SOMBA K'E/YELLOWKNIFE - Montana-based outfitter John Andre says he plans to file a grievance under the North American Free Trade Agreement (NAFTA) against the territorial government for forcing him out of business after shutting down the caribou hunt.

The ban, imposed Jan. 1, restricted all hunting by resident and sport hunters, essentially forcing a $5-million a year industry to shut its doors this season.

Andre is currently in talks with the U.S. State Department and the U.S. Department of Finance to file a grievance under Chapter 11 of the trade agreement under the section of Expropriation and Compensation.

The section states none of the three countries "may directly or indirectly nationalize or expropriate an investment of an investor" of another country involved "in its territory or take a measure tantamount to nationalization or expropriation of such an investment."

Andre contacted Yellowknifer by e-mail about his plans, in which he writes "their (the GNWT) desire to close down the outfitters is simply based on misinformation.

"They're essentially forcing me out of business," Andre said of the hunting ban. "This is about me getting compensated for their actions."

Geoffrey Kubrick, an Ottawa-based lawyer with Lang Michener who provides counsel on trade agreement issues, said filing a statement of claim under the trade agreement pertaining to an environmental issue can be an uphill battle.

"There is nothing in Chapter 11 that is meant to prevent a party from adopting or maintaining environmental measures," Kubrick said, as long as the environmental measures are "not arbitrary, unjustifiable or a disguised restriction in trade."

According to Kubrick, for Andre's case to be successful there are certain issues he will need to overcome in order to build a strong argument.

"If (the ban) applies to everyone that's strike one and if there is a bona fide ecological reason for the ban, like the caribou are only one quarter of what they were 10 years ago, that's strike two," he said. "There aren't a lot of successful cases. Does he in fact have a right to the caribou, that's strike three."

In a situation where a business owner files a statement of claim against the actions of a provincial or territorial government, it can only be filed with the federal government. If Andre were to be successful, he would be compensated for the closure of his business on the federal government's tab.

"The federal government is responsible for lawsuits of national investors, people from Mexico or the United States," he said of the relationship between businesspeople from the two countries involved in the trade agreement with Canada. "Basically the federal government has to pony-up for any transgressions of territorial governments or provinces."

If the Wek'eezhii Renewable Resource Board agrees with a joint proposal put forward by the GNWT and the Tlicho government, the ban will last until at least 2012, the year of the next Bathurst herd survey. Recommendations from the board are expected sometime in May after it hears from all intervenors on the caribou issue during a week-long hearing scheduled to take place in Behchoko March 22-26.

Darren Campbell, manager of public affairs and communications for the Department of Industry, Tourism and Investment, said the department wouldn't comment on the issue because trade agreements are a federal responsibility.

Requests for an interview with the federal department of International Trade were not returned by press time.