Professional Documents
Culture Documents
Cour de Justice Du Nunavut
Cour de Justice Du Nunavut
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.
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[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.
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
A. Rules of Court
[16] The Rules of the Nunavut Court of Justice provide for the following in
relation to injunctive relief:
Application
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
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[18] Generally, interim injunctions tend to be for short time periods and, in
addition to meeting the tripartite test for injunctions set out in RJR
MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311,
1994 CanLII 117 (SCC) [“RJR MacDonald”] they must also have an
element of urgency (Paul v Alexander First Nation, 2016 FC 419 at
para 15). Interim injunctions are often issued when the respondents
have not had an opportunity to prepare a response to the application.
An injunction that is issued ex parte will usually be an interim
injunction.
[21] Although the Rules of the Nunavut Court of Justice do not use the
term “interim injunction”, the principles and the differences between
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.
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VI. ANALYSIS
[22] The test for injunctive relief is set out in RJR MacDonald. The three
factors the court must consider are:
[24] It is clear that there is a serious issue to be tried. The Plaintiff’s legal
action is not frivolous or without merit.
[25] Under this branch of the test, in the circumstances of this case, there
are three factors to consider:
[26] This branch of the test for injunctive relief requires a consideration of
the Defendants’ argument that the need for injunctive relief has
lapsed because the protesters have left the project site.
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[27] The Plaintiff submits that although the protesters have left the project
site the need for injunctive relief continues, as there is a reasonable
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 Inuit leadership. The
email concluded:
This departure will not end their advocacy in relation to the Baffinland
Mine. The Guardians are committed to continuing action on the land
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 to be tried,
as there is no longer any trespass, nuisance, or interference with
economic interests.
[31] The Defendants rely on this case for the proposition that an injunction
is an extraordinary remedy and ought not be continued once the
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 February 10
and that they are law abiding.
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[33] In my view, unlike the dispute in Country Ribbon, the matter before
me does not present with a resolution in place. While the Defendants
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 topic of
discussion in the media. There may be more than one reason for the
protest. It may be that the individual protesters are there for different
reasons.
[36] Counsel for the Defendants also refers to the case of Quality Pallets
and Recycling Inc. v Canadian Pacific Railway Company, 2007
CanLII 13712 (Ont SC) [“Quality Pallet”]. In this case a pallet
production company obtained an interim injunction against its
landlord, Canadian Pacific Railway Company, to prevent it from being
evicted at the termination of a lease. The issue was whether there
was an oral agreement to renew the lease. It was undisputed that the
magnitude and complexity of the tenant’s production required
approximately 10 months to relocate. An injunction was granted for
the 10 months necessary for the Plaintiff to relocate. The principle
stated at para 30 of the decision and relied upon by the Defendants,
to the effect that an injunction should not extend beyond the time
harm is being sustained, is applied in a completely different context
than the matter before me.
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[37] The Quality Pallet case is of a completely different nature than the
matter before me. In that case, the defendant company had relocated
and had resumed operations without any risk of the being shut down
because of the dispute with its former landlord. Injunctive relief 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 remain
unresolved. 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 longer a need
for injunctive relief.
[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.
[43] Asserted Aboriginal rights are rights that are asserted but not yet
proven. The existence and the extent of the Aboriginal title is as yet
undetermined. Caution must be taken to ensure to the extent possible
that any potential Aboriginal right is not destroyed before it is even
acknowledged.
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[44] This is not the Nunavut context. The Nunavut Land Claims Agreement
(NLCA) is a modern treaty that encompasses the largest land claims
settlement in Canada. The processes for resource development are
set out in the Agreement. With respect to the current operations, it
does not appear to be in dispute that the Plaintiff has complied with
the necessary requirements under the NLCA and any regulatory 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.
[47] The Plaintiff has submitted evidence in relation to the loss of revenue
because of the inability to transport iron ore from the mine site to
Milne Port. Iron ore is transported daily (with provisions made for work
stoppages due to weather, etc.) from the mine site to Milne Port.
There is a limit on the loads that can be hauled and, generally
speaking, the mine is hauling ore at capacity. During the months
when the ore cannot be shipped it is stock piled at Milne Port.
However, the Plaintiff receives payment for the ore once it arrives at
Milne Port. This means there is a revenue stream throughout the year
and not just during the shipping season. This revenue stream will 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 is being
transported is such that damages would not be compensable in
monetary terms.
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[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 be mined
and transported at some time in the future. This argument disregards
the costs of maintaining the project site when it is not operating, 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 short periods of
time (two protests of three to four hours each) were found to
constitute irreparable harm. The court stated that the complete
blockade of a lawful business strongly suggests irreparable harm for
the purposes of an injunction (at para 86).
[50] The balance of convenience branch of the tripartite test for injunctive
relief requires a consideration of the rights of private entities to carry
on lawful business operations and the rights of citizens to protest and
freely express opposition. As stated by the Supreme Court of Canada
in MacMillan Bloedel Ltd. v Simpson, [1996] 2 SCR 1048, 1996
CanLII 165 (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 be
found. 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 to
protect the legitimate exercise of lawful private rights while preserving
maximum scope for the lawful exercise of the right of expression and
protest.
VII. CONCLUSION
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
iv. The Defendants may apply on two days’ notice to the Plaintiff to
vary or set aside this Order.
___________________
Justice S. Cooper
Nunavut Court of Justice