Makivik Corporation v. Canada (Environment and Climate Change)

Makivik Corporation v. Canada (Environment and Climate Change)
Court (s) Database
Federal Court Decisions
Date
2019-10-30
Neutral citation
2019 FC 1297
File numbers
T-1994-16
Notes
Digest
Decision Content
Date: 20191030
Docket: T-1994-16
Citation: 2019 FC 1297
Ottawa, Ontario, October 30, 2019
PRESENT: The Honourable Mr. Justice Favel
BETWEEN:
MAKIVIK CORPORATION
Applicant
and
THE HONOURABLE CATHERINE MCKENNA, IN HER CAPACITY AS MINISTER OF ENVIRONMENT AND CLIMATE CHANGE AND THE ATTORNEY GENERAL OF CANADA, IN HER CAPACITY AS THE LEGAL MEMBER OF THE QUEEN'S PRIVY COUNCIL CHARGED WITH THE REGULATION AND CONDUCT OF ALL LITIGATION AGAINST THE CROWN AND NUNAVIK MARINE REGION WILDLIFE BOARD AND EEYOU MARINE REGION WILDLIFE BOARD AND THE GRAND COUNCIL OF THE CREES
Respondents
and
NUNAVUT TUNNGAVIK INCORPORATED
and
ATTORNEY GENERAL OF NUNAVUT
Interveners
JUDGMENT AND REASONS
I. Introduction
[1] The Applicant, Makivik Corporation [Makivik], is seeking judicial review under section 18.1 of the Federal Courts Act, RSC, 1985, c F-7, against the Minister of Environment and Climate Change Canada’s [Minister] decision dated October 19, 2016. This decision varied the Nunavik Marine Region Wildlife Board’s [NMRWB] and the Eeyou Marine Region Wildlife Board’s [EMRWB] final decision regarding the Total Allowable Take [TAT] and non-quota limitations for the harvesting of Southern Hudson Bay [SHB] polar bears within the Nunavik Marine Region [NMR], pursuant to section 5.5.12 of the Nunavik Inuit Land Claims Agreement [NILCA] and section 15.3.7 of the Eeyou Marine Region Land Claims Agreement Act [EMRLCA].
[2] As recognized by all the parties, NILCA is a constitutionally protected modern treaty which fosters reconciliation. In First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58 [Nacho Nyak Dun], Justice Karakatsanis, writing for the Supreme Court of Canada, stated at para 1:
As expressions of partnership between nations, modern treaties play a critical role in fostering reconciliation. Negotiating modern treaties, and living by the mutual rights and responsibilities they set out, has the potential to forge a renewed relationship between the Crown and Indigenous peoples.
[3] This application primarily concerns Article 5, which establishes a co-management regime that seeks to integrate Inuit knowledge and approaches to wildlife management with Western scientific knowledge. The parties have all made it clear that the conservation and state of polar bears is fundamentally important to the Inuit, other indigenous people, and society at large. NILCA provides a mechanism for considering various interests and factors toward managing this precious resource. There is no doubt that the matter is complex—Makivik’s own procedural approach and characterization of the issues reflect the complexity of the NILCA process. In their submissions and in the included affidavits, the parties have all noted the difficult nature of this matter, which involves an animal that roams across territorial and provincial boundaries, and which involves two different Inuit communities from different jurisdictions of Canada and other Indigenous governments. All of the above-listed parties have an interest in the resource.
[4] Article 5 of NILCA also contains the decision-making process that determines how conservation decisions are made. In theory, and based on a review of the extensive provisions of Article 5, the decision-making process is straightforward. However, in reality and since this was the inaugural process for such a decision under NILCA, understandable delays occurred and issues arose between the parties, leading to this proceeding.
[5] Makivik submits that this case really is not about polar bears, nor is it about the duty to consult. It submits that this case is about the implementation of Inuit treaty rights under NILCA. Makivik also claims that the Minister’s October 19, 2016 decision was neither correct nor reasonable. It does not seek to quash the Minister’s decision. Rather, Makivik seeks several declarations concerning the Minister’s decision.
[6] For the following reasons, the application for judicial review is dismissed.
II. Background
[7] As this matter involves many parties and a complicated decision-making process, I find it appropriate to provide a complete account of the background.
