Negotiating and implementing the Nunavut Land Claims Agreement

●●●●●●●There were close and cooperativerelations between staff,many of whom were kabloona(white), and Inuit politiciansand negotiators.The parties were willing to compromiseon issues the Governmentof Canada considered to bematters of principle, such as theCrown retaining title to most ofthe subsurface, and the boundaryseparating the Inuit and Deneland claims settlement areas.A forward-looking and practicalapproach was adopted that aimedto avoid embarrassing the Governmentof Canada forpast mistakes, such as theinvoluntary relocation ofInuit from northern Quebecto the High Arcticislands in the 1950s, butrather to use negotiationsto plan a positive futurefor Inuit within the Canadianframework. Inuit suggestedthey were joiningCanada at a time whenmany in Quebec said theywanted to leave.The focus was concentratedon the Nunavut projectthrough the establishmentof TFN, whose mandateand sole purpose wasto negotiate an agreementwith the Government ofCanada.There was a willingness and abilityto draft provisions and respondquickly to the positions of theGovernment of Canada in order to“drive” the negotiating process.Relatively few third-party rightsand interests to land and naturalresources were subject tonegotiation.The process was aided by the factthat in 1986 the Government ofCanada adopted a ComprehensiveLand Claims Policy that broadenedthe rights and benefits andnarrowed the requirement to cedeAboriginal title through negotiatedagreements.Negotiating and implementing the Nunavut Land Claims AgreementWe suggest, as well, that theGovernment of Canada’s negotiatorsapproached their task withprofessionalism, diligence andcreativity. While ministers of Indianaffairs and northern developmentcame and went during the 1980s,the federal chief negotiator, TomMolloy, a Saskatoon-based lawyer,and the senior negotiator, BarryDewar, a career civil servant, stayedwith the process for years, providingcontinuity and corporate memorythat spanned the governments ofdifferent political persuasions.Ottawa’s close attention wasrequired if the Nunavut projectwas to move in a reasonable amountof time from an agreement in principleto a final agreement. In thatsense, the collapse of theDene/Métis Final Agreement in 1990probably assisted Inuit in that itbrought the Nunavut project to centrestage at a time when policy-makersin Ottawa needed to providedirection on the issue of politicaldevelopment.We suggest, as well, that theGovernment of Canada’s negotiatorsapproached their task with professionalism,diligence and creativity.While ministers of Indian affairs andnorthern development came andwent during the 1980s, the federalchief negotiator, Tom Molloy, aSaskatoon-based lawyer, and the seniornegotiator, Barry Dewar, a careercivil servant, stayed with the processfor years, providing continuity andcorporate memory that spanned governmentsof different political persuasions.On the ratification of theNunavut Agreement, Molloy correctlycharacterized the agreement as an“achievement shared.”The Nunavut project also benefitedfrom personal commitment onthe part of key federal politicians(although this is difficult to evaluate).David Crombie, for example,was a keen Nunavut supporter duringhis tenure from 1984 to 1986 as ministerof Indian affairs and northerndevelopment. His successor, BillMcKnight, obtained cabinet approvalfor reforms to the land claims policythat were first proposed by Crombie,including the application of provisionsto the offshore, without whichthe Nunavut Agreement could nothave been finalized.Tom Siddon, another Indianaffairs and northern developmentminister, signed the Nunavutagreement in principle inIgloolik in April 1990. Seekingto build connections withhim, Inuit leaders took himand his spouse out on theland, where they slept on caribouskins in an iglu on the seaice. On his return, he had supperwith Inuit leaders and toldthem that they could counton his ongoing support fortheir project. He was still ministerin 1993, and he personallycalled Prime Minister BrianMulroney to recommend thatthe Government of Canadasupport both the land rightsand the political developmentprovisions of the final agreement.In 2005 he told one ofthe co-authors of this articleof the importance of this experienceon the land and of his deep respectfor the Inuit leaders, negotiators andelders. Clearly, personal relationscount for something in the world ofpolicy, legislation and negotiations.Many urban Canadians whohave never been to the North have apositive or stereotypical image ofInuit that, in a very general sense,supported the Inuit intent to negotiatean agreement on land rights andpolitical development. Inuit leaderscharacterized themselves as proudCanadians who support Canada’sArctic sovereignty, which contributedto this image. Indeed, thePOLICY OPTIONSJULY-AUGUST 200983

