NTI v. Canada (Attorney General), 2012 NUCJ 11

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: NTI v. Canada (Attorney General), 2012 NUCJ 11 Date of Judgment: 20120627 Docket: 08-06-713-CVC Registry: Iqaluit Applicant: Inuit of Nunavut as Represented By Nunavut Tunngavik Incorporated -and- Respondent: The Attorney General of Canada -and- Third Party The Commissioner of Nunavut As Represented by the Government of Nunavut and the Government of Nunavut _____________________________________________________________________ Before: The Honourable Mr. Justice E.

Johnson Counsel (Applicant): Dougald Brown Counsel (Respondent): Michele Annich Location Heard: Iqaluit, Nunavut Date Heard: February 12, 13, 2012 Matters: Nunavut Rules of Court, R.N.W.T. R-010-96, as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28 , Rules 174, 181, 238, 258 and 266. REASONS FOR JUDGEMENT (NOTE: This document may have been edited for publication)

Amended Decision: An amended decision was issued on July 18, 2012 and July 23, 2012; the corrections have been made to the text and the amendment is appended to this judgment. Amended Decision: An amended decision was issued on March 26, 2015; the corrections have been made to the text and the amendment is appended to this judgment. I. INTRODUCTION [ 1 ] On May 25, 1993, the Inuit then residing to the east of the tree line of the Northwest Territories (NWT) entered into the Nunavut Land Claims Agreement with Canada (NLCA).

The NLCA identified the geographical area of the NWT inhabited by these Inuit as the Nunavut Settlement Area (NSA). On April 1, 1999, this area became the Territory of Nunavut, pursuant to s. 3 of the Nunavut Act, S.C. 1993, c. 28 . [ 2 ] The Tungavik Federation of Nunavut (TFN) was the signatory of the NLCA on behalf of the Inuit of the NSA.

The applicant in the current action (NTI) is an incorporated organization that succeeded the TFN, and currently represents the Inuit under the NLCA. [ 3 ] On the same day as the execution of the NLCA, the respondent (Canada), the Government of the Northwest Territories and the TFN entered into A Contract Relating To The Implementation of the Nunavut Final Agreement (Implementation Contract), identifying their respective roles and responsibilities in the implementation of the NLCA. [ 4 ] On December 7, 2006, NTI commenced this action against the Defendant (Canada) alleging breaches of the NLCA and claiming damages of $1,000,000,000. [ 5 ] The action has slowly and steadily moved forward.

This Court and the Nunavut Court of Appeal issued judgments on some initial procedural issues. They are reported at 2007 NUCJ 27 , [2007] NJ No 32; 2008 NUCJ 13 , 2008 CarlswellNun 13; 2008 NUCJ 15 ; and 2009 NUCA 2 , 2009 CarswellNun 14. [ 6 ] The parties have been conducting examinations for discovery for the past two and half years and a realistic trial date is sometime in the first half of 2014. [ 7 ] In this application NTI seeks

summary judgment in the amount of $14,817,500, pursuant to Rules 174 and 181 of the Rules of Court, as duplicated for Nunavut by s. 76.05 of the Nunavut Act, S.C. 1993, c. 28 [Rules of Court], for that part of the Amended Statement of Claim alleging breach of

Article 12.7.6 of the NLCA as pleaded in paras 12(c), 13-18, 19, 43, 44, 45, 86(a)(iii), and 86(e). The corresponding paras of the Statement of Defence are 8, 40, 41, and 68. [ 8 ] These paras of the Statement of Claim allege that Canada breached

Article 12.7.6 of the NLCA by failing to set up a general monitoring plan in accordance with timelines established under the Implementation Agreement. [ 9 ] The application was opposed by Canada and judgment was reserved. II. LAW A. Rules of Court [ 10 ] Rule 174 (1) permits a plaintiff to apply for

summary judgment on part of the relief requested in the statement of claim.

