Government of Nunavut (Attorney General and Minister of Environment) v. Arctic Kingdom Inc., 2020 NUCJ 1

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Government of Nunavut (Attorney General and Minister of Environment) v. Arctic Kingdom Inc. , 2020 NUCJ 1 Date: 20200120 Docket: 02-17-12660; 02-17-12661; 02-17-12662; 02-17-12663 Registry: Iqaluit Crown: Attorney General of Nunavut as represented by the Attorney General of Nunavut and the Minister of Environment -and- Accused: Arctic Kingdom Inc. ________________________________________________________________________ Before: Mr. Justice Rouleau Counsel (Crown): W. Lu Counsel (Accused): A.

Crawford Location Heard: Qikiqtarjuaq, Nunavut Date Heard: November 26, 2019 Matters: Contraventions of s. 117(2) of the Wildlife Act , S.Nu. 2003, c. 26 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

TABLE OF CONTENTS I. OVERVIEW... 3 II. THE OFFENCE.. 3 III. ANALYSIS. 5 A. The Crown proved the commission of the offences beyond a reasonable doubt 5 i. Admissibility of the statements made by Messrs. Briggs and Broomfield against Arctic Kingdom Inc. 8 ii. Voluntariness. 9 B. Arctic Kingdom Inc. was the entity that committed the offences. 11 C. There is no reasonable doubt as to whether Arctic Kingdom Inc. was unlicensed. 14 i. The expiry of Arctic Kingdom Inc.’s 2016 licence. 14 ii. The automatic renewal 15 iii. Arctic Kingdom’s 2017 licence. 16 iv.

The Government of Nunavut’s alleged noncompliance with the licensing requirements 16 IV. CONCLUSION.. 18 I.

OVERVIEW [1] Arctic Kingdom Inc. was charged with four contraventions of s. 117(2) of the Wildlife Act, S.Nu. 2003, c. 26 (“Act”). [2] Subsection 117(2) of the Act states that “[n]o person shall … establish, offer or provide any organized activity in which wildlife isthe object of interaction, manipulation or close observation, including the making of a film or the provision of an expedition, safari orcruise” without possessing a Wildlife Observation Licence. [3] The charges relate to four successive days, March 25 to 28, 2017, during which it is alleged that Arctic Kingdom Inc. organized anexpedition or safari in which wildlife was the object of close observation in the vicinity of Qikiqtarjuaq.

It is alleged that no licence hadbeen secured for this activity. II. THE OFFENCE [4] A contravention of s. 117(2) of the Act is a public welfare offence. The purpose of s. 117(2) is to manage the impacts caused bythe interaction, manipulation, and close observation of wildlife: Nunavut (Attorney General and Minister of Environment) v ArcticKingdom Inc., 2019 NUCJ 10 at para 62. As a public welfare offence, a contravention of s. 117(2) is presumed to be a strict liabilityoffence: R v Sault Ste. Marie, (SCC), [1978] 2 SCR 1299 at 1326, 85 DLR (3d) 161.

There is no indication that thelegislator intended to create an absolute liability or a mens rea offence. This was also the conclusion reached in R v Irngaut, 2019 NUCJ4, 53 CR (7th) 203, with respect to ss. 69 and 85(1)(

a) of the Act. [5] As a strict liability offence, the prosecution must only prove, beyond a reasonable doubt, that the accused committed the

prohibited act: Sault Ste. Marie at 1325. There is no requirement to prove a mens rea element. [ 6 ] Therefore, to secure a conviction, the Crown must establish beyond a reasonable doubt that: 1. the organized activity was established, offered or provided by Arctic Kingdom Inc.; 2. the organized activity was one in which wildlife was the object of interaction, manipulation or close observation; and 3. the required Wildlife Observation Licence had not been obtained. [ 7 ] The Crown must also prove that this activity was established, offered or provided on each of the four days covered by the charges.

Subsection 221(3) of the Act provides that where an offence is committed, or continued, on more than one day, Arctic Kingdom Inc. is liable to be convicted for a separate offence for each day. [ 8 ] With respect to the first element of the offence, the terms “establish, offer or provide” indicate that s. 117(2) applies to anyone who brings the targeted activities into existence or makes them available: see Black’s Law Dictionary , 8th ed, sub verbo “establish”; Canadian Oxford Dictionary , 2nd ed, sub verbo “provide”. [ 9 ] For the purpose of the second element of the offence, wildlife must be the object of the interaction, manipulation or close observation.

