QWB and SHTO v. Government of Nunavut, 2022 NUCJ 40

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: QWB and SHTO v. Government of Nunavut, 2022 NUCJ 40 Date: 20221118 Docket: 08-22-173 Registry: Iqaluit Applicants: Qikiqtaaluk Wildlife Board -and- Sanikiluaq Hunters and Trappers Association -and- Respondent: Government of Nunavut __________________________________________________________________​​​​ Before: Madam Justice Charlesworth Counsel (QWB & SHTO): Counsel (GN): Counsel (NWMB): D. Dylan C. Boyer E.

Meehan Location Heard: Date Heard: Iqaluit, Nunavut September 21, 2022 Matters: Application to add a party to a Judicial Review REASONS FOR DECISION (NOTE: This document may have been edited for publication) I. INTRODUCTION AND BACKGROUND

[ 1 ] On February 28, 2022, the Sanikiluaq Hunters & Trappers Association (SHTA) asked the Qikiqtaaluk Wildlife Board (QWB) if it could use eight of ten polar bear hunting credits (“tags”) the QWB had accrued in relation to the Southern Hudson Polar Bear Population. The QWB approved SHTA’s request. The tags had to be used by the SHTA prior to June 30, 2022. [ 2 ] On March 18, 2022, the QWB asked the Government of Nunavut (“GN”) to transfer ownership of eight of QWB’s accrued tags to SHTA.

On March 23, 2022, the GN advised the QWB and SHTA that it would only transfer six of the eight tags. [ 3 ] The GN advised the QWB that a full review would need to be undertaken by the Nunavut Wildlife Management Board (NWMB) prior to issuing/transferring the remaining two tags to the SHTA. The GN’s position was premised on the Polar Bear Harvest Administration and Credit Calculation System (HACCS) which received approval from the GN, Minister of Environment (Minister) on February 7, 2022.

Six tags were ultimately issued to SHTA. [ 4 ] On April 21, 2022, the QWB and SHTA (together the “applicants”) filed an application seeking judicial review of the GN’s March 23, 2022 decision to not transfer all eight approved polar bear hunting tags to the SHTA. [ 5 ] This application for judicial review was first spoken to in the Nunavut Court of Justice (NCJ) on May 9, 2022. At that appearance, the Court advised the parties that, further to a request made by the respondent GN, the Court was prepared to add the NWMB as a respondent to these proceedings.

Counsel for the applicants was directed to produce a draft order for issuance and service on the NWMB. [ 6 ] Immediately after the May 9 appearance, counsel for the applicants wrote to the Court advising it was the applicants’ belief that the addition of the NWMB as a respondent was an error.

The applicants requested that the written order not be signed pending further submissions. [ 7 ] The applicants’ position was premised on two grounds: 1) that the applicants were not seeking relief as against the NWMB; and 2) the NCJ lacked jurisdiction over the NWMB pursuant to Sections 5.3.1 and 5.3.2 of the Nunavut Land Claims Agreement (NLCA). [ 8 ] Further to receipt of counsel’s May 9 letter, the Court directed that the issue of NWMB’s participation in the judicial review be addressed in civil chambers on June 6, 2022.

The order of May 9 adding NWMB was correspondingly vacated. [ 9 ] On June 2, 2022, counsel for the NWMB, via correspondence sent to NCJ Chambers, applied to have the NWMB added to the litigation as an “interested party”.

The application asserted the NWMB is “the main instrument of wildlife management and the main regulator of access to wildlife in the Nunavut Agreement” and as such “matters raised by the Applicant’s Notice of Application directly affect the interests of the NWMB”. [ 10 ] On June 6, Justice Cooper ordered that counsel for the applicants, respondent, and NWMB contact the NCJ trial coordinator to set a special chambers hearing date to address the participatory rights and scope thereof of the respondent, the NWMB, and other potentially interested parties in the judicial review. [ 11 ] Counsel for the applicants and respondent were directed to submit special chambers briefs no later than three days before the hearing.

Counsel for the NWMB was allowed to provide a short one-to-two-page reply to the filed briefs of the applicants and respondents. [ 12 ] The application was heard by me on September 21, 2022. II. ISSUES

[ 13 ] At issue in this case is who is the proper respondent to the judicial review. Unlike ordinary judicial review applications, there is no adversarial party positioned to respond to the application. When the GN, as decision maker, declined to transfer all 8 tags to the SHTA, it did so unilaterally without hearing submissions from a party opposed to the transfer. [ 14 ] In the absence of an adversarial respondent, the question that must be answered is whether it is proper for the GN, as the impugned decision maker, to act as the respondent to this application.

