Makivik Corp. Appeal On Federal Court Decision Re: Nunavik Polar Bear Quota

Court File No.
: A-447-19 (lead file)

A-445-19
A-448-19
FEDERAL COURT OF APPEAL
BETWEEN:
MAKIVIK CORPORATION, THE GRAND COUNCIL OF THE CREES, and

NUNAVIK MARINE REGION WILDLIFE BOARD
Appellants/Respondents
by cross-appeal
and
THE ATTORNEY GENERAL OF CANADA
Respondent/Appellant
by cross-appeal
and
NUNAVUT TUNNGAVIK INCORPORATED
Intervener
MEMORANDUM OF FACT AND LAW OF THE APPELLANT
MAKIVIK CORPORATION
Table of Contents
PART I: FACTS ............................................................................................................... 1
A. Polar Bear and Nunavik Inuit............................................................................. 1
B. Nunavik Inuit Rights and NILCA ...................................................................... 1
C. The Minister’s Decision ....................................................................................... 4
i. The Process Begins ............................................................................................ 4
ii. The NMRWB’s Hearings .................................................................................. 5
iii. The Inuit Traditional Knowledge Study ............................................................ 5
iv. The NMRWB’s Deliberations ........................................................................... 7
v. CITES and the 2014 Voluntary Agreement ....................................................... 8
vi. The Boards’ Decisions and the Minister’s Response ........................................ 9
vii. The Minister’s Decision .............................................................................. 11
PART II: ISSUES ........................................................................................................... 12
PART III: SUBMISSIONS ............................................................................................ 13
A. Appellate Standard of Review .......................................................................... 13
B. Standard of Review ............................................................................................ 13
i. No Deference is Accorded the Crown in Judicial Review of Modern Treaty
Implementation ........................................................................................................ 14
ii. Administrative Law Principles Require the Standard of Correctness ............. 17
iii. The Role of Reasons ........................................................................................ 18
C. The Minister’s Failure to Discharge Her Obligations with Respect to
Nunavik Inuit Knowledge of the Environment ....................................................... 20
i. NILCA’s Wildlife Management System and Nunavik Inuit Culture .............. 20
ii. Nunavik Inuit Traditional Knowledge ............................................................. 21
iii. The Minister’s Decision................................................................................... 22
iv. The Minister’s True “Reasons” and Her Failure to Disclose Them to the
Boards ...................................................................................................................... 24
v. The Application Judge’s Conclusion ............................................................... 26
D. The Problematic Adoption of a “Cautious Management Approach” ........... 26
E. The Unauthorized Consideration of the Politics of International Trade ...... 29
i. Strategic Considerations and s. 5.5.4.1 of NILCA .......................................... 29
ii. Undue Focus on Economic Interests................................................................ 30
iii. The “Principles of Conservation” Do Not Justify the Consideration of CITES ..
......................................................................................................................... 32
F. The Unacceptable Reliance on the 2014 Voluntary Agreement .................... 33
G. The Minister Had No Jurisdiction to Vary the Non-Quota Limitations....... 35
H. There are Good Reasons to Issue the Declarations Sought ............................ 37
PART IV: ORDER SOUGHT ....................................................................................... 39
PART V: LIST OF AUTHORITIES ............................................................................ 41
APPENDIX: LIST OF ACRONYMS ........................................................................... 44
PART I: FACTS
A. Polar Bear and Nunavik Inuit
1. Polar bear have been harvested in the eastern Canadian Arctic for some 6,000
1
years. Adamie Delisle Alaku describes them as an “almost mythical being” for older
Inuit 2 and “[s]cholars have argued that no animal holds as significant a place in
Canadian Inuit culture as the polar bear, which has been a central figure in Inuit
cosmology and today retains considerable symbolism.” 3 It is difficult for non-Inuit to
understand this relationship “because it does not fit with the Western belief that humans
sit at the top of the food chain as the smartest and most important animal.” 4
2. Nunavik Inuit harvesting of polar bear has always been regulated by unwritten
principles that find their source in Inuit culture and worldview. 5 It is these rules and
customs that have maintained the health and vibrancy of the polar bear population in
the Quebec offshore, as demonstrated by the fact that, until the Minister made the
decision at issue in these proceedings, and contrary to what the application judge
understood, there had never been any state regulation of Nunavik Inuit harvesting of
polar bear in this region. 6
B. Nunavik Inuit Rights and NILCA
3. In December 2006, Nunavik Inuit (as represented by the Appellant Makivik

Corporation) and Her Majesty in Right of Canada signed the Nunavik Inuit Land
Claims Agreement (“NILCA”). NILCA is a treaty within the meaning of s. 35 of the
Constitution Act, and its terms prevail over any conflicting federal, territorial or local
government laws. 7 The treaty was “approved, given effect and declared valid” on
July 10, 2008, with the adoption by Parliament of the Nunavik Inuit Land Claims
1
Dominique Henri, “Combining Aboriginal Traditional Ecological Knowledge and
Western Science for Polar Bear Research and Management in Canada: A Critical
Review”, prepared for the Wildlife Research Division, Environment Canada (March
31, 2010), p. 2, Exhibit CE-2 to the cross-examination of Rachel Vallender by the
Applicant (“CE RV (MAK)”) [Appeal Book “AB”, vol. 9, tab R-2, p. 2498].
2
Affidavit of Adamie Alaku (“Affidavit AA”), para. 14 [AB, vol. 4, tab E, p. 1033].
3
Henri, supra note 1 [AB, vol. 9, tab R-2, p. 2498].
4
Affidavit AA, para. 12 [AB, vol. 4, tab E, p. 1032].
5
Ibid., paras. 27-31 [AB, vol. 4, tab E, pp. 1034-1035]; Affidavit of Paulusi
Novalinga, paras. 29-33 [AB, vol. 4, tab F, p. 1116].
6
Affidavit AA, paras. 38-42 [AB, vol. 4, tab E, p. 1036].
7
Nunavik Inuit Land Claims Agreement [NILCA], ss. 2.1, 2.11; Nunavik Inuit Land
Claims Agreement Act, SC 2008, c 2 [NILCA Act], ss. 3, 6.
1
Agreement Act. 8
4. NILCA addresses Nunavik Inuit rights in Quebec’s offshore. The treaty creates
an administrative region known as the Nunavik Marine Region (“NMR”), which covers
parts of James Bay, Hudson Bay, and the Hudson Strait, and all of Ungava Bay (it also
includes many islands, all of which are part of Nunavut). 9 NILCA also establishes and
delineates Inuit and government’s respective rights and obligations on issues within the
NMR, including property rights, 10 development impact review and assessment, 11 land
use planning, 12 and resource royalty sharing, 13 and establishes several institutions of
public government to provide for co-management by Inuit and Government of these
issues. 14
5. Article 5 of NILCA establishes the “wildlife management system for the

NMR.” 15 Its foundational principle is the following: unless and until restrictions are
placed on Nunavik Inuit harvesting via the process set out in the treaty, Nunavik Inuit
may harvest as much of a species as they need or desire, 16 and using any method that
they deem appropriate. 17 This system is designed “to recognize and accept the validity
of traditional harvesting activities, and their continued importance to contemporary
Inuit society.” 18 For certain species of particular importance, including polar bear, the
treaty establishes a presumption that the entire harvest is needed by Nunavik Inuit. 19
6. NILCA establishes the Nunavik Marine Region Wildlife Board (“NMRWB”)

as the “main instrument of wildlife management in the NMR and the main regulator of
8
NILCA, supra note 7, s. 5(1).
9
Ibid., Schedules 3-2 & 3-3.
10
Ibid., Art. 12.
11
Ibid., Art. 7.
12
Ibid., Art. 6.
13
Ibid., Art. 15.
14
Including the Nunavik Marine Region Impact Review Board and the Nunavik
Marine Region Planning Commission.
15
NILCA, supra note 7, s. 5.1.3.
16
Ibid., s. 5.3.1.
17
Ibid., s. 5.3.23, with the exception that it does not “conflict with laws of general
application regarding humane killing of wildlife, public safety and firearms control or
result in harmful alteration to the environment.”
18
Kadlak v. Nunavut (Minister of Sustainable Development) [Kadlak], 2001 NUCJ 1,
para. 32.
19
2
access to wildlife [with] the primary responsibility thereto.” 20 The NMRWB is an
example of what is referred to as a “co-management board.” The creation of such
boards is common in modern treaties and one of their key features is that Aboriginal
stakeholders have the right to appoint a certain number (often half) of members. 21
7. “Co-management has two main objectives: resolving the political conflicts

between Aboriginal peoples and state government by restructuring relations and
improving the technical management of natural resources through cooperation.” 22
These objectives are reflected in many provisions of NILCA, including its requirement
that the wildlife management system established by the treaty “promotes public
confidence in wildlife management, particularly amongst Nunavik Inuit.” 23
8. The NMRWB’s duties include the establishment, if it determines there is a

need, of the total allowable take (“TAT”) and non-quota limitations (“NQLs”) that
apply to wildlife harvesting in the NMR, as well as ascertaining the basic needs level
of Nunavik Inuit. 24 However, NILCA dictates that such restrictions “shall restrict or
limit Nunavik Inuit harvesting only to the extent necessary” to fulfill one of three
objectives, including “to effect a conservation purpose in accordance with sections
5.1.4 and 5.1.5.” 25 The proper interpretation of this provision is a key issue in this
proceeding.
9. Pursuant to Article 5, certain decisions of the NMRWB must be sent to the

relevant government Minister for implementation. Under this process, the NMRWB
forwards its initial decision to the relevant Minister but does not make its decision
public (s. 5.5.7). The Minister then has 60 days to accept the decision or “reject the
decision and give the NMRWB reasons in writing for doing so” (s. 5.5.8). Where the
Minister does not respond in 60 days, the Minister is deemed to have accepted the
decision (s. 5.5.8). Where the Minister rejects the decision, “the NMRWB shall
reconsider the decision in light of the written reasons provided by the Minister and
20
Ibid., s. 5.2.3.
21
Such boards are created under NILCA, the Eeyou Marine Region Land Claims
Agreement, the Nunavut Land Claims Agreement (1993), the Yukon Final Agreements
and many other modern treaties. See also Sari Graben, “Living in Perfect Harmony:
Harmonizing Sub-Artic Co-Management through Judicial Review” (2011) 49 Osgoode
Hall LJ 199, paras. 2, 22.
22
Graben, supra note 21, para. 23.
23
NILCA, supra note 7, s. 5.1.3(h).
24
Ibid., s. 5.2.3.
25
Ibid., s. 5.5.3.
3
make a final decision, which it shall forward to the Minister” and which it may make
public (s. 5.5.11). Finally, after receiving the final decision of the Board, the Minister
may accept, reject, or vary that decision, “and shall provide reasons for rejecting or
varying the decision” (s. 5.5.12).
10. Because of the number of acronyms used in this area, the Appellant has
included in an appendix a List of Acronyms to assist the reader.
C. The Minister’s Decision
i. The Process Begins
11. On January 10, 2012, the Minister of Environment for Canada sent a letter to
the Chairman of the NMRWB requesting that the NMRWB “establish a total allowable
take for each subpopulation of polar bear in the Nunavik Marine Region.” 26
12. Nunavik Inuit harvest polar bear from three different subpopulations (also
referred to as management units): Davis Strait, Foxe Basin, and Southern Hudson Bay
(“SHB”). 27 The NMRWB decided to proceed first with the SHB subpopulation,
“[g]iven the unusually large harvest of polar bears” which had taken place in this
management unit in 2011. 28 It is presently repeating the process for the Davis Strait
subpopulation. 29
13. Geographically, the SHB management unit is composed of the south-eastern