A Wildlife Observation Licence is not required for the “incidental observation of wildlife during the course of travelling by foot or by vehicle or other conveyance”: Licences and Tags Regulations , Nu. Reg. 012-2015 (“ Regulations ”), s. 37(3) . The Act’s definition of “Wildlife” is very broad: “(

a) all terrestrial, aquatic, avian and amphibian flora and fauna that are wild by nature or wild by disposition; (

b) all parts and products from wildlife; and (

c) all habitat of wildlife”: Act, ss. 2, 6(2). [ 10 ] The legislator expressly provided that to be convicted it is sufficient for the Crown to establish that the offence was committed by an employee or agent of Arctic Kingdom Inc. during the course of their work for Arctic Kingdom Inc.: Act, s. 233(1). [ 11 ] I will address whether the Crown has met its burden to prove each element of the offence below. As I will explain, one of the issues raised by Arctic Kingdom Inc. is that much of the evidence at trial was with respect to “Arctic Kingdom”, without specifying that it is the incorporated entity.

As a result, in these reasons, I have been careful to reference Arctic Kingdom Inc. only where the evidence clearly refers to the incorporated entity. III. ANALYSIS A. The Crown proved the commission of the offences beyond a reasonable doubt [ 12 ] This was a relatively short trial. The Crown called two witnesses: Joseph Guay, a conservation officer, and Jonathan Neely, a conservation officer and coordinator of operations and regulations with the Nunavut Department of Environment. Their testimony was clear and straight-forward.

It was not seriously challenged in cross-examination and I accept it without reservation. [ 13 ] In March 2017, Officer Guay was based in Qikiqtarjuaq. On the morning of March 21, 2017, he was informed by local hunters of the existence of a camp in the vicinity of Qikiqtarjuaq. He confirmed with Officer Neely that no licence had been issued for any wildlife observation activities taking place at the camp.

Over the following few days, Officer Guay carried out an investigation to determine the nature of the activities provided at the camp and whether they were being provided in contravention of s. 117(2) of the Act. [ 14 ] Officer Guay met with representatives of the local Hunters and Trappers Organization (“HTO”), the Nattivak HTO. From this meeting, he understood that the Nattivak HTO had not approved of setting up of camp-based trips in the area. One of the concerns expressed to him by the Nattivak HTO was that the location of the camp interfered with polar bear family groups emerging from a nearby fjord.

[ 15 ] Officer Guay was provided with a copy of a letter from Arctic Kingdom to the Nattivak HTO, dated February 20, 2017, advising of Arctic Kingdom’s intention to

schedule camp-based trips for high-end tourists and film groups in the Qikiqtarjuaq area, including one in the Spring of 2017. Attached to the letter was a description of various planned trips which included a trip called “Spring Polar Bears & Icebergs of Baffin (Photo Safari)”. The brochure described the trip as being one “to primarily observe the natural wonders of icebergs and the spring polar bears and their cubs”. Although the word “close” is absent from the brochure, I am satisfied that it is implicit from the context that the observation is intended to be close in the sense captured by the Act.

It is also evident that wildlife, namely polar bears, was one of the objects of the observation activities scheduled to take place. Three Spring trips were listed on the

schedule for 2017: March 21 to 29, March 28 to April 5, and April 4 to 12. [ 16 ] From this documentation and the surrounding context, it is clear that Arctic Kingdom was proposing to establish, offer or provide trips or safaris in which wildlife was the object of close observation.

Such activities would require a licence pursuant to s. 117(2) of the Act and s. 37 of the Regulations . [ 17 ] Officer Guay was also provided with a copy of a March 23, 2017 letter from the Nattivak HTO addressed to Arctic Kingdom in which the HTO advised that, following consultation with the local community, it had rejected Arctic Kingdom’s request to operate near Qikiqtarjuaq. [ 18 ] Nattivak HTO’s rejection was significant. As explained by Officer Neely, s. 4(1) of the Regulations requires that Wildlife Observation Licence applicants submit an activity outline which details the proposed activities.

That requirement can be waived where the Superintendent of Wildlife (“Superintendent”) is satisfied that the potential impact on wildlife will be minimal: Regulations, s. 4(1) (e). If the local HTO objects to the issuance of a Wildlife Observation Licence, the Superintendent will not waive the requirement for an activity outline. Indeed, Officer Neely testified that it is difficult for the Superintendent to justify a finding that there is minimal impact on wildlife, absent a letter of support from the local HTO. The Inuit are considered co-managers of wildlife.

