2008-2010 Nunavut Implementation Panel: Annual Report

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Kananginak Pootoogook

Kananginak Pootoogook (1 January 1935 - 23 November 2010), was an Inuk sculptor and printmaker who lived in Cape Dorset, Nunavut. He died as a result of complications related to surgery for lung cancer.

Pootoogook was born at a traditional Inuit camp called Ikerrasak or Ikirasak, near Cape Dorset, Nunavut (then in the Northwest Territories) to Josephie Pootoogook, leader of the camp, and Sarah Ninegeokuluk. The family lived a traditional lifestyle hunting and trapping while living in an iglu in the winter and a sod house in the summer and did not move into their first southern style house until 1942. In 1957 Pootoogook married Shooyoo, moved to Cape Dorset and began work for James Houston.

Photo : Lithography of Kananginak Pootoogook

Originally, Pootoogook did some carving, made prints and lithographs for other artists. At the same time he was a leader in setting up the West Baffin Eskimo Co-operative, the first Inuit owned co-op, now part of the Arctic Co-operatives Limited and served from 1959 until 1964 as the president. Although Kananginak had worked with his father, Josephie, in 1959, it was not until the 1970s that Kananginak began work as a full time artist producing drawings, carvings and prints. According to Terry Ryan, former Co-op manager, Pootoogook was both influenced by and an admirer of the works of his uncle, photographer and historian Peter Pitseolak.

The World Wildlife Commission released a limited edition set in 1977 that included four of Pootoogook's images and in 1980 he was elected to the Royal Canadian Academy of Arts. In 1997 Pootoogook built a 6 ft (1.8 m) inukshuk in Cape Dorset for former Governor General of Canada, Roméo LeBlanc. The inukshuk was dismantled and shipped to Ottawa and with the assistance of his son, Johnny, it was rebuilt at Rideau Hall and unveiled on 21 June, National Aboriginal Day.

While working on his final, and unfinished, drawing of a Peterhead owned by his father, he was struck by coughing spells, which he declared was cancer. Along with his wife, Shooyoo, he flew to Ottawa, staying at the Larga Baffin home, and was diagnosed with lung cancer. In October 2010, he underwent surgery and did not recover. He died 23 November 2010 in Ottawa. He is survived by his wife, seven children and several grandchildren and great-grandchildren, and is buried in Cape Dorset.

Glossary of Acronyms and Abbreviations

AGM Annual General Meeting
ALI Aboriginal Languages Initiatives (Canadian Heritage)
CBM Community Based Monitoring
CGS Department of Community and Government Services
CHS Canadian Hydrographic Service
CWS Canadian Wildlife Service
DFO Department of Fisheries and Oceans
DIAND Department of Indian Affairs and Northern Development
DIO Designated Inuit Organization
DND Department of National Defence
DOE Department of the Environment (Nunavut)
EIA Executive and Intergovernmental Affairs
EPOD Environmental Protection and Operations Division (Environment Canada)
GN Government of Nunavut
HTO Hunters and Trappers Organization
IEP Inuit Employment Plan
IHT Inuit Heritage Trust
IIBA Inuit Impact and Benefit Agreement
INAC Indian and Northern Affairs Canada
IOL Inuit Owned Land
IPG Institutions of Public Government
IQ Inuit Qaujmajatuqangit (Traditional Knowledge)
JPMC Joint Parks Management Committee
KitIA Kitikmeot Inuit Association
KivIA Kivalliq Inuit Association
LTO Land Titles Office
MOU Memorandum of Understanding
NGMP Nunavut General Monitoring Plan
NILCA Nunavik Inuit Land Claims Agreement
NIP Nunavut Implementation Panel
NIRB Nunavut Impact Review Board
NITC Nunavut Implementation Training Committee
NLCA Nunavut Land Claims Agreement
NLUP Nunavut Land Use Plan
NNI Nunavummi Nangminiqaqtunik Ikajuuti Policy
NPC Nunavut Planning Commissionn
NRCan Natural Resources Canada
NRO Northern Regional Office (INAC)
NSA Nunavut Settlement Area
NSRT Nunavut Surface Rights Tribunal
NTI Nunavut Tunngavik Incorporated
NWA National Wildlife Area
NWB Nunavut Water Board
NWMB Nunavut Wildlife Management Board
NWRT Nunavut Wildlife Research Trust
OSME Office of Small and Medium Size Enterprise (PWGSC)
PWGSC Public Works and Government Services Canada
QIA Qikiqtani Inuit Association
RIA Regional Inuit Association
RWO Regional Wildlife Organization
SARA Species at Risk Act
TAH Total Allowable Harvest

Foreword

The Nunavut Implementation Panel (NIP) presents its Annual Report on the Implementation of the Nunavut Land Claims Agreement (NLCA) pursuant to Sub-Section 37.3.3(h) of the Agreement. This Annual Report covers the period April 1, 2008 to March 31, 2010.

To prepare the report, information was obtained from NTI, the federal and territorial governments and the various implementing bodies established under the Agreement, including the Nunavut Wildlife Management Board (NWMB), Nunavut Water Board (NWB), Nunavut Impact Review Board (NIRB), Nunavut Planning Commission (NPC), Nunavut Implementation Training Committee (NITC), and the Nunavut Surface Rights Tribunal (NSRT). Accordingly, the statements and viewpoints of the contributors to this report are not necessarily the shared statements and viewpoints of all members of the Panel or of the Parties appointing them.

On December 5, 2006, NTI filed a comprehensive lawsuit against the Crown in the Nunavut Court of Justice alleging breach of contract and related fiduciary duties with regard to the implementation of the NLCA. Canada later applied to the Court requesting that the Commissioner of Nunavut and the Government of Nunavut be added as defendants in the lawsuit but this application was dismissed. During this reporting period, activities have revolved around the pre-trial identification and exchange of background documents related to the lawsuit. To help inform Nunavut Inuit about the lawsuit, NTI offers a number of Questions and Answers in this report.

While there are outstanding issues that remain to be resolved between Parties to the NLCA, this report highlights the complexity, the achievements, and the challenges associated with implementing a modern comprehensive land claim agreement.

1. Nunavut Tunngavik Incorporated

The period April 1, 2008 to March 31, 2010, continued to be one of impasse, conflict, and missed opportunity in the implementation of the NLCA.

As indicated in the NTI portion of the previous annual report (Nunavut Implementation Panel Annual Report, 2006-2008), the number, breadth, and severity of implementation breaches of the NLCA by the Crown resulted in NTI bringing, at the end of 2006, a multi-faceted law suit against the Attorney General of Canada as the Crown's representative. NTI had no practical alternative to commencing the lawsuit, as the federal government:

  1. Had withdrawn from negotiations to update the implementation contract in 2004 and refused to return to negotiations;
  2. Rejected 17 offers by NTI to refer specific issues to arbitration; and
  3. Would not accept the key recommendations of Conciliator Tom Berger's final conciliation report.

In the two-year period covered by this 2008-2010 NIP Report, the federal government remained inflexible in relation to these three possibilities. Accordingly, the critical NLCA implementation activities in the 2008-2010 period revolved around the early stages of the prosecution of the NTI lawsuit.

NTI takes very seriously its responsibility to communicate to Nunavut Inuit, and also to Canadians in general, what its lawsuit is all about. Why it was brought. Why it is important. And what it aims to achieve. Lawsuits, of course, involve complex legal concepts and are often difficult to describe in ways that readily inform and engage public opinion.

Following NTI's 2006 Annual General Meeting (AGM), NTI commenced a comprehensive lawsuit against the Crown in the Nunavut Court of Justice on December 5, 2006. The lawsuit seeks a number of remedies on behalf of the Inuit of Nunavut, including the payment of $1 billion in damages. In order to facilitate communication, NTI offers the following Questions and Answers about the lawsuit.

Question 1: Why has NTI begun this court case?
NTI is suing because it does not believe the federal government is dealing with Inuit in good faith and consistently with the "honour of the Crown." The federal government is not living up to its implementation responsibilities under NLCA and is, therefore, in violation. A lawsuit is not how NTI wishes to do business with the Crown, but it appears to be the only avenue at the moment.

Inuit are missing out on major benefits identified in the NLCA and NTI will not let this go unchallenged. For example, if Inuit filled 85 percent of government jobs, as anticipated by Article 23, Inuit would be earning more than $130 million extra every year.

Question 2: Why has NTI begun this court case at this time?
NTI brought the court case after all other attempts to negotiate a satisfactory update of the implementation contract had been rejected by the federal government. Negotiations to update the implementation contract began in 2001. The negotiations went through two federal negotiators, but in the end, the federal government walked away from the table. All Parties then worked with former Justice Berger as Conciliator. NTI accepted Mr. Berger's recommendations but the federal government put the Report on the shelf and tried to leave it there.

Question 3: What does NTI hope to achieve by this court case?
NTI hopes to achieve a number of things. While it will be up to the Court to decide the outcome, NTI is asking the court to recognize that the Crown is violating the NLCA by its failure to implement the Agreement.

NTI is arguing that the failure to implement the NLCA extends over a variety of areas, including failure to make progress under Article 23; failure to create federal contracting policies required under Article 24; failure to fund Institutions of Public Government (IPG), Hunters and Trappers Organizations (HTOs), and the Territorial Parks Inuit Impact and Benefit Agreement properly; and failure to respond to reasonable requests for arbitration. NTI is asking for any remedy entitled under law, including use of arbitration to settle disputes and compensation.

Question 4: What kind of risks is NTI running in bringing this court case?
Though it is never possible to predict the outcome of court cases, NTI is running very few risks because the federal government's current positions on implementation are far below what is fair and what is needed under the NLCA.

Question 5: Isn't this case going to be very expensive for NTI?
It will cost NTI some money but this has been budgeted for. Interestingly, the costs of the case are in the same order of magnitude as the costs NTI incurred during the intensive but failed negotiations with the federal government between 2001 and 2006. NTI is not going to retreat from full implementation of the NLCA. NTI exists to ensure that the rights and opportunities of Inuit be respected.

Question 6: Are not court cases very slow? Why would a court case be better than continued negotiations?
Court cases can be slow, but NTI's court case cannot be any slower or more frustrating than the previous five years of artificial negotiations that failed to accomplish a fair offer by the Federal government to implement properly the NLCA in the years to come.

Question 7: What court is this case being brought in? Why that court?
The Nunavut Court of Justice in Iqaluit. We are having our case heard on "home turf."

Question 8: Has going to court worked for NTI in the past?
NTI has won some court cases and lost others. For example, NTI has been able to use the courts to protect Inuit rights on firearms, the Nunavummi Nangminiqaqtunik Ikajuuti (NNI) Policy, and in support of a number of wildlife issues. In the end, NTI would not bring this case forward if it did not think Inuit have a good case.

Question 9: Will this court case make the federal government very unhappy with NTI/Inuit?
NTI's job is not to make governments - no matter what political party - look good or bad; NTI's role is to protect and advance the rights of Inuit. If standing up for Inuit makes anyone unhappy, then that is unfortunate but unavoidable. NTI would be more than pleased on this file, and any other file, to achieve a "win-win" outcome, but NTI cannot achieve this alone; reasonable efforts by all Parties are required.

Question 10: Is NTI suing just the federal government, or is it also suing other Parties? Is the GN a defendant in the case?
The NLCA is between two Parties: the Inuit of Nunavut and the Crown in right of Canada. Under Canada's Constitution, it is the Government of Canada's job to represent the Crown in right of Canada. Accordingly, NTI has not brought its lawsuit against the GN or any other third party.

Question 11: How important is this case for Inuit and for Nunavut?
This case is the most important one NTI has ever brought to court. At stake is whether the NLCA will continue to be a central instrument in shaping the future of Nunavut and improving the lives of Inuit or, if the federal government gets its way, a kind of museum for Inuit rights. NTI will do everything in its power to ensure that the NLCA benefits Inuit in the ways it was intended.

Question 12: How important is this case for other Aboriginal peoples in Canada?
The Inuit of Nunavut are not the only Aboriginal people in Canada who are unhappy with the federal government's implementation policies. NTI belongs to a coalition of all the major land claims agreement organizations in Canada, and the coalition is working hard to get a comprehensive and effective set of federal implementation policies in place.

It should be noted that the Auditor General of Canada has been very critical of the federal government's current policies and practices. She has said that those policies and practices are not allowing land claims agreements to meet their objectives.

Question 13: Does this court case mean that NTI has given up trying to negotiate solutions to implementation issues?
NTI is always open to negotiating solutions if there is adequate political will and determination on the other side.

The complexity of NTI's lawsuit resulted in much of the 2008-2010 reporting period being devoted to the pre-trial identification and exchange of background documents. Tens of thousands of documents have been produced. Additional efforts have been spent resisting the federal government's procedural motion to force NTI to include the GN in the lawsuit. Both NTI and the GN have successfully resisted this effort. A copy of the court ruling is attached (see Appendix A). In addition, the federal government's appeal of this decision was unsuccessful.

In 2008-2010, the problems experienced by NTI flowing from the shortcoming of the federal government's implementation of land claims agreements and other modern treaties were also experienced by other aboriginal peoples with such agreements. NTI continued to work with its partners in the Land Claims Agreements Coalition to bring about reform of the federal government's policies. The Coalition expressed its views at the international as well as the national level. NTI and other Coalition members welcomed the very thorough and creative report of the Standing Senate Committee on Aboriginal Peoples on land claims implementation that was released in May 2008 entitled: Honouring the Spirit of Modern Treaties: Closing the Loopholes. Unfortunately, the federal government did not accept the recommendations made in the Senate Report. Attached, as Appendix B and Appendix C, are copies of relevant materials developed by NTI and its Land Claims Agreements Coalition partners.

Appendix A: Decision, Nunavut Court of Justice, 2008-04-11

Nunavut Court of Justice

Citation: NTI v. Canada (A.G.), 2008 NUCJ 11

Date of Judgment (YMD) 2008-04-11
Docket Number: 08-06-713-CVC
Registry: Iqaluit

Applicant: Attorney General of Canada

-and-

Respondent: The Inuit of Nunavut as Represented By Nunavut Tunngavik Incorporated

Before: The Honourable Mr. Justice E. Johnson

Counsel (Applicant): Michele E. Annich
Counsel (Respondent)
Nunavut Tunngavik: Dougald E. Brown
Counsel (Respondent)
Government of Nunavut: Lorraine Y. Land

Location Heard: Iqaluit, Nunavut
Date Heard: January 25, 2008
Matters: Nunavut Rules of Court, R.N.W.T. R-010-96, rr. 56,
58(3), 142(1), as duplicated for Nunavut by s. 29 of the
Nunavut Act, S.C. 1993, c. 28

Reasons for Judgement

I. Introduction

[1] On December 7, 2006 the respondent Nunavut Tunngavik Incorporated (NTI) filed a Statement of Claim alleging breaches of the Nunavut Land Claim Agreement (NLCA) by the applicant Attorney General of Canada (Canada).

[2] In this application, Canada requests an order adding the Commissioner of Nunavut, as represented by the Government of Nunavut, and the Government of Nunavut (collectively known as GN) as defendants in this action.

[3] The respondents NTI and GN oppose the application.

II. Facts

[4] One of the issues raised in this application is the constitutional status of the territories. In order to address this matter, some background is necessary on the evolution of government in the Northwest Territories (NWT) to 1999, when Nunavut came into existence.

[5] Several sources were consulted to compile the historical overview that follows:

Canada, Natural Resources Canada, "Territorial Evolution, 1870", online: The Atlas of Canada, <http://atlas.nrcan.gc.ca/site/english/maps/historical/territorialevolution/1870/1>.

Creery, Ian, "The Inuit (Eskimo) of Canada" in Minority Rights Group, ed. Polar Peoples: Self-determination and development (London: Minority Rights Publication, 1994) 105 at 121-123.

Dickerson, Mark O., Whose North? Political Change, Political Development, and Self-Government in the Northwest Territories (Vancouver: UBC Press, 1992) at 85-90.

Kusugak, Jose, "The Tide Has Shifted: Nunavut Works for Us, and It Offers a Lesson to the Broader Global Community" in Nunavut: Inuit Regain Control of Their Land and Their Lives, IWGIA Document No. 102 (Copenhagen: IWGIA, 2000) at 53.

Michael, Patrick L., "Yukon: Parliamentary tradition in a small legislature" in Gary Levy & Graham White, eds., Provincial and Territorial Legislatures in Canada (Toronto: University of Toronto Press, 1989) 189 at 192-193.

O'Keefe, Kevin, "Northwest Territories: Accommodating the Future" in Gary Levy & Graham White, eds., Provincial and Territorial Legislatures in Canada (Toronto: University of Toronto Press, 1989) at 207-216.

[6] In 1670, the British Crown gave a monopoly of the fur trade to the Hudson's Bay Company, headed by Prince Rupert. Along with the trade monopoly was the right to govern the land with rivers draining into the Hudson Bay. This land became known as Rupert's Land. Further exploration and trade led to the region being divided into two parts: Rupert's Land, which included the lands draining into the Hudson's Bay, and the North-Western Territory, which included the lands draining into the Arctic and Pacific oceans.

[7] The area then known as Rupert's Land and the North-Western Territory covered over two million square miles and included what is now the Yukon, the NWT, parts of Nunavut (including the southwest portion of Baffin Island), Alberta, Saskatchewan, most of Manitoba, and the northern parts of Quebec and Ontario.

[8] The British North America Act, 1867, now referred to as the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, anticipated and made provisions, in s. 146, for the admission of Rupert's Land and the North-Western Territory into the Union. A year later, on July 31, 1868, the Rupert's Land Act, 1868 (U.K.), 31-32 Vict., c. 105, authorized the Crown to accept the surrender of Rupert's Land and to approve its admission into the Dominion of Canada. On June 23, 1870, an Order in Council of the British Parliament officially admitted Rupert's Land and the North-Western Territory to the Dominion of Canada. Ten years later, on July 3, 1880, Britain transferred its rights to the Arctic islands to Canada.

[9] The first form of government was established in 1869 with passage of the Temporary Government of Rupert's Land Act, S.C. 1869, c. 3. It was replaced with the North-West Territories Act, S.C. 1875, c. 49, which authorized a lieutenant-governor and appointed council, and included provisions for the gradual replacement of appointed councilors with elected representatives.

[10] In 1888, the Assembly contemplated by the North-West Territories Act became a reality as the first fully elected Legislative Assembly came to power.

[11] In 1897, an Executive Council was formed that gave the NWT close to the full responsible government that evolved in the colonies of Nova Scotia, New Brunswick and Upper and Lower Canada before Confederation in 1867. The Legislative Assembly was given all of the powers of the provinces under s. 92 of the Constitution Act, 1867. However, unlike the provinces whose powers were entrenched, its powers under the North-West Territories Act were subject to amendment by Parliament. Canada could, within one year, disallow any legislation passed by the Assembly. There were also limitations on the power to borrow money and, most importantly, Canada retained control over revenues from natural resources.

[12] From 1898 to 1905, the boundaries of the NWT began to change. In 1898, as a response to the population increase that resulted from the Klondike Gold Rush, the Yukon Territory was created. In 1905, Alberta and Saskatchewan were carved out of the NWT. By 1908, the Yukon government had evolved to a commissioner with six elected councilors, but was short lived because of the decline of the gold economy. After the first world war, the council was reduced from six to three because of declining population and in 1932, the Office of Commissioner was abolished. The residual NWT reverted back to the status of a colony run from Ottawa, as it had been in the early 1870s and did not see elected representatives again until the 1950s.

[13] During the early 1960s the issue of dividing the NWT was first raised by non-aboriginal residents in the west of the territory who believed that the territory stood a better change of becoming a province if the eastern portion was removed. A bill was introduced in Parliament in 1962 to divide the NWT in two, but because of a federal election in 1963, the bill never passed. A similar bill was introduced in 1964, but did not pass either.

[14] In 1965, inspired by Denmark's Royal Commission on Greenland, Canada established the Advisory Commission on the Development of the Government of the NWT, also known as the Carrothers Commission after its chairman, A.W.R. Carrothers. This Commission was tasked with recommending a new structure for government in the NWT. The Carrothers Report was released in 1966 and recommended: keeping the territory unified, moving the seat of government from Ottawa to Yellowknife, devolving executive authority to the Commissioner, transferring administrative function from the central government to the territorial government, and creating a territorial civil service.

[15] In 1967, Yellowknife was named the new capital of the NWT, and later that year Ottawa began its plans to transfer some of the territorial administration of the Department of Indian Affairs and Northern Development (DIAND) to the new capital. From 1967 to 1970, responsibility for major services such as education, welfare, municipal services and the development of local government was transferred from Ottawa to Yellowknife. At the same time, Canada expanded its involvement in developing non-renewable resources in the North.

[16] The Council of the Northwest Territories was fully elected for the first time in 1975. The Council had 15 members and was soon called the "Legislative Assembly". Three members of the Assembly were chosen to sit on the Executive Council, which until that time had consisted solely of appointees.

[17] In 1979, an amendment to the Northwest Territories Act provided for between 15 and 25 elected members. In October 1979, the Northwest Territories held its first election under the Territorial Elections Ordinance, instead of the Canada Elections Act. The majority of the 22 members elected were aboriginal.

[18] On October 9, 1979, Jake Epp, the new Minister of DIAND, responded to continuing pressure from Yukon government leader Chris Pearson by further revising the instructions to Commissioner Ione Christensen to take the final step to responsible government. He instructed her to accept the advice of the Council in all matters in the Act which are delegated to the Commisioner in Council. By giving these instructions, the Minister transformed the Commissioner into the role of a de facto lieutenant-governor for the Yukon. The letter authorized the government leader to refer to himself as "Premier" and his cabinet members as "Ministers". Cabinet documents were changed from Commissioner's Orders and Records of Recommendation to Orders-in-Council and Records of Decision, to reflect the fact that cabinet had replaced the Commissioner as the ultimate decision-maker in the territory.

[19] Similar letters were sent to the Commissioner of the Northwest Territories and, in 1979 the Commissioner ceased sitting in the Assembly during formal session. In 1984, the evolution to a full territorial responsible government known as the Government of the Northwest Territories (GNWT) was completed when the Commissioner removed himself from the Committee of the Whole and gave up responsibility for the civil service to an elected minister chosen by the Legislative Assembly.

[20] As mentioned previously, the proposal for dividing the NWT first arose in 1962, when leaders in the western NWT were pushing for provincehood, and felt that the eastern Arctic was holding them back. Nearly 15 years later, the idea for dividing the NWT was brought up again, this time by Inuit leaders in the eastern Arctic. The Inuit proposed a division of the territory along the treeline with a new government in the eastern territory that would be called Nunavut, or "our land," in Inuktitut. Specifically, the Inuit sought a settlement of a comprehensive land claim Footnote 1 that would set out and enshrine Inuit use of their lands. It would also compensate them for past and future use of Inuit lands by non-Inuit and would create a new government in the eastern and central Arctic, with the capacity to protect and foster Inuit language, culture and social well-being. The Inuit Tapirisat of Canada (ITC) embarked on a campaign to publicize this proposal for a comprehensive land claim.

[21] Canada responded to the proposed creation of Nunavut by reiterating that political development was not a subject that could be included in land claims negotiations.

[22] In 1977, Canada appointed C.M. Drury as Special Representative for Constitutional Development in the Northwest Territories. Drury's primary objective was to assess the constitutional process since the Carrothers Report and suggest change as needed.

[23] Drury released his controversial report, Constitutional Development in the Northwest Territories, in 1980. In it, he came out against the creation of Nunavut, and instead focused on the need to strengthen local governments. In his view, strengthening local councils and committees would address the sense of powerlessness that was pervading the territory and the sense that the government was being administered from afar.

[24] The ITC insisted that they wanted a land claim and were not willing to compromise on that goal. In 1979, the NWT established a Unity Committee to evaluate the depth of feeling for division of the NWT into two territories. The Unity Committee found that the evidence was in favour of the split. A plebiscite was held and 60% of those in the NWT voted in favour. In 1982, Canada announced that, subject to certain conditions, the NWT would be split.

[25] The Tungavik Federation of Nunavut (TFN) was established to negotiate the Inuit land claim. The Inuit made it clear that they wanted a new territory called Nunavut to be created. They were also pressing for greater responsibility in land and offshore management, and a share of Canada's royalties on oil, gas and mineral production. The Inuit proposed provincial-type responsibilities in areas of social policy, health, housing and labour. A critical element in the Inuit position was their willingness to accept a "public government" rather than "aboriginal self-government."

[26] In 1989, after many years of negotiation, TFN leaders signed An Agreement-In-Principle Between the Inuit of the Nunavut Settlement Area and Her Majesty in Right of Canada for a land claim in the eastern Arctic. The Inuit surrendered on the issue of extinguishment, but insisted on signing a political accord committing Canada and the GNWT to the creation of Nunavut.

[27] On July 9, 1992, Canada and the GNWT entered into a Memorandum of Understanding establishing a framework for the implementation and funding of anticipated land claims agreements with the Gwich'in, Sahtu Dene and Metis, and the TFN.

[28] On May 25, 1993, the Inuit then residing to the east of the tree line of the NWT entered into the Nunavut Land Claims Agreement with Canada. The NLCA identified the geographical area of the NWT inhabited by these Inuit as the Nunavut Settlement Area (NSA). On April 1, 1999, this area became the Territory of Nunavut, pursuant to the Nunavut Act, S.C. 1993, c. 28.

[29] TFN was the signatory on behalf of the Inuit of the NSA. NTI in the current action is an incorporated organization that succeeded the TFN, and currently represents Inuit under the NLCA.

[30] The signatories on behalf of Canada were the Prime Minister and the Minister of DIAND.

[31] The NLCA was also signed by the Government Leader and the Minister of Renewable Resources of the GNWT.

[32] The Inuit ratified the NLCA. The Government of Canada also ratified the NLCA with the enactment of the Nunavut Land Claims Agreement Act, S.C. 1993, c. 29.

[33] On the same day as the execution of the NLCA, Canada, the GNWT and TFN entered into A Contract Relating To The Implementation of the Nunavut Final Agreement (Implementation Agreement), identifying their respective roles and responsibilities in the implementation of the NLCA.

[34] On October 19, 1993, Canada entered into an agreement with the GNWT setting out the funding that would be provided by Canada to the GNWT to enable it to fulfill its obligations under the Implementation Agreement for the period 1993 to 2002.

[35] Upon the expiry of the funding agreement with the GNWT on March 31, 2002, Canada entered into new funding agreements with the GN that continue to the present date.

[36] The Amended Statement of Claim (ASOC) alleges 16 breaches of the NLCA by Canada, including inadequate funding and the failure to implement a number of activities, such as Inuit employment and training programs.

[37] The ASOC also alleges 13 breaches of the fiduciary obligations of the Crown.

[38] Canada filed a Statement of Defence on March 30, 2007, and the Notice for Particulars on April 25, 2007.

[39] NTI filed a Reply and Joinder of Issue on April 27, 2007, and Particulars on June 21, 2007.

