Accessibility Notice

Article 23 and the Future of Nunavut

A. The Creation of Nunavut

Nunavut came about in fulfillment of a promise made by Canada when the Inuit of what is now Nunavut settled their land claim in 1993.[39]

Two prime ministers were in a sense present at the creation of Nunavut. When the Nunavut Land Claims Agreement was signed on May 25, 1993, Prime Minister Brian Mulroney spoke:

We are forging a new partnership, a real partnership. Not only between the Government of Canada and the future Government of Nunavut but between aboriginal and non-aboriginal Canadians.

In 1999, with the establishment of the new Territory, Prime Minister Jean Chrétien spoke:

…Canada is showing the world, once again, how we embrace many peoples and cultures. The new Government of Nunavut will reflect this diversity; incorporating the best of Inuit traditions and a modern system of open and accountable public government.

The Nunavut Land Claims Agreement provided for the creation of the new Territory. Its government was not to be an Aboriginal government, but a public government for the whole territory, where both Inuit and non-Inuit would have the right to vote and run for office.

John Amagoalik, often called the father of Nunavut, described the vision of Nunavut as

a public government with a democratically elected Legislative Assembly [which] will respect individual and collective rights as defined in the Canadian Charter of Rights and Freedoms. It will be a government that respects and reflects Canada’s political traditions and institutions, and it will be a territory that remains firmly entrenched within the bounds of Canadian confederation.[40]

Moreover, it was provided in Article 23 that the public service would be representative of the people of the territory. The full implications of this promise are only now becoming apparent.

The world took note of this extraordinary development in the Canadian Arctic. The Manchester Guardian, for example, wrote:

The emergence of Nunavut is unequivocally good news. While large tracts of the world are mired in war and insurgency, an ethnic minority has quietly negotiated an equitable deal with a central government that gives them the freedom to run their own affairs.[41]

TIME Magazine reported:

Canada’s first experiment with de facto Native self – government – and only the second of its kind in the world. [It is] a socio-political experiment on an epic scale.[42]

The Globe and Mail proclaimed:

Canada had done something of huge symbolic value… Nunavut is a powerful and worthy experiment [which] deserves to succeed.[43]

Nunavut is a remarkable achievement. Three well-known scholars of the North described it as:

…the winning back by a numerically small and scattered hunter-gatherer population of their ancient territory under modern European constitutional and legal systems.[44]

The Government of Nunavut was to be a public government, one that, in the best democratic tradition, would be a government of the people, by the people, and for the people. In Nunavut, "the people" are overwhelmingly Inuit.

The Inuit would be able to elect their own to the Legislative Assembly. What about the public service? This is addressed in Article 23.

Article 23.2.1 sets out the objective: “to increase Inuit participation in government employment … to a representative level.” Under Article 23.1.1 this means a representative level of Inuit employment “within all occupational groupings and grade levels”.

In Nunavut employment in the public service, if it is to be employment at a representative level, must therefore be 85 per cent Inuit employment “within all occupational groupings and grade levels”.

Article 23 may bear a resemblance to a conventional equity clause of a type well known. Employment equity is not obviously a land and resources issue, to be included in a land claims agreement. But neither is a provision to establish a new Territory. If the one were included in the Nunavut Land Claims Agreement the other had to follow. It is in fact an equity clause for a majority.

B. A Unique Jurisdiction in Canada

Nunavut was to be a jurisdiction unique in Canada. Its population would consist mainly of Inuit, speaking their own language, Inuktitut. It would not be predominately English-speaking or French-speaking, but would have an overwhelming majority consisting of an Aboriginal people speaking a single Aboriginal language. There is no other such province or territory.

Over the last twenty years, Nunavut’s population has seen the fastest rate of growth in Canada, a rate of growth that is still twice the national average. Nunavut’s population has doubled in a single generation, from 15,000 in 1981 to almost 30,000 today. It is the youngest population in Canada, with approximately 60 per cent of residents under 25 years of age, 92 per cent of whom are Inuit.

The need for educational and career opportunities for the Inuit is pressing. The prevalence of Inuktitut as a first language of most Inuit, and the fact that 15 percent of Inuit have no other language, limits Inuit opportunities for jobs in government, and the ability of government (a great many in the public service speak only English) to serve the needs of the population of the territory.