As such, they are involved and have a say in issues concerning wildlife in their area. While the ultimate decision lies with the Government of Nunavut, the Inuit are to be consulted. [ 19 ] Where an activity outline is required, the Regulations provide that the activity outline is to be sent to the local HTO, who then has 40 days to provide comments to the Superintendent: Regulations, s. 5 .

In this case, the HTO’s letter of non support meant that no licence would be issued in time to authorize the March 2017 Qikiqtarjuaq trip shown in the Arctic Kingdom brochure, as the Superintendent would not waive the requirement for the activity outline and consultation period. Compliance with the activity outline and consultation period requirement, as set out in the Regulations , would delay the possible issuance of a Wildlife Observation Licence for well over a month. [ 20 ] Officer Guay also testified that on March 22, 2017, he attended an orientation session provided by Parks Canada.

The orientation session was mandatory for all groups entering the local national park. At that session, Officer Guay met Dave Briggs who was in attendance with a group of clients. Officer Guay came to understand that Mr. Briggs was a team leader with Arctic Kingdom and that he was there for a briefing with the group of Arctic Kingdom’s clients from the camp set up near Qikiqtarjuaq. [ 21 ] On March 24, 2017, Officer Guay met with Wayne Broomfield, who identified himself as Arctic Kingdom’s camp manager. Officer Guay told Mr.

Broomfield that a licence was required for the wildlife observation activities taking place at the camp that had been set up near Qikiqtarjuaq. Mr. Broomfield expressed concern with the situation, explaining that setting up the camp had been expensive and that their clients had paid to be part of the trip. Mr. Broomfield enquired whether moving the camp to another location would assist in some way, to which Officer Guay responded that it would not. The issue was the absence of the required Wildlife Observation Licence. [ 22 ] On March 25, 2017, Officer Guay travelled to the camp.

He found it located approximately 30.9 kilometers from Qikiqtarjuaq, as the crow flies. He was met there by Mr. Broomfield who showed him around the camp. The camp consisted of bear fencing, approximately ten tents, including a kitchen tent, and various other equipment. Officer Guay was told that the clients were, at that moment, out touring. [ 23 ] At around 1:30 p.m., on either March 26 or 27, 2017, Mr. Broomfield walked into the Department of Environment’s Wildlife Office and in the course of their exchanges informed Officer Guay that the clients at the camp would be touring until March 28, 2017.

[24] The fact that the clients were staying at the camp during the period of at least March 22, 2017 when they attended the orientationsession to March 28, 2017 was confirmed through the several conversations Officer Guay had with Messrs.

Briggs and Broomfield.These conversations occurred at various points in time, including the discussion at the Parks Canada orientation session on March 22,2017, one instance in the wildlife office on either the 26 or 27 of March, 2017 and one at the Qikiqtarjuaq Airport on March 29, 2017.Whether the clients were at the camp commencing on March 21, 2017, at the start date of the trip indicated in the Arctic Kingdombrochure, or on March 22, 2017 is not clear from the evidence and has no bearing on the charges. [25] Although Officer Guay did not see the clients at the camp on March 25, 2017, he had seen them on March 22, 2017, when theyreceived their briefing from Parks Canada, and again at the Qikiqtarjuaq airport on March 29, 2017 as they were leaving theQikiqtarjuaq area.

At the airport, the clients were accompanied by Messrs. Briggs and Broomfield. In the course of Officer Guay’sconversations with Messrs. Briggs and Broomfield, it was confirmed to him that the clients had been present during the entire period ofMarch 22 to 29, 2017. i. Admissibility of the statements made by Messrs. Briggs and Broomfield against Arctic Kingdom Inc. [26] Arctic Kingdom Inc. argues that the statements made by Messrs.

Briggs and Broomfield to Officer Guay regarding the presence ofthe clients and the fact that they had been out touring, cannot be used against Arctic Kingdom Inc. to establish that it contravened s.117(2) of the Act. [27] Statements made by an agent or employee authorized to engage in the conversation with the third party are admissible against theirprincipal: R v Strand Electric Ltd. (1968), (ON CA), [1969] 2 CCC 264, 165 DLR (4th) 227 (Ont CA). [28] I find that the statements made by Messrs. Briggs and Broomfield are admissible against Arctic Kingdom Inc.