III. Law
A. General principles on joinder of defendants

[40] The Nunavut Rules of Court, R.N.W.T. R-010-96, as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28 (Nunavut Rules), with respect to the joinder of parties reflect the same broad principles that exist in other Canadian common law jurisdictions. The general principle set out in rule 56 is one of "permissive joinder" that entitles the plaintiff to choose whom to sue and what claims to assert in an action.

[41] Rule 58(6)(a) authorizes a person to be voluntarily added where that person shows "an interest in the subject-matter or result of the action".

[42] Where an existing party to the action seeks to force the plaintiff to add a person as a party, rule 58(3)(b) provides for what is known as compulsory joinder:

58. (3)(b) … a person be added who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court to adjudicate on and settle all the questions involved in the cause or matter or to protect the rights or interests of any person or class of persons interested under the plaintiff or defendant.

[43] As noted in Holmested and Watson: Ontario Civil Procedure (Holmested and Watson), compulsory joinder of "necessary parties" under this rule is a narrow exception to the general rule of permissive joinder where a plaintiff is permitted to decide whom to sue and what claims to assert in an action.

[44] The analysis to determine the necessary parties was described by Devlin J. in Amon v. Raphael Tuck & Sons Ltd., [1956] 1 All E.R. 273, [1956] 1 Q.B. 357 (Q.B.D.) (Amon) at 286-287:

The person to be joined must be someone whose presence is necessary as a party. What makes a person a necessary party? It is not, of course, merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance and is afraid that the existing parties may not advance them adequately… The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. [Emphasis in original]

[45] The Alberta equivalent of rule 58(3)(b) was considered in Amoco Canada Petroleum Co. v. Alberta & Southern Gas Co., 1993 CarswellAlta 32, [1993] A.J. No. 317 (Q.B.) (Amoco). Virtue J. describes the test as follows:

[13] … My understanding of the test enunciated by Devlin, J., which, for the reasons set out below, I respectfully adopt, is this: Would the order for which the Plaintiff was asking directly affect the intervenor, not in his commercial interests, but in the enjoyment of his legal rights. And secondly, the only reason which makes it necessary that a party be added is that the question to be settled cannot be effectually and completely settled unless he is a party. Unless these tests are met the Court has no jurisdiction to add a party within the rule.

[46] The Amoco test was approved by the Alberta Court of Appeal in CPCS Ltd. v. Western Industrial Clay Products Ltd., (1995), 31 Alta L.R. (3d) 257, [1995] A.J. No. 620, 1995 CarswellAlta 247 (CPCS Ltd.). However, that case is of limited assistance because it involved a voluntary request by a non-party insurer to be added as a defendant to defend an interlocutory motion that exposed it to potential liability. The Court noted that the insurer also satisfied the tests for compulsory joinder.

[47] Similarly, in Kispiox Band of Indians v. British Columbia, [1994] C.N.L.R. 47, 25 C.P.C. (3d) 121 (B.C.S.C.) (Kispiox) and Boothroyd Indian Band v. British Columbia (A.G.), [1994] B.C.J. No. 2247, 1994 CarswellBC 2007 (S.C.) (Boothroyd), the Government of Canada did not object to being added as a defendant because the issues were based on the history of Crown land ownership. Therefore the issue was not "compulsory joinder" as is the case in Peigan Indian Band v. Alberta, 1998 ABQB 850 (CanLII), 1998 ABQB 850, 231 A.R. 201, [1998] A.J. No. 1108 (Peigan).

[48] In Peigan, the plaintiff Band sued the Government of Alberta, who then applied to add the Government of Canada as a defendant. The Band opposed the application and relied on Amon to argue that it had no cause of action against Canada and that Canada was therefore not a necessary party. Moore J. denied Alberta's application, distinguishing Kispiox and Boothroyd, to conclude there was no issue between the Peigan Indian Band and Canada:

[28] In my view, these two cases are distinguishable because there was an issue in both over Canada's interest in the precise matter being disputed. Here, there is no such issue. Either Alberta received all of the relevant interests, including the disputed interests, in the transfer from Canada (which leaves Canada out of the equation), or Alberta received all of the relevant interests, except any of the disputed interests which belong to the Band (again, leaving Canada out of the equation).

[49] The commentary in Holmested and Watson was considered in Brett Young Seeds Ltd. v. Assié Industries Ltd., 2002 MBQB 57 (CanLII), 2002 MBQB 57, [2002] M.J. No. 58. In that case, the plaintiff sought to add a non-party as a defendant and filed an affidavit that provided evidence of the nature of the claim asserted rather than the proposed amended statement of claim. Beard J. stated that although it was not a prerequisite for the plaintiff to have a claim against the proposed defendant, he should still examine the affidavit evidence. After the examination of the affidavit he concluded that there was no cause of action against the proposed defendant and denied the application.

[50] In Robson Bulldozing Ltd. v. Royal Bank of Canada 1985 CanLII 432 (BC S.C.), (1985), 62 B.C.L.R. 267, [1985] B.C.J. No. 2775 (S.C.) (Robson), McLaughlin J. also concluded that some evidence of a cause of action was essential to satisfying the British Columbia equivalent to Nunavut Rules rule 58(3)(b). She stated:

[7] The power conferred upon the court to join a party is discretionary, to be exercised upon the proper evidence being produced … The discretion should be generously exercised so as to enable effective adjudication upon all matters in dispute without delay, inconvenience and expense of separate actions and trials … However, the applicant must depose to facts sufficient to persuade the court of the applicability of the portion of R. 15(5) relied upon … In particular, there must be some evidence indicating a cause of action … [Citations omitted]

[51] Rule 15(5)(a)(ii) of the B.C. Supreme Court Rules, B.C. Reg. 221-90, states:

… (5)(a) At any stage of a proceeding, the court on application by any person may … (ii) order that a person, who ought to have been joined as a party or whose participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated upon, be added or substituted as a party…

[52] It is very close to Nunavut Rules rule 58(3)(b), which states:

…(3) The Court may, on the application of a party of its own motion, order, with or without terms, that … (b) a person be added who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court to adjudicate on and settle all the questions involved in the cause or matter or to protect the rights or interests of any person or class of persons interested under the plaintiff or defendant.

[53] However, rule 15(5) of the B.C. Supreme Court Rules has an additional subrule that states:

(iii) order that a person be added as a party where there may exist, between the person and any party to the proceeding, a question or issue relating to or connected (A) with any relief claimed in the proceeding, or (B) with the subject matter of the proceeding, which in the opinion of the court it would be just and convenient to determine as between the person and that party.

[54] McLaughlin J. concluded in Robson that the discretion conferred by both parts of B.C. rule 15(5) were subject to the condition that a cause of action must be made out:

[8] In the case at bar, the first question is whether there is a possible cause of action between the proposed plaintiffs and the defendants. Unless a cause of action is suggested, it cannot be said that they ought to have been joined as parties, that their participation is necessary to ensure effectual adjudication, or that there is an issue between them which it is just and convenient be tried with the others: R. 15(5). Only if a cause of action is made out, do the conditions set out under R. 15(5) become relevant.

[55] In Delgamuukw v. British Columbia, 1986 CarswellBC 1019 (S.C.), [1986] B.C.W.L.D. 1185, aff'd 1986 CarswellBC 1166, [1986] B.C.W.L.D. 3369, the plaintiff sued the Province of British Columbia who then sought to add Canada as a defendant. In granting the application, Trainor J. stated that the discretion to add a defendant should be generously exercised upon a full consideration of all proper evidence in an attempt to achieve full and effective disposition or adjudication of matters in dispute without delay, inconvenience and the expense of separate trials. However, Canada sought to be added as an intervenor and the plaintiff had prepared and was in the process of serving a notice on Canada under the Constitutional Question Act. Accordingly, Canada was going to be involved in the action and the only question was whether it should be made a full party defendant. Since the legal issues involved the broad issues of ownership of Crown lands arising from the Royal Proclamation of 1763, the Terms of Union of British Columbia 1871, and the Constitution Act, 1867 and 1982, Trainor J. had no difficulty in finding that Canada ought to added as a defendant and that it was also just and convenient to do so.

B. General principles of third party notice

[56] Rule 142 of the Nunavut Rules permits a defendant to serve a third party notice on both parties and non-parties to the action:

142. (1) A defendant may serve a third party notice on any person, whether or not the person is already a party to the action, where the defendant claims against that person that (a) he or she is entitled to contribution or indemnity; (b) he or she is entitled to any relief or remedy that is related to or connected with the original subject matter of the action and that is substantially the same as some relief or remedy claimed by the plaintiff; or (c) any question or issue relating to or connected with the original subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined, not only as between the plaintiff and the defendant, but also as between the plaintiff and the defendant and the third party, or between any of them.

[57] Nunavut Rules rule 142 is much broader than the equivalent in Alberta. Rule 66 of the Alberta Rules of Court, Reg. 390/1968, states:

66(1) When a defendant claims against any person (whether or not that person is already a party to the action) that the person is or may be liable to him for all or part of the plaintiff's claim against him he may serve a third party notice.

[58] Nunavut Rules rule 142 is closer to rule 29.01 in Manitoba and Ontario.

[59] Court of Queen's Bench Rules, Man. Reg. 553/88, states:

29.01 A defendant may commence a third party claim against any person who is not a party to the action and who (a) is or may be liable to the defendant for all or part of the plaintiff's claim; (b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of a transaction or occurrence or series of transactions or occurrences involved in or related to the main action; or (c) should be bound by the determination of an issue arising between the plaintiff and the defendant.

[60] In Ontario, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states:

29.01 A defendant may commence a third party claim against any person who is not a party to the action and who, (a) is or may be liable to the defendant for all or part of the plaintiff's claim; (b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of, (i) a transaction or occurrence or series of transactions or occurrences involved in the main action, or (ii) a related transaction or occurrence or series of transactions or occurrences; or (c) should be bound by the determination of an issue arising between the plaintiff and the defendant.

[61] As noted by Blair J.A. in Freudmann-Cohen v. Tran, 2004 CanLII 34765 (ON C.A.), 2004 CanLII 34765 (ON C.A.), [2004] O.J. No. 1699, the old Ontario rule that was similar to Alberta rule 66 changed significantly in 1985 to broaden the use of a third party notice:

[22] As several authorities have noted, the amendments effected by rule 29.01 were intended to make substantial changes in the law; claims which could not previously have been asserted under the former Rule 167 may well be allowed under rule 29 … In a notation to rule 29.01, the authors of Holmested and Watson, Ontario Civil Procedure, 2003, -- Volume 1, state, at 604:

The significance of this change should not be underestimated. It changes the very nature of a third party claim. No longer is it limited to situations designed to obtain "a flow through of recovery" to D from the third party because of the judgment that the plaintiff may obtain against the defendant. Instead, it is now a general joinder device by which a defendant may engraft on to the main action any "related claim" he or she may have against non-parties, subject to the severance power given to the court by rule 29.09.

[23] The purpose of the new rule was to simplify third party procedure and to avoid multiplicity of proceedings … This promotes efficiency and expedition in litigation, lowers costs, and enhances accessibility to the system. As E. Macdonald J. noted, in Morey [Morey v. Knipple, [1994] O.J. No. 2181, 50 A.C.W.S. (3d) 570 (Gen. Div.)] at para. 26, one of "the policies underlying the amendment to the rules, as reflected in Rule 29 is the objective of having the rights of all parties involved in the same factual situation determined without a multiplicity of proceedings [Citations omitted]

[62] Similar comments were made by the Manitoba Court of Appeal in Manitoba Development Corp. v. Arthur D. Little Inc., reflex, [1991] M.J. No. 410, 80 D.L.R. (4th) 459, where the same comment from Holmested and Watson was approved:

Third party procedure, first introduced in England in 1873, was at the outset "very wide in its terms", but in 1883 was confined in its application to claims for contribution and indemnity … Manitoba Queen's Bench Rules similarly limited its availability. The 1939 Rule provided: 135. Where a defendant is or claims to be entitled to receive contribution from any other person, whether already a party to the same action or not, who is, or would if sued have been, liable in respect to the same damages, whether as a joint tortfeasor or otherwise, or where a defendant is, or claims to be, entitled to contribution from, or to be indemnified by, any other person, whether already a party to the same action or not, he may serve a third party notice.

The amended rule, as it was before its repeal in 1989, still limited the availability of the proceedings. It read: 135 Where a defendant claims to be entitled to contribution or indemnity or to any relief relating to the original subject of the action from any other person (hereinafter called "the third party") he may deliver, or be directed by the court to deliver, a third party notice stating the nature and grounds of his claim. [Citations omitted]

[63] In Metz v. Breland, 1990 CarswellAlta 178, reflex, [1991] 1 W.W.R. 269 (C.A.), Coté J.A. held that a third party notice could not be used where the party issuing the third party notice seeks to enforce a duty which the third party owes to the plaintiff. However, these comments are of limited value in interpreting rule 142 of the Nunavut Rules because the Alberta rule is much more restrictive than the corresponding rule in Nunavut, Ontario and Manitoba.

C. Compulsory joinder as last resort

[64] In considering the use of compulsory joinder, a court should weigh the negative and positive consequences. The availability of other options such as third party proceedings that will accomplish the same objective for lower costs could result in a dismissal of the application. In Swearengen v. Bowater Canadian Forest Products Inc., 2007 CanLII 46252 (ON S.C.), 2007 CanLII 46252 (ON S.C.), [2007] O.J. No. 4251, the compulsory addition of a new defendant would have resulted in an extra trial with significant cost consequences. Kershman J. refused to add a defendant because third party proceedings might have been available.

[65] As held in Slate Falls Nation v. Canada, 2007 CanLII 1928 (ON S.C.), 2007 CanLII 1928 (ON S.C.), [2007] O.J. No. 348 (Slate Falls), where a third party claim is available, a defendant who seeks compulsory joinder should do so by adding the non-party as a third party.

IV. Arguments and Analysis

[66] Canada organizes its arguments to correspond with a reframed Amoco test. The first argument elaborates on whether the questions to be settled between NTI and Canada may be effectually and completely settled without the GN being added as a defendant. The second argument discusses whether the relief sought by NTI directly affects the GN in the enjoyment of its legal rights rather than its commercial interests.

[67] Prior to addressing these issues, some review of the constitutional status of the GNWT and GN is necessary to assess whether they were parties to the NLCA.

A. Constitutional status of GNWT and GN

[68] In advancing the first argument, Canada discusses the constitutional status of the GNWT and the GN compared to the provinces, referring the Court to Morin v. Northwest Territories (Commissioner), 1999 CanLII 6802 (NWT S.C.), 1999 CanLII 6802 (NWT S.C.), [1999] N.W.T.J. No.5, 29 C.P.C. (4th) 362 (Morin), Northwest Territories v. Public Service Alliance of Canada, 2001 FCA 162 (CanLII), 2001 FCA 162, [2001] 3 F.C. 566, 40 C.H.R.R. 21 (P.S.A.C. appeal), and Fédération Franco-ténoise v. Canada, 2001 FCA 220 (CanLII), 2001 FCA 220, [2001] F.C. 341 (Franco-ténoise).

[69] Canada argues that these cases establish that the GNWT and its successor the GN are separate and independent from Canada, with the full capacity to enter contracts and be sued separate and apart from Canada. This separate and independent status was recognized in the three-party NLCA with GNWT as a signatory. The rights and obligations of the GNWT passed to its successor the GN, pursuant to ss. 4(2) and 4(3) of the Nunavut Land Claims Agreement Act, S.C. 1993, c. 29.

[70] While not disputing the separate status of the GNWT, NTI argues that the GNWT executed the agreement to "manifest the assent of Her Majesty the Queen in Right of Canada" and not as a separate party to the NLCA.

[71] The GN takes a similar position indicating that the "signatures" page reflects the constitutional reality that Canada is the only Crown with constitutional authority to negotiate and settle land claims in the territories. There is no Crown in right of Northwest Territories or Nunavut, and therefore neither government had the legal capacity to be a party to the land claim agreement.

[72] As noted in the historical evolution of territorial government discussed previously, the executive branch of the Government of Canada extended the principle of gradual responsible government to the territory obtained from Great Britain between 1868 and 1880. The initial form of government was patterned on the colonial governor and council appointed by Great Britain. This form of government gradually evolved in the pre-confederation colonies into a responsible government model through pressure applied by the residents of the colonies, including rebellions in Upper and Lower Canada. Great Britain, fearing another American Revolution, slowly transferred executive authority from the appointed governor and council to an elected Assembly.

[73] When Alberta and Saskatchewan were created in 1905, the form of government in the residual NWT reverted to an appointed Commissioner and council that exercised executive and legislative power subject to instruction from the federal minister responsible for the territories. This continued until 1975, when all members of the council were elected. Between 1975 and 1984, the Commissioner reverted to the role of a lieutenant-governor and executive power transferred to an elected executive council.

[74] As noted by Vertes J. in Morin at 16:

Since 1975 the structure of territorial government has come more and more to resemble that of a provincial government. In 1979 the federal Minister of Indian Affairs and Northern Development issued instructions to the Commissioner of the Yukon Territory which had the effect of achieving responsible government. The Commissioner withdrew from the cabinet and the Assembly; all cabinet positions were to be filled by the Assembly from among elected members; and the Commissioner was to accept the advice of cabinet in all matters. Thus the Commissioner became once again a "lieutenant-governor" type of figure while the government leader selected from the Assembly became a "premier". These terms were soon applied as well in the Northwest Territories.

[75] The method chosen by Parliament to gradually devolve executive authority was the use of letters of instruction from the minister responsible for the Northwest Territories and occasional amendments to the Northwest Territories Act. In tandem with the instructions to the Commissioner, the Legislative Assembly of the Northwest Territories passed the Legislative Assembly and Executive Council Act, R.S.N.W.T. 1988, c. L-5, that created a territorial cabinet and more detailed provisions for the operation of the Assembly.

[76] The last letter of instruction was issued to the Commissioner of the Northwest Territories on March 29, 2000. It stated, in part, as set out in Franco-ténoise:

[22]… The Executive Council, established by Section 9 of the Act, is the paramount institution for the exercise of executive authority in the Government of the Northwest Territories. Consistent with Canadian constitutional conventions, you shall act by and with the advice of your Premier and the Executive Council in all those manners [sic] relating to territorial policy and administrative decisions which fall within the competence of your office. There are only a few instances where your Premier alone has the capacity to provide direction or where the prerogatives you possess, similar to those held by a provincial Lieutenant Governor, may be of relevance.

[77] The Morin judgement clearly establishes that the Legislative Assembly was an entity that is separate and distinct from the Parliament of Canada that had created it and sovereign within its sphere of powers. However, what is still unclear is the status of the Executive Council of the GNWT. Was it still part of the federal cabinet or had it evolved to some other independent status similar to the Legislative Assembly? The answer to this question emerged in the judgements of the Federal Court of Canada in Franco-ténoise and Northwest Territories v. Public Service Alliance of Canada, 1999 CanLII 9202 (F.C.), [1999] F.C.J. No. 1970, 183 D.L.R. (4th) 175 (P.S.A.C. trial).

[78] In P.S.A.C. trial, the Canadian Human Rights Commission challenged the status of the GNWT to apply for judicial review after the GNWT had been a party in the pay equity litigation for ten years. The GNWT had vigorously defended the pay equity claim and was the applicant in eight prior judgements of the Federal Court where there had been no objection to its status. Nevertheless, the Commission claimed that the GNWT was part of the Crown in right of Canada and therefore lacked the requisite standing to challenge a federal act. The motions judge, Dubé J., held that the GNWT was part of the federal Crown and did not have the status to apply for judicial review without the consent of the federal cabinet.

[79] In allowing the appeal, the Federal Court of Appeal in P.S.A.C. appeal, held that the Executive Council of the GNWT was distinct from the federal cabinet and had the right to defend itself in litigation stating:

[15]…There is no doubt that the appellant has, with respect to the exercise of its statutory powers, standing before the courts to seek recognizance and enforcement of these powers. There is, in my view, also no doubt that the appellant has standing before the courts to defend itself when sued for an alleged abuse or misuse of these powers.

[80] In Franco-ténoise, the Commissioner of the Northwest Territories, the Speaker of the Legislative Assembly and the Languages Commissioner of the Northwest Territories were sued in Federal Court by the plaintiff. The defendants raised a jurisdictional issue, arguing that they were not part of the Crown under s. 17(1), nor a federal board, commission or other tribunal under s. 18 of the Federal Court Act, R.S. 1985, c. F-7. The trial Judge dismissed the argument. However, in allowing the appeal, Décary J.A summarizes the status of the territories as follows:

[38] From this constitutional, legislative and jurisprudential overview, the following conclusions can be drawn:

(a) Constitutionally

[39] Constitutionally, the Territories do not have the same status as provinces. They remain a creature of the federal government, subject in principle to the good will of the Government of Canada. Her Majesty the Queen, in the Territories, is Her Majesty the Queen in right of Canada. Although some legislative and political arrangements may have the appearance of agreements between the Government of Canada and the Government of the Territories, these arrangements cannot convert the Territories into a province: indeed, the Territories cannot gain provincial status without an amendment to that effect to the Canadian Constitution, in accordance with the method provided by the Constitution.

(b) Legislatively

[40] Legislatively, the Parliament of Canada has invested the Territories with the attributes of a genuine responsible government and given this government the plenary executive, legislative and judicial powers that the country's Constitution allowed Parliament to delegate, stopping just short of the plenary powers associated with a sovereign responsible government, those powers being limited by the Constitution to the Government of Canada and the provincial governments.

[41] However, Parliament has reserved to the Governor in Council the ultimate control over the exercise by the Government of the Territories of its legislative power. And Parliament went to some pains to note in its legislation that federal laws applied to the institutions of the Territories failing provision to the contrary.

[42] Although any comparison between territories and municipalities is unfair to the Territories since their status is closer to that of a province than it is to a municipality, it can be said that the Territories are no more the agents of their respective creators than are the municipalities when they administer the territory they have been empowered to manage.

(c) Politically

[43] Politically, the Government of Canada deals with the Territories as if it were dealing with provinces, inasmuch, it seems to me, as this is allowed by the Constitution. The political reality can clarify the juridical issue; however, it cannot falsify it: whatever the political appearances may be, there is not, in law, a "territorial" Crown, or a "territorial" province, or Her Majesty the Queen "in right of the Territories".

[81] The evolution of responsible government continued with passage of a new Yukon Act in 2002 that gave the territory some control over its natural resources and made a major change in its legislative powers. The previous legislation, Yukon Act, R.S.C. 1985, C. Y-2, contained the limitation also found in the Northwest Territories Act and the Nunavut Act:

17. The Commissioner in Council may, subject to this Act and any other Act of Parliament, make ordinances for the government of the Territory in relation to the following classes of subjects …

[82] Instead, s. 18 of the new legislation, Yukon Act, S.C. 2002, c. 7 states:

18. (1) The Legislature may make laws in relation to the following classes of subjects in respect of Yukon …

[83] This wording is almost identical to the wording used in s. 92 of the Constitution Act, 1867 on the legislative authority of the provinces and removes the automatic supremacy of federal legislation in the territory in cases of conflict. The federal cabinet continues to retain the power to disallow territorial legislation under s. 24(1) of the Yukon Act, 2002 by instructing the Commissioner to withhold consent to territorial legislation. However, as noted in paragraph 52 of Morin, this power is likely redundant by convention.

[84] I conclude from this review of the evolution of government in the Northwest Territories that, at the date of execution of the NLCA, the Executive Council of the GNWT had the same capacity to enter contracts as the cabinet of a province subject to any inherent constitutional limitations flowing from the status of being a territory.

[85] In Nunavut there was instant responsible government shortly after the territory came into existence on April 1, 1999 when the first Executive Council took office after the first election. The GN acquired the same constitutional status as the GNWT, except that in the case of an inconsistency between the NLCA and federal or territorial laws, the NLCA will prevail:

2.12.2 Where there is any inconsistency or conflict between any federal, territorial and local government laws, and the Agreement, the Agreement shall prevail to the extent of the inconsistency or conflict.

B. Was the GNWT a party to the NLCA?

(a) Arguments

[86] Canada relies on the numerous references in the NLCA to "Territorial Government" obligations or shared obligations with Canada, to argue that the GNWT was a party to the NLCA. As foundation for the argument, Canada relies on the GNWT being a signatory to the NLCA, and to the separate implementation and funding contracts. Assuming the correctness of this argument, Canada also argues that the GN as the successor government and a separate signatory to a number of funding agreements also acquired the party status of the GNWT.

[87] Both respondents dispute that the GNWT was a party to the NLCA. They maintain that the GNWT was a signatory as part of the Crown in right of Canada because, as held in Franco-ténoise, Canada is the only Crown in the NWT.

[88] The respondents argue that the GNWT did not have the constitutional authority to enter into the NLCA with the Inuit because it has similar legislative capacity to a province. Even the provinces have no legislative capacity in this area because the Applicant has the exclusive power to legislate under s. 91(24) of the Constitution Act, 1867 in relation to "Indians, and Lands reserved for the Indians". The interpretation of "Indians, and Lands reserved for the Indians" was expanded to include Inuit and Inuit lands in Re Eskimos, [1939] S.C.R. 104, [1939] S.C.J. No. 5. As noted in Delgamuukw v. British Columbia, 1997 CanLII 302 (S.C.C.), [1997] 3 S.C.R. 1010, [1998] 1 C.N.L.R. 14, this legislative jurisdiction encompasses the exclusive power to extinguish aboriginal rights, including aboriginal title through the negotiation and settlement of aboriginal treaties and land claims. Finally, article 2.2.1 of the NLCA provides that it is constitutionally protected under s. 35 of the Constitution Act, 1982:

2.2.1 The Agreement shall be a land claims agreement within the meaning of Section 35 of the Constitution Act, 1982.

[89] The respondents also rely on the introductory words of article 1.1.6 of the NLCA as negating any sense of shared responsibility with the "Territorial Government".

1.1.6 Without diminishing or otherwise altering the responsibilities of Her Majesty The Queen in Right of Canada under the Agreement, where, in the Agreement, it is unclear from the context which Government is to perform a function or where the context indicates that both Governments are to perform a function, without abrogating or derogating from their obligations under the Agreement or altering their respective jurisdictions, the two Governments may designate one of them to perform that function on behalf of the other or both. The DIO shall be given notice of such designation. [Emphasis added]

(b) Analysis

[90] The NLCA is a unique agreement because it combines in a comprehensive land claim agreement a fundamental term committing Canada to create another territorial public government. The land claim process has evolved since Canada reversed its position on the White Paper, 1969 and began the process of negotiating land claims. In 1974 Canada created the Office of Native Claims and began negotiations to settle land claims that continue to this day.

[91] In 1980, Canada appointed the first chief negotiator from outside the public service to assure greater neutrality and access to ministers. In 1986, the Office of Native Claims was abolished and replaced by several specialized units within DIAND. New federal policy papers were published in 1987, 1991 and 1996, and both provincial and territorial governments created their own administrative structures for claims.

