2021 FCA 184, 2021 FCA 184

A-447-19 (lead file) A-445-19 A-448-19 2021 FCA 184 Makivik Corporation, the Grand Council of the Crees, and Nunavik Marine Region Wildlife Board ( Appellants/Respondents by cross- appeal ) v. The Attorney General of Canada ( Respondent/Appellant by cross-appeal ) and Nunavut Tunngavik Incorporated ( Intervener ) Indexed as: Makivik Corporation v. Canada (Attorney General) Federal Court of Appeal, Webb, Laskin and Mactavish JJ.A.—By videoconference, June 7 and 8; Ottawa, September 21, 2021.

Aboriginal Peoples — Lands — Nunavik Inuit Land Claims Agreement — Wildlife management — Appeal from decision of Federal Court dismissing application for judicial review of decision of Minister of Environment and Climate Change (Minister) to vary annual total allowable take (TAT) of polar bears in Southern Hudson Bay, set by Nunavik Marine Region Wildlife Board (NMRWB) — Nunavik Inuit Land Claims Agreement (NILCA),

Article 5 establishing co-management regime for wildlife — Minister reduced TAT, established certain non-quota limitations (NQLs) on harvesting — Appellant Makivik Corporation questioning Minister’s jurisdiction, reasonableness or correctness of her decision — Federal Court declining to grant declaratory relief — Applicants submitting Federal Court made errors of principle, of law, of mixed fact and law in deciding issues raised by its application, in declining to grant declaratory relief — Respondent’s cross-appeal related to granting by Federal Court of motion by Makivik to strike out portion of affidavit — Minister explaining decision taking into account fact differences existing between available scientific information, Inuit traditional knowledge — Whether Minister gave full regard to integration of Nunavik Inuit knowledge when making decision; whether Minister’s approach to Board’s traditional knowledge study was in accordance with NILCA, honour of Crown; whether NILCA authorizes Minister’s reliance on “cautious management approach” as justification for limiting Nunavik Inuit harvesting; whether NILCA authorizes Minister to consider politics of international trade, issues related to Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES); whether decision to vary non-quota limitations established by NMRWB unlawful; whether declaratory relief should be granted — No basis to interfere with Federal Court finding that Minister took into account Inuit traditional knowledge in coming to decision — Processes followed by NMRWB, Minister not dissimilar — Minister having to give NMRWB reasons in writing for rejecting initial decision of NMRWB — Failure of Minister to do so herein constituting less-than-purposive

interpretation, implementation of NILCA’s requirements to give reasons, breach of honour of Crown — Failure to communicate Environment and Climate Change’s concerns could also be characterized as breach of procedural fairness — Minister cautious in fixing TAT — O pen for Minister to do so, to conclude that TAT necessary to effect conservation purpose — Both NMRWB, Minister entitled under NILCA to come to judgment on that question — NILCA not barring NMRWB or Minister from taking into account CITES — Open to Minister to consider CITES under certain conditions — Failure to communicate in reasons any concerns about non-quota limitations established by NMRWB in its initial decision breach of honour of Crown — Good reasons in this case to grant declaratory relief, despite Supreme Court directive in First Nation of Nacho Nyak Dun v.

Yukon to exercise judicial forbearance, restraint — Circumstances changed since Federal Court making its remedial decision — Here, Minister’s conduct in relation to non-quota limitations, Inuit traditional knowledge failing to uphold honour of Crown — Prerequisites for granting declaratory relief met in this case — Crown failing to interpret, implement process to determine TAT, non-quota limitations for Southern Hudson Bay subpopulation of polar bears in accordance with honour of Crown — Appeal allowed in part; cross-appeal dismissed.

Administrative Law — Judicial Review — Standard of Review — Federal Court dismissing application for judicial review of decision of Minister of Environment and Climate Change (Minister) to vary annual total allowable take (TAT) of polar bears in Southern Hudson Bay, set by Nunavik Marine Region Wildlife Board (NMRWB) — Nunavik Inuit Land Claims Agreement (NILCA) establishing co- management regime for wildlife — Minister reduced TAT, established certain non-quota limitations on harvesting — Federal Court dealt with standard of review applicable to Minister’s decision before Supreme Court recast law of judicial review in Canada (Minister of Citizenship and Immigration) v.

Vavilov — Federal Court concluded that whether Minister adhered to decision-making process set out in NILCA should be reviewed on correctness standard, but that Minister’s decision as whole should be reviewed on standard of reasonableness — Appellant Makivik Corporation submitting that Court should apply appellate standard of review set out in Agraira v.

Canada (Public Safety and Emergency Preparedness), except on question of whether appropriate to grant declaratory relief on component of Minister’s decision found unreasonable — Further submitting that Federal Court’s decision on standard of review ignored principles of modern treaty

interpretation set out by Supreme Court in First Nation of Nacho Nyak Dun v. Yukon — What are the principles applicable to the

interpretation of modern treaties and how do they determine the approach to the review of the Minister’s decision? — C orrectness standard of review applicable to Minister’s decision on matters of treaty

interpretation, scope of Aboriginal,

treaty rights under Constitution Act, 1982, s. 35 , procedural fairness — First, that standard consistent with Vavilov — No reason not to apply Vavilov because it dealt only with standard of review in administrative matters — Standard of review in Aboriginal and treaty rights expressly addressed therein — Second, this was consistent with both what occurred, what was said in Nacho Nyak Dun — Modern treaties intended to renew relationship between Indigenous peoples, Crown to one of equal partnership — Deferring to “partner’s” view of meaning of or compliance with treaty inconsistent with nature of that relationship — Authority of Minister to vary or reject decisions of NMRWB not limited to cases in which NMRWB’s decision unreasonable or unlawful.

This was an appeal from a decision of the Federal Court dismissing an application for judicial review of the decision of the Minister of the Environment and Climate Change (Minister) to vary the annual total allowable take (TAT) — the total number that can be lawfully harvested — of 28 polar bears in the Southern Hudson Bay management unit of the Nunavik Marine Region, set by the Nunavik Marine Region Wildlife Board (NMRWB). The Nunavik Inuit Land Claims Agreement (NILCA) is a modern treaty between the Nunavik Inuit, represented by the appellant Makivik Corporation, and the Government of Canada.

Article 5 of NILCA establishes a co-management regime for wildlife. In her decision, the Minister reduced the TAT to 23 polar bears, established certain non-quota limitations on harvesting that the NMRWB had rejected, and rejected certain other NQLs that the NMRWB had established. The appellant Makivik Corporation sought declaratory relief. It raised several issues questioning the Minister’s jurisdiction and the reasonableness or correctness of her decision. The Federal Court exercised its discretion to decline to grant declaratory relief.

It found, among other things, that to grant declaratory relief at the current stage of development of the wildlife management system would adversely affect the parties’ intention to improve the system, and would be premature. It also took into account the Supreme Court’s call, in First Nation of Nacho Nyak Dun v. Yukon ( Nacho Nyak Dun ), for judicial forbearance from closely supervising the conduct of parties to modern treaties.

The applicants submitted herein that the Federal Court made errors of principle, of law, and of mixed fact and law in deciding the issues raised by its application, and in declining to grant declaratory relief. The respondent’s cross-appeal related to the granting by the Federal Court of a motion by Makivik to strike out a portion of an affidavit filed by the respondent. The Minister explained that her decision “[took] into account that there are differences between the available scientific information and Traditional Knowledge”.

The decision also recognized “the need to exercise caution so as to ensure a sustainable harvest, and the fact that once new information [was] available, the TAT [could] be reassessed.” The Federal Court dealt with the standard of review applicable to the Minister’s decision before the Supreme Court recast the law of judicial review in Canada (Minister of Citizenship and Immigration) v. Vavilov .

The Federal Court concluded that whether the Minister adhered to the decision-making process set out in NILCA should be reviewed on the correctness standard, but that the Minister’s decision as a whole should be reviewed on the standard of reasonableness. Makivik submitted that the Court should apply the appellate standard of review set out in Agraira v. Canada (Public Safety and Emergency Preparedness) . Makivik further submitted that the Federal Court’s decision on standard of review ignored the principles of modern treaty

interpretation set out and applied by the Supreme Court in Nacho Nyak Dun , and that it should have applied those principles rather than administrative law principles in determining the standard of review. It was necessary to identify the principles applicable to the

interpretation of modern treaties and how they determine the approach to the review of the Minister’s decision.

