Nunavut outfitter loses charter challenge to territory's Wildlife Act

A Nunavut outfitter has lost a legal challenge to the Nunavut Wildlife Act that it brought after being ticketed for running a commercial activity involving wildlife without a licence.

Justice Paul Rouleau dismissed the challenge in a decision released to the media by the Nunavut Court of Justice on June 21.

The government of Nunavut issued four tickets to the outfitterArctic Kingdomin May 2017 for activities it ran in Qikiqtarjuaq, Nunavut, that March.

Arctic Kingdom has been operating in Nunavut for the last 20 years, offering private tours and helping organize expeditions.

The company said it was not guilty and a trial date was set, but before that date arrived, Arctic Kingdom decided to challenge the law itself.

It argued that the section of the act it was charged under violated section seven of the Canadian Charter of Rights and Freedoms. Section seven provides people with "the right to life, liberty and security" except in cases where restrictions are deemed just and fair.

Charter challenge

Because the act allows for jail time for individuals, which would fall under the "liberty" part of section seven, Rouleau said using the charter to challenge the law was allowed.

Arctic Kingdom is a company, not a person, so it faces a fine if found guilty of not less than $500 or more than $1 million.

The company's lawyers said section 117 (2) of the Wildlife Act was invalid, because it was too broad, vague and it went against the Nunavut Act.

The Nunavut Act says the territory's Legislative Assembly can't make laws that restrict Inuit from hunting for food on unoccupied Crown lands.

It would be unusual indeed if ... the drafters had included a provision that operated to impede or restrict hunting rights.- Justice Paul Rouleau

Arctic Kingdom argued that because the section reads: "No person shall without a licence ... provide an organized activity in which wildlife is the object of interaction, manipulation or close observation, including the making of a film or the provision of an expedition." It could be interpreted as contravening the Nunavut Act.

The company's lawyers argued making Inuit obtain a licence would be a restriction.

But Rouleau pointed out elsewhere in the Wildlife Act it says "an Inuk with the proper identification may harvest wildlife without any form of licence."

Not too broad or vague

Witnesses for Arctic Kingdom testified they also feared the act could prevent berry-picking as a family, or a Facebook video of an Inuk's first kill.

Rouleau called these fears "misplaced" because those activities don't have a commercial purpose and the company was ticketed under the part of the act that deals with commercial activities.

While he allowed that if the section was read without any context it could possibly be interpreted as too broad, he said that read within the context of the whole act, it could not be understood that way.

"It would be unusual indeed if, after framing the Wildlife Act as a means of affirming Inuit rights in relation to wildlife, the drafters had included a provision that operated to impede or restrict hunting rights," Rouleau said in the decision.

As for if the law was too vague, Rouleau said the bar for an unconstitutionally vague law is "relatively high."

He used other legal interpretations of environmental laws like the Wildlife Act, to decide.

From past judgments, he said he understood a certain amount of vagueness is helpful because it means lawmakers don't have to think up every possible scenario that would be bad for the environment and put it down in law.

This helps protect the environment, which he said he understood from Arctic Kingdom's witnesses to be a priority for Inuit.

Now that the legal challenge has been resolved, a new trial date for the company will have to be set.