If it is proper, the question becomes to what extent can the GN respond to the merits of the judicial review without infringing principles of finality and impartiality. [ 15 ] Once it is understood to what extent, if any, the GN may participate as respondent to the judicial review, the analysis will turn to whether the NWMB is a proper party to this litigation. [ 16 ] If the NWMB is added as a party, I must then determine whether other Qikiqtaaluk Hunters and Trappers Associations (HTAs) should also be granted standing on the grounds that they, like the NWMB, have a direct and tangible interest in the outcome of the judicial review.

III. POSITIONS OF THE PARTIES [ 17 ] The parties each filed written submissions as directed by Justice Cooper. A. The Applicants [ 18 ] The applicants argue that on an application for judicial review, the court is tasked with deciding whether the decision made by the respondent can stand under a reasonableness or correctness standard. The ultimate decision maker in this case was the GN and it is the GN which is the proper respondent to this application. [ 19 ] The applicants concede jurisdiction exists under Rule 603(1) of the Rules of Court to add the NWMB as a party to this judicial review.

The NWMB has a vested interest in the outcome of the application so if the NWMB is granted standing to participate in the application it would be more appropriate for it to do so as a party rather than as amicus . [ 20 ] However, the applicants advance the position that the “questions in this application for judicial review can be effectively and completely settled without the addition of the NWMB as a party (“interested” or otherwise)” and as such the NWMB should not be added to this litigation. [ 21 ] Counsel for the applicants argue the applicants can aptly provide submissions to the court that accurately reflects their position, and they have confidence that counsel for the respondent can do the same. [ 22 ] In the alternative, the applicants submit that should I find that the NWMB is to be added as a party in some fashion, other Qikiqtaaluk HTOs should also be added as “interested” parties on the same basis used to justify the joinder of NWMB.

These other HTOs have a direct and tangible interest in the outcome of this litigation. B. The Respondent [ 23 ] The respondent, in its written materials, submitted that it and the NWMB are co-managers of the harvesting of wildlife in Nunavut as outlined in the NLCA. The Respondent concedes that it retains ultimate responsibility for wildlife management under

section 5.1.2 of

the NLCA, however the NLCA establishes the NWMB as the main instrument of wildlife management in the area and as the mainregulator of access to wildlife under

section 5.2.33. [24] The respondent argued in its brief that the role of a decision maker in responding to an application for judicial review istraditionally limited. As the NWMB seeks a role in the judicial review, the respondent’s own role should be limited with the NWMBbeing the party to respond to the merits of the application.

The respondent also acknowledged, however, that a court can grant thedecision maker an expanded role to respond to the merits if there is no other party to respond to the applicants’ request for judicialreview. [25] The respondent acknowledged during oral submissions that its pre-hearing understanding of the role the NWMB wanted to play inthe judicial review was “grossly in error”. The error came to light only upon the respondent’s receipt of the NWMB’s reply submissionson the eve of this hearing.

The respondent respects the request of the NWMB to join the litigation as amicus and not as a respondent. [26] Considering its new understanding of the limited role NWMB is willing to play in this litigation, the respondent seeks clarificationand permission from the Court to respond to the merits of the application for judicial review to provide, from an “informed perspective”,“useful and important information and analysis” to the court. The respondent argues this can be done in a manner that protects theprinciples of finality and impartiality. C.

The NWMB [27] The NWMB submits that neither the applicants nor the NWMB seek to make the NWMB a respondent to the judicial review. TheGN is the appropriate respondent to the judicial review as the GN was the decision maker and it is the GN’s decision that is beingsubjected to review. The NWMB states they may review and approve such decisions, however, pursuant to

section 5.2.33, the GNdecided not to issue the additional two tags, not the NWMB. The GN has the authority to “disallow” the NWMB’s decisions and hasdone so in the past. [28] The NWMB points to Rule 603 as the jurisdictional authority for it to be added as an “interested” party to the judicial review to“take

part in the proceedings as though served” subject to the terms imposed by the Court. The NWMB asked to be added as an“interested” party “to assist this Honourable Court’s understanding of the NWMB’s approval process” by providing a “detailed, neutraland transparent ‘map-way’ of that process”. In the alternative, the NWMB “requests ‘intervenor’ status pursuant to Rule 92 of theRules”.

