August saw a significant event in Iqaluit, Nunavut with the signing of an Agreement in Principle (AIP) between Canada, the Government of Nunavut (GN) and Nunavut Tunngavik (NTI) addressing the "Devolution" of natural resource powers and responsibilities from Canada to the GN (sometimes referred to as "Devo").
The devolution of responsibilities and powers has long been a goal of the northern territorial governments and has been a long-standing policy objective of the Government of Canada, as it has been viewed as a fundamental step toward advancing the political development of the Canadian north and of Canada more generally. Over the last several decades the manner Canada's north (non-provincial territory) is governed has evolved. This process included the creation of responsible government by the territorial residents and, in 1999, the creation of Nunavut. However, the Government of Canada still maintained (until the last 20 years) complete control over the management of lands and natural resources within the territories.
In the last two decades, significant progress in northern devolution has been made. The Yukon Government became the first territorial government in Canada to achieve jurisdiction over territorial lands and resources in 2003 and a similar Devolution Agreement in Northwest Territories took effect in 2014.
On Thursday, August 15, 2019 (and after several years of negotiations), Nunavut Premier Joe Savikataaq, federal minister of Crown-Indigenous Relations Carolyn Bennett and NTI President Aluki Kotierk signed an Agreement-in-Principle as a first step towards an eventual devolution agreement in Iqaluit. The signing of the AIP marks a significant milestone in the negotiation process that began in earnest in November of 2014, as Canada, the GN and NTI have come to an agreement with respect to many major elements for the final agreement on devolution. While the AIP is not legally binding, it will serve as a guide for the negotiation of a final devolution agreement.
What is Devolution?
Devolution is the transfer of power and responsibility from a central government to a regional or local government. In this case, devolution is characterized as the transfer or delegation of power and responsibility for Nunavut's Crown (public) Lands, fresh water and natural resources from the Government of Canada to the Government of Nunavut. Canada currently has control over the management of public lands and natural resources in Nunavut, including the development of Nunavut's minerals, oil and gas. In addition, the Canada currently collects any royalties generated from resource development on the public lands in Nunavut. The devolution of these federal responsibilities will enable the GN to make more decisions on how public lands and natural resources are used and developed within Nunavut as well as collect the royalties generated from resource development on public lands. (It is notable that current operating mines in Nunavut are largely located on Inuit owned land which generates royalties for NTI)
During the devolution process, the Government of Canada has been and will be required to consult with Indigenous groups adjacent to Nunavut who may have Aboriginal or treaty rights or interests within Nunavut, in accordance with section 35 of the Constitution Act, 1982.
Overview of the Agreement-in-Principle
In addition to the terms and conditions for the final agreement, the AIP contains the funding and framework for the transfer of the responsibilities for public land, water and natural resource management from Canada to the GN.
Some notable terms with respect to the transfer of responsibilities in the AIP include:
- The GN will have administration and control of Crown (public) Lands and rights in respect of waters in Nunavut;
- The Nunavut Act will be repealed and replaced or amended to expand the powers of the legislature to include the management of lands, water and natural resources in Nunavut, including the exploration and development of non-renewable resources;
- For project proposals wholly within Nunavut under the Nunavut Planning and Project Assessment Act, a territorial minister will (for several types of approvals) be the final decision-maker. This will not be the case where such projects are in areas retained by Canada;
- The GN will have increased powers to appoint members of the Nunavut Planning Commission, Nunavut Impact Review Board, and the Nunavut Water Board;
- The GN will have the power to appoint the chairs of the Nunavut Planning Commission and the Nunavut Water Board;
- Canada will amend the Canada Oil and Gas Operations Act (Canada), which governs the exploration, production, processing, and transportation of oil and gas in marine areas controlled by the Canada, so that it is inapplicable to onshore areas in Nunavut, except for areas retained by the Canada. This provision also provides that during the initial 5-year period from the date upon which the federal legislation, consent of Canada is required for any amendment to territorial legislation that would affect the regulatory functions of the National Energy Board.
Further, the AIP outlines the framework for developing transitional and post-devolution human resources and development strategies. These strategies will be consistent with Article 23 of the Nunavut Agreement, with the objective of ensuring that Inuit employment levels are maximized within all three levels of government in Nunavut in the positions that will be created as a result of devolution. This chapter also outlines the program elements of the five-year transitional human resources development strategy that will be undertaken in order to achieve this objective, which will include training and accredited learning, on-the-job training, student support, and program promotion.
Finally, the AIP acknowledges that the Government of Canada will continue to consult with Aboriginal groups following the signing of the AIP, which may result in the Government of Canada proposing amendments to the final devolution agreement in order to accommodate the concerns raised by Aboriginal groups.
Next Steps for Nunavut Devolution
The signing of the AIP formally triggered the five-year timeline that will allow for the negotiation of a final agreement on devolution and the official transfer the responsibilities for public lands, water and natural resource management from Canada to the GN. Once a final agreement on devolution is negotiated and signed by the parties, legislation will be drafted that will create the legal framework for devolution and an implementation schedule will be determined by the parties. Finally, legislation transferring the responsibilities for public lands, water and natural resource management to the GN will be implemented through a series of legislative changes that will be approved through Parliament and mirrored in the Nunavut Legislative Assembly.