(1) A plaintiff may, after a defendant has delivered a statement of defence, apply with supporting affidavits or other evidence forsummary judgment against the defendant on all or part of the claim in the statement of claim. [11] Rule 176 (1) requires the defendant to respond to the application by setting out, in affidavit material or other evidence, specificfacts showing that there is a genuine issue for trial. 176.

(1) In response to the affidavit material or other evidence supporting an application for

summary judgment, the respondant may notrest on the mere allegations or denials in his or her pleadings, but must set out, in affidavit material or other evidence, specific factsshowing that there is a genuine issue for trial. [12] Rule 181 permits this Court to give judgment where admissions of fact constitute the “other evidence” specified in Rule 174. 181. At any stage of a proceeding or action, the Court may, on application, give any judgment or order to which NTI may be entitledwhere (

a) admissions of fact have been made on the pleadings or otherwise; or (

b) the only evidence consists of documents and such affidavits as are sufficient to prove their execution or identity. B. Rule 181 - use of admissions [13] The combined operation of Rules 174 and 181 makes

summary judgment available where there are admissions and undisputedfacts that provide an evidentiary basis for this Court to conclude that there is no genuine issue for trial and where the admissions are inrespect of matters that would entitle a party to judgment. As Osborne J. noted in Ford Motor Co. of Canada v Ontario MunicipalEmployees Retirement Board (1997) (ON CA), 36 OR (3d) 384 at para 48, 153 DLR (4th) 33: Such an order will typically take the form of a

summary judgment for part of the plaintiff's claim. [14] As held in Ellis v Allen, [1914] 1 Ch 904 at 908, [1911-13] All ER 906 quoted in Shinkaruk v Ecclesiastical Ins. Office PublicLtd. (1986), 52 Sask R 8, [1986] SJ No 588, Rule 181 is intended to permit the plaintiff to obtain speedy judgment on a plain admission. [15] At para 9 of Admiral Canada Inc. v Freekick Ltd., 2006 ABQB 451, [2006] AJ No 1651 , Moen J. listed a number ofcases where the Alberta Court of Appeal stated that

summary judgment may be granted where admissions are clear and unequivocal. Inthis context, Moen J. noted admissions are concessions or voluntary statements made by a party concerning the existence of facts that arerelevant to the adverse party. 'Admissions' are concessions or voluntary acknowledgements made by a party of the existence of certain facts. More accurately regarded,they are statements by a party, or someone identified with him in his legal interest, of the existence of a fact which is relevant to thecause of his adversary [...]: Vector Energy Inc. v.

Canadian Pioneer Energy Inc. (1996), (AB KB), 185 A.R. 214(Q.B. Master) at 217. [16] There are similar statements by Cromwell J. (as he was then) at para 3 of Armoyan Group Ltd. v Dartmouth (City), 1998 NSCA55 , [1998] NSJ No 26, 167 NSR (2d) 398, and by Veit J. at para 18 of 1103785 Alberta Ltd. v ExxonMobil Canada Ltd., 2008ABQB 581, [2008] AJ No 1043. In Vector Energy Inc. v Canadian Pioneer Energy Inc., (AB KB), [1996] AJ No440, 185 AR 214, Master Waller also noted that admissions must be read in context.

C. Rule 174 - general principles of

summary judgment [17] Rule 174 is intended to advance procedural justice by preventing defences and claims that have no chance from proceeding totrial. In Papaschase Indian Band No 136 v Canada, [ 2008 SCC 14 , 2008] 2 CNLR 295 at (QL) para 10 [Papaschase], the courtstated: This appeal is from an application for

summary judgment. The

summary judgment rule serves an important purpose in the civil litigationsystem. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes aheavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of thejustice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage.