[92] The negotiation of aboriginal land claims is without question a federal power. Section 91(24) of the Constitution Act, 1867 grants it authority in relation to "Indians, and Lands reserved for the Indians". The federal authority over "Indians, and Lands reserved for the Indians" extends to Nunavut as a result of the case Re Eskimos. While there may be jurisdictional issues between Canada and the provinces over the extent of this federal power, see R. v. Blais, 2003 SCC 44 (CanLII), 2003 SCC 44, [2003] S.C.R. 236, they are not present in the territories. As held in Franco-ténoise, there is only one Crown in the territories and that is the Crown in right of Canada. There is no Crown in right of Nunavut, Northwest Territories or the Yukon.

[93] The land claims that were settled in the Northwest Territories with the Inuvialuit in 1984, the Gwich'in in 1992 and the Sahtu Dene and Metis in 1994, were strictly two party agreements between Canada and the organizations representing the aboriginal people residing in the land claim area. However, the Umbrella Final Agreement (UFA) signed on May 29, 1993 between Canada, the Government of the Yukon and the Council of Yukon Indians, was a three party framework agreement that set out the terms for final land claim settlements and self-government agreements with each of the Yukon's 14 First Nations. Final agreements with four First Nations were signed later in 1993.

[94] Similarly, the 2003 Tlicho Comprehensive Land Claims and Self-Government Agreement in the NWT added a self-government component to the land claim.

[95] The addition of self-government to these land claim agreements necessitated the inclusion of the respective territorial government as a formal party because the agreements required some delegation of the constitutional powers of the territory to the aboriginal organization.

[96] In contrast, TFN and Canada did not require any delegation of powers by the GNWT because Canada and TFN intended to create a new territory and public government. Canada could exercise its constitutional authority over territorial lands in s. 4 of the Constitution Act, 1871 (U.K.), 34-35 Vict., c. 28, reprinted in R.S.C. 1985, App. II, by amending the Northwest Territories Act and passing the Nunavut Act to create the new territory without any legal or constitutional participation by the GNWT.

[97] However, the cooperation of the GNWT was essential to the creation of Nunavut because of the time lag between the execution of the NLCA and the passage of the legislation that created Nunavut. During this period, the NSA was still part of the Northwest Territories and subject to the legislative and executive authority of the GNWT. Canada and the TFN had to develop rules for the transition period that required the involvement of the GNWT to ensure a smooth transition process was in place when the reins of government were transferred to the GN.

[98] Although most of these rules are found in the implementation and funding agreements, the GNWT is also mentioned in the NLCA. Canada and TFN could have included the GNWT as a formal party, as occurred in the Tlicho land claim agreement, because of the significant transition role to be played by the GNWT. However, in my view TFN and Canada made a deliberate choice not to include the GNWT as a formal party, by entitling the NLCA as an "Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in right of Canada". It is significant that four days after the execution of the NLCA, the Government of the Yukon was included as a formal party to the UFA.

[99] At the same time, the significant non-party role of the GNWT could not be ignored in the NLCA. The compromise was to exclude the GNWT as formal party but have it sign the agreement in the signature section entitled "Her Majesty the Queen in right of Canada".

[100] In furtherance of this intention, the NLCA was structured to recognize the role of the GNWT as a non-party by including articles 4 and 37. The former is a term best described as an agreement to agree to a political accord. It states:

4.1.2 Therefore, Canada and the Territorial Government and Tungavik Federation of Nunavut shall negotiate a political accord to deal with the establishment of Nunavut. The political accord shall establish a precise date for recommending to Parliament legislation necessary to establish the Nunavut Territory and the Nunavut Government, and a transitional process. It is the intention of the Parties that the date shall coincide with recommending ratification legislation to Parliament unless Tungavik Federation of Nunavut agrees otherwise. The political accord shall also provide for the types of powers of the Nunavut Government, certain principles relating to the financing of the Nunavut Government, and the time limits for the coming into existence and operation of the Nunavut Territorial Government. The political accord shall be finalized before the Inuit ratification vote. It is the intention of the Parties to complete the Political Accord by no later than April 1, 1992.

[101] Article 37: "Implementation", provides the broad outline of the transition envisaged by Canada and TFN that required the participation of the GNWT. The details were provided in the Implementation Agreement signed on the same day as the NLCA and the successive funding agreements.

[102] Although the GNWT is included in the article 1.1.1 definition of "Territorial Government", only article 24 contains any detail on the responsibilities of the GNWT. That article commits the Territorial Government to maintain preferential procurement policies in the NSA. Except for some mention of the GNWT in schedules 9-1 and 33-1, all of the other responsibilities of the GNWT come from the Implementation Agreement. The article 1.1.1 definition of "Territorial Government" includes "any successor government or governments, having jurisdiction over all or part of the Nunavut Settlement Area", to bring in the GN when it came into existence.

[103] Canada and the TFN were careful to exclude the Implementation Agreement as a land claim agreement under s. 35 of the Constitution Act,1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. The NLCA states:

37.2.6 The provisions of this Article or of the Implementation Plan identifying the obligations and responsibilities of any Minister, official or agent of the Crown acting on behalf of the Government of Canada or the Territorial Government shall not be interpreted so as to derogate from the obligations of Her Majesty under the Agreement or so as to alter, directly or indirectly, the respective jurisdictions of the Government of Canada and the Territorial Government.

… 37.3.1 Within sixty days of the date of ratification of the Agreement, an Implementation Panel shall be established."

[104] These words clearly indicate an intention by the TFN and Canada to treat the Implementation Agreement as separate but complementary to the NLCA. Accordingly, the inclusion of the GNWT as a party to the Implementation Agreement has little bearing on whether it is a party to the NLCA.

[105] The execution of separate funding agreements with both the GNWT and the GN simply provided the means to achieve the goals of the Implementation Agreement. They similarly have no bearing on whether the GNWT was a party to the NLCA.

[106] To link the NLCA and the Implementation Agreement, the GNWT signed the NLCA under the party described as "Her Majesty the Queen in right of Canada" rather than as separate formal party. It did so as a government separate and apart from Canada to indicate its consent to those parts of the NLCA that required its participation, and not as a party to the NLCA.

[107] Further indication of the intention of the parties is evident in the exclusion of the GNWT from any amendment to the NLCA:

2.13.1 An amendment to the Agreement shall require the consent of the Parties as evidenced by,

(a) in respect of Her Majesty, an order of the Governor in Council, and

(b) in respect of Inuit, a resolution of the Tungavik, except as provided otherwise by its bylaws or Section 35.9.1,

but the jurisdiction of the Legislative Assembly shall not be altered, and the Territorial Government shall not incur any financial obligations, through any amendment without its written consent.

[108] I conclude therefore that GNWT is not a party to the NLCA. It follows therefore that the GN, which was not in existence at the time of the execution of the NLCA, is not a party either.

C. Can the question between NTI and Canada be effectively and completely settled without GN being added as a defendant?

(a) Arguments

(i) Canada

[109] Canada argues that paragraphs 12 (d) through (i), 46 through 58, 12 (k), 60 through 64, 12 (m). 12 (n), 65, 86 (xiii) and (xiv) of the ASOC allege breaches of the NLCA that carry obligations or objectives that are shared between Canada and the GN. These include Inuit employment obligations in article 23, procurement policies in article 24 and Inuit impact benefit agreements in articles 8 and 9.

[110] [As a result of these shared responsibilities, this Court will be required to determine the scope of the responsibility of Canada and the GN under these articles. Canada argues that the Court would be unable to effectively and completely determine the liability of each government for the public services they control unless the GN is added as a defendant.

[111] Canada argues that the issues raised in the ASOC directly relate to the jurisdiction of the GN to legislate with respect to the employment of territorial officers and expenditure of money for territorial purposes. Since any order of this Court may directly impact the jurisdiction of the GN over these legislative areas, the GN must necessarily be added as a party.

[112] Finally, Canada notes that NTI in paragraphs 12 (n)-(o), 66, 71-80 and 86 (a)(xiv)-(xv) of the ASOC took issue with the provision of the implementation funding by Canada to Nunavut. Since NTI was not a party to the funding agreements, the GN must be added as a defendant so that this issue may be properly addressed.

(ii) Respondents

[113] The respondents acknowledge that the GN and other non-signatory parties such as municipalities are bound by the NLCA and have distinct rights and obligations by virtue of s. 4(2) of the Nunavut Land Claims Agreement Act. However, the existence of these public law rights and obligations does not make the GN a proper party to the action unless there is an allegation that those distinct obligations have been breached. Since there are no allegations by NTI against the GN in the ASOC, it follows that the GN is not a proper party in the litigation even though the GN may be financially affected by the litigation.

[114] NTI denies that there are any shared responsibilities between Canada and the GN under the NLCA, relying on the words of the first two sentences of article 1.1.6:

Without diminishing or otherwise altering the responsibilities of Her Majesty The Queen in Right of Canada under the Agreement …

[115] NTI argues that these words make it clear that there was no intention to share responsibility. Furthermore, it is not pleaded in the Applicant's Statement of Defence nor included in the evidence on this motion, that Canada has purported to designate that the GNWT or GN perform its functions under the NLCA.

[116] NTI, relying on Robson, argues that there is no cause of action between itself and the GN, because the GN is not a party to the NLCA. To add the GN as a party in this situation would lead to the absurd situation where the new defendant could immediately move to have the action dismissed. As held in Lecomte v. Bell Telephone Co. of Canada, [1931] O.J. No. 27, 2 D.L.R. 241 (C.A.), there is no jurisdiction to compel a plaintiff to assert new claims against an added defendant.

[117] Both respondents argue that any potential liability of the GN for the alleged breaches of the NLCA is better addressed through the use of the third party rules in the Nunavut Rules.

(b) Analysis

[118] As noted above, neither the GNWT nor the GN were parties to the NLCA. The parties to the agreement were TFN and Canada. The fundamental terms of the NLCA are that the Inuit of the NSA surrendered their aboriginal title to the NSA in consideration of three distinct obligations on the part of Canada. First, the Inuit were to receive monetary compensation for the NSA. Second, the Inuit were to receive title to some land with surface rights only, some land with rights to the minerals below the surface, and some land where they had rights to harvest wildlife and have input into the land use. Third, Canada agreed to take the necessary steps to create the new Territory of Nunavut with a full public government.

[119] In order to satisfy the third obligation, Canada and TFN included article 4.1.2, committing Canada to take the necessary steps to ensure that the Territory of Nunavut was created with full public government. The passage of the Nunavut Act and the Nunavut Land Claims Agreement Act accomplished this objective. The participation of the GNWT was necessary to ensure the orderly transfer of the administration of public government in the NSA before April 1, 1999. It also required the participation of an interim commissioner who was authorized to enter into agreements but was required to act on written instructions issued by the Minister of DIAND. Finally, after the Executive Council of the GN assumed executive power, the GN had a role to play as the GNWT slowly ended its involvement by 2002.

[120] The exact role that each participant was to play in the transitional period was unclear at the time of the execution of the NLCA. As a result, article 1.1.6 provided the flexibility for the different functions and responsibilities described to be delegated back and forth among the different participants as would best accomplish the objectives. One purpose for the definition of "Government" in article 1.1.1 was to facilitate the flexibility required by article 1.1.6. However, it appears this article was never used because it was not pleaded in the Statement of Defence.

[121] The Applicant argues that the definition of "Government" was also necessary because the wording of articles 8, 9, 23 and 24 envisage a joint obligation between Canada and the GN. In describing these obligations, the drafters of the NLCA used the word "Government" instead of "Canada" or "Territorial Government".

[122] Article 8 requires the negotiation of Inuit impact benefit agreements (IIBAs) for the existing federal parks known as Auyuittuq and Ellesmere and any new parks that Canada or the GN might establish in the NSA. Canada was required to negotiate IIBAs for Auyuittuq and Ellesmere within two years of the execution of the agreement. The government that established a new park was obligated to negotiate an IIBA. Article 8.4.8 obligates "Government" to give preference to Inuit in the awarding of contracts for the establishment and operation of any parks in the NSA.

[123] Article 9 requires "Government" to conduct studies in consultation with Inuit to determine the need for new legislation or amendments to existing legislation to designate and manage conservation areas in terrestrial and marine environments in the NSA.

[124] The objective of article 23 was to increase Inuit participation in government employment in the NSA to a representative level. The article recognizes that the achievement of this objective would require initiatives by Inuit and by "Government". "Government Employment" is defined to include both the federal and territorial public service and "representative level" is defined as a level of Inuit employment within "Government" reflecting the ratio of Inuit to the total population in the NSA.

[125] I am satisfied that these articles and the definition of "Government" in article 1.1.1 could support the argument of Canada that there are joint responsibilities for both Canada and the GN.

[126] Canada argues that because of this potential joint liability, the Court will be unable to effectually and completely determine the liability of each government for the public services they control unless the GN is added as a defendant.

[127] Canada proposes that the Court add the GN as a defendant and direct that the respondent NTI amend its pleadings by substituting the word "Defendants" in place of the word "Crown" in all of the relevant paragraphs of the ASOC.

[128] The jurisprudence discussed above is clear that this type of order should only be used where no other options are available and only where there is a cause of action between the plaintiff and proposed defendant. In the case at bar there is no cause of action between NTI and the GN, and there are other options.

[129] A cause of action has been defined as "a set of facts, which, if proven, would entitle the plaintiff to some form of relief" (Sarnelli Estate v. Fraietta, [1981] A.J. No. 722, 28 A.R. 482 (Q.B.) at para. 19).

[130] As stated in Robson:

[7] … However, the applicant must depose to facts sufficient to persuade the court of the applicability of the portion of R. 15(5) relied upon … In particular, there must be some evidence indicating a cause of action … [Citations omitted]

[131] There are no facts pleaded by NTI which, if established, would entitle it to relief against the GN, and therefore there is no cause of action. As a result, NTI makes no claim against the GN and seeks its remedies against Canada because only Canada was a party to the NLCA.

[132] The rationale for the requirement of a cause of action is clear when considered with Nunavut Rules rule 129 on striking out pleadings. As argued by NTI, the lack of a cause of action could set up the absurd situation where a defendant who is added could immediately move to have action dismissed.

[133] Canada argues that the lack of a cause of action is not fatal because the GN may be impacted financially in its ability to exercise its jurisdiction under the Nunavut Act. As a result, there is sufficient connection to the action to add the GN as a defendant as occurred in Kispiox. The flaw in this argument is that in Kispiox, Canada did not oppose being added as a defendant although the plaintiff Band objected. Meiklem J. then noted that the protest of the Band about delay rang hollow in the light of the protracted prosecution of the action.

[134] As noted above in CPCS Ltd., Delgamuukw, Kispiox and Boothroyd, the proposed defendant was added because there was no real objection from the proposed defendant. Where the proposed defendant and the plaintiff oppose and there is no cause of action, as in Peigan, the request to add a defendant should be refused. This result is consistent with the principle, expressed in Lecomte, that the plaintiff should be free to choose the parties he, she or it wishes to sue. I agree with the following statement from Lecomte:

[15] As to the appeal to compel the plaintiffs to claim against the city corporation, I can find no authority, statutory or otherwise, which would justify the Court in compelling any plaintiff to claim anything but what he choses to claim - he is dominus litis, master of his own litigation, an we should not interfere with his discretion as to the person or persons he will sue. What may be the result at the trial, if any, of his refusal to sue the city, as to costs or otherwise, we need not consider.

[135] The NLCA contains provisions that apply to a number of non-parties such as developers, municipalities and territorial governments. The GN is not contractually bound by the agreement because it was not a party to it. However, the NLCA is binding on the GN because of ss. 4(2) and 4(3) of the Nunavut Land Claims Agreement Act. These public law obligations may be enforced by any person who meets the tests for legal standing, including NTI and Canada. Since it is Canada that is raising these public law obligations, it makes more sense that Canada should take the necessary steps to enforce them rather than having this Court order the respondent NTI to do so unwillingly.

[136] If there is no cause of action but a non-party is affected, they may apply to be added as a defendant as occurred in CPCS Ltd., Delgamuukw, Kispiox and Boothroyd. If this fails, they can seek to be added as an intervenor. The intervention rules have substantially broadened to allow the participation of non-parties not directly affected by the litigation. See Yellowknife Public Denominational District Education Authority v. Euchner, 2008 NWTCA 1 (CanLII), 2008 NWTCA 01, [2008] N.W.T.J. No. 2. As noted in Holmested and Watson, compulsory joinder is a narrow exception to the general rule that a plaintiff is free to decide who to sue. The authority quoted in Holmested and Watson is a 1957 article in the Michigan Law Review. I suspect that the broadening of the intervention rules will make it even rarer.

[137] The soundness of having Canada pursue the public law remedies against the GN is further fortified, because Canada has available to it broad third party rules in the Nunavut Rules. Using these rules will also avoid the cost and delay ramifications noted by the GN. It submitted with some justification that its forced addition as a defendant will have significant cost and delay ramifications on both respondents. The current parties are already in the process of finalizing the production of documents and the commencement of discoveries. Adding a defendant will delay the respondent NTI and increase its costs. It will also force the GN to expend significant time and resources in a matter where the NTI is not pursuing a claim against the GN.

[138] Canada relies on Metz to argue that a third party notice could not be issued. Metz held that a third party notice could be used to enforce duties that the third party owes to the defendant but could not be used where the party issuing the third party notice seeks to enforce a duty which the third party owes to the plaintiff.

[139] However, as noted previously, the Alberta third party rules are much more restrictive than those of Ontario or Nunavut. As in Alberta, the Nunavut Rules permit a third party notice where contribution or indemnity is claimed. However, the Nunavut Rules also allow it to be used where the relief is connected with the original subject matter and is substantially the same:

142. (1) (b) he or she is entitled to any relief or remedy that is related to or connected with the original subject matter of the action and that is substantially the same as some relief or remedy claimed by the plaintiff; or

(c) any question or issue relating to or connected with the original subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined, not only as between the plaintiff and the defendant, but also as between the plaintiff and the defendant and the third party, or between any of them.

[140] The claims of Canada about the joint responsibility with the GN fit into either (b) or (c).

[141] Canada also points to the allegations in the ASOC about Canada's failure to provide adequate implementation funding to the GN. Canada argues that because NTI was not a party to the implementation funding agreements, the only manner of dealing with the issue is to add the GN as a defendant. In support of the argument, Canada relies on Alberta Treasury Branches v. Ghermezian, 2000 ABCA 228 (CanLII), 2000 ABCA 228, [2000] A.J. No. 963. In that case the Alberta Court of Appeal held that all parties to a contract must be before the Court to enable it to fully adjudicate on the issues.

[142] While NTI was not party to the bilateral implementation funding agreements, it was a party to the NLCA and the Implementation Agreement. The pleadings reveal that the issue is the interpretation of the NLCA, not the funding agreements. NTI pleads in paragraph 73 of the ASOC that:

The funding provided to the GN pursuant to the bilateral agreement was grossly inadequate to fund the ongoing responsibilities under the Agreement that the Government of Canada had purported to assign to the territorial government by way of the bilateral agreement.

[143] Canada denies the allegation in the Statement of Defence:

… the funding provided to the Territorial government was and continues to be adequate to fund the ongoing responsibilities of the Territorial government under the Agreement. The GN succeeded the GNWT as the Territorial government under the bilateral agreement in 1999 with the coming into force of the Nunavut Act, S.C. 1993, c. 28. The funding in the bilateral funding agreement is in addition to the funding provided by the Crown to the GN under the Territorial Formula Financing arrangement, which provides for the financing of many governmental functions that fulfill, in whole or in part some of the obligations of the GN under the Agreement.

[144] NTI anchors these allegations in article 37.2.2 of the NLCA and the Implementation Plan that impose funding obligations on Canada to the GNWT and its successor the GN. It alleges breaches of these agreements in the provision of inadequate funding to the GN under the bilateral funding agreements. The absence of NTI as a party to the funding agreements does not disentitle it from raising it as an issue in the ASOC without the addition of the GN as a defendant. Any requirement for the participation of the GN in this issue may also be addressed through the third party procedure.

[145] When a third party claim is available, a defendant who seeks compulsory joinder should do so by adding the non-party as a third party. As stated in Slate Falls:

[123] Further, even if joinder were appropriate in light of Ontario's reversal of position as to the necessity of a royal fiat, it is not the court's policy to require a plaintiff to sue someone he or she does not wish to sue … The preferable course in circumstances in which a non-party may also be liable is for a party defendant to add the non-party as a third party, rather than compel the plaintiff to sue a party he or she does not wish to sue … [Citations omitted]

D. Will the order which NTI seeks directly affect Nunavut, not in its commercial interests but in the enjoyment of its legal rights?

[146] The relief sought by NTI is against Canada, not the GN. If there is an ultimate finding at trial that the GN is liable for some part of the Governmental responsibility, it will impact the GN financially and it could also affect its legal rights. However, the rights of the GN can be addressed through third party proceedings. If the GN were concerned about the impact on its rights, it would have supported the application.

V. Conclusion

[147] The application is dismissed. Costs are awarded to the respondents and shall be costs in the cause. Any third party notices contemplated by Canada shall be filed within 20 days of the date of the filing of this judgement.

Dated at the City of Iqaluit this 11th day of April, 2008

Mr. Justice Earl D. Johnson
Nunavut Court of Justice

Appendix B: Land Claims Agreements Submission to United Nations Human Rights Council, Universal Periodic Review of Canada, September 8, 2008.

Universal Periodic Review of Canada
Submission of the Land Claims Agreements Coalition (LCAC)
to the
United Nations Human Rights Council

September 8, 2008

"A Legacy of Colonialism and Paternalism" Footnote 2

A. Summary

[1] This Submission is respectfully made by the Land Claims Agreements Coalition concerning the ongoing failure of the Government of Canada to fully, meaningfully and universally implement the modern treaties between it and the members of the Coalition, who are the indigenous signatories of all of the 21 modern treaties in Canada since 1975.

[2] The rights contained in these treaties, which are constitutional "building blocks" of Canadian Confederation, are human rights. However, the Government of Canada has failed universally to fully implement the spirit and intent and the broad socio-economic objectives of all modern land agreements.

[3] This failure is inconsistent with the Constitution of Canada, many judgments of the Supreme Court of Canada, and Canada's human rights obligations in international law, including the right of self-determination, the right to economic, social and cultural development and well-being, and other particular collective rights belonging and applying to indigenous peoples.

B. The Land Claims Agreements Coalition

[4] Established in 2003, the Land Claims Agreements Coalition consists of all Aboriginal signatories to modern treaties (comprehensive land claims and self-government agreements) entered into in Canada since the first modern treaty of 1975. A list the modern treaties entered into by Coalition members is attached Footnote 3.

[5] The first "modern land claims agreement" between Aboriginal peoples and the Crown in right of Canada was entered into in 1975. Since then, 21 modern treaties have been negotiated, applying to Aboriginal traditional lands encompassing more than half of the lands and waters of Canada and the immense resources they contain.

[6] These agreements represent "basic building blocks in the creation of our country Footnote 4."

[7] Coalition members work together to ensure that comprehensive land claims and associated self-government agreements are respected, honoured and fully implemented in order to achieve their objectives. The task at hand is to implement the modern land claims agreements in ways that bring political, economic and social justice to their signatory nations and their members and that achieve in full measure, the letter, spirit, intent and lasting objectives of modern land claims agreements.

C. Aboriginal and treaty rights are human rights

[8] As noted by the United Nations Human Rights Committee in 1999, Canada has acknowledged that: "the situation of the aboriginal peoples remains ‘the most pressing human rights issue facing Canadians Footnote 5.'"

[9] However, the Coalition notes that Canada voted against the United Nations Declaration on the Rights of Indigenous Peoples Footnote 6.

[10] Key indicators of socio-economic conditions for indigenous peoples in Canada are unacceptably lower than for non-Aboriginal Canadians Footnote 7.

[11] The U.N. Human Rights Committee has expressed particular concern that Canada has not yet implemented the recommendations of the Royal Commission on Aboriginal Peoples (RCAP). It recommended that: "decisive and urgent action be taken towards full implementation of the RCAP recommendations on land and resource allocation Footnote 8."

D. The issue - Canada's modern treaty implementation policy and practice

[12] In December 2006, Leaders and Representatives of the Land Claims Agreements Coalition assembled in Ottawa to discuss how Canada is doing in honouring the modern treaty undertakings it made to Aboriginal peoples over the past thirty years. They declared that:

Through these modern treaty agreements, Ottawa made important and solemn treaty promises enshrined in the constitution in return for reconciling Crown and aboriginal sovereignties and clearing the way for development in more than half of Canada's land mass and the immense resources it contains. More than three years ago, the signatories of all major modern treaties wrote to the Government of Canada. We called for the mutual development of a new federal Policy to fully implement the fundamental objectives of these important agreements. No meaningful progress has yet been made, and the federal Crown has essentially rebuffed efforts to engage constructively. No progress has been made since that time Footnote 9.

[13] For indigenous signatories, land claim agreements are intended to enable economic, social and cultural development, environmental protection, and self-government.

[14] Some individual progress has been made in treaty implementation. In 2008 the Grand Council of the Crees entered into a New Relationship Agreement with the Government of Canada, 33 years after entering into its treaty with Canada.

[15] However, overall, members of the Coalition are frustrated and disappointed that their treaties are not all being properly implemented by the Government of Canada.

[16] While the Government of Canada has enunciated its objectives many times, for example in its 1986 Comprehensive Land Claims policy, it has not worked to support the full extent of the land claims agreements.

[17] The Government of Canada's 1986 Comprehensive Land Claims policy stressed that:

… land claims negotiations are more than real estate transactions. In defining their relationships, Aboriginal peoples and the Government of Canada will want to ensure that the continuing interests of claimants in settlement areas are recognized. This will encourage self-reliance and economic development as well as cultural and social wellbeing. Land claims negotiations should look to the future and should provide a means whereby Aboriginal groups and the federal government can pursue shared objectives such as self-government and economic development.

[18] This policy objective still enjoys the support of indigenous peoples in Canada and is directly incorporated in some land claims agreements.

[19] However, in the experience of the members of the Coalition, the ink is barely dry on each land claims agreement before the federal government, and especially its officials, abandons any talk of the broad objectives of the agreement, and proceeds instead on the basis that the government's sole responsibility is to fulfil the narrow legal obligations set out in the agreement.

[20] The Cree-Naskapi Commission, an independent federal land claims agreement review body, stated in its 1995 Annual Report to the Parliament of Canada:

In the course of Canadian history, a notion persists that governments make promises to induce natives to surrender their lands and other rights and then routinely break these promises, frequently hiding behind legal technicalities. Regrettably, the evidence supporting this notion is extensive.

[21] The members of the Coalition are not aware of any policy having been explicitly adopted by the Government of Canada that the objectives of entering into the land claim agreement are to be forgotten or ignored once it has obtained the indigenous signatures on the document. And yet that has become the entrenched attitude of Department of Indian and Northern Affairs ("DIAND" or "INAC") of the Government of Canada.

