Nunavut renewal stalled

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A mediation panel created by an act of Parliament has been in existence for 12 years and has never heard a single case.

The terms of Canada's largest and most internationally heralded land claim agreement are protected by Section 35 of Canada's Constitution but the separate contract that governs how the agreement will be funded is not.

These are just two of the items highlighted in a report commissioned by the federal government that was delivered on Aug. 31. Although it is not yet a public document, Windspeaker obtained a copy of Thomas R. Berger's report to Indian Affairs Minister Andy Scott on how best to break the stalemate in talks aimed at renewing the 1993 Nunavut Land Claims Agreement (NLCA). Now two years past July 9, 2003, the date when the 10-year initial term of the NLCA expired, the parties have been unable to agree on the terms or the process of renewal.

Berger was appointed as conciliator for the NLCA implementation contract negotiations on May 26 and got right to work, spending June and July meeting with all the parties in both Ottawa and Nunavut.

The former judge was asked to issue his final report within 90 days of being retained or to file an interim report by that time. He filed an interim report only because one sticky area will be the subject of a separate report to be issued sometime in the next few months. That report will deal with Section 23 of the NLCA, which calls for representative employment levels of Inuit people in the public service. The commitment made is far from being satisfied, with Inuit employment numbers languishing far below half the targeted number in both the federal and Nunavut civil service.

Berger was retained as a "recognized problem solver who could make a neutral assessment of the issues and provide the parties with recommendations."

All three parties to the agreement-the federal government, the territorial government of Nunavut and Nunavut Tunngavik Inc. (NTI), the corporation that oversees the NLCA-hailed Berger's appointment when it was announced in May.

Stating early that he based his analysis on three "underlying considerations"-the status of the NLCA as a constitutional document, the principle that the honor of the Crown must be observed in all dealings with the Inuit, and the contents of the actual agreement-Berger said he detected one central problem that needed to be addressed.

"It appears that the parties-Nunavut and NTI on one side, Canada (represented by Indian and Northern Affairs) on the other-lack confidence in one another's good faith. They do not have the sense that they are working together towards common goals," he wrote. "They cannot agree on what issues fairly arise under the NLCA, and they cannot agree on what is properly considered 'implementation.' NTI seeks to cloak as many issues as possible in the language of contractual obligation; Canada wishes to limit the scope of its legal obligations and to discuss broader issues as questions of policy having nothing to do with the land claim."

Berger said both sides will have to modify their approaches if progress is to be made.

Later in the report, Berger quoted criticisms leveled by the auditor general in 2003 that Indian and Northern Affairs Canada seems focused on fulfilling the letter of land claim implementation plans, but not the spirit of those plans.

"Officials may believe that they have met their obligations, but in fact they have not worked to support the full intent of the land claims agreements," wrote the auditor general.

"I agree," wrote Berger.

Just because a deal has been finalized, he said, does not mean that Canada's obligation to uphold the honor of the Crown has ended even if the details are spelled out in a contract rather than a piece of legislation with the power of the Constitution behind it.

"Treaty making and treaty implementation are distinct but not strictly isolated concepts," he wrote. "I am of the view that the implementationprocess must be approached broadly with a view to achieving the purposes of the NLCA."

Clearly aware of his status as a neutral observer, Berger was careful to write in diplomatic and non-critical language whenever possible. But a couple of situations he discovered attracted blunter language.

He noted that certain areas of the agreement were phrased in an inexact fashion (such as the "fair and reasonable remuneration" that the NLCA stated would be paid to members of the six boards created to administer the agreement).

"So what do such words really settle? The obligation is expressed so generally as to be exceedingly difficult to enforce. So long as some funding is provided, arguments will be premised on the interpretation of the language and it is subject to almost impossibly wide interpretation," he wrote. "Drafters employ such phrases to describe obligations precisely because the parties cannot agree on the specifics; it is a mistake to think that, come implementation, consensus among the parties as to what the text means-legally speaking-will be any more advanced."

Quibbling over the meaning of terms would not lead anywhere, he added.

"In the end, successful implementation depends far more on the goodwill of the parties and the honor of the Crown than on any formal requirements derived from the NCLA or the implementation contract," he wrote.

Berger reserved his harshest criticism for a tactic that has been employed by the Crown almost from the moment the NLCA took effect.

Article 38 of the NLCA created the Nunavut Arbitration Board (NAB) to resolve disputes "arising in the interpretation, application and implementation of the agreement."

The legislation calls for disputes between an Inuit organization and government to be decided by the NAB but, Berger wrote, "As of today, no case has come before the board owing to Canada's refusal to agree to arbitrate when such requests have been made."

Later he explained that "Canada has thus far reused in every case to agree to arbitration on the ground that it would interfere with Parliament's exclusive authority regarding appropriation of money."

Berger took aim at Canada's position, saying that Parliament passed the NLCA, including Article 38, with eyes wide open and that makes it the law of the land.

"It seems disingenuous for Canada to argue that the executive branch can take a position in defense of Parliament's prerogatives when Parliament itself has passed a measure that it is prepared to submit matters in the very broad category described by Article 38 to arbitration," he wrote. "To the extent that Canada has refused its consent on the ground that to agree to arbitrate would usurp Parliament's prerogatives, I think it has acted misguidedly."

Thomas Berger recommended that the parties agree in advance to refer a matter to non-binding mediation if they can't agree to arbitration.

"No party could act unreasonably, content in the knowledge that it need never submit the question to an impartial third party," he wrote.

Berger's report in many ways vindicates the complaints set out by the Land Claims Agreement Coalition in a letter sent to Prime Minister Paul Martin in March 2004. The group of seven Aboriginal organizations that have signed comprehensive claim agreements told the prime minister that little happened after the agreements were finalized.

Berger said he heard the same complaint on a number of occasions from all parties, including from federal officials.

"They believe that a malaise set in during the implementation process after the 1999 miracle of the creation of Nunavut," Berger wrote. "More than once, they summarized Canada's attitude with a gesture-dusting off their hands-and a word-'Next!'"

But Berger also said that most of the people involved, on all sides, were determined that Nunavut should succeed. "They are not fatigued, though they are certainly frustrated. They want to get on with the job," he wrote.