The NWMB would use its status as a Rule 92 intervenor to provide that “map-way”. [29] In oral arguments, counsel clarified that what the NWMB wanted was to be added as amicus to facilitate their provision of thedetailed, neutral, transparent map. IV. LAW AND ANALYSIS A. Role of Decision Maker on Judicial Review [30] In Canada (Attorney General) v. Quadrini, 2010 FCA 246 , J.A. Stratas states there are two common law restrictions onthe scope of submissions a tribunal (decision maker) can make on judicial review.

The restrictions are articulated at paragraph 15 as: Restriction 1: the submissions must be relevant to the issues in the judicial review and useful to the Court. (J.A. Stratas applies thisrestriction to all parties in applications for judicial review); and

Restriction 2: Aimed at the careful regulation of the tribunal (decision maker) when it appears as a party or as an intervenor on judicialreview, is grounded on two fundamental principles in the common law: (

a) The principle of finality. Once a tribunal has decided the issues before it and has provided reasons for decision, absent a power tovary its decision or rehear the matter, it has spoken finally on the matter and its job is done: Chandler v. Alberta Association ofArchitects, (SCC), [1989] 2 S.C.R. 848. A judicial review is not an opportunity for the tribunal to amend, vary, qualifyor supplement its reasons. Accordingly, attempts by the tribunal to speak further by making submissions in the judicial review have to becarefully regulated. (

b) The principle of impartiality. When a court allows an application for judicial review, it has a broad discretion in the selection anddesign of remedies: MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6. One remedy, quitecommon, is to remit the matter back to the tribunal for redetermination. If that happens, the tribunal must redetermine the matter, andappear to redetermine it, impartially, with an open mind.

Submissions by the tribunal in a judicial review proceeding that descend too far,too intensely, or too aggressively into the merits of the matter before the tribunal may disable the tribunal from conducting an impartialredetermination of the merits later. Further, such submissions by the tribunal can erode the tribunal’s reputation for even handedness anddecrease public confidence in the fairness of our system of administrative justice. [31] J.A.

Stratas continued at paragraph 17 in Quadrini to explain, “in engaging in careful regulation based on the principles of finalityand impartiality, courts have made a number of general statements.” These statements include: • Tribunals should not make submissions to the reviewing court that, in substance, amend, vary, qualify or supplement the reasonsfor decision of the tribunal: United Brotherhood of Carpenters and Joiners of America, Local 1386 v.

Bransen Construction Ltd., 2002NBCA 27 at paragraphs 26 and 33; • Courts should not allow tribunals to participate in judicial reviews when they bring to bear no particular expertise on the issue,when their jurisdiction and power is not in issue, and when they have had ample opportunity to express themselves in theirreasons: Ferguson Bus Lines v.

Amalgamated Transit Union, Local 1374 (1990), (FCA), 68 D.L.R. (4th) 699 atpages 702-703 and 708, 108 N.R. 293 (F.C.A.); • Tribunals should not descend into the merits of the case or make arguments that go to the heart of the litigation stemming fromtheir decisions: Li v. Canada (Minister of Citizenship and Immigration), 2004 FCA 267 at paragraph 5, 327 N.R. 253; • Tribunals can make submissions on judicial review about whether they had jurisdiction to make their decisions and what theappropriate standard of review should be: Canadian Association of Industrial, Mechanical and Allied Workers, Local 14 v.

Paccar ofCanada Ltd., (SCC), [1989] 2 S.C.R. 983; • Tribunals can make submissions explaining the evidentiary record or the procedures that theyfollowed: Paccar, supra; Northwestern Utilities Ltd., supra at page 709; • Some courts have recognized that where a tribunal’s submissions are necessary and useful, and there are no other concerns aboutthe tribunal’s participation, the tribunal can be allowed to review the evidence in the case with a view to showing that its decision shouldbe upheld as reasonable: Children’s Lawyer for Ontario v.