As I will explain inthe balance of the reasons, the only reasonable inference to be drawn from the evidence provided, along with the surrounding context, isthat they were acting as employees or agents of Arctic Kingdom Inc. Mr. Briggs is identified as a team leader in Arctic Kingdom Inc.’s2017 licence application. Mr. Broomfield was present at the camp and was involved in coordinating the activities established, offered orprovided by Arctic Kingdom Inc. I am also satisfied that the scope of their duties would include having conversations with conservationofficers. ii.

Voluntariness [29] Arctic Kingdom Inc. further maintains that voluntariness is a live issue with respect to some of the conversations Officer Guay hadwith Messrs. Briggs and Broomfield. Arctic Kingdom Inc.’s counsel noted that counsel for the Crown specifically questioned OfficerGuay as to the voluntariness of certain statements but neglected to do so for each and every interaction Officer Guay had with Messrs.Briggs or Broomfield. As a result, Arctic Kingdom Inc. argues that the Crown cannot rely on all statements Messrs.

Briggs andBroomfield made to Officer Guay. [30] The Crown bears the burden of establishing, beyond a reasonable doubt, that Messrs. Briggs and Broomfield’s statements weremade voluntarily: R v Hodgson, (SCC), [1998] 2 SCR 449 at para 37, 18 CR (5th) 135; R v Kooktook et al., 2006NUCA 3 at para 120, 210 CCC (3d) 106.

In determining whether a statement was voluntary, the “court should strive to understand thecircumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession's voluntariness”: R v Oickle,2000 SCC 38 at para 71, [2000] 2 SCR 3. [31] I agree that it is only with respect to some but not all of Messrs. Briggs and Broomfield’s statements to Officer Guay that counselfor the Crown made specific voluntariness enquiries.

However, as recently noted by the Court of Appeal of Newfoundland and Labrador,“[t]he determination as to whether a statement is voluntary does not depend on direct denials of threats, promises, and inducements fromthe persons in authority who received the statements”: R v Kelly, 2019 NLCA 23 at para 40, 374 CCC (3d) 360. Instead, voluntariness isdetermined in consideration of evidence as to the “how, why, when, and where” the statements were made: Kelly at para 40. What isrequired is “evidence that gives a true picture of the circumstances in which the statements were made”: Kelly at para 40.

[ 32 ] The Crown provided sufficient evidence regarding the circumstances in which the statements were made to satisfy its burden. Given the evidence provided as to the circumstances surrounding the various interactions that took place during the period in question and the context in which the statements were made, I am satisfied beyond a reasonable doubt that all of the statements made by Messrs.

Briggs and Broomfield, not only those for which a specific voluntariness enquiry was made, were voluntary. [ 33 ] In any event, even if I were to disregard those conversations where counsel for the Crown did not make a specific voluntariness enquiry of Officer Guay, the Crown has nonetheless met its onus of proving beyond a reasonable doubt that, on each of the 25, 26, 27 and 28 of March, 2017, a group of clients had been offered and participated in an organized activity in which wildlife was the object of close observation.

This is the only reasonable inference to be drawn from the combination of the statements made by Messrs. Briggs and Broomfield for which counsel for the Crown sought specific confirmation of voluntariness, the brochure attached to the February 20, 2017 letter Arctic Kingdom sent to the Nattivak HTO, Officer Guay’s visit to the camp, Officer Guay’s assessment that the camp would be expensive to set up and could not be dismantled quickly, and Officer Guay’s observation of the clients with Mr. Briggs on March 22, 2017 and again on March 29, 2017.

This coincides perfectly with the Arctic Kingdom brochure indicating that a “Photo Safari” was being offered March 21 to 29, 2017. B. Arctic Kingdom Inc. was the entity that committed the offences [ 34 ] Arctic Kingdom Inc. submits that the Crown has not proven beyond a reasonable doubt that the offences were committed by it.

Although Arctic Kingdom Inc. is the entity that has been charged, much of the material filed and testimony advanced at trial refers to the generic entity “Arctic Kingdom”, as well as other entities such as “Arctic Kingdom Expedition”, “Arctic Kingdom Polar Expeditions Inc.” and “Arctic Kingdom Polar Expeditions”. Moreover, Michelle Payette, Mr. Briggs, and Mr. Broomfield were not identified as working for Arctic Kingdom Inc.

