Nunavut judge rejects luxury outfitter’s constitutional challenge
Licensing requirement no threat to Inuit activities, court finds
An Ontario-based luxury tour operator facing four charges under the Nunavut Wildlife Act has lost a bid to get the charges tossed out on the grounds that the law they’re accused of breaking infringes on Inuit hunting rights and violates the constitution.
Justice Paul Rouleau, an Ontario judge who serves as deputy judge in the Nunavut Court of Justice, issued the written ruling last week following a hearing in Iqaluit held on April 15.
The case began in May 2017 after the Government of Nunavut laid four charges, in the form of tickets, against Arctic Kingdom Inc., for offering wildlife observation activities without a licence in March 2017, in contravention of section 117 (2) of the Wildlife Act.
Based in Mississauga, Ont., near Toronto, Arctic Kingdom offers high-end Arctic safari tour packages—some costing more than $20,000 per person—to an affluent clientele.
The company also serves filmmakers who seek Arctic footage and, on their website, say their past clients include the BBC, Redbull Media House and Disney Nature.
The company pleaded not guilty and tried to defend itself by claiming the wildlife law is too broad and infringes on section 7 of the Charter of Rights, which guarantees life, liberty and security of the person.
But after a hearing this past April 15, Rouleau dismissed that claim.
Commercial wildlife observation requires a licence
The Nunavut Wildlife Act, under a part of the law that’s headed “Commercial and other activities,” states companies need a licence to conduct activities in which wildlife is “the object of interaction, manipulation or close observation, including the making of a film or the provision of an expedition, safari or cruise.”
If convicted, corporations could face a fine ranging from a minimum of $500 to a maximum of $1 million.
Represented by Iqaluit lawyer Anne Crawford and articling student Lori Idlout, Arctic Kingdom tried to get the charges thrown out on two grounds:
• One, that by passing section 117 (2), the Nunavut legislature exceeded its authority, since the Nunavut Act, in line with the Nunavut land claims agreement, says the legislature can’t prevent Inuit from hunting for food without a licence.
• Two, that section 117 (2) is too vague and overbroad, and that if strictly enforced, would cover routine activities by Inuit, violating Section 7 of the Charter of Rights, which guarantees life, liberty and security of the person.
On the other hand, the Nunavut government lawyer, Emily Stockley, argued that section 117 (2) applies only to commercial activities.
“Experts” given prior interpretation of the law
To support their position, Arctic Kingdom’s lawyers brought in five witnesses, who they presented as “experts.”
But Rouleau did not accept them as “experts,” saying that because of “definitions” provided as background materials by Arctic Kingdom’s lawyers, “the witnesses’ opinions are based on a flawed description of the impugned provisions’ scope,” Rouleau said.
“I admit their evidence as it provides social and legislative facts rather than expert opinions,” the judge said in a footnote.
The witnesses, Evie Onalik, Adamee Itorcheak, Glenn Williams, Kowmagiak Mitsima and Alethea Arnaquq-Baril, all gave evidence suggesting the wildlife law “would have a very broad impact on the Inuit community and Inuit way of life,” Rouleau said in his judgment.
For example, Onalik claimed the law might interfere with Inuit family life, since it could require that families get a licence before going berry picking.
Williams claimed observing caribou while on a fishing trip with his grandson might require a licence. And Itorcheak claimed if an Inuk posted a photo of his first catch on Facebook, that act would be illegal without a licence.
“In effect, it was suggested that vast amounts of social media interaction would be shut down or all those who share pictures and information on social media without first obtaining a licence would be made into criminals.” Rouleau said.
Kowmagiak Mitsima claimed section 117 (2) would remove the right of Inuit who are trying to put food on the table, and Alethea Arnaquq-Baril said she’s concerned that implementation of the licensing requirement for filmmaking is virtually impossible and could apply to any photo put on social media.
Witnesses misread the law
But Rouleau said those hypothetical examples are based on an out-of-context misreading of the Wildlife Act.
So after a lengthy journey through existing case law on how statutes should be read and interpreted in proper context, Rouleau concluded the concerns of Arctic Kingdom’s witnesses are “largely misplaced.”
“I conclude therefore that the licensing requirements of s. 117 (2) do not restrict hunting by Inuit, the use of social media for the sharing among family and friends [of] pictures or films taken by Inuit, the holding of feasts or celebrations at which wildlife is celebrated and/or consumed or similar situations,” he said.
Rouleau did, however, find that filmmakers should be licensed, “where the object of the film is the interaction, manipulation or close observation of wildlife.”
And he found the Wildlife Act does not breach the Charter of Rights and dismissed Arctic Kingdom’s claim.
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