Canada has said that, in terms of governmental arrangements, Nunavut “mirrors” the Northwest Territories and the Yukon. This is true as far as it goes, in that all three territories are constitutionally the creatures of Parliament and the bulk of territorial government funding is provided by the federal government.

Ninety-two per cent of the Government of Nunavut’s revenue comes from Ottawa; in the Northwest Territories and the Yukon the figures are approximately 80 and 70 per cent respectively. In 2002 Newfoundland, the province most dependent on federal transfers, received 45 per cent of its revenue from Ottawa. In that year, the average among ‘have-not’ provinces was 34 per cent; for all provinces it was 29 per cent.[45] Hicks & White, writing in 2002, pointed out:

… Canadians will need to be reminded that in their early days many parts of the country enjoyed massive federal government infrastructure spending on railways, canals and other facilities necessary for economic development [the CNR, the St. Lawrence Seaway]. In contrast, the money Nunavut gets from Ottawa covers only costs of running the government; Nunavut has yet to see anything like the massive federal spending on economic development that many provinces enjoyed for decades.[46]

But the demographics of the three territories are quite a different matter. In this respect Nunavut does not mirror the Northwest Territories and the Yukon.

Until 1999 (when Nunavut was carved out of the Eastern Arctic) the Northwest Territories had a majority Aboriginal population (61 percent) but no single Aboriginal group constituted a majority of the territory’s (then) 65,000 residents. The Inuit and the Inuvialuit (the Inuit of the Western Arctic) were together around 37 percent of the population. There were five Dene peoples, whose languages are related to each other but are by no means identical, who constituted about 17 percent of the population; the Métis making up about 7 percent. English-speakers constituted almost all of the remaining 39 percent.[47]

In the Northwest Territories today Aboriginal people may constitute around 45 percent of the population. The Dene peoples and the Inuvialuit are moving to develop their own Aboriginal governments within the framework of the Territory.

In the Yukon the First Nations constitute about 25 percent of the population. There, too, the First Nations are engaged in establishing Aboriginal governments.

The point is that in neither the Northwest Territories or the Yukon is there a majority, let alone an overwhelming majority, of Aboriginal people speaking a single Aboriginal language.

Nunavut remains, in terms of the reality on the ground, a jurisdiction where the first language of the vast majority of the population is Inuktitut. Achieving the objective of Article 23 means that the Inuit must over time occupy 85 per cent of the positions in all occupational groupings and at all grade levels in the public service, and this necessarily implies that Inuktitut must be the principal language of the workplace and that government services must be provided in Inuktitut.

Mary Simon, Canada’s Ambassador to the Circumpolar Arctic, speaking at Queen’s University said:

…the very scale of the Nunavut undertaking means it cannot be overlooked…For the first time in Canadian history, with the partial exception of the creation of Manitoba in 1870, a member of the federal-provincial-territorial club is being admitted for the precise purpose of supplying a specific Aboriginal people with an enhanced opportunity for self-determination. This is ground-breaking stuff.[48]

I have said that Nunavut is unique. It is true that in 1870, when Manitoba entered Confederation as the “postage stamp” province, 10,000 of its population of 12,000 were Métis, the majority of them French-speaking.

The Manitoba Act of 1870 erected a new province. It provided that the official languages of the new province were to be English and French. There were guarantees for public funding for Roman Catholic schools, where instruction had always been in French. The Manitoba Act contained as well provisions to protect existing Métis lands and to establish a Métis land base.

Within a decade a wave of settlement completely altered the demographics of the new province. The Métis became a minority. The promises of the Manitoba Act relating to French as an official language and public funding for Catholic schools were soon thereafter abandoned by the provincial legislature, and Ottawa was not prepared to take steps effectively to enforce these rights. They were resolved by litigation. In the 1890s supporters of public funding for Catholic schools in Manitoba won their case in the Supreme Court of Canada but lost it in the Privy Council.[49] It was not until the 1970s and 1980s that the place of French as an official language of the province was upheld by the Supreme Court of Canada.[50]

The Manitoba Act contained no provision resembling Article 23. Manitoba’s was to be a public government. Even had the Métis remained a majority of the provincial electorate, they had no claim under the Manitoba Act to a majority of places in the public service. In any event, the government of Manitoba was not conceived to be the new province’s principal employer. Manitoba was not the Arctic. Manitoba was at the time confined to its “postage stamp” borders (there were changes in its boundaries, but not until 1912 did the province extend to the 60^th parallel). Agriculture, not government, was to be the occupation of Manitobans.