In particular, Arctic Kingdom Inc. pointed to the fact that there was no corporate search conducted or evidence of Arctic Kingdom Inc.’s corporate structure linking it to the various individuals and entities involved in the investigation. As a result, Arctic Kingdom Inc. argues that there is a reasonable doubt as to whether it was the entity responsible for establishing, offering or providing the wildlife observation trip near Qikiqtarjuaq. [ 35 ] The Crown has met its onus.

Officer Neely testified that, as a result of Officer Guay’s inquiry as to whether a licence had been issued authorizing the wildlife observation activities near Qikiqtarjuaq, he contacted Ms. Payette by email on March 22, 2017. Ms. Payette was the person to whom Arctic Kingdom Inc.’s 2016 Wildlife Observation Licence had been sent. An email exchange between Ms. Payette, Officer Neely, and Jason Aliqatuqtuq, Officer Neely’s supervisor, shows that Ms.

Payette had begun enquiring about a 2017 Wildlife Observation Licence for Arctic Kingdom on March 15, 2017 and that a Wildlife Observation Licence application form had been sent to her by Mr. Aliqatuqtuq that same day. [ 36 ] I find the contents of Officer Neely’s March 22, 2017 email, sent at 12:47 p.m., to be particularly revealing. It reads as follows: Good Afternoon Michelle, I still have not received anything from you as of yet regarding your application for a Wildlife Observation Licence. I am aware that you have activities close to beginning in Qikiqtarjuaq.

The licence should have been in place prior to now, your company has left it very late. I have been lenient with Arctic Kingdom the past couple of years as the licence was new, but by now I know you are well aware of the process and there is no reason for you not to have your licence in place already. [ 37 ] On March 22, 2017, at 1:21 p.m., Ms. Payette forwarded a Wildlife Observation Licence application on behalf of Arctic Kingdom Inc. to Mr. Aliqatuqtuq and Officer Neely.

This application was clearly a response to Officer Neely’s email expressing concern over the unlicensed activities being carried out near Qikiqtarjuaq. [ 38 ] The emails identify Ms. Payette as “Field Planning Manager” for Arctic Kingdom and her email address appears as michelle.payette@arctickingdom.com. The application she sent was for Arctic Kingdom Inc. and indicates that the funding source was “[c]lient purchased trips”. On the application, Mr.

Briggs is listed as one of the “Activity Leaders”, one of the locations contemplated is Qikiqtarjuaq, and the contemplated activities include “[o]bserving/photographing wildlife via snowmobile”. The project title is “Arctic Kingdom expedition and/or safari”. The information contained in the application clearly ties Arctic Kingdom Inc. to the camp near Qikiqtarjuaq. Applicants are prohibited from knowingly making false or misleading statements in their licence application: Act, s. 57(1).

[ 39 ] Ms. Payette is also the person who sent the February 20, 2017 letter to the Nattivak HTO seeking approval of Arctic Kingdom’s camp-based Spring trip in the Qikiqtarjuaq region. As noted earlier, the material attached to her letter referenced the dates of March 21 to 29, 2017. [ 40 ] On March 23, 2017, the day following Ms. Payette’s submission of Arctic Kingdom Inc.’s licence application, the Nattivak HTO wrote to Arctic Kingdom. The letter was addressed to the same post office box that Arctic Kingdom Inc. listed on its licence application.

In addition, the letter references “Arctic Kingdom Expedition”, the project title shown in Arctic Kingdom Inc.’s 2017 licence application. [ 41 ] It is also noteworthy that Arctic Kingdom Inc. is the entity that obtained a Wildlife Observation Licence in 2016. That licence was sent to Ms. Payette at the same post office box that appears on Arctic Kingdom Inc.’s 2017 licence application and in correspondence from the Nattivak HTO. [ 42 ] The only reasonable inference that can be drawn from this documentation, together with the evidence of Officer Guay’s interactions with both Messrs.

Briggs and Broomfield is that the March 21 to 29, 2017 trip described in the brochure attached to Ms. Payette’s February 20, 2017 letter was established, offered or provided by Arctic Kingdom Inc. [ 43 ] I am also satisfied that there is sufficient evidence linking Ms. Payette, Mr. Briggs, and Mr. Broomfield to Arctic Kingdom Inc. Arctic Kingdom Inc.’s 2016 licence, Arctic Kingdom Inc.’s 2017 licence application, and the correspondence between Ms. Payette, the Nattivak HTO, Officer Neely, and Mr. Aliqatuqtuq clearly link Ms. Payette to Arctic Kingdom Inc. Mr.