A. The history of polar bear harvesting
[8] For the Inuit, the polar bear, or “Nanuq” in Inuktitut, is a powerful and meaningful being. Polar bears are prominent in their culture, as they are highly valued and appreciated for their meat and fur. The Inuit have hunted polar bears as a source of sustenance for thousands of years, and many Inuit communities continue to rely on polar bears for both social and economic purposes.
[9] There are nineteen different subpopulations of polar bears that have been divided according to specific geographical zones. Most of these subpopulations are found within the Territory of Nunavut. The present application addresses only one out of nineteen of these subpopulations: SHB polar bears within the NMR.
[10] Recognizing that the Inuit hunt SHB polar bears as a form of necessity, the Inuit of Nunavut have long participated in a management scheme that establishes a legal framework, through quota systems, for the harvesting of polar bears. For instance, the Nunavut Land Claims Agreement, SC 1993, c 29 provides rights and responsibilities to Hunters and Trappers Organizations [HTO] for the harvesting of polar bears. Each regional wildlife organization establishes a total allowable harvest for species, such as polar bears, and the HTOs lead their communities by managing and implementing harvesting rules amongst their members. The Nunavik Inuit of Quebec [Nunavik Inuit] have had a similar quota system which has set out the minimum level of polar bear harvest since the inauguration of the James Bay and Northern Quebec Agreement of 1975, as discussed in Mr. Alaku’s affidavit.
[11] From the 1970s until 2011, the quotas had remained the same for Nunavik Inuit. However, in 2010-2011, there was a significant increase in polar bear harvesting. This caused many organizations, including Makivik, to hold a meeting in June 2011 to remedy this upswing in harvesting through a voluntary agreement. Consequently, the 2011 voluntary agreement came into effect on September 21, 2011. It contained a fixed quota for each of the communities involved, amounting to a total of 60 polar bears per year that could be harvested as follows: 26 polar bears for Nunavik Inuit, 25 for Nunavut Inuit, 4 for Cree of Eeyou Istchee and 5 for Cree Nations of Ontario.
[12] Mr. Alaku states that prior to the Minister’s decision “there has never been a quota or upper limit on the number of polar bears that Nunavik Inuit are permitted to take”. As Makivik’s counsel stated, “Up until the decision of the Minister at issue in these proceedings, there had never been any legally enforceable quota on Nunavik Inuit harvesting of polar bears”.
B. The Applicant
[13] The Applicant, Makivik, is the legal representative of Nunavik Inuit. Makivik is a non-profit organization, established in 1978 under the James Bay and Northern Quebec Agreement of 1975 and NILCA. Its primary role is to administer the lands of the Inuit, as well as to protect the rights, interests and financial compensation provided by the aforementioned agreements. Makivik has played a significant role in the inauguration and expansion of Nunavik. Makivik is also involved politically, culturally, and economically in various projects dealing with modern aboriginal treaties, governments, and other Inuit.
C. The Respondents
(1) The NMRWB and the EMRWB
[14] The Respondents, NMRWB and EMRWB [the Boards], are the main instruments of wildlife management in the NMR (Section 5.2.3 of NILCA) and the Eeyou Marine Region [EMR]. Pursuant to section 5.2.1 of NILCA, the NMRWB has a composition of seven members to be appointed as follows: Makivik appoints three members, the federal Minister responsible for fish and marine mammals and the federal Minister responsible for the Canadian Wildlife Service each appoint one member, and the Government of Nunavut Minister responsible for wildlife appoints one member. Together, the parties also elect one chairperson. Under section 5.2.2 of NILCA, Makivik and the respective Governments (Canada and Nunavut) also have the right to have technical advisors to attend all meetings as non-voting observers.
[15] Created under NILCA, the NMRWB studies both Inuit traditional knowledge [ITK] and Western science throughout its decision-making process. The EMRWB was formed under EMRLCA. The EMRWB did not present written submissions as it chose not to appear in the present matter.
[16] Makivik recognizes the tension between indigenous knowledge and management of resources and government management of resources through reliance on science. Makivik submits that this tension is bridged in NILCA through the creation of the NMRWB and by the principles of conservation that guide it.
(2) The Grand Council of the Crees (Eeyou Istchee)
[17] The Respondent, the Grand Council of the Crees [Cree Respondent], is a non-profit organization that aims to represent and defend the interests of the Eeyou Itschee residing in eastern James Bay and southeastern Hudson Bay.
(3) The Attorney General of Canada
[18] The Respondent, the Attorney General of Canada [AG of Canada], is the legal representative of the Minister. Pursuant to the process established in sections 5.5.6 to 5.5.13 of NILCA, the Minister can accept, reject or vary the Boards’ final decisions and provide reasons for doing so.
