions in Nacho Nyak Dun as to the appropriate judicial role in disputes arising under modern treaties. The Court set out these directions as follows (Nacho Nyak Dun at paras. 33, 60, citations omitted):
Modern treaties are intended to renew the relationship between Indigenous peoples and the Crown to one of equal partnership […]. In resolving disputes that arise under modern treaties, courts should generally leave space for the parties to govern together and work out their differences. Indeed, reconciliation often demands judicial forbearance […]. It is not the appropriate judicial role to closely supervise the conduct of the parties at every stage of the treaty relationship. This approach recognizes the sui generis nature of modern treaties, which […] may set out in precise terms a co-operative governance relationship.
[…]
The court’s role [in a judicial review involving a modern treaty dispute] is not to assess the adequacy of each party’s compliance at each stage of a modern treaty process. Rather, it is to determine whether the challenged decision was legal, and to quash it if it is not. Close judicial management of the implementation of modern treaties may undermine the meaningful dialogue and long-term relationship that these treaties are designed to foster. Judicial restraint leaves space for the parties to work out their understanding of a process – quite literally, to reconcile – without the court’s management of that process beyond what is necessary to resolve the specific dispute.
[58] I am also mindful of the caveat the Court set out (Nacho Nyak Dun at para. 34):
That said, under s. 35 of the Constitution Act, 1982, modern treaties are constitutional documents, and courts play a critical role in safeguarding the rights they enshrine. Therefore, judicial forbearance should not come at the expense of adequate scrutiny of Crown conduct to ensure constitutional compliance.
[59] The application judge took these directions into account in deciding whether to grant declaratory relief. In my view, they may also come into play at an earlier stage, in determining the extent to which the Court should address the merits of the issues raised by the parties.
[60] Both remedies on judicial review, and undertaking judicial review in the first place, are discretionary: Strickland v. Canada (Attorney General), 2015 SCC 37 at paras. 37-38; Bessette v. British Columbia (Attorney General), 2019 SCC 31 at para. 35. The categories of cases in which courts may exercise the discretion not to undertake judicial review are not closed. In my view, they include cases involving disputes under modern treaties, in which the Supreme Court has directed judicial forbearance and restraint. For a court to hear and decide a dispute under a modern treaty on the merits, and then exercise its discretion only at the remedy stage, risks sapping the Supreme Court’s directions to practise judicial forbearance and restraint of much of their force. Even where the reviewing court chooses not to grant declaratory relief, its reasons for judgment on the merits will be binding on the parties, the administrative decision-maker, and (depending on the judicial hierarchy) other courts: Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100 at paras. 105-106.
[61] However, in this case, it does not appear that any of the parties raised before the application judge, or that he otherwise considered, the possibility of declining altogether to undertake judicial review, in the exercise of judicial forbearance. Nor was that possibility raised before this Court. In these circumstances, I propose to consider the issues raised before us on their merits, leaving the question of judicial forbearance to be addressed in considering remedies.
VII. Analysis
A. What are the principles applicable to the interpretation of modern treaties and how do they determine this Court’s approach to the review of the Minister’s decision? This includes the standard of appellate review and the standard of review applicable to the Minister’s decision.
(1) Modern treaty interpretation
[62] In its recent jurisprudence, the Supreme Court has set out certain principles of modern treaty interpretation. It summariz