Other issues included whether the Minister gave full regard to the integration of Nunavik Inuit knowledge when making her decision; whether the Minister’s approach to the Boards’ traditional knowledge study was in accordance with NILCA and the honour of the Crown; whether NILCA authorizes the Minister’s reliance on a “cautious management approach” as justification for limiting Nunavik Inuit harvesting; whether NILCA authorizes the Minister to consider the politics of international trade and/or issues related to the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) when making her decision; whether the Minister’s decision to vary the non-quota limitations established by the NMRWB was unlawful, and whether declaratory relief should be granted.

Held , the appeal should be allowed in part; the cross-appeal should be dismissed. The standard of review applicable to the Minister’s decision was correctness on matters of treaty

interpretation, the scope of Aboriginal and treaty rights under

section 35 of the Constitution Act, 1982 , and procedural fairness, and reasonableness for any decisions outside these categories. This conclusion was reached for two reasons. First, this was consistent with Vavilov —with the presumptive standard of reasonableness on judicial review and the correctness exceptions that it sets out for questions regarding the scope of Aboriginal and treaty rights under

section 35 . There was no reason not to apply Vavilov in this case because it dealt only with the standard of review in administrative matters. The Supreme Court in Vavilov expressly addressed the standard of review in Aboriginal and treaty rights and other constitutional matters. Moreover, modern treaties “are designed to place Aboriginal and non-Aboriginal relations in the mainstream legal system”. That system includes administrative law, which “is flexible enough to give full weight to the constitutional interests of” Indigenous peoples ( Beckman v. Little Salmon/Carmacks First Nation ).

Second, this was consistent with both what occurred, and what was said, in Nacho Nyak Dun . While the Supreme Court did not expressly address standard of review in its decision, both lower courts did, and both applied the correctness standard. Their doing so attracted no criticism from the Supreme Court. As stated in Nacho Nyak Dun , “[m]odern treaties are intended to renew the relationship between Indigenous peoples and the Crown to one of equal partnership”. Deferring to one “partner’s” view of the meaning of or compliance with the treaty would be inconsistent with the nature of that relationship.

Prior to Vavilov , it had been recognized that, while questions of constitutional

interpretation were reviewable for correctness, any extricable findings of fact, and the assessment of the evidence on which the constitutional analysis was premised, were entitled to deference, and were therefore reviewable for reasonableness. Vavilov has not affected this position. The authority of the Minister to vary or reject decisions of the NMRWB is not limited to cases in which the NMRWB’s decision is unreasonable or unlawful. There was no basis to interfere with the finding of the Federal Court that the Minister took into account the available Inuit traditional knowledge in coming to her decision.

There was no doubt that the NMRWB and the Minister came to different conclusions. But the processes they followed were not dissimilar: they amounted in both cases to reviewing information that was before them—both science- based information and Inuit traditional knowledge—and coming to a judgment based on all of what they reviewed. If the NMRWB engaged in integration, the Minister must be said to have done so too. The requirements in NILCA for the Minister to give reasons must be interpreted purposively.

The Minister must give the NMRWB reasons in writing for rejecting an initial decision of the NMRWB to enable the NMRWB to “reconsider the decision in light of the

written reasons provided by the Minister and make a final decision.” In this way, as under the scheme considered in Nacho Nyak Dun , each step in the process can build on decisions at an earlier stage. The failure of the Minister to do so in varying the NMRWB’s final decision constituted a less-than-purposive

interpretation and implementation of NILCA’s requirements to give reasons, and a breach of the honour of the Crown. That is especially so given the importance that NILCA ascribes to Inuit traditional knowledge. The failure to communicate Environment and Climate Change’s concerns in this case could also be characterized as a breach of procedural fairness, also subject to the correctness standard, on the basis that it denied the NMRWB the opportunity to address those concerns in its final decision. The Minister chose to be cautious in fixing a TAT in light of the factual uncertainties that she identified.

Under the terms of NILCA, it was open to her to do so, and to conclude that the TAT that she established was, in the language of paragraph 5.5.3(a), “necessary … to effect a conservation purpose.” While the NMRWB and the Minister plainly had different perspectives on what level of TAT would be cautious, or prudent, they were both entitled under NILCA to come to a judgment on that question. NILCA requires the NMRWB and the Minister to take into account the two categories of agreements that come within it, i.e. domestic interjurisdictional agreements and international agreements relating to wildlife.

But it does not bar the NMRWB or the Minister from taking into account other categories of agreements that do not come within it. This means that even if CITES is not an international agreement relating to wildlife within the meaning of NILCA, it was open to the Minister to consider it, provided that it could be regarded as relevant under the scheme of the NILCA and there were no other provisions precluding the Minister from taking it into account. Here, both of these prerequisites were met.

On much the same basis as the Minister’s failure to communicate through reasons Environment and Climate Change’s methodological concerns, the failure to communicate in reasons any concerns about the non-quota limitations established by the NMRWB in its initial decision was a breach of the honour of the Crown. The effect of the breach was to deny the NMRWB an opportunity to address these concerns in its final decision, and to stifle the dialogue for which the NILCA process was intended to provide.

There were good reasons to grant declaratory relief, despite the directive in Nacho Nyak Dun to exercise judicial forbearance and restraint. Circumstances had changed since the Federal Court made its remedial decision. While the Federal Court found that the Minister had acted unreasonably in relation to the NQLs, here it was determined that the Minister’s conduct in relation not only to the NQLs but also to Inuit traditional knowledge failed to uphold the honour of the Crown. These findings called for a fresh exercise of discretion.

The prerequisites for granting declaratory relief were met in this case: there was no question as to the Court’s jurisdiction; the dispute was real; Makivik had a genuine interest in its resolution; and the respondent had an interest in opposing the declaration sought. Finally, a formal judgment granting declaratory relief would add further solemnity to the Court’s conclusions, it would help to underline the importance in the reconciliation endeavour of the Crown’s honouring its

section 35 obligations, and it would be more consistent with the Supreme Court’s admonition that “judicial forbearance should not come at the expense of adequate scrutiny of Crown conduct to ensure constitutional compliance”. The appeal was allowed in part. It was declared that, in participating in the decision-making process under the NILCA to determine the TAT and non-quota limitations for the Southern Hudson Bay subpopulation of polar bears, the Crown failed to interpret and implement that process in accordance with the honour of the Crown. The cross-appeal was dismissed. STATUTES AND REGULATIONS CITED Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35 . Federal Courts Act , R.S.C., 1985, c. F-7, ss. 18 , 52 (b)(i). Federal Courts Rules , SOR/98-106, r. 301 .

Interpretation Act , R.S.C., 1985, c. I-21, s. 12 . TREATIES AND OTHER INSTRUMENTS CITED Agreement between the Crees of Eeyou Istchee and Her Majesty the Queen in right of Canada concerning the Eeyou Marine Region , signed on July 7, 2010. Convention on International Trade in Endangered Species of Wild Fauna and Flora , July 1, 1975, 993 U.N.T.S. 243. Nunavik Inuit Land Claims Agreement , signed December 1, 2006. CASES CITED APPLIED: First Nation of Nacho Nyak Dun v. Yukon , 2017 SCC 58 , [2017] 2 S.C.R. 576, revg in

part 2015 YKCA 18 , 95 C.E.L.R. (3d) 187, revg in

part 2014 YKSC 69 , 91 C.E.L.R. (3d) 286; Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559; Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653; Ewert v. Canada , 2018 SCC 30 , [2018] 2 S.C.R. 165. CONSIDERED: Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship) , 2020 FCA 196 , [2021] 1 F.C.R. 271 ; Beckman v. Little Salmon/Carmacks First Nation , 2010 SCC 53 , [2010] 3 S.C.R. 103; Manitoba Metis Federation Inc. v.

Canada (Attorney General) , 2013 SCC 14 , [2013] 1 S.C.R. 623; Clyde River (Hamlet) v. Petroleum Geo-Services Inc. , 2017 SCC 40 , [2017] 1 S.C.R. 1069; Castonguay Blasting Ltd. v. Ontario (Environment) , 2013 SCC 52 , [2013] 3 S.C.R. 323.