D. The Interveners
(1) Nunavut Tunngavik Incorporated
[19] The Intervener, Nunavut Tunngavik Incorporated [NTI], is an organization that represents the Inuit of Nunavut. NTI continues to play an active role in ensuring that all parties involved, including the Government of Canada and the Government of Nunavut, implement the Nunavut Land Claims Agreement.
(2) The Attorney General of Nunavut
[20] The Intervener, the Attorney General of Nunavut [AG of Nunavut], represents the Minister of Environment of Nunavut who can accept, reject or vary the Boards’ final decision in accordance with sections 5.5.14 to 5.5.21 of NILCA.
[21] The AG of Nunavut presented arguments asking this Court to decline the granting of declaratory relief sought. The Intervener relies on Borowski v Canada (Attorney General), [1989] 1 SCR 342 [Borowski] in order to submit that the case is moot under the initial phase of a two-step analysis for the doctrine of mootness (no live controversy). In the event that this Court concludes that the case is not moot, the AG of Nunavut argues that the Court reserves the right to exercise its discretion upon judicial review and should, therefore, decide not to grant declaratory relief. The Intervener AG of Nunavut also submits that it is highly likely that future decisions made by the NMRWB and the EMRWB regarding the Foxe Basin and Davis Strait polar bear within the NMR, or other species, become the subject of judicial review. The Court must therefore act accordingly in order to allow the NMRWB to have the opportunity to interpret NILCA in the future. By declining to grant relief, it is submitted that the parties involved would be more open “to govern together and work out their differences” and “to work out their understanding of a process – quite literally, to reconcile – without the court’s management of that process”: Nacho Nyak Dun at paras 33, 60.
[22] The Intervener AG of Nunavut contends that the case is moot as “there is no longer a concrete legal dispute” regarding the Minister’s decision. The AG of Nunavut notes that Makivik is no longer asking this Court to quash the Minister’s decision because Makivik re-amended its application for judicial review by replacing the relief it sought with declaratory relief.
[23] The Intervener AG of Nunavut also notes that Makivik submitted a similar judicial review before the Nunavut Court of Justice. In the event that this Court renders its decision on the present matter, the Intervener argues that the Federal Court decision is not binding on the Nunavut Superior Court of Justice.
E. NILCA and EMRLCA
[24] NILCA came into force on July 10, 2008. On December 1, 2006, Nunavik Inuit and the Government of Canada became signatories of the agreement. NILCA establishes principles on Nunavik Inuit’s harvesting rights in the NMR, as well as the Minister’s right to intervene in certain circumstances. With NILCA, Nunavik Inuit agree to exchange their aboriginal rights and title in the areas in question for treaty rights. NILCA also includes principles of conservation, as well as the implementation of a TAT and non-quota limitations for the NMR in recognition of Cree and Inuit rights in the overlap area.
[25] The NMR comprises vast areas of lands and waters within the boundary found in Schedule 3-2 of NILCA. Pursuant to section 3.2 of NILCA, the NMR includes areas of equal use and occupancy with the Nunavut Inuit, and the overlap area is equally used and occupied by the Cree of Eeyou Itschee. The coordination of the overlap area is addressed in Article 28 of NILCA and in the Cree/Inuit Offshore Overlap Agreement.
[26] EMRLCA was signed by the Cree of Eeyou Istchee and the Government of Canada on July 7, 2010 and came into effect on February 15, 2012. This modern treaty covers the EMR area adjacent to Quebec.
F. Convention on International Trade in Endangered Species of Wild Flora and Fauna
[27] Ratified in 1975, the Convention on International Trade in Endangered Species of Wild Flora and Fauna [CITES] is an international treaty which protects the trade of certain species of wild animals and plants from over-exploitation. In order to do so, CITES emphasizes the importance of international cooperation. CITES contains Appendices that regulate the international trade in specimens of certain species enlisted in an Appendix. Polar bears are currently part of Appendix II of CITES. This means that, “[t]he export of any specimen of a [polar bear] shall require the prior grant and presentation of an export permit”.