[22] This attitude has led at least some of the indigenous peoples in Canada who have entered in good faith into these modern land claims agreements to conclude that there have been deliberate, continuing efforts on the part the federal Crown to minimize, frustrate and even extinguish the rights and benefits the Aboriginal parties expected would accrue from their treaties.

[23] Some have stated that a "two-step" policy of extinguishment of Aboriginal and treaty rights can be seen in the federal neglect of what had been considered to be mutual objectives and commitments. As the first step, governments make promises to induce natives to surrender or otherwise provide so-called certainty in respect of their lands and other rights. Then, as the federal government's commitment to the objectives and ongoing obligations under the treaty begins to wane, chronic disagreements between the parties emerge about the meaning of the various treaty provisions, litigation ensues, and little regard is had to whether the objectives are being achieved.

[24] Rather than allowing the apprehension of a two-step policy of extinguishment to continue to grow, surely it would be more appropriate for the federal Crown to instead reaffirm its commitment to the timely and responsible implementation of both its obligations and the objectives of modern land claims agreements.

[25] In his 2004 report to the Economic and Social Council, the U.N. Special Rapporteur on human rights and indigenous issues also reported on the concerns raised by the Land Claims Agreements Coalition. He noted that:

… the Land Claims Agreement Coalition [has] called upon the federal Government of Canada to pay urgent attention to full and meaningful implementation of the socio-economic and developmental objectives of these agreements, warning that if conditions among signatory peoples continue to fail to improve meaningfully after the signing of such agreements, other Aboriginal peoples may conclude that there is no benefit flowing from such agreements. Footnote 10 [Emphasis added.]

E. The Land Claims Agreements Coalition is not alone in this concern regarding the Government of Canada's overall failure to fully implement modern treaties with indigenous peoples in Canada

[26] In addition to the international authorities referred to above, important human rights and governmental accountability authorities within Canada have repeatedly echoed the concerns raised by the Coalition.

[27] Most recently, in May 2008, the Standing Senate Committee on Aboriginal Peoples of the Parliament of Canada reported:

Treaties are solemn agreements that set out promises, obligations, and benefits for both the Aboriginal peoples and the Crown in right of Canada. The Government of Canada acknowledges that these agreements represent the "basic building blocks in the creation of our country."

However… the committee is troubled by the narrow approach to treaty implementation adopted by the federal government. Federal practices and policy in this regard have resulted in the diminishment of the benefits and rights promised to Aboriginal peoples under these agreements

[W]ithout the funds necessary to promote political, social and cultural development, the preservation and transmission of Aboriginal cultures to future generations cannot occur as envisioned by the treaties…

Our present study on the federal role in implementing modern treaty obligations, along with the Committee's previous studies on specific claims, economic development and the delivery of safe drinking water to First Nations communities, suggest to us that there are deep structural reasons for the government's failure to make measurable and meaningful progress on issues affecting Aboriginal Canadians. We believe much of this failure rests with the institutional role and mandate of the Department of Indian Affairs and Northern Development Canada (DIAND), a department which is steeped in a legacy of colonialism and paternalism… [W]e find that the Department's ability to make meaningful improvements in the lives of Aboriginal peoples and its performance generally is woefully inadequate.

 We endorse the view that failure to properly implement the provisions of modern treaties puts Canada at risk for generating new legions of broken promises. However we are convinced that these challenges can be overcome. The honour of the Crown rests upon it. Footnote 11 [Emphasis added]

[28] Regarding the federal Government of Canada's approach to treaty implementation, the Senate Committee further reported:

The Committee believes that any meaningful approach to treaty implementation cannot be focused solely on fulfilling narrowly, the legal and technical obligations identified in modern treaties… The government's focus… has largely been to discharge its obligations in a narrow sense, rather than working to achieve the full benefit of the reconciliation promised by treaties. This, in our view, is a diminished and restricted reading of treaty-making and treaty implementation… The result is that broader considerations of economic and social well-being are set aside. Footnote 12 [Emphasis added]

[29] In October 2007, the Auditor General of Canada reported on implementation of one of the earliest modern treaties (signed in 1984). Her report noted:

3.92 Although the Inuvialuit Final Agreement has existed for 23 years, INAC [the Department of Indian and Northern Affairs Canada] has yet to demonstrate the leadership and the commitment necessary to meet federal obligations and achieve the objectives of the Agreement Footnote 13.

[30] The Auditor General's 2007 report noted the lack of any change of approach by INAC since the Auditor General raised similar concerns in 2003 Footnote 14, stating:

3.83 We found that INAC… has taken no action to develop performance indicators or to ensure measurement of progress toward achievement of the principles that the Agreement embodies. Department officials describe these as being Inuvialuit principles, not principles to which Canada adheres. INAC officials emphasize that the Agreement does not impart any federal obligation to realize these goals…

3.84 We are concerned that the Department is not focused on achieving the goals expressed in the Agreement. Footnote 15 [Emphasis added]

F. The impacts of the ongoing, universal failure by Canada to fully implement modern treaties entered into with indigenous peoples in Canada

[31] Objectives of land claims and related self-government agreements can be seen to fall into at least the following categories in which improvements should occur:

  1. social well-being;
  2. economic self-reliance through success and participation;
  3. growth and stability of Aboriginal populations in their traditional territories;
  4. environmental protection; and
  5. cultural and linguistic protection and enhancement.

[32] Most conspicuously lacking from the federal approach to implementing, as well as negotiating land claims agreements, has been any apparent awareness that comprehensive land claims agreements should serve to bring about the inclusion of Aboriginal peoples into the regional, provincial/ territorial and national economies of which they and their lands and resources are part, and, over time, to improve the material well being of Aboriginal peoples while enriching the country as a whole. Land claims agreements can and should be regarded as important vehicles for the achievement of public policy goals, including ensuring the survival, viability and well-being of Aboriginal peoples as distinct collectivities.

[33] In his 2004 report concerning Canada, the U.N. Special Rapporteur on the rights of indigenous peoples concluded:

The settling of comprehensive land claims and self-government agreements are important milestones in the solution of outstanding human rights concerns of Aboriginal people. They do not, in themselves, resolve many of the human rights grievances afflicting Aboriginal communities and do require more political will regarding implementation, responsive institutional mechanism, effective dispute resolution mechanisms, and stricter monitoring procedures at all levels. Footnote 16 [Emphasis added]

[34] Similarly, it has been noted in a paper recently published by the [Canadian] Institute for Research on Public Policy (IRPP) that Comprehensive Land Claim Agreements (CLCAs) appear not to be a "panacea for Aboriginal peoples:"

In and of themselves, treaties do not change the socio-economic conditions and overall well-being of communities, nor do they radically alter the colonial structure that Daniel Salée identifies in his study for the IRPP as one of the main explanations for the ‘glacial pace' of changes in the living conditions of Canadian Aboriginal peoples (2006). But, over time, and with proactive leadership and collaboration between all parties involved, CLCAs can become the instruments whereby Aboriginal peoples establish a governance relationship that better reflects their social, economic and political aspirations. Footnote 17 [Emphasis added]

[35] Professor Papillon's paper for the IRPP concludes:

Governments should therefore acknowledge that land claims settlements are much more than land transactions: they are living documents that establish broad parameters for a decolonizing relationship that is bound to change as the conditions and priorities of the Aboriginal signatories change. Footnote 18 [Emphasis added]

G. A way forward, consistent with Canada's international and domestic human rights obligations

[36] The Government of Canada's approach to implementing modern treaties entered into with indigenous peoples in Canada needs to be changed if it is to adhere to the legal, constitutional, and human rights reality of these agreements. What is called for is a change in the perspective, indeed in the very culture of the Government of Canada in respect of its view of the new relationships set out in land claims and self-government agreements.

[37] In this spirit, the Coalition calls for a new land claims implementation policy, based on the Coalition's "Four-Ten Declaration" Footnote 19. The Coalition's "Four-Ten Declaration" contains the following "Fundamental Principles concerning a new land claims implementation policy in Canada:

1. The history of nation-to-nation contact and interaction between the Crown and the aboriginal peoples in Canada has created an enduring relationship between the Crown and aboriginal peoples, one that is fundamentally predicated on the honour of the Crown.

2. "[T]he doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries." Supreme Court of Canada, Van der Peet, [1996] 2 S.C.R. 507 at para 30.

3. "The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably.

Nothing less is required if we are to achieve "the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown." Supreme Court of Canada, Haida Nation v. British Columbia (Minister of Forests) [2004] S.C.C. 73 at para 17.

5. Treaties and land claims agreements between the Crown and Aboriginal peoples are acknowledged to be "basic building blocks in the creation of our country …[T]reaties -- both historical and modern -- and the relationship they represent provide a basis for developing a strengthened and forward-looking partnership with Aboriginal people." Government of Canada, "Gathering Strength -- Canada's Aboriginal Action Plan", 1997.

7. Modern land claims agreements, which give rise to treaty rights, are multi-faceted, and the ongoing rights they affirm are, among other things, constitutional, statutory, contractual, fiduciary, and in keeping with the "living tree" principle of Canadian law, evolving and progressive in nature.

8. The negotiation and implementation of modern land claims agreements, and their ancillary agreements, engage the honour of the Crown, and demand results and ongoing outcomes that are just. "Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims." Supreme Court of Canada, Haida Nation v. British Columbia (Minister of Forests) [2004] S.C.C. 73 at para. 20.

9. The treaty rights arising from modern land claims agreements express the mutual desire of the Crown and aboriginal peoples in Canada to reconcile through sharing the lands, resources and natural wealth of this subcontinent in a manner that is equitable and just - no longer so as to solely assimilate, take or extinguish the interest of the aboriginal peoples involved, but rather so as to implement mutual objectives that will ensure their socio-economic, political and cultural survival, well-being and development as peoples.

10. Aboriginal and treaty rights are human rights, and they are not amenable to extinguishment as a matter of respect for Canada's international human rights obligations. "The situation of the aboriginal peoples remains the most pressing human rights issue facing Canadians…. [T]he practice of extinguishing inherent aboriginal rights be abandoned as incompatible with article 1 of the [International] Covenant [on Civil and Political Rights]." United Nations Human Rights Committee, Concluding Observations of the Human Rights Committee - Canada. 07/04/99 CCPR/C/79/Add.105.

[38] In its May 2008 report, the Standing Senate Committee on Aboriginal Peoples recommended that the Government of Canada, in collaboration with the Land Claims Agreements Coalition and its present and future members, take immediate steps to develop a new national land claims implementation policy, based on the principles laid out by the Coalition Footnote 20.

H. Conclusion

[39] In this Submission, the Coalition respectfully brings to the attention of the U.N. Universal Periodic Review Canada's ongoing failure to fully and meaningfully implement the spirit and intent and the broad socio-economic objectives of all modern land claims agreements.

[40] The Coalition respectfully requests that the Human Rights Council adopts the following Conclusions and Recommendations, consistent with the content of this Submission:

The Human Rights Council:

a) Notes Canada's record as a country in respect of overall socio-economic development and social inclusion has been a positive one in a number of important respects;

b) Observes that more than any other state facing the challenge of gross disparities between segments of society (such as between indigenous peoples in general and all other Canadians), Canada has had the popular good-will, the territory and resources, the governmental capacity, the foundation of existing constitutional, legal, policy and treaty frameworks, and the economic means to succeed;

c) Notes that the situation of indigenous peoples in Canada remains the most pressing human rights issue facing Canadians;

d) Notes with concern the "glacial pace" of changes in the living conditions of indigenous peoples in Canada, attributable in part to the Government of Canada's failure to universally implement the spirit and intent and broad socio-economic objectives of land claims agreements with indigenous peoples in Canada;

e) Observes that Canada has not adequately supported the full extent of modern treaties, and that its practice of ignoring the spirit and intent and broad objectives of these agreements is contrary to its human rights commitments and obligations;

f) Urges Canada to affirm its full commitment to the universal, timely and responsible implementation of the spirit and intent, and both its obligations and the broad socio-economic objectives, of land claims agreements entered into with indigenous peoples;

g) Further urges Canada to promptly develop, consistent with Canada's international human rights obligations and relevant rulings of the Supreme Court of Canada, a new national land claims implementation policy based on the principles of the Land Claims Agreements Coalition's "Four-Ten Declaration" in full consultation (as required by the Supreme Court of Canada) with the Coalition; and

h) Concludes and recommends that the fulfillment of the broad socio-economic objectives of modern land claims agreements entered into with indigenous peoples in Canada, and associated self-government agreements, must be undertaken, not only because it is the obligation of the Government of Canada, but because it is in Canada's national and international interest to do so.

Table 1: Schedule of Land Claims Agreements in Canada
Name of Agreement Year
James Bay and Northern Quebec Agreement November 1975
Northeastern Quebec Agreement January 1978
Inuvialuit Final Agreement June 1984
Gwich'in Comprehensive Land Claim Agreement December 1992
Nunavut Land Claims Agreement May 1993
Sahtu Dene and Metis Comprehensive Land Claim Agreement September 1993
Sahtu Dene and Metis Comprehensive Land Claim Agreement May 2000
Tlicho Land Claims and Self Government Agreement August 2003
Labrador Inuit Land Claims Agreement December 2005
Yukon First Nations Final Agreements:
Name of Agreement Year
Champagne and Aishihik First Nations May 1993
First Nation of Nacho Nyak Dun May 1993
Teslin Tlingit Council May 1993
Vuntut Gwitchin First Nation May 1993
Little Salmon/Carmacks First Nation July 1997
Selkirk First Nation July 1997
Tr'ondëk Hwëch'in First Nation July 1998
Ta'an Kwäch'än Council January 2002
Kluane First Nation October 2003
Kwanlin Dün First Nation February 2005
Carcross/Tagish First Nation October 2005

Appendix C: Land Claims Agreements Coalition: "Honour, Spirit, and Intent: A Model Canadian Policy on the Full Implementation of Modern Treaties between Aboriginal Peoples and the Crown"

Finalized November 21, 2008

Land Claims Agreements Coalition

  • Council of Yukon First Nations
  • Grand Council of the Crees (Eeyou Istchee)
  • Gwich'in Tribal Council
  • Inuvialuit Regional Corporation
  • Kwanlin Dun First Nation
  • Makivik Corporation
  • Naskapi Nation of Kawawachikamach
  • Nisga'a Nation
  • Nunatsiavut Government
  • Nunavut Tunngavik Incorporated
  • The Sahtu Secretariat Incorporated
  • Tlicho Government

c/o The Consilium Consulting Group, 488 Gladstone Ave., Ottawa, ON, K1R 5N8
Tel: (613) 237-3613 Fax: (613) 237-3845 www.landclaimscoalition.ca

The Land Claims Agreements Coalition gratefully acknowledges the support of the Gordon Foundation in the development of this policy document.

Foreword

When explorers from Europe arrived in North America they "discovered" a continent occupied and governed by Aboriginal peoples. In subsequent decades and centuries the relationship between the original peoples and the growing number of settlers and immigrants was complex and sometimes difficult. But looking back, it is important to note that Crown-Aboriginal treaties were a central mechanism used in Canada to avoid conflict and to constructively define the relationship between Aboriginal peoples and newcomers. The Royal Proclamation of 1763 affirmed treaty-making as the key element of the policy of the Crown toward Aboriginal peoples. This approach was continued in British North America following the American Revolution, and by the Government of Canada after Confederation.

Treaty-making occurred as early as the 1600s. Beginning in 1871, numbered treaties were concluded on the Prairies, in northern Ontario, in northeastern British Columbia and in part of the Northwest Territories. With the exception of a limited number of adhesions to the numbered treaties, treaty-making came to a halt in the 1920s, leaving much of northern Canada, most of British Columbia and Québec, and all of Labrador without treaties. In 1927, the Indian Act was amended to make it illegal for Aboriginal peoples to raise money to press land claims. Treaty-making, in its modern form, began in the 1970s - prompted by the 1973 decision of the Supreme Court of Canada concerning the Aboriginal title of the Nisga'a Nation in British Columbia. Litigation involving the James Bay Crees in Québec, the Dene of the Mackenzie Valley and the Inuit of Baker Lake provided further impetus.

Since then, nineteen modern treaties - sometimes referred to as comprehensive land claims agreements - have been negotiated and ratified. These modern treaties concern more than half of the lands, waters and natural resources of Canada.

The Government of Canada's policy toward the negotiation and settlement of comprehensive land claims was formalized in 1981 and revised and expanded in 1986. In 1982, Section 35 was added to Canada's Constitution, which recognized and affirmed the existing Aboriginal and treaty rights of Aboriginal peoples in Canada. In 1983 it was explicitly confirmed in subsection 35(3) that section 35 "treaty rights" include those contained in modern land claims agreements. In 1995 the Inherent Right Policy provided for the negotiation of Aboriginal self-government as a component of modern treaties.

Modern treaties are essential building blocks of Canada, and are intended to formalize the relationship between Aboriginal peoples and the Crown. They are entered into to protect the rights of Aboriginal signatories; ensure their continuity as peoples; provide for their political, social, economic and cultural development. This is why the implementation of modern treaties between Aboriginal peoples and the Crown is of national importance, and even attracts international interest.

The number of modern treaties continues to grow, and we now have years of experience in implementation that is both affirmative and problematic. Although much has been accomplished of which we can be proud, modern treaties are far-reaching and sometimes complex. All parties agree that implementation is a challenge and takes forethought, cooperation and, above all, ongoing attention and commitment. While the content of modern treaties varies from agreement to agreement, implementing them requires trust as well firm and enduring cooperation between the Crown and Aboriginal signatories.

In responding to the recommendations and requests of Aboriginal peoples with modern treaties, the Government of Canada will adopt a Land Claims Agreements Implementation Policy that provides a framework to promote the effective implementation of diverse modern land claims agreements.

As its title suggests, the purpose of this Policy is to ensure that modern treaties are fully implemented in accordance with their provisions, their overall objectives, and their spirit and intent. The Policy is not intended to re-write modern treaties or to create new and uncontemplated responsibilities, legally binding or otherwise.

Rather, the Policy lays out the firm commitment of the Government of Canada that federal Ministers, departments and agencies will work diligently with their Aboriginal counterparts to achieve the objectives of modern treaties in a lasting, generous and flexible manner.

Such an evolving and beneficial approach is consistent with long-standing Canadian governmental practice in all other inter-governmental contexts. The Aboriginal land claims agreements context cannot be permitted to languish as an unintended exception.

There have been positive developments in the decades since the first modern land claims agreement in Canada. However there is still more to be done before Aboriginal peoples and all Canadians alike enjoy the many benefits and achieve the overall objectives of our modern treaties.

Introduction

"The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve "the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown."

Supreme Court of Canada, Haida Nation v. British Columbia
(Minister of Forests), 2004

"The settling of comprehensive land claims and self-government agreements (such as those of Nunavut or James Bay) are important milestones in the solution of outstanding human rights concerns of Aboriginal people. They do not, in themselves, resolve many of the human rights grievances afflicting Aboriginal communities and do require more political will regarding implementation, responsive institutional mechanisms, effective dispute resolution mechanisms, and stricter monitoring procedures at all levels."

United Nations Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Report on Canada, 2004

Modern treaties are negotiated between the Crown and Canadian Aboriginal peoples who generally have not entered into "historic" treaties.

Modern treaties affirm the complex and multifaceted nation-to-nation and government-to-government relationships between Aboriginal peoples and Canada. They currently reconcile the Aboriginal peoples' title to their traditional lands and resources with the Crowns' subsequent occupation and use of more than half of the lands, waters and natural resources of Canada.

Each modern treaty is unique, but all articulate rights to be exercised by Aboriginal signatories, often also involve recognition of Aboriginal self-government or provide for a restructuring of public government. Basically, the Crown's claims in respect of Aboriginal peoples' traditional lands, waters and natural resources are clarified, to the great benefit of all Canadian peoples.

The Crown has, upon ratification of each modern treaty, been able to proceed immediately to manage, develop and dispose of lands and natural resources in reliance upon the terms of the treaty concerned. The promised benefits to Aboriginal peoples, on the other hand, are often incremental and spread out over many years. This fact requires the Government of Canada to ensure that treaty rights are respected now and in coming years and decades, and that the obligations, ongoing objectives, and sprit and intent of modern treaties are fulfilled. The intent of this Policy is to ensure that this is the case.

Modern treaties address such matters as:

  • Ownership and use of lands, waters and natural resources including the subsurface;
  • Management of land, waters, and natural resources, including fish and wildlife;
  • Harvesting of fish and wildlife;
  • Environmental protection and assessment;
  • Economic development;
  • Employment;
  • Government contracting;
  • Capital transfers;
  • Royalties from resource development;
  • Impact benefit agreements;
  • Parks and conservation areas;
  • Social and cultural enhancement;
  • The continuing application of ordinary Aboriginal and other general programming
  • and funds; and
  • Self-government and public government arrangements.

When ratified, modern treaties become part of the law of the land. The treaty rights they contain are constitutionally recognized and affirmed, and the terms of these agreements thus take precedence over the other laws and policies in Canada.

It is important that modern treaties be implemented and interpreted, consistent with their spirit, in a manner that responds to changing circumstances. Aboriginal peoples rely upon them to chart their paths into the future, just as the Crown is able to use them to bring about overall public policy objectives.

The Crown and Aboriginal signatories to these agreements must therefore work together in creative partnerships, if modern treaties are to be used to full advantage in accordance with their modern purposes of reconciliation, development, and nation-building.

Each modern treaty reflects the aspirations and cultural diversity of the Aboriginal signatories, and the political and other circumstances prevailing when agreements were negotiated. The Land Claims Agreements Implementation Policy respects the differences between modern treaties, and is not intended to promote an inflexible approach to their implementation. Nothing in this policy should be viewed as a substitute for any existing process, plan, obligation, or objective for the implementation of individual land claim agreements that has been worked out by the Parties to those agreements. This policy is meant to strengthen, and not to replace, whatever arrangements currently exist in respect of the implementation of each treaty agreement.

The core commitment of this policy is that the Government of Canada will work with Aboriginal signatories to ensure that each modern treaty is fully implemented consistent with its spirit and intent, the developmental objectives of treaty-making in Canada, and the honour of the Crown.

The Modern Treaty Relationship Between the Crown and Aboriginal Peoples

Modern treaties confirm enduring relationships between the Crown and Aboriginal peoples that engage and rest upon the "honour of the Crown." These agreements formally enable Aboriginal signatories to "become part of Canada". As quoted above, the Supreme Court of Canada has ruled that in all dealings with Aboriginal peoples from the assertion of sovereignty to the resolution of claims and implementation of treaties, the Crown must act honourably to reconcile the pre-existence of Aboriginal societies with the sovereignty of the Crown.

The treaty relationship lies not with any single government department or agency, but with the Crown as a whole as represented by the Government of Canada. In practical terms this requires all agencies of the Government of Canada whose mandates and activities intersect (or may do so) with modern treaties to do their full part to implement them meaningfully.

Every department and agency of the Government of Canada has the responsibility to ensure that its duties and activities are carried out in a manner consistent with the obligations of modern treaties and contribute to the ongoing achievement of the objectives of these agreements. This puts a premium on coordination between federal departments and agencies, and with provincial and territorial governments. The Government of Canada will bring about effective coordination between federal departments and agencies to properly meet the obligations, objectives, and spirit and intent, of modern treaties. Moreover the Government of Canada will also cooperate with provincial and territorial governments; however, the Government of Canada will ensure that it meets its own ongoing modern treaty obligations and fulfills their objectives, regardless of particular steps other levels of government may take.

Obligations and Objectives

Provisions in modern treaties confer or affirm many important rights belonging to Aboriginal signatories and place lasting obligations on the Government of Canada that are enforceable in the courts. As stated in the 1986 Comprehensive Land Claims Policy, the Government of Canada takes a broad view of the purpose and intent of these agreements as to:

"encourage self-reliance and economic development as well as cultural and social well-being. Land claims negotiations should look to the future and should provide a means whereby Aboriginal groups and the federal government can pursue shared objectives such as self-government and economic development."

Such objectives provide the context within which treaty obligations and objectives must be met.

The socio-economic development objectives of modern treaties include benefits that Aboriginal peoples, like all other peoples in Canada, should be entitled to take for granted, at least to an average level already generally achieved in non-Aboriginal Canada. Importantly, this standard is already enshrined in the Canadian Constitution, in subsection 36(1), which states that all governments in Canada are committed to promoting equal opportunities for the well-being of Canadians; furthering economic development to reduce disparity in opportunities; and providing essential public services of reasonable quality to all Canadians.

As noted by the Canadian Human Rights Commission, and other authorities in Canada and internationally, disparities between the living standards and other opportunities of Aboriginal peoples in Canada vis-à-vis those generally enjoyed by all other Canadians are persistent and pronounced. Regrettably, these disparities continue to characterize many signatory communities of modern land claims agreements.

The Auditor General of Canada has urged the Government of Canada and Aboriginal signatories to focus on achieving measurable results against stated objectives when implementing land claims and self-government agreements. The Government of Canada accepts this recommendation and will approach the ongoing implementation of land claims and self-government agreements so as to achieve their developmental objectives with measurable outcomes.

The Government of Canada acknowledges that narrow and technical understandings and interpretations of its modern treaty obligations have, in the past, sometimes hindered effective implementation of agreements. To develop a broader appreciation of the nature of obligations and objectives, and to design implementation activities to achieve objectives, requires extensive discussion with Aboriginal signatories in the context of individual agreements. The Government of Canada proposes to engage treaty signatories in such discussions with the aim of injecting new energy, generosity and goodwill into the implementation of modern treaties.

These instruments are important building blocks of confederation. The rights of Aboriginal peoples contained in these modern agreements are no less a part of the Canadian constitutional landscape than any other Canadian constituting arrangements.

Self-Government

Self-government is a right that Aboriginal peoples have exercised in Canada since long before newcomers came to this land and there is an integral relationship between modern treaties and self-government by the Aboriginal signatories. This relationship is expressed in various ways. In some cases self-government arrangements are established outside the land claims agreement. In some cases there is a self-government agreement that is parallel or subsequent to the land claims agreement, and in some cases self-government provisions are fully or partially set out in the text of the land claims agreement itself. In some cases, self-governing aspirations are expressed through the establishment of new institutions of public government, in accordance with the agreement.

In all cases, the dynamic implementation of self-government arrangements is essential to the proper implementation of land claims agreements. This includes both recognition of the jurisdictions and duties for which the Aboriginal government is responsible, and the negotiation of stable, predictable and adequate funding arrangements that are based on the objective evaluation of the costs of governing and the social, economic and cultural needs of Aboriginal peoples.

Implementation Panels and Committees

Implementation committees, panels or other entities, in which the parties to the treaties discuss, negotiate and, in some instances, direct implementation, have been put in place for many of the modern treaties. If modern treaties are to achieve their objectives it is essential that these structures work effectively, efficiently, and creatively. The Government of Canada will continue to approach all implementation discussions and negotiations in good faith and generously, leaving narrow and technical approaches behind it, and will bring forward appropriately coordinated perspectives and positions. Further, the Government of Canada's representatives on these structures will be senior officials with clear mandates and authority to address implementation questions, resolve implementation issues, and set long-term directions. Representatives of federal departments and agencies with appropriate expertise, programmatic responsibilities, and authority will participate directly in implementation panels and committees when requested.