quadrant of Hudson Bay, the entirety of James Bay, and significant parts of Ontario
and Quebec. 30 In addition to Nunavik Inuit, polar bear in this area are harvested by
Nunavut Inuit from the village of Sanikiluaq and occasionally by the Cree of Eeyou
Istchee and the coastal Cree communities of Ontario. 31 There are at least four
constitutionally-protected land claims agreements that overlap with the SHB
management unit. 32
26
Affidavit of Gregor Gilbert (“Affidavit GG”), paras. 58–59 [AB, vol. 3, tab D, p.
839]; Exhibit GG-13 [AB, vol. 3, tab D-11, p. 897].
27
See Exhibit GG-17 [AB, vol. 3, tab D-15, p. 946].
28
Boards’ Initial Decision, Exhibit GG-23, p. 5 [AB, vol. 4, tab D-20, p. 994].
29
Cross-examination of Kaitlin Breton-Honeyman by Canada (“CE KBH (CAN)”), pp.
49:9–49:28, 70:24–71:5 [AB, vol. 8, tab P, pp. 2300, 2321-2322].
30
Map of SHB polar bear management unit [AB, vol. 2, tab A-6, p. 363].
31
Affidavit GG, para. 11 [AB, vol. 3, tab D, p. 829].
32
4
ii. The NMRWB’s Hearings
14. The NMRWB hearings could not begin until the Ontario Ministry of Natural
Resources completed its report on the 2011-12 aerial survey of the SHB subpopulation,
which finally became available in November 2013. 33 This survey estimated an
abundance of 951 bears for the subpopulation (though the number was later revised
downwards to 943 bears after peer review). 34
15. Following the release of the 2011-12 aerial survey results, the NMRWB issued
public hearing guidelines to interested parties 35 and notified them that a hearing “to
consider establishment of a total allowable take for [SHB] polar bear within the
Nunavik Marine Region” would take place from February 12-14, 2014, in Inukjuak,
Quebec. 36 This would be the first public hearing that the NMRWB had conducted since
its creation. 37
16. More than a dozen parties filed written submissions with the NMRWB prior to
the hearings, including government departments, Aboriginal organizations,
environmental non-governmental organizations, local Inuit hunting groups and
individual Inuit hunters. 38
17. The public hearings took place as scheduled in Inukjuak. Most of the parties
that had made written submissions were in attendance and made further submissions
orally. 39
iii. The Inuit Traditional Knowledge Study
18. On February 15, 2014, NMRWB members and staff held a post-hearing debrief.
At this debrief, “it was agreed that key information was still needed in order for the
NMRWB to render a decision in the matter.” 40 In particular, there was a feeling that
“there was a great deal of information held by the actual users of the resource to which
33
Boards’ Initial Decision, Exhibit GG-23, p. 5 [AB, vol. 4, tab D-20, p. 994];
Affidavit of Mark O’Connor (“Affidavit MO”), para. 13 [AB, vol. 3, tab C, p. 822].
34
Exhibit GG-16 [AB, vol. 3, tab D-14, p. 910]; MIN-207877 [AB, vol. 2, tab A-4,
p. 347].
35
Exhibit VC-17 [AB, vol. 3, tab B-17, p. 630].
36
Exhibit GG-18 [AB, vol. 3, tab D-15, p. 945].
37
Affidavit of Kaitlin Breton-Honeyman (“Affidavit KBH”), para. 30 [AB, vol. 4,
tab G, p. 1120].
38
See e.g. Exhibits VC-1 to VC-14 [AB, vol. 2, tabs B-1 to B-14, pp. 535-620].
39
40
Ibid. See also Affidavit KBH, paras. 41–42 [AB, vol. 4, tab G, pp. 1121-1122].
5
the Board had not had access,” in part because the public hearing process “proved a
poor method for getting at this information in a fulsome manner.” 41
19. To fill these gaps the NMRWB did two things: first, it issued requests for
further information to several of the parties who had attended the hearings; second, it
decided to conduct an Inuit traditional knowledge study “which would explore polar
bear biology and harvesting from the perspective of Inuit traditional knowledge.” 42
20. The traditional knowledge study was led by Kaitlin Breton-Honeyman, then the
wildlife biologist with the NMRWB. The data-gathering took place in the spring of
2014, 43 through “semi-directive interviews of elders and experienced hunters,
conducted individually or in small groups of less than five hunters each,” 44 which
explored participants’ knowledge of various issues with respect to polar bear, including
their feeding habits, body condition, and abundance. 45 During these interviews,
participants were asked to mark on georeferenced mapping materials the locations in
the SHB management unit where they had observed phenomena related to polar bears,
such as denning sites, feeding sites, and harvest sites. 46
21. The methodology used to conduct this study “drew heavily from the best
practices in the peer-reviewed literature” 47 and was fully consistent with the
methodological approaches and best practices endorsed by the in-house traditional
knowledge expert of Environment and Climate Change Canada (“ECCC”). 48
22. Ms. Breton-Honeyman provided the members of the NMRWB with a first
briefing on the results of the traditional knowledge study at the Board’s meeting in June
2014. 49 At that time, it was decided that, in light of the fact that the production of the
41
Affidavit MO, para. 17 [AB, vol. 3, tab C, p. 823]. See also CE KBH (CAN), pp.
45:13–46:21, 68:3–69:4 [AB, vol. 8, tab P, pp. 2296-2297, 2319-2320].
42
Affidavit KBH, para. 44 [AB, vol. 4, tab G, p. 1122]. See also Affidavit MO, para.
18 [AB, vol. 3, tab C, p. 823]; Exhibit GG-23, p. 17 [AB, vol. 4, tab D-20, p. 1006].
43
Affidavit KBH, para. 47 [AB, vol. 4, tab G, p. 1122].
44
Affidavit MO, para. 22 [AB, vol. 3, tab C, pp. 823-824].
45
Ibid., para. 23 [AB, vol. 3, tab C, p. 824].
46
CE KBH (CAN), pp. 34:28–35:7, 48:2–48:18 [AB, vol. 8, tab P, pp. 2285-2286,
2299].
47
Affidavit KBH, para. 46 [AB, vol. 4, tab G, p. 1122]. See also Affidavit MO, para.
29 [AB, vol. 3, tab C, p. 824].
48
CE KBH (CAN), pp. 66:10–66:18, 72:2–72:17 [AB, vol. 8, tab P, pp. 2317, 2323];
see also Exhibit GG-5 [AB, vol. 3, tab D-3, pp. 855-865].
49
CE KBH (CAN), p. 18:23–18:28 [AB, vol. 8, tab P, p. 2269].
6
final written study would take a significant amount of time and that it had already been
more than two years since the Minister’s request for a decision, Ms. Breton-Honeyman
would produce a verified summary of the results of her study for use by the NMRWB
in its deliberations on the total allowable take. 50 At the same time, the NMRWB
engaged an outside expert to help it prepare the final version of the traditional
knowledge study, which would include verified maps and figures and verified quotes
from the study participants. 51
23. During the summer of 2014, Ms. Breton-Honeyman prepared a summary table
of the results of the study and verified its contents with the study participants. 52 This
table was then provided to the parties that had participated in the public hearings for
their comment. 53
iv. The NMRWB’s Deliberations
24. At a meeting of the NMRWB in October 2014, Board members and any
technical advisors present received the summary table and a full presentation on the
“methodology, context, and results” of the traditional knowledge study. 54 It was at this
time that the members agreed on a preliminary decision. 55
25. Under NILCA, Makivik and Government (a term which in NILCA includes
Canada and Nunavut) “have the right to have technical advisors attend all meetings [of
the NMRWB] as non-voting observers.” 56 This includes the right to attend the in
camera sessions of the NMRWB where “all of the discussions and deliberations” on
Board decisions take place. 57 At such meetings, Board members will discuss the issue
amongst themselves before “turn[ing] it over to the technical observers for any issues
50
Affidavit MO, para. 22 [AB, vol. 3, tab C, pp. 823-824]; CE KBH (CAN),
pp. 23:19–24:2, 32:5–32:11, 33:17 [AB, vol. 8, tab P, pp. 2274, 2283-2284].
51
Affidavit MO, para. 21 [AB, vol. 3, tab C, p. 823]; CE KBH (CAN), pp. 26:5–26:21,
29:13–29:27, 34:23–35:13, 54:10–54:23, 57:14–57:28 [AB, vol. 8, tab P, pp. 2277,
2280, 2285-2286, 2305, 2308].
52
Affidavit KBH, paras. 48–49 [AB, vol. 4, tab G, p. 1122]; CE KBH (CAN) pp.18:9–
18:19, 25:8–26:3. [AB, vol. 8, tab P, pp. 2269, 2276-2277].
53
Affidavit KBH, para. 51[AB, vol. 4, tab G, p. 1123]; CE KBH (CAN), pp.69:4–
69:19 [AB, vol. 8, tab P, p. 2320].
54
Affidavit MO, para. 28 [AB, vol. 3, tab C, p. 824].
55
56
57
Cross-examination of Kaitlin Breton-Honeyman by Makivik (“CE KBH (MAK)”),
pp. 4:14–5:10 [AB, vol. 8, tab Q, pp. 2343-2344]; Affidavit KBH, para. 71 [AB, vol.
4, tab G, p. 1125].
7
or concerns that they have with anything the Board has presented.” 58
26. At neither the June nor October meeting, nor at any subsequent meeting where
the traditional knowledge study was discussed, did the technical advisor from ECCC
raise any concerns with regard to its methodology or results. 59
27. Around this time, the NMRWB reached out to the Eeyou Marine Region
Wildlife Board (“EMRWB”) to involve it with the decision-making process for those
parts of the NMR that overlap with the Eeyou Marine Region (as established by the
Eeyou Marine Region Land Claims Agreement (“EMRLCA”)). 60
v. CITES and the 2014 Voluntary Agreement
28. In late April and early May of 2014, after the NMRWB’s public hearings and
while it was conducting the interviews for its traditional knowledge study, a meeting
of the Animals Committee of the Convention on International Trade in Endangered
Species of Wild Flora and Fauna 61 (“CITES”) took place in Veracruz, Mexico. During
this meeting, the Animals Committee decided that polar bear were a species of priority
concern for a significant trade review. 62 During such a review, the Animals Committee
assesses whether a State is respecting CITES when it authorizes the export of animal
parts for animals listed in Appendix II of that treaty. 63
29. Immediately following this decision, the then-Minister of the Environment,

