CANADA Why the Nuluujaat Land Guardians v. Baffinland counterclaim is...

Why the Nuluujaat Land Guardians v. Baffinland counterclaim is unique in Canada

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A custom-built iron ore handling system for the Mary River Expansion Project arrives at Milne Bay in 2019, where Baffinland is loading ships with iron ore. (Photo by Thyssenkrupp Industrial Solutions)

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

And this is made possible by environmental legislation, unique to Nunavut and the NWT, that allows people to file environmental damage claims in a territory on behalf of all who use the territory.

“I can’t think of a single case where the defendants would basically turn around and use that as a door opener to present some of their arguments and concerns to the court,” Ben Ralston said.

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

Baffinland first sued Nuluujaat Land Guardians in February 2021 after the guardians placed a temporary blockade on Baffinland’s Mary River Mine about 176 kilometers from Pond Inlet.

The ship is being loaded at the port of Milne Inlet in Baffinland on North Baffin Island. (Baffinland Iron Mines Corp.)

The Baffinland Iron Mines lawsuit, filed in a Nunavut court, accuses the group of trespassing, unlawful interference with economic interests and causing harm. At the beginning of March a Nunavut Judge Issues Injunction in connection with this case, a ban on protesters from blocking the mine’s runway and road.

Just last month, on July 12, the Land Guardians filed their own defense application, as well as their own counterclaim, in which several demands are made against Baffinland, asking the judge to issue an injunction that would prevent Baffinland from emitting noise and polluting surrounding areas with dust. .

“To make a difference and file a lawsuit against Baffinland, I think it’s kind of a powerful move.”

The right to “speak for Nunavut as a whole”

Ralston said the case tests several legal arguments and one law in particular for Nunavut that was rarely used.

The Nunavut Environmental Rights Act states that every resident of the territory has the right to “protect the environment and the public trust from the release of pollutants by bringing an action in the Court of Nunavut against any person who releases any pollutant into the environment.”

“You can think of it as allowing one or more Nunavummiut to speak for Nunavut as a whole and, in a sense, also speak for Nunavut’s environment,” Ralston said.

According to Ralston, this is comparable to the legislation of southern jurisdictions, where not everyone can go to court with their environmental problems.

“I can see pollution happening, I can get upset about it. Of course there will be regulators and I can call and try to report pollution.”

But usually, he says, most ordinary citizens can’t just file any kind of lawsuit in court.

“Traditionally, it has been very difficult to obtain standing to bring environmental law disputes to the courts.”

After injunctions, lawsuits usually go nowhere, Ralston said.

Ralston said lawsuits seeking an injunction against protesters often do not go to trial after the injunction has been issued.

“Usually you see a lawsuit filed, then they issue an injunction, they justify the injunction, and once they get that, and when there’s no more interference or [a] blockade or any kind of dispute that needs to be resolved, usually you will see that this action is not going anywhere,” he said.

In this case, however, the protesters took the opportunity to put forward their own arguments in a broader sense.

Baffinland’s original lawsuit named five defendants, as well as “John Doe and Jane Doe” and “all other persons unknown to the plaintiff”. The defense and counterclaim were filed by three of the named individuals—Tom Nakitarvik, Christopher Akiagok, and Jonathan Pitula—whom their attorney, Anne Crawford, collectively referred to as the “Guardians of the Earth.”

Crawford said the purpose of the countersuit is twofold.

First, it’s about countering Baffinland’s claim that the company has lost millions due to the protests, she said. The land keepers claim that the company received the money as a result of the blockade due to rising prices in the global iron ore market.

But more importantly, the counterclaim concerns environmental protection, especially with respect to shipping-related sound pollution and dust pollution from mining activities.

“Them [the Land Guardians] the real goal is to ensure that the environment is protected in the area,” Crawford said.

The counterclaim document also states that the guardians are seeking compensation for anyone whose hunting rights have been violated.

The case has not yet gone to trial

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

In an email, Baffinland spokesman Peter Ackman called the guardians’ statement “not serious.”

“Many of the statements in it are clearly untrue and represent a clear misunderstanding or deliberate misrepresentation of the operation of Baffinland and mining in general,” he wrote.

“The protesters illegally prevented hundreds of employees from returning to their families and endangered lives,” he said.

Ackman also said protesters are expressing interest in [Qikiqtani Inuit Association] and Crown land “which we believe will also be contested”.

Although Land Guardians’ approach is unusual, this is not the first time the law has been enforced in Nunavut, Crawford said.

She referred to a case in the early 2000s, when a group of citizens went to court over a routine burning of rubbish in a landfill in the city of Iqaluit. They expressed concern about air pollution.

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

“But it’s very rare, and there’s no equivalent in southern law.”

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