Nunavut Lands索赔决定


Robert Janes,Janes Freedman Kyle Law Corp,加拿大原住民法律

决定Nunavut Court of Justicein NTI v. Canada (Attorney General), 2012 NUCJ 11 is finally available and makes for interesting reading for those interested in the question of the degree to which the courts will hold Canada accountable for theimplementation现代条约。这种情况下是一个原住民的警示peoples and Crown. For aboriginal people contemplating ratifying a modern treaty the facts of this story send an important message about the degree to which they can expect Canada to act with good intentions and honourably based upon political good will: don't expect it to happen. Before the litigation commenced Canada clearly dragged its heels in implementing a major promise made in theNunavut Lands索赔协议(NLCA);最终,只面对诉讼。并积极抗拒对其与NTI的争议或一旦诉讼开始的任何有意义的补救措施的任何及时裁决。用一句话,加拿大一直是欺负者。

对于加拿大来说,警示性的故事在于案件的结果。虽然判断是一个密集的读物(不幸的字体和法院使用的格式化并不容易),但最终传达的核心信息是一个愤怒之一。Justice Johnsonclearly came to the view that Canada was a bully throughout and essentially was shirking honouring ts obligations under the treaty to the extent that it could and trying to delay and avoid any real consequence for disregarding its obligations. In Justice Johnson's judgment there is a clear sense that this is no way to encourage any meaningful form of reconciliation with aboriginal people and that the Courts cannot allow such conduct to go unsanctioned. Given Canada's conduct Justice Johnson was willing to cut through significant legal thickets to provide a timely and meaningful remedy.


First, under Section 12.7.6 of the NLCA there is a requirement for general monitoring to collect and analyse information on the long term state and health of the ecosystemic and socio-economic environment in theNunavut Settlement Area。政府与NPC合作,应负责制定一般监控计划,并指导和协调一般监控和数据收集。根据NCLA,建立了计划和实施此一般监控计划的时间表(称为Nunavut一般监控计划或NGMP)。加拿大最终负责实施和融资NGMP。


Third, the Inuit were collectively worse off because of Canada's failure to implement the NGMP as they were deprived of the performance of the their agreement but also because they were deprived of the knowledge and data that would have come from a properly implemented monitoring program. However,the loss suffered by the Inuit because of this breach is very difficult to put into numerical or cash terms.


法院面前的两个真正的实质性问题是:(1)加拿大是否违反了Nunavut Lands索赔协议,并且(2)应判给哪些损害赔偿?毋庸置疑,加拿大否认它违反了该协议,从本质上提出了一个半心的论点,即这是一个自由裁量的承诺,即它可以自由地延迟它,因为它可以延迟它。加拿大更严重地否认,因纽特人应获得任何补救措施或有意义的损害赔偿奖励。加拿大表示,不需要声明,因为现在已经开始实施NGMP。它还说,因为因纽特人无法证明他们从数值意义上遭受了什么伤害,所以他们的损害应仅限于“名义”损害,也就是说,这就是诸如100美元的象征性数字。

Needless to say NTI had a different perspective on these issues. NTI argued that the implementation of the NGMP was an important part of the overall treaty package for which they had made significant sacrifices. The treaty established a relationship between Canada and the Inuit in these circumstances that was both contractual and fiduciary in nature. Canada's delay in implementing the NGMP amounted therefore to both a breach of contract and breach of fiduciary duty. NTI also argued that given the special circumstances of this case and given the fact that Canada had clearly benefited from a breach of treaty that harmed the Inuit the fact that damages were hard to quantify should give rise to a damages calculations based upon what lawyers call "disgorgement" -- in lay terms, Canada should be required to "choke up" the benefit it got from its breach of the treaty.
Once the Court worked its way through the procedural thicket of whether or not it could grant summary judgment (that is, judgment before a full-blown trial) it had a reasonably easy time in finding that Canada had breached both its plain legal obligations under the treaty and its fiduciary duties towards the Inuit.

Fundamentally the Court found that there was clear evidence of a commitment to plan and implement the NGMP in a timely way that was in fact reflected in a schedule and Canada simply failed to move ahead with the matter without any explanation other than the desire not to invest the time, effort and resources.
This aspect of the decision will be undoubtedly challenged on appeal both for technical as well as substantive reasons. Substantively it will be most interesting to see if the appeal courts uphold the finding that there was a fiduciary duty and a breach of that duty. That finding -- which is a more flexible and generally applicable finding -- marks a clear revival of what had been something of a whithering branch of the aboriginal law tree. While the courts have been applying the concept of the honour of the Crown liberally in the last few years there has been less willingness to impose the somewhat more stringent standards expected of a fiduciary. The application of this doctrine in the context of a modern treaty is a noteworthy event.

[333] I am satisfied that Canada’s failure to implement an important article of the land claims for over 15 years undermined the confidence of aboriginal people, and the Inuit in particular, in the important public value behind Canadian land claims agreements. That value is to reconcile aboriginal people and the Crown. It would be manifestly unjust to allow the Crown to benefit from its failure to fulfill its obligations under Article 12.7.6. It is also important that to ensure that the Crown properly respects and fulfills its obligations under land claims agreements, including obligations to provide benefits that are not capable of being quantified in financial terms.

It will be fascinating to watch this case on appeal as it is likely to arrive at the Supreme Court of Canada.