Leona Aglukkaq, sent two letters to Makivik, Nunavut Tunngavik Incorporated
(“NTI”), the Grand Council of the Crees, and the NMRWB, EMRWB and Nunavut
Wildlife Management Board (“NWMB”). 64 In these letters she referred to the
“international scrutiny” of Canada’s polar bear management system, and informed the
58
CE KBH (MAK), pp. 6:22–7:1 [AB, vol. 8, tab Q, pp. 2345-2346].
59
Affidavit KBH, para. 72 [AB, vol. 4, tab G, p. 1125]; CE KBH (CAN), pp. 43:2–
43:7, 53:1–54:23 [AB, vol. 8, tab P, pp. 2294, 2304-2305]; Affidavit MO, para. 33
[AB, vol. 3, tab C, p. 825];
60
NILCA, supra note 7, Art. 28; Eeyou Marine Region Land Claims Agreement,
Schedule 30-1 [EMRLCA]; Affidavit MO, para. 15 [AB, vol. 3, tab C, p. 823]; Boards’
Initial Decision, Exhibit GG-23, p. 17 [AB, vol. 4, tab D-20, p. 1006].
61
UN Convention on international trade in endangered species of wild fauna and flora,
March 3, 1973 (in force July 1, 1975), 993 UNTS 243 (“CITES”).
62
Annex IV (Analysis), p. 6 [AB, vol. 2, tab A-9, p. 376]; CE RV (MAK), pp. 25:14–
27:3 [AB, vol. 9, tab R, pp. 2378-2380].
63
Annex IV (Analysis), p. 6 [AB, vol. 2, tab A-9, p. 376]; Exhibit RV-14, pp. 9, 14
[AB, vol. 5, tab K-14, pp. 1456, 1461].
64
Exhibits AA-4 and AA-5 [AB, vol. 4, tabs E-3 & E-4, pp. 1057-1064].
8
recipients that “[i]f a voluntary agreement [on polar bear harvesting from SHB] cannot
be reached by the end of September 2014” she would “have no choice but to halt export
[of polar bear parts] from [SHB].” 65
30. Pursuant to this letter, representatives from Makivik, NTI, the Cree Nation
Government, local hunters’ groups, and Ontario, Nunavut, and ECCC met in Ottawa
from September 25 to 27, 2014, to follow up on the Minister’s letters and to try and
enter into a voluntary agreement on polar bear harvesting from SHB. 66
31. At this meeting, the parties present entered into a voluntary agreement to,
among other things, limit their total harvest to 45 bears during the 2014-15 and 2015-
16 hunting seasons, to be divided as follows: 22 bears for Nunavik Inuit, 20 bears for
Nunavut Inuit, and 3 in total for Ontario and Quebec Cree. 67 The agreement would
expire in November 2016, a few weeks after the closing of the CITES Conference of
the Parties (“CoP”) scheduled to take place from September 24 to October 4, 2016. 68
32. At the time the voluntary agreement was concluded, Nunavik Inuit were clear:
they were entering into the agreement on the express condition that it not play a role in
the NILCA-mandated wildlife management process. 69 ECCC representatives
understood this condition and agreed to it. 70 This is why the text of the agreement
provided that it was “without prejudice ... to the decision-making processes defined in
the applicable land claims agreements.” 71
vi. The Boards’ Decisions and the Minister’s Response
33. On July 29, 2015, the NMRWB and EMRWB (together “the Boards”)
submitted their decision regarding the TAT and NQLs that would apply to polar bear
65
Exhibit AA-4, p. 2 [AB, vol. 4, tab E-3, p. 1059]; Exhibit AA-5, p. 2 [AB, vol. 4,
tab E-4, p. 1063].
66
67
2014 voluntary agreement [AB, vol. 2, tab A-23, p. 446]; Affidavit AA, para. 65
[AB, vol. 4, tab E, pp. 1041 & 1042].
68
CE RV (MAK), pp. 30:9–31:13 [AB, vol. 9, tab R, pp. 2383-2384]; Exhibit RV-1,
final page [AB, vol. 5, tab K-2, p. 1187].
69
Affidavit AA, para. 66-68 [AB, vol. 4, tab E, p. 1042]; Affidavit GG, para. 83 [AB,
vol. 3, tab D, p. 844].
70
Cross-examination of Rachel Vallender by the Grand Council of the Crees (“CE RV
(GCC)”), pp. 30:9-31:28 [AB, vol. 9, tab S, pp. 2615-2616].
71
2014 voluntary agreement, para. 7 [AB, vol. 2, tab A-23, p. 447]; Affidavit AA,
paras. 66–67 [AB, vol. 4, tab E, pp. 1041-1042]; Affidavit GG, para. 83 [AB, vol. 3,
tab D, p. 844].
9
harvesting in that part of the NMR that lies in the SHB management unit to Canada’s
Minister of the Environment and to Nunavut’s Minister of Environment. 72
34. This decision was 22 pages in length and discussed, among other things, the
legal context of the decision, the social context of polar bear harvesting by Nunavik
Inuit, and the evidence the Boards had considered regarding the health of the SHB
subpopulation. 73 It set a TAT of 28 bears to be harvested according to a flexible
management framework and established nine NQLs that would apply to that harvest. 74
35. On September 23, 2015, Mr. Michael Martin, Deputy Minister of ECCC, sent
the Boards a letter in which he advised that “on behalf of the Minister of the
Environment, I am rejecting this decision pursuant to paragraph 5.5.3(a) of [NILCA]
and paragraph 15.2.1(a) of the [EMRLCA]. Specifically, I am rejecting the first
element of your decision, which is the annual total allowable take of 28 bears.” 75
36. Mr. Martin went on to state that the Department believed that the TAT of 28
“is likely not sustainable” when “combined with removals by Nunavut Inuit and
Ontario Cree” and that “a maximum sustainable harvest of 4.5 percent should not be
exceeded.” He also directed the Boards to impose a sex-selective harvest of two males
to one female and to take into account the terms of the 2014 voluntary agreement,
because it is a “domestic interjurisdictional agreement.” 76
37. The Deputy Minister’s letter made no mention of the NQLs that had been
established by the Boards and did not direct the Boards to reconsider them, nor did it
raise any concerns about the quality or soundness of the traditional knowledge upon
which the NMRWB had relied.
38. On December 21, 2015, the Boards sent their final decision to the two
Ministers. 77 In their final decision, the Boards:
a. maintained their original decision of a TAT of 28 bears. With respect to
72
The decision is dated July 23 but appears to have been sent on July 29, as per the
Boards’ letter of December 21, 2015 [AB, vol. 2, tab A-13, p. 386].
73
Boards’ Initial Decision, Exhibit GG-23 [AB, vol. 4, tab D-20, p. 988-1011].
74
Ibid.
75
Letter dated September 23, 2015 [AB, vol. 2, tab A-22, pp. 444-445].
76
Ibid.
77
Letter of December 21, 2015 [AB, vol. 2, tab A-13, p. 386].
10
the Deputy Minister’s reasons for rejecting this TAT, the Boards stated that:
[T]he Deputy Minister’s basis for rejection of the NMRWB and

EMRWB’s decisions reiterates, almost word for word, the
Minister’s initial position and clearly disregards the extensive body
of Inuit traditional knowledge that was before the NMRWB in
reaching the initial decisions. The Governments of Nunavut and
Canada have failed to take into account Traditional Knowledge in
their responses to these decisions and appear to have based their
response solely on the scientific population estimate as well as on a
general removal rate that is not specific to the circumstances of this
particular management unit. 78
b. refused to take into account the 2014-2016 voluntary agreement as

requested by the Deputy Minister because it is not a “domestic
interjurisdictional agreement” within the meaning of NILCA and because “it
clearly stipulates that [it] is without prejudice to the decision-making process
defined in the applicable Land Claims Agreements”; 79
c. refused to adopt a sex-selective harvest of two males to every one

female because “a sex-selective harvest occurs in Nunavik in the absence of
legal mechanisms” and because “Nunavik Inuit have been adamant that
implementing a management system which directs hunters to preferentially
target males … goes against Inuit tradition and values … [and] upsets the
natural balance of wildlife populations”; 80
d. maintained the NQLs established initially “because neither government

offered concerns” regarding them. 81
vii. The Minister’s Decision
39. On October 19, 2016, the Minister sent the Boards a letter advising them that,
pursuant to paragraph 5.5.3(a) of NILCA, she was varying their final decision, and
enclosed two documents: a document outlining the decision as varied and an analysis
document which the Minister described as outlining “[m]y reasons for varying the
[TAT] and [NQLs]” (the letter and the enclosed documents will be referred to
78
Boards’ Final Decision, p. 29 [AB, vol. 2, tab A-14, p. 416].
79
Ibid., pp. 29-30 [AB, vol. 2, tab A-14, pp. 416-417].
80
Ibid., p. 25 [AB, vol. 2, tab A-14, p. 412].
81
Ibid., p. 26 [AB, vol. 2, tab A-14, p. 413].
11
collectively as “the decision”). 82
40. Despite the almost one-year delay in responding to the Boards’ final decision,
the Minister’s position remained essentially unchanged. The Minister:
a. varied the Boards’ decision in order to reduce the TAT to 23 bears, on

the grounds that “a maximum harvest of close to 4.5% should be established,
to ensure the population remains stable and the harvest sustainable”;
b. noted some discrepancies between science and traditional knowledge

regarding the health of the subpopulation and historical harvest levels but did
not explain how the Minister had resolved them;
c. stated that “assumptions cannot be made about the subpopulation’s

ability to continue to support historical harvest levels” and that “[c]onsequently,
caution must be exercised at this time”;
d. accepted the flexible harvest system established by the Boards;
e. imposed a sex-selective harvest of two males to every one female;
f. varied or rejected four of the NQLs decided by the Boards.
41. On November 18, 2016, the Applicant filed its application for judicial review.
PART II: ISSUES
42. The issues in this appeal are:
a. What are the principles applicable to the interpretation of modern

treaties and how do they determine this Court’s approach to the review of the
Minister’s decision? This includes the standard of appellate review and the
standard of review applicable to the Minister’s decision.
b. Did the Minister give full regard to the integration of Nunavik Inuit
knowledge of wildlife and wildlife habitat with knowledge gained through
scientific research when making her decision?
c. Was the Minister’s approach to the Boards’ traditional knowledge study
82
Letter dated October 19, 2016, Minister’s Varied Decision, and Analysis of Decision
[AB, vol. 2, tabs A-1 to A-3, pp. 339-346].
12
in accordance with NILCA and the honour of the Crown?
d. Does NILCA authorize the Minister’s reliance on a “cautious

management approach” as a justification for limiting Nunavik Inuit harvesting?
e. Does NILCA authorize the Minister to consider the politics of

international trade and/or issues related to CITES when making her decision?
f. Was the Minister’s reliance on the 2014 voluntary agreement authorized

by NILCA and in accordance with the honour of the Crown?
g. Was the Minister’s decision to vary the NQLs established by the Boards
authorized by NILCA? If yes, was it nonetheless unlawful?
43. In the interests of focusing this proceeding on the most important issues, the
Appellant is not pursuing its appeal of the application judge’s dismissal of its motion
contesting the privilege asserted by the Respondent over certain portions of documents.
PART III: SUBMISSIONS
A. Appellate Standard of Review
44. On this appeal, this Court must answer the following question: “Did the
application judge choose the correct standard of review and apply it properly?” 83 To
answer this question, this Court must “step into the shoes” of the Federal Court. 84 The
focus of this Court “should be on the administrative decision itself, and not on potential
errors by the reviewing court.” 85
B. Standard of Review
45. The application judge determined that the standard of review had not been
established by prior jurisprudence and proceeded to conduct the contextual analysis
laid out in Pushpanathan v Canada (Minister of Citizenship and Immigration) to
determine the appropriate standard of review. 86 He concluded that the standard was
correctness with respect to “the Minister’s adherence to the decision-making process
83
Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36,
para. 47.
84
Chen v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 170, para.
23.
85
Ibid.
86
Makivik Corporation v. Canada (Environment and Climate Change), 2019 FC 1297
[Judgment First Instance], paras. 90-109 [AB, vol. 1, tab II, pp. 70-76].
13
of NILCA” and reasonableness on all other matters. 87
46. In coming to these conclusions, the application judge ignored the approach to
judicial review of decisions made under modern treaties that was outlined by the
Supreme Court in First Nation of Nacho Nyak Dun v. Yukon [Nacho Nyak Dun]. 88 In
addition, at the time the decision was rendered, the application judge did not have the
benefit of the Supreme Court’s reasons in Canada (Minister of Citizenship and
Immigration) v. Vavilov [Vavilov]. 89 Since this decision now forms the starting point
for any analysis of the standard of review, 90 this Court must consider the issue afresh.
i. No Deference is Accorded the Crown in Judicial Review of Modern

Treaty Implementation
47. In Nacho Nyak Dun, the Supreme Court directly addresses the approach courts
are to adopt when resolving disputes regarding the implementation of modern treaties.
The approach adopted by the Court demonstrates that the government is not afforded
any deference in its implementation decisions and that the terms of the treaties must be
strictly enforced.
48. In Nacho Nyak Dun, the Supreme Court reviewed Yukon’s decision to modify
a land use plan that had been submitted to it by a planning commission established
under a modern treaty. The land use planning process involved an exchange between
the planning commission and government that closely resembles the exchanges
between the NRMWB and government that are at issue in this proceeding.
49. In considering the case, the first question the Court asks itself is: “What is the
appropriate role of the Court in these proceedings?” 91 Despite emphasizing that the
case is appropriately considered as a judicial review, 92 the Supreme Court does not
show any deference to Yukon’s decision or its interpretation of the treaty. The Court
does not ask itself: “Was Yukon’s decision to modify the Commission’s Final
Recommended Plan reasonable?”; it instead asked itself: “Was Yukon’s approval of its
plan authorized by [the treaty]?” 93 It then goes on to analyze this question not with
87
Ibid, paras. 106-107 [AB, vol. 1, tab II, pp. 75-76].
88
First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58 [Nacho Nyak Dun].
89
Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65
[Vavilov].
90
Ibid., para. 143.
91
Nacho Nyak Dun, supra note 88, para. 31.
92
Ibid., para 32.
93
Ibid., para. 31.
14
reference to administrative law principles of deference but instead with reference to
the principles of modern treaty interpretation. A similar approach to modern treaty
implementation cases has been adopted by the Quebec Court of Appeal. 94
50. In analyzing the legality of Yukon’s decision, the Court applied the following
principles:
a. “Because modern treaties are ‘meticulously negotiated by well-

resourced parties’, courts must ‘pay close attention to [their] terms’”; 95
b. “Paying close attention to the terms of a modern treaty means

interpreting the provision at issue in light of the treaty text as a whole and the
treaty’s objectives”; 96
c. “Compared to their historic counterparts, modern treaties are detailed

documents and deference to their text is warranted”; 97
d. Modern treaties advance reconciliation “by creating the legal basis to

foster a positive long-term relationship”; 98 and,
e. “[R]econciliation is found in the respectful fulfillment of a modern