Briggs is identified as an activity leader in Arctic Kingdom Inc.’s 2017 licence application. Mr. Broomfield was present and appeared to be in charge of the camp and was involved in the coordination of the activities established, offered or provided to a group of clients by Arctic Kingdom Inc. from March 21 to 29, 2017. Based on this evidence, along with the surrounding context, the only reasonable inference to be drawn is that Ms. Payette, Mr. Briggs, and Mr. Broomfield were acting as employees or agents of Arctic Kingdom Inc.

As expressly provided by the Act, the actions of Arctic Kingdom Inc.’s employees or agents are sufficient evidence that Arctic Kingdom Inc. committed the offences: Act, s. 233(1). [ 44 ] Before moving to the next issue, I will briefly address one additional submission made by Arctic Kingdom Inc. on this point. [ 45 ] Arctic Kingdom Inc. argued that evidence led at trial demonstrating that a local outfitter, Billy Arnaquq, along with his company Nunavut Experience Outfitting, were providing services to the camp raised a reasonable doubt as to the entity responsible for the establishment, offer or provision of the wildlife observation activities being carried out at the camp located near Qikiqtarjuaq. [ 46 ] Specifically, this evidence included an invoice showing that Nunavut Experience Outfitting charged for services related to the setup, operation and shut down of the camp.

It also included Officer Guay’s testimony relating a conversation that he had with Mr. Arnaquq wherein Mr. Arnaquq expressed concern that because of the services he was providing to the camp he may have required a Wildlife Observation Licence. [ 47 ] The fact that other entities may have been involved in the set up and operation of the camp and the activities being carried out there is irrelevant.

There was ample evidence establishing that Arctic Kingdom Inc., or its employees or agents, established, offered or provided the impugned activities and were involved in setting up and operating the camp where the activities were carried out. Whether other entities were involved and whether equipment used by the camp was supplied and owned by other entities does not negate Arctic Kingdom Inc.’s role in the commission of the offences and the requirement that it obtain a Wildlife Observation Licence. C.

There is no reasonable doubt as to whether Arctic Kingdom Inc. was unlicensed [ 48 ] Arctic Kingdom Inc. submits that there is a reasonable doubt as to whether it was unlicensed during the period that the camp near Qikiqtarjuaq was operating. In support of this argument, Arctic Kingdom Inc. makes four principal submissions, as follows: 1. the 2016 licence it obtained did not expire until June 2017; 2. the 2016 licence was automatically renewed for another year, as provided by the Act;

3. the Crown conceded that a licence had been issued to Arctic Kingdom in 2017; and 4. the Crown did not comply with the statutory requirements regarding the issuance and denial of licences. [ 49 ] For the reasons that follow, I reject these submissions and I am satisfied that the Crown has proven beyond a reasonable doubt that Arctic Kingdom Inc. did not obtain the required licence for the wildlife observation safari it established, offered or provided on each of March 25, 26, 27 and 28, 2017. i. The expiry of Arctic Kingdom Inc.’s 2016 licence [ 50 ]

Section 34 of the Act provides that “A licence expires on June 30 following the date of its issue, unless otherwise specified in the licence or the regulations.” Arctic Kingdom Inc. maintains that no earlier “expiry” date is stipulated on its 2016 licence and, as a result, the June 30 statutory expiration date applies. [ 51 ] I disagree.

The licence issued to Arctic Kingdom Inc. in 2016 stipulated as follows: “This licence is issued to Arctic Kingdom Inc. and will remain in effect for the duration of your activities in Nunavut from July 2016 to December 2016.” [ 52 ] I reject Arctic Kingdom Inc.’s submission that the statutory presumption of a June 30 expiry had not been displaced by the clear words of the 2016 licence. As noted above, s. 34 of the Act clearly provides that a licence can specify an expiry date other than June 30.

It is apparent from the extract set out above that it was a term of the 2016 licence that it would remain in force only for the period of July to December 2016. I see no substantial difference between stating that a licence “expires” in December and stating that it is in effect for a period ending in December. Therefore, I am satisfied that the 2016 licence is of no relevance to activities established, offered or provided by Arctic Kingdom Inc. outside of the dates specified in the 2016 licence. ii.

