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Nunavut renewal stalled.

A mediation panel created by an act of Parliament has been in existence for 12 years and has never heard a single case.

The terms of Canada's largest and most internationally heralded land claim agreement are protected by Section 35 of Canada's Constitution but the separate contract that governs how the agreement will be funded is not.

These are just two of the items highlighted in a report commissioned by the federal government that was delivered on Aug. 31. Although it is not yet a public document, Windspeaker obtained a copy of Thomas R. Berger's report to Indian Affairs Minister Andy Scott This article is about the Canadian politician. For the musician, see Sweet (band).
Robert Andrew "Andy" Keith Scott, PC, MP (born March 16, 1955 in Barker's Point, New Brunswick) is a Liberal Member of the Canadian Parliament representing Fredericton, New
 on how best to break the stalemate stale·mate  
1. A situation in which further action is blocked; a deadlock.

2. A drawing position in chess in which the king, although not in check, can move only into check and no other piece can move.

 in talks aimed at renewing the 1993 Nunavut Land Claims Agreement The Nunavut Land Claim Agreement is a 1993 land claims agreement between the Inuit of the Nunavut Settlement Area (then part of the Northwest Territories) and the Government of Canada subject to the Constitution Act of 1982.  (NLCA NLCA Nunavut Land Claims Agreement
NLCA New Life Christian Academy
NLCA Nurse Licensure Compact Administrators
NLCA Newfoundland and Labrador Construction Association
NLCA Norwegian Lutheran Church of America
NLCA Nantucket Lightship Closed Area
). Now two years past July 9, 2003, the date when the 10-year initial term of the NLCA expired, the parties have been unable to agree on the terms or the process of renewal.

Berger was appointed as conciliator con·cil·i·ate  
v. con·cil·i·at·ed, con·cil·i·at·ing, con·cil·i·ates
1. To overcome the distrust or animosity of; appease.

 for the NLCA implementation contract negotiations on May 26 and got right to work, spending June and July meeting with all the parties in both Ottawa and Nunavut.

The former judge was asked to issue his final report within 90 days of being retained or to file an interim report by that time. He filed an interim report only because one sticky area will be the subject of a separate report to be issued sometime in the next few months. That report will deal with Section 23 of the NLCA, which calls for representative employment levels of Inuit people in the public service. The commitment made is far from being satisfied, with Inuit employment numbers languishing lan·guish  
intr.v. lan·guished, lan·guish·ing, lan·guish·es
1. To be or become weak or feeble; lose strength or vigor.

 far below half the targeted number in both the federal and Nunavut civil service.

Berger was retained as a "recognized problem solver who could make a neutral assessment of the issues and provide the parties with recommendations."

All three parties to the agreement--the federal government, the territorial government of Nunavut and Nunavut Tunngavik Inc. (NTI NTI NewTech Infosystems (software company, Irvine, California)
NTI Nuclear Threat Initiative
NTI National Transit Institute (New Brunswick, New Jersey)
NTI Nunavut Tunngavik Incorporated
), the corporation that oversees the NLCA--hailed Berger's appointment when it was announced in May.

Stating early that he based his analysis on three "underlying considerations"--the status of the NLCA as a constitutional document, the principle that the honor of the Crown must be observed in all dealings with the Inuit, and the contents of the actual agreement--Berger said he detected one central problem that needed to be addressed.

"It appears that the parties--Nunavut and NTI on one side, Canada (represented by Indian and Northern Affairs) 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," he wrote. "They cannot agree on what issues fairly arise under the NLCA, and they cannot agree on what is properly considered 'implementation.' 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."

Berget said both sides will have to modify their approaches if progress is to be made.

Later in the report, Berger quoted criticisms leveled by the auditor general Auditor general may refer to,
  • Comptroller and Auditor-General
  • Auditor General for Scotland
  • Auditor General of Canada
  • Auditor General of Pakistan
 in 2003 that Indian and Northern Affairs Canada The Department of Indian Affairs and Northern Development (FIP: Indian and Northern Affairs Canada, French: Affaires indiennes et du Nord Canada, DIAND  seems focused on fulfilling the letter of land claim implementation plans, but not the spirit of those plans.

"Officials may believe that they have met their obligations, but in fact they have not worked to support the full intent of the land claims agreements," wrote the auditor general.

"I agree," wrote Berger.

Just because a deal has been finalized See finalization. , he said, does not mean that Canada's obligation to uphold the honor of the Crown has ended even if the details are spelled out in a contract rather than a piece of legislation with the power of the Constitution behind it.

"Treaty making and treaty implementation are distinct but not strictly isolated concepts," he wrote. "I am of the view that the implementation process must be approached broadly with a view to achieving the purposes of the NLCA."

Clearly aware of his status as a neutral observer, Berger was careful to write in diplomatic and non-critical language whenever possible. But a couple of situations he discovered attracted blunter language.