treaty’s terms.” 99
51. The Court also reiterated that the honour of the Crown is at stake in
implementing modern treaties. 100 This principle “imposes a heavy obligation” on the
Crown “to endeavour to ensure its [treaty] obligations are fulfilled.” 101 Grammond J.
writes in his academic work that the honour of the Crown “allows courts to inquire into
94
Corporation Makivik c. Québec (Procureur générale), 2014 QCCA 1455.
95
Nacho Nyak Dun, supra note 88, para 36, citing Quebec (Attorney General) v. Moses,
2010 SCC 17 [Moses], para. 7.
96
Nacho Nyak Dun, para 37, citing: Beckman v. Little Salmon/Carmacks First Nation,
2010 SCC 53 [Little Salmon], para. 10; Moses, para. 7; Interpretation Act, RSC 1985,
c I-21, s. 12 (emphasis in original).
97
Nacho Nyak Dun, para 36, citing: Little Salmon, para. 12; Julie Jai, “The
Interpretation of Modern Treaties and the Honour of the Crown: Why Modern
Treaties Deserve Judicial Deference” (2010) 26 N.J.C.L. 25, p. 41 (emphasis added).
98
Nacho Nyak Dun, para 38, citing Little Salmon, para. 10.
99
Nacho Nyak Dun, para 38.
100
Ibid., para. 52.
101
Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14
[Manitoba Metis], paras. 68, 79.
15
the morality of government conduct, above and beyond strict technical legal rules.” 102
In Nacho Nyak Dun, the fact that Yukon’s behaviour “was not becoming of the honour
of the Crown” 103 was another reason that the decision was quashed.
52. The Court’s refusal to show any deference to Yukon’s decision is justified on
at least four grounds: first, the basic reason for defence is not present. The adoption of
a deferential approach by the courts is justified by respect for legislative intent, 104 but
a modern treaty, “does not express ‘the will of Parliament’; rather, it expresses the will
of the parties to the Agreement.” 105 This is why the Supreme Court has directed courts
to be deferential to the terms of the treaty rather than to one party’s interpretation of it.
53. Second, and following from the above point, being deferential to one party’s
interpretation of and approach to the treaty would undermine its very purpose. “Modern
treaties are intended to renew the relationship between Indigenous peoples and the
Crown to one of equal partnership” and to “set out in precise terms a co-operative
governance relationship.” 106 If this court defers to the Crown’s approach to NILCA,
rather than to the text of the agreement itself, there will be no equal partnership – the
Crown will always be in a position of dominance.
54. Third, it makes sense to have a sui generis approach to enforcing sui generis
rights. The fact that modern treaties are sui generis in nature 107 means that they are
regulated by “an autonomous body of law which bridges Aboriginal and non-
Aboriginal legal cultures” and that courts must “retreat from [the] mechanical
implementation” of common law concepts because “not all principles underlying
common law precepts are applicable to analyses of Aboriginal rights.” 108
55. Fourth, there are no public interest considerations that justify deference.
Because “[t]he Crown represents the public interest in the course of treaty
negotiations,” the resulting treaty is “already the product of a reconciliation of
102
Sébastien Grammond, Terms of Coexistence: Indigenous Peoples and Canadian
Law (Toronto: Carswell, 2013), p. 135.
103
104
Vavilov, supra note 89, paras. 23-33.
105
Eastmain Band v. Canada (Federal Administrator), [1993] 1 FCR 501, para. 26.
106
Nacho Nyak Dun, para. 33 (emphasis added).
107
Ibid.
108
John Borrows and Leonard Rotman, “The Sui Generis Nature of Aboriginal
Rights: Does it Make a Difference?” (1997) 36:1 Alberta Law Review 9, pp. 37-38.
16
Aboriginal rights and the broader public interest.” 109 Canada cannot therefore resort to
broad allegations of public policy to support its decision – if its decision is to be
justified, it must be justified according to terms of the treaty alone.
56. Moreover, in the case of NILCA specifically, the legitimacy of a non-

deferential approach is further supported by the fact that, at the time the treaty was
signed, the negotiators would have understood that the standard of review for such
Ministerial decisions was correctness. 110
57. Thus, in Nacho Nyak Dun, when the Supreme Court states that the Courts must
demonstrate “judicial forbearance” and “judicial restraint” 111 when called upon to
adjudicate disputes related to modern treaties, these comments had nothing to do with
the standard of review or adopting a deferential approach to the Crown’s behaviour –
they were instead meant to highlight that the Yukon Court of Appeal had erred when
it ordered the parties back to an earlier stage of the treaty process when the applicants
had not requested such relief. 112
58. In short, while judicial review may be the procedural vehicle for challenging
governmental action taken pursuant to a modern treaty, the substantive exercise to be
carried out by the Court is more akin to the enforcement of a contract. As a result, the
question this court must ask itself is not: “Was the Minister’s decision reasonable?” but
rather: “Was the Minister authorized under NILCA to proceed as she did?” or “Was
the Minister’s approach in accordance with the honour of the Crown?”
ii. Administrative Law Principles Require the Standard of Correctness
59. If this Court decides to set aside the approach for reviewing decisions made
pursuant to modern treaties established by the Supreme Court in Nacho Nyak Dun and
instead apply principles of administrative law, then the applicable standard of review
is correctness.
60. In Vavilov, the Supreme Court affirmed that the standard of correctness applies
to questions regarding “the scope of Aboriginal and treaty rights under s. 35 of the
109
Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham:
LexisNexis, 2014), p. 629 (emphasis in original), cited with approval by Justice
Deschamps in her dissenting opinion in Moses, supra note 95, para. 116.
110
Kadlak, supra note 18, paras. 14-21
111
Nacho Nyak Dun, paras. 33, 34, 60.
112
Ibid., paras. 58-61.
17
Constitution Act, 1982” because such matters “require a final and determinate answer
from the courts.” 113 Any question in this proceeding involving the interpretation of
NILCA must therefore be assessed on the standard of correctness; almost all of the
issues in this proceeding are of this type.
61. If this Court determines that there are some matters to which reasonableness
must apply, it must nonetheless evaluate the Minister’s decisions against a very high
standard (and show little deference for those decisions). Such an approach is dictated
by “the constraints imposed by the legal and factual context” 114 of the Minister’s
decision, in particular:
a. The principles of modern treaty interpretation discussed above, which

emphasize deference to the terms of the treaty and the advancement of
reconciliation.
b. The fact that NILCA expressly recognizes Nunavik Inuit expertise

regarding their environment 115 and the importance of integrating both Nunavik
Inuit and their knowledge into wildlife management decisions. 116 To show
deference to the Minister on the grounds that she is an expert in Nunavik Inuit
knowledge of and approaches to environment would, in addition to being
deeply insulting to Inuit, violate NILCA. It is the Minister’s lack of expertise
on these matters which required the creation of the NMRWB and its installation
as the “main instrument of wildlife management in the NMR.” 117
c. The importance of the decision to Nunavik Inuit in terms of culture and

food security, and the fact that one of the objectives of the treaty is to
“promote[…] public confidence in wildlife management, particularly amongst
Nunavik Inuit.” 118
iii. The Role of Reasons
62. In Vavilov, the Supreme Court reaffirmed the importance of the reasons
provided by administrative decision makers, stating that “where reasons are required,
113
Vavilov, supra note 89, para. 55.
114
115
NILCA, supra note 7, s. 5.1.2(c).
116
Ibid., ss. 5.1.2(i), 5.1.3(f).
117
Ibid., s. 5.2.3.
118
Ibid., s. 5.1.3(h) (emphasis added).
18
they are the primary mechanism by which administrative decision makers show that
their decisions are reasonable — both to the affected parties and to the reviewing
courts.” 119 Moreover, the Court emphasized that in addition to being justifiable, a
decision must also be justified, with the result that “an otherwise reasonable outcome
also cannot stand if it was reached on an improper basis.” 120
63. In the indigenous context generally, “written reasons foster reconciliation by

showing affected Indigenous peoples that their rights were considered and addressed.
Reasons are ‘a sign of respect [which] displays the requisite comity and courtesy
becoming the Crown as Sovereign toward a prior occupying nation’.” 121
64. In the present case, the Minister was specifically obliged by the treaty, in other
words, as a matter of constitutional law, to provide reasons for her decision. 122 The
purpose of these reasons was to continue the “conversation” between the Boards and
the Minister that is required by the treaty, 123 and to demonstrate, to both the Boards
and to Nunavik Inuit at large, “that their arguments [and knowledge and culture] have
been considered and … that the decision was made in a fair and lawful manner.” 124
65. While a reviewing court should read an administrative body’s reasons in light
of the record, 125 this does not mean that this body can “provide an affected party formal
reasons that fail to justify its decision, but nevertheless expect that its decision would
be upheld on the basis of internal records that were not available to that party.” 126
66. In the present case, the essential points of the Minister’s reasoning were only
revealed to Makivik once it had filed its judicial review and received the record relied
on by the Minister. These “occult reasons” cannot be used before this Court to justify
the decision.
119
120
Ibid., para. 86 (emphasis added).
121
Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, para. 41
[citations omitted].
122
123
Nacho Nyak Dun, supra note 88, para 55.
124
Vavilov, para. 79. See also Kainaiwa/Blood Tribe v Alberta (Energy), 2017 ABQB
107, paras. 117 & 118, cited with approval by the Supreme Court in Clyde River
(Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40.
125
Vavilov, paras. 91-98.
126
Ibid., para. 95.
19
C. The Minister’s Failure to Discharge Her Obligations with Respect to
Nunavik Inuit Knowledge of the Environment
i. NILCA’s Wildlife Management System and Nunavik Inuit Culture
67. Inuit have a distinct worldview from that held by Eurocentric society:
The difference between Eurocentric and Indigenous thought lies in the

perceived relationship between people and the natural world … In contrast
to the Eurocentric view, Indigenous peoples do not view humanity as
separate from the natural world. 127
Put another way, “Aboriginal ethics do not share the European tendency to pose
‘nature’ in distinct opposition to humans. There is no gulf between these two
components of the world.” 128
68. This worldview is expressed in Nunavik Inuit’s understanding of their

relationship to polar bears and their approach to “wildlife management,” 129 and in this
they are not alone. It has been recognized that “Aboriginal ecological management
systems are distinct and largely independent of the resource regulation systems derived
from the modern Western state.” 130 Unfortunately, “[t]he tendency of state regulation
systems has been to ignore or even destroy local Aboriginal management systems.” 131
69. The goal of co-management is to create an institutional arrangement that allows

both systems and worldviews to find expression, so that “federal and provincial
governments and Aboriginal governments can work together on conservation.” 132
However, this is only possible if co-management structures include “some form of clear
recognition that [they] themselves derive from the systems of knowledge and social
rights of the groups agreeing to co-manage with the state.” 133
127
Marie Battiste and James [Sa’ke’j] Youngblood Henderson, Protecting Indigenous
Knowledge and Heritage: A Global Challenge, (Saskatoon: Purich Publishing Ltd.,
2000), p. 24.
128
Randy Kapashesit and Murray Klippenstein, “Aboriginal Group Rights and
Environmental Protection” (1991) 36 McGill Law Journal 926, p. 929.
129
Affidavit AA, paras. 6-20 [AB, vol. 4, tab E, pp. 1031-1033].
130
Kapashesit, supra note 128, p. 935.
131
Ibid.
132
Ibid, p. 936.
133
Ibid, p. 936, citing H.A. Feit, “Self-Management and State-Management: Forms of
Knowing and Managing Northern Wildlife” in Freeman & Carbyn, eds, Traditional
Knowledge and Renewable Resource Management in Northern Regions (Edmonton:
Boreal Institute for Northern Studies, University of Alberta, 1988).
20
70. This is the function of s. 5.1.4 of NILCA: by requiring that the principles of
conservation used for decision-making under the treaty “be interpreted and applied
giving full regard to the principles and objectives outlined in sections 5.1.2 and 5.1.3,”
the treaty provides a mechanism for integrating Nunavik Inuit approaches to wildlife
management with Western approaches to create a system that respects both approaches.
The goal of this integration is “more holistic ecosystem management.” 134
71. Importantly, this integration also means that the results produced by NILCA’s
wildlife management system may not be fully acceptable when analyzed according to
the criteria of only one component system. This, however, is the choice the parties
made: to create something new, that would produce different, and arguably better,
answers than either system would produce alone. 135 This new system is the type of
“structural reform that will effect lasting change,” that is necessary to remove the
systemic discrimination to which Inuit are still subjected by the Canadian state. 136
ii. Nunavik Inuit Traditional Knowledge
72. One of the most important features of this integration is the requirement that a
decision made under NILCA’s wildlife management system “recognizes the value of
Nunavik Inuit approaches to wildlife management and Nunavik Inuit knowledge of
wildlife and wildlife habitat and integrates those approaches with knowledge gained
through scientific research.” 137
73. The Nunavik Inuit knowledge referred to in the above-cited provision is often
referred to as “traditional knowledge.” Traditional knowledge can be defined as:
A cumulative body of knowledge, practice, and belief, evolving by adaptive

