2020 NUCJ 50, 2020 NUCJ 50

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Reference re Legal Questions Act, 2020 NUCJ 50 Date: 20200214 Docket: 08-18-680CVC Registry: Iqaluit I N T H E M A T T E R O F a r e f e r e n c e u n d e r t h e L e g a l Qu e s t i o n s A c t , R . S . N . W . T . 1 9 88 , c .L - 3 ; A N D I N TH E M A TT ER O F t h e A g ree m e n t B e t w e e n In u i t o f t h e Nunavut Settlement Area and Her Majesty the Queen in Right of Canada, as amended (the “Nunavut Land Claims Agreement”) Before: Madam Justice Cooper Counsel (Nunavut Tunngavik Inc, Kivalliq Inuit Association): H.

Schachter, J. Katz Counsel (Government of Nunavut): A. Silk, S. Chari Counsel (Athabasca Denesuline): J. Harvie Counsel (Ghotelnene K’odtineh Dene): J. Harvie, A. Peltz Counsel (Attorney General of Canada): A. Fox Location Heard: Iqaluit, Nunavut Date Heard: April 16 and 17, 2019 Matters: Legal Questions Act , R.S.N.W.T. 1988, c.L-3 REASONS FOR JUDGMENT

(NOTE: This document has been edited and redacted for publication) I. INTRODUCTION [ 1 ] The Government of Nunavut (GN) has brought an application pursuant to the Legal Questions Act seeking the court’s opinion on three questions. This decision deals with preliminary matters which must be answered before the matter can proceed. [ 2 ] The GN’s Reference relates to draft proposed settlement agreements between the Government of Canada (Canada) and First Nations who assert rights in the Nunavut Settlement Area. There is pending litigation in Federal Court in relation to the claims.

Negotiations in relation to the claims have been ongoing for many years. For the Reference to proceed the GN must rely upon documents which Canada and the First Nations claim are privileged and not to be disclosed. If the GN cannot rely upon the documents the Reference cannot proceed. If the documents can be filed, there are issues regarding who should have participatory rights in the matter and what the scope of those rights should be. II.

BACKGROUND [ 3 ] In 1976 negotiations began between Inuit in the Northwest Territories (as represented by Tungavik Federation of Nunavut [TFN, now known as Nunavut Tunngavik Incorporated, NTI]) and Canada for the settlement of Inuit land claims.

The negotiations continued throughout the 1980s, culminating in the Nunavut Land Claims Agreement (NLCA) which was signed on May 25, 1993 and ratified by Parliament on July 9, 1993. [ 4 ] Throughout the negotiating process the parties were aware that the Sayisi Dene First Nation and the Northlands Dene First Nation (collectively, the Ghotelnene K’odtineh Dene) and the Fond du Lac, Black Lake, and Hatchet Lake First Nations (collectively, the Athabasca Denesuline), asserted Aboriginal rights north of the 60th parallel, in parts of the Northwest Territories and what is now Nunavut.

Indeed, prior to the signing of the NLCA attempts were made for a negotiated settlement of the claims, however no settlement was reached. [ 5 ] On December 18, 1991, the Athabasca Denesuline commenced an action in Federal Court asserting Aboriginal rights north of the 60th parallel. [ 6 ] On March 9, 1993, the Ghotelnene K’odtineh Dene commenced an action in Federal Court asserting Aboriginal rights north of the 60th parallel. [ 7 ] In 1999 and 2000 Canada entered into formal negotiations with Athabasca Denesuline and the Ghotelnene K’odtineh Dene, respectively, in an effort to resolve the outstanding litigation in Federal Court.

Those negotiations are ongoing and may be close to a resolution. There is a draft proposed agreement in relation to each claim as well as a draft proposal to amend the NLCA. [ 8 ] The questions which the GN presents relate to those draft proposed agreements and NLCA amendments. [ 9 ] NTI has participated in the negotiation process. The GN’s involvement has been limited to being part of Canada’s negotiating team. [ 10 ] In 2002 the GN signed a Confidentiality Agreement in relation to the negotiations.

III. THE NUNAVUT LAND CLAIMS AGREEMENT [ 11 ] The NLCA recognizes that other Aboriginal peoples may have both traditional and modern claims to the use of land and resources, such as wildlife, in the Nunavut Settlement Area.

Article 40 of the NLCA specifically addresses this concern. The relevant portions of the NLCA that give rise to the Reference are as follows:

Article 2: General Provisions

Part 13: Amending the Agreement s. 2.13.1: An amendment to the Agreement shall require the consent of the Parties as evidenced by,

a) in respect of Her Majesty, an order of the Governor in Council, and

b) in respect of Inuit, a resolution of the Tungavik, except as provided otherwise by its bylaws or

Section 35.9.1, but the jurisdiction of the Legislative Assembly shall not be altered, and the Territorial Government shall not incur any financial obligations, through any amendment without its written consent.