Negotiating and implementing the Nunavut Land Claims AgreementNunavut Tunngavik Inc.Paul Quassa, President of the Tungavik Federation of Nunavut, and Brian Mulroney, Prime Minister of Canada, hold up the signedNunavut Land Claims Agreement, on May 25, 1993. They are flanked by John Amagoalik, Titus Allooloo, Indian Affairs minister TomSiddon, James Eetoolook, and Nellie Cournoyea, Premier of the Northwest Territories.and obligations, disputes over funding,a lack of collaboration and theabsence of a process to monitorimplementation. Once again, it recommendsreinvigorating theNunavut Implementation Panel and,tellingly, it urges the Government ofCanada to increase its implementationaccountability, saying: “Theissue of trust, at least in terms oftrusting the Government of Canada,is that the process itself conveys nocertainty or accountability to theparties involved in working throughproblems and developing solutions.”The renegotiation and renewal ofthe implementation contract tocover the period 2003 to 2013 hasproved painful and unsuccessful,leading some to suggest that the Governmentof Canada had virtually lostinterest in implementing theNunavut Agreement and was concentratingon negotiations elsewhere. Itwas frequently alleged that theDepartment of Indian Affairs andNorthern Development (DIAND)could not get other federal agenciesto fulfill their obligations under theagreement. Nunavut TunngavikIncorporated (NTI), the Inuit organizationimplementing the NunavutAgreement, suggested that the mandateof the federal government’simplementation contract negotiatorwas inadequate and was, in anyevent, committed to the status quo ofthe first implementation contractcovering 1993 to 2003.The federal government’s blanketrefusal to agree to arbitrate disputes, asprovided for in the agreement, epitomizeda growing gap between it andNTI. Conciliation by former justiceThomas Berger in 2006 proved unsuccessful.NTI agreed to it but theGovernment of Canada never formallyresponded to his report, which recommendeda vigorous commitment tobilingual Inuktitut/English educationto enable Inuit to develop the capacityto fully benefit from the NunavutAgreement.In 2003 NTI was instrumental inthe formation of a coalition of FirstNations and Inuit organizations thathad modern treaties to jointly pressthe federal government to adopt a policyto fully implement comprehensiveland claims agreements and to alterthe machinery of government toensure the adoption of “whole of government”approaches. In 2004 NTIpetitioned the Commissioner of Environmentand Sustainable Develop-POLICY OPTIONSJULY-AUGUST 200985

Terry Fenge and Paul Quassament in the Office of the Auditor Generalof Canada to examine the failureon the part of DIAND to implementthe environmental and socio-economicmonitoring provisions of the agreement.Soon afterward, a formal auditof implementation of the Gwich’in,Nunavut and Sahtu agreements by theauditor general of Canada supportedthe coalition’s analysis and position.In the second half of 2005 representativesof the coalition met regularlywith representatives of federalagencies to jointly draft an implementationpolicy. These negotiationswere terminated by the new governmentimmediately following theJanuary 2006 federal election. TheSenate Committee on AboriginalAffairs held formal hearings in late2007 and early 2008 into the implementationof modern treaties. Thecommittee heard the same story ofunfulfilled obligations and foot-draggingby the Government ofCanada from each andevery coalition member.NTI was a particularlyprominent and volublewitness.These various experiencesprompted NTI to file a lawsuit inthe Nunavut Court of Justice inDecember 2006 seeking $1 billion indamages for alleged breach of contractby the Government of Canada.NTI’s statement of claim, posted onits Web site, is very broad and reflectsthe Inuit view of the substantive, procedural,financial and other failures bythe Government of Canada to fulfill itsduties and obligations, which were sopainfully and meticulously negotiatedfrom the late 1970s to the early 1990s.NTI President Paul Kaludjak did notmince words when filing the suit:The Government of Canadakeeps Inuit dependent and in astate of financial and emotionaldespair despite promises madewhen the Nunavut AgreementThe Nunavut Agreement was a triumph of political statecraft,and while much has been accomplished, its full promise hasnot been realized. In 1993 the expectations that the NunavutAgreement would “solve” difficult social and economicproblems were probably too great. Nevertheless, theagreement does provide many tools that the Inuit of Nunavut,the Government of Nunavut and the Government of Canadacan apply to address challenging public policy issues.was signed in 1993. TheGovernment of Canada is notholding up its end of the bargain.Canada got everything itwanted immediately upon signingthe Nunavut Agreement.Inuit are still waiting for fullimplementation of theAgreement.The Nunavut Agreement was a triumphof political statecraft, andwhile much has been accomplished,its full promise has not been realized.In 1993 the expectations that theNunavut Agreement would “solve”difficult social and economic problemswere probably too great.Nevertheless, the agreement does providemany tools that the Inuit ofNunavut, the Government ofNunavut and the Government ofCanada can apply to address challengingpublic policy issues.The agreement is best viewed as amarriage and not a divorce betweenthe Inuit of Nunavut and Canada,and like all marriages, it requires care,attention and commitment on thepart of both partners. It is difficult,however, to see how the agreementcan be used to full advantage unlessand until the Government of Canadadepartments that have implementationobligations commit themselvesfirmly to achieve them, and do so ina co-ordinated way.Whether the Departmentof Indian Affairs andNorthern Developmenthas the ability and clout inOttawa to ensure a “wholeof government” approachneeded to implement theNunavut Agreement andother modern treaties isvery much an open question.Certainly the LandClaims Agreement Coalition concludesthat it does not, and it recommendsan independent agency beestablished through a cabinetapprovedmodern treaty implementationpolicy to persuade, encourageand cajole federal departments toimplement modern treaties and toaudit and report on their performance.Without this type of policycommitment, modern treaties,including the Nunavut Agreement,are unlikely to be fully implemented.Terry Fenge is a consultant who workspart time for Nunavut TunngavikThe agreement is best viewed as a marriage and not a divorcebetween the Inuit of Nunavut and Canada, and like allmarriages, it requires care, attention and commitment on thepart of both partners.Incorporated, the Inuit organizationimplementing the Nunavut Agreement.From 1985 to 1993, he was director ofresearch for Tungavik Federation ofNunavut (TFN), the Inuit organizationthat negotiated the agreement. The formermayor of Igloolik, Paul Quassa,joined TFN in 1985, and from 1989 to1993 he was TFN’s chief negotiator.The views and perspectives expressed inthis article reflect the personal opinionsof the authors.86OPTIONS POLITIQUESJUILLET-AOÛT 2009