The Nunavut Final Agreement and
Marine Management in the North

Legislation ratifying the Nunavut Final Agreement (NFA) was passed by Parliament in 1993. Far from being a land-claims agreement, the NFA establishes bold new precedents for integrated land and sea management that have profound implications and lessons for marine management throughout the country. Indeed, it is sometimes referred to as a "sea-claims" agreement, reflecting the dependence of the Inuit on ocean ecosystems for their livelihood.

The following article reviews the little-known ocean management provisions of the NFA and underscores their implications for federal decision-making on marine matters both in, and adjacent to, Nunavut.

The Nunavut Final Agreement --
Marine Provisions: An Overview

The NFA provides for the establishment of a complete comanagement regime for Nunavut designed to produce land-use plans, regulate access to wildlife, regulate water use, review the potential impacts of development, and meaningfully advise government on the management of the Nunavut marine environment.

This last point is key: twenty-six of the twenty-seven communities in Nunavut are on the coast. Not surprisingly, therefore, a good portion of the NFA focuses on offshore rights, responsibilities, and jurisdiction. The agreement recognizes seven principles related to marine areas, and no fewer than 13 of its 42 articles -- or almost 45%-relate directly to marine matters.

The principles (section 15.1. 1), which establish the context for marine management in Nunavut, include recognition that

• in marine areas, the legal rights of the Inuit flowing from the agreement are based on traditional and current use;
• Inuit harvest wildlife that might migrate beyond the marine areas [identified in the agreement];
• there is a need for Inuit involvement in aspects of Arctic marine management, including research; and
• there is a need to develop and co-ordinate policies for marine areas.

Extending from these principles are a number of management provisions, set out principally through section 15, "Marine Areas." It is noteworthy, however, that 12 additional articles, ranging from conservation through land-use planning and development impact to employment matters, shall also apply to marine areas. This represents a significant step towards ecosystem management-a management system that does not stop at the shore but considers the land and sea as two connected parts of a whole. This integrated approach is also recognized in the powers of the Nunavut Wildlife Management Board (NWMB), which is to be the main instrument of wildlife (including marine wildlife) management within the Nunavut Settlement Area.

Timothy Idlout scanning for polar bear while son Andrew Atagotaaluk butchers bear meat.

Key among these provisions is the structure proposed for marine management in the Nunavut Settlement Area under section 15.4.1 of the agreement. "The Nunavut Impact Review Board (NIRB), the Nunavut Water Board (NWB), the Nunavut Planning Commission (NPC), and NWMB [each of which is a co-management body having equal government and Inuit representation] may jointly, as a Nunavut Marine Council, or severally advise and make recommendations to other government agencies regarding marine areas and Government shall consider such advice and recommendations in making decisions which affect marine areas" [emphasis added]. In practice, the consensus-building approach of institutions like the marine council would mean that their recommendations should carry the day.

The Final Agreement, recognizing that Inuit are dependent on migratory marine species that leave the settlement area, also establishes two special zones ("Zone I" along the east coast of Baffin Island and "Zone II" in Hudson and James Bay) that are not part of the settlement area. Section 15.3.4 stipulates that "Government shall seek the advice of the NWMB with respect to any wildlife management decisions in Zones I and II which would affect the substance and value of Inuit harvesting rights and opportunities within the marine areas of the Nunavut Settlement Area." One obvious need for consultation would be in the establishment of quotas, such as for Greenland halibut (turbot) in Davis Strait.

And, under section 15.3.1, the Final Agreement obligates the government to maintain a structure or structures to promote co-ordinated management of migratory marine species in zones I and II.

Implications of NFA
Provisions for Management

The implications of the NFA for management are two-fold:

• the federal government is required to consult in a meaningful way with the Inuit of Nunavut when making decisions that affect them; and
• the federal government is obligated to approach management of the Nunavut marine environment in an integrated and co-ordinated way.

Consultation

In the past, consultation has been a code word for a number of things, many of which have not adequately addressed the need to gain the Inuit perspective and opinion on developments in the North. A case in point was the recent proposal to allow a third passage of the MV Arctic from Cameron Island to carry crude oil out of the Arctic. Although the Brander-Smith report on tanker traffic and oil spills response recommended an amendment to the Canadian Arctic Shipping Pollution Prevention Regulations that would require a full environmental assessment, including public consultation, the proponents considered an information session with the Resolute Hamlet Council to be sufficient. An information session is a good starting place, but neither local knowledge nor local views can come forth in this kind of session. The NFA obligates the government to engage in consultation that will allow both local knowledge and local views to be brought meaningfully into decision-making processes.

Co-ordinated Decision-making

In their response to the Department of Fisheries and Oceans' (DFO) "Vision for Ocean Management," Nunavut Tunngavik Inc. (NTI -- footnote 1) noted "[all] stakeholders can...agree that the management of Canada' s marine environment to date has been ad hoc, piecemeal and largely ineffective. No organization knew this better than [NTI's predecessor, the Tunngavik Federation of Nunavut] TFN, when negotiating the claim settlement of Nunavut." Given that a significant proportion of the negotiations included and involved the negotiation of provisions for the offshore, TFN found itself, at times, negotiating with government personnel from a multitude of branches within more than six departments.

Even when the list is narrowed to those two departments with the greatest stake in the marine environment (Fisheries and Oceans, which is responsible for marine fish and mammals; and Environment, which is responsible for preservation of the natural environment), a gap remains: no co-ordinated jurisdiction exists for the preservation and enhancement of the natural marine or ocean environment.

For this reason, NTI agrees completely with the-federal government' s plan to use the proposed Canada Oceans Act to establish "a clearly identifiable lead federal agency accountable for ocean management." Such a regime would provide a focal point for advice from the Nunavut Marine Council and could take~the lead in establishing the body to oversee decisions in zones I and II of the settlement area. It is critical, however, that any agency established under the act, and the powers given it, be consistent with the provisions of the Nunavut Final Agreement. Failure to ensure consistency, to put it bluntly, will undermine the Canada Oceans Act because, constitutionally, the Final Agreement will take precedence.

Conclusion

A strong, co-ordinated and co-operative land-and-sea management regime is being built under the auspices of the Nunavut Final Agreement. It will provide for extensive integrated planning and management, offering tools for other parts of the country to emulate. The key to successful federal management adjacent to the Nunavut Settlement Area will be in developing a management structure and strategy, possibly through the Canada Oceans Act, that is consistent with the Nunavut Final Agreement and can accommodate community needs and views. NTI will continue to work to ensure that both conditions are met.

Footnote 1. The Tunngavik Federation of Nunavut (TFN) negotiated the land-claims agreement on behalf of the Inuit of Nunavut. Following the successful conclusion of the NFA, TFN incorporated, in part to handle settlement funds, and is now known as Nunavut Tunngavik Inc.

Bruce Gillies is responsible for environmental issues at NTI. NTI represents the more than 20,000 Inuit who are beneficiaries of the Nunavut Final Agreement. Its mandate is to oversee the implementation of the Nunavut land-claims settlement on behalf of the Inuit of Nunavut.