Nunavut minister wrong to dismiss tourism operator's licence appeal, judge says

Nunavut's economic development minister was wrong to reject a tourism operator's licence renewal to run expeditions near Resolute Bay, according to a Nunavut judge.

In a written decision issued last week, Justice Faiyaz Alibhai of the Nunavut Court of Justice ruled that the minister erred by delegating some of his authority to the local Hunters and Trappers Organization, and by failing to disclose some information to the tourism company before making his decision.

Yellowknife-based Weber Arctic had been running sightseeing and wildlife-viewing expeditions from a lodge on northern Somerset Island for 23 years before its tourist establishment and outfitting licences weren't renewed in June 2023.

The company was told at the time by the chief tourism officer that the renewals were denied because its operations had impacts on the environment and the traditional use of the area.

Weber Arctic then appealed to David Akeeagok, the minister of Economic Development and Transportation (EDT), who then denied the appeal for one of the two licences — a tourist establishment licence — last December.

However, Alibhai found that the department failed to disclose certain information to Weber Arctic about complaints made against the company in 2022, before the minister made his decision.

"They had a reasonable expectation that if any issues arose with their operations, those issues would be brought to their notice so that they could address them or rectify them," Alibhai wrote.

He said the EDT department took no steps to address any concerns arising from the complaints in 2022.

The judge also found the minister allowed the Resolute Bay Hunters and Trappers Organization (HTO) to be the "gatekeeper" to the minister's decision, and that the issues raised by the HTO about Weber Arctic led to the company's licence renewals being denied.

Concern over caribou

The court ruling says that in June 2023, the day before Weber Arctic's licence renewal was rejected the company wrote to the chief tourism officer (CTO) saying it had heard about one concern about its operation on Somerset Island, and its  impacts on caribou. In the letter, the company said that information came from a third party.

"This allegation is completely ridiculous. We have never seen caribou on Somerset Island in 23 years… We have told HTO time and time again, if we see caribou we will leave the area," Weber Arctic wrote to the tourism officer.

The ruling further states that very same day, another email was submitted to the CTO by the Resolute Bay HTO, which detailed concerns about the company's effect on the community.

"Hunters do not feel comfortable harvesting certain animals such as whales in the area because of the [company's Arctic Watch] camp," the HTO wrote.

"Natural wildlife are being disrupted by Arctic Watch operations and activities, such as disturbances caused by tourists approaching and harassing wildlife."

The HTO also alleged the lack of caribou on Somerset Island was a result of the disruption from plane landings, and that the company's operations were also affecting beluga whales that use the area as their natural winter molting area.

Weber Arctic was then told by the department in late June that for future licence renewals, it must get support from both the Resolute Bay hamlet and the local HTO.

It received support from the hamlet on Nov. 6, 2023, but not the HTO, which was why the minister said he rejected the appeal.

The Nunavut Court of Justice in Iqaluit. (David Gunn/CBC)

Justice Alibhai ruled that decision was unreasonable, as it effectively delegated the decision-making authority to someone else.

He acknowledged the argument that the HTO has a special role as defined in the Nunavut Agreement, but said that role is for overseeing wildlife harvesting rights for Inuit.

"This recognition of their special role in Nunavut, however, does not give the HTO any authority, express or implied, to veto applications for licences under the Tourism Act," he said.

He also questioned the criteria the minister used in his decision, including how he accepted the HTO's concerns, but not contradictory information from others who were familiar with the area.

Observations by Aleeasuk Idlout, a former HTO chair, were submitted as part of the evidence, saying that there are few caribou on Somerset Island.

"Why accept one letter but not the other? The minister does not explain," Alibhai said.

Multiple complaints in 2022

The complaints made against Weber Arctic include two serious allegations about threats to others' safety made in 2022.

According to the ruling, the first one came to light on Oct. 17, 2022, when Fisheries and Oceans Canada (DFO) claimed Weber Arctic representatives made threats against DFO staff.

Those threats allegedly included aggressive emails about the DFO's research camp on Somerset Island, and a Weber Arctic helicopter landing near a fuel cache, with staff nearby, which resulted in damage to the research camp.

A second complaint, also detailed in the court ruling, was made over an alleged incident in 2019 involving the Swedish icebreaker, Oden.

Film crews with Oden allege they were shot at by members of Weber Arctic, as they tried to enter the area using zodiacs. A report was made to the RCMP but no charges were laid.

Correspondence about those two incidents, said the judge, weren't released to Weber Arctic until after the minister's decision in Dec. 2023.

CTO staff contacted Weber Arctic on March 20, 2023, by phone. That's when the tourism operator disputed some statements.

According to the ruling, Weber Arctic staff told the CTO they had been trying to warn the people in the zodiacs about the hundreds of nursing whales in the area being disrupted by the Oden icebreaker.

After the phone call, the CTO conducted further investigation into the allegations of the helicopter landing and found the helicopter was being operated by a separate company contracted by Arctic Weber, and it was in fact the DFO scientists who were set up in the wrong location.

The CTO's notes from the phone call weren't provided to Weber Arctic, or the minister, until after the minister's decision to not renew the licence.

Licences for 2024 and 2025

Justice Alibhai has ordered for both of Weber Arctic's licences — its tourism establishment licence and its outfitter's licence — to be renewed to Dec. 31, 2024, with conditions. They include not interfering with the activities of other land users in the area, or the movement of belugas, as well as reporting any sightings of caribou.

He also ordered the government to renew the company's 2025 tourist establishment licence within 30 days of receiving its applications, unless there are grounds to deny it outside of the concerns listed in the appeal.

In its appeal to the minister in Sept. 2023, Weber Arctic said it had lost $90,000, just from the cancellation of one hiking trip in Auyuittuq National Park. At that point, it estimated another $3 million in lost sales over the following six months.

Both Minister David Akeeagok and Weber Arctic have declined comment on the court decision.