Baffinland Iron Mines Corporation v. Inuavak et al, 2021 NUCJ 11

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Baffinland Iron Mines Corporation v. Inuavak et al, 2021 NUCJ 11 Date: 20210 302 Docket: 11-21-048 Registry: Iqaluit Plaintiff: Baffinland Iron Mines Corporation -and- Defendants: Namen Inuavak, Tom Naqitarvik, Jonathan Pitula, Christopher Akeeagok, Andy Kalluk, John Doe and Jane Doe, and all other persons unknown to the Plaintiff at a blockade at or near Mary River, NU ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Plaintiff): B. Armstrong, T.

Kruger Counsel (Defendants Naqitarvi, Akeeagok, and Kalluk): L. Idlout Location Heard: Iqaluit, Nunavut Date Heard: February 13, 2021 Matters: Decision granting interlocutory injunction against mine site protestors pending court proceedings REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Baffinland Iron Mines Corporation [“BIM”] has applied for an injunction prohibiting the Defendants and others from blockading or obstructing its mining operations at the Mary River site on northern Baffin Island. II. BACKGROUND [ 2 ] BIM currently operates an iron ore mine known as the Mary River project on northern Baffin Island. [ 3 ] The project site is at a fly in-fly out location, so the infrastructure for the project includes an airstrip.

Iron ore is mined and crushed at one location (the mine site), trucked to a site where it can be loaded on to ships (Milne Port), and shipped out during open water season. The mine site and Milne Port are connected by a road called the Tote Road, which is approximately 100 km long. The airstrip is located at the mine site. Accommodation for most of the employees is at the mine site; however, there are also accommodations at Milne Port. [ 4 ] Shipping of iron ore can occur only during the open water season.

However, during the rest of the year iron ore is still trucked to Milne Port and is stockpiled to await the shipping season. [ 5 ] BIM has applied to significantly expand its operations at the mine. This application is currently undergoing the required review process. The hearings have been adjourned and will be resumed in the near future. We do not know if the application will be approved or not. [ 6 ] The review process is controversial. The current approvals for the mine are controversial.

There are strongly held views and opinions on all sides. [ 7 ] The north Baffin communities of Pond Inlet, Arctic Bay, Clyde River, Igloolik, and Sanirajuk are the communities closest to and most affected by the mining operations. [ 8 ] On February 4, 2021, residents from the local communities set up protests at the BIM site. These protests consisted of a camp set up on the runway that services the mine site and a camp on the Tote Road, approximately 3-4 km from the mine site. The protests were not large. There were approximately 5 protesters at the mine site and 2 on the Tote Road.

Nonetheless, because of the protests, the plane that normally lands at the airstrip could not land and iron ore could not be trucked from the mine site to Milne Port. Essentially, the protest shut down mining operations. It also stopped the movement of people and supplies to and from the mine. [ 9 ] On February 9, 2021, BIM applied ex parte for an injunction to bring an end to the blockades at the project site. I heard the application that morning and directed that the Defendants be provided with notice and the matter be brought back the following morning.

At that time, the main focus of the court was whether there ought to be an injunction so as to facilitate the transport of employees from the project site. While I appreciated that this was short notice, the nature of the relief sought demanded a quick response and any notice, even imperfect notice, is better than no notice. [ 10 ] On February 10, 2021, counsel for three of the Defendants (Naqitarvi, Akeeagok, and Kalluk) appeared in court. At that time the concern of the court was the employees (approximately 700), who were at the project site and unable to leave due to the blockade on the airstrip.

Counsel for the Defendants advised that they were not opposed to facilitating the departure of the employees that were on site. An interim order issued to ensure that occurred. A short time later the Defendants left the project site and carried on to their respective communities of Pond Inlet and Arctic Bay, each of which is two days of travel by snowmobile from the project site.

[ 11 ] The matter returned to court on February 13, 2021. At that time, the Plaintiff maintained its application for an interlocutory injunction. The Defendants opposed the application. III. WHAT THIS APPLICATION IS NOT ABOUT [ 12 ] The decision I am required to make on this application is not a review or comment on the mining operation, on the review process currently underway, or on the relationship amongst the various Inuit organizations involved and their beneficiaries. IV. POSITIONS OF THE PARTIES A.

