Court sets aside award ruling against Ottawa in Nunavut lawsuit

A court has set aside a $15 million award against the federal government for not living up to one of the main promises of the Nunavut land claim — even though Ottawa concedes its failing.

The judgment from the Nunavut Court of Appeal is the first in a $1 billion lawsuit against the federal government by Nunavut Tunngavik, the group that oversees the land claim.

The group alleges the treaty that created the eastern Arctic territory has never been properly implemented.

Friday's ruling involves promises made in the treaty that a monitoring agency would be set up to collect data and report on the new territory's economic and social progress and the state of its environment.

It took until 2010 for the government to set aside any money for the agency and it's still not fully functioning, 11 years after the deadline and 21 years after the deal was signed.

Nunavut Tunngavik asked the Nunavut Court of Justice for nearly $15 million in damages. It argued that's how much the government saved by not fulfilling its promises. After a hearing in 2012, a Nunavut judge agreed and made the award.

The federal government appealed the ruling, and while it didn't dispute the finding it hadn't lived up to its obligations, lawyers argued that it wasn't fair to award damages based on a calculation of what Ottawa didn't spend.

Two of the three judges on the appeal panel agreed. Justice Frans Slatter wrote that every individual promise made in a land claim doesn't necessarily bring with it corresponding financial obligations.

"In this case the asserted fiduciary duties are ill defined, open-ended and in many respects inconsistent with the wording of the Land Claims Agreement," he wrote. "If such fiduciary duties exist, neither the appellant nor the respondent could know with certainty what they encompass."

Slatter continued: "Imposing such vague fiduciary duties on the contractual obligations will not aid in building positive future relationships."

The court ruled that damages from the government's failure to implement the monitoring panel will be set in the trial on the land-claim group's overall lawsuit.

It argues that while the federal government promised that Inuit would take up a representative share of civil service jobs in the new territory, it failed to provide enough education to allow them to do that. Inuit remain under-represented in Nunavut's civil service.

A 2006 conciliation report by retired justice Thomas Berger backed up the group's claim. A previous report by Berger on how the treaty was being implemented concluded that Ottawa lost interest in Nunavut after the new territory was created.

The lawsuit isn't expected to go to trial until next year.

James Eetoolook, acting president of Nunavut Tunngavik, said the group is reviewing the Appeal Court's decision with its lawyers to determine its next step.

"NTI is calling on the government of Canada to honour all the promises ... and uphold the honour of the Crown in doing so," he said in a release.