Nunavut seeks ruling against Ottawa before trial begins on land claim lawsuit

A judge is considering whether to rule that Ottawa didn't live up to the Nunavut land claim after hearing evidence from a federal bureaucrat admitting his department for years ignored one of the treaty's main promises.

A two-day hearing on the issue, completed in Iqaluit this week, concerns one part of a massive, billion-dollar lawsuit brought against the government for failing to follow through on its part of the 1993 deal that eventually created the Arctic territory. The evidence for this aspect of the claim is so strong that the judge has been asked to issue a summary judgment against the government even before the trial begins.

"We had examined a representative of the government for a couple of days in Ottawa," said Dougald Brown, the lawyer representing Nunavut Tunngavik Inc., the group that oversees the land claim and the plaintiff in the lawsuit.

"He essentially made a number of admissions on the record about the government's failure. The gist of our case was that those admissions justify the court proceeding to summary judgment."

Part of the Nunavut land claim included a promise to create a single agency that would track environmental, social and economic changes in the new territory to provide baseline data and guide development. The agency was to be in place by July 2003.

But nothing was done, a fact freely acknowledged by a bureaucrat in the department of Aboriginal Affairs and Northern Development.

"There's no plan in place today, no," Terry Sewell, quoted in court documents, said in November 2009 testimony. "As called for in the agreement, no, it's not in place."

It took until 2010 for the government to even set aside any money for the agency and it's still not fully functioning, seven years after the deadline and 19 years after the deal was signed.

NTI is asking Nunavut Court of Justice for nearly $15 million in damages for this part of the lawsuit, arguing that's how much the government saved by not fulfilling its promises.

That failure has made it harder for the new territory to move forward, said Terry Audla, NTI's chief executive.

"We just don't have the baseline data that we had hoped to have prior to any project development," he said.

"Everyone's playing catch-up. It's a disfavour to everyone."

The agency was to monitor the social impacts of industrial development as well.

"To have a project come in and create new income earners or labourers and contractors and have that sudden influx of money, what are the effects there?" asked Audla. "To have the baseline, how it existed prior and what's been done to date and what are effects and potential remedies, it only would work to addressing some of that."

Some of that research has been done, but it's been piecemeal and poorly co-ordinated, Audla said.

The lack of a monitoring plan is only one aspect of a lawsuit that makes much larger accusations over Ottawa's failure to live up to the Nunavut land claim.

That lawsuit argues that while the federal government promised Inuit would take up a representative share of civil service jobs in the new territory, it failed to provide education adequate to allow them to do that. Inuit remain underrepresented in Nunavut's civil service.

A 2006 conciliation report by retired justice Thomas Berger backed up NTI's claim. A previous report by Berger on how the treaty was being implemented concluded that Ottawa lost interest in Nunavut after the new territory was created.

"In '99, the Nunavut government was created and (we were) flavours of the month," said Audla. "But when it comes to the more mundane aspect of implementation of the land claim ... I don't know whether they lose interest or whether they're trying to save money."

The lawsuit isn't expected to go to trial until 2014.