Ottawa presents appeal on $14.8-million judgment won by NTI
Ottawa defends efforts on Nunavut General Monitoring Plan
The Government of Canada went toe-to-toe with Nunavut Tunngavik Inc. at the Nunavut Court of Appeal in Iqaluit Sept. 25, laying out their case for why they believe they should not pay $14.8 million of public money in damages awarded by the Nunavut Court of Justice over the delayed implementation of Article 12 in Nunavut Land Claims Agreement.
The federal government’s submissions admitted Canada breached its contract obligations in the Nunavut Land Claims Agreement when a Nunavut General Monitoring Plan had not been created by a 2003 deadline.
But Canada’s lawyer, Sheila Reid, said because of difficulties with the Nunavut Planning Commission, the federal government could not start work on the Nunavut General Monitoring Plan for three years after the NLCA was signed in 1993.
This left only seven years for the federal government to start up the Nunavut General Monitoring Plan — a plan that is intended to collect data related to the health of the “ecosystemic and socio-economic environment in the Nunavut Settlement Area,” according to article 12.7.6 of the land claims.
And when the Nunavut Planning Commission gave their directions on the Nunavut General Monitoring Plan, it had been “too vague and broad” and gave no “discretion” to Canada on how to get the plan going.
The federal government did, however, create a business plan — which took two years to complete — and held workshops that they paid for.
Reid’s point is that Canada was not “inactive” until 2010, when the Nunavut General Monitoring Plan began, but had tried to get the plan up and running.
But Reid disputed the 10-year deadline to create the Nunavut General Monitoring Plan, saying there had been no specific deadline, and that the government had only been told to start the plan “as soon as possible.”
Reid criticized Justice Earl Johnson’s 2012 judgment to award NTI nearly $15 million, saying that not enough evidence had been presented by NTI to calculate a specific amount for damages.
NTI did not attempt to “reach out to its constituents” and provide a substantial argument for how much the Inuit have been affected by the lack of general monitoring plan, she said.
And Johnson should have requested more evidence from NTI on that matter, Reid said.
Reid also said the damages were harsh and that nominal damages, or just finding Canada in breach of contract, would have sent a strong message to the federal government.
Ultimately Reid said the Canadian taxpayer should not being “paying twice” for the creation of the Nunavut General Monitoring Plan.
The federal government is on the hook for an $11.3-million budget covering operating costs over a five-year period, starting when the Nunavut General Monitoring Plan began in 2010.
But the $14.8 million in damages “does not give back the general monitoring plan,” for six-and-a-half years from 2003 until 2010, when the plan should have been in place, Reid said.
Reid said Canada’s position had been to get the Nunavut General Monitoring Plan right, and not to rush it. She said “building blocks” like consulting and workshops had to happen before the plan kicked into gear.
“Canada said — you can do something quickly, or you can do it right,” Reid said.
The federal lawyers threw a kitchen sink full of case law at appeal judges Justice Frans Slatter, Constance Hunt, and Clifton O’Brien.
Those case studies included a convicted spy who ran an illegal business on the side, New Zealand’s internal treatment of prisoners, and a pie-throwing incident.
One important case study Reid brought up is a recent land claim dispute between the federal government and the Manitoba Métis Federation, which dealt specifically with the Métis’ land claim agreement.
Reid argued that in the Manitoba Métis Federation case, a delay in implementing one section of the Manitoba Act lead to a total failure of the whole land claim.
But in the NLCA, the delay in implementing the Nunavut General Monitoring Plan did not overthrow the whole land claims agreement, and is just a minor breach in contract, she argued.
Reid said that Johnson did not have the benefit of seeing this case when making his decision to award NTI damages, because it had been an ongoing case when he made his decision.
NTI’s view of the Métis Land Claims dispute is that the Supreme Court of Canada, in fact, sided with the Métis and in the case of the NLCA, it should be no different.
Dougald Brown, one of NTI’s lawyers, countered most of the appellate’s arguments during his submissions.
He told the panel of judges that there had been ample evidence given to Johnson, and that there had been no question that 2003 was the time the federal government should have started the NGMP to start monitoring and collecting data.
In fact, it was only until NTI filed the lawsuit against the government of Canada in 2008 that the federal government started to get their act together, he said.
And NTI’s Vancouver-based lawyer, Jim Aldridge, said it would be “hollow and unjust” if no damages were awarded to NTI.
Speaking to media after the appeal case — which lasted almost eight hours and spanned two days — Brown said this case may have a big influence on Aboriginal law in the future.
“It will be a significant case about modern comprehensive land claim agreements and the types of remedies that are available when these agreements are breached,” Brown said.
“There have not been a lot of cases in that type of issue in the court to date,” he said.
The appeal judges have reserved their decision until a later date.
This is only one part of the $1-billion lawsuit against Ottawa.
Other allegations in the lawsuit, including allegations that the federal government failed to properly implement provisions on Inuit employment (Article 23) and government contracting (Article 24) are still waiting to be tried in court.
Those matters are expected to go to trial in 2015.