T-1628-78
The Hamlet of Baker Lake, Baker Lake Hunters
and Trappers Association, Inuit Tapirisat of
Canada, Matthew Kunungnat, Simon Tookoome,
Harold Qarlitsaq, Paul Uta'naaq, Elizabeth
Alooq, Titus Alluq, Jonah Amitnak, Francis Kalu-
raq, John Killulark, Martha Tickie, Edwin Eve,
Norman Attungala, William Noah, Marion Pat-
tunguyaq, Silas Kenalogak, Gideon Kuuk, Ovid
Kinnowatner, Steven Niego, Matthew Innakatsik,
Alex Iglookyouak, Titus Niego, Debra Niego, Ste-
phen Kakimat, Thomas Anirngniq, Margaret
Amarook, James Ukpaqaq, Jimmy Taipanak,
Michael Amarook, Angela Krashudluaq, Margaret
Narkjanerk, John Narkjanerk, Elizabeth Tunnuq,
Marjorie Tarraq, Hanna Killulark, William K.
Scottie, Edwin Niego, Martha Talerook, Mary
Iksiktaaryuk, Barnabas Oosuaq, Nancy Sevoqa,
Janet Ikuutaq, Marjorie Tuttannuaq, Luke Tung-
naq, James Kingaq, Madge Kingaq, Lucy Tun-
guaq, Hattie Amitnak, Magdalene Ukpatiky, Wil-
liam Ukpatiku, Paul Ookowt, Louis Oklaga, H.
Avatituuq, Luk Arngna'naaq, Mary Kakimat,
Samson Arnauyok, Effie Arnaluak, Thomas Kaki-
mat, Mathew Nanauq, John Nukik, Bill Martee,
Martha Nukik, Silas Puturiraqtuq, David
Mannik, Thomas Iksiraq, Robert Inukpak, Joedee
Joedee, John Auaala, Hugh Tulurialik, Thomas
N. Mannik, Silas Qiynk, Barnabus Peryouar,
Betty Peryouar, Joan Scottie, Olive Innakatsik,
Sarah Amitnak, Alex Amitnak, Vera Auaala,
George Tataniq, Mary Tagoona, James Teriqa-
niak, John Iqsakituq, Silas Kalluk, Hannah Kuuk,
Hugh Ungungai, Celina Uta'naaq, Moses
Nagyugalik, Mary Iqaat, Louis Tapatai, Harold
Etegoyok, Sally Iglookyouak, Marjorie Aqigaaq,
Matthew Aqigaaq, Mona Qiyuaryuk, Winnie
Owingayak, Samson Quinangnaq, Elizabeth Qui-
nangnaq, Hattie Attutuvaa, Paul Attutuvaa,
Marion Anguhalluq, Luk Anguhalluq, Ruth
Tulurialik, Irene Kaluraq, Charlie Toolooktook,
Thomas Tapatai, Elizabeth Tapatai, B. Scottie,
Mary Kutticq, Jacob Marriq, Lucy Kownak, A.
Tagoona, Charles Tarraq, Vivien Joedee (Plain-
tiffs)
v.
The Minister of Indian Affairs and Northern De
velopment, the Engineer designated by the Minis
ter of Indian Affairs and Northern Development
pursuant to section 4 of the Territorial Land Use
Regulations, SOR/77-210, as amended, the
Director, Northern Non-Renewable Resources
Branch of the Department of Indian Affairs and
Northern Development, the Mining Recorder and
the Deputy Mining Recorder for the Arctic and
Hudson Bay Mining District, and the Attorney
General of Canada (Defendants)
Trial Division, Mahoney J.—Toronto, April 18;
Ottawa, April 27, 1978.
Practice — Application for interlocutory injunction to pro
hibit issue of permits in respect of mining exploration in Baker
Lake Study Area — Area withdrawn from disposal under
Territorial Lands Act to permit study of effects of mineral
exploration on wildlife — Local population largely dependent
on wildlife, especially caribou — No agreement reached as to
appropriate course of action after study conducted — With
drawal about to expire and permits directed to be issued —
Whether or not interim injunction should issue until applica
tion for permanent injunction decided at trial.
