Feds want territory as co-defendant in land claims case

One way or the other, the Government of Nunavut will be a player in a precedent-setting $1 billion legal battle over Ottawa's implementation of the Nunavut land claims agreement.

But neither the GN nor Nunavut Tunngavik Inc., which initiated the lawsuit against the federal government, wants the territorial government to be forced into the proceedings as a co-defendant.

NTI is suing the federal government for one billion dollars, alleging Ottawa hasn't lived up to its obligations under the Nunavut Land Claim Agreement, including providing enough money for Inuit training and employment in government.

Lawyers for the federal government are appealing a May 2008 ruling that rejected a motion by federal lawyers to have Nunavut named as a co-defendant in the suit.

They argue Justice Earl Johnson made errors in law in his judgment and that Nunavut has jurisdiction over training and employment programs and so the GN too must be a defendant in the suit.

"The obligations don't just belong to Canada," Crown lawyer Krista Epton told the Nunavut Court of Appeal this past Tuesday.

The lawsuit can't be completely settled without Nunavut as a defendant because Ottawa cannot dictate the GN's employment and procurement policies, which are under territorial jurisdiction, Epton argued.

Failing to make the GN a defendant could simply open the door for more litigation down the road, she said.

But Dougald Brown, NTI's lawyer, argued his client has the right to structure a lawsuit as it sees fit.

The Nunavut Land Claim Agreement is a contract between the Crown in right of Canada, and the Inuit of Nunavut, he said, so the GN cannot be a party to the contract that created Nunavut's public government.

Instead, the GN should be considered a third party to the suit, Brown said.

"It is for the parties to formulate the case as they see fit," Brown said, "[instead of] requiring the plaintiff to pursue a case that's substantially different from the one they intended to pursue."

"I don't think the court should force us to do it that way."

The GN has already been issued a third-party notice in the case, said Lorraine Land, the GN's lawyer, and representatives from the territorial government will be called as witnesses at trial.

Land said the GN would prefer not to be a party to the suit at all and wants to see issues in the trial "severed" so GN lawyers wouldn't have to be present for matters that don't concern them.

A cash-strapped territorial government is wary of spending too much time and money on the case, she added. But she acknowledged the GN will be involved in the trial, like it or not.

"We're in this one way or another at this point," she said.

Nunavut Court of Appeal justices Louise Charbonneau, Jack Watson and Frans Slatter reserved their decision Tuesday. Charbonneau said the judges would issue a written decision "in due course."