Plaintiff [ 13 ] The Plaintiff has brought an action against the Defendants for trespass, unlawful interference with economic interests, and mischief. The Plaintiff submits that it has the necessary regulatory approvals for the current operations and that the Defendants do not have the right to interfere with those operations. [ 14 ] In relation to the injunctive relief sought, the Plaintiff submits that is necessary to ensure that the protests are not recommenced. B. Defendants [ 15 ] The Defendants assert their Aboriginal rights pursuant to s. 35 of the The Constitution Act , 1982,

Schedule B to the Canada Act 1982 (UK), 1982, c 11 . They submit that injunctive relief is no longer required as the Defendants have left the project site. V. INTERIM, INTERLOCUTORY, PERMANENT INJUNCTIONS A. Rules of Court [ 16 ] The Rules of the Nunavut Court of Justice provide for the following in relation to injunctive relief: Interlocutory Injunction or Mandatory Order Application 445. A party to a pending or intended proceeding may apply for an interlocutory injunction or a mandatory order. Time for order, extension 446.

(1) An application under rule 445 may be made without notice, but any order granted on the application shall be limited in its application to a period not exceeding 10 days.

(2) Where an interlocutory injunction or a mandatory order is granted on an application without notice, an application to extend the injunction or mandatory order may be made only once (

a) on notice to every party affected by the order: or (

b) without notice to a party, where the judge is satisfied that, because the party has been evading service or because there are other

exceptional circumstances, the injunction or mandatory order ought to be extended.

(3) An extension may be granted on an application without notice under subrule (2)(

b) for a further period not exceeding 10 days. Undertaking respecting damages 447.

On an application for an interlocutory injunction or a mandatory order, the applicant shall, unless the Court orders otherwise,undertake to abide by any order respecting damages that the Court may make if it ultimately appears to the Court that the granting ofthe order has caused damage to the respondent for which the applicant ought to compensate the respondent. [17] There is some distinction between interim, interlocutory, and permanent injunctions. [18] Generally, interim injunctions tend to be for short time periods and, in addition to meeting the tripartite test for injunctions set outin RJR MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311, (SCC) [“RJR MacDonald”] they must alsohave an element of urgency (Paul v Alexander First Nation, 2016 FC 419 at para 15).

Interim injunctions are often issued when therespondents have not had an opportunity to prepare a response to the application. An injunction that is issued ex parte will usually be aninterim injunction. [19] An interlocutory injunction is intended to remain in place until the trial has concluded and there has been a final determination onwhether there should be a permanent injunction.

A decision on an interlocutory injunction will have the benefit of affidavit evidence andargument from both parties. [20] A permanent injunction is granted only after trial. [21] Although the Rules of the Nunavut Court of Justice do not use the term “interim injunction”, the principles and the differencesbetween interim and interlocutory injunctions are recognized in that injunctions granted ex parte are time limited (10 days maximum)and, with limited exceptions, can be renewed only once. VI. ANALYSIS [22] The test for injunctive relief is set out in RJR MacDonald.

The three factors the court must consider are: A. Is there a serious issue to be tried; B. will irreparable harm result if the relief is not granted; and C. where does the balance of convenience lie? A. Is there a serious issue to be tried? [23] The Plaintiff’s action against the Defendants is based on trespass, nuisance, and interference with economic interests. It is allegedthat the actions of the Defendants resulted in the shutdown of a large mining operation resulting in significant economic loss to thePlaintiff. It is alleged that the Defendants’ actions were unlawful.

The Defendants claim an Aboriginal right to access and occupy theland. [24] It is clear that there is a serious issue to be tried. The Plaintiff’s legal action is not frivolous or without merit.

B. Will irreparable harm result if the relief is not granted? [25] Under this branch of the test, in the circumstances of this case, there are three factors to consider: i. has the need for injunctive relief lapsed; ii. should there be a modified approach given the Indigenous context; and iii. does harm to economic interests amount to irreparable harm? (

i) Has the need for injunctive relief lapsed? [26] This branch of the test for injunctive relief requires a consideration of the Defendants’ argument that the need for injunctive reliefhas lapsed because the protesters have left the project site. [27] The Plaintiff submits that although the protesters have left the project site the need for injunctive relief continues, as there is areasonable possibility that the protesters will return to the site.

To support this submission, they refer to an email sent from Defendants’counsel on February 11, 2021, updating the court as to her clients departure from the project site and their planned meetings with Inuitleadership. The email concluded: This departure will not end their advocacy in relation to the Baffinland Mine.