Goodis (2005), (ON CA), 75 O.R. (3d) 309 atparagraphs 21 to 24 (C.A.); Paccar, supra at page 1016. Often “the tribunal is in the best position to draw the attention of the court tothose considerations, rooted in the specialized jurisdiction or expertise of the tribunal, which may render reasonable what wouldotherwise appear unreasonable to someone not versed in the intricacies of the specialized area”: British Columbia GovernmentEmployees’ Union v. British Columbia (Industrial Relations Council) (1988), (BC CA), 32 Admin.

L.R. 78, 26B.C.L.R. (2d) 145 (B.C.C.A.), cited with approval in Paccar, supra at page 1016. [32] J.A. Stratas articulates that the general statements above are not to be taken as hard and fast rules “but rather as exercises ofdiscretion based on particular circumstances”. [33] The Supreme Court of Canada in Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44 , [2015] 3SCR 147, endorsed J.A. Stratas’ discretionary approach to allowing tribunal (decision maker) participation in judicial reviews.

[34] In the case before me, no other party stands in opposition to the applicants’ challenge of the respondent’s decision. While theNWMB is clearly interested, knowledgeable, available, and willing to participate in some capacity, they are not prepared to standopposed to the review. Instead, the NWMB wishes only to submit a neutral, transparent path to show the process it was involved in, withall relevant documentation.

No argument or commentary is being offered to be put forward by the NWMB. [35] Counsel agree that the GN can, and must, in the absence of any other opposing party, participate as an adversary to this applicationto ensure the integrity of the process is maintained.

The GN has the requisite knowledge and expertise to respond relevantly and usefullyto the arguments that will be raised by the applicants on the judicial review application. [36] The GN, in making its initial decision, played a regulatory role which does not raise concerns over impartiality to the extent that itwould had the respondent’s decision been made after a contentious hearing. [37] Owing to the above, I find that the participation of the respondent as an adversarial party in this judicial review application isappropriate and necessary to ensure the just adjudication of the litigation.

Counsel for the respondent must limit its submissions to ensurethey do not offend the principles of relevance, usefulness, finality, and impartiality. [38] The respondent may not “defend its decision on a ground that it did not rely on in the decision under review” (Goodis para 42). Therespondent may, however, provide useful and important information and analysis, from the perspective of the decision maker, in supportof the decision that was made. [39] I turn now to the question of what role, if any, should be played by the NWMB. B.

The Role of the NWMB [40] In oral submissions, counsel for the NWMB articulated his client’s position on the application as follows: Let me be specific and also very direct what we want, what the Board wants and what the Board does not want. What we want is, andyou may call it interested-party, intervenor, or amicus status; amicus works, because that was done in the Savic v. GN case of 2004….Inthat particular case, Justice Kilpatrick made a particular group an amicus for the benefit of the court in that particular case, and we relyupon that case and say that that is an appropriate solution if you wish here.

We don’t want party status, adversarial status, either as a respondent or a co-respondent ... As amicus, the Board can assist thisHonourable Court by providing a detailed, neutral, transparent map … And the other side of the coin is if we are pushed into anadversarial role, we cannot provide that mutual assistance to the court, because we would then be an adversary and unwittingly so. [41] In Savic Enterprises, et al. v.

GN, 2004 NUCJ 4 , Justice Kilpatrick granted intervenor status to Arctic Cooperatives Ltd(ACL) on the plaintiff’s motion to compel disclosure on the basis that ACL represented privacy interests of successful cooperativeswhose proposals were the focus of the motion. The plaintiff had sued the GN alleging several improprieties in the award of a contract todistribute bulk fuel to communities in Nunavut.

The GN consented to the addition of ACL as intervenor/amicus, the plaintiffs opposed. [42] Justice Kilpatrick, at paragraphs 17 through 19, explained his reasoning for granting intervenor status: [17] I am satisfied that the disruption arising from a grant of intervener status to ACL is minimal. ACL does not seek status as a full partyto this litigation. Its only involvement is to assert and protect the privacy interests of the successful cooperatives on the motion broughtby the Plaintiffs. No discovery is necessary to facilitate the proposed intervention.

Nor would the proposed intervention add significantlyto the cost or complexity of the proceedings already underway. While some additional delay was necessary to accommodate the hearingof ACL's contested motion for intervener status, in the broader context of this litigation, this delay has been insignificant.

[18] A greater potential disruption to the flow of this litigation would likely arise if the Intervener was forced to commence a separateaction in order to assert and defend the Cooperatives privacy interests.