REFERRED TO: Larsson v. Canada, (FCA), [1997] F.C.J. No. 1044 (QL) (C.A.), (1997), 216 N.R. 315; Systèmes Equinox Inc. v.Canada (Public Works and Government Services), 2012 FCA 51, 428 N.R. 303; Shoan v. Canada (Attorney General), 2020 FCA 174;Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713; Bessette v. British Columbia (Attorney General),2019 SCC 31, [2019] 2 S.C.R. 535; Entertainment Software Association v. Society of Composers, Authors and Music Publishers ofCanada, 2020 FCA 100, [2021] 1 F.C.R. 374; Sturgeon Lake Cree Nation v.

Hamelin, 2018 FCA 131, 424 D.L.R. (4th) 366; Canada v.Long Plain First Nation, 2015 FCA 177, 388 D.L.R. (4th) 209; Schmidt v. Canada (Attorney General), 2018 FCA 55,[2019] 2 F.C.R. 376; Canada (Attorney General) v. Distribution G.V.A. Inc., 2018 FCA 146; Canada (Citizenship and Immigration) v.Tennant, 2019 FCA 206, [2020] 1 F.C.R. 231; Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53,[2009] 3 S.C.R. 407; Revell v. Canada (Citizenship and Immigration), 2019 FCA 262, [2020] 2 F.C.R. 355, leave to appeal to S.C.C.refused, [2019] S.C.C.A.

No. 478 (QL), [2020] 1 S.C.R. xvi; ‘Namgis First Nation v. Canada (Fisheries and Oceans), 2020 FCA 122,[2020] 4 F.C.R. 678; Gift Lake Métis Settlement v. Alberta (Aboriginal Relations), 2019 ABCA 134 , 84 Alta. L.R. (6th) 223;Procureur général du Québec c. Association canadienne des télécommunications sans fil, 2021 QCCA 730; Mikisew Cree First Nationv. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765; Sattva Capital Corp. v. Creston Moly Corp.,2014 SCC 53, [2014] 2 S.C.R. 633; ‘Namgis First Nation v. Canada (Fisheries and Oceans), 2019 FCA 149; Solosky v.

The Queen,[1980] 1 S.C.R. 821, ; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, affg2002 BCCA 147, 99 B.C.L.R. (3d) 209; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; IrisTechnologies Inc. v. Canada (National Revenue), 2020 FCA 117, [2020] G.S.T.C. 25. AUTHORS CITED Dylan, Daniel W. “Wildlife Management, Privative Clauses, Standards of Review, and Inuit Qaujimajatuqangit: The Dimensions ofJudicial Review in Nunavut” (2021), 34 Can. J. Admin. L. & Prac. 265. Merriam-Webster Dictionary, “integrate”, online: <https://merriam-webster.com>.

APPEAL from a decision of the Federal Court (2019 FC 1297) varying a decision of the Nunavik Marine Region Wildlife Board that hadset an annual total allowable take of 28 polar bears in the Southern Hudson Bay management unit of the Nunavik Marine Region. Appealallowed in part, cross appeal dismissed. APPEARANCES Nick Dodd and David Janzen for appellant/respondent by cross-appeal Makivik Corporation. Jean-Sébastien Clément and Alex O'Reilly for appellant/respondent by cross-appeal Grand Council of the Crees. Cristina Birks for appellant/respondent by cross-appeal Nunavik Marine Region Wildlife Board.

Pavol Janura and Vincent Veilleux for respondent/appellant by cross-appeal. Christopher C. Rootham for intervener. SOLICITORS OF RECORD Dionne Schulze s.e.n.c., Montréal, for appellant/respondent by cross-appeal Makivik Corporation. Gowling WLG (Canada) LLP, Montréal, for appellant/respondent by cross-appeal Grand Council of the Crees. Borden Ladner Gervais LLP, Montréal, appellant/respondent by cross-appeal Nunavik Marine Region Wildlife Board. Deputy Attorney General of Canada for respondent/appellant by cross-appeal. Nelligan O’Brien Payne LLP, Ottawa, for intervener.

The following are the reasons for judgment rendered in English by Laskin J.A.: Table of Contents I. Introduction II. The NILCA wildlife management regime A. Principles and objective B. The NMRWB’s composition and mandate C. Decision-making criteria D. Decision-making process III. The decision-making process for SHB polar bears

IV. The application for judicial review V. Relief sought on appeal VI. Issues VII. Analysis A. What are the principles applicable to the

interpretation of modern treaties and how do they determine this Court’s approach to the review of the Minister’s decision? This includes the standard of appellate review and the standard of review applicable to the Minister’s decision .

(1) Modern treaty

interpretation

(2) Appellate standard of review

(3) Standard of review of the Minister’s decision B. Did the Minister give full regard to the integration of Nunavik Inuit knowledge of wildlife and wildlife habitat with knowledge gained through scientific research when making her decision? C. Was the Minister’s approach to the Boards’ traditional knowledge study in accordance with NILCA and the honour of the Crown? D. Does NILCA authorize the Minister’s reliance on a “cautious management approach” as justification for limiting Nunavik Inuit harvesting? E.

Does NILCA authorize the Minister to consider the politics of international trade and/or issues related to CITES (the Convention on International Trade in Endangered Species of Wild Flora and Fauna ) when making her decision? F. Was the Minister’s reliance on the 2014 voluntary agreement authorized by NILCA and in accordance with the honour of the Crown? G. Was the Minister’s decision to vary the non-quota limitations established by the Boards authorized by NILCA? If yes, was it nonetheless unlawful? H.

Did the application judge commit reviewable error in granting Makivik’s motion to strike out certain portions of the evidence filed by the Attorney General? I. Should this Court grant declaratory relief? VIII. Proposed disposition I. Introduction [Back to table of contents ] [ 1 ] The Nunavik Inuit Land Claims Agreement (NILCA * ) is a modern treaty between the Nunavik Inuit, represented by the appellant Makivik Corporation, and the Government of Canada. It applies to the offshore region around northern Quebec, northern Labrador and offshore northern Labrador.

The rights that it grants to the Nunavut Inuit are constitutionally protected by

section 35 of the Constitution Act, 1982 . [ 2 ] Among the many important provisions of NILCA is

Article 5, which establishes a co-management regime for wildlife in the Nunavik Marine Region (NMR). This regime contemplates decision-making roles for both the Nunavik Marine Region Wildlife Board (NMRWB), established under NILCA, and federal and Nunavut Ministers. It also contemplates that in the operation of the regime, Nunavik Inuit approaches to wildlife management, and Nunavik Inuit traditional knowledge of wildlife and wildlife habitat, will be integrated with knowledge gained through scientific research. [ 3 ] The species subject to this regime include the polar bear.

Polar bears are of great cultural, nutritional, social, and economic significance for the Nunavik Inuit. They have harvested polar bears for thousands of years. [ 4 ] This appeal arises from the decision of the Minister of the Environment and Climate Change Canada—the first of its kind by the Minister under NILCA—to vary a decision of the NMRWB.

Acting in response to a request by a predecessor of the Minister, the Board had set an annual total allowable take (TAT)—the total number that can be lawfully harvested—of 28 bears for polar bears in the Southern Hudson Bay (SHB) management unit of the NMR. † In her decision, the Minister reduced the TAT to 23, and also, among other things, established certain non-quota limitations (NQLs) on harvesting that the NMRWB had rejected and rejected certain other NQLs that the NMRWB had established. [ 5 ] Makivik brought an application for judicial review of the Minister’s decision in the Federal Court.

As first constituted, the application sought both a declaration that the Minister’s decision was unauthorized or invalid, and an order quashing the decision and remitting the matter to the Minister to make a new decision. Makivik subsequently amended its notice of application to claim only declaratory relief. It raised a total of 10 issues questioning the Minister’s jurisdiction and the reasonableness or correctness of her decision.

These included issues as to the role that Inuit traditional knowledge played — or, according to Makivik, should have played—in the Minister’s decision. [ 6 ] In its argument in the Federal Court, the NMRWB, a respondent to Makivik’s application, also sought declaratory relief, though it did not commence its own application for judicial review. The declarations it sought overlapped to some degree with those sought by Makivik, but were cast in more general terms. In view of this overlap and the manner in which the parties had made their arguments, the

application judge dealt with the issues as they had been identified by Makivik. [ 7 ] The application judge dismissed the application ( 2019 FC 1297 , Favel J.). He found fault with the Minister’s decision on one of the 10 issues raised by Makivik, that relating to NQLs. However, he exercised his discretion to decline to grant declaratory relief. He found among other things that to grant declaratory relief at the current stage of development of the wildlife management system would adversely affect the parties’ intention to improve the system, and would be premature.