Nunavut is unique today in Canada. It has no foreseeable counterpart.

C. The Extent of Inuit Representation in the Public Service of Nunavut

Since government is the principal employer in Nunavut, opening up opportunities for Inuit employment in the public service is of paramount importance to the Inuit. Under Article 23 of the Nunavut Land Claims Agreement the Parties agreed that they would pursue the objective of achieving a representative level of Inuit employment in all three levels of government – federal, territorial and municipal – within Nunavut.

Article 23.2.1 reads:

The objective of this Article is to increase Inuit participation in government employment in the Nunavut Settlement Area to a representative level.

"Representative level" meant, in 1993 as it does today, approximately 85 percent. The objective is therefore to increase the level of Inuit employment in the public service to match the proportion of Inuit in the population.

The fact is that the objective of Article 23 has not nearly been realized. Although the figures can fluctuate almost daily, it seems uncontroversial that Inuit representation calculated as a percentage of employment has stalled at around 45 per cent.[51] The shortfall is especially apparent in the executive, management, professional and para-professional positions.

The question of responsibility for implementing Article 23, that is, for achieving the objective of representative Inuit employment in the public service, is still outstanding. Moreover, assuming the issue of where responsibility lies for achieving the objective of Article 23 were to be resolved, the question of how to do it has only recently been squarely addressed by all the Parties.

Currently the Government of Nunavut has 3200 employees and Canada has 300 employees in the territory. In Nunavut government is, by far, not only the largest employer, but also represents the largest employment sector. This is so throughout the Arctic and sub-Arctic: in Nunavut, the NWT, the Yukon, Alaska and Greenland. These territories lie for the most part well beyond the agricultural frontier.

Villagers in the Arctic and sub-Arctic depend on employment provided by government activities; even the private sector in these villages is often the indirect product of government expenditures. This is typical of remote Inuit communities throughout Arctic and sub-Arctic regions from Alaska to Greenland. Industrial development may have arrived at some places in the Arctic and sub-Arctic, but not as yet in Nunavut. Thus the paramount importance in all these jurisdictions of government as an employer, but especially in Nunavut.

In Nunavut a policy of decentralization has actually been followed not only so that government will be responsive to local concerns but also to spread the government payroll across as much of the territory as possible.

Iqaluit is the capital. The Premier and members of the Cabinet are located there; it is where the Legislative Assembly sits. But government departments are distributed around the territory, located in eight intermediate – sized communities to ensure that government employment and the opportunities it represents are not confined to the capital.[52]

The erection of the Government of Nunavut is not however, a “make work” proposition. The government of this vast territory is responsible for the welfare of almost 30,000 people in 27 scattered communities.

There are, as I say, 3200 jobs in the Government of Nunavut. The Inuit today occupy 45 percent of those positions. Nobody wants to parse employment to each occupational group down to the last percentile. But, however you calculate the matter today, there is an Inuit shortfall. Today the Inuit have only 45 percent of the 3200 jobs, or 1440 jobs instead of the 2720 they would have at 85 percent representation. The shortfall amounts to 1280 jobs. Similar calculations could be made for the federal government, where the shortfall would be over 150 positions. Overall, the numbers tell us that there are in the vicinity of 1500 jobs that could be claimed by Inuit had they the necessary skills.

It is, on one level, remarkable to have 45 percent Inuit employment in the Government of Nunavut after only six years. But the figure of 45 percent Inuit employment across the board is misleading. The Inuit are well represented in the administrative support categories. It is the shortfall in the executive, management, professional and para-professional areas that represents the most significant failure, as the following figures demonstrate:

Inuit Employment within the Territorial Government (Dec. 2003)

Executive 48%
Middle Management 20%
Paraprofessional 59%
Senior Management 24%
Professional 25%
Administrative Support 84%

Statistics of the number of Inuit working within the federal government in Nunavut reveal a similar deficit, with the majority of Inuit employed in administrative support.