Implementation Plans and Fiscal Agreements

The 1986 Comprehensive Land Claims Policy requires plans to be developed to implement modern treaties. Such plans often identify the agencies of the Government of Canada responsible for implementing specific obligations and detailed budgets of institutions established pursuant to agreements. The Government of Canada reaffirms its commitment to negotiate in good faith with Aboriginal signatories to conclude multi-year implementation plans and fiscal agreements and arrangements. Further, the Government of Canada will incorporate the results of evaluations, reviews and audits of implementation experience in negotiating amendments and renewals of implementation plans and fiscal agreements. While specifying who does what is an essential component of implementation planning, finalized implementation plans and fiscal agreements should, as far as possible, be creative and adaptive documents that identify implementation priorities and enable parties to channel financial and personnel resources accordingly. The Government of Canada will consider, on a case-by-case basis, the need to periodically amend implementation plans and fiscal agreements to achieve mutually agreed objectives.

Moreover, if desired by the Aboriginal party, the Government of Canada will negotiate the development of implementation plans and fiscal agreements for modern treaties, concluded prior to 1986, for matters not yet fully implemented.

Financing Implementation of Modern Treaties

Aboriginal peoples face the same need for adequate and sustainable levels of funding to meet the objective needs and aspirations of their peoples as the other constituent part of the modern Canadian state. This is the legitimate expectation of one of the three constitutional orders of government in Canada. The Government of Canada undertakes to provide sufficient funding to fully implement the objectives of modern treaties, and will work in good faith with Aboriginal signatories to determine these requirements and ensure that funding is provided on a timely basis.

Parliament plays the central role in authorizing the expenditure of public moneys by agencies and departments of the Government of Canada. Modern treaties deal with issues that cross departmental boundaries, and financing their implementation does not always fit neatly within the Government of Canada's departmental budgetary system. The Government of Canada will therefore work with Aboriginal signatories to remove structural and procedural barriers in the current budgetary system, in order to expedite the ongoing implementation of all modern treaties.

Resolving Disputes

Many modern treaties specify means such as mediation and arbitration to resolve disputes between the federal Crown, or other governments, and Aboriginal parties. In some cases dispute resolution mechanisms are provided for in a companion agreement. The Government of Canada undertakes to ensure effective use of the dispute resolution mechanisms in agreements to resolve disputes. In addition, the Government of Canada will use such techniques as mediation, joint research, and joint information gathering and monitoring to resolve disputes, and, on a case-by-case basis, binding arbitration of disputes, including disputes of a financial nature. The Government of Canada does so with the understanding that these approaches to dispute resolution are preferable to both litigation and to the emergence of conflict as may occur when there is litigation.

In those cases where the use of binding arbitration requires the consent of both parties, the Government of Canada's consent will never be withheld as a matter of course, but only in rare and exceptional circumstances where it is demonstrably reasonable and justifiable to do so.

Public Policy and Implementing Modern Treaties

While Aboriginal signatories are entitled to the particular rights and benefits enshrined in their treaties, they remain entitled to all of the rights, privileges, programs and benefits available to other Aboriginal, and to non-Aboriginal, communities, citizens and residents in Canada generally.

There is great need in Aboriginal settlement areas to coordinate implementation of modern treaties with the many Canadian economic, social, cultural, language, environmental and other public policy objectives that have made Canada one of the most developed countries of the world. This is particularly the case in relation to such key areas as economic and business development, housing, education and training, community infrastructure and capacity building-essential processes that equip Aboriginal signatories to take full advantage of the developmental objectives of modern treaties.

Similarly, the Government of Canada will use the institutions and processes established through modern treaties to achieve other compatible policy objectives in treaty settlement areas, such as ensuring that resource development is environmentally and socially sustainable and equitable, and promotes public health and well-being.

The challenge before the Government of Canada is to implement modern treaties as a normal and accepted part of the way in which it carries out its business of national good governance. The Government of Canada will work with Aboriginal signatories to this end, to ascertain how best to co-ordinate implementation of modern treaties with other public policy processes.

Review and Evaluation

Most modern treaties put in place methods to periodically review and evaluate implementation with a view to improving the efficiency and effectiveness of decision-making. The Government of Canada will undertake or participate in evaluative processes that generate objective data that reveal whether, how, and how well modern treaties are being implemented, particularly concerning the social economic, cultural impacts of implementation on the lives and well-being of Aboriginal peoples. All parties to treaties need to know if implementation of modern treaties is moving Aboriginal signatories in the direction of achieving their long-term social, cultural, and economic objectives. The Government of Canada is committed to working with Aboriginal signatories to develop and refine indicators to measure progress to achieve the social, cultural, economic and other objectives of modern treaties, and to use evaluative results to improve implementation planning and decision-making.

Institutional Arrangements

In order to ensure a consistently beneficial approach toward implementation of modern treaties across the Government of Canada, and to ensure the objectivity of data upon which implementation decisions are based, the Government of Canada will, in active partnership with Aboriginal signatories, propose legislation to establish a Land Claims Agreements Implementation Commission. The Commission will evaluate and promote the implementation of modern treaties and advise the Government of Canada and Aboriginal signatories accordingly. The Commission of Modern Treaties will report periodically to the Parliament of Canada.

Aboriginal signatories to modern treaties and the Auditor General of Canada will be invited to work closely with the Government of Canada to design the Commission's mandate and the legislation to give it effect.

In addition, the Government of Canada will establish a Cabinet Committee on Aboriginal Affairs to oversee and co-ordinate the involvement of federal agencies in treaty implementation activities. A committee of senior civil servants will provide the Cabinet Committee with advice and recommendations and carry out its instructions. The job performance evaluation of members of the committee will take into consideration implementation of modern treaties.

Public Information and Education

Notwithstanding the constitutionally recognized and affirmed status and wide geographical application of modern treaties, and their extensive implications for third parties and fundamental role in improving the socio-economic well-being of Aboriginal signatories, few Canadians adequately understand or appreciate their national importance or the international interest they generate. That the Government of Canada has negotiated far reaching accommodations with Aboriginal peoples through modern treaties is of considerable interest and concern to countries in Asia, Africa, Latin America and elsewhere seeking to accommodate Aboriginal peoples or other minorities in those countries, and also to international organizations such as the United Nations, the Organization of American States and the Commonwealth.

The Government of Canada will work with Aboriginal signatories to develop, and distribute information to promote greater public and international understanding of the importance of modern treaties and their role in Canada. As well, federal Crown agencies including the Department of Foreign Affairs, the Canadian International Development Agency and the International Development Research Centre will work with Aboriginal signatories to bring modern treaty experience to bear in the exercise of Canada's foreign and development assistance policies.

2. Government of Nunavut

The NLCA Implementation Contract ("Implementation Contract") was established to set funding levels for the GN to implement the NLCA. The Implementation Contract also assigns assumed responsibility of NLCA activities and funding levels to carry out those activities.

The first funding period was from 1993-2003. As per section 37.3.3(g) of the NLCA, the NIP "make recommendations to the parties to the Implementation Plan respecting the identification of funding levels for implementing the agreement for multi-year periods beyond the initial 10-year period." NIP recommended the next Implementation Contract to be from 2003-2013. The Implementation Contract renewal, however, was not successful.

Funding since 2003 has been received on an interim, year-to-year basis, based on 1993 levels pending completed negotiations and a renewed contract.

The activities reported for the 2008-2010 period are based on the above funding which the GN divides among four departments.

2.1 Department of Executive and Intergovernmental Affairs

During the reporting period, Executive and Intergovernmental Affairs (EIA) provided support to all GN departments implementing elements of the NLCA.

The GN continues to participate in the Nunavut General Monitoring Plan (NGMP) established under the NLCA. In 2008, the GN hosted a workshop to develop a framework for the General Monitoring model. In 2009, a full-time position was created to coordinate NGMP activities. As well, a business plan was drafted by all parties (GN, INAC, NTI, and the NPC) that contained a model and funding options was submitted to Treasury Board. A Steering Committee comprised of the all parties was established in 2010. A work plan has been created and the creation of an NGMP Secretariat is underway.

EIA coordinates participation in claims negotiations tabled by other jurisdictions adjacent to Nunavut and which involve Nunavummiut. Specifically, on behalf and in coordination with the GN, EIA has been involved fulfilling NLCA Article 40.4 and 40.5 with respect to the Denesuline bands of Northern Manitoba and Northern Saskatchewan as well as NTI and the Kivalliq Inuit Association's (KivIA) resolution of NLCA Article 42 pertaining to Inuit rights in Northern Manitoba.

In July 2008, the Nunavik Inuit Land Claims Agreement (NILCA) came into effect. The GN Land Registrar (Justice) registered all islands to Inuit in Quebec. Also, the GN made nominations to the NILCA IPGs and participated on the NILCA Implementation Committee.

At NIP meetings, the GN pressed INAC to complete the portion of the Five-Year Review outlined in Article 23 of the NLCA. Accordingly, a scope of work for the Five-Year Review and the Terms of Reference were developed by all parties in 2009.

Through the Nunavut Senior Officials' Working Group and NIP meetings, the GN has expressed to the federal government the need to have one body address the shortfalls of the funding requirements identified over the initial funding period of 1993 to 2003.

The GN, represented by EIA and the Departments of Environment and Justice, continued to work with Canada and NTI to develop legislation for NIRB and NPC as required by Articles 10, 11 and 12 of the NLCA. This working group culminated in providing a final draft of the Nunavut Planning and Project Assessment Act that was submitted to the federal Department of Justice.

Through Articles 10, 11 and 12 of the NLCA, the co-management boards provided the GN with project proposals and EIA continued to coordinate project assessment with other departments using consensus based decisions.

The GN worked with INAC and NTI to prepare for the drafting of Water Regulations for Nunavut.

Nominations to Nunavik co-management boards and other IPGs continued on an as-and-when-needed basis by the GN. A new partnership was developed for the Nunavik Implementation Committee.

EIA observed a session hosted by NTI to review the Nunavut Marine Council structure and was part of the three parties Article 23 Working Group with INAC and NTI. A draft Terms of Reference for the Nunavut Marine Council was submitted in 2009.

2.2 Department of Environment

The Department of the Environment (DOE) is responsible for the implementation of some of the most significant obligations established by the NLCA. These obligations transect almost all sections of the claim. Article 5 (Wildlife), Article 6 (Wildlife Compensation), and Article 7 (Outpost Camps) define DOE responsibility for ensuring the effective and timely implementation of all co-management responsibilities as they relate to Nunavut's HTOs, Regional Wildlife Organizations (RWOs), and Wildlife Management Boards. The Department holds ultimate responsibility for wildlife conservation and management, Inuit harvesting rights, outpost camps, and compensation for wildlife.

Article 8 (Parks) and Article 9 (Conservation Areas) establish DOE responsibility for the implementation of an Umbrella Inuit Impact and Benefit Agreement (IIBA) for all territorial parks, and for negotiating and implementing IIBAs for conservation areas either under shared jurisdiction or solely under the jurisdiction of the GN. Co-management is a cornerstone of both the NLCA and IIBAs as they relate to territorial parks and conservation areas.

Under Article 10 (Land and Resource Management Institutions), Article 11 (Land Use Planning), Article 12 (Development Impact), and Article 13 (Water Management), DOE is mandated to work with IPGs to ensure that Nunavut's natural resources are protected and enhanced through effective co-management of land use planning, development impact reviews, water management, and other forms of support to land and resource management institutions. DOE also has ancillary or secondary responsibilities for obligations under Articles 15, 16, 20, 21, 40, and 42 of the NLCA, which are part of its day-to-day operational mandate.

During the reporting period, the DOE and the parties to the Umbrella Territorial Parks IIBA have been able to accomplish the following:

Article 5 - Inuit Contracting and Business Opportunities:

  • Developed a Park-Specific Contracting Procedures Policy that has been approved by GN Cabinet and is now included in the GN's NNI Policy;
  • Established a Parks Contract Working Group which has been meeting regularly to monitor the contracting process for territorial parks for each fiscal year;
  • Set up parks contracts in accordance with Article 5 of the Umbrella Territorial Parks IIBA.

Article 6 - Education and Employment Benefits:

  • GN invites the participation of NTI in screening and interviewing of new GN Park full-time employees;
  • GN Parks summer and casual employment policies give preferential treatment to beneficiaries.

Article 7 - Park Information, Materials and Facilities:

  • Interpretative and signage programs are consistent with language requirements in the Umbrella Territorial Parks IIBA.

Article 15 - Implementation and Review:

  • Completed and submitted a Draft Implementation Plan to the parties;
  • Completed and submitted a Draft Work Plan to the parties;
  • Prepared and submitted numerous proposals for funding from other sources to implement IIBA obligations.

Co-management is a cornerstone of both the NLCA and IIBA as it relates to territorial parks. The Umbrella Territorial Parks IIBA provides for territory-wide and local involvement in the development and management of territorial parks. Under the terms of the IIBA, the GN, along with NTI, Qikiqtani Inuit Association (QIA), Kitikmeot Inuit Association (KitIA), and the KivIA, appoints representatives to Community Joint Planning and Management Committees, as well as the Nunavut Joint Planning and Management Committee. Appointments for the territory-wide committee have now been completed by the parties. These appointments require federal support by way of implementation contract funding.

Implementation of the Umbrella Territorial Parks IIBA and co-management of territorial parks are now at a critical juncture. If adequate funding is not received through Implementation Contracts, it will not be possible for DOE to implement components of the IIBA.

The DOE continues to ensure that all publications, signs, kiosks, and interpretation material related to parks are produced in Inuktitut and one or more of Canada's official languages. DOE worked closely with Parks Canada, the Canadian Wildlife Service (CWS), and other federal and territorial partners to promote and communicate the roles for parks and conservation areas in Nunavut.

DOE has the lead responsibility in the GN for ensuring the protection, promotion, and sustainable use of natural resources in Nunavut. DOE has legislated mandates for the protection and management of wildlife, the environment, and parks. The Environmental Protection Division of the DOE reviews and coordinates the GN's response to development proposals and land use plans on Federal, Territorial, and Inuit owned lands; highlighting the environmental and social impacts a proposal might present (Article 11 and Article 12 of the NLCA).

DOE participated in implementing NLCA iterative and time sensitive responsibilities. These included:

  • Impact and baseline project monitoring.
  • Impact reviews and screenings.
  • Data collection and dissemination for Land Use Plans.
  • Contributing to NGMP data collection.

This was done with the Caribou Pilot Project in partnership with federal bodies, Inuit Associations and NTI.

2.3 Department of Community and Government Services

The responsibilities of the Department of Community and Government Services (CGS>) related to NLCA Article 11 (Land Use Planning), Article 14 (Municipal Lands), Article 23 (Inuit Employment and Training), and Article 24 (Government Contracts).

The interim, year-to-year funding allowed municipalities to employ Land Administrators to manage and enforce planning and lands by-laws and other related by-laws and regulations. According to Article 14, municipal lands include all lands with its boundaries except Inuit Owned Land, Crown Lands, and lands owned in fee simple title other than the municipality.

The CGS Planning and Lands Section provided on going training to the Land Administrators by assisting them with daily transactions and enforcement issues. As well, CGS through the Municipal Training Organization provided five different Planning and Lands courses which are designed to train the Land Administrators.

Proper land administration reduces planning and lands issues that may delays individuals who wish to obtain a lease or mortgage. As well, it ensures that land issues will not impede economic development. Departments such as Nunavut Housing Corporation, Education, and Economic Development, and Transportation are dependant on the municipalities to provide developable land and land management in order to proceed with projects. Additionally, CGS and Finance are dependant on the municipalities to provide information about land leases so that the GN can collect land taxes.

2.4 Department of Justice

Nunavut Justice provided to all GN departments the legal services required to undertake the operations and processes mandated by the NLCA. These services included:

  • Advice and education services to other GN departments about their NLCA obligations. These included seminars and materials on Article 23, Article 32, and Article 24 of the NLCA, and the NNI Policy by which Article 24 is being implemented.
  • Assistance with NLCA-mandated legal procedures, such as expropriation and board hearings.
  • Arbitration and litigation relating to the NLCA, such as the matter of NTI v. Canada.
  • Support for implementation-related negotiation matters such as the implementation of the NNI Policy and negotiations to implement IIBAs.
  • Provision of legal service assistance concerning NLCA-mandated land transfers, including the correction of past transfers (Article 14 and Article 19 of the NLCA);
  • Legal support for the collaborative development of federal Archaeological and Paleontological Sites Regulations with the Inuit Heritage Trust (IHT) and INAC.
  • The establishment of the GN as the Designated Authority for the administration of permits and the revision of the permitting process in light of the regulations (Article 33 of the NLCA.)
  • Participated and consulted with a Designated Inuit Organization (DIO) and/or the federal government regarding implementation legislation required by the NLCA, including:
    • Nunavut Water Board and Surface Rights Tribunal Act (Federal);
    • Nunavut Wildlife Act (Nunavut);
    • Environmental Assessment Act (NIRB and NPC).

The Legislation Division responsibilities include:

  • Preparing all bills in English, French, and Inuktitut.
  • Preparing summaries of each Act and translating them into Inuktitut.
  • Assisting government departments and agencies in developing policies that are consistent with the NLCA that ultimately is reflected in legislation.
  • Publishing and making public the legislation enacted.
  • Ongoing development of a four-language website that will contain Nunavut's legislation.

Finally, the Department continued to provide assistance with NLCA-mandated legal procedures such as expropriation, board and tribunal hearings, and arbitration and litigation relating to the NLCA.

The Land Titles Office (LTO) administers the Land Titles Act (Nunavut) and provides guaranteed titles under a modern legal regime. The LTO is responsible for registering municipal and Inuit-owned lands under Articles 14 (Municipal Lands) and Article 19 (Title to Inuit-owned lands) of the NLCA Footnote 21. To understand the scope of this responsibility, it should be understood that it will take approximately one and a half years for the LTO to process the anticipated 3,000 additional registrations that have begun in 2009-2010 and this is expected to increase. At the same time, the LTO experienced a 26 percent increase in registration volume during the 2007-2008 fiscal year and an 86 percent increase in plan registrations.

In the 2008-2009 fiscal year, the LTO applied for, and obtained, funding to improve its database and to permit electronic submissions. This has facilitated the processing of regular registrations and will help with the anticipated volume of submissions resulting from the Article 14 transfers. With the improved database and current staff levels, the LTO is confident it has the capacity to complete the bulk of the Article 14 transfers in 2009-2010. It is estimated that 3,000 land parcels will be transferred in Fee Simple Footnote 22.

3. Government of Canada

3.1 Indian and Northern Affairs Canada

3.1.1 Land Administration Division

Pursuant to section 5.8 of the NLCA, the Land Administration provided Regional Inuit Associations (RIAs) with the right of first refusal before processing land applications for new sports or naturalist lodges in the Nunavut Settlement Area (NSA). As required under Article 7, Crown lands were made available to clients without an application fee for outpost camps approved by the local Hunters and Trappers Organizations (HTO) and screened by the Land Advisory Committee.

During 2008-2010, in accordance with Article 12, the Land Administration forwarded applications for 24 crown land dispositions, 55 land use permits, and 93 quarry permits to the NIRB for review and screening. Land Administration also participated in NIRB's hearing for the amendment to the Meadowbank Project Certificate.

Pursuant to sections 8.2.5 and 8.3.11 of the NLCA, Land Administration was active in two land exchanges. Agreements between the parties have been reached and Orders in Council's are being processed.

During 2008-2010, Land Administration continued to work jointly with the NWB in reviewing and approving the closure and reclamation plan for the Polaris Mine, the Nanisivik Mine, and the Cullaton Lake Mine.

Pursuant to Article 19 of the NLCA, Land Administration continued to review legal survey plans of selected parcels of Inuit Owned Land (IOL). All such surveys must be approved on behalf of the Minister. Land Administration received and signed off approximately 700 selected parcels of IOL between 2004 and 2010. A few outstanding plans have yet to be received and these still require review and approval.

Pursuant to sections 19.8.17 and 19.8.18, the Mining Recorder is responsible for resolving any disputes described according to the provisions of the Northwest Territories and Nunavut Mining Regulations in existence at the date of ratification of the Agreement. To date, no disputes have been registered with the Mining Recorder.

Under NLCA section 21.7.2, the Mining Recorder's Office pays quarterly lease rental payments to NTI on subsurface rights acquired prior to ratification of the NLCA and continues to administer these third party rights. In 2008-2010, there were approximately 60 such leases being administered by the Mining Recorder's Office.

Field Operations conducted a total of 243 inspections to ensure compliance of activities that have been authorized under Federal/Territorial Legislation. All authorizations have followed the processes established under the NLCA.

3.1.2 Environment Division

The Department continued to participate in the Nunavut Legislative Working Group in drafting the Nunavut Planning and Project Assessment legislation which serves to implement certain provisions of Articles 10, 11, and 12 of the NLCA. The bill has been designated Bill C-25 and will be introduced to the House of Commons shortly.

Pursuant to Article 11 of the NLCA, the NPC is responsible for developing a land use plan to guide and direct resource development in the NSA. The NPC currently implements two approved plans that were developed in the 1990s: The North Baffin Land Use Plan and the Keewatin Regional Land Use Plan. These two plans will be replaced by a single Nunavut Land Use Plan that is currently being developed.

In collaboration with the GN and NTI, Canada is providing guidance to the NPC in regards to how the land use planning process should be undertaken to meet our respective interests. INAC has assumed the lead federal role for coordinating interdepartmental input to assist the NPC with its Working Draft Land Use Plan. Concerted efforts have been, and continue to be made by Canada towards ensuring the draft plan is consistent with operational, policy, and legal requirements, including those outlined in the Draft Nunavut Planning and Project Assessment legislation.

The Environment Division has coordinated input from other INAC divisions to produce several environmental review submissions and has also submitted follow-ups to previous reviews under the NLCA. The submissions were for five projects: (1) Baffinland's Mary River Iron Ore project, (2) Bathurst Inlet Port and Road project, (3) Agnico-Eagle's Meadowbank Gold project, (4) Hope Bay Minerals Ltd's Doris North project and (5) Jericho Diamond Mine project. This work entailed submissions to the NIRB on environmental assessment processes, scoping, guideline development, process coordination with the NWB and the NPC, annual monitoring reports, and requests for suspension of review. The Division also participated in a guidelines development workshop for the Baffinland project.

The Division also coordinated INAC's intervention and participation at public hearings for the first amendment to a Project Certificate under section 12.8.2 of the NLCA. This amendment took place to allow limited public use on the Meadowbank all-weather road linking the mine to the community of Baker Lake, while ensuring environmental and safety risks are monitored and mitigated.

3.1.3 Minerals Division

Under the NLCA, the Minerals Division is responsible for notifying the DIOs of the discovery of any deposits of carving stone on Crown lands (section 19.9.1). These discoveries can be reported to the division either verbally or through annual assessment reports submitted to INAC by exploration companies working on Crown land. No carving stone was discovered on Crown land during the reporting period.

3.1.4 Water Resources Division

A strong working relationship has been developed and maintained with the NWB. The Water Resources Division continued to provide support to the NWB by reviewing and providing interventions to water licensing and implementation processes for municipal, mineral exploration and mining activities. These activities included review of securities for the Polaris mine site and the water license amendment(s), Aquatic Effects Monitoring Plan and operational plans for the Meadowbank mine site. Interventions and Aquatic Effects Monitoring Plans reviews were also provided for the Lupin mine Type A water licence. As part of the interventions, INAC provides an estimate of the abandonment and reclamation costs for the project so the NWB can set the amount of water related financial security to be held by Canada.

The Water Resources Division provides comments and recommendations to the NWB. During 2008-2009, there were 88 technical reviews, 35 plans, 60 monitoring reports, 49 annual reports, 2 additional information items, 3 assignments, 3 closures/reclamations, and 3 abandonments upon which the division provided comments. In 2009-2010, the division provided comments on 265 submissions for Type B water licences and 19 Type A water licences. In addition, there were two hearings (Rankin Inlet and Lupin).

The Water Resources Division collects baseline and non-regulatory water quality sampling at four DEW line sites, at sites in and around the City of Iqaluit, and through a cooperative agreement with the KivIA, collects samples in the Kivalliq Region. INAC-NWT, with support from the Northern Regional Office (NRO) )) Division, has funded Environment Canada to monitor water quantity through Hydrometric Monitoring in Nunavut. As well, through a Shared Services Agreement with INAC-NWT, meteorological data is collected by INAC-NWT/NU at transboundary sites and in areas near existing and potential mineral development.

The Nunavut Water Board and INAC are in the process of developing water regulations under section 82 of the Nunavut Waters and Nunavut Surface Rights Tribunal Act. The GN and NTI also are members of the Nunavut Water Regulations Development Group.

3.1.5 Contaminated Sites

For the purpose of maximizing opportunities for Inuit and Northern firms in Nunavut, the Contaminated Sites Program undertook a number of project specific activities. These activities are summarized in Appendix 3. The following sites are reviewed:

  • Bear Island: Project completion expected in 2010.
  • CAM-B (Hat Island): Project on schedule.
  • CAM-D (Simpson Lake): Work to commence in 2010.
  • CAM-F (Scarpa Lake): Site remediation work completed.
  • Cape Christian: Project is ongoing.
  • FOX-C (Ekalugad Fiord): Site remediation activities completed.
  • PIN-B (Clifton Point): Permit applications have been completed.
  • PIN-D (Ross Point): Phase III Site Assessment has been completed.
  • PIN-E (Cape Peel): Phase III Site Assessment has been completed.
  • Robert's Bay Mine Site: Project completion expected in 2010.

3.1.6 Corporate Services Division

Inuit representation rates at INAC's NRO Division have fluctuated over the last two years. At the start of the 2008-2009 fiscal year, the Inuit employment rate stood at 25 percent but had risen to 28 percent by year-end. With the creation of the Canadian Northern Economic Development Agency in 2009, the rate decreased as several positions were moved to the new agency. By March 31, 2010, the Inuit employment rate returned to 25 percent. An ongoing challenge with respect to Inuit representation is the limited pool of qualified Inuit who can fill the scientific, professional, and technical positions available within the NRO.

In an effort to increase the Inuit employment rate, the NRO has implemented various initiatives in the areas of recruitment, retention, and improving the cultural sensitivity of the workplace. These initiatives originate from the Inuit Employment Plans (IEP) (section 23.4.1-2 of the NLCA) and have been put into practice by the IEP Working Group and the Human Resources team. As a result, current NRO recruitment efforts ensure that all job postings support the provisions in Article 23 of the NLCA. For example, the Statement of Merit Criteria for job postings gives preference to qualified beneficiaries of the NLCA and seeks candidates who have knowledge of Inuit culture and society and/or can communicate in Inuktitut.

