Qikiqtani Inuit Assn. v. Canada ( Attorney General )
T-2019-97
Reed J.
9/10/98
35 pp.
Judicial review of Nunavut Water Board (Board) decision granting water licence renewal to Nanisivik Mines Ltd. (NML), authorizing it to use water for industrial purposes at its lead/zinc mining and milling operations located in Nanisivik, Northwest Territories (NWT)-Board first tribunal created (July 6, 1996) as part of soon to be established Nunavut Government-Board took over responsibilities previously exercised by Northwest Territories Water Board-Applicant Qikiqtani Inuit Association (QIA) holding title to Inuit-owned land of Baffin Island on behalf of approximately 12,000 Inuit beneficiaries, and controlling access to and administration of that land-Prior to midFebruary 1997, QIA known as Baffin Region Inuit Association (BRIA)-Decision challenged on ground procedure followed by Board led to either breach of rules of natural justice or breach of statutory requirements imposed on Board by Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in right of Canada and Nunavut Land Claims Agreement Act; and on ground Board ignored evidence before it and failed to exercise its jurisdiction, particularly with regard to dumping of raw sewage into NWT waters and development of guidelines to govern payment of compensation for environmental degradation caused by mine's use of water pursuant to licence-Application dismissed-Procedure-Board responsible for approving use of water and disposal of waste into waters of NWT, and specifically directed to take into account Inuit culture, customs and knowledge and one of its objectives to provide for right of Inuit to participate in decision-making relating to use of land, water and resources-NML's five-year licence due to expire in October 1996-Application for renewal filed in January 1996 with NWT Water Board-Nunavut Water Board took over processing of licence renewal application in July 1996 when took over from NWT Water Board-In March 1996, Department of Indian Affairs and Northern Development (DIAND) wrote to members of NWT Technical Advisory Committee (TAC) notifying them that NML had made application for licence renewal and seeking comments for purpose of conducting environmental screening pursuant to Canadian Environmental Assessment Act-In July 1996, DIAND notified NWT Water Board environmental screening determined water use project unlikely to cause significant adverse environmental effects and recommended incorporation of mitigation measures as conditions in licence-In October, Board sent NML formal notification that licence had been extended until January 1997-Independent consultant hired, filed report-Licence finally issued in July 1997-QIA did not receive relevant technical reports in sufficient time to allow considered analysis thereof-In present case, nature of decision and its effects of type to require very high degree of procedural fairness-Employment, environment and health of residents all affected-Agreement providing for Inuit participation in decision-making concerning use, management and conservation of land, water and resources-Agreement given status of land claims agreement within meaning of Constitution Act, 1982, s. 35-QIA not given adequate notice of September 1996 meeting-Difficulties arose as result of newness of situation that both Board and QIA faced and because of time constraints arising out of imminent expiry of existing licence-In case of technical reports, will often be sufficient to notify public that access to reports can be obtained at certain location-In case of QIA, reports should be provided automatically-September 1996 procedures, in so far as QIA concerned, did not meet requirements of common law natural justice-Nor did they meet statutory requirement imposed on Board-However, defects essentially cured by issue of interim licence, extension of period to receive submissions-In sum, prejudice created by frequently changing procedure not sufficiently serious to justify setting aside Board's decision-No basis to conclude Board ignored evidence-Application dismissed-Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]-Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in right of Canada-Nunavut Land Claims Agreement Act, S.C. 1993, c. 29, s. 35.