G. The 2014 Voluntary Agreement
[28] In September of 2014, interested parties, including NTI and Makivik, held a meeting about polar bear management where, after discussion, the parties entered into a voluntary agreement for the harvesting of SHB polar bears [2014 Voluntary Agreement]. The parties to the 2014 Voluntary Agreement were:
∙ Nunavut Department of Environment
∙ Nunavut Tunngavik Incorporated
∙ Makivik Corporation
∙ Ontario Ministry of Natural Resources and Forestry
∙ Cree Trappers Association (Quebec)
∙ Fort Severn Cree Nation
∙ Cree Nation Government (Quebec)
∙ Environment Canada
∙ Sanikiluaq Hunters and Trappers Organization
∙ Inukjuak Nunavimmi Umajulirijiit Katujjiqatigiinninga
∙ Kuujjuarapik Nunavimmi Umajulirijiit Katujjiqatigiinninga
∙ Umiujaq Nunavimmi Umajulirijiit Katujjiqatigiinninga
∙ Qikiqtaaluk Wildlife Board
[29] In the 2014 Voluntary Agreement, the parties established different voluntary quotas than those negotiated in 2011, with the total voluntary limits set at 45 polar bears per year for all the communities involved: Nunavik Inuit agreed to harvest 22 polar bears; Nunavut Inuit, 20; Cree of Eeyou Istchee and Cree Nations of Ontario, 1 or 2 (total of 3 for all Cree).
H. The process begins
[30] In a letter dated January 10, 2012, Peter Kent, former Minister of Environment Canada, sent a formal request to the NMRWB to establish a TAT for each subpopulation of polar bear in the NMR. This request was in response to the letter of the then chair of the NMRWB who raised concerns about the 2011 voluntary agreement and the fact that the NMRWB was not engaged and that the NILCA process was not used.
[31] There are three subpopulations of polar bear that are harvested by Nunavik Inuit: Davis Strait, Foxe Basin and SHB. The NMRWB first chose to review the SHB management unit, which is harvested by Nunavik Inuit, the Nunavut Inuit of Sanikiluaq, as well as the Cree of Eeyou Istchee.
[32] It took the NMRWB more time than anticipated to move forward with the process since the results of a 2011-2012 aerial survey were only completed in November of 2013 by the Ontario Ministry of Natural Resources and Forestry. Based on this survey, there was an estimate of 951 bears for the SHB subpopulation. After further revision, the number was later amended to an estimate of 943 polar bears.
[33] On December 19, 2013, the NMRWB issued a Public Hearing Notice inviting all interested parties to file written submissions and supporting documents by January 27, 2014, regarding the establishment of a TAT for the SHB polar bear within the NMR. The notice indicated that the public hearings which would take place in Inukjuak, Quebec from February 12th to 14th, 2014. More than a dozen parties filed written submissions prior to the public hearings and most of those same parties also made oral submissions. These parties included governmental departments, aboriginal organizations, environmental non-governmental organizations, local Inuit hunting groups, and individual Inuit hunters.
[34] At a briefing of the NMRWB and its staff after the public hearings, it was noted that additional information was needed before the NMRWB could make a decision. Specifically, it was felt that more information was required from the actual users of the resource since the public hearings were not the ideal method for obtaining this type of information. They decided to request further information from the attendees of the public hearings and to undertake a study of relevant ITK.
[35] The results of the ITK study were summarized in a seven-page chart called “Nunavik Inuit Knowledge of Polar Bears: Summary of Knowledge and Suggestions” [ITK Summary]. The ITK Summary was forwarded to the parties that had participated in the public hearings for comment. The NMRWB engaged a third party to prepare a final report. At the time of the Minister’s decision, only the ITK Summary was available.
I. The Boards’ initial and final decisions
(1) The Boards’ initial decision
[36] It should be noted that the delay the Boards’ decision-making was because this was the first such process under NILCA and, due to an oversight, the EMRWB was not initially involved. This was remedied and the Boards ultimately made their decision.
[37] On July 23, 2015, the Boards sent a letter to both the Minister of Environment of Canada and the Minister of Environment of Nunavut, informing them of their decision regarding the SHB polar bear TAT and non-quota limitations within the NMR.
[38] The Boards determined that the TAT for SHB polar bears in the NMRWB should be fixed at 28, per section 5.5.3 of NILCA. According to the Boards, it was essential to have a flexible management unit to avoid overharvesting. The Boards also concluded that the Crees of Eeyou Istchee are permitted to harvest at least one polar bear from the TAT of 28 bears. The Boards further decided that there should not be a requirement for sex-selective harvesting, as it would be contrary to section 5.5.3 of NILCA. Finally, the Boards presented a list of non-quota limitations for a fair and strict implementation of the TAT allocation.