A renewal of the regional IEP Working Group was undertaken in 2009 in an effort to revitalize past work and to generate new approaches that improve Inuit employment. Membership consists of employees representing all directorates within the NRO. The Terms of Reference have been revised to ensure efforts are more focussed and effective. As one of its first priorities, the working group has taken on the renewal of the NRO Inuit Employment Plan, proposing new actions to ensure successful implementation.

The Inuit Summer Student Initiative is open to beneficiaries of the NLCA who are students in high school, college, or university and are returning to school at the end of their summer employment. The program is committed to hiring at least five Inuit students each year to give them the opportunity to learn more about the department and its mandate in the North in the hopes that they may consider full-time employment with INAC after completion of their post-secondary studies. Five Inuit students were hired in the summer of 2008-2009 and four in 2009-2010 to take on exciting and challenging summer work at NRO's main office in Iqaluit.

In the fall of 2008 the NRO launched a new ‘continuous job posting' open to beneficiaries of the NLCA. The job posting is open for an indefinite period to build an inventory of qualified Inuit to fill current and future vacancies in entry-level positions such as Administrative Assistants and Land Administration Clerks. There tends to be a higher turnover in these positions as candidates gain new skills sets which enable them to move into higher-level positions in the organization.

The NRO strongly supports the personal and professional development of staff and considers this to be a critical factor for the success of all employees. Through the Employee Performance Management and Learning Plan, employees are given the opportunity to discuss with management work performance and the setting of goals and objectives. This process requires employees to identify the required training needed to carry out the established goals and objectives. In addition, employees have the opportunity to discuss career aspirations with their supervisor in order to identify learning activities that can develop their skills for future jobs.

All NRO employees have been offered beginner, intermediate, or advanced Inuktitut language training. The program was initiated to allow staff to gain knowledge of a new language or to develop further their language skills. The training provides an opportunity for employees to learn more about Inuit culture and society and to incorporate this knowledge into their work environment. The NRO has also offered French language instruction to all employees in an effort to build capacity of Inuit to take on future jobs in the Federal Public Service.

3.1.7 Nunavut General Monitoring Plan

Throughout 2008-2009, the NGMP Working Group (comprised of NTI, NPC, INAC, and the GN) completed the NGMP Business Case, including a synopsis, implementation strategy, and five-year work plan. The NIP was briefed on the progress of NGMP during their January 2010 meeting. At the same time, the NRO had worked extensively with counterparts in HQ on exploring resourcing options for NGMP.

3.1.8 Northern Oil and Gas

Managing the development of oil and gas resources for Canada's federal lands in the Northwest Territories, Nunavut, and the northern offshore resources is the responsibility of the Northern Oil and Gas Branch of INAC is charged with this responsibility. The effort is to balance the northern and national interests in the context of Aboriginal land claims, to promote investment in the sustainable development of northern resources, and to provide related information and advice.

Annual calls that have been held in the Arctic Islands resulted in 19 significant discoveries including the Bent Horn field which produced high-quality light oil for many years on a seasonal basis has only recently been abandoned.

Each year, in advance of the annual call, the Department contacts NTI and requests information on the areas under consideration for the call, specifically, areas around the Parry and Melville Islands in the Svedrup Basin.

3.1.9 Devolution

While devolution is not an implementation requirement under the NLCA, section 2.10.2 does not restrict the authority of the Government of Canada to devolve or transfer powers or jurisdiction to the Territorial Government provided the rights of Inuit in the Agreement are not abrogated or derogated.

The devolution of province-like responsibilities to the territories has been a long-standing federal policy objective. Since the 1970s, Canada has seen devolution as a means to ensure greater local control and accountability by northerners for decisions central to the territories. The negotiation process involves territorial governments and Aboriginal groups. To date, education, health, and airports are among the responsibilities devolved to the territory of Nunavut.

The most recent discussions have focused on the devolution of the land and resource management responsibilities retained by the Crown. It is considered the final significant area of "province-like" responsibility to be devolved to the Government of Nunavut.

In September 2008, the Government of Nunavut, NTI, and Canada signed the Nunavut Lands and Resources Devolution Negotiation Protocol. The Protocol identifies topics for negotiation and sets out a phased approach in which they are to be addressed, with an initial phase encompassing lands, waters, and onshore minerals, and a second phase including oil and gas. It also asserts the role of NTI as a full party to negotiations, and speaks to the need for devolution-related human resource capacity challenges to be addressed, and to matters of process.

Following his appointment as Chief Federal Representative in February 2009, Mr. Bruce Rawson, engaged the other Parties in exploratory discussions about devolution-related issues including human resource capacity development challenges.

In July 2009, Canada released the Northern Strategy which included the priority of improving and devolving northern governance. As a core element, this encompasses devolution of land and resource management. Further, the March 2010 Speech from the Throne stated that Canada would, "continue to give Northerners a greater say over their own future and take further steps towards territorial devolution." This statement reiterates the Northern Strategy commitment to improve and devolve governance in the North.

3.2 Department of National Defence

The Department of National Defence (DND) continues to be proactive in working with Northern communities and partners. During the 2008-2010 period, many new initiatives were undertaken or proposed and many are ongoing. These include:

Canadian Rangers: The Canadian Rangers continue to be supported by, and support, DND operations in the North. This includes reconnaissance and surveillance patrols. The 2009 annual Canadian Forces High Arctic Operation (Op Nunalivut) marked the most northerly patrols where the Rangers have participated. More information about the Canadian Rangers and Op Nunalivut can be found at the following Internet sites:

  • Canadian Rangers: http://www.army.forces.gc.ca/land-terre/cr-rc/index-eng.asp
  • Op Nunalivut: http://www.canadacom.forces.gc.ca/daily/archive-nunalivut-eng.asp

Junior Rangers: The Junior Rangers program is ongoing, with meetings between Junior Rangers and their cadet counterparts, and a new youth arts program. More information is available at the following Internet site:

  • Junior Rangers: http://www.rangers.dnd.ca/fea-pro/02062010-eng.asp

Training: DND offers several training programs, including academic training, athletics, the Canadian Forces Aboriginal Entry Program, Aboriginal Leadership Opportunity Year, Aboriginal Awareness Training, and more. More information can be found at the following Internet sites:

  • Aboriginal Training: http://www.forces.ca/en/page/aboriginals-93
  • Aboriginal Leadership Opportunity Year: http://www.rmc.ca/ji-ir/alo-pil/index-eng.asp

Infrastructure: Projects such as the deep-sea port Nanisivik Naval Facility and the PIN-3 Reconstruction at Lady Franklin Point (part of the North Warning System) provide - or will provide - employment in Nunavut and will contribute to local economies. See, for example, the following Internet site:

  • Nanisivik: http://www.forces.gc.ca/site/commun/ml-fe/article-eng.asp?id=5711

Military Exercises: Military exercises conducted in the north, such as the Op Nanook exercise, provide employment, and contribute to local economies. More information can be found at the following Internet site:

  • Op Nanook: http://www.canadacom.forces.gc.ca/spec/nanook-eng.asp

Contracting: DND has numerous contracts in Nunavut for projects that provide employment and income to local communities. These include research and development in support of Canadian Forces and Public Safety Canada, Distant Early Warning Line clean up, maintenance of Canadian Forces Station Alert, air- and sealift resupply to operations and to the Rangers, and a new Arctic Training Centre at Resolute Bay. See, for example, the following Internet site:

  • Resolute Bay: http://www.pm.gc.ca/includes/send_friend_eMail_print.asp?id=1785

Procurement Strategy for Aboriginal Business: During the 2008 calendar year, Public Works and Government Services Canada (PWGSC) awarded, on behalf of DND, more than 686 contractual documents across Canada with a total value of $57.4 million. This total value exceeded the DND/Canadian Forces target by $27.4 million. The target set for 2009 was $30 million and was exceeded by $38 million as the department achieved $68 Million in Aboriginal procurement. The DND Material Group awarded Aboriginal vendors/suppliers in Nunavut $580,000 for 2008-2009 and $769,000 for 2009-2010. The agreements covered a diverse range of goods and services including hazardous materials removal, logistics support, air charter services, computers and accessories, fuel, informatics professional services, food catering, and transportation services.

3.3 Environment Canada

Environment Canada opened its Nunavut office in Iqaluit in 1999, and currently maintains a staff of 12 employees dealing with wildlife, environmental assessment, contaminated sites, environmental enforcement, and weather stations. Many of the activities undertaken by the department are pursuant to specific articles of the NLCA.

The objectives of Article 5 (Wildlife) of the NLCA are to create a system of harvesting rights, priorities and privileges, and wildlife management, including establishment of the NWMB. The current Environment Canada-CWS appointment to the NWMB is Mr. Kevin McCormick.

Throughout the year, Environment Canada-CWS undertook community consultations, presented briefings and information to the NWMB, and took part in public hearings in relation to the Species at Risk Act (SARA), for decisions on species listings, or approval of recovery and management plans.

With respect to Article 8 (Parks), Environment Canada-CWS appointed Dr Steve Wendt as a member of the Sirmilik Joint Park Management Committee (JPMC). In addition, Environment Canada-CWS participated in activities of the Sirmilik Park Planning Team.

Article 9 (Conservation Areas) of the NLCA outlines obligations relating to conservation areas in Nunavut, including conservation and management of existing and new conservation areas, and IIBAs. In August 2008, after 8 years of negotiation, an IIBA was signed between Environment Canada-CWS, NTI, the three RIAs, and the Namautaq HTO. The Agreement fulfills the obligation under section 9.4.1 of the NLCA to conclude an IIBA for bird sanctuaries and National Wildlife Areas (NWAs) in the NSA. The umbrella agreement covers eight bird sanctuaries and five NWAs as well as the development of three new NWAs. In addition, four Area Co-management Committees under the IIBA have been established and trained.

Inuit Field Research Assistant and Inuit Student Mentorship programs were established and implemented through the IIBA. In 2010-2011, Environment Canada-CWS mentored an Inuit student in each of the Yellowknife and Iqaluit offices. Additionally, 12 different Environment Canada wildlife projects hired a total of 14 Inuit Field Research Assistants. More information can be found at the following Internet sites:

  • http://www.tunngavik.com/2008/08/22/inuit-and-environment-canada-sign-historic-iiba-for-conservation-areas/
  • http://www.ec.gc.ca/default.asp?lang=En&n=714D9AAE-1&news=1888CBF6-5A68-40A2-8653-25F4FCF188BF

Environment Canada is engaged in the development of the Nunavut Land Use Plan (Article 9 of the NLCA) through a federal working group led by INAC. Environment Canada is a major contributor of science and policy information in relation to migratory birds, species at risk, habitat identification, conservation and protection, cumulative impact thresholds identification, watershed conservation, and climate impacts on land use and zoning. All of these contributions extend to the marine zone.

Environment Canada-Environmental Protection and Operations Division (EPOD) staff located in Edmonton and Yellowknife continue to participate in the clean-up of contaminated sites in Nunavut, reviewing proposals for the clean-up of abandoned former DEW Line Sites, as well as abandoned military sites, navigational aids, mine sites, and fuel caches. Environment Canada-EPOD staff also continue to participate in site investigations, and administering the Federal Contaminated Sites Accelerated Action Plan.

Pursuant to Article 12 (Development Impact), Environment Canada continues to review project proposals and provide advice to the NIRB on proposed development activities within Nunavut, including both Part 4 and Part 5 reviews. Environment Canada - EPOD staff continue to participate in the implementation of project certificates issued by the NIRB.

Additionally, Environment Canada has provided comments and advice in response to draft legislation for the Nunavut Project Planning and Assessment Act and Environment Canada-CWS have issued permits under the Migratory Bird Convention Act including:

  • Access to Migratory Bird Sanctuaries and/or
  • Research on migratory birds and/or
  • Access to NWAs under the Canada Wildlife Act.

These were reviewed in coordination with conformity and screening requirements by the NPC, and the NIRB, respectively.

In addition to wildlife monitoring, Environment Canada also monitors environmental conditions at 23 weather stations across Nunavut and collects and disseminates water resource information at 42 locations across the territory.

Pursuant to Article 13 (Water Management), Environment Canada continues to participate in the water licensing process in Nunavut through the provision of advice to the NWMB on applications and participation in public hearings on water license applications.

In support of Article 23 (Inuit Employment within Government), Environment Canada has 12 occupied indeterminate positions in Iqaluit: one Enforcement Officer, two with the Meteorological Service of Canada, two with the EPOD, and the remaining seven with CWS. Three of the latter positions are occupied by NLCA beneficiaries, one in a scientific/technical position, one in a program management capacity, and one in an administrative position. In addition to these permanent positions, most Environment Canada-CWS field programs hire and train individuals from nearby communities to work as wildlife research assistants, and an Inuit student is being mentored in the Iqaluit office.

3.4 Department of Canadian Heritage

During the reporting period, the Department of Canadian Heritage provided support to a wide range of projects and initiatives brought forward by Nunavut organizations. Activities included human resource development, heritage preservation and education, Canada Day celebrations, and Aboriginal culture and language programming, among others.

3.4.1 Arts and Heritage

Canadian Heritage previously funded the IHT to elaborate a strategic plan for Nunavut's heritage sector along with a comprehensive training strategy for heritage workers. The resulting program was piloted by IHT in Ottawa in September 2008 and in Pond Inlet in March 2010, with participants from 11 Nunavut communities. The ongoing delivery of the program will result in improved skills among heritage personnel for the care and interpretation of collections, and improved preservation of Nunavut's heritage.

Canadian Heritage supported a number of special projects that contributed to heritage preservation and education. The Museums Assistance Program provided funding to Kitikmeot Heritage Society in Cambridge Bay for projects involving cataloguing materials, replicating artefacts, and developing an exhibition with complementary interpretive materials such as audio stations featuring interviews with Elders. Under the Partnerships Fund of Canadian Culture Online, the Qikiqtani Inuit Association received funding to develop the educational website entitled The Forgotten Story of the Inuit Whalers, which explores the history of Inuit people involved in the whaling industry in the Eastern Arctic.

Through the Canada Arts Training Fund (formerly the National Arts Training Contribution Program), Canadian Heritage funded Rankin Inlet's Kangirqliniq Centre for Arts and Learning in 2008 and 2009 for artist training. The Centre offers a unique 16-week workshop that combines artistic development with instruction in reading and arithmetic that is geared toward assisting the artists with the business of pursuing a career. The primary focus is on ceramics but other media such as printmaking and jewellery are included. Work produced by the workshop participants is widely recognized for its quality and innovation, and graduates are receiving exposure on a national and international scale.

The Canada Arts Presentation Fund (formerly Arts Presentation Canada) continued to provide programming assistance to the Alianait Festival in 2008 and 2009, including supplementary funds in recognition of the event's community engagement activities. In 2008-2009, the Canada Cultural Spaces Fund (formerly Cultural Spaces Canada) provided funding to the organizers to purchase a large outdoor performance tent, a modular stage, and specialized sound and lighting equipment, in order to increase the festival's audience size and technical capabilities. Alianait has evolved into a major arts festival and has contributed significantly to professional arts presentation in Nunavut.

3.4.2 Languages

The GN was assured continued funding in 2008-2009 through the Canada-Nunavut General Agreement on the Promotion of French and Inuit Languages. A portion of funding was used to support a forum by the Association des francophones du Nunavut. The forum on French languages services was organized in order to consult and inform Franco-Nunavummiut about their rights and obligations with respect to the newly adopted Official Languages Act. The agreement also supported a range of community-based initiatives designed to promote the use and development of the Inuit language. A new one-year agreement for the promotion of French and Inuit languages was signed for 2009-2010 with the GN.

The Department's Aboriginal Languages Initiatives (ALI) continued to support the preservation and revitalization of Aboriginal languages by facilitating their use in community and family settings. During the reporting period, QIA and KivIA served as regional agents for the delivery of the ALI in Nunavut. They supported a range of activities including the digitization of interviews concerning traditional knowledge, the production of magazines for young people, and Inuktitut summer camps. In 2010, several Inuit organizations in Nunavut were contacted to provide their views regarding the renewal of ALI. As per Article 32.2.1 of the NLCA, Canadian Heritage will provide Inuit organizations with the opportunity to participate in the design of cultural programs and will take these views, along with those of other program recipients, into account when moving forward with program renewal for ALI.

3.4.3 Youth

Through the Cultural Connections for Aboriginal Youth (formerly Urban Multipurpose Aboriginal Youth Centres) program, Canadian Heritage provided funding to QIA and KivIA for various youth-oriented programs. In the reporting period, the regional associations received funding for a range of activities, including camp programs, a video workshop, and a traditional clothing-making workshop, among others. Canadian Heritage held a national workshop on April 2009 to identify program best practices, issues, and challenges and to help establish national priorities for the program in the future. In meeting the spirit and intent of section 32.2.1 of the NLCA, several participants involved in youth activities in Nunavut were invited to attend and to present their views.

3.4.4 Canadian Heritage Portfolio

The Canadian Heritage portfolio has five agencies and nine crown corporations. During the reporting period, there was a Nunavut-focused initiative by the Canada Council for the Arts. In 2008, the Council determined that a targeted strategy for the North was warranted. For the medium term, the Council decided to focus on Nunavut while participating as a secondary partner in initiatives unfolding in the other territories and in the northern provincial regions.

Since 2008, Canada Council for the Arts officers and managers have visited Nunavut on a number of occasions to deliver information sessions, attend conferences, and pursue discussions with other government funders and potential partners. In May 2009, the Council held a two-day consultation in Ottawa with nine Inuit artists and arts administrators which included participants from Nunavut. In January 2010, the Council participated in the Northern Lights Trade Show in Montreal, supporting travel to the event by artists from Nunavut, hosting a networking event for artists, and organizing a tri-level meeting of arts funders. The Council's Research Office produced an Inuit art fact sheet and completed a review of existing labour force data in Nunavut Footnote 23. These activities have contributed to a discussion paper and a proposal for a strategy that will focus the level of service available to the arts community in Nunavut. The Council is working in collaboration with other funders and arts organizations to finalize the strategy and to determine the best approach for implementation.

In June 2009, the Canadian Museum for Human Rights held roundtable and bilateral meetings in Iqaluit as part of a content- and story-gathering tour across Canada. The Museum will explore the subject of human rights and encourage reflection and dialogue in order to promote understanding of human rights and respect for others. The Iqaluit event provided Nunavummiut with the opportunity to contribute their experiences and perspectives to the development of exhibitions and programs for the new museum. The Museum's representatives also conducted media interviews that aired across Nunavut, in order to raise awareness of the Museum across the territory and to invite Nunavummiut to contribute to the development of this new national institution. Located in Winnipeg, Manitoba, the construction of the Canadian Museum for Human Rights will be completed in 2012.

3.5 Parks Canada

3.5.1 Background

The Nunavut Field Unit of the Parks Canada Agency manages four National Parks in Nunavut: Auyuittuq, Quttinirpaaq, Sirmilik, and Ukkusiksalik Footnote 24.

3.5.2 Joint Park Management Committees

JPMCs composed of three members appointed by QIA and three members appointed by Canada have been established for each of the Auyuittuq, Quttinirpaaq, and Sirmilik National Parks. Members are appointed for three years and each JPMC meets at least twice a year. Teleconferences may also take place. The JPMCs oversee the development of park management plans, yearly work plans, budgets, research, and monitoring projects.

3.5.3 Ukkusiksalik Park Management Committee

Members to the Ukkusiksalik Park Management Committee are appointed by Canada and KivIA who each appoint three members equally. Terms are for 4 years. Committee members meet at least twice a year and also can meet by teleconference.

3.5.4 Inuit Knowledge Project

The 5-year Inuit Knowledge Project aims to build a sustainable framework for incorporating Inuit knowledge into Nunavut national park management and operations - a commitment in the single Inuit Impact Benefit Agreement for Auyuittuq, Quttinirpaaq and Sirmilik National Parks as well as the Inuit Impact Benefit Agreement for Ukkusiksalik National Park in Nunavut. The project's broad objectives are to:

  • Enhance the understanding of Inuit knowledge with respect to the national parks.
  • Increase the capacity of Parks Canada and communities to engage in collaborative research and management decision-making.
  • Gain greater understanding of Inuit knowledge, skills, expertise, and perspectives that can be used by staff of the Auyuittuq, Sirmilik, and Ukkusiksalik National Parks.
  • Improve and strengthen Parks Canada's ecological integrity research and management programs.
  • Strengthen local Inuit involvement in park management.

As part of the Inuit Knowledge Project, a variety of materials has been produced including audio and video tapes, transcripts, and maps. To facilitate communication and the sharing of information between project partners, a website has been launched (www.lecol-ck.ca) with detailed information on the project Footnote 25. Following the end of the project March 2011 the next step will be to incorporate the project's lessons into ongoing park management.

3.5.5 Research and Monitoring

In 2008, under Section 6 of the IIBA for Auyuittuq, Quttinirpaaq, and Sirmilik National Parks, 25 research applications were reviewed in consultation with the JPMCs and 22 permits were approved to continue. In 2009, 21 applications were reviewed and 17 projects were active in the Nunavut National Parks. The majority of permits are related to natural science and some archaeological/cultural resources project. Fifteen projects involved beneficiaries as research assistants, bear monitors, camp labourers, or as advisors.

Annual monitoring projects for water quality continue in thee parks and for water flow in two parks. In 2009, tundra-monitoring activities were expanded to include three parks. Two new community-based programs in Qikiqtarjuaq were implemented in 2009: the Nunavut Coastal Resources Inventory in partnership with the Government of Nunavut, and Sea Ice Monitoring. A third community-based program, the Sea Ice Calendar, was developed for Pond Inlet and Qikiqtarjuaq.

3.5.6 Cultural Resource Management

Update on the Implementation of NLCA Article 33: Archaeology; and implementation of Article 4 of the IIBA for Auyuittuq, Quttinirpaaq, and Sirmilik National Parks: Protection and Management of Archaeological Sites and Sites of Religious or Cultural Significance.

The following activities were undertaken with respect to Article 12 (Development Impact) and Article 33 (Archaeology) of the NLCA and Article 4 (Protection and Management of Archaeological Sites and Sites of Religious or Cultural Significance) of the IIBA for Auyuittuq, Quttinirpaaq, and Sirmilik National Parks.

Development Impact (NLCA Article 12): In 2008, NIRB granted Parks Canada a three year exemption under Schedule 12-1(7) of the NLCA for Research and Collection Permits only. In accordance with the agreement, Parks Canada has provided NIRB with copies of all issued research permits and with field reports to allow the Board to track the Parks Canada's application of the exemption. Other non-research related permits such as cruise ship permits and National Defence special activities permits have been sent to NIRB for screening. Where there is uncertainty over whether a screening is required, NIRB is consulted.

Place Names (NLCA section 33: Part 9): In 2006, the IHT submitted a proposal to officially change and name 43 geographical locations in Sirmilik National Park - 38 are new names and 5 would replace existing official geographical names. The Nunavut Field Unit and the JPMC are working together to initiate the approval process for the IHT proposal.

Reconstruction of Archaeological Sites (IIBA for Auyuittuq, Quttinirpaaq and Sirmilik National Parks, Article 4.1.5 (b)): The Nunavut Field Unit and the University of Calgary have entered a partnership to construct a 3D computer model of Fort Conger in virtual reality using three-dimensional laser scanning. This will provide the foundation for a successful cultural resource-monitoring program at Fort Conger. The project is for two years beginning in 2010-2011.

Areas of Special Importance to Inuit (IIBA for Auyuittuq, Quttinirpaaq and Sirmilik National Parks, Article 8: Schedule 8-1 (2)): The IIBA identified areas of special importance to Inuit within Sirmilik National Park and calls for the management plan to develop restrictions on visitor access to be developed. The Nunavut Field Unit and the University of Quebec are in the process of developing a partnership to research a sickness that took the lives of 24 people in the fall of 1943 at Qamaarjuit, Nalluat, Qirngniqtut, and Titiralik. These are located in Navy Board Inlet. This project will take place in 2010-2011 and will involve archival research relating to the events (RCMP, National Archives, and Anglican Church Archives) and a compilation of existing oral histories.

IIBA Negotiations (NLCA 8.4.2-8.4.10 and 9.4.1): In 2009-2010, Parks Canada initiated negotiations with the QIA for a national park on Bathurst Island (section 8.2.1). Discussions on an IIBA for national historic sites (Article 9.4.1) took place in 2007-2009, but they were placed on hold. NTI and Parks Canada have discussed scheduling the recommencement of negotiations on this IIBA for the fall 2010. Discussions to nominating Quttinirpaaq National Park as a World Heritage Site were initiated in 2006. However, these discussions were put on hold because Parks Canada has not been able to secure additional funding to support the nomination process and the negotiation and implementation of related IIBA obligations. No further progress on the World Heritage site nomination has been made since 2006.

National Marine Conservation Areas (NLCA Articles 8 and 9): In December 2009, the Government of Canada, the GN, and QIA signed a Memorandum of Understanding with respect to a study to examine the desirability and feasibility of establishing a national marine conservation area within the Lancaster Sound Marine Region.

Nunavut Land Use Planning (NLCA Article 11): Parks Canada provided input on the Nunavut Land Use Planning process to the NPC in 2009 and 2010.

Management Planning (NLCA section 8.4.13): Parks Canada has been working closely with Joint Inuit-Government Park Planning Teams and the JPMCs for Quttinirpaaq, Auyuittuq, and Sirmilik National Parks in the development of their management plans. All planning meetings are conducted in Inuktitut and English, and all materials for the meetings are produced in both languages. In October 2009, the Minister of the Environment tabled the Quttinirpaaq National Park of Canada Management Plan in Parliament, the first for a national park in Nunavut since the NLCA was signed. The approval process for the final draft of the management plan began at the end of the 2009-2010 fiscal year. The first step of the management planning process for Sirmilik National Park began in 2007. This process is ongoing.

3.5.7 Visitor Experience and Inuit Access

Between April 2008 and the end of March 2010, visitors to the National Parks in Nunavut paid user fees with the exception of Ukkusiksalik where the park has not yet been gazetted. Inuit have free and unrestricted access to the parks. As part of pre-trip information and the mandatory orientation, visitors are informed that Inuit have unrestricted access to national parks in Nunavut and have the right to harvest resources. Visitors are told they may encounter Inuit carrying out their rights. Cultural information is provided to park visitors about local communities and their use of the park area. Visitors are encouraged to use local tour operators and guides, and to see the cultural component of their trip as an added benefit.

3.5.8 Inuit Tour Operators and Contractors

Between April 2008 and March 2010, Inuit Tour Operators and Guides constituted a significant part of business and guide licensees. Inuit businesses provide transportation to and from Nunavut parks. They have assisted film crews, expeditions, and climbing groups during their projects, and have assisted ski and hiking groups to access the parks. Inuit owned businesses have provided contract work for the design and printing of several publications, assisted with design, fabrication, and/or the installation of exhibits, provided Elder advice and cultural elements for training, fabricated elements of educational materials, and provided goods and services linked to community events and gatherings.