Article 40: Other Aboriginal Peoples

Part 1: General s. 40.1.3: Nothing in the Agreement [NLCA] shall limit the negotiation of agreements between Inuit and any other aboriginal peoples respecting overlapping interest or claims, except that the provisions of such agreements shall not be binding on Government or any other person other than Inuit and those aboriginal peoples without the consent of Government. [ 12 ] The NLCA also has provisions relating specifically to the Athabasca Denesuline and the Ghotelnene K’odtineh Dene and their use of land and harvesting of wildlife in the Nunavut Settlement Area. IV.

THE LEGAL QUESTIONS ACT [ 13 ] The Legal Questions Act ( Act ) provides: 1. The Minister may refer to the Nunavut Court of Justice for hearing and consideration any matter that the Minister thinks fit to refer, and the Nunavut Court of Justice shall hear and consider the matter referred to it. 2. The Nunavut Court of Justice shall certify to the Minister its opinion on the matter referred, with the reasons for the opinion, and the

opinion shall be given in the same manner as in the case of a judgment in an ordinary action. [ 14 ] The Act provides that the court may direct that interested parties be given notice of the hearing and be given an opportunity to be heard.

The Act also provides for the right of appeal. [ 15 ] The Questions before the court are: Do certain proposed amendments to the Nunavut Land Claims Agreement, and/or proposed treaties between Her Majesty the Queen in Right of Canada and the Athabasca Denesuline and the Ghotelnene K’odtineh Dene, require the consent of the Government of Nunavut and/or the Legislative Assembly of Nunavut in order to have legal effect generally, and be binding on the Government of Nunavut, on any of the following grounds:

a) The proposed amendments and treaties, separately or collectively, constitute agreements between Inuit and other Aboriginal peoples respecting overlapping interests or claims within the meaning of

Section 40.1.3 of the Nunavut Land Claims Agreement; and/or,

b) The said proposed amendments and treaties would have the effect of altering the jurisdiction of the Legislative Assembly of Nunavut and/or imposing financial obligations on the Government of Nunavut, within the meaning of

Section 2.13.1 of the Nunavut Land Claims Agreement; and/or,

c) any other legal or constitutional ground? V. ISSUES [ 16 ] The preliminary issues to be determined are: 1. Are the materials that the GN seeks to refer to for the Reference subject to privilege and if so, can they be filed as an exemption? 2. If they can be used, should those materials, as well as other identified materials, be sealed? 3. Who should be granted standing at the hearing and what participatory rights should they have? VI. CONTEXT [ 17 ] It is important to put the role of the various parties in context.

The ongoing negotiations are between Canada and the Athabasca Denesuline and the Ghotelnene K’odtineh Dene, respectively and, to the extent that amendments are required to the NLCA, Canada and NTI. The GN is not a party to the litigation nor does it have a place at the negotiation table except to the extent that it has been invited by the negotiating parties.

With respect to the NLCA, the GN is not a party to the Agreement; indeed, it did not exist at the time the Agreement was entered into, nor did it attain party status as the successor government to the Government of the Northwest Territories in the Nunavut Settlement Area ( NTI v Canada (A.G.) , 2008 NUCJ 11 ).

VII. ANALYSIS [ 18 ] ISSUE 1: Are the materials that the GN seeks to refer to for the Reference subject to privilege and if so, can they be filed as an exemption? [ 19 ] Counsel have filed a number of affidavits in relation to the preliminary matters.

Through agreement of counsel, Consent Sealing Orders have issued in relation to various materials, being - Affidavit #2 of Mary Jean Rolando - Affidavit of William MacKay sworn Oct. 26, 2018 (MacKay affidavit) - Affidavit of Susan Woodley (Woodley affidavit) - Canada’s Memorandum of Law dated March 15, 2019 - Athabasca Denesuline and the Ghotelnene K’odtineh Dene Brief of Law dated April 1, 2019. [ 20 ] Canada, the Athabasca Denesuline and the Ghotelnene K’odtineh oppose the filing of the MacKay and Woodley affidavits on the grounds that the filing of them is in breach of the confidentially agreement and also that they are subject to settlement privilege.

The GN argues that the information in the affidavits is in the public domain and therefore disclosable. It further argues that the information to be disclosed is not covered by the confidentiality agreements. [ 21 ] Prior to embarking on an analysis as to the use that may be made of the affidavit material, I will comment that it seems to me that even if there is a finding in favour of the GN in this regard, the matter is advanced only to a limited extent.

At a full hearing of the matter the draft proposed land claim agreements and amendments to the NLCA would have to be put before the court and these documents may well stand on a different footing than the affidavit material. [ 22 ] The real issue is the use that can be made of materials not yet filed with the court, those being the draft proposed settlement agreements in relation to the Athabasca Denesuline and the Ghotelnene K’odtineh Dene and proposed amendments to the NLCA. If the proposed agreements and NLCA amendments cannot be put before the court then the matter cannot proceed. A.

The Confidentiality Agreements [ 23 ] The Confidentiality Agreements in relation to each of the two negotiations are identical. The parties to the confidentiality agreements are Canada, the Athabasca Denesuline / Ghotelnene K’odtineh Dene, NTI and the GN. The relevant portions of the confidentiality agreements are set out below. Redacted for the purposes of publication (preamble and paragraphs 4-12). [ 24 ] The case law speaks to the significance and importance of confidentiality agreements.