Conversely, it isessential to justice that claims disclosing real issues that may be successful proceed to trial. [18] The court also noted at para 11 that the reciprocal obligation placed on an applicant is high: For this reason, the bar on a motion for

summary judgment is high. The defendant who seeks

summary dismissal bears the evidentiaryburden of showing that there is "no genuine issue of material fact requiring trial": Guarantee Co. of North America v. Gordon CapitalCorp., (SCC), [1999] 3 S.C.R. 423, at para. 27. The defendant must prove this; it cannot rely on mere allegations or thepleadings: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), (ON CA), 21 O.R. (3d) 547 (C.A.); TucsonProperties Ltd. v. Sentry Resources Ltd. (1982), (AB KB), 22 Alta. L.R. (2d) 44 (Q.B. (Master)), at pp. 46-47. If thedefendant does prove this, the plaintiff must either refute or counter the defendant's evidence, or risk

summary dismissal: Murphy OilCo. v. Predator Corp., (2004), 365 A.R. 326, 2004 ABQB 688, at p. 331, aff'd (2006), 55 Alta. L.R. (4th) 1, 2006 ABCA 69. Each sidemust "put its best foot forward" with respect to the existence or non-existence of material issues to be tried: Transamerica Life InsuranceCo. of Canada v. Canada Life Assurance Co. (1996), (ON SC), 28 O.R. (3d) 423 (Gen. Div.), at p. 434; Goudie v.Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14, at para. 32.

The chambers judge may make inferences of fact based on the undisputedfacts before the court, as long as the inferences are strongly supported by the facts: Guarantee Co. of North America, at para. 30. [19] These principles of law for interpreting the

summary judgment rules in other jurisdictions have been applied in the NorthwestTerritories. That jurisdiction has the same Rules of Court as Nunavut. In Base v Hadley, 2006 NWTSC 4, [2006] NWT J No 3 [Base],Schuler J. held a party moving for

summary judgment has the ultimate burden of establishing that there is not a genuine issue for trialand that judgment should be granted. However, Canada has an evidentiary burden to "put its best foot forward".

Canada cannot rest onunsupported allegations or denials but must adduce evidence of specific facts showing that there is a genuine issue that requires a trial.The Court is entitled to assume that the evidence Canada presents is all the evidence that is available to it and to decide the motion on thebasis of the evidence before the Court. [20] In Base, Schuler J. held that either party could rely on transcripts of examinations for discovery to support their argument. [21] These principles were applied in Nunavut in Nunavut Tunngavik Inc. v Canada (Attorney General), 2003 NUCJ 1 , 2003NUCJ 01, [2003] Nu J No 2 [NTI Firearms].

In that case, NTI applied for an interim order staying the application of firearms registrationto Inuit Beneficiaries. Canada filed a cross-application for

summary judgment dismissing the application. In granting the order requestedby NTI and dismissing the cross-application, Kilpatrick J. adopted the words of Vertes J. in Norn v Stanton Regional Hospital, (NWT SC), [1998] NWT J No 88 at (QL) para 17, 26 CPC (4th) 276, as follows: The test on a

summary judgment motion is well-known. The motions judge must take a hard look at the evidence to determine whetherthere is a genuine issue for trial: see 923087 N.W.T. Ltd. v Anderson Mills Ltd., (NWT SC), [1997] N.W.T.R. 212(S.C.), at pages 221 - 223. If there is no genuine issue for trial, the court must grant

summary judgment: Rule 176(2). And, if the onlygenuine issue is a question of law, the court may, not must, determine that question and grant

summary judgment: Rule 176(4). The"genuine" issue is usually one of fact or one of mixed fact and law, but it may also be one of pure law where, as here, the state of the lawis in flux. The case law, even while recognizing that a

summary judgment motion is an effective way of avoiding expensive and lengthylitigation, demands that it must be clear that a trial is unnecessary to resolve the issues. [22] There are some authorities that have held that serious or novel areas of law should not be decided on a

summary judgment. SeeShell Canada Resources Ltd. v Ralph M. Parsons Co. of Canada, (AB KB), [1981] AJ No 977, [1981] 4 WWR 647;Prudential Trust Co. v National Trust Co., (AB CA), [1965] AJ No 7, 55 DLR (2d) 272; Edmonton RegionCommunity Board for Persons with Developmental Disabilities v Pearl Villas Homes Ltd., 2010 ABQB 786, [2010] AJ No 1420;Saint-François de Madawaska (Village) v Nadeau Poultry Farm Ltd., 2011 NBCA 55, [2011] NB J No 197; Royal Bank v SociétéGénéral (Canada) (2006), (ON CA), 219 OAC 83, 31 BLR (4th) 63; Shell v Barnsley, 2006 MBCA 133, [2007] 2