3.5.9 Advertising and Promotion of National Parks

During 2008-2010, Parks Canada placed advertisements in Above and Beyond magazine and Up Here magazine, developed two insert products for the magazines to highlight the parks in Nunavut, and attended several tradeshows in Toronto, Montreal, Ottawa, and Iqaluit to promote Nunavut's national parks. Promotional materials also were provided to Nunavut Tourism to be used at international tradeshows and media shows. Park information sheets to augment vacation planners were developed as well as a regional park planning product for use in visitor centres and at the national call centre.

3.5.10 Publications, Films, Videos, and Exhibits

All Parks Canada publications are developed with advice and assistance from the park's JPMCs and is produced in Inuktitut, English, and French. Between April 2008 and March 2010, Parks Canada developed and printed park posters, designed and/or reprinted maps/brochures for the Sirmilik and Quttinirpaaq National Parks. Additionally, a curriculum element for Nunavut schools (grade 7-9) was developed called The Environmental Stewardship Certificate Program, which includes a teachers' guide, audiovisual materials, and hands on materials. Several film and video projects were developed and some have been broadcast already. The Quttinirpaaq National Park exhibit was installed in the Resolute Bay Airport with local Inuit involved in the development, installation, and on-going maintenance of the exhibit.

The Sirmilik exhibit was installed in Arctic Bay at the Heritage Centre and utilized local people to fabricate most of the tools and clothing developed for the exhibit. The exhibit was developed in conjunction with the community and the Sirmilik JPMC.

3.5.11 Outreach and Education

During the reporting period, the Environmental Stewardship Certificate Program was developed and was presented in a workshop at the February 2010 Teachers Conference. The Know Your Park initiative was developed and presented in Iqaluit and in many of the Nunavut communities associated with parks. As well, Avalanche Awareness programs took place in several communities. A cruise ship readiness and interpretive training pilot program was developed and delivered to local people interested in working with the cruise industry. Another pilot program involved Parks Canada staff delivering interpretive programs to cruise visitors while on board a ship. Interpretive and information programs for visitors in the communities were undertaken and Elder Hostel programs were delivered.

3.5.12 Inuit Employment

Parks Canada's hiring process for Nunavut gives first priority to Inuit NLCA beneficiaries. As of January 31, 2010, Inuit employment was 57 percent. A member from the JPMCs or the Ukkusiksalik Park Management Committee participates in the screening and interview process. When JPMC members are not available, the QIA or KivIA participate in the screening and interview process.

3.6 Fisheries and Oceans Canada

Since the signing of the NLCA in 1993, the Department of Fisheries and Oceans (DFO) has incorporated its obligations and responsibilities under the NLCA into its mandate. DFO is committed to meeting its NLCA responsibilities and to fulfilling its mandate through various cooperative initiatives and projects such as monitoring, enforcement, research, management, planning, and fisheries development.

DFO provides the most reliable, accurate, and current data and advice possible to the Nunavut (NWMB in order for it to make informed management decisions with respect to wildlife issues in the NSA.

As an imperative component of DFO's obligations, the Eastern Arctic Area office is responsible for issuing offshore Greenland halibut and shrimp fisheries licenses for Nunavut quotas within and outside the NSA. In 2009, as a result of DFO's scientific stock assessment efforts, the North Atlantic Fishery Organization decided to increase the Canadian turbot quota in Subarea 0B by 1,500 metric tonnes. Accordingly, DFO allocated 90 percent of this turbot quota increase to Nunavut-based entities and the remainder was allocated to Nunavik.

Throughout the reporting period, DFO continued to monitor narwhal and beluga harvests in communities under Community Based Management. As well, Fisheries, Oceans monitored walrus sport hunts, and the commercial, domestic, and sports fishing of arctic char. DFO's frequent patrols to monitor harvesting activities were supplemented in communities without stationed officers through a longstanding collaboration with GN wildlife officers.

DFO staff worked with communities and local organizations to provide conservation education in schools and at public meetings to promote the sustainable and practical harvest and use of marine mammals and fish.

A total allowable harvest (TAH) of three bowheads each year for three years (2009-2011) was established by the NWMB and approved by the Minister of Fisheries and Oceans in 2009. Each year, the three RWOs decide which three communities can harvest one bowhead whale each during the summer-fall hunt.

DFO has obligations under the NLCA to provide for the sustainable management and conservation of fisheries stocks within the NSA. DFO is committed to the sustainability of fish stocks through the development of management plans with co-management partners. Work is underway on management plans for turbot, Greenland halibut, and Cumberland Sound char stocks.

Marine mammal working groups have been established for the management of Foxe Basin walrus, North Hudson Bay narwhal, and Gulf of Boothia narwhal. These working groups are developing management plans in consultation with co-management partners and local HTOs.

DFO is supportive of the exploration of new and emerging fisheries in Nunavut, such as ongoing assessment of the economic viability of char and turbot fisheries. For example, DFO has been collaborating with the GN's Department of Environment, Fisheries and Sealing division; Canadian Northern Economic Development Agency; and local Pangnirtung fisheries to assess the potential of inshore summer turbot in Cumberland Sound. This project has the potential to create economic opportunities to local harvesters as well as increase employment opportunities at the Pangnirtung fish plant.

The DFO Nunavut Implementation Fund has provided the DFO Science Branch with significant funding for fisheries stock assessment research projects within the NSA. Projects are frequently co-funded by other funding bodies and contributors such as the NWMB, the GN Department of Environment, and Canadian Northern Economic Agency. Some projects are multi-year initiatives. These are considered annually for funding along with other project proposals but are typically considered priority projects in order to ensure their completion and the analysis of information in a useful manner. The data collection of the approved research projects is carried out by DFO staff in cooperation with local hunters and HTOs. Whenever possible, DFO strives to involve community members and resources during project development and during fieldwork. Typically, DFO staff provides project summaries to communities during the research phase of projects and after the project is completed.

DFO is committed to fulfilling its habitat protection obligations under the NLCA. Throughout the reporting period, the Department continued to work with co-management partners such as the GN, NWMB, and other federal departments on habitat protection issues.

During the reporting period, DFO continued to provide comments and advice to the NIRB and the NWMB on the monitoring of potential development impacts on fish and fish habitats. DFO's Habitat Section continued to work on the environmental assessments of resource development within the NSA by adhering to both the NLCA and the Fisheries Act. When applying for an authorization to undertake a development project that could affect fish habitats, applicants must provide baseline information on fish and fish habitat within the proposed project area. Subsection 35(2) of the Fisheries Act includes compliance and effectiveness monitoring and reporting requirements. The monitoring programs described in the authorization must be implemented to ensure that compensation and mitigation measures are installed, maintained, and functions as intended. To ensure that these conditions are met, DFO conducts compliance monitoring site visits.

The Department conducts an ongoing research program to evaluate the population status of marine mammals, fish, and invertebrates harvested in Nunavut's commercial and subsistence fisheries and hunts in order to support the departmental fishery management and the NWMB. The research is conducted within an ecosystem context to include input from beneficiaries through the incorporation of traditional ecological knowledge and collaboration through community based monitoring (CBM).

3.6.1 Marine Mammals

The focus of the marine mammal research was to estimate the abundance and population dynamics of key species. During the period 2008 - 2010, surveys to estimate abundance were conducted for the following:

  • Northern Hudson Bay and Admiralty Inlet narwhal.
  • Cumberland Sound beluga.
  • High Arctic, Foxe Basin and South East Baffin walrus.
  • Western Hudson Bay seals.

Tracking and dive recording studies are conducted to assist in the interpretation of survey data. These studies were completed for beluga, bowhead, and narwhal.

An integral component of marine mammal management is to understand the stock structure of species to ensure that harvest does not cause local or population wide decreases in abundance. The Department used a combination of genetic and tracking studies to define marine mammal stock structure during the reporting period. These studies focused on walrus, narwhal, beluga, and bowhead whale populations.

Determining the disease and contaminant (e.g. mercury concentrations) burdens in marine mammals is an important element in evaluating the population health of marine mammals and are important indicators of environmental change. In conjunction with CBM marine mammals sampling programs in various Nunavut communities, a surveillance program to detect "emerging infectious diseases" of concern has been ongoing since the mid 1990s. To estimate the impact on population productivity, the Department uses its CBM collaboration with communities to determine trends in contaminant burdens among marine mammals. In addition, the Department communicates the results of these investigations to both Canadian Food Inspection Agency and Health Canada in respect of their mandates to ensure a sustainable marine mammal resource for future generations and to protect the health of Canadians.

Climate change has the potential to affect significantly the abundance and distribution of marine mammals, largely due to shifts in ice and local productivity. In collaboration with communities, the Department has monitored the increased distribution and seasonal duration of killer whales in the Arctic. The Department is using this information to estimate the impact of killer whale predation on the abundance, distribution, and sustainability of marine mammals traditionally consumed by the residence of Nunavut.

3.6.2 Fish and Invertebrates

DFO is committed to ensuring the sustainability of fish stocks through the development of management plans with co-management partners. In support of these initiatives, DFO Science is conducting ongoing surveys to determine the abundance of fish and invertebrate species. Work is underway on stock assessments for Greenland halibut and northern shrimp. In addition, the department has conducted Arctic char stock assessments throughout Nunavut to advise on sustainable harvest of stocks from Cambridge Bay, Kivalliq, and Cumberland Sound.

The Greenland halibut commercial fishery in Davis Strait and Baffin Bay is the largest commercial fishery in Nunavut. The Department uses the multi-species survey to provide advice to managers on sustainable TAH for the fishery. The Department recommended and implemented a 500 tonne increase in the TAH for the fishery in 2010. In addition, the Department has advised managers on the impact of fishing gear on marine mammals and sharks.

The northern shrimp fishery has developed into an important industry for the residents of Nunavut. The Department conducted multi-species trawl surveys in shrimp fishing areas 0, 1, and 3 to estimate the abundance of northern and striped shrimp. Surveys provide the data for advice on sustainable TAH in the fishery. In addition, the surveys provide information on the distribution and abundance of other species including coral, sponges, and other benthic organisms. This information can be used for the identification of vulnerable marine ecosystems and ecologically and biologically significant areas in marine environments of the NSA.

DFO is developing an emerging fisheries science program centred in the Cumberland Sound area to support the expected increase in harvest of Arctic char, Greenland halibut, and other species arising from the harbour development in Pangnirtung. New surveys for marine fish and Arctic char are being conducted.

Development of a harbour in Pangnirtung is a significant priority for DFO. During the last two years, the federal government has designed and has begun constructing the small vessel basin, marshalling area, temporary bridge access, breakwater, and the floating wharves. This phase of the project will be completed during the summer of 2011. On behalf of DFO, PWGSC is currently tendering and will manage the implementation of phase 2 of the harbour project which consists of a large vessel basin, channel, and a fixed wharf. This work is to be completed prior to the open water season of 2013.

The Canadian Hydrographic Service (CHS) continues to conduct hydrographic surveys and publish updated products in support of safe and efficient navigation in Nunavut. During this reporting period, the CHS completed survey projects in 24 locations in Nunavut, and published 29 updated charts for the region. CHS also continued its supply of Tidal Predictions and the provision of Sailing Directions booklets for Nunavut.

DFO has worked with NTI, the QIA, the GN, and the communities of Igloolik and Hall Beach to identify cooperatively an Area of Interest for a Marine Protected Area in Foxe Basin. DFO staff have met with expert knowledge holders and other community members in 23 Nunavut communities to discuss Canada's plans for developing a Marine Protected Area Network.

Since 2008, the DFO Species at Risk Program has advised the NWMB on numerous species that could be listed under SARA. Several of these species have not moved forward on this list as DFO waits the signing of a Memorandum of Understanding (MOU) with the Nunavik Marine Region Wildlife Board similar to the one signed with NWMB in May 2008 Footnote 26. The species which we have informed the NWMB have included:

  • Atlantic Cod (Arctic lakes population).
  • Acadian Redfish.
  • Deepwater Redfish.
  • Roundnose Grenadier.
  • Killer Whale (Northwest Atlantic/Eastern Arctic population).
  • Bowhead Whale - (Eastern Canada-Western Greenland population).

Listing recommendations under SARA for two beluga whale populations (Cumberland Sound and Eastern High Arctic - Baffin Bay) have been moving through the MOU with the NWMB. DFO has met with the Pangnirtung HTO on several occasions in order to complete a Recovery Strategy for Cumberland Sound beluga whale. Additionally, DFO has consulted with HTOs in Nunavut on the proposed listing of the Atlantic Cod Arctic lakes population and on the possible listing of Roughhead Grenadier in the spring of 2008.

Since 2008, the SARA program has provided funding to support research of the following activities:

Beluga whale:

  • Defining seasonal and dietary trends.
  • Population status and ecology.
  • Critical Habitat identification in Cumberland Sound.

Bowhead whale:

  • Foraging ecology and habitat requirements.
  • Critical habitat identification and population estimates.
  • Population dynamics.

Killer Whale:

  • Diet and seasonal movements.

Narwhal:

  • Dietary studies.
  • Population genetics.

Atlantic Walrus:

  • Distribution and abundance.

Funding has been provided for the development of Integrated Fisheries Management Plans for the following activities:

  • Atlantic Walrus - Foxe Basin and Baffin Bay stocks.
  • Beluga - Cumberland Sound population

DFO has continued its commitment to representative Inuit employment within the DFO Eastern Arctic Area office. Currently 23 percent of DFO Eastern Arctic employees are beneficiaries. DFO worked cooperatively with other federal departments through the Nunavut Federal Council on the proposed Umbrella Inuit Employment Plan, under which the Eastern Arctic office is optimistic that more beneficiaries will be hired to fill positions in the near future. In the interim, DFO continues to work towards filling positions that adhere to its NLCA obligation to give priority to Inuit beneficiaries whenever possible. Furthermore, DFO has initiated an informal agreement with the Arctic College Environmental Technology Program whereby DFO commits to hire their students in the summer to assist in DFO research and field works. Between 2008 and 2010, DFO was able to recruit four students to work at the Sylvia Grinnell River Char Research and monitoring project.

3.7 Human Resources and Social Development Canada

3.7.1 Background

Service Canada has offices in Iqaluit, Rankin Inlet, and Cambridge Bay. Offices in Rankin Inlet and Cambridge Bay are entirely staffed by NLCA beneficiaries who provide services in Inuktitut and Inuinnaqtun. Service Canada also provides services to 14 communities across Nunavut on a quarterly basis through outreach visits.

Service Canada has updated the information contained in the departmental annex to the Federal Inuit Employment Plan to reflect changes over the past five years. The information contained in the plan is up-to-date; the department anticipates some growth over the coming years. Data collected in 2002 set the baseline of Inuit employment at 52 percent. In 2010, the departments' Inuit employment rate was at 66 percent.

3.7.2 Recruitment

A process is underway to staff a leadership position in Cambridge Bay and a Citizen Services Officer position in Iqaluit. It is anticipated that one, if not both positions, will be staffed by NLCA beneficiaries. The recruitment processes will be carried out using practices described in the approved annex which reviews pre-employment, recruitment, and retention practices. Flexibilities under the Public Service Employment Act will also be utilized.

Service Canada has created a unique General Equivalency Diploma program to recruit Grade 9 and up students who are no longer in school but have the potential to complete their Grade 12 equivalency exam. The program involves working with Nunavut High Schools to identify candidates and with Human Resources and Skills Development Canada to give participants the opportunity for term employment with periods to attend high school. The intent is to encourage students to complete their General Equivalency Diploma, to improve their employment opportunities in Nunavut, and to provide the opportunity for post-secondary education. To date, one student has successfully completed this program and in 2009-2012, Service Canada expects to hire two more term employees under this program.

Service Canada participates in the Federal Public Sector Youth Program. The program allows young beneficiaries to develop meaningful employability skills through short-term internship positions. The internship provides a structured learning experience with a mentor. This ensures temporary interns get the most out of the assignment and are ready to enter the labour market. This program targets youth between 15 and 30. Service Canada will offer three to five internships over the next three years. To date, a beneficiary has successfully completed this program and has found indeterminate employment with the Government of Nunavut.

Service Canada also will recruit students through the Federal Student Work Experience Program. The program allows federal departments to recruit youth for summer employment. Service Canada will ensure that students are aware of the necessary registration for the program. Service Canada will endeavour to provide one student with a Federal Student Work Experience Program opportunity each year.

Service Canada is working with the Nunavut Federal Council and the Public Service Commission to establish a program of career fairs, school visits and other processes designed to capture the interest of young people in the territory and to help them make wise career decisions. To date, Service Canada has participated in 15 school fairs in various communities across Nunavut. The reaction from students has been positive with Service Canada representatives being asked many questions about the requirements needed for a career in the public sector.

Service Canada has established hiring practices to better accommodate northern realities. Every effort is being made to ensure that position advertisements appear in appropriate languages in all Nunavut communities. When necessary, boards can include community members fluent in Inuktitut, so candidates may respond in the language of their choice.

3.7.3 Retention

For employees, alternate work arrangements and volunteer work within their communities is encouraged and time away from work to accommodate these activities is provided. Volunteer work is seen as a learning opportunity and a way to strengthen community ties.

Staff member are encouraged to develop long-term career plans by completing a learning plan each year. Staff also receive feedback though a performance reviews. To date, all staff members have established learning plans in place. Complemented with performance reviews, staff are better able to move to positions that are more senior.

3.7.4 Purchasing Goods and Services

Since 2009, Service Canada purchases most of it supplies and travel requirements from local service providers. Supplies that are not available in Nunavut are purchased in the South.

3.8 Public Works and Government Services Canada

Throughout the reporting period, PWGSC, on behalf of federal departments and agencies, continued to notify NTI and eight other Inuit organizations about the procurement and delivery of goods and services destined for the NSA. As well, PWGSC notified these same groups about opportunities to bid on government contracts for goods, services, and construction destined for the NSA.

Whenever practical and consistent with sound procurement management, PWGSC included evaluation criteria in its bid documents to maximize socio-economic opportunities for Inuit firms in the NSA. PWGSC also continued to provide information on government contracts awarded in the NSA.

In 2008, the Office of Small and Medium Size Enterprise (OSME) within PWGSC participated in a trade show in Iqaluit organized by the Baffin Region Chamber of Commerce. Over 200 people attended the trade show. In 2009, OSME participated in the Nunavut trade show and offered an Introductory Seminar on Selling to the Government of Canada. OSME continues to keep in contact with the GN Department of Economic and Business Development and NTI to keep apprised of upcoming events and to offer training sessions in the form of seminars. It also offers telephone seminars to suppliers who are unable to attend planned events.

The Northern Contaminated Sites Program continued its work in the North. The contract for the remediation of Cape Christian LORAN Site was awarded in 2007 and the contract value has increased in value to $11.1 million. This contract has an Inuit Employment target of 85 percent. Three other contracts were issued under this program:

  • The $11.1 million contract for the remediation of the Roberts Bay/Ida Bay Mine sites. This contract has an Inuit employment target of 80 percent and an Inuit sub-contractor/suppliers target of 67.5 percent.
  • The $19.8 million contract for the remediation of CAM-D Intermediate DEW Line Site in Simpson Lake was awarded in 2008. This contract has an Inuit Employment Target of 51 percent and an Inuit sub-contractor/suppliers target of 89 percent.
  • The $10.9 million contract for the remediation of PIN-B Intermediate DEW Line Site in Clifton Point was awarded in 2009. This contract has an Inuit employment target of 90 percent and an Inuit sub-contractor/suppliers target of 85 percent

PWGSC is working with client departments on other projects involving NLCA.

3.9 Natural Resources Canada

Natural Resources Canada's (NRCan) Surveyor General Branch (Yellowknife) is responsible for the management of legal surveys respecting the lands identified in the NLCA (section 19.8.8). This survey work has involved the survey and demarcation of approximately 1,155 IOL parcels, 12 Jointly Owned Lands parcels, and all crown land areas excluded from these parcels. As well, this has involved the preparation of plans and their delivery to the Registrar of Land Titles.

The survey program under the Surveyor General Branch has completed these NLCA obligations - all parcels described by the NLCA's descriptive map plans that require surveys have had their boundaries established to isolated boundary standards. During the reporting period, plans were prepared and ratified by various DIOs, the GN, and INAC, were recorded with the Canada Lands Survey Record, and the majority of plans were delivered to the Registrar of Land Titles. The process was labour and time intensive due to the number of parties involved in the ratification. The remaining few plans are being processed and delivered to the Registrar as they are received from NTI and INAC.

During the reporting period, new activities for the Surveyor General Branch arose as a result of negotiations between INAC and the DIOs with respect to the proposed National Park on Wager Bay (section 8.2.5 of the NLCA) and the proposed Katannilik Territorial Park (section 8.3.11 of the NLCA). The Branch was asked to survey the parcels involved in these land exchanges and to prepare plans of these new IOL parcels. All the surveys and plan preparations were completed and the plans are in the ratification process prior to being recorded in the Canada Lands Survey Record and delivery to the Registrar. To ensure Inuit involvement was maximized, workshops on legal surveys for land administrators and other interested parties and beneficiaries were held.

The Surveyor General Branch requires mandatory Inuit involvement in its contracting process has been consistently successful with this involvement over the multi-year survey program and has continued with these practices in all legal survey contracts under sections 8.2.5 and 8.3.11 of the NLCA. This Inuit involvement included, but was not limited to the provision of services, employment, and training for individuals and registered Inuit businesses from Nunavut.

As all implementation obligations under NLCA have been successfully met by the Surveyor General Branch, and there have no further requests for legal survey work, there are no planned activities for 2010-2011.

4. Implementation Bodies

4.1 Nunavut Wildlife Management Board

The NWMB is an institution of public government, established by the NLCA as the he main instrument of wildlife management and the main regulator of access to wildlife in the NSA. The NWMB mandate is to help ensure the protection and wise use of wildlife and wildlife habitat for the long-term benefit of Inuit and the rest of the public. This involves the ongoing regulation of wildlife harvesting, the provision of relevant wildlife advice, recommendations, and information, and the funding, commissioning, and undertaking of wildlife research.

With the departure of the Chairperson early in the 2008-2009, Board member Harry Flaherty assumed the role of the Acting Chairperson through to the end of February 2010. Willie Nakoolak has now assumed the role. Mikidjuk Akavak was hired as the Chief Executive Officer in January 2009 and the Board nominated him for the position of Chairperson. The appointment process had not been finalized by March 31, 2010.

In 2009-2010, two other Board members were appointed: Makabe Nartok was appointed by the KitIA, and Pitseolak Alainga was nominated by INAC. At the end of the fiscal year, the Department of Environment (CWS) nomination for a Board member remained vacant. During 2008-2009, four new staff members were hired — the positions of Wildlife Administrative Biologist, Wildlife Management Biologist, Secretary Receptionist, and Chief Executive Officer. In 2009-2010, a new staff member was hired as the Director of Wildlife Management as well as a new Director of Finance and Administration. One Biologist position was vacant at year-end. The Board also has approved two new Management Biologist positions so that it can become more proactive in its work.

The NWMB continued to be active with requests for hearings and decisions from co-management partners and users of wildlife throughout the NSA. The meetings, hearings, and other activities carried out during the reporting period are outlined below.

Board Meetings: In 2008-2009, the NWMB held four regular (quarterly) meetings as well as numerous teleconference meetings. In 2009-2010, the Board held three regular meetings, eight teleconference meetings, five in-camera meetings, and nine internal in-camera meetings.

Workshops: A workshop was held for NWMB Board members regarding Inuit Qaujmajatuqangit (IQ) and its use in making wildlife decisions. This followed completion of the report A Critical Review of the Use of Inuit Traditional Knowledge prepared for the Board in 2008-2009. Further work with wildlife partner agencies on the use of IQ in wildlife decision making is expected to continue.

Public Hearing: In April 2008, the NWMB held a public meeting in Pond Inlet regarding the Baffin Bay polar bear TAH. In September 2008, a public meeting was held in Rankin Inlet about the proposed legal listing of Nunavut's northwestern population of Grizzly Bear as a species of special concern, under SARA. Another public hearing was held in February 2009 in Iqaluit to consider the TAH for bowhead whales in the NSA. The public and organizations were asked to consider removing the bowhead whale TAH or to consider setting new limits based on new population findings. The NWMB's decision and recommendation for three bowhead whales was accepted by the Minister of Fisheries and Oceans Canada, with the condition to review the recommendations after the 2011 harvest season Footnote 27.

In June 2009, a public meeting took place in Pangnirtung concerning the TAH and Basic Needs Level for the Arctic Char fishery in Kingnait Fjord. A second meeting was held about the TAH of the Baffin Bay polar bear in Iqaluit in September 2009.

Species at Risk Act: In 2008-2009, the NWMB signed a MOU along with the Minister of Fisheries and Oceans Canada and the Minister of Environment Canada to harmonize the designation of rare, threatened, and endangered species under the NLCA and SARA. Section 15(3) of the Act states: "…COSEWIC (Committee on the Status of Endangered Wildlife in Canada) must take into account any applicable provisions of treaty and land claims agreements when carrying out its functions."

Nunavut Wildlife Harvest Study: In 2007-2008, the NWMB Board recognized the need to maintain current harvest data in order to set Basic Needs Levels and TAH limits. The first Nunavut Wildlife Harvest Study was conducted between 2006 and 2002 and the final report was published in 2004. The development of a second Nunavut Wildlife Harvest Study (HS 2) was ongoing throughout the 2008-2009 fiscal year. There were regular meetings conducted by the Harvest Study Steering Committee to guide the work of the contractor and the Board established the HS2 Advisory Committee involving co-management partners. However, in 2009-2010, the development of the HS 2 was delayed as the Board re-assessed it's planning and implementation stages. HS 2 is planned to take place over a three-year period.

Fisheries Advisory Committee: Implemented in 2008-2009, the Fisheries Advisory Committee was developed by the NWMB to streamline the allocations of fish stocks within the NSA and the adjacent offshore waters. The NWMB received and considered recommendations from the committee on both turbot and shrimp allocations for both 2009 and 2010, and made a number of allocation decisions for the NSA.

Nunavut Wildlife Research Trust: The Nunavut Wildlife Research Trust (NWRT) is operated by NWMB Board members who, upon appointment, are automatically ‘Trustees'. Despite the downturn in world markets in late 2008 and early 2009, the NWRT fund maintained a respectable growth due to a major portion of the asset mix being in ‘Fixed Income'. In 2008-2009, the Board allocated $843,000 towards government wildlife research projects for 2009-2010, approved 19 single-year research proposals, and approved five multi-year proposals. In 2009-2010, The Board allocated $731,000 towards government departments' wildlife research for 2010-2011, approved 16 single-year research projects, and approved the final year of several multi-year research projects.

Nunavut Wildlife Study Fund: In 2008-2009, the NWMB approved $120,000 from its Nunavut Wildlife Study Fund for several community-based research projects for which local HTOs, RWOs, and other local non-government organizations are eligible. In 2009-2010, a total of $116,000 was approved.

