How Climate Change Intersects with Inuit Land Claims

Luis Millan for The Lawyers Weekly

April 23, 2010

In the midst of grappling with the impact of global warming on the Arctic, with a seemingly growing list of nations laying competing claims to maritime access to the Northwest Passage and the riches lying beneath the forbidding landscape, the Inuit are looking to their land claims agreements with the government of Canada to address the environmental challenges faced by their communities.

With their way of life under siege, the Inuit have already begun testing the flexibility and fluidity of northern land claims agreements, having filed a $1-billion suit against the federal government in what may foreshadow long drawn-out legal battles, spurred in part by shifting environmental and climatic changes in the north.

In a suit that will test competing visions of the interpretation and nature of land claims agreements, Nunavut Tunngavik Inc. (NTI) filed a statement of claim against the Attorney General of Canada nearly four years ago for breach of contract, alleging that the federal government failed to live up to its obligations and has therefore violated the Nunavut Land Claims Agreement Act. The Agreement identified the geographical area of the Northwest Territories as the Nunavut Settlement Area, and on Apr. 1, 1999 the area became the Territory of Nunavut. NTI, a body established to assist in the implementation of the land claims agreement negotiated by the Inuit and the government of Canada, coordinates and manages Inuit responsibilities set out in the Agreement, while ensuring that the federal and territorial governments fulfill their obligations.

While the specific claims in the NTI suit do not specifically refer to climate change, an interpretative approach is being advocated by the Inuit that will encourage examination of the issue, said Dougald Brown of Nelligan O'Brien Payne in Ottawa, who is representing NTI. Under the Agreement, the federal government was required to establish a Nunavut Wildlife Management Board that would implement and monitor a plan to oversee ecosystemic and social changes. That was never done, said Brown, who practises labour and aboriginal law.

"Certainly part of the argument in the lawsuit is that it not only ought to have complied with the specific obligations of the Agreement, but it was critically important to serve a broader public interest because of the impact of climate change in the Arctic," said Brown, co-author of Oil Under the Ice, a book dealing with oil exploration in the Arctic.

Numerous other breaches are also alleged, including inadequate funding for various boards, organizations, and commissions recognized or created under the Agreement with specific statutory responsibilities to monitor, plan and regulate land development, among other things. "One of the things that those various agencies are concerned with, at least indirectly, is climate change and the impact of climate changes in the North," added Brown, who has worked with national Inuit organizations on land claims and other aboriginal and northern issues.

However, it remains to be seen whether the court will embrace the view long espoused by the Inuit, who view land claims agreements as working documents, which can and should be adaptable to changing circumstances in the North, said Konstantia Koutouki, a law professor at the Université de Montréal's faculty of law, who spent two years examining the issue for a paper that she co-wrote with archeology professor Natasha Lyons of Simon Fraser University. Regarded as far more than "just a legal document," the Inuit perceive land claim agreements as flexible and forward-looking documents that have empowered them to improve their lives by enabling them to assert control over their lands, resources and ways of life, added Koutouki.

Land claims agreements have taken on added significance over the past few years due to the pace and impact of climate change. Melting glaciers and permafrost, shorter winters, longer summers, and changing wildlife patterns are threatening the traditional Inuit way of life, a life closely connected to the land and its resources. As underscored by a report penned by Inuit Tapiriit Kanatami, a national Inuit organization in Canada, the Inuit are "going to have to find new ways to make a living from the land, and whatever form that takes, it will not be what Inuit would have wished for, it will not be ideal." Land claims agreements, however, can be the "building blocks" to develop and implement strategies to address the challenges posed by climate change, said Koutouki.

"How you view this instrument plays a role on what you think it can or can't resolve," notes Koutouki. "These agreements are seen as an important vehicle for community mobilization, given the fact that the Inuit are powerless to control the activities that propel climate change. They perceive these legal texts as flexible and evolving structures that facilitate communication and negotiation between their communities and the government."

Franklin Gertler, a Montreal environmental and aboriginal lawyer, believes that the Inuit position on land claims agreements may be on solid footing. While case law to some extent gives credence to the view held by federal and provincial governments that these agreements should be strictly interpreted, Gertler points out there is another current in law, particularly in international law, that holds that land claims agreements should be flexible in order to take into account a change of circumstances - in this case, climate change.

"Under international law there is an increasing recognition of rights of people to territories, a way of life and self-governance," said Gertler. "If there are environmental threats that endanger the carrying on of those ways of life, then it potentially becomes an international legal issue."
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