Nunavut planning body hints at legal action against Ottawa

“The continued silence and absence of funds is a breach of the federal government’s legal obligations,” Nunavut Planning Commission says


The cover of the Nunavut Land Use Planning Commission's final draft land use plan. The NPC says if Ottawa refuses to fund it, it would constitute a breach of fiduciary duty. (FILE IMAGE)

The cover of the Nunavut Land Use Planning Commission’s final draft land use plan. The NPC says if Ottawa refuses to fund it, it would constitute a breach of fiduciary duty. (FILE IMAGE)

The Nunavut Planning Commission is stepping up its game plan against Ottawa, hinting in a new letter that legal action may be necessary to force the federal government to pay for final hearings into Nunavut’s final draft land use plan.

The July 2 letter, addressed to Aboriginal Affairs and Northern Development Minister Bernard Valcourt, says Ottawa is shirking its fiduciary duties by not committing an estimated $1.7 million for the November 2014 public meetings, which would be held in Iqaluit.

“The government has failed to respond, in any meaningful way, to our request for these funds. The further silence of the government, on this subject, will be taken as a clear refusal to honour its fiduciary obligation,” says the letter, signed by NPC acting chair Percy Kabloona.

“The NPC reserves the right to take any action necessary to compel the government to honour its obligation.”

In the paragraph prior to that statement, Kabloona hints at what “any action necessary” might mean.

“You will know the fiduciary duty, generally, of the federal government, to properly honour its promises, has been the subject of discussion and litigation, in many venues, covering many different subjects, across Canada,” the letter states.

“The Nunavut Planning Commission has indicated to federal government staff and your office that the lack of funding is the sole reason for the present suspension of the fall 2014 public hearings.”

The NPC released its draft Nunavut Land Use Plan or DNLUP on June 20 after six years of research and widespread consultation.

Like a territorial zoning bylaw, the DNLUP sets out which pieces of land in Nunavut’s vast two-million-square-kilometre settlement area can be used for what purpose, including which portions can be exploited by mining companies and which will be protected as wildlife habitat.

There is significant debate around many areas of the DNLUP, especially caribou calving and post-calving grounds in the Kivalliq region.

A long list of First Nations, wildlife groups and others have written to the NPC urging them to ensure those sensitive habitats are fully protected, and many would likely attend a final DNLUP public hearing.

Those hearings were originally scheduled be held in Iqaluit Nov. 24.

But it’s unclear whether they will go ahead because Ottawa has yet to confirm it will foot the bill and the NPC can’t afford to do it solo.

In an emailed statement to Nunatsiaq News June 18, Valcourt said the NPC had only recently submitted a work plan and budget for additional funding for that final hearing.

“We will give this request due consideration,” Valcourt wrote, adding that Ottawa has spent $54 million in NPC core funding over the past 18 years, which averages out to about $3 million a year.

It’s been more than two weeks since that statement, and still no decision.

Kabloona said that if Ottawa does not confirm funding by tomorrow, July 4, the final hearings will be cancelled indefinitely.

“The people of Nunavut have the right to have the future use of lands and waters of Nunavut determined in an orderly fashion and the pending Nunavut wide Land Use Plan is designed to provide that framework,” Kabloona’s letter says.

“The continued silence and absence of funds is a breach of the federal government’s legal obligations, not only to the institution of the Commission, but more importantly to the Canadian citizens who call Nunavut home.”

We requested a response to Kabloona’s latest letter from Valcourt through his press secretary, Erica Meekes, early July 3.

She replied with virtually the same statement Valcourt provided June 18 — that the minister is still considering the NPC’s funding request.

“Fiduciary duty,” as applied to the relationship between the federal Crown and aboriginal peoples in Canada, is entrenched in Section 35 of the Constitution.

It has been further defined by the Supreme Court of Canada in several landmark cases.

In effect, fiduciary duty means the Crown has a unique historic relationship of trust with aboriginal peoples and a legal obligation to protect their rights, especially when it comes to land.

The 1996 Royal Commission on Aboriginal Peoples also defined fiduciary duty and said that “the Crown acts as the protector of the sovereignty of Aboriginal peoples within Canada and as a guarantor of their Aboriginal and treaty rights.”

Funding NLUP Public Hearing July 2 2014_FINAL_1

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