Sun. Aug 14th, 2022

A recent legal move by the Nuluujaat Land Guardians, a group of Inuit protesters, to sue Baffinland Iron Mines is unusual in Canada, says one lawyer watching from afar.

And it’s made possible thanks to environmental legislation unique to Nunavut and the NWT, which allows people to take up claims of environmental damages within the territories on behalf of everybody who uses the area.

“I can’t think of a case where the defendants have basically turned around and used it as an opening of a door to get some of their arguments and concerns before the court,” said Ben Ralston.

Ralston teaches at the University of Saskatchewan College of Law and has previously taught environmental law, and at the Nunavut Law Program.

The Nuluujaat Land Guardians were first sued by Baffinland in February 2021, after the guardians set up a temporary blockade at Baffinland’s Mary River Mine about 176 kilometers from Pond Inlet.

A ship is loaded at Baffinland’s Milne Inlet port on North Baffin Island. (Baffinland Iron Mines Corp. )

Baffinland Iron Mines’ lawsuit, filed in the Nunavut Court of Justice, accuses the group of trespassing, unlawful interference with economic interests and mischief. In early March, a Nunavut judge issued an injunction in relation to the case, banning protesters from obstructing the mine’s airstrip and tote road.

Just last month, on July 12, the Land Guardians filed their statement of defence, alongside a countersuit of their own that makes several claims against Baffinland, asking the judge for an injunction that would stop Baffinland from emitting noise and dust pollution into the surrounding areas .

“To kind of turn this around and make it a lawsuit against Baffinland is, I guess, a bit of a power move.”

A right ‘to speak on behalf of Nunavut as a whole’

Ralston said this case is testing several legal arguments and one statute in particular for Nunavut, that’s rarely been used.

The Nunavut Environmental Rights Act states that every resident in the territory has the right to “protect the environment and the public trust from the release of contaminants by commencing an action in the Nunavut Court of Justice against any person releasing any contaminant into the environment.”

“You can think of this as authorizing one or more Nunavummiut to speak on behalf of Nunavut as a whole, and in a sense to speak on behalf of the environment of Nunavut as well,” Ralston said.

That’s compared to legislation in southern jurisdictions, where not just anyone can file their environmental concerns in court, Ralston said.

“I might see pollution happening, I might be upset about it. Of course, though, there will be regulators, I might be able to call up and try and report pollution to.”

But ordinarily, he said, most regular citizens don’t get to just bring any kind of claim into court.

“It’s very hard, traditionally, to get standing to bring environmental law disputes before the courts.”

After injunctions, lawsuits typically don’t go anywhere, Ralston says

Ralston said lawsuits seeking injunctions over protesters often don’t end up going to trial once the injunction has been issued.

“Normally what you’d see is the action gets filed, then they bring the injunction, they argued the injunction, and once they have that, and once there’s no longer interference or [a] blockade or any sort of dispute to resolve, usually you’ll see that action not really going anywhere,” he said.

In this case, however, the protesters have taken the opportunity to make a wider case of their own.

Baffinland’s original suit named five defendants, alongside “John Doe and Jane Doe” and “all other persons unknown to the plaintiff.” The statement of defense and counterclaim was filed by three of those named — Tom Naqitarvik, Christopher Akeeagok, Johnathan Pitula — who their lawyer, Anne Crawford, referred to collectively as the Land Guardians.

Crawford said the purpose of the countersuit is twofold.

First, it’s about countering Baffinland’s claim saying that the company lost millions because of the protests, she said. The land guardians argue that the company gained money as a result of the blockade due to rising prices in the worldwide iron ore market.

But more crucially, the counterclaim is about protecting the environment, particularly in regard to sound contamination related to shipping, and dust contamination from mining activities.

“Their [the Land Guardians] real goal is to ensure that that area is environmentally protected,” Crawford said.

The counterclaim document also says the guardians want compensation for anyone whose hunting rights have been impacted.

Case yet to go to trial

The Land Guardians’ claims, along with Baffinland’s, are still before the court. It is not yet clear when the case will go to trial.

In an email, Baffinland spokesperson Peter Akman described the guardians’ claim as “frivolous.”

“Many of the statements within it are clearly untrue and represent a clear lack of understanding or intentional mischaracterization of Baffinland’s operation and mining in general,” he wrote.

“The protesters unlawfully prevented hundreds of employees from returning to their families and put lives at risk,” he said.

Akman also said that the protesters are claiming an interest in [Qikiqtani Inuit Association] and Crown land, “which we assume will also be challenged.”

Although the approach by the Land Guardians is uncommon, it is not the first time this legislation has been used in Nunavut, Crawford said.

She referenced a case from the early 2000s when a group of citizens went to court over the City of Iqaluit’s routine burning of garbage at the dump. They raised health concerns about the resulting air pollution.

“So it’s not completely untested,” Crawford said of the use of the Nunavut Environmental Rights Act.

“But it’s very uncommon and there isn’t a counterpart in southern law.”

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