The plaintiffs seek an interlocutory injunction prohibiting the
issue of prospecting permits, the grant of mining leases and the
recording of claims under the Canada Mining Regulations and
the issue of permits under the Territorial Land Use Regula
tions in respect of mining exploration and related activities
within the Baker Lake Study Area. The area of 70,000 square
kilometers had been withdrawn from disposal under the Terri
torial Lands Act in order to conduct a study on the effects of
mineral exploration activities on wildlife, particularly the cari
bou, that supported much of the local population. Plaintiffs and
defendant Minister and his officials did not reach agreement on
an appropriate course of action. The withdrawal was to expire
on April 24, 1978 and the issue of a number of prospecting
permits was directed immediately upon expiration of the with
drawal. The crucial question is the consequence of the issue of
prospecting and land use permits and the grant of mining leases
on the Inuit's caribou harvest.
Held, the application in part is allowed. There is a serious
question to be tried and, taken in all its dimensions, the injury
to the plaintiffs, if a right to a permanent injunction were
established at trial, could not be adequately compensated by an
award of damages. Defendants per se will suffer no injury if an
interim injunction were to apply and any damages suffered by
the mining companies would be readily measurable, aside from
the question of whether plaintiffs could satisfy it. The balance
of convenience falls plainly on the side of granting an interim
injunction. The evidence, however, does not support the grant
of an injunction as broadly cast as that sought. The permits will
be invalid within a certain distance of the identified major
water crossings and of the identified calving and post-calving
grounds between certain dates. Low flying aircraft and heli
copters over the prescribed areas are prohibited. The permitted
activity ought not to proceed beyond exploration to mining
prior to the trial of the action.
American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396,
considered.
APPLICATION.
COUNSEL:
A. E. Golden and D. Estrin for plaintiffs.
G. W. Ainslie, Q.C., L. P. Chambers and D.
T. Sgayias for defendants.
SOLICITORS:
Golden, Levinson, Toronto, for plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The plaintiffs seek an interlocuto
ry injunction prohibiting the issue of prospecting
permits, the grant of mining leases and the record
ing of claims under the Canada Mining
Regulations' and the issue of permits under the
Territorial Land Use Regulations 2 in respect of
mining exploration and related activities within the
Baker Lake Study Area (hereafter "the area").
The area, comprising some 70,000 square kilome
ters around Baker Lake, North West Territories, is
defined in the schedule to P.C. 1977-1153 which
withdrew the area from disposal under the Terri
torial Lands Act 3 . P.C. 1977-1153, which was
made under authority of section 19 of the Act,
effected the withdrawal until March 1, 1978; the
withdrawal was extended to April 1, 1978 by P.C.
1978-510, to April 14, 1978 by P.C. 1978-944 and
to April 24, 1978 by P.C. 1978-1199. By the
Baker Lake Prospecting Permits Regulations", the
issue of a number of prospecting permits is direct
ed immediately upon expiration of the withdrawal
and exploration crews are assembled at Churchill,
' P.C. 1977-3149, SOR/77-900.
2 P.C. 1977-532, SOR/77-210.
3 R.S.C. 1970, c. T-6.
4 P.C. 1978-945, SOR/78-305.
Manitoba, to act upon them. If they are not able to
move into the area within a matter of days, the
opportunity for exploratory work during the
coming summer will be lost.
The withdrawal of the area was dictated by
concern for the effect of mineral exploration
activities on the wildlife, particularly caribou, of
the area that sustains the hunting and trapping
activities of the Inuit of Baker Lake, where some
130 Inuit hunter families now reside. During the
period of withdrawal a study was carried out and
the various extensions of the withdrawal gave an
opportunity for consultation on its results between
the plaintiffs, on the one hand, and the defendant
Minister and his officials, on the other. 5 They did
not agree on the appropriate course of action; the
statement of claim herein issued April 17, 1978
and this motion was brought on the following day.
