Negotiating the Nunavut Agreement - A View from the Government's Side

The Government Negotiating Team. From Right to Left — Tom Molloy, Ross MeKinnon and Barry Dewar.

Organizing for Negotiations

Land claim negotiations are not undertaken lightly by either government or aboriginal peoples. Negotiation of the Nunavut land claim, the largest in Canada, required considerable time and effort from many in both the federal and territorial governments. The federal government, like all governments, is organized in levels that peak at the ministerial and Cabinet levels; it incorporates diverse interests, which are separated into different departments. Since the Nunavut Agreement cuts across many levels and interests, successful negotiation required extensive consultation among and co-ordination between key federal agencies. This article conveys the flavour of negotiations from the government perspective—a side of things that is rarely discussed publically.

From 1982, when I was appointed chief negotiator, until the signing of the final agreement, the negotiations involved three prime ministers, six ministers, and four deputy ministers, as well as several assistant deputy ministers, directors general, and administrators from the Department of Indian Affairs and Northern Development (DIAND). The federal government underwent several departmental reorganizations during this time, but certain key players remained the same: the chief negotiator, the senior negotiator and the claims analyst. Both an assistant negotiator and a lawyer from the Department of Justice served for several years. In addition, the chief negotiator for the Government of the Northwest Territories (GNWT) was on the claim since 1984. This core group also included a secretary and a member of the Northern Program of DIAND. The core group was responsible for the day-to-day operations and conducted all consultation within government, as well as conducting negotiations on behalf of government. The stability of this core group was critical to the success of the negotiating process.

The Mandate to Negotiate

While DIAND was responsible for conducting negotiations on Comprehensive Claims, it did not have the jurisdiction to deal with all issues being negotiated. Other departments were involved when issues being discussed fell within theirjurisdiction.

In 1973, the government announced a policy to negotiate Comprehensive Land Claims; the Wildlife Management provisions were initially negotiated under this framework. In 1981, this policy was amended, and in 1983, a specific mandate for the negotiations was approved by Cabinet. A new overall Claims Policy was approved in 1986, followed by further mandates to negotiate which were approved in 1987 and in 1990. Together, these documents provided the parameters for negotiations.

To provide flexibility, the claims policies tended to be general in wording. This led to considerable internal discussion and debate, as government grappled with the meaning and intent of its own policies, as they applied to specific issues or proposals put forward bY Inuit.

The Negotiating Process and Consultation

TFN would generally begin the negotiations by tabling draft articles of an agreement. Government would review these draft provisions with its Caucus, whose size and membership varied with the issues, but was sometimes in excess of 25 people. Each department, including those of the GNWT whose jurisdictions were affected by the draft articles, was invited to participate in the review process.

The provisions commonly affected more than one department. The Development Impact provisions, for example, involved the Department of the Environment, the Department of Energy, Mines and Resources, the Department of Fisheries and Oceans, the Northern Program of DIAND and the GNWT jointly. These—plus others, such as the Department of National Defence—were involved in discussion of the Entry & Access provisions. It was often hard work to reach concensus, and to develop a response to Inuit. Critical to the ultimate success of the process was the support of individual departments who had jurisdiction over the issues being negotiated. Without this support, all involved recognized that it would be very difficult to obtain Cabinet approval.

Each department reviewed draft provisions, often meeting with the core group during the process. Following this, the Caucus convened to prepare an initial response to TFN's position. This was not an easy process. Many difficult and frustrating meetings—and a number of drafts—were often required. The GNWT had its own consultative requirements. The GNWT chief negotiator and the core group met frequently, to accomodate the GNWT concerns within the government's response.

Government, in preparing a response, was mindful of the fact~ that any agreement would be viewed as a precedent not only for northern claims, but for claims throughout Canada.

In addition, the provisions were reviewed in light of existing government policies and programs as well as proposed policies and programs. Proposed changes to the federal Environmental Assessment and Review Process, for example, are addressed in the Development Impact provisions of the Nunavut Agreement. It was rarely possible to table an immediate response to TFN's draft articles, since considerable consultation, discussion, and review were required within government: the department had to consider the effect that proposed provisions might have on third parties, and determine how the provisions might work in a practical sense. The internal debate was necessarily lengthy. In the content of negotiations, however, this led to accusations by TFN that government was foot-dragging, stalling, or even showing bad faith.

To resolve issues within government, virtually every form of inter-departmental and intra-departmental consultation was utilized. Ministers, deputy ministers, Cabinet, Cabinet committees, and the Comprehensive Claim Steering Committee—composed of Assistant Deputy Ministers—were all involved. Nevertheless, conflicts were usually resolved at the of ficials level. Observers of the negotiation process and parties outside government often underestimate the effort of those within the Comprehensive Claims Branch of DIAND to argue, cajole and convince other departments within government to recognize the need for change.

DIAND's Minister required continuous briefing on the progress and problems encountered in the negotiations. The Claims Branch often sought his advice, direction, and assistance, and it was occasionally necessary for him to contact cabinet colleagues to seek support for issues under negotiation. To finalize the Wildlife Management provisions, for example, required the intervention of the Ministers of Environment, and Fisheries and Oceans.

