The Nunavut Land Claims Agreement (NLCA):

Understanding its Building Blocks

Presented ByCindy Kieu

Shores Jardine LLP cindy@shoresjardine.com

1

Introductory Remarks “The Nunavut Land Claims Agreement that led to

the creation of Nunavut is by far the largest of the land claims settlements in the modern land claims era. The territory is vast, covering one fifth of Canada, extending from the 60th parallel to the waters off the northern coast of Ellesmere Island. If Nunavut were an independent country it would be the twelfth largest in area in the world.” Thomas R. Berger, O.C., QC

2

Nunavut – “our land”

3

Nunavut Land Claims Agreement (NLCA)

4

Agenda1. History of the negotiations2. Ratifying the NLCA and creating a New Territory3. Legal Status of the NLCA4. The Agreement

a) Land-Resources-Harvestingb) Economic Benefits & Self Reliancec) Socio-Cultural Rights and Benefits

4. General Comments5. Questions

5

Negotiations 1971 - Founding Conference of Inuit Taparisat

Canada (ITK) 1973-1993 - Negotiations between the Inuit of

Eastern Arctic and the Federal Government spanned over 20 years

“I worked with three prime ministers, six ministers, four deputy ministers and an assortment of assistant deputy ministers, directors general and administrators from what was then the Department of Indian Affairs and Northern Development (DIAND).” Tom Malloy, at the 2014 CBA National Aboriginal Law Conference in Nunavut.

6

Negotiations cont’d1973 - Calder v. A.G. of British Columbia

[1973] S.C.R. 313August 1973 - post-Calder 1976 - Inuit Land Use and Occupancy

Project1982 – Constitutional Act, 1982 at s. 351986 – Federal Comprehensive Claims

Policy revised

7

Creation of Nunavut“In the final federal caucus of the negotiation, Rick Van Loon, an associate deputy minister, asked the multitude of assembled bureaucrats and lawyers, "Does anyone in the room believe thatNunavut will not be a reality in the near future?" Silence was the response, so he followed up with, "Minister, I think you should go for it.“ Tom Malloy, 2014 CBA National Aboriginal Law Conference, Iqaluit, Nunavut

8

Ratifying the NLCAApril, 1990 - Nunavut Agreement-in-

Principle was signed in IgloolikMay, 1992 – Boundary plebiscite November, 1992 – Ratification voteMay 25, 1993 – Nunavut Land Claims

Agreement July 9, 1993 –Nunavut Land Claims

Agreement Act and Nunavut Act proclaimed into force

1999 – A new Government of Nunavut9

Legal Status of the NLCATreaty – preamble (and Article 2.2.1) of

the NLCA states:“Whereas the Constitutional Act, 1982 recognizes and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada, and treaty rights includes rights that may be acquired by way of land claims agreements.”

An Agreement (contract)

10

Legal Status cont’dBinding Public Law - Article 2.5.1 of the

NLCA provides: “The Agreement shall come into force upon its ratification by both parties.”

Authority - NLCA provides the interpretative guidance and authority when reading other statutes or (federal and territorial) laws that apply in Nunavut

11

Legal Status cont’dRules of modern treaty interpretation“[The NCLA] was carefully and professionally drafted with

modern contractual drafting conventions … and contains various provisions relating to implementation including through an Implementation Plan under the supervision of an Implementation Panel, in part through the mechanism of an Implementation Contract [and] with joint participation by the Inuit and Government of Canada in the Implementation

Process.” Nunavut Tungavik Incorporated v Canada (Attorney General) 2014 NUCA 02 at paras. 7 & 8

Benefits are additive - Art 2.7.3, 23.9.1, 37.9.3 12

Land – Resources - Harvesting Inuit land, resource, water and harvesting

rights include: Inuit title to more than 350,000 square

kilometers of land – Art 19; About 36,000 square kilometers include

mineral rights; Offshore rights in specified marine areas,

including harvesting – Art 15;Consultation, compensation & royalty rights

where wildlife, land or water are exploited or adversely impacted.

13

Land – Resources - Harvesting In the rest of Nunavut, approximately 2 million sq

kms, Inuit participate in land and resource management decisions.

NLCA co-management institutions include: The Nunavut Wildlife Management Board – Art 5 -

wildlife/harvesting; The Nunavut Planning Commission – Art 11- land

use and development; The Nunavut Impact Review Board - Art 12 -

cumulative impact; The Nunavut Water Board – Art 13 - fresh water

impacts; Inuit Heritage trust - Art 33, 34 - archaeology,

ethnography, place names; 14

Land – Resources - Harvesting Inuit Impact Benefit Agreements (Art

8, 9, and 26) may add co-management bodies, powers and responsibilities over time.

15

Economic Benefits & Self RelianceNunavut TrustArt 29 & 30Art 26 & 27 Implementation-specific funding Art 23 & 24 include economic benefits

16

Socio-Cultural Rights and BenefitsSection 32.2.1…obligations under Section 32.1.1 shall be

fulfilled by Government: Providing Inuit with an opportunity to participate in the

development of social and cultural polices, and in the design of social and cultural programs and services, including their method of delivery in the Nunavut Settlement Area; and

Endeavoring to reflect Inuit goals and objectives where it puts in place social and cultural policies, programs and services in the Nunavut Settlement Area.

Article 33 – Archaeology – Establishment of the Inuit Heritage Trust

17

Observations Implementation – Art 37

Recent NTI v. Canada law suit settlement

Role of Provincial and Territorial Governments

18

Questions?

19

QuajannamiikNakurmiik

Matna

Cindy KieuShores Jardine LLP

cindy@shoresjardine.com20