IN THE MATTER OF: A reference under the Land Titles Act, 2023 NUCJ 4

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: IN THE MATTER OF: A reference under the Land Titles Act, 2023 NUCJ 4 Date: 20230228 Docket: 08-22-383 Registry: Iqaluit IN THE MATTER OF A reference under the Land Titles Act , R.S.N.W.T. (Nu) 1998, c. 8 __________________________________________________________________ Before: Mr. Justice Scanlan Counsel (Inspector): Counsel (Naqitarvik, Pitula, Akeeagok): Counsel (Baffinland) Counsel (QIA & NTI) E. Carroll A. Crawford T. Kruger C.

Shefman Location Heard: Date Heard: Iqaluit, Nunavut November 9, 2022 Matters: Reference under the Land Titles Act , R.S.N.W.T. (Nu) 1988, c. 8 REASONS FOR DECISION (NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] This matter comes before the Court as a reference under the Land Titles Act , R.S.N.W.T. (Nu) 1988, c. 8. Tom Naqitarvik,

Jonathan Pitula and Christopher Akeeagok (the “Counterclaimants”) forwarded a lis pendens to the Registrar, asking that it be registered against lands leased by Qikiqtani Inuit Association and Nunavut Tunngavik Incorporated (“Qikiqtani and Tunngavik”) to Baffinland Iron Mines Corporation (“Baffinland”). The Registrar in a reference to this Court asks whether the lis pendens is an instrument which can be registered in the circumstances of this case. II. BACKGROUND [ 2 ] In some cases, it is important to be clear what is not being decided by a court.

In this decision I am not determining the merits of any of the claims related to the Baffinland operations. This includes the issue of whether there were any illegal blockades related to mine operations or transportation systems related to the mine. I will not be deciding whether the Baffinland mine operations have improperly affected Inuit hunting rights. I will not be determining the limits or extent of individual or collective Inuit hunting rights or any limits to their right to access Inuit lands in Nunavut.

I will not be deciding whether the mine operations or transportation of ore from the mine, over land or water has caused any pollution or damage or breached any environmental statutes or regulations. [ 3 ] For context only, I set out here in general terms, the background of this case. A review of reported decisions contains more complete details of earlier related decisions: Baffinland Iron Mines Corporation v. Inuavak et al , 2021 NUCJ 11 ; 2021 NUCJ 18 ; 2021 NUCJ 22 . [ 4 ] In February of 2021 there were approximately 700 employees working at the Baffinland mine site in northern Baffin Island.

The mine is in a remote location and workers are transported to and from the mine using a private on-site airstrip. The ore produced at the mine is transported throughout the year, weather permitting, to dock side. The dock is at Milne Port, and is transported, over a private “Tote Road” which was purpose built. Ore is then transported seasonally by ship from that port.

The number of mine employees alone, suggests this is a substantial operation and, according to submissions, the mine produces some of the richest iron ore in the world. [ 5 ] A number of individuals, including Tom Naqitarvik, Jonathan Pitula and Christopher Akeeagok (the “Counterclaimants”) are alleged to have set up camps on the airstrip and on the “Tote Road” in February 2021. This essentially caused a stoppage of ore production and transportation. The project site is a fly in-fly out location so with the airstrip unavailable, employees could not come to or leave the mine site.

Ore could not be transported as the “Tote Road” was obstructed. [ 6 ] “Baffinland” applied for and obtained; first a temporary, then permanent injunction, ordering named individuals including the “Counterclaimants” and unnamed individuals not to block the runway or “Tote Road”. There was an appeal filed in relation to the permanent injunction. After I heard arguments on this reference there was an application to strike the appeal and that application was dismissed. ( Baffinland Iron Mines Corporation v.

Naqitarvik, 2022 NUCA 10 ) [ 7 ] On February 9 2021 “Baffinland” filed a statement of claim against named individuals claiming damages arising from the alleged impedance of the airstrip and the “Tote Road”. A permanent injunction was granted on March 2, 2021. The “Counterclaimants” filed a defence and counterclaim related to that statement of claim. It is in association with that counterclaim that the “Counterclaimants” attempted to file the lis pendens which is the subject of this reference by the Registrar. III.

ANALYSIS [ 8 ] The issue before me is very narrow, whether the lis pendens in this case can be registered against “Baffinland” lands leased from “Qikiqtani and Tunnqavik”.

In order to give context to my analysis I explain only in the broadest of terms, some unique considerations relevant to this application. [ 9 ] Pursuant to an agreement: (“Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada, May 25, 1993, ( Nunavut Land Claims Agreement Act , S.C. 1993, c.29 ) (the “ Land Settlement Agreement ”) almost all lands in Nunavut are held collectively in fee simple by and for the Inuit people.