Policy Manuals: Progress was made during the latter part of 2009-2010 on the drafting/redrafting of four policy manuals for governance, wildlife, human resources, and finance and administration. The Board also completed a review of its salaries and benefits to ensure it remains competitive with similar organizations in attracting qualified, long-term staff.

Annual Report: The NWMB Annual Reports are distributed to all the wildlife partners including: the community HTOs, RWOs, NTI, Federal and Territorial governments, as well as to INAC. The reports are published in English, Inuktitut, and Inuinnaqtun languages and are distributed to all Nunavut schools and community libraries. Extensive details of the activities and progress of the NWMB are provided, including those which are ‘works in progress.' As well, the Annual Reports contain a description of the mandate and responsibilities from the NLCA, historic information, and major achievements over the years. The reports also contain audited financial reports for both the NWMB, the NWRT, and include lists of research projects.

4.2 Nunavut Water Board

The NWB is an IPG established by the NLCA for the regulation, use, and management of water in the NSA. Pursuant to the terms and conditions of licences, licensees are required to submit various plans and reports to the NWB for review and approval. The Board is required to consider any detrimental effects arising from the use of water or from the deposit of waste on other water users and to hold, where appropriate, public hearings.

In 2008-2009, there were five outgoing member of the NWB Board. Two new members, Ross Mrazek and Sam Omik, were appointed in late in 2008. In September 2008, the Minister of Indian and Northern Affairs formally appointed Thomas Kabloona as Chair of the organization's Board. In 2009-2010, there were four outgoing members of the Board. Three new members have been appointed: George Porter, David Aglukark Sr., and Darrell Ohokannoak.

In 2007-2008, the NWB approved the creation of an Executive Committee for the purpose of aiding and advising the Chairperson and Board on administrative matters. The Executive Committee held one meeting in May 2008 in conjunction with the regularly scheduled meeting of the Board. In 2008, the NWB recognized the critical need to mitigate the risk of disruption with respect to the issuance and approval of water licences and constituted Panels to ensure ongoing operations Footnote 28. With the establishment of Panels, the Executive Committee was not re-established and therefore was not active during the later part of the 2008-2009 or during 2009-2010.

As of March 31, 2010, the following Panels had been designated by the Board since their inception. Some Panels are constituted to consider license applications in general and some deal with specific applications. These are summarized as follows:

General license application Panels:

  • B1 Panel: All Type B licence applications and compliance reporting requirements associated with Type B licences.
  • B2 Panel: Any Type B licence referred to the Full Board because of a Panel member's conflict of interest or, if for any other reason, is unable to dispose of an application in relation where no public hearing is required, etc.
  • A1 Panel: Any Type A applications not specifically delegated to a Hearing Panel and any other Public Hearing. The Panel has the power to conduct a public hearing and dispose of all matters relating to Type A compliance reporting requirements.
  • F1 Panel: The Panel has the power to dispose of the financial and administrative matters of the Board.

License-specific Panels:

  • A2 Panel: This Panel had the power to conduct a public hearing and dispose of all matters related to the Type A Licence Application 2AM-LUP0008 Lupin Mine Inc.
  • A3 Panel: This Panel had the power to conduct a public hearing and dispose of all matters related to the Type A Licence Application 1AR-NAN0208 Canzinco Limited.
  • P1 Panel (Arviat Public Hearing Panel): This Panel had the power to conduct a public hearing and dispose of all matters related to the Type A License Application 3AM-ARV.
  • P2 Panel (Rankin Inlet Public Hearing Panel): This Panel had the power to conduct a public hearing and dispose of all matters related to the Type A License Application 3AM-GRA.
  • P3 (Water Regulations Public Hearing Panel): This Panel had the power to conduct a public hearing and dispose of all matters related to Nunavut Water Regulations.
  • P4 (Mary River Project Panel): This Panel had the power to conduct a public hearing and dispose of all matters related to the 2AM-MRY and Type B Water License 2BB-MRY0710.

The meetings, hearings, and other activities carried out by the NWB during the reporting period are outlined below.

Board Meetings: In 2008-2009, the NWB Board held three in-person meetings and four teleconferences, in 2009-2010, three in-person Board meetings were held and three teleconferences. Where possible, regular Board of Director meetings were held in conjunction with public hearings to minimize overall costs.

Panel Meetings: Over the two-year reporting period, the BI Panel met twice and conducted five teleconferences; the A1 Panel met three times and held one teleconference; the A2 Panel met only once but held four teleconferences; The A3 Panel met only once and held two teleconferences (only in 2008-2009); the A4 Panel met once (in February 2009); the F1 Panel met seven times and held four teleconferences; and the P2 Panel held a teleconference in March 2010. During the reporting period, no meetings or teleconferences are reported for the B2 Panel, or the P1, P3, or P4 Panels.

Public Hearings: Type A applications are subject to public hearings to consider any detrimental effects of potential use of water or deposit of waste. In 2008-2009, the Board held three public hearings for the following Type A license application: the renewal of the Nanisivik Mine Remediation Project, the renewal of the Lupin Gold Project, and the new Meadowbank Gold Project. In 2009-2010, the NWB conducted one public hearing. As well, the NWB held pre-hearing and technical meeting conferences in conjunction with the review of the licence application prior to the final hearings of the Board.

Applications: For the 2008-2009 fiscal year, 8 Type A applications and 58 Type B applications were carried over from the previous year. The NWB received an additional 4 Type A applications and 98 Type B applications through the year. Nine Type A applications and 52 Type B applications were carried forward to the 2009-2010 fiscal year.

Licensing: During 2008-2009, the Board issued 3 Type A licences and 104 Type B licences. During the 2009-2010, 4 Type A licences and 79 Type B licences were reviewed, issued, or assigned.

Technical Reports: Pursuant to the terms and conditions of licenses, licensees are required to submit various plans and reports to the NWB for review and/or approval. For the 2008-2009 fiscal year, 228 were carried over from the previous fiscal year. An additional 284 technical reports were received by the Board and a total of 349 reports were reviewed and/or approved. As such, 163 technical reports under review were carried forward into the 2009-2010 fiscal year. An additional 400 technical reports were received in 2009-2010 and a total of 583 were reviewed and/or approved. As of March 31, 2010, 339 technical reports were under review and will be carried forward to the next fiscal year.

Organizational Development and Office Operations: During 2008-2009, the NWB continued to implement a three-year computer plan to ensure that the necessary technology and systems operate in an efficient and cost effective manner. As well, the NWB maintains a website and file transfer protocol site that allows for an accessible and complete Public Registry. The Executive Director co-chaired the Nunavut Water Regulations Working Group and worked towards bringing together the NWB, INAC, NTI, and the GN to develop recommendations for a comprehensive set of regulations that reflect the economic, operational, and administrative realities and recognize the unique challenges and opportunities faced by water management agencies in Nunavut. In 2009-2010, The NWB continued to participate with the working group.

In 2009-2010, the NWB approved new Governance Policies and new Administrative and Operational Policies; installed new financial software; finalized a five-year Strategic Plan; and coordinated with the NIRB several training sessions on issues such as the Nunavut Marine Council, security/performance bonding, water regulations, and NPC/NIRB legislation. The NWB agreed to sign a MOU with the NIRB to minimize duplication and to confirm obligations for cooperation. The NWB also researched options and alternatives to support and/or replace the existing website and file transfer protocol site, and to address the ongoing issue of hiring and retaining qualified technical expertise in Gjoa Haven. The NWB also has been working on guides for applicants and for municipalities, and on developing a work plan for all stakeholders to improve water licensing for municipal undertakings.

4.3 Nunavut Impact Review Board

Established in 1996, the NIRB is an IPG with responsibilities for the environmental assessment of projects in the NSA. The mandate of the NIRB is to use traditional knowledge and recognized scientific methods in ecosystem and socio-economic analyses to assess and monitor, on a site specific and regional basis, the environmental, cultural, and socio-economic impacts of relevant project proposals. The mission is to protect and promote the well-being of the environment and Nunavummiut through the impact assessment process.

The Canadian Environmental Assessment Act no longer applies within the NSA following an amendment to the NLCA that was tabled in Ottawa in May 2008. The amendment reduces duplication and improves the efficiency of Nunavut's regulatory process.

4.3.1 Environmental Screenings

The NIRB conducts environmental screenings of project proposals in accordance with section 12.4.1 of the NLCA. The NIRB may decide: (1) that a proposal may proceed without review, (2) that the proposal requires review with particular issues or concerns identified, (3) that the proposal is not sufficiently developed to permit proper screening, or (4) that the proposal poses potentially unacceptable adverse impacts and should be modified or abandoned.

During 2008-2009, a total of 141 project proposals were submitted to the NIRB for assessment; 72 of these proposals were for new projects or significant modifications to existing projects and 69 proposals involved changes to previously screened projects for minor amendments, extensions, and renewals. During 2009-2010, another 186 proposals were submitted; 92 were for new projects or for proposals that required significant modifications and 94 involved changes to previously screened projects for minor amendments, extensions, and renewals.

4.3.2 Project Reviews

Following a screening of a project proposal, the NIRB may recommend that a project be subject to a review in accordance with section 12.4.2(a) of the NLCA. During the reporting period, the NIRB undertook the following project reviews:

  • ARVE Resources Canada Inc's Kiggavik Project;
  • Baffinland Iron Mines Corp's Mary River Project;
  • Bathurst Inlet Port and Road Joint Venture Ltd's BIPR Project;
  • MMG Mineral Resources' High Lake Project;
  • OZ Minerals Ltd's High Lake Project;
  • Sabina Silver Corp's Hackett River Project; and
  • Uravan Minerals Inc's Garry Lake Project.

4.3.3 Monitoring Process

One of the primary functions of the NIRB is to monitor projects in accordance with the provisions of section 12.7 of the NLCA. The monitoring program serves to: (1) measure the relevant effects of projects on the ecosystem and socio-economic environments of the NSA, (2) evaluate a project's land and resource use within its predetermined terms and conditions, (3) provide the information base necessary for agencies to enforce terms and conditions of land or resource use approvals, and (4) assess the accuracy of the predictions contained in the project impact statements. During the reporting period, the NIRB continued monitoring the Jericho Diamond Mine, the Doris North Gold Mine, and the Meadowbank Gold Mine projects.

4.3.4 Other NIRB Highlights

The NIRB has an obligation to create opportunities for the active and informed participation of the public at every possible stage of the review process. Accordingly, the NIRB has worked towards better public consultations and a more efficient hearing process. During 2008-2009 and 2009-2010, the Board's public participation programs included:

  • Garry Glen Project: Public scoping and guideline development workshop in Baker Lake;
  • Mary River Project: Public scoping meetings and open houses in Pond Inlet, Arctic Bay, Resolute, Grise Fiord, Igloolik, Hall Beach, Coral Harbour, Cape Dorset, Kimmirut, Clyde River and Iqaluit;
  • Meadowbank Gold Mine Project: Information and public hearing sessions in Baker Lake;
  • Hackett River Project: public scoping meetings and open houses in Kugluktuk, Cambridge Bay, Umingmaktok, Gjoa Haven, Taloyoak, and Kugaaruk.

During the reporting period, the NIRB completed several initiatives and projects designed to provide guidance as well as improved operational efficiencies to regulatory stakeholders and the NIRB staff. A Five-Year Strategic Plan and Funding Requirements was completed in 2008 and is now being implemented. The focus is on such key areas as governance, legislation, policy development, and human resources. In order to ensure its continued success, the NIRB also updated its internal operational and board governance policies, and hired several new staff members to assist with fulfilling the NIRB's mandate Footnote 29.

The NIRB continues to coordinate and cooperate with our affiliate Boards, authorizing agencies, industry, and the general public to improve certainty and efficiency in the regulatory process. These activities include the following:

Nunavut Marine Council: Pursuant to section 15.4.1 of the NLCA, the NIRB, the NWB, the NPC, and the NWMB may individually advise and make recommendations to other government agencies about marine areas or proceed together as the Nunavut Marine Council. Following discussions first initiated in 2008, the NIRB continued in 2009-2010 to promote the potential usefulness of collaboration amongst the IPGs that would participate in the Council. Once formed, the Council would be well poised to offer advice and recommendations to government on issues common to each IPGs mandate that affect the marine environment of the NSA.

Nunavut Water Board: Pursuant to section 13.6.1 of the NLCA, the NIRB continues to work with the NWB to promote coordination of the impact assessment/water licensing processes during the screening phase of the regulatory system. Together they developed and distributed the Framework to Guide a Coordinated NIRB/NWB Process to a Nunavut-wide distribution list for comment. This collaborative review process was envisioned in section 13.5.2 of the NLCA. The two Boards are considering how the proposed Coordinated Process Framework may apply to such reviews currently in progress as the Hackett River project and the Mary River project.

Legislative Working Group: The NIRB remains committed to working closely with the Federal and Territorial governments and NTI to finalization of Bill C-25, the Nunavut Planning and Project Assessment Act. The legislation will further define both the regulatory framework for the NPC's land use planning process and the NIRB's development impact assessment process, as established by the NLCA. The bill will be introduced to the House of Commons shortly.

The NIRB board members and staff were provided with training in the areas of IQ, uranium mining, financial securities and performance bonding, and board governance practices. The staff were provided with ongoing-training in Inuktitut by the NIRB's interpreter/translator, and also maintained several professional designations and memberships related to environmental assessment.

In the coming year, the NIRB will pursue a fully functional website, undertake revisions to NIRB's series of public guides, and conduct further work with the Nunavut Marine Council.

4.4 Nunavut Planning Commission

The NPC is an IPG established under the NLCA. It is a co-management organization with the mandate to prepare and implement land use plans that guide and direct resource use and development. The plans tell others how Inuit want the land and water outside of community boundaries to be used today and into the future. The NPC consults with government, Inuit organizations, and other organizations on how land use plans will be developed and how the plans will manage the land in Nunavut.

During the fiscal year, a number of activities were undertaken that contributed to the implementation of the NLCA.

  • Continued to work on the development of broad planning polices, objectives, and goals (NLCA section 11.4.1(a)). Timelines were established in January 2009 have been established and the Government of Canada is now coordinating its interdepartmental activities to support the process.
  • Completed and distributed the Wildlife Habitat, Socio-demographics and Economic Sector Analysis, the Cumulative Effects Referral Criteria Report, and the State of Knowledge Report in Maps for review and the solicitation of further input (NLCA sections 11.2.1, 11.2.2, 11.2.3, 11.3.1, and 12.7.6(a) (b) (c)).
  • Participated in the development of a case study to test the methodology and test the governance structure of the Nunavut General Monitoring Plan (NLCA, section 12.7.6).
  • Participated in the development of the Draft Nunavut Planning and Project Assessment Act (NLCA Article 10).
  • Continued implementation of conformity determinations for both the North Baffin Regional Land Use Plan and the Keewatin Regional Land Use Plan and conformity requirements of the North Baffin Regional Land Use Plan's proposed corridor in conjunction with NIRB.
  • Map biographies and community consultations continued in Kugluktuk, Cambridge Bay, Baker Lake, Chesterfield Inlet, Igloolik, and in Hall Beach as per NLCA sections 11.2.1(b), (d) and sections 11.3.1(h), (i).
  • Worked directly with Federal departments to facilitate engagement in the land use planning process (NLCA 11.2.1(g)).
  • Hosted three Nunavut Land Use Plan (NLUP) Technical Panel Workshops with INAC, Parks Canada, Environment Canada, DFO, NRCan, DND, Transport Canada, NTI, and the GN's Department of Environment and Department of Executive and Intergovernmental Affairs.
  • Completed Draft Procedures for Administering the NLUP (NLCA section 11.4.6(e).
  • Completed and distributed the NLUP Issues and Priorities Document.
  • Developed and distributed the NLUP Priority Areas Map (NLCA sections 11.2.1(d) (g), 11.4.4 (g)).
  • Initiated a Public Awareness Campaign to engage Nunavummiut, Industry, the World Wildlife Fund, and other public interest in the land use planning process (NLCA 11.2.1(d), 11.4.4(g)).
  • Launched the NPC website and continue to translate the site into four languages in an effort to disseminate information and collect feedback as per the NLCA (section 12.7.6, 11.4.4(d), (f)) (see: www.nunavut.ca).
  • Advanced discussions on the Nunavut Marine Council with the NIRB, NWB, NWMB, and NTI (NLCA section 15.4.1).

Additional NPC activities during the reported period included:

  • Attended an Arctic Marine Workshop and a Nunavut Mining Symposium that included hosting a half-day session with industry and government. Attended a Guideline Development Workshop for the Mary River Project.
  • Participated in all Mineral Development Advisory Group meetings to foster partnerships with planning partners and industry. Participated in the Marine Council Meetings, and attended a Nunavut General Monitoring Plan committee meeting.
  • Provided two presentations at the Canadian Institute North of 60 Regulatory Review Conference.
  • Gave a presentation on the NLUP and Nunavut Marine Council to Canadian Marine Advisory Council.
  • Gave a presentation to the Kitikmeot, Kivalliq, and Baffin Mayor's Forums.
  • Attended all DIO AGMs and provided annual activity and update reports on NPC activities and accomplishments (NLCA section 11.4.4(m)).
  • Successfully completed an external annual financial audit.
  • Continued implementation and updating of the five-year Strategic Plan as approved in February 2009.
  • Implemented a comprehensive Risk Management Framework.

4.5 Nunavut Implementation Training Committee

The NITC promotes training to enhance Inuit participation in the Nunavut workforce by providing funds and expertise to DIOs, by administering the Nunavut Beneficiaries Scholarship, and by supporting the federal and Territorial governments in the development of Inuit employment and pre-employment training plans.

In 2009-2010, a total of $525,000 was provided in training funds to the three RIAs, to NTI, and to five IPGs. In addition, 88 scholarships were awarded to post secondary Nunavut Beneficiary Students in the amount of $152,000.

Final distribution of NITC's initial $13 million will be been completely by April 2012 Accordingly, the committee has continued with lobbying activities in search of additional funds in order to continue the NITC programs. With RIA support, a motion was passed at the during the NTI 2009 AGM to support NITC lobbying of the federal government of Canada. Since then, NITC has met with the NIP, has written to Nunavut's federal Member of Parliament, and has had follow-up correspondence with INAC.

During the reporting period, NITC published its third five-year evaluation and has developed a five-year plan for 2010-2014 period. NITC will continue to work with NTI, INAC, and the GN to ensure a future for the organization and its fulfillment of its mandate to train Inuit for jobs pursuant to Article 23 of the NLCA.

4.6 Surface Rights Tribunal

The NSRT is one of the IPGs established under the land and resources management regime of the NLCA. The Tribunal is a quasi-judicial body which serves as an arbitrator of disputes. The NSRT is independent of the influence of any party, including government, Inuit organizations, and industry.

In February 2010, an initial reorganization meeting for NSRT was held. At that point three of the four appointed members present for that meeting agreed upon interim reorganization steps to be undertaken by September 30, 2010. Limited progress has been completed on these steps.

To date no applications have been received.

Appendix 1: Membership of Implementing Bodies

Nunavut Wildlife Management Board (as of March 31, 2010)
Member Nominating Party
Vacant (Chairperson) NWMB
Harry Flaherty NTI
Peter Qayutinuak Sr. KitIA
Willie Nakolaak (Acting Chairperson) KitIA
Joannie Ikkidluaq QIA
Peter Awa Government of Nunavut
Robert W. Moshenko Government of Canada/DFO
Peter Kusugak Government of Canada/INAC
Vacant Government of Canada/CWS
Nunavut Water Board (as of March 31, 2010)
Member Nominating Party
Thomas Kabloona (Chairperson) Board
Lootie Toomasie NTI
David Aglukark Sr. NTI
Alex Ningark NTI
Sam Omik NTI
George Porter Government of Nunavut
Darrell Ohokannoak Government of Nunavut
Ross Mrazek Government of Canada
Vacant Government of Canada
Nunavut Impact Review Board (as of March 31, 2010)
Member Nominating Party
Lucassie Arragutainaq (Chairperson) Board
Vacant NTI
Henry Ohokannoak NTI
Archie Arngakak NTI
Percy Kabloona NTI
Philip Kadlun Government of Nunavut
Marjorie Kaluraq Government of Nunavut
Elizabeth Copland Government of Canada
Allen Maghagak Government of Canada
Nunavut Planning Commission (as of March 31, 2010)
Member Nominating Party
Ron Roach (Chairperson) Board
Peter Alareak NTI
Frank Ipakohak NTI
Vacant NTI
Ovide Alakannuark NTI
Louie Oklaga Government of Nunavut
Paul Quassa Government of Nunavut
Okalik Eegeesiak Government of Canada
Leena Evic-Twerdin Government of Canada
Nunavut Implementation Training Committee (as of March 31, 2010)
Member Nominating Party
Paul Quassa (Chairperson) NU Trust
Peter Kritaqliluk (Vice Chair) KivIA
Alex Ningark NTI
David Evalik KitIA
Dorothy Gibbons Nunavut Trust
Brenda Jancke Government of Nunavut
Mary Jane Adamson Government of Canada
Nunavut Surface Rights Tribunal (as of March 31, 2010)
Member Nominating Party
Eugene Ipkarnak NTI
David Evalik NTI
John Maurice Government of Nunavut
Bert Rose Government of Canada
Doris McCann Government of Canada

Appendix 2: Schedule of Payments

Schedule of Payments
  Fiscal Year Payment Amount
Government of Nunavut 2008-2009 $2,799,242.00
2009-2010 No agreement
Nunavut Impact Review Board 2008-2009 $3,647,964.19
($1,140,560.19 for public hearings)
2009-2010 $4,324,972.21
($1,756,889.21 for public hearings)
Nunavut Planning Commission 2008-2009 $3,755,293.75
($165,200.75 for public hearings)
2009-2010 $3,979,558.00
($290,472.00 for public hearings)
Nunavut Water Board 2008-2009 $3,093,406.86
($669,825.85 for public hearings)
2009-2010 $2,822,783.72
($340,551.72 for public hearings)
Nunavut Wildlife Management Board 2008-2009 $7,241,751.00
2009-2010 $7,415,396.00

Appendix 3: Contaminated Sites Program - List of Sites

Contaminated Sites Program 2008-2010
Site Project Specific Activities
Bear Island
  • The environmental screening has been completed through Canadian Environmental Assessment Agency.
  • The project was initially delayed a year because a screening was required by the Nunavik Marine Region Impact Review Board.
  • Consultations were conducted in September 2009 with the Grand Council of the Crees-Cree Regional Authority, Makivik Corporation the Band Council of Wemindji and community, and the Band Council of Waskaganish and community.
  • The contract for remediation was awarded to Biogenie a division of Englobe Corporation in May 2010.
  • Project completion is expected in October 2010.
CAM-B: Hat Island
  • The final site assessment report, the Archaeological Report, and the Environmental Assessment Report have been completed.
  • The Final Remedial Action Plan Report completed.
  • All work planned for 2008-2009 was successfully completed.
  • The project is on schedule.
CAM-D: Simpson Lake
  • This project was delayed a year (2009) due to higher than anticipated budgets submitted for the proposal. Therefore, it required Treasury Board approval.
  • An Request for Proposals was posted in May 2009 and a contractor was chosen.
  • Kudlik Construction Limited (KCL) guaranteed an Inuit Employment Level of 51%. To-date they have provided 93% aboriginal employment and 35% Inuit employment.
  • KCL guaranteed an Inuit Firm Contracting Level of 89%. To-date they have provided 83% Inuit contracting.
  • KCL mobilized to site in March 2010, work is planned to commence in summer 2010.
CAM-F: Scarpa Lake
  • The remediation contract required a minimum of 63% Aboriginal employment, Biogenie SRDC Inc. maintained 73%.
  • Biogenie used 62% of Aboriginal companies for the remediation contract.
  • Site remediation work has been completed.
Cape Christian
  • The percentage of Northern/Aboriginal suppliers engaged in this project is 71%.
  • The percentage for Inuit employment for the 2009-2010 is 69%. The total percentage to date is 70%.
  • The percentage for Inuit subcontracting (suppliers) for 2009-2010 was 90%. The total percentage to date is 81%.
  • In October 2009, a community consultation was conducted in Clyde River for the project's progress update.
  • Inuit Capacity Building Training was conducted in Clyde River in June 2009. The courses offered were HAZWOPER, TDG, PCB Storage, and First Aid and CPR.
FOX-C: Ekalugad Fiord
  • The remediation contract required a minimum of 88% of Aboriginal Employment, and they maintained 100%. The camp contract required a minimum of 70% of Aboriginal employment, and they maintained 85%.
  • A number of training programs were completed in 2008-2009, which included: Hazardous Waste Operations and Emergency Response Standard (HAZWOPER), Transportation of Dangerous Goods (TDG), PCB Storage, and First Aid.
  • Qikiqtaaluk Corporation maintained 70% of Aboriginal subcontracting.
  • The final round of consultations were completed in October 2009.
  • Site remediation activities were completed ahead of schedule.
PIN-B: Clifton Point
  • Permit applications have been completed.
  • Archaeological Assessment and Environmental Screening has been completed.
  • An RFP was posted in January 2009 and a contract has been awarded.
  • E. Gruben's Transport Limited (EGT) guaranteed an Inuit Employment Level of 90%. Currently EGT is reporting an 87% Northern Aboriginal employment (includes Inuvialuit) and 80% Inuit employment level.
  • EGT guaranteed an Inuit Firm Contracting Level of 85%. Currently EGT is reporting achieving a 79% level.
  • EGT completed HAZWOPER, TDG, and First Aid training to the residents of Kugluktuk.
  • A successful community consultation session in Kugluktuk was held in August 2009 with 93 participants and positive feedback.
PIN-D: Ross Point
  • The Phase III Site Assessment was completed in August 2009.
  • In August 2009, a meeting was held with local Elders to gather Traditional Knowledge.
  • In January 2010, a community meeting was held in Kugluktuk to discuss the draft Remedial Action Plan.
PIN-E: Cape Peel
  • The Phase III Site Assessment was completed in August 2009.
  • In August 2009, a meeting was held with local Elders to gather Traditional Knowledge.
  • In January 2010, a community meeting was held in Cambridge Bay to discuss the draft Remedial Action Plan.
Robert's Bay Mine Site
  • Employment statistics for 2008 was approximately 55% of Aboriginal/Northern employees.
  • The percentage of Northern/Aboriginal suppliers engaged in the project at the end of the 2008-2009 3rd quarter was 95%.
  • The percentage for Inuit employment for 2009-2010 was 64%. The total percentage to date is 63%.
  • The percentage for Inuit subcontracting (suppliers) for 2009-2010 was 31%. The total percentage to date is 70%.
  • The remaining works will be completed by October 2010.
  • Inuit Capacity Building Training was completed. The training was conducted at Cambridge Bay. Courses offered included: Construction Basics, HAZWOPER and Specialty Handling. The course attendance varied between 15 and 20 participants. Eleven of the course participants were interviewed and employed for the main project at Roberts and Ida Bay.
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