Circumstances dictated that viva voce evidence be
received. Four of the individual plaintiffs, Bar-
nabus Peryouar, Matthew Kunungnat, William
Noah and Lucy Tunguaq testified through an
interpreter. Three experts, Robert J. Williamson,
an anthropologist, Dr. Milton M. R. Freeman, an
ecologist, and Dr. Peter J. Usher, a geographer,
were called by the plaintiffs, as were William
Tagoona and Dougald Brown, who are presently
employed by the plaintiff, Inuit Tapirisat of
Canada, at Ottawa. Dr. Maurice J. Ruel, Director
of the Northern Environmental Protection and
Renewable Resources Branch of the Department
of Indian and Northern Affairs testified for the
defendants. In addition, the plaintiffs tendered the
affidavit of William Noah in support of the
application to call viva voce evidence. The defend
ants tendered affidavits of John B. Kemper, John
M. Patterson and E. M. R. Cotterill, all depart
mental officials.
5 The study, entitled "Effects of Exploration and Develop
ment in the Baker Lake Area", dated February 1978, prepared
for the Department of Indian Affairs and Northern Develop
ment by Interdisciplinary Systems of Winnipeg, Manitoba, is in
evidence and will be referred to as "the Baker Lake Study".
The defendants admitted, for the purposes of
this motion, most of the allegations of fact in the
statement of claim. They reserve the right to take
a different position on all facts so admitted at later
stages in the proceedings. The relevant affidavit
and viva voce evidence is not directly contradictory
on any material point and, in the result for pur
poses of this application, the disputed issue of fact
is the nature and extent of the effect of mining and
exploration activities on the caribou, not that they
have, inevitably, some effect. It is, of course, the
activities that will ensue upon the issue of permits
or leases and the recording of claims that concerns
the plaintiffs, not such issue or recording per se
and I have had in mind throughout the interests of
those poised at Churchill, Manitoba, as well as the
general public interest, in weighing the defendants'
position.
This action is based on an assertion of aboriginal
rights. On the facts alleged there is a serious
question to be tried. If there is substance to the
Inuit's right to the continued enjoyment of land
used by them and their ancestors from time
immemorial, it is difficult to see how that sub
stance does not, to some extent, embrace their
traditional activities of hunting and fishing for the
indigenous wildlife. 6 That, in the case of the Baker
Lake Inuit who have no access to sea mammals,
would appear to pertain particularly to caribou.
The Baker Lake Study reports that, in bald eco
nomic terms, the caribou harvest provided over
30% of the 1977 real income of Baker Lake
households and over 42% of the 1977 real income
of heads of households; the comparable figures for
the total fur, game and fish harvest were, respec
tively, over 44% and 54%. There is evidence of
exceptionally strong psychological and physiologi
cal dependence of the Baker Lake Inuit on the
caribou hunt and harvest. Although a, substantial
portion of the plaintiffs' evidence was directed to
this point, it is unnecessary to review it further.
The existence of a special relationship between
Inuit and caribou is undisputed and, indeed, for
purposes of this application, admitted.
6 Vid. Calder v. Attorney-General of British Columbia
[1973] S.C.R. 313, particularly per Judson J., at p. 328.
While the harvest of wildlife other than caribou,
i.e. fish, geese and arctic fox, is raised in the
motion and referred to in the Baker Lake Study, it
was not developed to any extent in evidence or
argument. I propose to say nothing further about it
but to hold that the evidence does not support an
interim order in respect thereof. The crucial ques
tion is the consequence of the issue of prospecting
and land use permits and the grant of mining
leases on the Inuit's caribou harvest.
Caribou have very poor eyesight but keen hear
ing and sense of smell. They are not ordinarily
afraid of man and will approach and even pass
through areas of human activity without ill effect
in the absence of human aggression. They are,
however, very sensitive during the calving period
which, in the area, extends from May 15 to June
30 and the July post-calving period. Caribou exist
in critical balance with a most ungenerous physical
environment. Disturbance of the natural cycle can
lead to serious results. During the calving and
post-calving periods the consequences are prema
ture calving and interruption of the cow-calf rela
tionship, with resultant calf mortality, and delay or
diversion of adult animals in their migration with a
serious possibility of unreadiness for winter. The
Baker Lake Study has identified the calving
grounds within the area and the locales in which
caribou usually forage during the post-calving
period.