[39] On September 22, 2015, the Minister of Environment of Nunavut rejected the Boards’ initial decision to establish a TAT of 28 polar bears, pursuant to section 5.5.16 of NILCA and section 15.4.3 of EMRLCA. Consequently, the Minister of Nunavut asked the Boards to reconsider their decision, this time, without exceeding a maximum sustainable harvest rate of 4.5 percent. The Boards were also asked to implement a sex-selective harvest of two males for every female bear.
[40] On September 23, 2015, the Deputy Minister of Environment Canada wrote a letter to the Boards informing them that their decision was rejected pursuant to paragraph 5.5.3(a) of NILCA and paragraph 15.2.1(a) of EMRLCA. The letter explained that the TAT of 28 polar bears for Nunavik Inuit and the Crees of Eeyou Istchee “is likely not sustainable and creates conservation concerns for this management unit”. The Deputy Minister also invited the Boards to issue a final decision by taking into account the maximum sustainable harvest of 4.5 percent, as well as the non-quota limitation of a sex-selective harvest of two males per one female bear. In addition, the Deputy Minister referred to the 2014 Voluntary Agreement as a “domestic interjurisdictional agreement” for the first time.
(2) The Boards’ final decision
[41] On December 21, 2015, the Boards issued their final decision (“Final Decision-Establishing a TAT and Non-Quota Limitation for SHB polar bears, within the NMR”). Once again, the letter was sent to both the Minister of Environment of Canada and the Minister of Environment of Nunavut.
[42] The Boards confirmed their initial decision establishing a TAT of 28 polar bears for the NMR. According to the Boards, “[a] TAT of twenty-eight (28) reflects the low-end of estimated annual harvests by Nunavik Inuit […] and permits an allocation to the Cree of Eeyou Istchee.” The Boards maintained their position on the importance of flexibility within the management system. The Boards did not agree with the Ministers regarding the implementation of a formal sex-selective harvest. Instead, the Boards explained that a sex-selective harvest of two males per one female bear “goes against Inuit traditions and values”, “upsets the natural balance of wildlife populations and tends to remove the fittest breeders”.
[43] The Boards also fully maintained the initial non-quota limitations in their final decision since “neither government offered concerns about the non-quota limitations proposed initially”. The Boards did not agree with the Deputy Minister regarding the 2014 Voluntary Agreement. In their final decision, the Boards contend that the 2014 Voluntary Agreement “is not a domestic interjurisdictional agreement” as per section 5.5.4.1 of NILCA and section 15.2.2 of EMRLCA. The Boards further added that, in any case, the 2014 Voluntary Agreement “is without prejudice to the decision-making processes defined in the applicable Land Claims Agreements”.
J. The process leading to the Minister’s decision
[44] On February 17, 2016, the Director General of Canadian Wildlife Service wrote to the Boards that Environment and Climate Change Canada [ECCC] would have a response and an analysis of the Boards’ final decision by June 30, 2016. The Minister was unable to provide a response by June of 2016. Instead, ECCC officials began to write the Memorandum to the Minister in July of 2016.
[45] On September 21, 2016, ECCC officials sent a Memorandum to the Minister in response to the Boards’ decision. ECCC recommended that the Minister vary the Boards’ final decision, “based on conservation and technical concerns”. It also recommended that the Minister reduce the TAT from 28 to 23 polar bears “for conservation reasons (sustainability of the management unit)”. The Memorandum was also accompanied by a detailed document, “Analysis of the Final Decision and Rationale for Varying the Decision”, explaining to the Minister how ECCC officials came to a TAT of 23 polar bears.
K. The Minister’s decision under review
[46] In a letter dated October 19, 2016, accompanied by two documents titled respectively, “Response to Final Decision on TAT for Southern Hudson Bay polar bear” [Response] and “Analysis of Decision on TAT and Non-Quota Limitations for SHB polar bears, within the NMR” [Analysis] the Minister advised the Boards that it decided to vary the TAT and non-quota limitations for polar bears within the NMR, pursuant to paragraph 5.5.3(a) of NILCA. After considering the Boards’ final decision, the Minister decided that there would be an annual TAT of twenty-three (23) polar bears from the SHB management unit for the NMR. The Analysis states:
The TAT of 23 establishes a combined harvest of polar bears from the Southern Hudson Bay management unit of close to 4.5% which aligns with the widely accepted sustainable removal level.