He also took into account the Supreme Court’s call, in First Nation of Nacho Nyak Dun v. Yukon , 2017 SCC 58 , [2017] 2 S.C.R. 576 [ Nacho Nyak Dun ], at paragraphs 33 , 60, for judicial forbearance from closely supervising the conduct of parties to modern treaties. [ 8 ] Makivik, the Grand Council of the Crees (GCC) (which represents the Crees of Eeyou Istchee) and the NMRWB now appeal from the judgment of the application judge dismissing the application.

Makivik submits that the application judge made errors of principle, of law, and of mixed fact and law in deciding the issues raised by its application for judicial review, and in declining to grant declaratory relief. It sets out a series of declarations that it submits this Court should grant. [ 9 ] Both the GCC and the NMRWB also allege errors on the part of the application judge, and seek declaratory relief.

The declarations that they claim are cast in terms different from, though they again in part overlap with, those sought by Makivik. [ 10 ] The respondent, the Attorney General of Canada, cross-appeals from the granting by the application judge of a motion by Makivik to strike out a portion of an affidavit of Dr. Rachel Vallender, filed by the Attorney General. The motion was brought on the basis that the targeted portions of the affidavit set out new information that had not been available to the Minister when she made her decision, and was therefore inadmissible on judicial review.

The Attorney General submits that the evidence struck out was relevant to the exercise of the Federal Court’s discretion (and potentially also this Court’s discretion) whether to grant declaratory relief. [ 11 ] For the reasons that follow, I would allow the appeal in part, grant declaratory relief, and dismiss the cross-appeal. [ 12 ] In explaining why I reach these conclusions, I will first review the wildlife management regime set out in NILCA, and the decision-making process for which it provides.

I will then consider in turn the issues raised by the parties. [ 13 ] Before proceeding further, I should mention two additional points of context. First, the Minister’s decision in issue in this proceeding was made in relation to both the decision of the NMRWB under NILCA and the identical decision of the Eeyou Marine Region Wildlife Board (EMRWB) under the parallel wildlife co-management regime set out in the Eeyou Marine Region Land Claims Agreement (EMRLCA) [ Agreement between the Crees of Eeyou Istchee and Her Majesty the Queen in right of Canada concerning the Eeyou Marine Region ].

EMRLCA is a modern treaty between the Crees of Eeyou Istchee and the Government of Canada, which covers an area off the Quebec shore in the eastern James Bay and southern Hudson Bay. Given the nature of the relationship between the two regimes and the decisions of the two Boards, as well as the scope of the Minister’s decision, I will follow the lead of the parties in referring almost exclusively to the provisions of NILCA and the decision made under it.

The conclusions that apply under NILCA also apply under EMRLCA. [ 14 ] Second, the Minister of the Environment, Government of Nunavut, also rendered a decision varying the decision of the NMRWB and the EMRWB on substantially the same terms as the federal Minister, under provisions of NILCA and the EMRLCA very similar to those invoked by the federal Minister. Makivik has commenced an application for judicial review in the Nunavut Court of Justice of the Nunavut Minister’s decision. Counsel for Makivik advise that that application is being held in abeyance pending the outcome of this proceeding.

The Attorney General of Nunavut was an intervener in the Federal Court, but does not appear in this appeal. II. The NILCA wildlife management regime [Back to table of contents ] [ 15 ] NILCA came into force in 2008. As mentioned above,

Article 5 deals with wildlife management. It is one of many topics that NILCA addresses. A. Principles and objective [Back to table of contents ] [ 16 ]

Article 5 begins with statements of the principles that it recognizes and reflects, as well as its objective. By

section 5.1.2, these principles include that • “Nunavik Inuit are traditional and current users of wildlife and other resources of the NMR and have developed particular knowledge and understanding of the region and resources” (paragraph 5.1.2(c)); • “there is a need for an effective system of wildlife management that respects Nunavik Inuit harvesting rights and priorities” (paragraph 5.1.2(f)); • “the wildlife management system and the exercise of Nunavik Inuit harvesting rights are governed by and subject to the principles of conservation” (paragraph 5.1.2(h)); • “Nunavik Inuit shall have an effective role in all aspects of wildlife management” (paragraph 5.1.2(i)); and • “Government [defined in

section 1.1 as “the Government of Canada or the Government of Nunavut, or both, as the context requires”] has ultimate responsibility for wildlife management and agrees to exercise this responsibility in the NMR in accordance with the provisions of [Article 5]” (paragraph 5.1.2(j)). [ 17 ] The objective of

Article 5 is stated in

section 5.1.3 to be to create a wildlife management system for the NMR that, among other things, • “defines and protects Nunavik Inuit harvesting rights” (paragraph 5.1.3(a));

• “promotes the long-term economic, social and cultural interests of Nunavik Inuit” (paragraph 5.1.3(d)); • “recognizes the value of Nunavik Inuit approaches to wildlife management and Nunavik Inuit knowledge of wildlife and wildlife habitat and integrates those approaches with knowledge gained through scientific research” (paragraph 5.1.3(f)); and • “establishes the NMRWB to make decisions pertaining to wildlife management” (paragraph 5.1.3(i)). [ 18 ] Sections 5.1.4 and 5.1.5 elaborate on the content and application of the principles of conservation. By

section 5.1.4, “[t]he principles of conservation will be interpreted and applied giving full regard to the principles and objective outlined in sections 5.1.2 and 5.1.3 and the rights and obligations set out in this Article.”

Section 5.1.5 states that for the purposes of

Article 5, the principles of conservation are: (

a) the maintenance of the natural balance of ecological systems within the NMR; (

b) the maintenance of vital, healthy wildlife populations capable of sustaining harvesting needs as defined in [Article 5]; (

c) the protection of wildlife habitat; and (

d) the restoration and revitalization of depleted populations of wildlife and wildlife habitat. B. The NMRWB’s composition and mandate [Back to table of contents ] [ 19 ]

Part 5.2 of NILCA establishes the NMRWB as an institution of public government. It consists of seven members: three appointed by Makivik, two by federal ministers, one by a Nunavut minister, and a chairperson chosen jointly by a federal and a Nunavut minister from nominations provided by the other members. [ 20 ] The mandate of the NMRWB is set out in

section 5.2.3. According to this provision, the NMRWB is to be “the main instrument of wildlife management in the NMR and the main regulator of access to wildlife and have the primary responsibility in relation thereto in the manner described in [NILCA].”

Section 5.2.3 goes on to specify the functions of the NMRWB as including, among other things, • with an exception not relevant here, “establishing, modifying or removing levels of total allowable take for a species, stock or population of wildlife … in accordance with sections 5.2.10 and 5.2.11” (paragraph 5.2.3(a)); and • “establishing, modifying or removing non-quota limitations [defined in

section 5.1.1 as ‘a limitation of any kind, except a total allowable take]’ in accordance with sections 5.2.19 to 5.2.22” (paragraph 5.2.3(e)). [ 21 ]

Section 5.2.10 states that subject to the terms of

Article 5, and to one exception (again not relevant here), the NMRWB shall have “sole authority to establish or modify or remove from time to time as circumstances require levels of total allowable take or harvesting for all species in the NMR.” By

section 5.2.19, the NMRWB has “sole authority to establish, modify or remove, from time to time and as circumstances require, non-quota limitations on harvesting in the NMR.” [ 22 ]

Part 5.5 of NILCA addresses decisions made under

Article

Section 5.5.1 states that judicial review of decisions of the NMRWB shall be available on the grounds set out in the Federal Courts Act , R.S.C., 1985, c. F-7 , at the motion of a person personally aggrieved or materially affected by the decision.

Section 5.5.2 is a privative clause barring all other forms of review of the NMRWB’s decisions. There are no similar provisions applicable to decisions of the Minister. However, the parties agree that her decisions are subject to judicial review. C. Decision-making criteria [Back to table of contents ] [ 23 ]

Part 5.5 includes provisions setting criteria for decision making applicable to both the NMRWB and the Minister. Key among them is paragraph 5.5.3(a), which stipulates that “[d]ecisions of the NMRWB or a Minister made in relation to Parts 5.2 and 5.3 [which deal with harvesting] shall restrict or limit Nunavik Inuit harvesting only to the extent necessary … to effect a conservation purpose in accordance with sections 5.1.4 and 5.1.5.” [ 24 ] Subsection 5.5.4.1 is also important in considering the issues raised by the parties as to the Minister’s entitlement to consider certain agreements.