In their migrations, the caribou populations are
generally widely dispersed throughout the area.
They do, however, tend to concentrate at a number
of traditional major water crossings. These, too,
have been identified by the Baker Lake Study.
Mining exploration activity involves extensive
use of helicopters and other low flying aircraft,
drilling and blasting, all of which are identified by
the Baker Lake Study as constituting disturbances
of high severity and short-term duration to the
caribou. When one considers the activities likely to
ensue on the grant of a mining lease, all disturb
ances become long-term and permanent roads and
low flying aircraft are assessed as disturbances of
high severity. Camp and facility sites, per se, are
regarded as being of moderate severity; however,
while caribou are not ordinarily afraid of man, the
evidence indicates that the reverse is not always
true, at least of white men who appear sometimes
to fear what concentrations of migrating caribou
may do to them or their facilities and equipment
and to react aggressively.
There are two major caribou populations that
calve in the area: the Kaminuriak and Beverly,
estimated to number about 40,000 and 124,000
animals respectively. A third population has
recently taken to wintering there. The Beverly
population remains stable while the Kaminuriak is
declining at a rate that raises the possibility of its
extinction within a decade. Pre-1977 exploration
activity was permitted athwart two of the Kaminu-
riak's traditional major water crossings. The
defendants suggest wolves and over-hunting are
mainly responsible for the decline but the harvest
figures in evidence do not obviously support the
over-hunting proposition. The weight of evidence
leads to the conclusion that exploration and
mining activity is incompatible with the natural
use by caribou of their habitat at times when and
places where they are particularly sensitive and at
places where they congregate in large numbers.
Until recently the approach of the courts to an
application for an interlocutory injunction has
been to require the plaintiff to show a strong
prima facie case or probability that injunctive
relief will be granted after trial of the action. That
approach was disapproved by the House of Lords
in American Cyanamid Co. v. Ethicon Ltd.'
Your Lordships should in my view take this opportunity of
declaring that there is no such rule. The use of such expressions
as "a probability," "a prima facie case," or "a strong prima
facie case" in the context of the exercise of a discretionary
power to grant an interlocutory injunction leads to confusion as
to the object sought to be achieved by this form of temporary
relief. The court no doubt must be satisfied that the claim is not
7 [1975] A.C. 396, per Lord Diplock at 407 ff.
frivolous or vexatious; in other words, that there is a serious
question to be tried.
So unless the material available to the court at the hearing of
the application for an interlocutory injunction fails to disclose
that the plaintiff has any real prospect of succeeding in his
claim for a permanent injunction at the trial, the court should
go on to consider whether the balance of convenience lies in
favour of granting or refusing the interlocutory relief that is
sought.
As to that, the governing principle is that the court should
first consider whether, , if the plaintiff were to succeed at the
trial in establishing his right to a permanent injunction, he
would be adequately compensated by an award of damages for
the loss he would have sustained as a result of the defendant's
continuing to do what was sought to be enjoined between the
time of the application and the time of the trial. If damages in
the measure recoverable at common law would be adequate
remedy and the defendant would be in a financial position to
pay them, no interlocutory injunction should normally be grant
ed, however strong the plaintiff's claim appeared to be at that
stage. If, on the other hand, damages would not provide an
adequate remedy for the plaintiff in the event of his succeeding
at the trial, the court should then consider whether, on the
contrary hypothesis that the defendant were to succeed at the
trial in establishing his right to do that which was sought to be
enjoined, he would be adequately compensated under the plain
tiffs undertaking as to damages for the loss he would have
sustained by being prevented from doing so between the time of
the application and the time of the trial. If damages in the
measure recoverable under such an undertaking would be an
adequate remedy and the plaintiff would be in a financial
position to pay them, there would be no reason upon this
ground to refuse an interlocutory injunction.