processes and handed down through generations by cultural transmission, about
the relationship of living beings (including humans) with one another and with
their environment. 138
74. Traditional knowledge systems:
[A]re dynamic, constantly changing and expanding, depending on the

experiences of the individual or collective group. Acquired through extensive
134
Graben, supra note 21, para. 24.
135
Henri, supra note 1, p. 54 [AB, vol. 9, tab R-2, p. 2550]; Graben, para 24.
136
Public Inquiry Commission on relations between Indigenous Peoples and certain
public services in Québec (Viens Commission), Final Report, (2019), pp. 203, 216.
137
NILCA, supra note 7, s. 5.1.3 (f) (emphasis added).
138
Henri, p. 7 [AB, vol. 9, tab R-2, p. 2503].
21
observation of an area or natural resource, this local environmental knowledge
is commonly (but not exclusively) found among aboriginal or indigenous
people who have inhabited specific regions of the world over extended periods
of time. 139
Such systems are “an attribute of societies with historical continuity in resource use on
a particular land, such as the Cree and Inuit groups inhabiting Canada today.” 140
75. With respect to polar bears in particular, ECCC’s leading expert on traditional
knowledge has recognized that “critical ontological differences relevant to polar bear
management thus exist between Inuit and scientific worldviews,” 141 and that “neither
western science nor traditional ecological knowledge is sufficient in isolation for
understanding the complexities of polar bear ecology, especially in the context of
global climate change.” 142
iii. The Minister’s Decision
76. In her decision, the Minister stated that “Nunavik Inuit Traditional Knowledge
(TK) … and some findings of scientific data align, but there are variances with respect
to trends in subpopulation size and body condition of the bears in Southern Hudson
Bay.” The Minister outlined these differences as well as the Boards’ finding that
Nunavik Inuit have traditionally harvested between 28 and 45 bears from this
subpopulation, but decided, in light of “increases in the ice-free season due to climate
change, and the scientific information which indicates declines in body condition
during ice-free periods,” that “caution must be exercised at this time” and that the TAT
decided by the Boards must be varied from 28 to 23. 143
77. To integrate means to “to form, coordinate, or blend into a functioning or

unified whole.” 144 To implement the terms of the treaty, the Boards and the Minister
were required, when considering what limits to place on Nunavik Inuit harvesting, to
meld the science and traditional knowledge regarding the health of the SHB polar bear
population to arrive at a result that was a new whole, one that demonstrated respect for
both approaches. This obligation is of a completely different kind than an obligation to
139
Ibid., p. 6 [AB, vol. 9, tab R-2, p. 2502].
140
Ibid., p. 7 [AB, vol. 9, tab R-2, p. 2503].
141
Henri, supra note 1, p. 43 [AB, vol. 9, tab R-2, p. 2539].
142
Ibid., p. iii (emphasis added) [AB, vol. 9, tab R-2, p. 2492].
143
Analysis of Decision [AB, vol. 2, tab A-3, pp. 343-344].
144
“Integrate”, Merriam-Webster Dictionary (online: https://www.merriam-
webster.com/dictionary/integrate).
22
simply “consider” the traditional knowledge – it required that the Boards and the
Minister find a way to put the two systems together, regardless of whether their findings
agreed on all points.
78. The NMRWB was perfectly situated to perform this work because it is
composed of both Inuit and non-Inuit with Western science backgrounds. 145 In
accordance with NILCA, the Boards, in their final decision, engaged in an explicit
effort to integrate knowledge from the two cultures. 146
79. In contrast, there is nothing in the Minister’s reasons for varying the TAT that
demonstrates that such integration took place. Instead of explaining how she has
unified the two sets of findings, she adopts a “cautious approach,” 147 one that amounts
to imposing a TAT that is justified on science alone. 148 It was inappropriate for the
Minister to undo the work of integration that the Boards had done solely on the grounds
that it did not coincide with the Western science approach that ECCC prefers.
80. Similarly, the Minister’s reasons for imposing a sex-selective harvest show no
integration of the cultural factors and knowledge that had informed the Boards’
decision to not impose one. The Boards had noted that Nunavik Inuit were “adamantly”
against this restriction because it “upsets the natural balance of wildlife populations.” 149
The Minister simply states that this condition will be imposed because it is required by
the scientific models that the Minister relies upon and because of the scientific data
showing declines in body condition. 150
81. “The principles of justification and transparency require that an administrative

decision maker’s reasons meaningfully account for the central issues and concerns
raised by the parties.” 151 The necessary integration of Nunavik Inuit knowledge and
scientific knowledge with respect to SHB polar bears was the defining issue of this
process. The Boards had highlighted in their initial decision the importance of the
145
Profiles of Board members provided to Minister [AB, vol. 2, tab A-33, pp. 519-
522].
146
Boards’ Final Decision, pp. 21-25, 28-29 [AB, vol. 2, tab A-14, pp. 408-412, 415-
416].
147
Analysis of Decision, p. 2 [AB, vol. 2, tab A-3, p. 344].
148
MIN-206164 – Memorandum to Minister, September 21, 2016, p. 6 [AB, vol. 2, tab
A-5, p. 358]; Annex IV (Analysis), p. 6 [AB, vol. 2, tab A-9, p. 376].
149
Boards’ final decision, p. 25 [AB, vol. 2, tab A-14, p. 412].
150
151
23
NMRWB’s traditional knowledge for their conclusions, and pointed out that this study
had not been available to previous decision-makers. 152 They had also explicitly called
on the Minister, in both their final decision 153 and in a face-to-face meeting that
occurred while the Minister was deliberating, 154 to explain how she proposed to
integrate the two sets of knowledge.
82. In these circumstances, the Minister’s failure to explain the role Nunavik Inuit
knowledge played in her decision and to explain why she had unravelled the Boards’
efforts to integrate both Nunavik Inuit and Western science into the harvesting
restrictions is fatal: without an explanation regarding this central issue, her decision is
neither justifiable nor transparent to the Boards and to Nunavik Inuit. It is this failure,
more than any other, which led the Appellant to file the present proceedings. 155
iv. The Minister’s True “Reasons” and Her Failure to Disclose Them to
the Boards
83. The Appellant’s suspicions regarding the Minister’s failure to appropriately

integrate Nunavik Inuit knowledge in her decision were confirmed when it received
the record that was before the Minister. The record reveals that ECCC officials decided
they could not rely on (or had to give very little weight to) the traditional knowledge
that was before the Boards because they believed that the studies in question were
“provided without needed context, and this makes it difficult for the Government … to
consider this information alongside recent scientific results.” 156
84. All of the evidence before this Court indicates that the methodology applied by
the NMRWB in conducting its study was fully consistent with the best practices in the
field. 157 But this is not what the Appellant asks this Court to decide – indeed, it is not
the role of this Court to make that determination. The Appellant is asking this Court to
recognize that the Minister had both a legal and a moral obligation to inform the Boards
of her concerns and give them a chance to respond prior to making her final decision.
85. The Minister’s legal obligation resides in her duty to provide the Boards with
152
153
154
June 2016 e-mail exchange [AB, vol. 2, tab A-34, pp. 484-485].
155
Affidavit AA, paras. 76-77 [AB, vol. 4, tab E, p. 1044].
156
Annex IV (Analysis), p. 6 [AB, vol. 2, tab A-9, p. 376].
157
Affidavit KBH, para 46 [AB, vol. 4, tab G, p. 1122]; Affidavit MO, para 29 [AB,
vol. 3, tab C, p. 824]; CE KBH (CAN), pp. 66:10–66:18, 72:2–72:17 [AB, vol. 8, tab
P, pp. 2317 & 2323].
24
her reasons for refusing their initial decision. The purpose of these reasons is to allow
the Boards to respond to the Minister’s concerns, as indicated by the fact that, following
their receipt, the Boards are required to “reconsider the decision in light of the reasons
provided by the Minister and make a final decision.” 158 If the Boards do not know why
the Minister actually refused their initial decision they can do nothing, in the final
decision, to remedy or respond to a supposed defect. The fact that the NMRWB is the
“main regulator of access to wildlife” in the NMR must mean, at the very least, that it
be given the opportunity to consider and respond to all the issues and factors that the
Minister plans to rely on in her decision.
86. The Minister’s moral obligation derives from the honour of the Crown. 159
ECCC officials had a right to sit in on the Boards’ deliberations, and in that capacity
received several presentations on the methodology and results of the Boards’ traditional
knowledge study. 160 Yet at no time did these officials ever ask for clarifications with
respect to the study or raise any concerns regarding it. 161 In the context of co-
management, honourable conduct requires the Crown to express its concerns at the
earliest opportunity, particularly where those concerns go to traditional knowledge, a
central pillar of the entire co-management system and an issue which the Boards are
much better placed to address than government officials.
87. The Boards’ traditional knowledge study was the key piece of information that
they relied on to justify the TAT of 28 bears. 162 For the Minister to set it aside or
diminish its value on the basis of conjectural (and, as it turns out, unfounded)
methodological concerns without first giving the Boards a chance to respond was a
legal and ethical breach that had the effect of sabotaging the conversation that was
meant to be taking place between the Minister and the expert Boards. 163
158
NILCA, supra note 7, s. 5.5.11 (emphasis added).
159
Grammond, Terms of Coexistence, supra note 102, p. 135.
160
NILCA, supra note 7, s. 5.2.2; Affidavit MO, para 28 [AB, vol. 3, tab C, p. 824];
Affidavit KBH, para. 71 [AB, vol. 4, tab G, p. 1125]; CE KBH (CAN), pp. 53:1–54:23
[AB, vol. 8, tab P, pp. 2304-2305]; CE KBH (MAK), pp. 4:14–5:18, 6:22–7:1 [AB,
vol. 8, tab Q, pp. 2343-2346].
161
Affidavit KBH, para 72 [AB, vol. 4, tab G, p. 1125]; Affidavit MO, para. 33 [AB,
vol. 3, tab C, p. 825]; CE KBH (CAN), p. 43:2–43:7, [AB, vol. 8, tab P, p. 2294].
162
Boards’ Initial Decision, Exhibit GG-23 [AB, vol. 4, tab D-20, pp. 988-1011].
163
25
v. The Application Judge’s Conclusion
88. The application judge appears to have concluded that the Minister’s decision
demonstrated a reasonable “consideration” of traditional knowledge because the TAT
it imposed resulted in a total harvest of 4.7% of the population when science
recommended a harvest of 4.5% or lower. 164 In other words, the fact that the TAT was
higher than ECCC’s current scientific methodology would have recommended
demonstrates that traditional knowledge was accounted for, even if how this was done
is not directly apparent from the Minister’s reasons.
89. This conclusion flies in the face of the Minister’s own reasons, which explicitly
state that “[t]he TAT of 23 establishes a combined harvest of polar bears … of close to
4.5% which aligns with the widely accepted sustainable removal level.” 165 It also flies
in the face of the evidence in the record, in which ECCC officials specifically advise
the Minister that “[a]ccording to scientific modeling, [a harvest by Nunavik Inuit of 22
bears] is likely to maintain a stable polar bear population” 166 and that “[t]he take of
4.7% …established by the 2014 voluntary agreement was considered reasonable to
defend scientifically for the [SHB] management unit.” 167
90. The evidence in support of the application judge’s conclusion comes almost
exclusively from the revised and supplemental reasons for the Minister’s decision that
are provided in paragraphs 57 to 89 of the affidavit of Ms. Vallender. In these
paragraphs, Ms. Vallender engages in a detailed reassessment of the material before
the Minister, attempting through this exercise to respond to arguments raised by the
Appellant and to modify the Minister’s reasons. These portions of her affidavit
“smack[] of an after-the-fact attempt to bootstrap [the Minister’s] decision,” 168 and the
application judge was wrong to have relied on them.
D. The Problematic Adoption of a “Cautious Management Approach”
91. The Minister noted in her reasons the differences between Nunavik Inuit
knowledge and scientific knowledge with respect to the current status of the SHB
management unit. Instead of integrating these two knowledge sets, however, she
decided that “a cautious management approach is warranted for the [SHB] management
164
Judgment First Instance, paras. 189-190 [AB, vol. 1, tab II, p. 108].
165
166
Memorandum to Minister, supra note 148, p. 6 [AB, vol. 2, tab A-5, p. 358].
167
168
Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299, para. 41.
26
unit” because of “increases in the ice-free season due to climate change, and the
scientific information which indicates declines in body condition during ice-free
periods.” 169 This pattern is repeated in various documents in the record: whenever the
reader expects to see an effort at integrating the two approaches, ECCC staff instead
state that the “conflicting conclusions [of traditional knowledge and science] are a
source of uncertainty that supports a cautious management approach.” 170
92. NILCA does not say that Nunavik Inuit knowledge is only to be integrated into
wildlife decisions when it agrees with the science. In fact, it is when the two systems
disagree that it becomes even more important to integrate the two together, to arrive at
a result that combines both approaches. While a “cautious management approach” may
not, in other circumstances, be unreasonable, it cannot be used as cover for the Minister
to avoid doing the work of integration that the treaty requires.
93. The errors of the application judge and the Minister with respect to the adoption
of the “cautious management approach” are based on two fundamental misconceptions.
The first is that the purpose of Article 5 is to make conservation decisions. 171 This is
wrong: the primary purpose of Article 5 “is to protect Inuit harvesting rights from
unwarranted state interference through the incorporation of these rights into section 35
of the Constitution Act.” 172 This is why restrictions on Nunavik Inuit harvesting are the
exception, and “shall restrict or limit Nunavik Inuit harvesting only to the extent
necessary” to effect a conservation purpose (as those conservation purposes are defined
by NILCA). 173
94. These words enshrine a “principle of minimal interference” with respect to Inuit
rights. 174 They mean that, where the necessity of a particular measure is uncertain, the
benefit of the doubt must be given to the more extensive exercise of Inuit rights. 175 The
“conservative management approach” adopted here by the Minister turns this around
by using the (supposed) uncertainty as a justification for increasing limitations on Inuit
169
170
Annex IV (Analysis), p. 3 [AB, vol. 2, tab A-9, p. 373]; See also, Memorandum to
Minister, p. 5 [AB, vol. 2, tab A-5, p. 357].
171
Judgment First Instance, paras. 4, 96, 100 [AB, vol. 1, tab II, pp. 174-175, 200-
201].
172
Kadlak, supra note 18, para. 20.
173
NILCA, supra note 7, s. 5.5.3 (emphasis added).
174
Kadlak, supra note 18, para. 30.
175
Pierre-André Côté, Interprétation des lois, 4ième éd. (Montréal : Les Éditions
Thémis, 2009), paras. 1681-1682.
27
rights. The Minister’s approach would make sense if Inuit harvesting were a Crown
grant that is entirely subject to the Crown’s discretion (as is the case for the hunting
privileges of most Canadians), 176 but it is not: it is an Inuit right that pre-existed Crown
sovereignty and is now enshrined in a modern treaty, with the result that limits can only
be placed on it where justified in accordance with the terms of that treaty.
95. The second fundamental misconception at the basis of this “cautious