It reads as follows: Certain populations of wildlife found in the NMR cross jurisdictional boundaries and are harvested outside the NMR by persons resident elsewhere. Accordingly, the NMRWB and the Minister in exercising their responsibilities in relation to

section 5.2.3, paragraphs 5.2.4 (b), (c), (d), (f), (h), and sections 5.2.10 to 5.2.22, 5.3.8, 5.3.10 and 5.3.11 shall also take account of harvesting activities outside the NMR and the terms of domestic interjurisdictional agreements or international agreements pertaining to such wildlife. [ 25 ]

Section 5.1.1 defines “international agreement” as “a wildlife agreement between the Government of Canada and one or more foreign states or associations of foreign states.” D. Decision-making process [Back to table of contents ] [ 26 ] By

section 5.5.6, all decisions of the NMRWB in relation to certain specified matters within Government of Canada (as opposed to Nunavut) jurisdiction, including establishing levels of TAT and establishing NQLs, are to be made following the decision-making process set out in sections 5.5.7 to 5.5.13. [ 27 ] These provisions establish a two-way, conversation-like process (see Nacho Nyak Dun , at paragraph 55) that begins with the NMRWB sending the Minister an initial decision, which is not to be made public (section 5.5.7).

The Minister must then either accept the decision and notify the NMRWB in writing of its acceptance, or reject it, and “give the NMRWB reasons in writing for so doing” (section 5.5.8). There is no provision for variation at this stage.

[ 28 ] Where the Minister rejects the initial decision, the NMRWB must reconsider the decision in light of the Minister’s reasons, and then make and forward to the Minister a final decision, which it may make public (section 5.5.11). The Minister may then accept, reject or vary the final decision, and must again provide reasons in the event of a rejection or variation (section 5.5.12). Where the Minister decides to accept or vary the final decision, the Minister is to “proceed forthwith to do all things necessary to implement the final decision or the final decision as varied” (section 5.5.13). III. The decision-making process for SHB polar bears [Back to table of contents ] [ 29 ] By

section 5.2.18 of NILCA, the NMRWB is to conduct its review for various species, stocks or populations from time to time as requested by, among others, the appropriate Minister. [ 30 ] In January 2012, following a significant increase in the polar bear harvest in 2010 – 2011, and in response to a letter from the then chair of the NMRWB expressing concern that other processes were pre-empting the NMRWB’s mandate, the then federal Minister of the Environment asked the NMRWB to establish a level of TAT for each subpopulation of polar bears in the NMR, and to work toward the development of a management plan.

There are three subpopulations of polar bears in the NMR: Davis Strait, Foxe Basin and SHB. The NMRWB decided to focus first on the SHB management unit. Not only Nunavik Inuit, but also Nunavut Inuit and the Crees of Eeyou Istchee, harvest polar bears in SHB. [ 31 ] After a delay pending completion of an aerial survey of the polar bear population, the NMRWB convened a three-day public hearing in Inukjuak, Quebec in February 2014, and invited pre-hearing written submissions. More than a dozen parties filed written submissions, and most of these parties also made oral submissions at the hearing.

The parties included government departments, aboriginal organizations, environmental non-governmental organizations, local Inuit hunting groups, and individual Inuit hunters. [ 32 ] Following the hearing, the NMRWB concluded that it required further information from users of the resource before it could make a decision. It commissioned a study of Inuit traditional knowledge (ITK) of polar bears, which entailed interviewing elders, hunters, and local officials in three Nunavik communities. The results of the study were summarized in a seven-page table.

While the NMRWB retained a third party to prepare a final report, only the

summary was available at the time of the decisions of the NMRWB and the Minister in relation to the SHB subpopulation. The final report did not become available until May 2018; it was not part of the record before the application judge, and is not before this Court. [ 33 ] The NMRWB proceeded to make its decision and forward it to the Minister. Its decision set the TAT for SHB polar bears at 28 bears per year, a level that it saw as representing the low end of estimated past annual harvests, and as having allowed the population to remain relatively stable.

It concluded that the Crees of Eeyou Istchee would be permitted to harvest at least one polar bear of the 28. It also decided that there should be no requirement of sex-selective harvesting, but set out nine other NQLs. [ 34 ] In explaining its decision on the TAT, the NMRWB stated that, while further work was required to improve the way by which ITK is brought together with knowledge gained by scientific research for decision-making, it had made efforts to consider knowledge from all sources. This included the available ITK.

It added that based on the information it had gathered, it had concluded that the SHB polar bear subpopulation continued to be relatively healthy, despite environmental changes, and that historical harvest levels had been sustainable. It noted that while some scientific data indicated that polar bears’ body condition was deteriorating, Inuit had not observed a similar trend. [ 35 ] The NMRWB also set out the basis for its decision not to require sex-selective harvesting.

It noted among other things that according to harvest records, Nunavik Inuit had historically harvested SHB polar bears at a 2:1 (male:female) ratio, so that legislating that requirement would be contrary to the “only to the extent necessary” provision of NILCA

section 5.5.3. [ 36 ] In listing the nine NQLs that its decision would establish, the NMRWB advised that a majority of them had been adapted from the 1984 agreement on polar bear hunting between the Quebec government and the Nunavik Fishing and Trapping Association and from recent voluntary agreements. [ 37 ] The Deputy Minister of Environment Canada (acting for the Minister during an electoral period), rejected the NMRWB’s decision, and in particular the 28-bear TAT, under paragraph 5.5.3(

a) of NILCA (quoted in part above at paragraph 23). In his letter advising the NMRWB of the rejection, the Deputy Minister expressed the view that a regional TAT of 28 polar bears was likely not sustainable. He went on to state that “a maximum sustainable harvest of 4.5 percent should not be exceeded as it could cause the population to decline.” [ 38 ] The letter also stated that in reconsidering its decision, the NMRWB should include a sex-selective harvest of two males to one female.

In addition, the letter asked that a voluntary agreement on harvesting levels that had been concluded in 2014 be considered in the reconsideration process, on the basis that it was a “domestic interjurisdictional [agreement]” within the meaning of NILCA subsection 5.5.4.1 (quoted above at paragraph 24). The Deputy Minister’s letter made no mention of ITK or of any reservations concerning it.

The letter also said nothing about the nine NQLs that the NMRWB had included in its decision. [ 39 ] In accordance with the process set out in NILCA, the NMRWB reconsidered its decision in light of the written reasons provided by the Deputy Minister, and issued and sent to the Minister its final decision. [ 40 ] The decision reaffirmed the TAT of 28 bears, which it again described as at the low-end of historical Nunavik Inuit harvests.

It also rejected the recommendation for a sex-selective harvest, which, it stated, would go against traditional Inuit values, upset the natural balance of wildlife populations, and tend to remove the fittest breeders. The decision referred in some detail to the available ITK.

It disagreed with the characterization of the 2014 voluntary agreement as a “domestic interjurisdictional agreement,” and noted that, in any case, the agreement was expressly entered into “without prejudice to the decision-making processes defined in the applicable Land Claims Agreements.” With respect to NQLs, it stated that “[b]ecause neither government offered concerns about the non-quota limitations proposed initially, the Boards [had] maintained them, in their entirety, within the final decision.” [ 41 ] After the NMRWB had rendered its final decision but before the Minister had rendered hers, Environment and Climate Change

Canada (ECCC) officials met with the NMRWB and raised for the first time some of their concerns relating to the NQLs included in the Board’s final decision. They followed up the meeting by sending to the NMRWB a chart setting out their concerns.

The NMRWB responded in a letter to ECCC stating that it was “greatly concerned that this exchange is coming after the final decision was issued,” and that it was especially disappointing when ECCC had the opportunity to raise these issues through its technical advisors during the Boards’ deliberations, but failed to do so. [ 42 ] The Minister varied the NMRWB’s final decision. She reduced the annual TAT from 28 to 23, of which one was expected to be allocated to the Cree of Eeyou Istchee.

Further, while she accepted certain NQLs included in the NMRWB’s final decision, she also added others—most notably, the requirement of a sex-selective harvest of one female for two males—and rejected or varied four. It was this decision of the Minister, rendered in October 2016, that was the subject of the application for judicial review. [ 43 ] In her letter accompanying the decision, the Minister stated that she would be open to reconsidering the total allowable take when new survey results and the complete ITK study became available.