[…]
[A] maximum harvest of close to 4.5% should be established, to ensure the population remains stable and the harvest sustainable. This is consistent with previous statements by Environment and Climate Change Canada (e.g., the Environment and Climate Change Canada submission to the Southern Hudson Bay public hearing held in Inukjuak in February 2014 and Deputy Minister Michael Martin’s letter of September 23rd, 2015).
[47] In the Response, regarding the final decision on the annual TAT for the SHB polar bear, the Minister indicated the manner in which the TAT shall be implemented within the NMR, namely that:
a. all human-caused mortalities will be deducted from the TAT, including any bears killed on defense of life and property;
b. if the sum of all human-caused mortalities exceeds the TAT in a given year, the following year’s TAT will be reduced correspondingly;
c. […]
[48] The Minister, in the Response, accepted some of the Boards’ non-quota limitations for the harvest of polar bears in management unit, subject to other non-quota limitations, such as:
1. The TAT will be harvested annually, limited to 1 female per 2 males;
2. All polar bears killed by humans, whether as part of the subsistence harvest or in defense of life and property, will be reported to the appropriate authority as soon as possible (whether or not these are intended for sale);
3. […]
[49] The Minister’s letter also included the following wording:
Once the new survey results and traditional knowledge study become available, I am open to reconsidering the total allowable take for this management unit of polar bears.
L. Makivik Corporation’s Application
[50] On November 18, 2016, Makivik filed the present proceedings. Makivik does not agree with the Minister’s decision dated October 19, 2016, and had asked the Court for an order “quashing that decision and remitting the matter to the [Minister] to render a new decision”.
[51] On April 25, 2017, Makivik filed an amended application for judicial review with the Court’s consent. Cross examinations occurred in late 2017 and early 2018. On April 6, 2018, Makivik re-amended its application for judicial review, also with the Court’s consent. As a result of a new 2016 aerial survey, Makivik explained that the newly amended application for judicial review now sought only declaratory relief from the Court rather than a request to quash the Minister’s decision and remit the back to the Minister. Makivik also asked the Court for an order to grant costs in the present application.
III. The Evidence
[52] The evidence for the present application consists of a certified tribunal record as well as other material that was not in the certified tribunal record including affidavits and supporting exhibits. As described above, the parties have cross-examined some of these affiants and the transcripts were included in the record.
[53] The parties have acknowledged that the record contains much information that was not before the Minister. The AG of Nunavut devoted a significant amount of its submissions on this point and the problem that the record poses where Makivik now seeks only declaratory relief.
[54] Makivik filed the affidavit evidence of:
∙ Valentina Cean, an employee of Dionne Schulze. Her affidavit includes exhibits in the form of documents that are publicly available on the NMRWB’s website, including reports, letters, and research information. These are not contained in the other affidavits produced by Makivik.
∙ Mark O’Connor, Resource Management Coordinator at Makivik Corporation. He was previously the Director of Wildlife Management with the NMRWB. As Director, he was responsible for collecting and analyzing relevant information on wildlife species in the NMR. He also supervised staff work on these issues and coordinated with the representatives from other regulatory agencies that also dealt with species from the NMR. He provided some clarity and explanations about the delayed results of the 2011-2012 aerial survey and the ITK study.
∙ Gregor Gilbert, Senior Resource Development Department Coordinator for Makivik. He participates in developing management plans for the resources harvested by Nunavik Inuit. He also sits on various committees that discuss certain wild species such as the Eastern Hudson Bay beluga. Ever since he joined Makivik in 2010, he has primarily been working on polar bear management. He provided a map produced by Environment Canada to demonstrate the composition of polar bear management units within the NMR.
∙ Adamie Delisle Alaku, Executive Vice-President for the Resource Development Department for Makivik. Attached to his affidavit was a copy of the 2014 Voluntary Agreement. His affidavit mentions the correspondence between himself and the then-Minister of Environment on the importance of establishing a voluntary agreement between the parties involved. He was cross-examined.
∙ Paulusi Novalinga, Inuk living in the town of Puvirnituq on Hudson Bay. He is president of the Anguvigaq (Nunavik Hunters, Fishermen and Trappers Association). During the NMRWB’s public hearing in 2014, he presented some of the issues that the organization had about the polar bear population. He provided history and background respecting the Inuit and their harvesting activities.
