Why doesn’t NTI sue the GN?

The Auditor General of Canada’s recent report on the Government of Nunavut’s hiring and people-management practices raises many questions, not the least of which is this: why does Nunavut Tunngavik Inc. not sue the GN?

It’s the purported failure by government, after all, to carry out the Inuit jobs commitment set out in Article 23 of the Nunavut land claims agreement that, more than any other issue, provoked NTI into launching its big beast of a lawsuit against Ottawa in December of 2006.

But since then, NTI has fought the idea that the GN also should be brought to court to defend its record on Article 23 and other implementation issues.

This, to say the least, is a curious position for NTI to take. It’s the GN, after all, that actually recruits, hires and manages the vast majority of government workers in the territory.

The GN lists about 3,300 jobs on its staff roster. Hundreds more work for GN-funded municipalities and social housing organizations. The federal government, not counting the RCMP, which is excluded from most of Article 23, employs no more than about 300 to 400 people. If you had a beef about government hiring practices in Nunavut, which government would you sue?

Furthermore, most of the GN foul-ups that Auditor General Sheila Fraser listed in her report do not arise from a lack of money. They arise from the absence of competence and the failure to perform basic duties.

She found most departments don’t keep lists of how many people they need with the necessary qualifications and skills to run programs and meet objectives. She found most departments don’t record and file the qualifications held by their workers. And she found most departments don’t even evaluate the performance of their workers.

Her findings were rather gentle, when you consider the shocking anecdotes that leak out of numerous GN workplaces every other month. Fraser did not look at absenteeism, productivity, staff morale or management competence. In the real world, such issues are critical for employers.

In any event, it’s not surprising that in 2007 and 2008, federal government lawyers went to the Nunavut Court of Justice to ask a judge to add the Government of Nunavut as a defendant in the NTI lawsuit.

NTI fought the idea. In the end, after much expensive wrangling among highly-paid lawyers, the court ruled the GN will not be named as a defendant, but can be brought into the lawsuit as a “third party.”

We bring this up not to encourage NTI to actually sue the GN over Article 23. Like NTI’s December 2006 lawsuit against Ottawa, that would be a bad idea.

We bring this up because the auditor general’s report, and others like it that have been issued in the past, illustrate two harsh realities from which no one in Nunavut can escape.

The first is that Article 23 is a weak, ambiguous provision, containing words that can be made to mean almost anything, depending on the reader’s bias.

The second is that land claims negotiators on all sides did not have a clue what they were actually signing up for when when they produced Article 23 in the late 1980s.

For example, the objective of Article 23 is “to increase Inuit participation in government employment in the Nunavut Settlement Area to a representative level.” The words “representative level” means about 85 per cent of the government workforce, based on Nunavut’s current population mix. That much is clear.

It’s also clear that Article 23 does not create an automatic right for Inuit to receive government jobs on demand, despite what many people believe. Article 23 actually says governments may increase the hiring and promotion of Inuit using “measures consistent with the merit principle.” This means you have to show you’re able to do a job before you’re hired for it.

Nor does it say when its objective must be reached. Article 23 does not state any deadline for when government workforces in Nunavut must reach this 85 per cent level.

So it’s possible for some to read Article 23 this as meaning “soon,” but it’s equally possible for others to read Article 23 as meaning “a long time from now.”

It’s also possible to infer that negotiators intended that Article 23 stay in place forever — and achieved this intention by setting an objective they knew could never be attained. It only says that governments must do certain things to get there, pretty all of which they appear to have done already.

In his final conciliation report, even Thomas Berger, the man brought in to help forge a last-ditch resolution of the NTI-Ottawa dispute, admitted the federal government has likely stuck to the letter of the agreement, or what he called its “explicit obligations.”

He also admitted that all players in the land claim game got it wrong in what they expected Article 23 to achieve: “[t]he initial goals were unrealistic. They could not possibly have been met,” Berger said.

As we all know now, Berger proposed that Canada fix this by spending millions of dollar more per year to help Nunavut create a full-blown bilingual school system.

The only problem is that Berger was not hired to write a critique of Nunavut’s school system. He was hired to conciliate a contract dispute, a job he performed with extraordinary competence until he stumbled into Article 23 and strayed far beyond his original mandate.

Instead, Berger appointed himself, unilaterally, to serve as an unelected nation-builder:

“It is simply not in keeping with the immense task of building a country to haggle over the meaning of words that were never adequate to the subject. I am not engaged in winkling out the meaning of language used by the Parties when it must be obvious they did not appreciate the true dimensions of what would be required to fulfill the shared objective of Article 23.”

Berger, in effect, asks that the glaring weaknesses of the Nunavut land claim agreement, especially Article 23, be fixed by adding new elements to the agreement. But it is not realistic to expect that the federal government, or anyone else, will ever be willing to re-open the Nunavut land claims agreement, even within a new implementation contract.

Besides, in the 1980s and early 1990s, education and training were not crucial issues for Inuit land claims negotiators.

They were happy to sign off on Article 23, despite its weaknesses. In 1992, they agreed to a mere $175,000 or so in spending to implement Article 23 over the first 10 years of the land claim agreement. Also in 1992, during the land claim ratification vote, they scoffed at objectors who warned there were not enough educated people in Nunavut to run a new territorial government.

This disregard for education and training represents the spirit and intent with which Inuit negotiators and their non-Inuit hired help created the Nunavut land claims agreement.

So it’s now hypocritical for them to blame Ottawa for the mess that the Auditor General and others have been exposing for the past decade.

Nunavut’s capacity are far too complex and multi-faceted to be fixed by a Nunavut judge. The only benefits likely to flow from NTI’s lawsuit are the decades worth of billable hours that will surely flow to a variety of Ottawa-based lawyers and consultants, none of whom possess any understanding or appreciation for the day-to-day lives of Nunavut residents.

If there’s a lesson to be learned from Sheila Fraser’s report of last week, it’s this: the Nunavut government’s human resources problems are now deep-seated and will haunt us for decades to come. Only elected leaders and trained civil servants can improve those problems, not judges and lawyers.

NTI should drop its ill-considered lawsuit against Ottawa and find a way to work constructively with government on realistic ways of helping the GN fix its hiring and training mess. Realism, of course, is not one of NTI’s strong suits. But it’s never too late to start.JB