management approach” is the idea that there was further and better information that
would be imminently available. 177 This is wrong. The traditional knowledge that had
been collected by the Boards and presented in the summary table was the only
traditional knowledge that would be available for the foreseeable future. While the
results of the study would be reworked into a final report that included maps and
contextual information, the results presented in that report would be exactly those
presented in the summary table. 178 ECCC staff would have understood this if they had
contacted the Boards for further information about the summary table. Instead, they
chose to believe that a new study would soon be available, and that this fact justified
their decision to avoid integrating the two knowledge sets and to adopt a cautious
management approach in the interim.
96. The application judge goes even further: he not only finds that the supposedly
“interim information” justified the adoption of a cautious management approach but
that, moreover, “in the wildlife management context, the information will constantly
be changing.” 179 If that is true, then the effect of the application judge’s decision is to
significantly weaken all modern treaties that deal with wildlife management: it means
that whenever a Minister believes that new information might be available soon (which,
according to the judge, is almost always) they will be excused from an exacting
examination of their implementation of the treaty. This is wrong: modern treaties must
be fully and fairly implemented each and every time a Minister makes a decision under
them, regardless of whether new information may soon be available.
176
Fish and Wildlife Conservation Act, 1997, SO 1997, c 41, s. 6; Act respecting the
conservation and development of wildlife, CQLR, c C-61.1, s. 56.
177
Judgment First Instance, paras. 198-204 [AB, vol. 1, tab II, pp. 111-113].
178
CE KBH (CAN), pp. 21:15-22:9, 40:24-43:2, 56:6-57:4 [AB, vol. 8, tab P, pp.
2272-2273, 2291-2294, 2307-2308].
179
Judgment First Instance, para. 202 [AB, vol. 1, tab II, p. 112].
28
E. The Unauthorized Consideration of the Politics of International Trade
97. The first sentence of the Minister’s reasons states that her decision “takes into
account … that it is important to avoid actions which could jeopardize trade in polar
bear parts.” 180 Unfortunately, the reasons themselves do not relate what role this
consideration played in the result. The material contained in the record, however,
reveals that ECCC officials wished to keep the overall harvest from the SHB region as
close to 4.5% of the population estimate as possible, to avoid “a negative reaction from
other Parties to [CITES].” 181
98. Neither the Minister’s reasons nor the record identifies what provision of
NILCA the Minister relied on to take account of this factor, which, as discussed below,
has nothing to do with Canada’s legal obligations. The Boards, for their part, had
decided that there existed no provision of NILCA that would authorize them to consider
a hypothetical trade ban in deciding what limits should be placed on Inuit harvesting. 182
99. The Minister’s consideration of the politics of international trade was incorrect
and unreasonable because:
a. such consideration was not authorized by s. 5.5.4.1 of NILCA;
b. it placed undue weight on Inuit’s economic interest in avoiding a trade

ban as compared to their cultural interest in maintaining an appropriate level of
hunt.
i. Strategic Considerations and s. 5.5.4.1 of NILCA
100. CITES is an international treaty whose purpose is to ensure that species are not
overharvested because of incentives created by international trade. 183 To achieve this
end, CITES requires States Parties to implement a permitting system regulating the
export and import of those species listed in its three appendices. 184
101. The obligations created by CITES begin and end at the border. It does not
180
181
Annex IV (Analysis), p. 6 [AB, vol. 2, tab A-9, p. 376]; Memorandum to Minister,
supra note 148, p. 7 [AB, vol. 2, tab A-5, p. 359].
182
183
CITES, supra note 61, preamble.
184
See ibid., arts. VIII(1), II–VI. The CITES permitting system is enacted into domestic
law via the Wild Animal and Plant Protection and Regulation of International and
Interprovincial Trade Act, SC 1992, c 52.
29
contain any terms that:
a. define or explain the term “conservation” or describe how it is to be

measured and carried out;
b. require a Party to take measures to limit the harvesting of species within

its borders; or,
c. require a Party to take any measures to ensure that a species is not

moved from one Appendix to another.
102. Section 5.5.4.1 of NILCA requires the NMRWB and the Minister, when
making a decision regarding the harvesting of a species, to “take account of … the
terms of international agreements pertaining to such wildlife.” The “terms” of CITES
specifically state that they do not affect the provisions of domestic legislation. 185
103. No matter what decision the Minister made, there was no risk of violating the
terms of CITES. In fact, even if polar bear were moved to Appendix I of CITES,
effectively banning all trade in polar bear parts, Canada would not be in violation of
the treaty by the fact of Inuit’s continued harvesting of polar bear. ECCC fully
understands this: its efforts to prevent another move to uplist polar bear at the 2016
CITES Conference of the Parties included a promotional campaign highlighting to
other State Parties that a trade ban would not affect Inuit harvesting rates, because the
two concepts are legally independent from one another. 186
104. ECCC officials were not concerned with the terms of CITES when they advised
the Minister that the TAT she authorized must result in a harvest level that was very
close to 4.5% of the population; they were concerned with strategically situating
Canada to respond to any move to uplist polar bear. This type of consideration is not
authorized by s. 5.5.4.1 of NILCA.
ii. Undue Focus on Economic Interests
105. It is uncontested that “[c]ommercial gain is not the aim of [Inuit] harvesting of
polar bears.” 187 Indeed, “[i]f the international trade of polar bear hides was banned
185
CITES, supra note 61, art. XIV(2).
186
Exhibit RV-2, row P/C 2 [AB, vol. 5, tab K-2, p. 1190]; CE RV (MAK), pp. 41:10–
42:20 [AB, vol. 9, tab R, pp. 2394-2395].
187
Affidavit AA, para. 26 [AB, vol. 4, tab E, p. 1034]; see also Boards’ Final Decision,
p.17 [AB, vol. 2, tab A-14, p. 404].
30
tomorrow, and if the market for these hides ceased to exist, Inuit would continue
harvesting polar bears, just as [they] did long before this market ever existed.” 188
106. The Minister was fully apprised of this reality, as evidenced by the fact that:
a. Nunavut Inuit continued to harvest polar bears from the Baffin Bay
subpopulation even after export from this subpopulation was prohibited; 189
b. the Boards noted in their final decision that “[i]t was evident from the
testimony of Nunavik Inuit that the value of a polar bear goes far beyond the
economic value of the hides”; 190 and
c. Canada’s witness acknowledged “that the harvest does not occur so that
they can [enter] trade. It’s like half the bears harvest[ed] [enter] trade. So that
is not the motivation for the harvest.” 191
107. Despite all this, ECCC officials and the Minister decided that it was in the best
interests of Nunavik Inuit to impose a TAT that they believed would be acceptable to
international observers and thereby reduce the risk of a trade ban. 192 In their insistence
that they were reducing the TAT because this was “what was best” for Inuit – without
asking the Inuit whether they agreed – ECCC staff and the Minister “replicate[d]
historical patterns of paternalism and oppression … [and] perpetuate[d] the notion that
Aboriginal peoples are childlike or wards of the state in need of protection from others
and even from themselves.” 193 And all this at a time when, by ECCC’s own admission,
“the immediate threat of a complete trade ban … has disappeared.” 194
108. That there was another, more respectful, way to approach this is demonstrated
by Canada’s treatment of the Nunavut Inuit: they were allowed to maintain their treaty-
188
189
190
191
CE RV (MAK), pp. 42:15–42:21 [AB, vol. 9, tab R, p. 2395].
192
Memorandum to Minister, supra note 148, p. 6 [AB, vol. 2, tab A-5, p. 358]; Annex
IV (Analysis), p. 6 [AB, vol. 2, tab A-9, p. 376].
193
André Goldenberg, “‘Surely Uncontroversial’: The Problem and Politics of
Environmental Conservation as a Justification for the Infringement of Aboriginal
Rights in Canada” (2002) 1:2 Journal of Law & Equity 278, p. 309.
194
Briefing note to Minister (MIN-199482) (June 15, 2016) [AB, vol. 2, tab A-30, p.
462] (emphasis added).
31
protected harvest of 25 bears, 195 while agreeing to voluntarily limit their harvest to 20
bears for a limited period of time in order to respond to international scrutiny. This
approach acknowledged the ability of Nunavut Inuit to decide for themselves the
appropriate balance between the cultural importance of the hunt and its economic
benefits. This respectful attitude was not extended to Nunavik Inuit.
iii. The “Principles of Conservation” Do Not Justify the Consideration of

