Department of Justice Canada Northern Regional Office 2 nd Floor, Nova Plaza 5019 52 nd Street PO Box 2052 Yellowknife, NT X1A 2P5 Ministère de la Justice Canada Bureau régional du Nord 2 iéme étage, édifice Nova Plaza 5020 52 iéme rue CP 2052 Yellowknife TN-O X1A 2P5 Phone/Téléphone: (867) 920-6002 Email/couriel: Lynn.Hjartarson@justice.gc.ca File Number: 5223932 December 15, 2016 Mr. Andrew Nakashuk, Chairperson Nunavut Planning Commission P.O. Box 1797 Iqaluit, Nunavut X0A 0H0 By email c/o sehaloak@nunavut.ca Original to follow Dear Chairperson Nakashuk: Re: Expert Report The Land Use Plan Cannot Directly Regulate Methods of Harvesting This letter is the Government of Canada s legal submission on limitations on the Nunavut Planning Commission s ability to regulate methods of harvesting. It is provided as an expert report as that term is used by the Commission in this process. It is a response to the expert report filed by Ecojustice on behalf of the World Wildlife Fund Canada on September 19, 2016, which is titled Submissions on Behalf of WWF Canada re 2016 Draft Nunavut Land Use Plan and Regulation of Bottom Trawling. A statement of the author s qualifications is provided separately. Brief Conclusions We respectfully disagree with important parts of Ecojustisce s analysis and with their conclusion that a land use plan can regulate bottom-trawling as a land use. Under the Nunavut Agreement, a land use plan cannot contain prohibitions or terms and conditions that are intended to create limitations on methods of harvesting or other non-quota limitations on harvesting. Background As required by the Nunavut Agreement (section 10.2.1) the core features of Articles 10, 11 and 12 of the Nunavut Agreement were rendered into the Nunavut Planning and Project Assessment Act. Core features of Article 5 of the Nunavut Agreement have been integrated into the territorial Wildlife Act and the federal Species at Risk Act, and fisheries are managed under the Fisheries Act in accordance with the fisheries management regime set out in Article 5. Despite the existence of this implementing legislation, because the Ecojustice report raises a question of jurisdiction, we have conducted this analysis on the basis of the Nunavut Agreement alone. This is because the Nunavut Agreement is paramount over all legislation in case of conflict or inconsistency (Nunavut Land Claims Agreement Act, section 6).
-2- Analysis As noted in the Ecojustice submission, the Nunavut Agreement establishes the Nunavut Wildlife Management Board as an institution of public government (section 5.2.1) and gives it a primary responsibility for wildlife management in the Nunavut Settlement Area: Recognizing that Government retains ultimate responsibility for wildlife management, the NWMB shall be the main instrument of wildlife management in the Nunavut Settlement Area and the main regulator of access to wildlife and have the primary responsibility in relation thereto in the manner described in the Agreement. Accordingly, the NWMB shall perform the following functions: (k) establishing, modifying or removing non-quota limitations (Sections 5.6.48 to 5.6.51) ; ; and (m) any other function the NWMB is required to perform by the Agreement and not specifically referred to in this Section. (Nunavut Agreement, section 5.2.33) Reconnaissant que le Gouvernement demeure, en dernier ressort, responsable de la gestion des ressources fauniques, le CGRFN constitue le principal mécanisme de gestion des ressources fauniques dans la région du Nunavut et de réglementation de l'accès à ces ressources, et il assume la responsabilité première à cet égard de la manière prévue par l'accord. En conséquence, le CGRFN accomplit les fonctions suivantes : [ ] k) établir, modifier ou supprimer les limites non quantitatives (articles 5.6.48 à 5.6.51); [ ] m) remplir les autres fonctions qui lui incombent aux termes de l'accord et qui ne sont pas expressément prévues au présent article. (L Accord Nunavut, article 5.2.33) Unless Article 5 of the Nunavut Agreement provides otherwise, the Nunavut Wildlife Management Board has exclusive authority to regulate methods of harvesting in the Nunavut Settlement Area: Subject to the terms of this Article [5], the NWMB shall have sole authority to establish, modify or remove, from time to time and as circumstances require, non-quota limitations on harvesting in the Nunavut Settlement Area. (Nunavut Agreement, section 5.6.48) Sous réserve des conditions prévues par le présent chapitre [5], le CGRFN a le pouvoir exclusif d'établir, de modifier ou de supprimer, selon les circonstances, les limites non quantitatives applicables aux activités de récolte dans la région du Nunavut. (L Accord Nunavut, article 5.6.48) The Nunavut Agreement defines non-quota limitation as including methods of harvest (section 5.1.1), removing any doubt as to whether methods of harvesting is a subject matter of exclusive jurisdiction ( sole authority ) for the Nunavut Wildlife Management Board, as covered by paragraph 5.2.33(k) of the Nunavut Agreement. As a result of all of the above, we agree with the following passage from the Ecojustice report: Since bottom trawling is a specific method of harvesting fish, it falls within the broad literal definition of a non-quota limitation. Accordingly, on a literal reading of Article 5.6.48, the NWMB will have sole authority to establish, modify or remove limitations on bottom trawling within the Nunavut Settlement Area unless one of the other terms of Article 5 provides otherwise (Ecojustice Expert Report, p. 4, underlining in original). However we respectfully disagree with much of the reasoning that follows in the Ecojustice report. Purposive Interpretation Supports Exclusive Jurisdiction As noted in the Ecojustice submission, the Nunavut Agreement must be interpreted purposively. Among the purposes of the Nunavut Agreement, and among the express purposes of Article 5, are the following:
-3- i. Establishing a system of harvesting rights and privileges that avoids unnecessary interference in the exercise of the rights, priorities and privileges to harvest (see section 5.1.3(a)(v)); and ii. Creating a wildlife management system that enables and empowers the Nunavut Wildlife Management Board to make wildlife management decisions (see section 5.1.3(b)(vi)). From the first objective above, we see that the Nunavut Agreement seeks to avoid unnecessary interference with harvesting. From the second, we see that when interference with harvesting may be appropriate, as a starting point it should be the Nunavut Wildlife Management Board that is enabled and empowered to make the wildlife management decision. To further these two objectives, the Nunavut Agreement centralizes the regulation of harvesting into a single scheme, with the Nunavut Wildlife Management Board at the heart. Since multiple regulatory schemes would increase the likelihood of regulation being more onerous than necessary, the parties to the Nunavut Agreement created a single scheme with the exclusive authority to regulate harvesting comprehensively. This serves as crucial interpretive background, and explains why a regulator other than the Nunavut Wildlife Management Board is prevented from regulating harvesting (i.e., limiting regulatory interference with harvesting), and why the Nunavut Wildlife Management Board has sole authority to do so (i.e., enabling and empowering that particular institution do so in accordance with Article 5). Therefore, when regulating harvesting including regulating particular methods of harvesting as a land use, the Nunavut Agreement clearly allocates that function to the Nunavut Wildlife Management Board and the appropriate federal or territorial minister, as set out in Article 5. Article 5 Does Not Support Plan-Based Non-Quota Limitations Starting at the top of page 5, the Ecojustice report points at elements of the Article 5 scheme in an attempt to demonstrate that the Nunavut Wildlife Management Board s jurisdiction is not as exclusive as section 5.6.48 suggests. For instance, Ecojustice mentions that hunters and trappers organizations and regional wildlife organizations may regulate harvesting practices, and points out that the Government of Canada retains ultimate responsibility for wildlife management in the context of fish species (p. 5). However, these and other features of Article 5 do not erode the sole authority established by section 5.6.48. The reason we say this is because in its opening words section 5.6.48 has an explicit acknowledgement that the exclusivity of the Nunavut Wildlife Management Board s authority will be narrowed by other sections of Article 5. Narrowing or shaping of the Board s jurisdiction within Article 5 is of no assistance in establishing the controversial proposition that sections from other Articles could limit this exclusivity. To the contrary, the opening words of section 5.6.48 refer only to Article 5 as limiting the sole authority of the Board. This explicit reference to Article 5 excludes the rest of the Nunavut Agreement. It seems clear from reading this section that only provisions in Article 5 can set boundaries limiting the exclusivity of authority established in that section, not sections from other Articles. The general interpretive provisions in the Nunavut Agreement require a contextual, purposive, and fair, large and liberal interpretation of the Nunavut Agreement as a whole to guide the interpretive process. But a purposive interpretation still provides no basis to set aside the explicit wording of section 5.6.48 on this point. As a general proposition, where there is no conflict or ambiguity to resolve, and no legal absurdity in the text, there is no basis to depart from the text.
-4- When interpreting Articles 5 and 11 together, we see that the exclusive authority of the Nunavut Wildlife Management Board is supported by Article 11 of the Nunavut Agreement, which states: Land use plans shall be developed and implemented in a manner consistent with Articles 5 and 7. (Nunavut Agreement, section 11.8.1) Les plans d'aménagement du territoire doivent être élaborés et mis en œuvre conformément aux chapitres 5 et 7. (L Accord Nunavut, article 11.8.1) Although this provision refers to the development and implementation of a plan, and not the plan s contents, a purposive reading suggests that development and implementation in this context mean the development process, content, interpretation and application of the plan. It would be absurd if the development process and implementation of the plan had to be consistent with Articles 5 and 7, but the plan s contents did not. Therefore this section complements section 5.6.48 by confirming that there is a hierarchy of sorts. Section 5.6.48 limits the jurisdiction that the Commission would otherwise hold if Article 11 were read on its own, and section 11.8.1 acknowledges and respects that limit as applying to both the planning process and plan implementation. We agree with the observation that the Nunavut Planning Commission has a clear authority to address environmental protection issues, including those relating to wildlife conservation and habitat (Ecojustice Report, p. 6). However it is not an unlimited authority. Section 5.2.33 puts an explicit and clear limit on this authority by preventing the Commission (or anyone else not authorized by Article 5) from establishing a non-quota limitation on harvesting. In a number of places, the authors of the Ecojustice Report refer to laws of general application, and point out that in some cases laws of general application can affect harvesting methods. While this is true, this depends on the law of general application: (i) having been validly enacted; (ii) not contravening a provision of the Nunavut Agreement; and (iii) not having its application read down on the basis of the Nunavut Agreement, with the effect that it does not apply to some or all harvesters. With respect, for the reasons explained above, plan provisions that purport to create prohibitions on methods of harvesting that are effectively non-quota limitations would not be validly enacted and would contravene the Nunavut Agreement. The Ecojustice report does not point to any exception that would save such provisions. We respectfully disagree with the following passage of the Ecojustice report: [R]elying on Article 5.7.42(c) and Article 5.2.36, harvesting methods that result in harmful alteration of the environment or habitat can be restricted by other agencies. Such restrictions are not within the exclusive jurisdiction of the NWMB and can be included in a land use plan (Ecojustice Report, p. 8).