Given the close connection between the present litigation, therequested disclosure, and the privacy right asserted by the Cooperatives, the balance of convenience favors combining the issues in asingle hearing within the original litigation. [19] The Court is satisfied that ACL should be granted intervener status as Amicus Curiae for the limited purpose of asserting anddefending the Cooperatives privacy interests. This is done to ensure that the unrepresented Cooperatives have a "voice", to ensure thatthe Cooperatives have input into a decision that impacts their privacy interests. [43] In Nunavut v.

J.A. & J.N, 2014 NUCJ 32 , Justice Tulloch denied an application brought by a foster mother to be grantedamicus standing in a child welfare proceeding pursuant to Rule 92 of Nunavut’s rules. In providing her reasons for denying theapplication at paragraphs 12 through 15, J. Tulloch writes: [12] Alternatively, he (counsel for the foster mother) asks the court to allow C.A. leave to appear as amicus curiae in the proceedingsinvolving R.N., pursuant to Rule 92 of the Nunavut Rules of Court, N.W.T.

R-010-96, Rule 27, as duplicated for Nunavut by s.29 ofthe Nunavut Act, S.C. 1993, c. 28 [Rules]. [13] That rule is set out as follows: 92. “With leave of the Court, a person may intervene in a proceeding, without becoming a party to the proceeding as amicus curiae forthe purpose of rendering assistance to the Court by way of argument or by presentation of evidence, on such terms as to costs orotherwise as the Court may impose.” [14] With the greatest of respect to counsel for the applicant, I cannot find that the appointment of C.A. as amicus curiae on theseparticular facts and in this particular case has any basis in law.

The case of R v Wing Toon Lee, (NWT SC), 125 CCC(3d) 363, is just one of many that set out situations where the court would require the assistance of an amicus. None of those situationsapply to this case. [15] The information that C.A. may be able to provide is already known to the Director and, therefore, it does not warrant herappointment in the role of amicus curiae. I therefore dismiss the relief sought in paragraph three of Ms. A’s application. [44] In R v.

Wing Toon Lee, Justice Vertes concluded there were three main situations which call for theappointment of amicus: [11] There are traditionally three situations in which the court appoints an amicus: (

a) where there is a matter of public interest inwhich the court invites the Attorney-General or some other capable individual to intervene; (

b) to prevent an injustice, for example, tomake submissions on points of law that may have been overlooked; and (

c) to represent the unrepresented (this last dates back to Beard vTravers (1749), 27 E.R. 1052). Generally, an amicus curiae is a barrister who assists the court, at the court’s request, and isdisinterested: Canada v Aluminium Co. of Canada (1987), (BC CA), 35 D.L.R. (4th) 495 (B.C.C.A.). [45] I earlier found the GN is able, both from a legal and substantive perspective, to respond to the merits of the application for judicialreview by providing “useful and important information and analysis” from an “informed perspective”.

I do not see the need to add theNWMB as amicus at this stage in the litigation and decline to do so. The information that would presumably be provided by the NWMBwill be tendered by the GN in its now expanded adversarial role as respondent. [46] No injustice is in danger of resulting now that the GN will play the traditional, while somewhat limited, role of adversarialrespondent. No voice will not be heard as the GN and NWMB are co-managers in wildlife regulation and those interests will beadvanced through the respondent on this litigation.

[ 47 ] In the event further assistance is needed to understand the decision that was made, and should the respondent not be able to adequately provide the information necessary, the NWMB could always be looked to in the future through Rule 92 to provide the required assistance. C. HTOs [ 48 ] Absent an application from other specific HTOs to be added to this application, I will not address the request that those HTOs be added based on the interests they share in the outcome of this litigation. V.

CONCLUSION [ 49 ] I have chosen to exercise my discretion in allowing the respondent to participate in this application for judicial review as an adversarial party. Submissions made by the respondent must accord with principles of impartiality, finality, usefulness, and relevance. [ 50 ] The respondent’s capacity to tender useful and important information in response to the application from an informed perspective negates the need for the NWMB to be added as an amicus to the judicial review and I decline to do so. [ 51 ] The parties shall bare their own costs of this discrete appearance.

Dated at the City of Iqaluit this 18th day of November 2022 ___________________ Justice S. Charlesworth Nunavut Court of Justice