Federal government scrambles to restore Nunavut wildlife powers

Wayne Walsh, the director general of northern affairs at the northern strategic policy branch of the Department of Crown-Indigenous Relations and Northern Affairs, at a hearing held May 7 by the special Senate committee on the Arctic. He told committee members that the federal government, when it implemented devolution in the Northwest Territories, may have inadvertently erased the Government of Nunavut’s power to regulate wildlife in danger of extinction. (SCREEN SHOT)

Whoops! The federal government may have unintentionally erased the Government of Nunavut’s legal authority to regulate the harvest of caribou, muskox and polar bear four years ago, members of the Senate special committee on the Arctic heard last week in Ottawa.

“The situation creates a regulatory gap and uncertainty for the Government of Nunavut in its ability to manage wildlife,” Wayne Walsh, a civil servant with the Department of Crown-Indigenous Relations and Northern Affairs, told the Senate committee at a hearing May 7.

Ottawa is now quietly moving to fix the legal glitch, which dates to April 1, 2014, after Parliament passed the Northwest Territories Devolution Act.

Their stop-gap fix is stuffed deep inside a section of Bill C-74, the huge omnibus bill that contains the federal government’s 2018-19 budget.

In it, the federal government proposes to amend the Nunavut Act with words that would restore the Nunavut government’s power to make regulations on the Inuit harvesting of species threatened with extinction.

“Nunavut was overlooked. I believe that’s what happened,” said Sen. Dennis Patterson, chair of the Senate’s Arctic committee.

The complex loophole occurred when Parliament passed the law that authorized the devolution of public land and resource management to the Government of the Northwest Territories in 2014.

As part of a modernization of the Northwest Territories Act, the Canada-N.W.T. devolution law repealed an order-in-council, or cabinet order, that dates to 1960.

The original cabinet order, written in the now-archaic terminology of 1960, gave the N.W.T. government the power to regulate hunting by “Indians and Eskimos” of “game declared in danger of becoming extinct.”

But after April 1, 2014, it’s possible the GN lost that legal power, which it had inherited from the N.WT.

“An unforeseen consequence of the repeal of the 1960 order is that the legislature of Nunavut may no longer have the clear authority to restrict or prohibit Indigenous people from hunting game for food,” Walsh said.

Three of the four species listed under the latest version of the 1960 federal regulation on “game declared in danger of becoming extinct” are hunted in Nunavut: caribou, muskox and polar bear.

The fourth species on the list, wood buffalo, is found only in the N.W.T.

The proposed change to the Nunavut Act, contained in the omnibus budget bill, would declare that the 1960 regulation still has legal force in Nunavut, and would be made retroactive to April 1, 2014, Walsh said.

“This retroactive provision would ensure the validity of legislative action taken by the Government of Nunavut under the Nunavut Act and ensure greater certainty in relation to wildlife management for the benefit of Indigenous people and all Canadians,” he said.

It’s not clear how this affects wildlife management decisions the GN has made since April 1, 2014, including major steps it took to regulate caribou harvesting.

The GN imposed an interim moratorium on caribou hunting on Baffin Island that took effect Jan. 1, 2015 and later that year imposed a small quota of 250 animals, specifying that only bulls may be harvested.

In 2016, the GN laid a charge against a Canadian Ranger from Igloolik, alleging he illegally harvested a caribou during the 2015 moratorium.

That case is still before the courts, and the man’s lawyers said last summer they’re preparing constitutional arguments to use in his defence.

Now, the GN’s legal authority to lay the charge appears to be in question, but the federal government has done little to explain the loophole created by its 2014 legislation.

A single sentence, on page 135 of the 369-page budget information document the Liberal government released this past February, says only this:

“In addition, the Government proposes to amend the Nunavut Act to resolve the legal gap for the Government of Nunavut to manage wildlife pertaining to Indigenous harvesting for game food.”

The chair of the Senate committee, Sen. Dennis Patterson of Nunavut, asked Walsh to explain why the amendment is needed now.

“We’ve gotten along since 2014 without this order applying to Nunavut. What’s the problem with continuing with the status quo? Things have gone on OK for the past four years, I believe.” Patterson said.

Walsh replied by saying that, although the Northwest Territories Act has been modernized through the devolution exercise, Nunavut may have accidentally lost legal powers over wildlife management.

“The way the Nunavut Act is constructed, it can be read that Nunavut no longer has authority to pass regulations in this area,” Walsh said.

For example, Walsh said that right now, Nunavut cabinet ministers may not have the authority to enforce the Nunavut Wildlife Management Board’s recommendations on total allowable harvests.

“I think that would be the biggest challenge moving forward,” Walsh said.

Bill C-74, the omnibus budget implementation bill that contains the amendment to the Nunavut Act, is is now at second reading.

Various parts of it have been referred to different Senate committees, including the Arctic committee, which is supposed to report on its findings by May 31.

At some point in the future, the Crown-Indigenous relations department will consult Nunavut Tunngavik and the GN on a proposed modernization of the Nunavut Act, which right now is mostly a mirror of the old N.W.T Act, Walsh said.

Once that’s done, the 1960 federal regulation can be replaced by words contained in a revamped Nunavut Act, and the stop-gap fix proposed now won’t be needed, he and other officials said.