-5- In our view, the passage misconstrues both the provisions it cites, for the reasons explained below. The first provision, section 5.7.42(c) is not of any assistance in this context. That section states: An Inuk or assignee may employ any type, method or technology to harvest pursuant to the terms of this Article that does not: ; or (c) result in harmful alteration to the environment. (Nunavut Agreement, section 5.7.42(c)) Un Inuk ou un cessionnaire visé à l'alinéa 5.7.34a) peut, dans l'exercice des activités de récolte prévues par le présent chapitre, utiliser des méthodes ou moyens techniques qui : [ ] c) n'entraînent pas de modification préjudiciable à l'environnement. (L Accord Nunavut, article 5.7.42(c)) The section creates a constitutionally protected right for an Inuk or an assignee to choose a method of harvesting, and puts or preserves some limitations on that right. However, it is clear that this provision does not create or expand the jurisdiction of any regulator to establish non-quota limitations on harvesting the provision is a limit on regulation, not an enabler of regulation. The provision does not enable the Commission to establish non-quota limitations on harvesting, because nothing in the provision over-rides the limit on the Commission s jurisdiction created by section 5.6.48. Similarly, the second provision cited by Ecojustice, section 5.2.36, also does not establish or expand the jurisdiction of any regulator to establish non-quota limitations on harvesting: While habitat management and protection is an integral function of wildlife management, and as such is commensurate with the NWMB's responsibilities for wildlife matters, primary responsibility for the management of lands, including flora, shall be exercised by the appropriate government agencies and such other related bodies as may be established in the Agreement. (Nunavut Agreement, section 5.2.36) Même si la gestion et la protection des habitats sont des activités qui font partie intégrante de la gestion des ressources fauniques et qu'à ce titre elles sont compatibles avec les responsabilités du CGRFN à l'égard des questions touchant ces ressources, la responsabilité première en ce qui a trait à la gestion des terres, y compris de la flore, appartient aux organismes gouvernementaux compétents et aux autres organismes connexes établis par l'accord. (L Accord Nunavut, article 5.2.36) Section 5.2.36 does not enable the Commission to establish non-quota limitations on harvesting, because nothing in the provision over-rides the limit on the Commission s jurisdiction created by section 5.6.48. This provision recognizes habitat management and protection as a function shared among several bodies. The provision designates the Nunavut Wildlife Management Board as one such body, since habitat management and protection is integral to wildlife management, and habitat may be impacted by wildlife harvesting activities. Bodies other than the Nunavut Wildlife Management Board have important roles to play because wildlife habitat can of course be impacted by land uses other than wildlife harvesting activities. The Commission is clearly one of those bodies with a role to play, as is made explicit in sections 11.2.3(d) and 11.3.1(g), both requiring the Commission to take wildlife habitat into account. However, the Commission s authority the role of the land use planning regime is limited to imposing prohibitions and terms and conditions on land uses other than wildlife harvesting activities.
-6- Since bottom trawling fishing is a wildlife harvesting activity, it falls within the sole authority of the Nunavut Wildlife Management Board to consider and assess whether it would be appropriate to regulate this activity, within the framework of Article 5, with regards to the impact it might have on wildlife habitat. The Commission cannot include prohibitions or terms and conditions in a land use plan that are intended to create limitations on this activity. Conclusion Having reviewed the relevant prov1s10ns of the Nunavut Agreement, and having given careful consideration to all the provisions referred to and analyzed in the Ecojustice report, we see nothing that suggests that anything in Article 5 permits a land use plan to contain prohibitions on methods of harvesting, including bottom-trawling, that are "effectively non-quota limitations". On the basis of our analysis, it becomes clear that a land use plan cannot contain prohibitions or terms and conditions that are intended to create limitations on methods of harvesting or other "non-quota limitations" on harvesting. Such a plan would be inconsistent with the text of both Articles 5 and 11, and with the stated purposes for Article 5, which includes the creation of a wildlife management system that enables and empowers the Nunavut Wildlife Management Board to make wildlife management decisions. To the extent wildlife harvesting activities may present issues requiring consideration and possibly regulation, they are to be raised with the Nunavut Wildlife Management Board within the framework of Article 5 of the Nunavut Agreement. Regional Director General