WWR 66. III. UNDISPUTED FACTS [ 23 ] NTI relies on the pleadings, the affidavit of David Kunuk (Kunuk) sworn October 14, 2011, and portions of the transcript of the examination for discovery of Terry Sewell (Sewell) that took place on November 24 and 25, 2009. [ 24 ] Canada relies on the affidavit of Seth Reinhart (Reinhart) sworn November 19, 2011. [ 25 ] Canada made a number of admissions in the Statement of Defence, as follows: (

a) That NTI and Canada entered into the NLCA in 1993. (

b) That the rights and benefits of the Inuit in the NLCA have not merged in any statute or other law. (

c) That the NLCA is binding on Canada. (

d) That the NLCA is an enforceable contract between NTI and Canada. (

e) That the NLCA is a land claim agreement within the meaning of

section 35 of the Constitution Act, 1992. In the NLCA the Inuit receive defined rights and benefits in exchange for the surrender of their aboriginal claims, rights, title and interests, if any, in and to lands and waters anywhere within Canada and adjacent offshore areas within the sovereignty or jurisdiction of Canada. (

f) That

Section 12.7.6 of the NLCA states: 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 the Nunavut Settlement Area. Government, in co-operation with the NPC, shall be responsible for developing a general monitoring plan and for directing and co-ordinating general monitoring and data collection. The NPC shall: (

a) in accordance with the plan, collate information and data provided by industry, government departments and agencies, amongst others; (

b) in accordance with the plan, report periodically on the ecosystemic and socio-economic environment of the Nunavut Settlement Area; and (

c) use the information collected under Sub-sections (

a) and (

b) to fulfill its existing responsibilities under

Article 11. [ 26 ] Canada admitted the following facts from paras 3-12, 17-18 and 23-31 of NTI’s pre-hearing brief. They concern the terms of the NLCA and the Implementation Agreement as fleshed out in Sewell’s examination for discovery. (

a) Canada admits that the NLCA created an ongoing obligation to establish a general monitoring plan. (

b) The Department of Indian Affairs and Northern Development (DIAND) was responsible for getting the general monitoring plan into operation. (

c) In addition to the obligation to establish a general monitoring plan, there was an ongoing obligation to direct and co-ordinate monitoring and data collection. The responsibility for carrying out this obligation was also assigned to DIAND. (

d) Part 2 of

Article 37 of the NLCA required the development of an implementation plan. The Implementation Plan was required, among other things, to establish timeframes for the completion of activities required to implement the obligations under the NLCA. (

e) The Implementation Plan was consolidated into the Implementation Contract that is attached as Exhibit “A” to the Kunuk affidavit. (

f) The activities required to implement

section 12.7.6 of the NLCA, and the time within which those activities were to be carried out, are set out in the Implementation Contract. (

g) The Implementation Contract established a 10-year "initial planning period" that started on the date of ratification of the NLCA, July 23, 1993, and ended on July 23, 2003. "initial planning period" means the period commencing on the date of ratification and expiring on the tenth anniversary of the date of ratification

Implementation Contract,

section 1.1 "date of ratification" has the same meaning as in the Nunavut Final Agreement Implementation Contract,

section 1.1 "date of ratification of the Agreement" means the date on which the ratification legislation comes into force NLCA,

section 1.1.1 (

h) Canada has refused to disclose whether DIAND received an increase in its departmental funding to develop a general monitoring plan and to co-ordinate monitoring and data collection. (

i) Canada acknowledges that the Inuit had a reasonable expectation that the Government would spend what was necessary to carry out the obligations in the NLCA. 4635. Q. Okay. Now under the Implementation Contract, as your Counsel has already indicated, the amounts of funding dedicated or allocated by the Federal Government to performance of its obligation under the Implementation Contract, those aren't disclosed in the contract, right? A. That's correct. 4636. Q.

