Canada’s third and largest territory has now joined the devolution train. On January 18, 2024, the Government of Nunavut, Nunavut Tunngavik Incorporated (which coordinates and manages the rights and responsibilities of the Inuit peoples) (“NTI”), and the Government of Canada co-signed the Nunavut Lands and Resources Devolution Agreement (the “Agreement”).
This blog post first explains the concept of “devolution”. It then considers how the Agreement intends to realize devolution in Nunavut and identifies some learnings from the devolution process in the other territories. Lastly, it considers whether this Agreement is consistent with the Inuit (who make up ~85% of Nunavut’s population) objective of self-determination.
What is Devolution?
While matters of provincial jurisdiction are guaranteed by the Constitution Act, 1867 (see section 92), territorial governments are beholden to federal constitutional jurisdiction and get their powers through agreements and legislation. This process of the federal government transferring (or devolving) some of its powers to subnational (in this case, territorial) governments, is called devolution.
Since the 1960s the federal government has gradually been transferring some of its responsibilities to the territorial governments. This was done to further territorial autonomy and implement territorial/ locally tailored governance and programming. Responsibilities transferred included health, education, housing, social services, and airports.
Devolution in Nunavut
The Agreement transfers control over Nunavut’s public lands and waters from the federal government to the territorial government of Nunavut. This has been in the works ever since Nunavut became a territory in 1999, which was largely motivated by the Inuit ambition to attain self-determination.
The Agreement will transfer control and responsibility over public lands (i.e. Crown lands) and inland waters to the territorial government of Nunavut, providing the territorial government with greater autonomy. The territorial government, as opposed to the federal government, will be charged with making decisions about land administration, development, and resource management. As a result, the territory will receive revenues from industry, including oil, mineral and gas projects on their lands. Note that devolution will not affect existing land or water rights or interests (e.g. permits, licenses, leases…etc).
The Agreement sets out April 1, 2027, as the “Transfer Date” – the date upon which the Nunavut Act will be amended or repealed and various federal and territorial legislative changes are to come into effect. Nunavut is the third of the three territories to undergo devolution. One thing that is evident from prior experience is that devolution takes many years and significant resources to implement because it requires a series of legislative changes, both federal and territorial, which then need to be approved by Parliament and the Nunavut legislative assembly.
In addition to legislative change, devolution requires significant investments in infrastructure and human capital to accommodate the creation of territorial institutions which must effectively engulf the work of the federal institutions prior to devolution. To mitigate this transition and associated costs, the Federal Government has committed:
- $15 million to co-develop and co-implement a Transitional Human Resources Development Strategy which will provide education support and employment opportunities for Nunavut’s public services.
- $67.25 million for “transitional activities”, including everything from making sure adequate information services are in place to legislative drafting.
Though Nunavut will benefit financially from taxes, royalties, and other fees, the federal government isn’t entirely out of the picture. Unlike the provinces that keep 100% of their resource revenues, the Agreement stipulates that Nunavut may receive total resource revenues less $ 9 million. Note that the government of Nunavut has the option to elect to receive a different allocation – 50% of resource revenues up to a maximum amount.
Further, according to the Agreement, the government of Nunavut will now be responsible for making settlement and land claims agreement payments. Per the Nunavut Agreement, 1993, Inuit are to be paid (i) 50% of the first $2 million of resource royalty received by the government in a given year; and (ii) 5% of any additional resource royalty received by government in that year with respect to the Nunavut Settlement Area and Other Land Fast Ice Zone as defined in that agreement.
Devolution and Inuit Self-Determination
The Agreement has many assurances in place to ensure Inuit representation, but it remains unclear the extent to which devolution will advance self-determination.
There are positive statements supporting Inuit throughout the document – no doubt a product of NTI’s involvement in negotiations. For example, the Agreement explicitly refers to Article 23 of the Nunavut Agreement which has the objective of increasing Inuit participation in government employment to a representative level. Another example is that the Agreement for Coordination and Cooperation with Respect to Lands Management in Nunavut (the “Cooperation Agreement”), signed by the Government of Nunavut and NTI, is included as an appendix to the Agreement. The Cooperation Agreement aims to foster cooperation and coordination between Nunavut’s public government and NTI to manage resources within the territory, including public lands and waters as well as Inuit owned lands.
Whether and to the extent devolution will promote Inuit self-determination is not yet known. There remains a risk that the Government of Nunavut will prioritize non-Inuit interests in resource development decisions, undermining self-determination, unless NTI’s Role in co-governance is actively maintained. However, given the Inuit strong majority in populace, unified voice through means such as NTI, along with other measures, there is at least a promising foundation for further self-determination and true cooperative governance.
Takeaways
Despite having a relatively intuitive and straight-forward meaning, devolution in practice is by no means that. Each territory has different devolution agreements in place with the federal government, and each is intended to cater to the territory’s unique needs. Implementing a devolution agreement is a complicated task involving a series of legislative changes, infrastructure development, and administrative hurdles.
How the Agreement will play out in Nunavut including whether it will further the Inuit objective of self-determination will only become evident with time. One key factor working in the Inuit favour is their unified political voice and collective representation in negotiations such as the Agreement via NTI. Signing the Agreement is the first step; there is much work to come.