Makivik Corporation v Canada (Minister of Environment and Climate Change), 2019 FC 1297

Application for judicial review dismissed. Granting declaratory relief would not be appropriate, as it would affect the parties’ intention to improve the wildlife management system for Nunavik Inuit as established by the Nunavik Inuit Land Claims Agreement.

Indigenous Law Centre
Indigenous CaseWatch Blog

The Applicant, Makivik Corporation [“Makivik”], sought judicial review against the Minister of Environment and Climate Change Canada’s [“Minister”] decision [“Minister’s decision”] regarding the Total Allowable Take [“TAT”] of polar bears in the Southern Hudson Bay [“SHB”] region pursuant to the Nunavik Inuit Land Claims Agreement [“NILCA”] and the Eeyou Marine Region Land Claims Agreement Act [EMRLCA]. Makivik is the legal representative of Nunavik Inuit. It is a non-profit organization with the primary role to administer the lands of the Inuit, as well as to protect the rights, interests and financial compensation provided by NILCA and EMRCLA.

This application primarily concerns Article 5 of NILCA, 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. For the Inuit, especially, 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.

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, a constitutionally protected modern treaty which fosters reconciliation. Makivik also claims that the Minister’s decision was neither correct nor reasonable. For relief, it does not seek to quash the Minister’s decision but wants several declarations concerning the Minister’s decision.

The Minister’s decision varied the Nunavik Marine Region Wildlife Board’s and the Eeyou Marine Region Wildlife Board’s [“the Boards”] final decision regarding the TAT and non-quota limitations for the harvesting of SHB polar bears within the Nunavik Marine Region, pursuant to s 5.5.12 of NILCA and s 15.3.7 of the EMRLCA. She rejected the Boards’ initial decision to establish a TAT of 28 polar bears, and for them to reconsider their decision 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.

The Court came to the conclusion in this matter, that the Minister’s decision was correct and, with the exception of the issue of using sex-selective harvests and varying other non-quota limitations, the remainder of the Minister’s decision was reasonable. Since Makivik is not seeking to quash the Minister’s decision, then it stands. The temporary nature of the Minister’s decision was a major factor in the Court’s decision. The Court’s role is not to assess the adequacy of each party’s compliance at each stage of a modern treaty process (First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58). It would be premature for the Court to grant declaratory relief on issues regarding the interpretation of NILCA. By declining to grant relief in the present application, the Court is of the view that the parties would continue to govern together and work out their differences.

Leave a Reply

Your email address will not be published. Required fields are marked *