So you'd agree with me, then, that the Inuit, they were not agreeing to any specific amount of money or ceiling amounts that the Government had to spend? A. The Federal Government. 4637. Q. Right? A. I agree. 4638. Q. So from the Inuit perspective, you'd agree, when they signed the Implementation Contract, the contract required the Government to actually carry out the responsibilities assigned to it, not to spend up to a certain cap or ceiling amount of money? A. That's correct. 4639. Q.

So that if, from the Inuit perspective, if it took more money to carry out some of the activities than the Government originally estimated, or allocated, it was a reasonable expectation on the part of the Inuit that the Government would spend what was necessary to actually perform the obligation? A. I would agree with that. (

j) Canada admits that the Business Case attached as exhibit “D” to the Kunuk affidavit was to be used to request funding from the Treasury Board of Canada. 5350. Q. Okay. A business case with no commitment to funding? A. That's correct. But a business case that will outline what the plan looks like and provide cost estimates so that it's able to be used as a budget request or a pitch for funding. 5351. Q. And just to follow up on that, Canada's document 67543. This is an e-mail from Mr. Beauchesne to a I. Gladstone in the Nunavut Government.

And he says that "This proposed business case, once it's developed, would then be used to request funding from Treasury Board, or to leverage funding from other sources". So is that what you were referring to? A. Let me find that. Yes, I see, the business case would be used to request funding from the Treasury Board, yes, that's what I was referring to. (

k) In August 2007, the Nunavut Regional Office of DIAND (NRO) informed NTI that it wished to undertake the collaborative development of a Business Case for Nunavut general monitoring. (

l) The Nunavut Planning Commission (NPC), the Government of Nunavut (GN), and NTI all agreed to participate on a Working Group on the Nunavut General Monitoring Plan (NGMP) set up by the NRO. (

m) The Business Case was completed in December 2008. It set out the components of a NGMP and described in detail how the monitoring plan would be established and how it would function over a five-year period from

2009/10 to 2013/14. It set out four options for structuring the financial resources necessary to implement the monitoring plan. The recommended option was Option C1 Implementation of NGMP with 'Reasonable' Dedicated Annual Funding. A detailed “NGMP Five-Year Workplan" was developed for Option C1. (

n) The cost of implementing the NGMP under the recommended option C1 is $11,307,500 over five years. The cost per year is: Year 1 Year 2 Year 3 Year 4 Year 5 $1,447,500 $2,440,400 $2,465,000 $2,615,000 $2,340,000 (

o) Following receipt of the Business Case in December 2008, all members of the Working Group on the NGMP accepted the recommendation that the NGMP should be funded in accordance with the recommended option C1. (

p) As of November 25, 2009, when Canada's representative was examined for discovery, there was still no funding for implementation of the NGMP. 5369. Q. And would I be correct that as of yet there is no funding to proceed with that? A. That's correct. They're pursuing approval of funding to implement the business case 5370. Q. Has a request for funding gone in? A. No 5371. Q. And why not? A. There had been attempts to attach it to various Cabinet submissions, because we had Cabinet submissions on related topics going forward.

I think we looked at a draft of a Nunavut devolution paper that had an NGMP proposal in it. That was not successful. I don't believe that MC went forward. Another MC was done and Minister Prentice was quite interested in northern regulatory improvement, and we saw a logical link for including NGMP in that. That Cabinet submission has not, to my knowledge, gone forward yet. The idea of putting it in a Cabinet submission is to, if we had a Cabinet submission going in a timely fashion to get Cabinet endorsement, which gives us added weight in going to Treasury Board seeking the funding.