It is where there is doubt as to the adequacy of the respective
remedies in damages available to either party or to both, that
the question of balance of convenience arises. It would be
unwise to attempt even to list all the various matters which may
need to be taken into consideration in deciding where the
balance lies, let alone to suggest the relative weight to be
attached to them. These will vary from case to case.
Where other factors appear to be evenly balanced it is a
counsel of prudence to take such measures as are calculated to
preserve the status quo. If the defendant is enjoined temporari
ly from doing something that he has not done before, the only
effect of the interlocutory injunction in the event of his succeed
ing at the trial is to postpone the date at which he is able to
embark upon a course of action which he has not previously
found it necessary to undertake; whereas to interrupt him in the
conduct of an established enterprise would cause much greater
inconvenience to him since he would have to start again to
establish it in the event of his succeeding at the trial.
This approach commends itself to me as it has to
both the Ontario High Court 8 and Divisional
Court 9 and, it appears also, to the Supreme Court
of Alberta 10 and the Court of Appeal of Nova
Scotia."
There is a serious question to be tried and, taken
in all its dimensions, the injury to the plaintiffs, if
a right to a permanent injunction were established
at the trial, could not be adequately compensated
by an award of damages. I can identify no injury
which the defendants, per se, will suffer if an
interim injunction were to issue. As to the mining
companies, their damages would be readily mea
surable in damages although, in the peculiar cir
cumstances, it may be questioned that an action to
recover those damages from the plaintiffs could
succeed and, if it did, whether the plaintiffs could
satisfy it. There is doubt as to the adequacy of the
respective remedies in damages available to those
who may be injured if an interim injunction issues
and those who may be injured if it does not. I
think the matter ought to be approached as though
the mining companies were parties. I have no
hesitation in finding that the balance of con
venience falls plainly on the side of granting an
interim injunction. The minerals, if there, will
remain; the caribou, presently there, may not.
That said, the evidence does not support the
grant of an injunction as broadly cast as that
sought. Dr. Ruel stated in evidence that it is the
defendant Engineer's intention, as a matter of
policy under section 31 of the Territorial Land
Use Regulations, to impose certain conditions on
permits to be issued for the area. Those conditions,
reflecting the recommendations of the Baker Lake
Study, would render the permits invalid within 4.8
kilometers of the identified major water crossings
and within the identified calving grounds between
May 15 and June 30 and the identified post-calv
ing areas during July in any year. I am satisfied
that such conditions would, by and large, afford
8 Labelle v. Ottawa Real Estate Board (1977) 16 O.R. (2nd)
502.
9 Yule Inc. v. Atlantic Pizza Delight Franchise (1968) Ltd.
(1977) 17 O.R. (2nd) 505.
10 Abouna v. Foothills Provincial General Hospital Board
(1976) 65 D.L.R. (3rd) 337.
" Aspotogan Ltd. v. Lawrence (1976) 14 N.S.R. (2nd) 501.
the necessary protection until the trial of the
action. There are, however, apparent anomalies
and gaps.
The plaintiffs are entitled to protection deriving
its legal effect from something more substantial
than a declaration of policy. This observation is
not a reflection on the good faith and intentions of
the Engineer but policy can change in unforeseen
circumstances. There is no evidence upon which to
dispute or endorse the 4.8 kilometer distance
chosen and I, therefore, accept it. However, if it is
the appropriate distance, I fail to see why it ought
not also apply to the calving grounds and post-
calving areas and that activities be prohibited for
that distance around them, as well as within them,
during the prescribed periods. There are levels of
activity allowed by prospecting permits which do
not require land use permits, yet the Canada
Mining Regulations do not appear to provide for
the imposition of such conditions. They should
apply as well to prospecting permits as to land use
permits. Much of the apprehended injury involves
helicopters and low flying aircraft; such activity
must be prohibited over the prescribed areas.
Finally, I am persuaded that permitted activity
ought not proceed beyond exploration to mining
prior to the trial of the action.
Because of the urgency of the matter an interim
injunction reflecting the foregoing reasons issued
on April 24. I trust that the delay in publication of
the reasons therefor has not proved an incon
venience. Costs will be in the cause.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.