The figures support the conclusion that, by and large, the problem is one of supply, not demand. In 2001, of the Inuit between the ages of 20 and 45 who were unemployed or not in the labour force, 83 percent had not completed high school. By contrast, of the Inuit who had some university education, fully 92 percent were employed. Clearly education is the key to moving toward fulfillment of the objective of Article 23.

The Nunavut Implementation Commission recommended that 50 per cent of jobs at all levels of the Government of Nunavut be filled by Inuit at start-up in 1999, with representative levels to be achieved by 2008. The original goal was very nearly met, but the situation has improved little since then, and the ultimate goal – 85 percent Inuit employment – has been extended by both the federal and territorial governments to 2020. In other words, the initial goals were unrealistic. They could not possibly have been met. My concern is that we adopt measures that will actually enable full Inuit representation in their own public service by the new target date of 2020.

D. The Scope of Article 23

This brings me to the dispute about the meaning of Article 23, and who is responsible to see that its objective is attained. That objective is set out in Article 23.2.1:

The objective of this Article is to increase Inuit participation in government employment in the Nunavut Settlement Area to a representative level. It is recognized that the achievement of this objective will require initiatives by Inuit and by Government.

Article 23.1.1 defines "government employment" as employment in both the federal and territorial governments in Nunavut. As for the "initiatives" to be taken, Article 1.1.1 of the Agreement says:

‘Government’ means the Government of Canada or the Territorial Government or both, as the context requires, depending on their jurisdiction and the subject matter referred to, or as determined pursuant to Section 1.1.6. [emphasis added]

Given the central place of Article 23 in the future success of Nunavut, “Government” must, for purposes of achieving representative Inuit employment, refer to both the Government of Canada and the Government of Nunavut. The "context", if you will, requires it. Both governments are implicated in the achievement of the objective of Article 23. It is a shared objective.

But the Agreement itself sets out only a few explicit obligations of the federal government toward the objective of full Inuit employment. Under Article 23, Canada agreed to three things: conducting a labour force analysis (Article 23.3), developing Inuit employment plans (Article 23.4) and pre-employment training plans (Article 23.5).

Canada has in the past said that, insofar as it has any obligations under Article 23, they have been fulfilled: the labour force analysis has been completed, Inuit employment plans have been completed, and pre-employment training plans for Inuit have been completed.

Canada has a point. But I have been asked to consider new approaches to implementation; I believe that a new approach requires a greater regard for objectives and less for the fine print of obligations.

I said in my Interim Report that treaty making and treaty implementation are distinct but not strictly isolated concepts.[53] I am of the view that the implementation process must be approached broadly with a view to achieving the purposes of the Nunavut Land Claims Agreement.

The Nunavut Land Claims Agreement consists mainly of specific provisions for the management of the land and resources of Nunavut. But unusually it included a promise to establish a government for Nunavut, a government which would be representative of the people of Nunavut. It is true that it was agreed that Article 4 was not to be entrenched in the Constitution. But Article 23 is entrenched in the Constitution. It is there and remains unfulfilled. It is always speaking; it will continue to speak until it is fulfilled.

My approach to implementation of the Agreement is premised on three underlying considerations: the status of the Nunavut Land Claims Agreement as a constitutional document; the principle that the honour of the Crown must be observed in all its dealings with the Inuit, including throughout the implementation process;[54] and the terms set out in the Agreement itself. It is also based on the observation (and indeed the consensus of all of those who participated in our discussions) that a new approach is needed because the old approach has certainly not worked to anyone's satisfaction.

I believe the only approach to Article 23 consistent with the honour of the Crown is to look beyond the specific obligations listed in Article 23. Moreover, it is the only approach likely to succeed.

It is simply not in keeping with the immense task of building a country to haggle over the meaning of words that were never adequate to the subject. I am not engaged in winkling out the meaning of language used by the Parties when it must be obvious they did not appreciate the true dimensions of what would be required to fulfill the shared objective of Article 23.

It is now plain that the objective of Article 23 cannot be met through a focus on the 'demand-side' of Inuit employment. The governmental workplace, in other words, has absorbed all available qualified Inuit and the figures show that we are nowhere near meeting the target. Until the emphasis is placed on increasing the supply of qualified Inuit, the objective of Article 23 will elude us.