We also had the alternative which we're looking at right now of going directly to Treasury Board without going to Cabinet, so all of that is in play at this moment. 5372. Q. And what is the funding required? A. The amount? 5373. Q. Yes? A. This is going to be an approximation, but something in the order of $11 million over a five year period. (

q) The Federal Budget released in March 2010, announced funding for the NGMP. Subsequently, the Director-General of the Implementation Branch of DIAND informed the members of the Nunavut Implementation Panel that a total of $11 million had been made available to the NRO to implement the general monitoring plan in accordance with the recommended funding option in the Business Case. IV. DISPUTED FACTS A. Timing of the development of the NGMP [ 27 ] Canada did not admit facts that flow from the

interpretation of some questions and answers in Sewell’s examination for discovery about the timing of the implementation of the general monitoring plan that appear in para 13 of the applicant’s pre-hearing brief. [ 28 ] The respondent does not dispute that the following questions and answers took place at the examination concerning when the plan was to be prepared. 4583. Q. Now looking at the Implementation Contract, would you agree with me that there's nothing in the contract to indicate that the establishment of the general monitoring plan was to be postponed beyond the initial 10 year planning period? A.

I would agree. 4588. Q. And you've agreed with me already that the Contract certainly did not contemplate that these were activities that would happen

after the initial 10 year period? A. I think if that was contemplated we would see that in the timing column. 4589. Q. Right. In fact, the timing column indicates that these activities would be carried out, for the most part, as soon as possible? A. Sorry, that's the words we see on the first four, yes, in the letters we see. 4590. Q. Well, in fairness, the numbers two, three, the second, third and fourth activities indicate that it's as soon as possible after the Nunavut Planning Commission has been established? A. That's correct, yes 4591. Q. The Nunavut Planning Commission was established in July of 1996? A.

I don't know that. 4592. Q. Are you aware that it was established during the initial planning period? A. Yes, I am. 4593. Q. So the timing, as contemplated under the Implementation Contract agreed to by the Government was that the general monitoring plan was to be developed as soon as possible after the Nunavut Planning Commission was established? A. I would agree with that, yes. 4594. Q. And I'm telling you that it was established, it's a historical fact that it was established in July of 1996.

You can confirm that, but the contract then seems to contemplate that the plan itself will be developed shortly after the establishment of the NPC? A. That's what the contract calls for, yes. 4595. Q, Right, And then the last two activities, numbers five and six, under the contract, dealing with data collection and co-ordination of the general monitoring, it was contemplated in the contract that that would happen as soon as the general monitoring plan was developed, right? A. That's correct. 4596. Q. And so you would agree with me that all of this was supposed to happen within the first 10 year period? A.

I would agree with that, yes. B. Other disputed facts from applicant’s pre-hearing brief [ 29 ] Para 14 of NTI’s Brief relied on the following questions and answers from the examination for discovery to support its allegation of fact that the NGMP had not been established by the time of Sewell’s examination in November 2009. 4641. Q. The plan is not in place? A. That's correct. 4642. Q. It's not been established? A. There is no plan in place today, no. 4643. Q. And so there's no actual monitoring taking place? A. Well, the --- 4644. Q. Under the aegis of the plan? A.

The plan, from my reading of the documents, is about co-ordinating of data and access to data. Departments all have the responsibility to gather data in carrying out their affairs. 4645. Q. All right. The departments may be collecting data, but it's not being done as part of a general monitoring plan that is in place? A. That's correct. 4646. Q. Okay. So to come back to my question, the obligations in the Agreement with respect to general monitoring and development of a plan, and the actual monitoring and data collection, to this point in time, that's not been accomplished? A.

As called for in the Agreement, no, it's not in place.