CITES
109. While the application judge discusses both the possible role of s. 5.5.4.1 and
the Minister’s weighing of economic matters, he does not appear to base his conclusion
on either of these issues; rather, he decides that the Minister’s consideration of CITES
was reasonable “because it informed her understanding of NILCA’s goals of proper
wildlife management and principles of conservation.” 196
110. The application judge here is referring to an argument urged on him by Canada,
to the effect that, because “both NILCA and CITES intend to respect the principles of
conservation,” political considerations related to CITES can simply be imported into
the treaty process. 197
111. This approach does significant violence to NILCA’s wildlife management

system and undoes the advancement in reconciliation that the treaty was meant to
effect, for the following reasons.
112. As discussed above, Nunavik Inuit have a distinct worldview from that held by
Western society. This difference in worldview is not mere cant: it leads to very practical
differences regarding what is meant by the term “conservation.” Because of their
different starting points, “Aboriginal resource users and government officials may have
very different views on what conservation means and very different ideas about when
the need for conservation measures actually arises in practice.” 198 Indeed, there is often
“a significant lack of consensus” between Indigenous peoples and non-Indigenous state
powers regarding the meaning and scope of conservation. 199
195
CE RV (MAK), pp. 37:21-37:28 [AB, vol. 9, tab R, p. 2390].
196
197
Ibid, para. 134; See also Memorandum of Fact and Law of Attorney General of
Canada, paras. 113, 142-145 [AB, vol. 1, tab I, p. 311, 316].
198
Goldenberg, supra note 193, pp. 299-300 (emphasis added).
199
Ibid., p. 281 (footnote 11).
32
113. Inuit have had direct and painful experience with this difference in worldview
as it relates to the seal hunt, which continues to be vilified by “conservationist” groups
who have neither respect for nor knowledge of the Inuit way of life and their
relationship with their environment. 200
114. This is the reason that Nunavik Inuit ensured, via s. 5.1.4 of NILCA, that the
“principles of conservation” to be used in making decisions on their treaty rights would
reflect their culture, their worldviews, and their specific knowledge. The “principles
of conservation” in NILCA are meant to include both Western and Nunavik Inuit
worldviews, to form a bridge between these two cultures so that they can find
consensus solutions to environmental issues that respect both the pre-existing
management practices of Nunavik Inuit and the scientific approach of the state. 201
115. ECCC’s approach to this file does not honour this vision. In fact, ECCC
officials advised the Minister that she was bound to ensure her decision under NILCA
would be consistent with what they believed other State Parties to CITES would like
to see, 202 despite the fact that these actors have little or no respect for or knowledge of
Nunavik Inuit knowledge, culture, and treaty rights.
116. The application judge’s approach to this issue suggests that any document or
principle that has some link to a concept of “conservation” (however defined) can be
imported into the treaty. Such an approach undoes any substantive gains for Inuit
achieved by Article 5 of NILCA and must not be condoned by this Court.
F. The Unacceptable Reliance on the 2014 Voluntary Agreement
117. One of the reasons provided by ECCC to justify the Minister’s rejection of the
Boards’ initial decision was that the Boards had failed to consider the 2014 voluntary
agreement. According to ECCC, the Boards were obliged to consider this agreement
in their decision because it is a “domestic interjurisdictional agreement” within the
meaning of s. 5.5.4.1 of NILCA. 203
118. In their final decision, the Boards gave three reasons for refusing to consider
the 2014 voluntary agreement: first, the Boards had had no role in the negotiation of
200
Affidavit AA, para. 36 [AB, vol. 4, tab E, pp. 1035-1036].
201
Kapashesit, supra note 128, p. 935-936.
202
Annex IV (Analysis), p. 6 [AB, vol. 2, tab A-9, p. 376]; Memorandum to Minister,
supra note 148, p. 7 [AB, vol. 2, tab A-5, p. 359].
203
Letter dated September 23, 2015 [AB, vol. 2, tab A-22, pp. 444 & 445].
33
the agreement whereas such a role is required by s. 5.8.5 of the treaty; second, article
seven of the voluntary agreement specifically provided that it was not to affect the
treaty-mandated wildlife management process; and third, the purpose of the voluntary
agreement was to address international pressure and NILCA “do[es] not permit [the
Boards] to restrict Inuit and Cree harvesting based on this criteria.” 204
119. The 2014 voluntary agreement is not mentioned in the Minister’s final decision;
it seems to have disappeared from consideration. Once the record was filed, however,
it became clear that the Minister varied the TAT to 23 “to reflect the consensus
agreement currently in place”; 205 in other words, to adopt the voluntary agreement into
law. The material provided to the Minister reiterated that “[i]t is the Department’s
position that the voluntary agreement is a “domestic interjurisdictional agreement” that
should be considered by the Boards, as required under s. 5.5.4.1 of the NILCA …” 206
This material outlined the Boards’ reasons for refusing to consider the agreement but
did not offer any explanation of why ECCC had decided to set these reasons aside. 207
120. The application judge found that the 2014 voluntary agreement was not a
“domestic interjurisdictional agreement” within the meaning of NILCA. 208 However,
he nonetheless found it was reasonable for the Minister to rely on it, without explaining
what provision of NILCA would permit such reliance: for the application judge, it was
the mere fact that the voluntary agreement existed that allowed the Minister to consider
it. 209
121. The application judge was correct that the 2014 voluntary agreement is not a
domestic interjurisdictional agreement within the meaning of NILCA. Having so
concluded, it was “not open to [him] to disregard the flawed basis for [the Minister’s]
decision and substitute [his] own justification for the outcome.” 210 This “amount[s] to
adopting an approach to reasonableness review focused solely on the outcome of a
204
Boards’ Final Decision, pp. 29-30 [AB, vol. 2, tab A-14, pp. 416 & 417].
205
Memorandum to Minister, supra note 148, p. 6 [AB, vol. 2, tab A-5, p. 358]. See
also statements at p. 3 (“A total allowable take of 28 bears would also put the voluntary
agreement at risk”) and p. 7 (where it is noted that the risk of accepting the Boards’
decision is that “the groups in Nunavut and Ontario might dissociate themselves from
the voluntary limits they agreed to in 2014.”) [AB, vol. 2, tab A-5, pp. 355 & 359].
206
207
Ibid., pp. 3-4 [AB, vol. 2, tab A-9, p. 373 & 374].
208
209
Ibid., paras. 157-158 [AB, vol. 1, tab II, p. 96].
210
Vavilov, supra note 89, para. 96, citing Delta Air Lines Inc. v. Lukács, 2018 SCC 2.
34
decision, to the exclusion of the rationale for that decision,” 211 an approach specifically
forbidden by the Supreme Court.
122. More importantly, it was not honourable for the Minister to consider the
voluntary agreement. Nunavik Inuit consented to the voluntary agreement on the
express condition, which was understood by ECCC representatives, that the agreement
would not play any role in the treaty-mandated wildlife management process. It was
not until after ECCC had received the Boards’ initial decision that it decided to
characterize the voluntary agreement as a “domestic interjurisdictional agreement” and
require the Boards to consider it. 212
123. Agreeing to not consider an issue when implementing the treaty and then
turning around and doing exactly that is the very definition of sharp dealing. 213 In
contrast, reconciliation means “maintaining respectful relationships” and “repairing
damaged trust.” 214 The Minister’s consideration of the voluntary agreement failed to
uphold the honour of the Crown and was neither correct nor reasonable.
G. The Minister Had No Jurisdiction to Vary the Non-Quota Limitations
124. The Boards established nine NQLs in their initial decision. In its letter rejecting
this decision, ECCC gave no indication that it disagreed with these NQLs, in fact
stating that “I am rejecting this decision pursuant to paragraph 5.5.3(a) of [NILCA] …
Specifically, I am rejecting the first element of your decision, which is the total
allowable take of 28 polar bears.” 215 The Boards took note of this and stated in their
final decision that “[b]ecause neither government offered concerns about the non-quota
limitations proposed initially, the Boards have maintained them, in their entirety,
within the final decision.” 216
125. At some point after the Boards had rendered their final decision but before the
Minister had made hers, officials from ECCC met with the Boards and raised some of
their concerns regarding the NQLs. 217 The Boards responded by noting that they were
211
Ibid., para. 96
212
CE RV (GCC), pp. 34:6-35:11 [AB, vol. 9, tab S, pp. 2619-2620].
213
R. v. Badger, [1996] 1 SCR 771, para. 41.
214
The Truth and Reconciliation Commission of Canada, What We Have Learned:
Principles of Truth and Reconciliation, (2015), p. 121.
215
Letter dated September 23, 2015, p.1 [AB, vol. 2, tab A-22, p.444].
216
217
Letter dated May 4, 2016 [AB, vol. 2, tab A-20, pp. 440-442].
35
“greatly concerned that this exchange is coming after the final decision was issued,
which has put both Boards in a difficult legal position since an exchange of this type is
not contemplated in either the NILCA or EMRLCA” and that it was especially
disappointing considering that ECCC had had the opportunity to raise these issues
during the Boards’ deliberations through its technical advisors but had failed to do so
(indeed, it had often failed to even have technical advisors present). 218 The Boards
agreed that certain points of their decision could be clarified, but rejected many of the
changes proposed by ECCC.
126. The Minister’s decision was rendered two months after this exchange. It varied
or rejected four of the NQLs established by the Boards, offering brief reasons for
each. 219
127. Considering a very similar treaty process in Nacho Nyak Dun, the Supreme
Court affirmed that it is a “collaborative process,” which is “designed to foster a
positive, mutually respectful, and long-term relationship between the parties” where
“[e]ach step of the process builds on decisions made at an earlier stage.” 220 As a result,
at the last step of this process, a government may only make modifications to the treaty-
mandated body’s decision “that (1) are based on those it proposed earlier in the process
or (2) respond to changing circumstances.” 221
128. By failing to communicate to the Boards the concerns they had regarding the
NQLs established in the Boards’ initial decision, ECCC and the Minister denied the
Boards, who are meant to have the “central role” in the wildlife management
process, 222 the opportunity to consider and respond to those concerns. As a result, “the
dialogue contemplated [by ss. 5.5.8 and 5.5.11] could not, and did not, occur.” 223
Having failed to discuss the issue with the Boards, the Minister had no jurisdiction to
vary the NQLs established in their final decision.
129. The Minister’s failure to raise her concerns regarding the Boards’ NQLs at the
appropriate moment cannot be remedied by ECCC’s half-hearted attempt to engage the
Boards on some of these issues several months after the Boards had rendered their final
218
Letter dated July 22, 2016 [AB, vol. 2, tab A-19, pp. 434-439].
219
Analysis of Decision, pp. 2-4 [AB, vol. 2, tab A-3, pp. 334-336].
220
Nacho Nyak Dun, supra note 88, paras. 43, 47–48.
221
Ibid., para. 5.
222
Ibid., para. 48.
223
The First Nation of Nacho Nyak Dun v. Yukon, 2015 YKCA 18, para. 151.
36
decision. Where a Minister has not complied with the process established by a modern
treaty “it [is] not a purely procedural irregularity, but a breach of the honour of the
Crown,” and this remains so even where it could be argued that the failure did not
change the ultimate result. 224
130. The application judge found that the Minister had jurisdiction to vary the NQLs
but that this jurisdiction had been exercised unreasonably. 225 In his finding on the
jurisdiction issue, the application judge failed to give meaning to the Minister’s
obligation under s. 5.5.8 to provide the Boards with reasons when rejecting their
decision. If his reasoning on this point is allowed to stand, the NMRWB will no longer
be the “main instrument of wildlife management in the NMR” as required by the treaty,
because the Minister will be able to impose restrictions on Inuit harvesting without ever
having sought its input.
131. The Minister had no jurisdiction to reject and vary the NQLs established by the
Boards, or if she did then she exercised this jurisdiction in an unreasonable manner,
and the Appellant has a right to declarations to this effect.
H. There are Good Reasons to Issue the Declarations Sought
132. Declaratory relief may be required by the principles of reconciliation and the
honour of the Crown. 226 It is a remedy that is appropriate and just when necessary to
meaningfully vindicate the constitutional rights of a claimant. 227 Such is the case here.
133. In general, declarations must address questions that are real and must have
practical utility. 228 The practical utility of a declaration is established, for example,
when:
a. the impact of a constitutional breach is perpetuated into the present; 229
b. it encourages government accountability; 230
224
Makivik c. Québec (QCCA), supra note 94, para. 78.
225
226
Manitoba Metis, supra note 101, par. 143.
227
Canada (Prime Minister) v. Khadr [Khadr], 2010 SCC 3, paras. 30, 46-47.
228
Daniels v. Canada (Indian Affairs and Northern Development) [Daniels], 2016 SCC
12, para. 11.
229
Khadr, paras. 31, 46-47.
230
Daniels, para. 15.
37
c. it settles a live controversy between the parties; 231
d. it brings clarity to the law so as to assist parties in resolving their

differences; 232
e. it addresses the legality of government action or encourages future