A country’s education system is expected to equip its people with the skills, particularly the language skills, necessary to take up gainful employment. You can’t speak of employment without speaking of education.

The Nunavut Land Claims Agreement says nothing about improving the primary and secondary education provided to the Inuit or about achievement in the schools. Nor does Article 23 say anything about language (apart from instruction in Inuktitut as a part of pre-employment training for Inuit) and certainly nothing about Inuktitut as a language of the workplace and as a language in which the people of Nunavut are entitled to receive government services. Yet if we are to achieve the objective of Article 23, both employment and education are implicated.

My point is that Articles 23.3, 23.4 and 23.5 cannot be treated as exhaustive of Canada’s obligations any more than they are exhaustive of the obligations of the Inuit. More needs to be done, all agree, and if not the Parties, who will do it?

In 1993 the ramifications of Article 23 and the extent of the measures that would be required to implement the objective of that provision were not apparent. What was apparent to all at that time was the importance of the objective of representative Inuit employment.

Canada has understood all along that issues broader than the labour force analysis, Inuit employment plans and pre-employment plans had to be addressed in order to achieve the objective of Article 23. On May 28, 2003 Alain Jolicoeur, Deputy Minister of Indian Affairs and Northern Development, wrote to NTI regarding, among other subjects, Article 23. He proposed:

Article 23 - The parties would work on a two-part approach: 1) agreement on specific commitments (including a specified financial commitment) by Canada, with respect to labour force survey, employment plans, pre-employment training and support measures referenced in Article 23 of the Nunavut Land Claims Agreement (NLCA); and 2) agreement to establish a process and plan for Canada, [the Government of Nunavut] and NTI to cooperatively address the broader issues of education attainment, language of work and social issues which are impacting on the availability and ability of Inuit to qualify for public sector employment. [emphasis added]

Mr. Jolicoeur was segregating what he perceived to be Canada’s specific obligations under Article 23 from “broader issues of education attainment, language of work and social issues which are impacting on the availability and ability of Inuit to qualify for public sector employment.” I don't wish to attribute any legal significance to the Jolicoeur letter; it is simply a demonstration that all Parties have recognized the obvious: that achieving the objective of representative Inuit employment requires addressing the "broader issues" that lie beyond the specific measures set out in the Agreement itself.

This is where we are today. If land claims implementation in Nunavut is to be anything more than a barren search for avoidance of responsibility, the “broader issues” must be addressed, not only by Nunavut, but by Canada. They necessarily arise out of Article 23, because it is impossible to have an intelligent conversation about the objective of Article 23 without discussing them.[55] It is only by addressing the “broader issues” that we can breathe life into Article 23.

It will be my recommendation that the only way in which we can fulfill the objective of Article 23 is by adopting specific measures in the near term which will increase Inuit representation in the public service and, for the long term, establishing in Nunavut a comprehensive program of bilingual education in Inuktitut and English.

Footnotes:

• 39 Article 4.1.1. of the Nunavut Land Claims Agreement said:
  The Government of Canada will recommend to Parliament, as a government measure, legislation to establish, within a defined time period, a new Nunavut Territory, with its own Legislative Assembly and public government, separate from the Government of the remainder of the Northwest Territories. (return to source paragraph)
• 40 John Amagoalik, speech to Japanese parliamentarians visiting Iqaluit, September 1 1995, quoted in Hicks & White, supra note 35 at p. 64. (return to source paragraph)
• 41 John Ryle, “What country are we in?” Manchester Guardian, February 22, 1999, quoted in Hicks & White, supra note 35 at p. 78. (return to source paragraph)
• 42 Andrew Purvis, "Nunavut gets ready: The hoopla is about to start for the launch of Canada's huge, largely Inuit-run, self-governing Arctic territory. But how prepared is everyone?", TIME, March 29,1999, quoted in Hicks & White, Ibid. (return to source paragraph)
• 43 “Charting new territory” (editorial), Globe and Mail, April 3, 1999, quoted in Hicks & White, Ibid. (return to source paragraph)
• 44 Jens Dahl, Jack Hicks and Peter Jull, "Introduction" in Dahl, Hicks and Jull, Eds., Nunavut: Inuit Regain Control of Their Lands and Their Lives (Copenhagen: International Work Group for Indigenous Affairs, 2000) at p. 15. (return to source paragraph)
• 45 Hicks & White, supra note 35 at p. 88, citing Finance Canada data. (return to source paragraph)
• 46 Ibid. at p. 87. (return to source paragraph)
• 47 There were a number of Francophones in Fort Smith and Iqaluit, perhaps 1 per cent of the population. (return to source paragraph)
• 48 Hicks & White, supra note 35 at p. 91. (return to source paragraph)
• 49 Barrett v. City of Winnipeg (1892) 19 S.C.R. 374, [1892] A.C. 445 (P.C.); see also Brophy v. A.G. Manitoba (1893) 22 S.C.R. 577, [1895] A.C. 202 (P.C.). (return to source paragraph)
• 50 A.G. Manitoba v. Forest [1979] 2 S.C.R. 1032; Reference re Manitoba Language Rights [1985] 1 S.C.R. 212. (return to source paragraph)
• 51 Representation levels for Inuit in Nunavut’s municipal governments are said to be in the neighbourhood of 90%, but a large number of the local positions held by Inuit are part-time: PriceWaterhouseCoopers, The Cost of Not Successfully Implementing Article 23: Representative Employment for Inuit Within the Government (February 17, 2003, report commissioned by the Government of Nunavut and NTI), at pp. 26-27. (return to source paragraph)
• 52 According to Hicks & White, supra note 35 at p. 65-66:
  For some it was important that the Government of Nunavut be decentralized so that as many communities as possible could share in the economic benefits arising from the stable, well-paid jobs that would come with the new government. Others believed that locating middle management and professional positions in communities would encourage Inuit participation in the bureaucracy. Still others saw a decentralized government as better suited to traditional Inuit political culture. (return to source paragraph)
• 53 By “treaties” we usually mean treaties with the First Nations of Canada. The modern land claims agreements, beginning with the James Bay and Northern Quebec Agreement of 1975, are properly described as land claims agreements in the Constitution Acts, 1982 and 1985. I think it is appropriate to refer to the Nunavut Land Claims Agreement as a land claims agreement to distinguish it from treaties with First Nations. I refer to “treaties” in my discussion here of implementation because it is in keeping with the vocabulary more often used in the jurisprudence, and it is an expression that encompasses land claims agreements. (return to source paragraph)
• 54 Since my Interim Report, yet another decision of the Supreme Court of Canada has emphasized this point. In Mikisew Cree First Nation v. Canada 2005 SCC 69, Justice Binnie, writing for all nine judges, described the signing of a treaty as the beginning of a process, not a freezing in time of a fixed set of obligations. Binnie J. wrote at para. 27:
  Thus none of the parties in 1899 expected that Treaty 8 constituted a finished land use blueprint. Treaty 8 signaled the advancing dawn of a period of transition. [emphasis added]
  He continued at para. 33:
  Both the historical context and the inevitable tensions underlying implementation of Treaty demand a “process” by which lands may be transferred from the one category (where the First Nations retain rights to hunt, fish and trap) to the other category (where they do not). The content of the process is dictated by the duty of the Crown to act honourably.
  He expanded on the Court's view of the honour of the Crown as it relates to treaties at para. 51:
  The honour of the Crown is itself a fundamental concept governing treaty interpretation and application… And at para. 57:
  …the honour of the Crown infuses every treaty and the performance of every treaty obligation. (return to source paragraph)
• 55 There has been, over the years, much discussion about the 1992 Memorandum of Understanding (MOU). This document, signed by Canada, the Government of the Northwest Territories and NTI set out the ‘guiding principles” for financing the Institutions of Public Government and incremental funding for the Government of Nunavut. Although NTI participated in the negotiations regarding the Institutions of Public Government, the “increments” were negotiated solely between Canada and GNWT; the Government of Nunavut fell heir to the MOU. The Inuit were not a party to the MOU, and it forms no part of the framework of obligations set out in the Nunavut Land Claims Agreement. It cannot, in other words, be of help in interpreting Article 23. (return to source paragraph)