Berger chides both sides in land claims dispute

Thomas Berger, the conciliator working to fix a longstanding dispute over a new implementation contract for the Nunavut land claims agreement, says both sides in the four-year-old spat need a major attitude adjustment.

“It appears that the parties — Nunavut and NTI on one side, Canada (represented by DIAND) on the other — lack confidence in one another’s good faith — they do not have the sense that they are working together towards common goals,” Berger wrote in an interim report that Nunavut Tunngavik Inc. released to the public last week.

In his interim report, Berger doesn’t deal with the biggest issue dividing the two sides: how to carry out the Inuit employment provisions in Article 23.

For close to four years, the Government of Nunavut and NTI have acted as a tag-team, joining forces in a bid to pry $10 to $20 million a year from the federal government, money that would pay for an expanded Inuit job training effort they want to see written into a new implementation arrangement for Article 23.

Federal officials, whose government spent only $160,000 on Article 23 between 1993 and 2003, balked at this demand. In 2004, Ottawa refused to appoint a new negotiator, and talks foundered.

Berger says discussion of the Article 23 dispute, which raises “profound issues of concern to all Canadians,” will dominate his final report, to be released later.

But his interim report has much to say about the negative approaches that each side brought to the negotiating table, and how this contributed to the current impasse.

He says NTI’s mistake is to reduce everything in the Nunavut land claims agreement to lawyer-talk. The federal government’s mistake, he says, is to promise as little as possible within the letter of the law, while ignoring the spirit of the agreement.

“NTI seeks to cloak as many issues as possible in the language of contractual obligation; Canada wishes to limit the scope of its legal obligations and to discuss broader issues as questions of policy having nothing to do with the land claim,” Berger wrote.

To fix that, he says DIAND and the entire federal government must act as if the “honour of the Crown is at stake,” a reference to the Supreme Court of Canada’s guiding principle for relations between Canada and its aboriginal peoples.

And at the same time, NTI must abandon its narrow, legalistic approach to all issues, he said.

For example, Berger fears that in using the land claims agreement to shoehorn a new Inuit housing proposal into the implementation process, NTI is committing a grave error.

“I am concerned that the attempt to deal with the housing shortage through land claims implementation negotiations might well be injurious to the Inuit cause,” Berger warns.

He cites two reasons for his belief: Article 2 of the NLCA does not establish or affirm any Inuit right to federally-funded social housing; and Ottawa is now working on a new aboriginal social housing scheme anyway.

“I can’t imagine that Canada’s commitment to improve aboriginal housing will not include restoration of funding for social housing for Inuit,” he wrote.

Berger also rejected an NTI demand that the Nunavut Planning Commission get money to do a climate change monitoring program, saying that’s not supported by the land claims agreement either.

“I cannot see how the considerable work necessary to properly monitor climate change in Nunavut can be made to fit within the agreement the parties reached in 1993,” Berger said.

The Nunavut Planning Commission also wants more money to set up an office in Iqaluit, but Berger said the federal government hasn’t been given enough time to look at that idea and respond to it.

But Berger says it’s fuzzy, nearly meaningless words contained in the land claim agreement that present the biggest problem in figuring out how much to spend on Nunavut’s “Institutions of Public Government,” or “IPGs.”

He said Article 37.2.2 (e), which states that the IPGs will get “sufficient financial and human resources,” is so vague it can be made to mean almost anything.

And he says it was naive for land claim negotiators to think they could dodge the IPG funding issue within the NLCA, and at the same time expect to reach agreement on it within implementation contracts.

To get around that problem, Berger recommends the parties develop a shared vision, set basic objectives, and then figure out the details of what the IPGs should actually do. Only after doing that should they start talking about money to pay for them, he said.

He did say, though, that it’s reasonable for the Nunavut Wildlife Management Board to get more money for a Nunavut-wide update of its Inuit harvesting study, and he endorsed a GN proposal to increase funding to hunters and trappers association within the NWMB’s budget.

The last 10-year implementation contract for the land claims agreement expired July 9, 2003. Talks aimed at creating a new one started in 2001, but foundered in 2004.
Berger received his appointment this past May, after the Liberal party’s political boss for northern Canada, Western Arctic MP Ethel Blondin-Andrew, stepped in to recommend a conciliator.