Those lands cannot be sold but they can be leased. [ 10 ] There are three regions in Nunavut, and within each of those regions the lands are controlled by Inuit associations and/or corporations for the benefit of persons living within those regions.

In the case of the lands where “Baffinland” mine operations exist, “Qikiqtani and Tunngavik” negotiate the lease and the operating agreements, including the agreements related to “Baffinland”. (see: The Mary River Project Inuit Impact and Benefit Agreement between Qikiqtanit Inuit Association and Baffinland Iron Mines Corporation, October 22, 2018) (the “Impact and Benefit Agreement”)

[ 11 ] The funds received by “Qikiqtani and Tunngavik” are used to pay things like elder pensions, funding of hunter and trapper associations and other projects identified as priorities by “Qikiqtani and Tunngavik”. Only Inuit are eligible to run for and sit as board members and officers, of “Qikiqtani and Tunngavik”. In other words natural resources are controlled by and for the various Inuit communities.

It is those members and officers alone who negotiate the leases and operating agreements in place for operations such as “Baffinland”. [ 12 ] Under the terms of the “Lands Settlement Agreement” all Inuit have a right to access and hunt on almost all land in Nunavut. In the “Impact and Benefits Agreement” the parties acknowledged that hunting, access and travel patterns would be impacted by mining operations. It also acknowledged that the “Impact and Benefits Agreement” did not intend to change the Inuit right of access under the “Lands Settlement Agreement”. In

Article 13 of the “Impact and Benefits Agreement”, “Baffinland” agreed to set up fuel depots and food stations where hunters could obtain fuel and food to offset the cost and time related to detours and travel around and away from mine operations. This would facilitate travel to alternate hunting grounds.

Article 13.4 of the “Impact and Benefits Agreement”, and I summarize only, provided that; while Inuit engaged in traditional activities, they could have access to all of the Project Area except where project activity is undertaken. I consider the mine site including the air strip and “Tote Road” areas ‘where project activity is undertaken’. With that exception Inuit were still entitled to access the lands leased to “Baffinland”. See Appendix A,

Article 13 of the “Impact and Benefits Agreement”. [ 13 ] I briefly summarize the “Counterclaimants” arguments. They assert that their lands, hunting rights and the environment (including wildlife) are being adversely and illegally affected by dust pollution from the mine site and “Tote Road” and by noise pollution from the port operations. [ 14 ] Under the Environmental Rights Act, R.S.N.W.T. (Nu) 1988, c. 83 (Supp .) any person, resident in Nunavut for two years or more, has standing to take action in relation to complaints under that legislation.

The “Counterclaimants” have filed complaints under that Act. [ 15 ] As noted above the “Counterclaimants” forwarded a lis pendens to the Registrar to be registered against “Baffinland’s” leased properties. The Registrar was uncertain as to whether the lis pendens should be registered and therefore filed a reference pursuant to

Section 172 of the Land Titles Act. 172

(1) A Registrar may, … (

b) where in the exercise of any duty of a Registrar, a question arises as to the true construction or legal validity or effect of any instrument or caveat, or as to persons entitled, or as to the extent or nature of the estate, right or interest, power or authority of any person or class of persons, (

c) where a question arises respecting the making of an entry in the day-book, general register or writ book, or a memorandum on a certificate of title or duplicate, or (

d) where a question arises as to any doubtful or uncertain right or interest in stated or claimed in an instrument or caveat submitted to the Registrar, refer the question in the prescribed form to a judge.

(2) Where a question mentioned in subsection (1) is referred to a judge, the judge may allow any person having an interest in the reference to appear before the judge and may summon any person that the judge believes has an interest in the reference to appear and show cause in relation to the question.

(3) The judge, having regard to the persons appearing at the hearing of the reference, whether summoned or not, shall provide an answer to the question or direct that proceedings be commenced for that purpose. [ 16 ] An essential aspect of a lis pendens is that the claimant has a claim that may result in the claimant obtaining an interest in the land. Therefore I consider the issue of whether the “Counterclaimants” have or could obtain an “interest or estate in lands” through the counterclaim, sufficient to file a lis pendens . [ 17 ] The Rules of the Supreme Court of the Northwest Territories , N.W.T.

Reg. (Nu) 010-96 as amended R-024-96 (the “Judicature Act”) govern the filing of lis pendens . S. 476 (1)Where an action is commenced in which an interest or estate in land is in question, the Clerk may issue a certificate of pending litigation in Form 41.

(2) A party who seeks a certificate of pending litigation shall include, in the pleading that commences the action, a claim for it with a description of the land in question sufficient, for the purpose of registration in a land titles office, to identify the land. [ 18 ] As noted in Blue Hill Capital Corporation and Kenneth Rusnak v.