In the concluding paragraph, she stated that for future decisions, her Department would “work closely with the [Boards] through technical advisors to ensure that they are informed of concerns earlier in the process, and to enhance opportunities for the use of traditional knowledge in the management of polar bears.” [ 44 ] The Minister advised in the letter that her reasons for varying the TAT and NQLs were described in an analysis document, which she also provided.

That document explained that the decision “[took] into account that there are differences between the available scientific information and Traditional Knowledge, that new science and Traditional Knowledge [would] be available within a year or two, and that it [was] important to avoid actions that could jeopardize trade in polar bear parts.” The decision also recognized, the document stated, “the need to exercise caution so as to ensure a sustainable harvest, and the fact that once new information [was] available, the TAT [could] be re-assessed.” [ 45 ] The document went on to state that the TAT of 23 bears established a harvest of close to 4.5 percent, “which aligns with the widely accepted sustainable removal level.” It stated further that the available information had been weighed carefully in determining the varied TAT, and that the TAT set out in the NMRWB’s final decision was “likely not sustainable.” It noted that there were some similarities and some differences as between ITK and scientific data in relation to subpopulation size and body condition of the polar bears in SHB.

With respect to the NQL of a sex-selective harvest, it stated among other things that the limitation was consistent with polar bear management regimes across Canada and “consistent with a cautionary approach.” IV. The application for judicial review [Back to table of contents ] [ 46 ] As noted above, Makivik initially sought, in its notice of application for judicial review of the Minister’s decision to vary, both declaratory relief and an order quashing the decision and remitting the matter for redetermination.

In amending its notice of application, Makivik abandoned the claim for quashing relief and claimed declaratory relief only, based on the 10 issues that it formulated and argued before the application judge.

As also noted above, the application judge agreed with Makivik on one of those issues—whether the Minister’s decision to establish a sex-selective harvest and vary other NQLs decided by the NMRWB was unreasonable—but declined to grant declaratory relief. [ 47 ] Rather than include here a more detailed overall review of the application judge’s decision, I will discuss his conclusions and reasoning below on an issue-by-issue basis, as they relate to the issues on appeal. [ 48 ] I should, however, mention at this juncture that it was in the course of the application, when the record before the Minister when she made her decision was disclosed, that the appellants learned of what they assert were the “true reasons” for the Minister’s decision to vary the NMRWB’s final decision—that Government officials in ECCC had decided that they could not rely on, or had to give minimal weight to, the ITK that was before the NMRWB—and the Minister’s failure to disclose those reasons. [ 49 ] The record contained a memorandum to the Minister with an appendix setting out for the Minister the rationale for varying the NMRWB’s final decision.

The appendix raised certain methodological and other issues relating to the available ITK. It commented on the two sources of ITK considered by the NMRWB in the following terms: Unfortunately, both are provided without needed context, and this makes it difficult for the Government of Canada and Nunavut to consider this information alongside recent scientific results. For example, the public documents describing TK information contain no information about the number of people interviewed or about the spatial scale at which the observations were made.

It is therefore difficult to determine whether this is a consensus position of all knowledge holders and the geographic coverage this TK pertains to. [ 50 ] In referring to the NMRWB’s report that traditional harvest levels were higher than previously assumed and documented, the memorandum noted that “[t]he lack of an official reporting system in Quebec until recently [made] it challenging to determine the historical rates of take accurately from this subpopulation by Nunavik Inuit.” It went on to state that “[u]nderstanding what science or TK can tell us about the status of a subpopulation requires a more detailed assessment of the assumptions and biases of both scientific and TK observations.” Referring to differences in the assessment of polar bears’ body conditions by scientific studies and by TK, the memorandum stated that “the conclusions that can be drawn from these differing observations require more detailed analysis.

These conflicting conclusions, however, are a source of uncertainty that supports a cautious approach to management decisions for conservation.” V. Relief sought on appeal [Back to table of contents ] [ 51 ] Makivik’s framing of the issues and the declaratory relief sought has evolved to some extent, at least in form, since the hearing in the Federal Court. On this appeal, it now asks this Court to set aside the judgment of the Federal Court and grant six declarations, based on the failures on the part of the Minister that it asserts. For two of the proposed declarations, alternatives are also provided.

I propose to examine the issues largely using the framing adopted by Makivik in its memorandum of fact and law in this appeal. [ 52 ] Though they did not file their own applications for judicial review, the appellants the GCC and the NMRWB also claim declaratory relief, in terms that, again, are different from, though they overlap to some degree with, the terms of the relief claimed by

Makivik. For example, the GCC seeks among other things a declaration “that the Minister disregarded the nation-to-nation partnershipestablished by the NILCA for the co-management of wildlife in the NMR,” and the NMRWB seeks among other things adeclaration “that the Minister may only ‘reject’ or ‘vary’ a decision by the [NMRWB] to the extent that said decision is unreasonable.”Makivik’s claim encompasses neither of these broad declarations. The Attorney General objects to the other appellants seeking reliefoutside the bounds of that claimed by Makivik. [53] I agree that they are not entitled to do so.

The scope of an application for judicial review is determined by the applicant in itsnotice of application, which is to contain both “a precise statement of the relief sought,” and “a complete and concise statement of thegrounds intended to be argued”: Federal Courts Rules, SOR/98-106, rule 301. A respondent to an application for judicial review—likethe GCC and the NMRWB in the Federal Court here—must file its own application if it wishes to seek review of the decision ongrounds different from those put forward by the applicant: Larsson v. Canada, (FCA), [1997] F.C.J.

No. 1044 (QL)(C.A.), (1997), 216 N.R. 315, at paragraphs 27–28; Systèmes Equinox Inc. v. Canada (Public Works and Government Services),2012 FCA 51, 428 N.R. 303, at paragraph 12. [54] Having had no entitlement at first instance to raise grounds beyond those raised by Makivik, or to seek relief beyond that claimedby Makivik, these appellants can hardly go beyond those grounds and claims for relief on appeal, and assert that the application judgeerred in denying them remedies they did not properly seek. The general rule that new issues may not be raised on appeal applies: Shoanv.

Canada (Attorney General), 2020 FCA 174, at paragraph 13. However, like the application judge (see paragraph 75 of his reasons), Iwill consider the submissions of the GCC and the NMRWB as they relate to the substance of the issues framed and relief sought byMakivik. VI. Issues [Back to table of contents] [55] I now turn to the issues raised by Makivik, at paragraph 42 of its memorandum—issues that underlie its claims for correspondingdeclaratory relief, set out at paragraph 140 of its memorandum—and to the issue raised by the Attorney General’s cross-appeal.

I willfirst list these issues, and then deal with them, and a further issue that arises, in turn. A. What are the principles applicable to the

interpretation of modern treaties and how do they determine this Court’s approach to thereview of the Minister’s decision? This includes the standard of appellate review and the standard of review applicable to the Minister’sdecision. B. Did the Minister give full regard to the integration of Nunavik Inuit knowledge of wildlife and wildlife habitat with knowledgegained through scientific research when making her decision? C. Was the Minister’s approach to the Boards’ traditional knowledge study in accordance with NILCA and the honour of the Crown? D.

Does NILCA authorize the Minister’s reliance on a “cautious management approach” as justification for limiting Nunavik Inuitharvesting? E. Does NILCA authorize the Minister to consider the politics of international trade and/or issues related to CITES (the Convention onInternational Trade in Endangered Species of Wild Flora and Fauna, July 1, 1975, 993 U.N.T.S. 243) when making her decision? F. Was the Minister’s reliance on the 2014 voluntary agreement authorized by NILCA and in accordance with the honour of theCrown? G.

Was the Minister’s decision to vary the non-quota limitations established by the Boards authorized by NILCA? If yes, was itnonetheless unlawful? H. Did the application judge commit reviewable error in granting Makivik’s motion to strike out certain portions of the evidence filedby the Attorney General? [56] To this list I would add a further issue, which arises directly from the relief sought by Makivik: I.

Should this Court grant declaratory relief? [57] In approaching these issues, I am mindful, like the application judge, of the Supreme Court’s directions in Nacho Nyak Dun as tothe appropriate judicial role in disputes arising under modern treaties. The Court set out these directions as follows (Nacho Nyak Dun, atparagraphs 33, 60, citations omitted): …. Modern treaties are intended to renew the relationship between Indigenous peoples and the Crown to one of equal partnership ….