From time to time, the Minister met with TFN and on three occasions, attended at the negotiating table to conclude outstanding issues including capital transfers, the interest rate to be applied to such transfers, the boundary of the settlement area, the value of the Inuit training fund, and most importantly—NUNAVUT.

While these were negotiatlons between the Government of Canada and TFN, Inuit continued to have direct access to ministers and departments to lobby directly for support. In fact, such contact was often encouraged by the core group.

During the course of the negotiations, Cabinet mandates and approvals were compulsory. The process of going to Cabinet was complex and time-consuming—it is always difficult to obtain time on the Cabinet agenda. To ensure success at the Cabinet level, all other affected departments had to be consulted before Cabinet documents were drafted. Thus, a whole new round of consultation and negotiation within government was necessary. At the same time, consultation with TFN had to continue: government needed to have an assessment of TFN's ability to ultimately conclude an agreement within any mandate given to its negotiators.

The TFN Claim was considered by Cabinet in December 1983, December 1987, March 1990, and—for approval of the Final Agreement—March 1993. There was also a Cabinet submission affecting Claims Policy in 1986, and at various times, DIAND dealt with northern and Nunavut-related issues that impacted upon the negotiations. All of these issues required the attention of the core group, and therefore had an important impact on the time given to negotations.

Land Ownership

The issue of Inuit Owned Lands was approached in two stages. First, the core group negotiated the quantum of lands on a region-by-region basis. The total amount of land to be owned by Inuit was included in the agreement-in-principle signed in 1990. The total, 350 000 square kilometres, represents just under 20% of the land over which Inuit can demonstrate use and occupancy. The land selection process itself was done on a community-by-community basis in 1991 and 1992, and added a whole new dynamic to the negotiations. A number of people not previously involved in the negotiations were added to both the Inuit and Government teams. Fortunately, the Negotiator for Land Selection, who assisted the federal Chief Negotiator, had been involved for several years at the main tahle.

Government had to carefully consider the consequences of agreeing to proposed land selections, including what might occur on the lands in the future, as well as the impact that Inuit ownership would have on third parties. Government also had to provide for access corridors, and areas for recreation, and to ensure that areas of high mineral potential were shared equitably.

Implementation

In 1991, following the conclusion of the Final Agreement, TFN and government began to negotiate a Nunavut Implementation Plan. Initially, government intended that the Implementation Plan negotiations be conducted outside of main table negotiations. However, the Federal core group became involved in the final months of these negotiations when its relationship with TFN, as well as its knowledge of the intent and the language of the agreement, proved valuable.

Since the government has a duty to consult with third parties on issues arising in negotiations, the core group with DIAND and other departments met with representatives of the mining, oil and gas, tourism, shipping, and insurance industries. These meetings sometimes involved only government representatives, and at other times included TFN.

Saying Yes

In negotiating the Nunavut Agreement, representatives of two very different cultures set out to achieve a common understanding. In the beginning, there was suspicion and mistrust on both sides. The Inuit were particularly vocal: they felt

government had a history of making decisions affecting Inuit without consultion. Problems escalated in 1982. The parties disagreed over the wildlife management provisions and government appointed a chief negotiator who was unknown to TFN. I was the Chief Negotiator. and the first weeks were not easy.

Absence of trust between Inuit and government had to be addressed before serious negotiations could begin. Good faith was only built slowly, through long and tiring bargaining sessions. As the months and years passed, we shared accommodations in the north; we spent evenings together socializing; we planned annual Christmas parties and annual summer picnics. Government staff attended TFN workshops and annual general meetings—and both sides enjoyed the odd gag pulled by one negotiation team on the other. All of these things lubricated the negotiation process, but to get agreements initialled depended on one critically important element: honesty at the bargaining table.

During my term as chief negotiator, we negotiated for several months before agreeing to the first article. In Rankin Inlet on April 21 1983, we initialled a sub-agreement, the Purpose of Inuit Land. It was a one-page document with only five short sections that would be spent before conclusion of the final agreement. But this one document, although fairly innocuous in the face of the larger issues that were then facing the negotiators, was significant. It proved to both sides that agreements could be reached; we could say "yes" to each other. Thereafter, progress was slow—but there was progress.

The negotiations remained difficult and rigorous, but in time what was said at the table remained at the table, and the feelings and emotions that were expressed remained within the confines of the negotiation room. This provided a solid foundation for the tough decisions each party would face. The process had momentum; this indicated to us that a final agreement could be achieved, even though difficult compromises were required. For its part, government eventually embraced provisions that in earlier days it would have rejected out of hand.

After over a decade of long days and nights—first working within government and thereafter with TFN—our team could point to a final agreement that both the Government of Canada and TFN were proud to be part of. Unlike a great many aboriginal peoples world-wide, the Inuit did not have to resort to litigation to have their rights acknowledged. That alone made the time and effort worthwhile. The Nunavut Agreement is a testament to good faith. Its an agreement about people living and working together—not only for the benefit of Inuit. but for all of Canada

Tom Molloy, Q.C. is a lawyer in Saskatoon with MacPherson Leslie & Tyerman and was Chief Negotiator for the federal government on the Nunavut Land Claim from 1982-1993.