He noted that certain areas of the agreement were phrased in an inexact in·ex·act  
1. Not strictly accurate or precise; not exact: an inexact quotation; an inexact description of what had taken place.

 fashion (such as the "fair and reasonable remuneration" that the NLCA stated would be paid to members of the six boards created to administer the agreement).

"So what do such words really settle? The obligation is expressed so generally as to be exceedingly difficult to enforce. So long as some funding is provided, arguments will be premised on the interpretation of the language and it is subject to almost impossibly wide interpretation," he wrote. "Drafters employ such phrases to describe obligations precisely because the parties cannot agree on the specifics; it is a mistake to think that, come implementation, consensus among the parties as to what the text means--legally speaking--will be any more advanced."

Quibbling over the meaning of terms would not lead anywhere, he added.

"In the end, successful implementation depends far more on the goodwill of the parties and the honor of the Crown than on any formal requirements derived from the NCLA NCLA North Carolina Library Association
NCLA National Centre for Laser Applications (Galway, Ireland)
NCLA Northern Colorado Legislative Alliance
NCLA National Church Library Association (Stillwater, Minnesota) 
 or the implementation contract," he wrote.

Berger reserved his harshest criticism for a tactic that has been employed by the Crown almost from the moment the NLCA took effect.

Article 38 of the NLCA created the Nunavut Arbitration Board (NAB) to resolve disputes "arising in the interpretation, application and implementation of the agreement."

The legislation calls for disputes between an Inuit organization and government to be decided by the NAB but, Berger wrote, "As of today, no case has come before the board owing to owing to
Because of; on account of: I couldn't attend, owing to illness.

owing to prepdebido a, por causa de 
 Canada's refusal to agree to arbitrate when such requests have been made."

Later he explained that "Canada has thus far refused in every case to agree to arbitration on the ground that it would interfere with Parliament's exclusive authority regarding appropriation of money."

Berger took aim at Canada's position, saying that Parliament passed the NLCA, including Article 38, with eyes wide open This article contains links, text or other information that has been inserted due to a business arrangement by the Wikimedia Foundation rather than the usual Wikipedia editing process. It may or may not comply with all of Wikipedia's normal editorial standards.  and that makes it the law of the land.

"It seems disingenuous dis·in·gen·u·ous  
1. Not straightforward or candid; insincere or calculating: "an ambitious, disingenuous, philistine, and hypocritical operator, who ... exemplified ...
 for Canada to argue that the executive branch can take a position in defense of Parliament's prerogatives when Parliament itself has passed a measure that it is prepared to submit matters in the very broad category described by Article 38 to arbitration," he wrote. "To the extent that Canada has refused its consent on the ground that to agree to arbitrate would usurp u·surp  
v. u·surped, u·surp·ing, u·surps
1. To seize and hold (the power or rights of another, for example) by force and without legal authority. See Synonyms at appropriate.

 Parliament's prerogatives, I think it has acted misguidedly."

Thomas Berger There are several people called Thomas Berger:
  • Thomas Berger (Canadian politician) (born 1933), Canadian politician
  • Thomas Berger (US novelist), author of the novel Little Big Man
  • Thomas U. Berger, U.S. political scientist
 recommended that the parties agree in advance to refer a matter to non-binding mediation if they can't agree to arbitration.

"No party could act unreasonably, content in the knowledge that it need never submit the question to an impartial Favoring neither; disinterested; treating all alike; unbiased; equitable, fair, and just.  third party," he wrote.

Berger's report in many ways vindicates the complaints set out by the Land Claims Agreement Coalition in a letter sent to Prime Minister Paul Martin in March 2004. The group of seven Aboriginal organizations that have signed comprehensive claim agreements told the prime minister that little happened after the agreements were finalized.

Berger said he heard the same complaint on a number of occasions from all parties, including from federal officials.

"They believe that a malaise malaise /mal·aise/ (mal-az´) a vague feeling of discomfort.

A vague feeling of bodily discomfort, as at the beginning of an illness.
 set in during the implementation process after the 1999 miracle of the creation of Nunavut," Berger wrote. "More than once, they summarized Canada's attitude with a gesture-dusting off their hands--and a word--'Next!'"

But Berger also said that most of the people involved, on all sides, were determined that Nunavut should succeed. "They are not fatigued, though they are certainly frustrated frus·trate  
tr.v. frus·trat·ed, frus·trat·ing, frus·trates
a. To prevent from accomplishing a purpose or fulfilling a desire; thwart:
. They want to get on with the job," he wrote.

By Paul Barnsley

Windspeaker Staff Writer

COPYRIGHT 2005 Aboriginal Multi-Media Society of Alberta (AMMSA)
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Author:Barnsley, Paul
Publication:Wind Speaker
Geographic Code:1CANA
Date:Oct 1, 2005
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