Daon Property Corporation , 2014 ABCA 282 , para. 8 “But a caveat (or lis pendens ) requires an interest in land (or a suit for an interest in land): Land Titles Act , ss. 130, 148.” The issue before the court therefore is, what is an “interest or estate in land” sufficient to permit filing of a certificate of pending litigation. [ 19 ] “Interest in land” has taken on various meanings in the common law context and pursuant to various legislative enactments.

Of note is the fact that the “Counterclaimants” have the right to access and to hunt on the lands in question and to file an action complaining of environmental pollution. This alone does not give them an interest in the lands sufficient to file a lis pendens .

This issue is what interest in land do they stand to acquire through the counterclaim. [ 20 ] Although the “Counterclaimants" as Inuit share in the collective “interest in lands” there is nothing in the counterclaim that can expand their “interest in land”. [ 21 ] To the extent that mine operations impact hunting and access, Qikiqtani and Tunngavik have entered into an agreement that provides mine operations can continue within the terms of those agreements . The counterclaim asserts that dust and noise pollution affect a large geographical area well beyond the areas leased to “Baffinland”.

Earlier decisions related to these parties suggest that the nearest affected communities are two days travel by snowmobile (hundreds of miles) from the mine site. While it is not clear the extent of the area the counterclaimants assert as having been impacted, if the claim extends to the nearest communities, then potentially tens of thousands of square miles are claimed to be affected by the mine operations (dust and/or noise pollution). That is well beyond the boundaries of the “Baffinland” leases.

For the purposes of this application, it is only the lands leased by “Baffinland” that are in play. [ 22 ] Is there a possible avenue for them to gain an additional “interest in lands” leased to “Baffinland” through the counterclaim? The short answer is no. [ 23 ] The Counterclaimants rely on the counterclaim as the basis to file the lis pendens. In Mitchelson v. Jahnke (Aspen Village Land Corporation) , 2009 SKQB 138 , Ball, J. noted: [14] A certificate of pending litigation (or “lis pendens”) may be issued where a plaintiff commences an action which brings the title to or interest in land into question.

The effect of the lis pendens is to give notice that the present owner’s title is being questioned. Where it is clear that even if the plaintiff succeeds in his claim, it will not give him any title to or interest in the land, the lis pendens will be vacated. … [ 24 ] There are limits to the ways a plaintiff can acquire or be entitled to an “interest in lands”. As noted by Victor Di Castri, Q.C., Registration of Title to Land, Vol. 2, looseleaf ed. (Toronto: Thomson Reuters Canada, 1988)

Chapter 15; [664.2] The following have been held to be sufficient interests inland to entitle a party to a certificate of lis pendens: • a right of first refusal; • a claim for specific performance; • obligations of a fiduciary nature giving rise to an interest in land; • a claim, even a novel claim, to a constructive trust; • the filing of an appeal by a subsequent encumbrancer in a foreclosure action. [ 25 ] While I am satisfied the list above is not complete, the common element is the assertion that the claimant has, or will establish, the right to a title interest in the land through litigation. [ 26 ] As noted in Blue Hill: [9] “A damage claim will not support a caveat or lis pendens.

See Main v. Jeerh, 2006 ABCA 138 ; 395432 Alta v. Broadcast Hill Hldg, 2003 ABCA 96 ; MCL Development Corp v. Harbour First Mortgage Fund, 2012 ABQB 555 ; Lamont (Town) v. Jabneel Development, 2014 ABQB 328 . …

[ 27 ] While in this case the lis pendens has not yet been registered, the considerations remain the same as cases where the court is asked to order the removal of a lis pendens from the registry. [ 28 ] In the counterclaim the relief requested in relation to the lands leased by “Baffinland” is set out as follows: 13.

The Defendants seek in relation to the Dust Contamination: a. an interim and permanent injunction prohibiting the activity of Baffinland; b. an Order requiring the Baffinland to remedy the damage caused; c. an Order that the Baffinland pay satisfaction or compensation for the damages caused to date for loss and damages to any persons holding and exercising hunting rights in the Dust-impacted Area consistent with the terms of the Environmental Rights Act of Nunavut ; d.

Any other Order considered appropriate by this Honourable Court. [ 29 ] I do not reference the relief requested in paragraph 10 of the counterclaim as it relates to alleged impacts in areas other than the lands leased by “Baffinland”. [ 30 ] Paragraph 15 of the counterclaim says: 15. The Defendants assert continuing rights and interest in the Lands, including the Dust-Impacted lands and waters subject to Sound Contamination and assert that those interest(

s) and their claims and damages in this Counterclaim constitute interests in land. [ 31 ] I am satisfied the remedies sought will not provide them with any additional “interest in lands”. Their collective interest remains intact, but the claim before the court will provide no additional “interest in land” sufficient to file a lis pendens. IV. DISPOSITION [ 32 ] The Registrar shall not file the lis pendens. Dated at the City of Iqaluit this 28th day of February, 2023 ___________________ Justice T. Scanlan Nunavut Court of Justice