September 28, 2001

NTI suing DIAND over water licences

Land-claim trumps federal legislation, lawyer says

DENISE RIDEOUT
Nunatsiaq News

IQALUIT — After months of wrangling over who has power over water licences in Nunavut, Nunavut Tunngavik Inc. and the federal government will take their battle to court.

NTI’s lawyer, Laurie Pelly, says the land claims organization has filed a lawsuit against the Department of Indian and Northern Affairs.

The debate over water licence authority has gone on since January and has become increasingly complex.

But Pelly said the issue before the courts will be simple: NTI says DIAND is ignoring the land-claims agreement when it comes to water management in Nunavut.

Water licences regulate water use and waste disposal in the territory.

The Nunavut Water Board, which was created under the land-claim agreement, says it has the final say on water licences. It asserts that licences don’t need approval from the minister of DIAND.

DIAND, on the other hand, argues that all water licences must receive the minister’s stamp of approval.

Going to court

In court, NTI will challenge DIAND’s Aug. 13 decision not to approve the water licence the water board issued to Iqaluit in January.

Pelly said NTI will argue that nowhere in Article 13 of the land claim does it say water licences need the minister’s approval.

"The land claim agreement, in NTI’s view, does not provide for ministerial approval of water licences, does not mention ministerial approval with respect to water licences, and therefore the NWB has authority to issue water licences without ministerial approval," Pelly said.

Some of the confusion seems to lie in how the old Northwest Territories Waters Act applies in Nunavut. Nunavut still doesn’t have its own laws on water management.

According to the Northwest Territories law, the DIAND minister must approve water licences.

But NTI says the land claim agreement trumps that. Because the land claim agreement is entrenched in the Charter of Rights and Freedoms, NTI argues that it carries more weight than other federal and territorial laws.

"Our position is that the land claim agreement changed the existing regime and the minister no longer has the authority to approve or disapprove water licences in Nunavut. That authority lies solely with the water board," Pelly said.

Jennifer Lilly, DIAND’s spokesperson in Iqaluit, said the department can’t comment on the matter because it’s now a legal issue.

Pelly said the case will likely be heard by December.

Nunavut water laws

Meanwhile, the federal government is working on creating water legislation for Nunavut. On Sept. 20, the DIAND minister introduced Bill C-33, a draft of the Nunavut Waters Act.

The new law would clear up the confusion over water authority, said Will Dunlop, who works on land claim issues at DIAND.

Dunlop said the bill will outline the Nunavut Water Board’s mandate, its powers, and the processes it must follow.

It also states that water licences will, in fact, require the DIAND minister’s approval.

Before the bill can become law it has to be passed by Parliament.

Laurie Pelly said NTI will oppose that legislation. She said they’ll make a presentation to MPs arguing against ministerial approval on water licences.