Inresolving disputes that arise under modern treaties, courts should generally leave space for the parties to govern together and work outtheir differences. Indeed, reconciliation often demands judicial forbearance …. It is not the appropriate judicial role to closely supervisethe conduct of the parties at every stage of the treaty relationship. This approach recognizes the sui generis nature of modern treaties,which … may set out in precise terms a co-operative governance relationship. … ….

The court’s role [in a judicial review involving a modern treaty dispute] is not to assess the adequacy of each party’s compliance ateach stage of a modern treaty process. Rather, it is to determine whether the challenged decision was legal, and to quash it if it is not.Close judicial management of the implementation of modern treaties may undermine the meaningful dialogue and long-term relationshipthat these treaties are designed to foster.

Judicial restraint leaves space for the parties to work out their understanding of a process —quite literally, to reconcile — without the court’s management of that process beyond what is necessary to resolve the specific dispute. [58] I am also mindful of the caveat the Court set out (Nacho Nyak Dun, at paragraph 34):

That said, under s. 35 of the Constitution Act, 1982 , modern treaties are constitutional documents, and courts play a critical role in safeguarding the rights they enshrine. Therefore, judicial forbearance should not come at the expense of adequate scrutiny of Crown conduct to ensure constitutional compliance. [ 59 ] The application judge took these directions into account in deciding whether to grant declaratory relief.

In my view, they may also come into play at an earlier stage, in determining the extent to which the Court should address the merits of the issues raised by the parties. [ 60 ] Both remedies on judicial review, and undertaking judicial review in the first place, are discretionary: Strickland v. Canada (Attorney General) , 2015 SCC 37 , [2015] 2 S.C.R. 713 , at paragraphs 37 – 38 ; Bessette v. British Columbia (Attorney General) , 2019 SCC 31 , [2019] 2 S.C.R. 535 , at paragraph 35 . The categories of cases in which courts may exercise the discretion not to undertake judicial review are not closed.

In my view, they include cases involving disputes under modern treaties, in which the Supreme Court has directed judicial forbearance and restraint. For a court to hear and decide a dispute under a modern treaty on the merits, and then exercise its discretion only at the remedy stage, risks sapping the Supreme Court’s directions to practise judicial forbearance and restraint of much of their force.

Even where the reviewing court chooses not to grant declaratory relief, its reasons for judgment on the merits will be binding on the parties, the administrative decision maker, and (depending on the judicial hierarchy) other courts: Entertainment Software Association v.

Society of Composers, Authors and Music Publishers of Canada , 2020 FCA 100 , [2021] 1 F.C.R. 374 , at paragraphs 105 – 106 . [ 61 ] However, in this case, it does not appear that any of the parties raised before the application judge, or that he otherwise considered, the possibility of declining altogether to undertake judicial review, in the exercise of judicial forbearance. Nor was that possibility raised before this Court. In these circumstances, I propose to consider the issues raised before us on their merits, leaving the question of judicial forbearance to be addressed in considering remedies. VII.

Analysis [Back to table of contents ] A. What are the principles applicable to the

interpretation of modern treaties and how do they determine this Court’s approach to the review of the Minister’s decision? This includes the standard of appellate review and the standard of review applicable to the Minister’s decision. [Back to table of contents ]

(1) Modern treaty

interpretation [Back to table of contents ] [ 62 ] In its recent jurisprudence, the Supreme Court has set out certain principles of modern treaty

interpretation. It summarized these principles as follows in Nacho Nyak Dun , at paragraphs 36 – 37 (emphasis in original; citations omitted): …. Because modern treaties are “meticulously negotiated by well-resourced parties”, courts must “pay close attention to [their] terms” …. “[M]odern treaties are designed to place Aboriginal and non-Aboriginal relations in the mainstream legal system with its advantages of continuity, transparency, and predictability” …. Compared to their historic counterparts, modern treaties are detailed documents and deference to their text is warranted ….

Paying close attention to the terms of a modern treaty means interpreting the provision at issue in light of the treaty text as a whole and the treaty’s objectives ….

Indeed, a modern treaty will not accomplish its purpose of fostering positive, long-term relationships between Indigenous peoples and the Crown if it is interpreted “in an ungenerous manner or as if it were an everyday commercial contract” … Furthermore, while courts must “strive to respect [the] handiwork” of the parties to a modern treaty, this is always “subject to such constitutional limitations as the honour of the Crown” …. [ 63 ] Also relevant are any

interpretation principles set out in the treaty itself: Nacho Nyak Dun , at paragraph 36. Here,

section 2.22 of NILCA states that it “shall be governed by and construed in accordance with the laws of Nunavut, Newfoundland and Labrador and the laws of Canada as otherwise applicable,” and adds that “[f]or greater certainty, the federal

Interpretation Act [R.S.C., 1985, c. I-21 ] shall apply to this Agreement.”

Section 12 of the

Interpretation Act [R.S.C., 1985, c. I-21 ], to which the Court also referred in Nacho Nyak Dun , at paragraph 37 , provides that “[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects.”

(2) Appellate standard of review [Back to table of contents ] [ 64 ] In an appeal from a decision of the Federal Court on an application for judicial review, this Court ordinarily follows the appellate standard of review set out in Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559 , at paragraphs 45 – 47 : it asks whether the application judge chose the correct standard of review and properly applied it.

Applying this standard entails what has been described as “stepping into the shoes” of the Federal Court, and focusing on the administrative decision that was the subject of the application rather than potential errors by the application judge in coming to the judgment under appeal. [ 65 ] But as both Makivik and the Attorney General recognize, there are exceptions to the application of the Agraira standard, including an exception for the decision of the application judge as to what if any remedies should be granted.

Remedial decisions by the application judge on judicial review are subject to appellate review on the standard set out in Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 —correctness on questions of law and palpable and overriding error on questions of fact or mixed fact and law (absent an extricable question of law): Sturgeon Lake Cree Nation v. Hamelin , 2018 FCA 131 , 424 D.L.R. (4th) 366 , at paragraph 51 . As this Court explained in Canada v.

Long Plain First Nation , 2015 FCA 177 , 388 D.L.R. (4th) 209 , at paragraphs 88 – 89 , these decisions are not about what the administrative decision maker decided, but rather about what the reviewing court itself should do, in light of its review of the administrative decision.

A decision about what remedies should be granted typically raises questions of mixed fact and law, on which the application judge’s decision is reviewable on the deferential standard of palpable and overriding error. [ 66 ] Makivik submits that this Court should apply the Agraira standard here, except on what it characterizes as the narrow question (dealt with at paragraphs 211 to 215 of the application judge’s reasons) whether it was appropriate to grant declaratory relief on the component of the Minister’s decision that was found to be unreasonable. Only on that question, it submits, should the Housen standard

apply. The Attorney General suggests that this Court should go further, and apply the Housen standard to all parts of the test for declaratory relief, including the question whether the declarations sought would be legally accurate. He relies for this position on the fact that Makivik chose not to pursue its claim to quash the Minister’s decision, so that only declaratory relief is now sought. [ 67 ] I would not accept the Attorney General’s suggestion.

The Agraira standard applies to the substantive issues on appeal from a decision on judicial review where the only relief sought is declaratory relief, just as in other cases: Schmidt v. Canada (Attorney General) , 2018 FCA 55 , [2019] 2 F.C.R. 376 , at paragraphs 17 – 20 ; Canada (Attorney General) v. Distribution G.V.A. Inc. , 2018 FCA 146 , at paragraphs 24 – 26 ; Canada (Citizenship and Immigration) v. Tennant , 2019 FCA 206 , [2020] 1 F.C.R. 231 , at paragraph 32 .

The Attorney General has suggested no good reason why it should not apply to the question whether the declarations sought would be legally accurate. The focus of that question is on the Minister’s decision. [ 68 ] Do modern treaty

interpretation principles play a role in determining and applying the appellate standard of review? They could do so if, for example, a modern treaty contained language specifying the circumstances in which particular remedies could be granted. But the parties do not submit that there is any provision of that kind in this case.

(3) Standard of review of the Minister’s decision [Back to table of contents ] [ 69 ] The application judge dealt with the standard of review applicable to the Minister’s decision before the Supreme Court recast the law of judicial review in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653 . Consistent with the then-governing administrative law authorities, and finding no well-established standard of review for the type of case before him, he therefore conducted a contextual analysis (at paragraphs 90 to 105 of his reasons) to determine the applicable standard.

