Interlocutory injunction granted. The RCMP have been authorized to enforce an injunction against community protestors, including removing and detaining to the extent necessary, persons who have knowledge of the injunction, and are obstructing or impeding access to the mine site. The mining corporation has approval for its operations and has complied with the necessary requirements under The Nunavut Land Claims Agreement and with any regulatory and legislative requirements.
Indigenous Law Centre
Indigenous CaseWatch Blog
Baffinland Iron Mines Corporation [“BIM”] is granted an injunction prohibiting the Defendants, and others, from blockading or obstructing its mining operations at the Mary River site on northern Baffin Island. To get to this mine site, it is a fly in and out with an airstrip. Iron ore is mined and crushed at the mine site, and then trucked to where it can be loaded on to ships at Milne Port, and shipped out during open water season. The mine site and the port are connected by a road approximately 100 km long. The airstrip and accommodation for most of the employees is at the mine site but with some at Milne Port. Shipping of iron ore can occur only during the open water season. However, during the rest of the year iron ore is still trucked to Milne Port and is stockpiled to await the shipping season.
BIM has applied to significantly expand its operations at the mine. It is unknown if the application will be approved or not. The current approvals for the mine are controversial and there are strongly held views and opinions on all sides. The north Baffin communities of Pond Inlet, Arctic Bay, Clyde River, Igloolik, and Sanirajuk are the communities closest to and most affected by the mining operations. Residents from the local communities set up protests at the BIM site. Although these protests were not large, a camp was set up on the runway and road, approximately 3-4 km from the mine site. Although there were approximately 5 protesters at the mine site and 2 on the road, it prevented the plane to land normally at the airstrip and iron ore could not be trucked from the mine site to the port. The protest shut down mining operations and stopped the movement of people and supplies to and from the mine.
Counsel for three of the Defendants appeared in court. At that time the concern of the was the 700 employees at the project site and if they were unable to leave due to the blockade on the airstrip. The Defendants were not opposed to the departure of the employees that were on site. An interim order was issued to ensure that occurred. A short time later the Defendants left the project site and carried on to their respective communities. However, the Plaintiff maintained its application for an interlocutory injunction and brought an action against the Defendants for trespass, unlawful interference with economic interests, and mischief.
The Defendants asserted their Aboriginal rights pursuant to s 35 of the Constitution Act, 1982. They submit that injunctive relief is no longer required as the Defendants have left the project site. The test for injunctive relief have three factors that the court must consider: 1) is there a serious issue to be tried; 2) will irreparable harm result if the relief is not granted; and 3) where does the balance of convenience lie (RJR MacDonald Inc v Canada (AG), [1994] 1 SCR 311).
The Plaintiff’s legal action is a serious issue to be tried. The Defendants’ argument that the need for injunctive relief has lapsed because the protesters have left the project site. While this may be true, their counsel was not able to confirm that they have agreed to not return and continue the protest. As well, counsel is only for three Defendants of the seven protestors. The protest and its reasons have been the topic of discussion in the media. There may be more than one reason for the protest, and individual protesters are there for different reasons.
In response to the protest, Inuit leadership reached out to the Defendants to arrange meetings to reach a resolution. The Defendants have agreed to the meetings, but not much more is known at this junction. The business operations that are at risk continue as a going concern and the protesters’ concerns remain unresolved. Although the protesters may no longer be at the project site, their reasons for being there in the first place remain. As for the s 35 Aboriginal rights argument, asserted Aboriginal rights are rights that are asserted but not yet proven. This is not the Nunavut context. The Nunavut Land Claims Agreement [“NLCA”] is a modern treaty that encompasses the largest land claims settlement in Canada. The processes for resource development are set out in the Agreement. The Plaintiff has complied with the necessary requirements under the NLCA and any regulatory and legislative requirements.
The Plaintiff has loss of revenue because of the inability to transport iron ore from the mine site to the port. The court stated that the complete blockade of a lawful business strongly suggests irreparable harm for the purposes of an injunction (Hudson Bay Mining & Smelting Co Limited v Dumas et al, 2014 MBCA 6). The balance of convenience favours the granting of injunctive relief.