Article 24: vague and undefineable

A team of Nunavut government and Nunavut Tunngavik have set out on a quicky tour to “consult,” as they say, on the question of how to change the Nunavut government’s contracting policies to make them conform to Article 24 of the Nunavut land claims agreement.

Good luck to them. Because by now, they have no doubt discovered that Article 24 is a vague, undefineable mess that raises more questions than it answers.

The popular assumption is that Article 24 requires governments to design contracting polices that always discriminate in favour of Inuit-owned companies — or, at least, those companies in which 51 per cent of the beneficial shares are owned by Inuit.

But a close reading of Article 24 shows that this may not always be the case.

One section (24.3.4) says the territorial government “shall maintain preferential procurement policies, procedures and approaches” — without, however, defining the meaning of the word “preferential.”

But in the next section (24.3.5), the agreement says that government procurement policies “shall be carried out in a manner that responds to the developing nature of the Nunavut Settlement Area economy and labour force.” It goes on to say that “the policies shall take into account the increased ability, over time, of Inuit firms to compete for and to successfully complete government contracts.”

This implies that at some point in the future, Nunavut’s Inuit-owned companies will need less help than they need now. It may also imply that some kinds of Inuit companies may need more help than others, either now, or in the future. At any rate, the language in this section is so vague and imprecise that it could be subject to any number of interpretations. What does “over time” mean, for example. One year? Twenty years?

This is an important question, because it opens the door to government policies that may not favour all Inuit firms to an equal degree all the time. The Baffin Regional Chamber of Commerce, for example, has already suggested that Nunavut government preferential contracting policies should only apply to new, fledgling Inuit businesses, and that “established” Inuit businesses may not need any extra government help.

Other sections in Article 24 imply that it may even be possible for non-Inuit firms that hire Inuit to gain preference over Inuit firms that don’t.

Admittedly, other sections are a little more clear, such as the section that requires governments to break large contracts into smaller packages to make it easier for smaller Inuit firms to bid on parts of larger jobs, or the section that requires a designated Inuit organization to maintain a list of Inuit firms for governments to consider in awarding contracts.

But because of the imprecise language in so much of Article 24, the final answer to the question of what the Nunavut government must do to comply with it is essentially political. That means that the group with the most political power will have the greatest influence on how the Nunavut government will interpret Article 24.

Right now, that looks like Nunavut Tunngavik, whose officials are sitting side-by-side with Nunavut government staff to redesign the policy. We can only hope that they know what they are doing. JB