January 14, 2005

Land claim implementation talks grind to a halt

NTI says DIAND reneged on past promises

JIM BELL

Time for an update: The first implementation contract for the Nunavut land claim agreement expired July 9, 2003.

Inuit beneficiaries in Nunavut now have no way of knowing if their land claim agreement, especially the Article 23 provisions on Inuit employment in government, will ever be fully carried out.

That’s because talks between Nunavut Tunngavik Inc. and the federal government on a new 10-year implementation contract have ground to a halt, with no sign now that they’ll ever start up again.

At the same time, NTI officials are asking themselves if federal officials have been negotiating in good faith.

“This is more than about funding agreements. This is about completing the process of implementing the Nunavut land claim agreement,” said John Bainbridge, a senior policy advisor at NTI.

NTI’s biggest demand is that a new implementation contract contain a better way of carrying out Article 23, which requires that governments in the Nunavut settlement area work towards an 80 to 85 per cent level of Inuit employment.

To back that demand, NTI, together with the Government of Nunavut, hired accounting firm PricewaterhouseCoopers to produce a study on the economic costs of government failure to hire and train Inuit workers.

That study, released in 2003, concluded that Inuit lose out on $123 million a year in wages and benefits.

And the study showed that governments are “spending $65 million annually to build a public service from labour imported from southern Canada while maintaining the highest unemployment rate of any region in Canada,” Bainbridge wrote in a report.

To fix that, NTI proposed that Ottawa spend $10 to $20 million a year over 10 years on implementing Article 23. Most of the money would flow into a revamped Inuit employment and training plan.

But DIAND consistently refused to acknowledge any federal responsibility to pay for Article 23, except for Inuit jobs at the federal government’s Nunavut-based offices.

Because of that, talks aimed on a new implementation contract stalled in January of 2003, when DIAND offered NTI a take-it-or-leave-it deal that NTI rejected.

But in May of 2003, negotiations bounced back to life when Alain Jolicoeur, the deputy minister of DIAND, presented NTI with a new offer based on “a new federal approach to Article 23 and some short-term spending promises.”

DIAND appointed a new negotiator, Blair Carlson, and talks resumed.

But this past November, NTI received a letter from a senior DIAND official that has led them to question the federal government’s intentions.

The letter, dated Nov. 5, told NTI that the department has “exhausted its mandate,” meaning they can’t offer more than what they offered in January of 2003, in a position that was, and still is, unacceptable to NTI.

The letter also said DIAND “does not see the utility of appointing a new chief negotiator.”

For NTI officials, this is a sign that DIAND may never have been serious about its improved offer in May 2003 — because they have refused to follow through on what they promised at that time.

Now, with no negotiator on the other side, and a federal government that’s unwilling to come closer to meeting NTI’s demands, NTI officials have been left with nothing.

And they are now looking at other political and legal methods of advancing the right of Nunavut Inuit to see a full implementation of Article 23.

That could include borrowing the concept of “good faith” bargaining from labour law, and applying it to DIAND’s behaviour during the implementation talks.

“In NTI’s view this stance amounts to a constructive disengagement by DIAND from the negotiations. Consequently, Inuit are now bound to consider whether DIAND has engaged in these negotiations in good faith,” Bainbridge wrote in an NTI report that will be presented to the next Canada-Aboriginal Roundtable in Ottawa.

Bainbridge also said DIAND’s approach to the implementation contract negotiations confirms the criticisms that Sheila Fraser, the auditor general of Canada, made in a recent report on the federal government’s record on land claim implementation.

Fraser said in that report that DIAND takes a narrow, legalistic approach that ignores the spirit of land claim agreements, and that Ottawa has no method of determining whether or not land claim agreements have achieved their goals.

To figure out where to go next on the failed implementation contract talks, NTI officials will likely have to hold special meetings to talk about political and legal strategies.

Under current federal land claim policy, land claim agreements must be accompanied by implementation contracts that state who is responsible for doing what, who should pay, how much they should pay, and when.

The first implementation contract for the Nunavut agreement, worked out in 1993, expired July 9, 2003.

The second contract, if it’s ever worked out, would cover the period from July 10, 2003 to July 9, 2013.

Until that deal is reached, funding for Nunavut’s “institutions of public government,” such as the Nunavut Impact Review Board and the Nunavut Planning Commission, will continue to be plagued by long-term uncertainty.

That’s because since 2003, they’ve been funded on a year-to-year system, based on the expired implementation contract.