The Guardians are committed to continuing action on theland unless they can see progress in proposed meetings. [28] The Defendants submit that since the Statement of Claim is based on the presence of the protesters, there is no longer an issue tobe tried, as there is no longer any trespass, nuisance, or interference with economic interests. [29] In support of this proposition the Defendants refer to the following cases. [30] Country Ribbon Inc. v Newfoundland and Labrador Association of Public and Private Employees, (NL SC)[“Country Ribbon”] involved a wildcat strike by employees at a chicken processing plant.

An ex parte injunction was granted and within48 hours the company and the employees had reached an agreement which ended the work stoppage. Nonetheless, the company arguedfor a continuation of the injunction on the basis that a work stoppage might reoccur.

In denying the continuance of the injunction, thecourt stated: … an ex parte injunction issued to deal with one emergency situation ought not to continue as an umbrella under which future workstoppages are enjoined where the potential reasons for those future work stoppages are unknown. (at para 15) [31] The Defendants rely on this case for the proposition that an injunction is an extraordinary remedy and ought not be continued oncethe specific emergency situation that led to the injunction has resolved. [32] Counsel for the Defendants submits that the protesters complied readily with the interim injunction that was granted on February10 and that they are law abiding. [33] In my view, unlike the dispute in Country Ribbon, the matter before me does not present with a resolution in place.

While theDefendants have left the project site, their counsel was not able to confirm that they have agreed to not return and continue the protest.Further, counsel does not represent all the Defendants; she represents only three of seven.

[34] In addition, counsel for the Defendants has not articulated the reason for the protest. The protest and its reasons have been the topicof discussion in the media. There may be more than one reason for the protest. It may be that the individual protesters are there fordifferent reasons. [35] In response to the protest, Inuit leadership reached out to the Defendants to arrange meetings to reach a resolution. The Defendantshave agreed to the meetings. It is unknown how those meetings will progress and if a resolution will be reached.

Meanwhile, the NIRBhearings, which have been controversial and were one of the apparent reasons for the protests, will recommence soon. If the Defendantsare not satisfied with their meetings with Inuit leadership, the continued process of the NIRB hearings, or any other aspect of the mineproject, there is a real possibility that the protest will continue. [36] Counsel for the Defendants also refers to the case of Quality Pallets and Recycling Inc. v Canadian Pacific Railway Company, (Ont SC) [“Quality Pallet”].

In this case a pallet production company obtained an interim injunction against itslandlord, Canadian Pacific Railway Company, to prevent it from being evicted at the termination of a lease. The issue was whether therewas an oral agreement to renew the lease. It was undisputed that the magnitude and complexity of the tenant’s production requiredapproximately 10 months to relocate. An injunction was granted for the 10 months necessary for the Plaintiff to relocate.

The principlestated at para 30 of the decision and relied upon by the Defendants, to the effect that an injunction should not extend beyond the timeharm is being sustained, is applied in a completely different context than the matter before me. [37] The Quality Pallet case is of a completely different nature than the matter before me. In that case, the defendant company hadrelocated and had resumed operations without any risk of the being shut down because of the dispute with its former landlord.

Injunctiverelief was not necessary to ensure its business operations could continue. [38] In the matter before me, the business operations that are at risk continue as a going concern and the protesters’ concerns remainunresolved. Although the protesters may no longer be at the project site, their reasons for being there in the first place remain. [39] The Plaintiff’s concerns for a future blockade are legitimate, as is its desire for certainty.

I am not persuaded that there is no longera need for injunctive relief. (ii) Injunctions in the Indigenous context [40] The Defendants submit that the defence to the action commenced by the Plaintiff is an assertion of Aboriginal rights pursuant to s.35 of the Constitution Act. [41] The Defendants cite the case of Frontenac Ventures Corporation v.

Ardoch Algonquin First Nation, 2008 ONCA 534, for theproposition that where Aboriginal rights are being asserted in a dispute with a private entity, injunctive relief to protect private interestsshould be granted only where the court has made every effort to encourage consultation, negotiation, accommodation, and reconciliation. [42] It is necessary to distinguish between asserted Aboriginal rights and settled Aboriginal rights. [43] Asserted Aboriginal rights are rights that are asserted but not yet proven. The existence and the extent of the Aboriginal title is asyet undetermined.