He concluded (at paragraphs 106 and 107) that whether the Minister adhered to the decision-making process set out in NILCA should be reviewed on the correctness standard, but that the Minister’s decision as a whole should be reviewed on the standard of reasonableness. He saw the call for judicial restraint in Nacho Nyak Dun as supporting the application of the reasonableness standard (at paragraph 108). [ 70 ] Makivik submits that the application judge’s decision on standard of review ignored the principles of modern treaty

interpretation set out and applied by the Supreme Court in Nacho Nyak Dun , and that he should have applied those principles, rather than administrative law principles, in determining the standard of review. It argues that treaty

interpretation principles, with their emphasis on deference to the text of the treaty, preclude giving any deference to the Minister, and therefore require the correctness standard. It submits alternatively that if administrative law principles are to be applied, the applicable standard of review must be reconsidered in light of the Supreme Court’s decision in Vavilov . [ 71 ] In Vavilov , the Supreme Court set reasonableness as the presumptive standard of review for administrative decisions, subject to certain categories of exceptions.

One of these categories covers cases where the rule of law requires correctness—“a final and determinate answer from the courts.” This category, the Court held, includes “[q]uestions regarding the division of powers between Parliament and the provinces, the relationship between the legislature and the other branches of the state, the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982 , and other constitutional matters ”: Vavilov , at paragraph 55 (emphasis added). Makivik thus submits that, under administrative law principles, any question in this proceeding involving the

interpretation of NILCA must be assessed on the standard of correctness. [ 72 ] In its submissions, the GCC agrees with Makivik that the application judge should have applied modern treaty

interpretation principles, rather than administrative law principles, in determining the standard of review applicable to the Minister. On treaty

interpretation principles, it submits, correctness must be the standard. On either basis, it argues, the application judge failed to consider the limited role of the Minister under the terms of the NILCA decision-making process as a whole. That role, it submits, requires the Minister to show deference to the NMRWB.

It does not permit the Minister to make decisions herself, and permits her to alter the fundamental nature of a decision of the NMRWB only where she determines that it was unreasonable. [ 73 ] For its part, the NMRWB similarly submits that given its mandate and the principles and objectives of NILCA, the Minister has no authority to vary or reject a decision of the NMRWB unless the decision is unreasonable or unfounded in law.

According to the NMRWB, the scope of the Minister’s authority should be determined taking into account administrative law and judicial review principles, together with the principles and objectives of NILCA, modern treaty

interpretation, the imperative of reconciliation, and the honour of the Crown. [ 74 ] The intervener, Nunavut Tunngavik Incorporated (NTI), which obtained leave to address the standard of review along with certain other issues, agrees with Makivik that the appropriate standard of review of the Minister’s decision is correctness. It sees the Supreme Court’s decision in Nacho Nyak Dun as implicitly requiring the correctness standard. It also agrees that the “constitutional matters” category of exceptions from reasonableness review set out in Vavilov applies to questions of modern treaty

interpretation and implementation. It refers both to Vavilov and to cases decided before and after Vavilov as supporting the proposition that a court should never defer to the Crown’s

interpretation of a treaty. [ 75 ] NTI also supports the submissions of the GCC and the NMRWB that the Minister owed deference to the final decisions of the NMRWB. It bases its submission on the text, purpose, and context of NILCA read in its entirety, but also emphasizes sections 5.5.1 and 5.5.2 of NILCA. As set out above,

section 5.5.1 provides for judicial review of decisions of the NMRWB in the Federal Court “at the motion of a person personally aggrieved or materially affected by the decision,” while

section 5.5.2 is a strong privative clause that otherwise bars judicial review. It argues that these provisions indicate the need for the Minister to show deference to the NMRWB, because otherwise the Minister could avoid the deference that the Federal Court would show to the NMRWB. [ 76 ] The Attorney General’s position, which he sees as consistent with Vavilov , is that reasonableness is the appropriate standard of review, except for questions related to the scope of treaty rights under

section 35 [of the Constitution Act, 1982 ]. He submits that, leaving aside the

section 35 issues, reasonableness is required by the highly factual and polycentric nature of the issue before the Minister, the language of NILCA that recognizes Government’s “ultimate responsibility for wildlife management,” [at paragraph 5.1.2(j)] and the Supreme Court’s emphasis in Nacho Nyak Dun on judicial forbearance and restraint in disputes under modern treaties. [ 77 ] In my view, the standard of review applicable to the Minister’s decision is correctness on matters of treaty

interpretation, the

scope of Aboriginal and treaty rights under

section 35, and procedural fairness, and reasonableness for any decisions outside thesecategories. I come to this conclusion for two main reasons. [78] First, it is consistent with Vavilov—with the presumptive standard of reasonableness on judicial review and the correctnessexceptions that it sets out for questions regarding the scope of Aboriginal and treaty rights under

section 35. It is also consistent withVavilov in a further respect. Vavilov left untouched what this Court has described as “the long line of jurisprudence, both from theSupreme Court and from this Court, according to which the standard of review with respect to procedural fairness remains correctness”:Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196, [2021] 1 F.C.R. 271, atparagraph 35. [79] I do not agree that Vavilov should not apply in this case because it dealt only with the standard of review in administrativematters.

The [Supreme] Court in Vavilov expressly addressed the standard of review in Aboriginal and treaty rights and otherconstitutional matters. Moreover, modern treaties “are designed to place Aboriginal and non-Aboriginal relations in the mainstream legalsystem”: Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at paragraph 12. That system includesadministrative law, which “is flexible enough to give full weight to the constitutional interests of” Indigenous peoples, so that “[t]here isno need to invent a new ‘constitutional remedy’”: Little Salmon/Carmacks, at paragraph 47.

Indigenous parties typically seek tovindicate these interests by seeking administrative law remedies through an application for judicial review, and in many cases mustproceed in this manner: Federal Courts Act,

section 18. Indeed, they have done so here. [80] Second, the standard of review that in my view applies is consistent with both what occurred, and what was said, in Nacho NyakDun. There the Supreme Court came to its own view on the treaty

interpretation and compliance issues that arose, without deferenceeither to government or to the First Nations parties. While the Supreme Court did not expressly address standard of review in its decision,both lower courts did, and both applied the correctness standard: The First Nation of Nacho Nyak Dun v. Yukon (Government of),2014 YKSC 69, 91 C.E.L.R. (3d) 286, at paragraphs 136–137; The First Nation of Nacho Nyak Dun v. Yukon, 2015 YKCA 18, 95C.E.L.R. (3d) 187, at paragraph 112.

Their doing so attracted no criticism from the Supreme Court. [81] As the Supreme Court stated in Nacho Nyak Dun, “[m]odern treaties are intended to renew the relationship between Indigenouspeoples and the Crown to one of equal partnership”: at paragraph 33. Deferring to one “partner’s” view of the meaning of or compliancewith the treaty would be inconsistent with the nature of that relationship. [82] Before leaving the subject of the standard of review of the Minister’s decision, I should signal one important qualification to myconclusion that issues of treaty

interpretation and scope are reviewable on the correctness standard. Prior to Vavilov, it had beenrecognized that, while questions of constitutional

interpretation were reviewable for correctness, any extricable findings of fact, and theassessment of the evidence on which the constitutional analysis was premised, were entitled to deference, and were therefore reviewablefor reasonableness: Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407, atparagraph 26; Revell v. Canada (Citizenship and Immigration), 2019 FCA 262, [2020] 2 F.C.R. 355, at paragraph 75, leave to appealrefused, [2019] S.C.C.A. No. 478 (QL), [2020] 1 S.C.R. xvi. Vavilov has not affected this position: ‘Namgis First Nation v.

Canada(Fisheries and Oceans), 2020 FCA 122, [2020] 4 F.C.R. 678, at paragraph 21; Gift Lake Métis Settlement v. Alberta (AboriginalRelations), 2019 ABCA 134 , 84 Alta. L.R. (6th) 223, at paragraph 18; Procureur général du Québec c. Association canadiennedes télécommunications sans fil, 2021 QCCA 730, at paragraph 62. [83] I would also add that I do not accept the submissions that the authority of the Minister to vary or reject decisions of the NMRWBis limited to cases in which the NMRWB’s decision is unreasonable or unlawful.

This is not a standard of review issue in the usual sense,because it does not address the role of the court in relation to an administrative decision. But since the appellants have addressed it in thatcontext, I will follow suit. [84] I see no textual or contextual basis in NILCA for these submissions.

Section 5.5.3, subsections 5.5.4.1 and 5.5.4.2, and section5.5.5 set out, as the heading precedi

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