[55] The Respondent AG of Canada filed the affidavit evidence of:
∙ Dr. Rachel Vallender, Acting Manager and biologist. She works for the Canadian Wildlife Service of Environment and Climate Change Canada. Ms. Vallender has a PhD in biology from Queen’s University. She has seventeen years of experience on wild species, especially on migratory birds. In her affidavit, she mentions the importance of including ITK in wildlife management decision-making. She was cross-examined. On September 22, 2017, Makivik filed a motion record asking this Court to grant an Order striking paragraphs 90, 91 and 92, and associated exhibits RV-28 and RV-29 from the affidavits of Ms. Rachel Vallender. The Respondent AG of Canada filed its response within a motion record, arguing that Makivik’s request is premature.
[56] The Respondent NMRWB filed the affidavit evidence of:
∙ Kaitlin Breton-Honeyman, Director of Wildlife Management at the NMRWB. She has a Bachelor’s Degree in Natural Sciences from Trent University with a major in Biology. As of July of 2013, she was involved in preparing the NMRWB’s public hearing on February-12-14, 2014. She reviewed the public hearing notice that was sent out to all parties on December 19, 2013. She was also part of the team in charge of compiling, reviewing and summarizing any written submissions she received from the parties following the public hearing notice. She was cross-examined.
[57] The Cree Respondent filed the affidavits of:
∙ Isaac Masty, a Cree beneficiary of the James Bay and Northern Quebec Agreement of 1975 and an Indian under the Indian Act, RSC, 1985, c I-5. He is Vice-Chairperson of the EMRWB since 2016. While he was President of the Cree Trappers Association from 2009 to 2011, Isaac Masty was present at the meeting held in Inukjuak, Quebec, on September 20-22, 2011. In his affidavit, he states that the EMRWB did not participate in negotiating the document entitled “Consensus from the Southern Hudson Bay polar bear management meeting in Inukjuak September 2011”. Mr. Masty did not provide evidence attached to his affidavit.
∙ Alan Penn, currently employed as a science advisor to the Grand Council of the Crees (Eeyou Istchee) and the Cree Nation Government. Mr. Penn has over 40 years of work experience on natural resources and environmental issues in northern Quebec. He participated in negotiating EMRLCA. He attended the meeting held in Ottawa on September 25-27, 2014. Like Isaac Masty, Alan Penn also stated in his affidavit that Canada did not intend to refer to the Consensus document as a “domestic interjurisdictional agreement” within the context of EMRLCA. He was cross-examined.
∙ Brian Craik, Director of Federal Relations for the Grand Council of the Cree (Eeyou Istchee)/ Cree Nation Government. He was also responsible for negotiating EMRLCA. Mr. Craik provided information about Cree decision-making structure and the negotiation process of EMRLCA.
[58] On judicial review, it is trite law that the Court should only consider evidence that was before the original decision-maker: Henri v Canada (Attorney General), 2016 FCA 38 at para 39 [Henri]. Here, the parties produced affidavits that contained a significant amount of evidence in support of their records.
[59] In determining whether additional evidence may be introduced upon judicial review, three exceptions govern:
[…] The only exceptions to this rule have been made in instances where the evidence was introduced to support an argument going to procedural fairness or jurisdiction (as in McConnell v. Canada, 2004 FC 817 at para 68, upheld at 2005 FCA 389), or where the material is considered general background information that would assist the Court (see, for ex., Chopra v. Canada (Treasury Board) (1999), 168 F.T.R. 273 [Chopra] at para 9).
(Ochapowace First Nation v Canada (Attorney General), 2007 FC 920 at para 9)
[60] I acknowledge the argument of the AG of Nunavut that the record has been impacted by time and due to the changing focus of the proceedings as evidenced by the amended and re-amended applications for judicial review.
[61] After carefully reviewing the affidavit evidence on file and the submissions of the parties, I note that much of the material included in the parties’ supporting affidavits present general background information that would assist the Court. In particular, Ms. Valentina Cean’s affidavit contains documents, such as a summary report collected by the NMRWB during its ITK study after the public hearings in Inukjuak entitled “Nunavik Inuit Knowledge of Polar Bears: Summary of Knowledge and Suggestions”. Ms. Cean’s affidavit also includes guidelines from the NMRWB called “Guidelines for the Nunavik Marine Region Public Hearing to consider establishment of a Total Allowable Take for Southern Hudson Bay polar bear with the Nunavik Marine Region”.
