THE COMPLICATED INTERSECTION OF POLITICS, ADMINISTRATIVE AND CONSTITUTIONAL LAW IN NUNAVUT'S ENVIRONMENTAL IMPACTS ASSESSMENT REGIME.

• Author: Dylan, Daniel W.
• Position: Forum: Issues in Administrative and Constitutional Law

INTRODUCTION I. BRIEF HISTORY OF NUNAVUT AND THE NLCA II. SUMMARY OF IMPACTS ASSESSMENT REGIME III. LAND USE PLAN CONFORMITY A. Minor Variances B. Amendments C. Land use plan exemptions IV. IDENTIFICATION OF THE PROBLEM(S) BY EXAMPLE A. Baffinland Iron Mines Corp and The Mary River Iron Ore Project B. Areva and The Kiggavik Project C. Clyde River and Seismic testing V. WHY THESE ISSUES ARE IMPORTANT CONCLUSION INTRODUCTION

In Canada, it is somewhat unique that environmental impacts assessment is carried out by both the federal and provincial governments, under separate but complimentary assessment regimes. Even more unique is the environmental impacts assessment regime which exists in the territory of Nunavut, Canada's youngest jurisdiction. What makes environmental impacts assessment most unique in Nunavut is the complicated intersection of land use planning, administrative rules and procedures derived from a constitutionally-protected modern day treaty--the Nunavut Land Claims Agreement (NLCA or Agreement), (2) and the infusion of fundamental, rudimentary or bare politics. Whereas the majority of jurisdictions in Canada base their environmental impacts assessment regimes on a commonly developed and accepted framework that divides assessment based on jurisdiction and project type--and leave land use planning matters to provincial municipalities--the regime in Nunavut is based almost entirely on a process laid out in the NLCA and has as its aims the preservation of the Aboriginal rights and interests of Inuit beneficiaries protected by and under the Agreement. Upon closer scrutiny, however, it is apparent that the environmental impacts assessment and land use planning regimes prescribed in the NLCA, and supplemented by the federal Nunavut Project Planning and Assessment Act (NUPPAA), (3) are not only significantly different from other regimes in Canada but, also, that these very regimes which were designed or intended to promote and protect those rights and interests which Inuit obtained through negotiation and ratification of the NLCA may in fact undermine and fragment them. That is to say, the regimes may fragment those participatory rights as well as neighbouring or undergirding ones such as wildlife, hunting and fishing rights.

The fragmentation of these rights and interests is aptly illustrated by the NLCA process in which a Minister may grant a project proponent an exemption from land use plan conformity, land use conformity being the crucial first obstacle that nearly every resource development project in Nunavut must overcome. (4) By looking at three real-world examples: Baffinland Iron Mines Corp.'s Mary River Iron Ore Project, Areva Resources Canada Inc.'s Kiggavik Project, and the Clyde River case heard by the Supreme Court of Canada in November 2016, (5) this paper will canvass the Ministerial land use exemption process, illustrate the intersection of politics, administrative and constitutional law in Nunavut's impacts assessment regime, and explicate the manner in which Inuit rights and interests are being resultantly fragmented.

It is my thesis that while the NLCA provides to Inuit in Nunavut participation in decision-making processes respecting projects and their resulting environmental and socio-economic impacts, it does not provide final decision-making power itself, and that the absence of such decision-making power undermines--even dilutes--the very rights, interests, and culture which this participation and the NLCA was designed to promote and protect. Stated another way, the Inuit of Nunavut, by virtue of the NLCA, or lack thereof, seem to enjoy no greater right to accommodation under the duty to consult jurisprudence than do other Aboriginal groups in Canada. This circumstance is only further exacerbated where politics collides with administrative and constitutional law in Nunavut's environmental impacts assessment regime.

The legal issues explored here are not, however, the product of incomplete legal research, and are canvassed because of the practical effects they currently have in the territory and the possibility that they may produce serious, complex, and unnecessary litigation in the future. (6)

Equally relevant to the issues explored in this article is the absence of any statutory or policy guidance on the exemption process (and the other jurisdictional questions presented here) to help resolve the small but crucial ambiguities in the statutory text which are, in way or another, likely to have significant and long-term ramifications for the Inuit of Nunavut and the environment in Nunavut. As development opportunities and projects continue to emerge in Nunavut, the statutory interpretation problems have the potential to become acuter and to further manifest in different, non-mutually exclusive ways. (7)

This paper will proceed in five parts. I begin by providing a brief history of Nunavut and the NLCA in order to contextualize my analysis. Part II follow this with a brief summary of the environmental impacts assessment regime in Nunavut in order to properly situate the examination of land use plan exemptions. In Part III, I examine the land use conformity regime and then in Part IV I illustrate the problems with the examples mentioned earlier. In the final part, I offer some insight into why these emerging issues are important. Altogether, while the intersection of politics and administrative and constitutional law in an environmental impacts assessment regime is not unique to Nunavut, I aim to show that the Inuit rights and interests which the Nunavut regime was designed to protect are ultimately being fragmented in the regime's current incarnation.