The automatic renewal [ 53 ] Subsection 13(1) of the Regulations provides that a commercial licence holder is entitled to a renewal of its licence for a period of up to ten years. Arctic Kingdom Inc. argues that once it submitted its application on March 22, 2017, the 2016 licence was automatically renewed. [ 54 ] I reject this submission. This argument is premised on the 2016 licence not having expired in December 2016. For the renewal provision to operate, the previous licence must not have expired: see Regulations, s. 13(4) .

As I have rejected Arctic Kingdom Inc.’s submission that the 2016 licence remained in force after December 2016, the renewal argument cannot succeed. Once a licence has expired, no automatic renewal is possible. [ 55 ] In any event, Ms. Payette sought a new licence, not a renewal of the July to December 2016 licence. iii. Arctic Kingdom’s 2017 licence [ 56 ] Officer Neely testified that a licence was eventually issued to Arctic Kingdom later in 2017.

Arctic Kingdom Inc. argues that, because the Crown did not produce and put the 2017 licence into evidence, I ought to be left with a reasonable doubt as to whether Arctic Kingdom Inc.’s activities in the Qikiqtarjuaq area from March 25 to 28, 2017 were unlicensed. [ 57 ] I reject this submission. Officer Neely testified that there was no record of a licence being issued for the March 25 to 28, 2017 wildlife observation activities. He explained that, later that year, a licence was issued to Arctic Kingdom but that it did not cover those activities. The 2017 licence was issued sometime after the instant charges.

The fact that other activities undertaken by Arctic Kingdom

Inc. later in the year were licensed is of no relevance. Officer Neely’s evidence, which I accept, clearly established that no licence had been obtained for the March 25 to 28, 2017 wildlife observation activities. iv. The Government of Nunavut’s alleged noncompliance with the licensing requirements [ 58 ] Arctic Kingdom Inc. argues that the Government of Nunavut did not comply with the statutory and regulatory licensing requirements and that this should estop the Crown from securing a conviction.

It lists the following examples of alleged noncompliance: there was no evidence that the form of Wildlife Observation Licence being used was approved by the Minister; the Government of Nunavut was issuing licences valid on a calendar year basis, rather than for the July to June period, as contemplated by s. 34 of the Act; the Government of Nunavut had issued waiver letters before regulations creating the licensing regime had been put in place; and the Government of Nunavut issued licences with retroactive application, without any legislative or regulatory authority. [ 59 ] Principal among the concerns raised by Arctic Kingdom Inc. is that the licence application it made on March 22, 2017 was refused without the Government of Nunavut complying with the notice requirements set out in s. 33 of the Act.

That

section states that applicants are to be provided with reasons for considering not issuing a licence, as well as a final written decision, with reasons, for the denial of a licence. [ 60 ] I do not accept that the Government of Nunavut’s actions and failures provide a defence to the charges.

The Government of Nunavut’s decision to waive the requirement that a licence be obtained in the period before the necessary regulations were put into place or its subsequent decisions to issue licences on a calendar year basis and, at times, having them apply retroactively has no bearing on the alleged contraventions of the Act for which Arctic Kingdom Inc. is charged.

As to the form of the licence that was used, there is no evidence one way or the other as to whether the form had in fact been approved by the Minister and, in any event, I do not see its relevance to the charges in this case. [ 61 ] Finally, Arctic Kingdom Inc. was well aware that the Nattivak HTO rejected its activities near Qikiqtarjuaq.

The Nattivak HTO’s lack of support for the planned wildlife observation activities meant that the Superintendent would not waive the need for an activity outline and consultation period, because he would not be satisfied that Arctic Kingdom Inc.’s activities near Qikiqtarjuaq would have a minimal impact on wildlife. In essence, the application could not be approved without the activity outline and consultation period requirement being met. This was known to Arctic Kingdom Inc. The fact that nothing in writing was provided is, in my view, of no consequence to the present case.

Arctic Kingdom Inc. did not allege that it was unaware of the basis for the Superintendent’s decision not to waive the requirement for an activity outline and consultation period. In the end, it is the Nattivak HTO’s objection, resulting in the need for the 40-day consultation period, that made it inevitable that the March 21 to 29, 2017 activities would be unlicensed. Given that the application was only made on March 22, 2017, the licence, if granted, would be issued sometime after the 40-day consultation period, well after the activities had finished. IV.

CONCLUSION [ 62 ] For these reasons, I find Arctic Kingdom Inc. guilty of all four offences charged. Dated at the City of Iqaluit this 20th day of January, 2020 ___________________ Justice P. Rouleau Nunavut Court of Justice