[62] Ms. Vallender’s affidavit also contains several presentations from experienced and knowledgeable hunters and research scientists on SHB polar bear management. Although they were not included in the record before the Boards, I find that such affidavit evidence is admissible in the case at bar. Although it is not relevant to the merits of the matter, it is helpful to the Court toward understanding the issues in this proceeding.
[63] In light of the difficulty with the record before me, in my analysis and reasons I will be referring to some of the affidavit material only for the context or the backdrop upon which the Minister’s decision was made.
A. Makivik’s Motion to Strike Portions of the Vallender Affidavit
[64] As a general principle, reviewing courts are to proceed on the merits based on the available evidence that was before the original decision-maker (Henri at para 39). “Affidavit evidence going to the merits of the matter already decided by the decision-maker should instead be struck out as they invade the role of the initial decision-maker as fact-finder and merits-provider” (Shahzad v Canada (Citizenship and Immigration), 2017 FC 999 at para 21; see also Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22).
[65] In response to Makivik’s motion record concerning Ms. Vallender’s affidavit evidence, I grant Makivik’s motion and accordingly, the Court will strike paragraphs 90, 91 and 92 of Ms. Vallender’s affidavit. These paragraphs refer to the 2016 aerial survey results, which were not available before the Board or the Minister at the time of the decision and these paragraphs contain more than simply background information. Exhibits RV-28 and RV-29 are accordingly also not relevant or admissible evidence for the purposes of this judicial review as there is no evidence to suggest that they were before the Minister. Further, they contain more than background information.
[66] Paragraphs 90, 91 and 92 and the associated exhibits are therefore struck and have not been considered.
B. Makivik’s Motion to Determine the Propriety of Objections made by the AG of Canada during the course of a Written Cross-examination
[67] This motion also relates to Ms. Vallender’s affidavit and documents produced in her affidavit (Exhibits, CE4, CE-5 and CE-6). As set out in Makivik’s motion, subsequent to the November 2017 cross-examination of Ms. Vallender, Makivik and the AG of Canada agreed as follows:
a. Respondent Canada would provide the documents requested on a courtesy basis, with, however, certain information redacted for claimed privileges;
b. After reviewing them, the Applicant could decide which ones it believed were relevant and have them produced, via supplementary written cross-examination of Dr. Vallender;
c. The documents would be produced with Dr. Vallender’s response to the supplementary written cross-examination, under reserve of the objections of Respondent Canada with respect to relevancy and privilege;
d. Dr. Vallender’s response and the attached documents would be filed as part of the Applicant’s Record; and
e The Applicant could then file a motion under Rule 95 to have Respondent Canada’s objections and privilege claims determined by the Court, motion would be presented to the judge hearing the case on the merits.
[68] The documents in question relate to internal communications within ECCC prior to the Minister’s decision. The AG of Canada, in addition to procedural arguments about the propriety of Makivik’s request, objects to the production of the redacted portions of the correspondence based on relevance and privilege. AG of Canada argues that the documents in question were drafted or created before the Deputy Minister’s rejection of the initial decision of the Boards.
[69] Makivik disagrees, suggesting that the documents are relevant because: the Minister adopted all of the recommendations of the ECCC staff so any fettering of discretion was transferred to the Minister; much of the exhibits produced by the AG of Canada in its record were also not before the Minister when she made her decision so the AG of Canada cannot now allege that these documents are irrelevant; and that the deliberative privilege argument has no application to administrative decisions or, that if there is deliberative privilege in this case, it can be revoked. Lastly, Makivik argues that the honour of the Crown and NILCA militate in favour of the disclosure of the information.
[70] I am persuaded by the arguments of the Respondent AG of Canada that the documents in question are not relevant to the merits of the application before me. At this time, I need not determine whether they are privileged. As all parties have noted, the record has produced a voluminous amount of materials much of which was not before the Minister, whose decision is the subject of the judicial review. As discussed above, I have decided to view much of this material as background or to aid in providing context. Similarly, I find that the documents Makivik’s motion seeks to produce are not relevant to this proceeding. There is nothing to suggest that they would clarify the Minister’s decision-making process under these circumstances. I would not benefit from the production of the redacted portions of the documents in my deliberations in light of the state of the material produced by the parties and the direction that the proceeding has taken.
[71] Makivik’s motion is therefore dismissed. The AG of Canada’s objections regarding the relevance of Exhibits CE-4, CE-5 and CE-6 are maintained and these exhibits will be struck from the Court record.
IV. Issues
[72] Makivik raised the following issues:
(a)