Caution must be taken to ensure to the extent possible that any potential Aboriginal right is not destroyed before it iseven acknowledged. [44] This is not the Nunavut context. The Nunavut Land Claims Agreement (NLCA) is a modern treaty that encompasses the largestland claims settlement in Canada. The processes for resource development are set out in the Agreement. With respect to the currentoperations, it does not appear to be in dispute that the Plaintiff has complied with the necessary requirements under the NLCA and anyregulatory and legislative requirements.

The approvals for the current mining operations are in place.

[45] The Defendants are not alleging that there has been inadequate consultation or accommodation in relation to the current project. [46] If what the Defendants are protesting is the application to expand mining operations and the ongoing NIRB hearings, their remedyis in judicial review. I say this while noting that the Defendants are not asserting that they represent any of the Designated InuitOrganizations, so their ability to advance collective rights may be limited (Behn v. Moulten King, 2013 SCC 26).

If what the Defendantsare protesting is the distribution of royalties and benefits flowing from the mining operations, then their remedy lies with the DesignatedInuit Organizations. (iii) Can harm to economic interests constitute irreparable harm? [47] The Plaintiff has submitted evidence in relation to the loss of revenue because of the inability to transport iron ore from the minesite to Milne Port. Iron ore is transported daily (with provisions made for work stoppages due to weather, etc.) from the mine site toMilne Port.

There is a limit on the loads that can be hauled and, generally speaking, the mine is hauling ore at capacity. During themonths when the ore cannot be shipped it is stock piled at Milne Port. However, the Plaintiff receives payment for the ore once it arrivesat Milne Port. This means there is a revenue stream throughout the year and not just during the shipping season. This revenue streamwill vary not only with the volume and quality of ore but also with the price of iron ore.

The amount and value of the iron ore that isbeing transported is such that damages would not be compensable in monetary terms. [48] It might be argued that there is no irreparable harm to the Plaintiff due to economic loss since the iron ore is still on site and can bemined and transported at some time in the future. This argument disregards the costs of maintaining the project site when it is notoperating, an expense that would be borne by the Plaintiff and would not be recoverable. [49] Further, in Hudson Bay Mining & Smelting Co.

Limited v Dumas et al., 2014 MBCA 6, blockades of a mining operation for shortperiods of time (two protests of three to four hours each) were found to constitute irreparable harm. The court stated that the completeblockade of a lawful business strongly suggests irreparable harm for the purposes of an injunction (at para 86). C.

Where does the balance of convenience lie? [50] The balance of convenience branch of the tripartite test for injunctive relief requires a consideration of the rights of private entitiesto carry on lawful business operations and the rights of citizens to protest and freely express opposition. As stated by the Supreme Courtof Canada in MacMillan Bloedel Ltd. v Simpson, [1996] 2 SCR 1048, (SCC) at para 13: In a society that prizes both the right to express dissent and the maintenance of private rights, a way to reconcile both interests must befound.

One of the ways this can be done is through court orders like the one at issue in this case. The task of the courts is to find a way toprotect the legitimate exercise of lawful private rights while preserving maximum scope for the lawful exercise of the right of expressionand protest. [51] A blockade of the Plaintiff’s mining operation results in economic losses of a magnitude that cannot realistically be remedied by anorder for damages at some future time. On the other hand, injunctive relief does not prohibit the Defendants from carrying out protestsand expressing their views.

While it is true that such protests would be of little effect at the project site without impeding the operationsdue to the remoteness of the location, there are other locations within the territory where a protest would be seen and heard. [52] I find that the balance of convenience favours the granting of injunctive relief. VII. CONCLUSION [53] An interlocutory injunction is granted, with the following terms:

The named Defendants and anyone else with knowledge of the Order: i. must not access the lands authorized for use by the Mary River project, including the mine site, the airstrip, the Tote Road, and any other lands and facilities of the project, in ways that are incompatible with the authorized land use activities and operations of the project, including any action that obstructs or impedes those activities and operations; and ii. in particular, must not obstruct or impede the use and operations of the airstrip or the Tote Road at the Mary River project in any way by occupying them, or by placing any snowmobiles, qamutiks, tents, or other things on them. iii.

The Royal Canadian Mounted Police are authorized to enforce this Order, including removing and detaining to the extent necessary, persons who have knowledge of this Order and who are obstructing or impeding access as provided for in this Order. iv. The Defendants may apply on two days’ notice to the Plaintiff to vary or set aside this Order. Dated at the City of Iqaluit this 2nd day of March, 2021 ___________________ Justice S. Cooper Nunavut Court of Justice