compliance with the law by competent ministers. 233
134. In this case, the decision-making process under Article 5 of NILCA is already
underway for other wildlife populations. 234 Not only would the declarations sought by
the Appellant have the immediate practical effect of recognizing breaches of Inuit
treaty rights and restoring Inuit confidence in the treaty processes, but they would assist
in clarifying the parties’ rights and obligations under NILCA so as to prevent the same
errors from being repeated. Such declarations would also reaffirm the centrality and
importance of the co-management regimes contained in modern treaties throughout the
country.
135. The application judge’s refusal to grant declaratory relief was based on an
inappropriate minimization of the impacts of the Minister’s decision by characterizing
it as “temporary” and on a misreading of Nacho Nyak Dun. 235
136. Indeed, a decision affecting a single hunting season that is taken in violation of
a treaty still merits declaratory relief. 236 In this case, the Minister’s decision remains in
effect to date, more than three-and-a-half years (and four hunting seasons) later.
137. Moreover, the question of the appropriate remedy for addressing government
breaches of modern treaty obligations was squarely before the Supreme Court in Nacho
Nyak Dun. The Yukon Court of Appeal’s error, according to the Supreme Court, was
to assess the territorial government’s conduct at an earlier stage in the land use plan
approval process, even though the First Nation did not seek to have that earlier
approval quashed, and then remitting the matter to that earlier stage, effectively giving
231
Ibid., para. 11.
232
Mohawks of the Bay of Quinte v. Canada (Indian Affairs and Northern
Development), 2013 FC 669, paras. 61, 64-65.
233
Western Canada Wilderness Committee v. Canada (Fisheries and Oceans), 2014
FC 148, paras. 66, 92.
234
CE KBH (CAN), pp. 49:9–49:28, 70:24–71:5 [AB, vol. 8, tab P, pp. 2300, 2321-
2322].
235
236
Makivik c. Québec (QCCA), supra note 94, paras. 57, 100-109.
38
the territorial government a second chance to propose more extensive changes to the
plan. The equivalent in the present proceedings would be to return the Boards’ initial
decision to the Minister.
138. This is how “the Court of Appeal improperly inserted itself into the heart of the
ongoing treaty relationship between Yukon and the First Nations.” 237
139. However, when an indigenous party requests the Court’s assistance, far from
being improper, it is essential to the treaty relationship that the Court be willing to
provide “adequate scrutiny of Crown conduct to ensure constitutional compliance,” 238
as well as relief that meaningfully vindicates treaty rights. In this case, allowing the
Crown’s conduct to go unremedied would undermine, rather than foster, the project of
reconciliation that NILCA was intended to advance.
PART IV: ORDER SOUGHT
140. For the foregoing reasons, may it please this Court to:
ALLOW the present Appeal and SET ASIDE the judgment at first instance;
DECLARE that the Minister of Environment and Climate Change failed to give full
regard to the integration of Nunavik Inuit knowledge of wildlife and wildlife habitat
with knowledge gained through scientific research when making the decision at issue
in these proceedings.
Or, in the alternative to the above declaration:
DECLARE that the Minister of Environment and Climate Change acted

unlawfully and/or unreasonably when she failed to seek further information
regarding the methodology and results of the Nunavik Marine Region Wildlife
Board’s Inuit Traditional Knowledge study prior to making the decision at issue
in these proceedings.
DECLARE that the Minister of Environment and Climate Change acted unlawfully
and/or unreasonably when she failed to provide the Nunavik Marine Region Wildlife
Board with the opportunity to respond to her concerns regarding the methodology and
results of its Inuit Traditional Knowledge study prior to making the decision at issue in
237
238
Ibid., para. 34.
39
these proceedings.
DECLARE that it was unlawful and/or unreasonable for the Minister of Environment
and Climate Change to rely on a “cautious management approach” as justification for
limiting Nunavik Inuit harvesting when making the decision at issue in these
proceedings.
and Climate Change to have considered the politics of international trade and/or issues
related to the Convention on International Trade in Endangered Species of Wild Fauna
and Flora when making the decision at issue in these proceedings.
and Climate Change to have considered the 2014 voluntary agreement when making
the decision at issue in these proceedings.
DECLARE that, at the time she rendered the decision at issue in these proceedings,
the Minister of Environment and Climate Change had no jurisdiction to vary the non-
quota limitations established in the final decision of the Nunavik Marine Region
Wildlife Board and the Eeyou Marine Region Wildlife Board.
Or, in the alternative to the above declaration:
DECLARE that the Minister of Environment and Climate Change’s decision

to establish a sex-selective harvest and vary other non-quota limitations decided
by the Nunavik Marine Region Wildlife Board and the Eeyou Marine Region
Wildlife Board is incorrect and/or unreasonable.
GRANT the Appellant its costs before this Court and at first instance;
ORDER any other relief that it deems just and appropriate in the circumstances.
June , 2020
____________________________________
Nicholas Dodd and David Janzen
DIONNE SCHULZE
507 Place d'Armes, #502
Montreal, Québec H2Y 2W8
Telephone: 514-842-0748
Fax: 514-842-9983
ndodd@dionneschulze.ca
djanzen@dionneschulze.ca
notifications@dionneschulze.ca
40
PART V: LIST OF AUTHORITIES
LAWS, REGULATONS AND TREATIES
UN Convention on international trade in endangered species of wild fauna and flora,

March 3, 1973 (in force July 1, 1975), 993 UNTS 243
Eeyou Marine Region Land Claims Agreement
Interpretation Act, RSC 1985, c I-21
Fish and Wildlife Conservation Act, 1997, SO 1997, c 41
Act respecting the conservation and development of wildlife, CQLR, c C-61.1
Wild Animal and Plant Protection and Regulation of International and Interprovincial
Trade Act, SC 1992, c 52
Nunavik Inuit Land Claims Agreement
Nunavik Inuit Land Claims Agreement Act, SC 2008, c 2
CASE LAW
Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36
Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53
Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65
Canada (Prime Minister) v. Khadr, 2010 SCC 3
Chen v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 170
Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40
Corporation Makivik c. Québec (Procureur générale), 2014 QCCA 1455
Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12
Delta Air Lines Inc. v. Lukács, 2018 SCC 2
Eastmain Band v. Canada (Federal Administrator), [1993] 1 FCR 501
First Nation of Nacho Nyak Dun v. Yukon, 2015 YKCA 18
First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58
41
Kadlak v. Nunavut (Minister of Sustainable Development), 2001 NUCJ 1
Kainaiwa/Blood Tribe v Alberta (Energy), 2017 ABQB 107
Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14
Mohawks of the Bay of Quinte v. Canada (Indian Affairs and Northern Development),
2013 FC 669
R. v. Badger, [1996] 1 SCR 771
Stemijon Investments Ltd. v. Canada (Attorney General), 2011 FCA 299
Western Canada Wilderness Committee v. Canada (Fisheries and Oceans), 2014 FC

148
DOCTRINE
André Goldenberg, “‘Surely Uncontroversial’: The Problem and Politics of

Environmental Conservation as a Justification for the Infringement of Aboriginal
Rights in Canada” (2002) 1:2 Journal of Law & Equity 278
John Borrows and Leonard Rotman, “The Sui Generis Nature of Aboriginal Rights:
Does it Make a Difference?” (1997) 36:1 Alberta Law Review 9
Julie Jai, “The Interpretation of Modern Treaties and the Honour of the Crown: Why
Modern Treaties Deserve Judicial Deference” (2010) 26 N.J.C.L. 25
Marie Battiste and James [Sa’ke’j] Youngblood Henderson, Protecting Indigenous

Knowledge and Heritage: A Global Challenge (Saskatoon: Purich Publishing Ltd.,
2000)
Pierre-André Côté, Interprétation des lois, 4ième éd. (Montréal : Les Éditions Thémis,
2009)
Public Inquiry Commission on relations between Indigenous Peoples and certain public
services in Québec (Viens Commission), Final Report, (2019)
Randy Kapashesit and Murray Klippenstein, “Aboriginal Group Rights and

Environmental Protection” (1991) 36 McGill Law Journal 926
Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis,
2014)
42
Sari Graben, “Living in Perfect Harmony: Harmonizing Sub-Artic Co-Management
through Judicial Review” (2011) 49 Osgoode Hall LJ 199
Sébastien Grammond, Terms of Coexistence: Indigenous Peoples and Canadian Law

(Toronto: Carswell, 2013)
The Truth and Reconciliation Commission of Canada, What We Have Learned:

Principles of Truth and Reconciliation, (2015)
43
APPENDIX: LIST OF ACRONYMS
CITES Convention on International Trade in Endangered

Species of Wild Fauna and Flora
ECCC Environment and Climate Change Canada
EMR Eeyou Marine Region
EMRLCA Eeyou Marine Region Land Claims Agreement
EMRWB Eeyou Marine Region Wildlife Board
GCC Grand Council of the Cree
NILCA Nunavik Inuit Land Claims Agreement
NMR Nunavik Marine Region
NMRWB Nunavik Marine Region Wildlife Board
NQLs Non-quota limitations
NWMB Nunavut Wildlife Management Board
SHB Southern Hudson Bay
TAT Total allowable take
44

Makivik Corp. Appeal On Federal Court Decision Re: Nunavik Polar Bear Quota

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Makivik Corp. Appeal On Federal Court Decision Re: Nunavik Polar Bear Quota

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Court File No.

: A-447-19 (lead file)

FEDERAL COURT OF APPEAL

MAKIVIK CORPORATION, THE GRAND COUNCIL OF THE CREES, and

MEMORANDUM OF FACT AND LAW OF THE APPELLANT

A. Polar Bear and Nunavik Inuit

B. Nunavik Inuit Rights and NILCA

3. In December 2006, Nunavik Inuit (as represented by the Appellant Makivik

5. Article 5 of NILCA establishes the “wildlife management system for the

6. NILCA establishes the Nunavik Marine Region Wildlife Board (“NMRWB”)

7. “Co-management has two main objectives: resolving the political conflicts

8. The NMRWB’s duties include the establishment, if it determines there is a

9. Pursuant to Article 5, certain decisions of the NMRWB must be sent to the

C. The Minister’s Decision

i. The Process Begins

13. Geographically, the SHB management unit is composed of the south-eastern

iii. The Inuit Traditional Knowledge Study

iv. The NMRWB’s Deliberations

v. CITES and the 2014 Voluntary Agreement

29. Immediately following this decision, the then-Minister of the Environment,

vi. The Boards’ Decisions and the Minister’s Response

a. maintained their original decision of a TAT of 28 bears. With respect to

[T]he Deputy Minister’s basis for rejection of the NMRWB and

b. refused to take into account the 2014-2016 voluntary agreement as

c. refused to adopt a sex-selective harvest of two males to every one

d. maintained the NQLs established initially “because neither government

vii. The Minister’s Decision

a. varied the Boards’ decision in order to reduce the TAT to 23 bears, on

b. noted some discrepancies between science and traditional knowledge

c. stated that “assumptions cannot be made about the subpopulation’s

d. accepted the flexible harvest system established by the Boards;

e. imposed a sex-selective harvest of two males to every one female;

f. varied or rejected four of the NQLs decided by the Boards.

PART II: ISSUES

42. The issues in this appeal are:

a. What are the principles applicable to the interpretation of modern

c. Was the Minister’s approach to the Boards’ traditional knowledge study

d. Does NILCA authorize the Minister’s reliance on a “cautious

e. Does NILCA authorize the Minister to consider the politics of

f. Was the Minister’s reliance on the 2014 voluntary agreement authorized

PART III: SUBMISSIONS

A. Appellate Standard of Review

i. No Deference is Accorded the Crown in Judicial Review of Modern

a. “Because modern treaties are ‘meticulously negotiated by well-

b. “Paying close attention to the terms of a modern treaty means

c. “Compared to their historic counterparts, modern treaties are detailed

d. Modern treaties advance reconciliation “by creating the legal basis to

e. “[R]econciliation is found in the respectful fulfillment of a modern

56. Moreover, in the case of NILCA specifically, the legitimacy of a non-

ii. Administrative Law Principles Require the Standard of Correctness

a. The principles of modern treaty interpretation discussed above, which

b. The fact that NILCA expressly recognizes Nunavik Inuit expertise

c. The importance of the decision to Nunavik Inuit in terms of culture and

iii. The Role of Reasons

63. In the indigenous context generally, “written reasons foster reconciliation by

i. NILCA’s Wildlife Management System and Nunavik Inuit Culture

The difference between Eurocentric and Indigenous thought lies in the

68. This worldview is expressed in Nunavik Inuit’s understanding of their

69. The goal of co-management is to create an institutional arrangement that allows

ii. Nunavik Inuit Traditional Knowledge

A cumulative body of knowledge, practice, and belief, evolving by adaptive

74. Traditional knowledge systems:

[A]re dynamic, constantly changing and expanding, depending on the