1. BRIEF HISTORY OF NUNAVUT AND THE NLCA

   In Inuktitut, the language of the Inuit in the eastern Arctic, (8) Nunavut means "our land." Nunavut, Canada's newest jurisdiction and territory, was created by several constitutional and statutory instruments. The Nunavut Land Claims Agreement, signed with apparent finality in 1993, settled the land claim of the Inuit of Nunavut (9) against the Government of Canada. (10) As such, it is considered a modern-day treaty and is constitutionally protected by section 35 of the Constitution Act, 1982. (11) Generally speaking, the Agreement sets out the various terms and conditions in which the Inuit of Nunavut agreed to surrender any fiiture claim to Aboriginal title in Nunavut in exchange for title to defined parcels of land, rights respecting wildlife and natural resource management, among others. (12) The Agreement consists of 42 Articles, including ones devoted to, for example, wildlife, parks, conservation areas, land use, development, water rights, impact benefit agreements, among others, and is approximately 300 pages in length. The Nunavut Land Claims Agreement Act gives legal force to the NLCA, (13) and the Nunavut Act, legally creates Nunavut and gives it legal existence in Canada's constitutional order. (14) As a result, Nunavut legally joined the Canadian federal-provincial-territorial family in 1999.

   Geographically, Nunavut consists of approximately 20% of Canada's land mass and demographically is inhabited by approximately 37,146 people comprising approximately 0.10% of the Canadian population as a whole. (15) Of this population, according to the Government of Nunavut Bureau of Statistics, approximately 81% are Inuit. (16) The majority of the land that comprises Nunavut is Crown land and is therefore under the dominion and jurisdiction of the federal government. Some lands have been ceded by the Crown to the territorial government, the Government of Nunavut, and are known as "Commissioner's Lands," and are essentially governed by the territorial Commissioner's Lands Act. (17) The Inuit of Nunavut own title to 19% of the land in Nunavut, including mineral rights to 2% of Nunavut. (18) This means that Inuit own title to, in similar fashion to a fee simple, surface rights to nearly twenty percent of the territory and only surface and subsurface rights in two percent. The lands which are owned by the Inuit of Nunavut are held in trust by Nunavut Tunngavik Inc. (NTI) and the Regional Inuit Associations (RIA) on behalf of and for the benefit of all Inuit in Nunavut, (19) and are generally known and referred to as "Inuit Owned Lands" or "IOL".

   The Nunavut Act creates for Nunavut a Legislative Assembly similar in principle to that of a provincial legislature. The Legislative Assembly of Nunavut is populated with members elected by constituents in Nunavut's 22 ridings or constituencies. Although not entirely unique in Canada but nevertheless rare, members of the Legislative Assembly are not elected as representatives of any one or other Canadian political party (although they may be members of one) but essentially as independent members. The independent members of the Legislative Assembly select among themselves who should be designated a member of the Executive Council (the equivalent of the Governor in Council or Cabinet) and who, ultimately, will be the Premier of Nunavut. Once selected, the Premier of Nunavut assigns the various government portfolios to the various members who have been selected to serve on the Executive Council. Overall, the intent of the governance structure is to provide the framework for a consensus government. (20)

   The Government of Nunavut is not, however, composed as an ethnic government of the Inuit of Nunavut, though Article 23 of the NLCA is devoted to ensuring employment for Inuit in Government of Nunavut positions. (21) Rather, the Government of Nunavut is a public government and is constitutionally obligated to act like any other public government in Canada. Nevertheless, it can be said, to some degree at least, that the Inuit of Nunavut enjoy some sort of self-determination via the territorial government. (22)

2. SUMMARY OF IMPACTS ASSESSMENT REGIME

   The preamble to the Agreement provides, in part, that:

   Inuit shall receive defined rights and...