The parties must be free to enter in to confidentiality agreements without limitation, barring those that are contrary to public policy. [ 25 ] Without a confidentiality agreement there is the possibility that parties not directly involved in the litigation but nonetheless potentially affected by it (such as the GN) would not be invited to participate to any extent. This would not be desirable as concerns regarding proposed resolutions and third party interests would not be known or taken into consideration during the settlement process.

Having them involved in some capacity is to the benefit of all, as it provides an opportunity for their concerns to be heard and addressed and reduces the likelihood of future litigation. [ 26 ] It is for these same reasons that confidentiality agreements must be respected. If their enforcement cannot be relied upon by the

parties, then there is little incentive to enter into them and the benefit to be gained by their use is lost. [ 27 ] The GN submits that the confidentiality agreements do not apply to the information it wishes to disclose as the information is not directly relevant to the litigation pending in Federal Court.

The GN relies on cases that speak to the production of documents in the course of litigation ( Tuer v The Bank of Nova Scotia , 2019 ONSC 184 at para 5 ; Abreau v Schulz , 2018 ABQB 941 at para 63 ; McLeod v Balakrishnan , 2018 BSSC 908 at para 15). [ 28 ] These cases stand for the proposition that relevance, for the purposes of production of documents in the context of civil litigation, will be determined by the pleadings. This is a different issue than the applicability and scope of a confidentiality agreement. A confidentiality agreement may be entered into without litigation ongoing or even contemplated.

Even in the context of ongoing litigation, the parties may agree to confidentiality provisions that go beyond the strict confines of the litigation and absent compelling public policy reasons, such as fraud or illegality, the will of the parties, as demonstrated in the agreements, will be upheld by the courts ( Union Carbide Canada Inc. v Bombardier Inc. , 2014 SCC 35 ).

The issue is whether the confidentiality agreement, by its terms, extends to the information in question, not whether the information in question is strictly relevant to the ongoing litigation. [ 29 ] Clause 5 of the confidentiality agreements is broad, extending to “Any and all information or documentation communicated during the course of negotiations…”. The GN does not dispute that the information was obtained in the context of the negotiations.

The documents which would ultimately have to be before the court should the matter proceed, those being the draft settlement agreements themselves, are the ultimate product of the negotiations. There can be no doubt that the confidentiality agreements apply to those documents. [ 30 ] It is noteworthy that these particular confidentiality agreements have been considered by the court previously. In Samuel v Canada , 2005 FC 839 , NTI proposed to disclose to interested parties in certain Nunavut communities, the precise quantum of land transfer which was being proposed in a settlement of one of the claims.

The proposed disclosure was held to be contrary to the terms of the Confidentiality Agreement. [ 31 ] The GN further argues that the information it seeks to introduce is in the public domain. While the exhibits in the Woodley affidavit are clearly in the public domain and the nature of the negotiations are well known and are of interest to various levels of government and agencies, the proposed draft settlement agreements remain confidential. B.

Settlement privilege [ 32 ] In addition to the Confidentiality Agreements, there is an argument that information relating to the ongoing negotiations is subject to settlement privilege. Settlement privilege is a common law rule of evidence that protects communications between parties as they attempt to settle a dispute. It protects frank and honest discussions between parties as neither has to be concerned that information disclosed or positions taken during settlement discussion will be used to their detriment in subsequent litigation should a settlement not be reached.

There are exemptions to settlement privilege, those being misrepresentation, fraud, undue influence, preventing a plaintiff from being over-compensated, or, if a settlement is reached, use of otherwise privileged communication to prove the existence or scope of the settlement. None of these exemptions apply in the matter before me. [ 33 ] The GN’s interest in seeking a Reference is laudable. It is intended to provide direction to all parties, in a non-adversarial setting, prior to the settlement of final agreements.

As laudable as the intention may be, in my view it is not the prerogative of the GN to breach the provisions of the confidentiality agreements to achieve this goal. Its remedy lies with the NLCA. The jurisdiction of the Legislative Assembly shall not be altered, financial obligations shall not be imposed on the GN, and the GN is not bound by any overlap agreement, absent consent. All of the negotiating parties are aware of these provisions in the NLCA. Should they reach an agreement without the necessary consents they

run the risk of those provisions being undermined. It is not for this court to say that the risk is not one they should take. VIII. CONCLUSION [ 34 ] The Confidentiality Agreements and settlement privilege apply to information exchanged during the negotiations and the GN has not established an exemption to their application. Such information, in particular, draft proposed settlement agreements, cannot be disclosed to the court.

The documents currently under seal will remain under seal. [ 35 ] Given my findings in this regard it is unnecessary for me to consider the other issues raised in these proceedings. [ 36 ] There will be no order as to costs. Dated at the City of Iqaluit this 14th day of February, 2020 Justice S. Cooper Nunavut Court of Justice