GN-NTI dogfight moves to the courthouse
Court to hear motion to quash NNI grandfathering extension this fall
Outraged Nunavut Tunngavik officials may have to cool their heels for a while before they see a court decision on their fight against the Nunavut government’s one-year extension of “Nunavut business” status to certain types of firms.
NTI gave notice May 3 that its lawyers will ask the Nunavut Court of Justice to quash the Nunavut cabinet decision, issued April 5 after no apparent consultation with NTI, its partner in developing the Nunavummi Nangminiqaqtunik Ikajuuti, or “NNI,” contracting policy.
Dugald Brown, an Ottawa lawyer representing NTI, said the organization believes the Nunavut cabinet has violated the land claims agreement.
“One of the main arguments is that the land claims agreement has quite an express requirement, that before any amendment is made to the policy, that there be careful consultation with NTI — and that wasn’t done,” Brown said.
But NTI may not get a chance to make those arguments in court.
Last week, the GN filed its own motion, which seeks to have NTI’s motion dismissed on the grounds that NTI lawyers didn’t follow proper legal procedures when launching their legal action.
Doug Garson, a lawyer in the GN’s justice department, said NTI didn’t provide proper notice to the 35 companies affected by the cabinet decision, and didn’t state the exact claim.
Lawyers for both sides will go to back to court July 19 in Iqaluit to deal with the GN’s dismissal motion.
The “Nunavut business” label entitles firms to a 14-per-cent competitive advantage when bidding on Nunavut government tenders. (“Inuit-owned” companies may claim an extra three per cent, while “local” companies may also claim an extra three-per-cent advantage.)
It’s similar to the “northern business” designation used under the Northwest Territories’ old business incentive policy, or “BIP.”
But on April 1, 2000, when the GN replaced the BIP with the NNI to comply with Article 24 of the Nunavut land claims agreement, about three dozen companies lost that status.
Those companies didn’t meet some or all parts of the NNI policy’s definition of “Nunavut business,” such as having a resident manager in Nunavut or majority ownership by Nunavut residents.
The affected group of firms, which includes Inuit-owned firms such as Norterra, and non-Inuit firms such as Tower Arctic, were given a two-year grace period, ending March 31, 2002, to ease their way into compliance with the new rules.
That provision became known as “the grandfathering clause.”
But on April 5, after intense lobbying from some of them, the GN extended the grandfathering period by one year.
NTI officials denounced the move, calling it a violation of the Nunavut land claims agreement, which requires government to consult NTI on matters affecting Inuit rights.
“That is completely unacceptable. Beneficiaries look to NTI to defend the land claims agreement against violations like this, and we intend to do so. The cabinet’s disregard for the land claims agreement is very surprising,” NTI president Cathy Towtongie said in a press release fired off on April 9.
The three-page “originating notice” document filed in court doesn’t state what arguments NTI’s lawyers will use in court to prove that the GN’s one-year NNI extension violates the land claims agreement.
But on May 9, just days after NTI lawyers filed it, Paul Kaludjak, NTI’s vice president of finance, made a lengthy behind-closed-doors presentation to the legislative assembly’s Ajauqtiit committee.
In a copy of that talk obtained by Nunatsiaq News, Kaludjak provided some hints about why NTI believes the GN’s one-year extension of the NNI grandfathering provision violates the land claims agreement.
“Not only has the GN jeopardized the principal means for implementing Article 24 it has done so without consulting NTI as it is required to do under Article 24.3.7.”
He said the GN announcement on April 4 came as “a complete surprise” to NTI officials.
A review of the NNI policy, done jointly by GN and NTI officials, contains no recommendations on extending Nunavut business status for another year.
“At no time did the GN representatives on the review panel indicate that an extension was being considered,” Kaludjak told MLAs.