[ 30 ] Para 15 of NTI’s Brief relied on the following questions and answers from the examination for discovery to support its allegation of fact that the NPC was not responsible for the failure to establish the NGMP. 4994. Q. Mr. Sewell, we've been discussing the requirement under

Article 12.7.6 to develop a general monitoring plan. Are you aware of any instances or occasions where the Nunavut Planning Commission has failed or refused to co-operate with the Government in working on the plan and working on the development of the plan? A. No, I'm not aware of that. 5027. Q. All right. So if anything was going to get done in terms of getting the general monitoring plan developed and established and up and running, the ball was really in the Government's court? A. That's correct. 5028. Q. Not NPC's court? A.

That's correct. [ 31 ] Para 16 of NTI’s Brief relied on the following questions and answers from the examination for discovery to support its allegation of fact that Canada admitted it was foreseeable that funding would be required to carry out its obligations in

section 12.7.6 of the NLCA. 4620. Q. All right. Well, whether or not the activities required to implement the monitoring plan and get the data collection and monitoring activities up and running, whether or not those were actually costed out by the Federal implementation managers, you would agree with me that when the Implementation Contract itself was negotiated, it was certainly foreseeable that funding would be required to actually carry out the obligations in 12.7.6? A. I would agree with that, that's correct. 4621. Q.

Now we've discussed before in this examinations [sic] the difference between what the Government views as an incremental cost and an activity that's already within the scope of a department's existing programme activities? A. Yes. 4622. Q. Would you agree with me that, and certainly my understanding, based on what you've told me so far is that the activities required to carry out the obligations in 12.7.6, those would be incremental costs? A. The development and maintenance of a plan, and the co-ordination of data would be incremental costs, yes. 4623. Q.

So because those were not activities that were previously carried out by DIAND? A. Or any of the other departments, yes. [ 32 ] Para 19 of NTI’s Brief relied on the following questions and answers from the examination for discovery to support its allegation of fact that, notwithstanding the expectation that Canada would pay the cost of carrying out its obligations, DIAND in 2007 proposed to NTI and the Government of Nunavut (GN) in 2007 that they invest in a pilot project for the NGMP where DIAND would match the investments from the other parties up to $100,000. 5347. Q. And then point number two, Mr.

Nadler says that “In order to keep the thing going ,the NRO wants to develop a pilot or prototype”. And then he says that: The NRO is willing to give to NTI and the GN the opportunity to participate and that DIAND would match investments from the other parties up to $100,000. Now you would agree with me that the obligation under the Land Claim Agreement is an obligation that is solely on the Federal Government to establish the Nunavut general monitoring plan?

A. In collaboration with the NPC, yes. 5348. Q. Right. So there’s nothing in the Land claim Agreement that would require NTI to invest money in this to get it up and running? [ 33 ] Para 20 of NTI’s Brief relied on the following questions and answers from the examination for discovery to support its allegation of fact that, as of the date of the examination in November 2009, there were still no funds dedicated for the establishment of the NGMP or for the ongoing co-ordination of monitoring and data collection. 4647. Q.

And am I correct that there is no funding available at this point in time to actually establish and put into place the general monitoring plan and to get started on the co-ordination of monitoring and data collection? A. I believe that the plan has been developed in conjunction with the other parties and a pilot project is being undertaken based on available funding today, but there is not funding in place for full implementation of the plan. 4648. Q. Right. You spoke of the pilot, but, in fairness,

Article 12.7.6 doesn't call for a pilot plan, it calls for a general monitoring plan? A. That's correct. 4649. Q, Okay. And so then I think the answer to my question is in terms of the funding, there is not the funding today, as we sit here, to actually carry out the obligations in 12.7.6, correct? A.

That's correct. [ 34 ] Para 21 of NTI’s Brief relied on the following questions and answers from the examination for discovery to support its allegation of fact that Canada admitted that an effective monitoring system would be of benefit to the Inuit and that the Inuit have not received the benefit that was contemplated under the NLCA. 4597. Q. Now the type of general monitoring that is provided for in

Article 12.7.6 of the Agreement, would you agree with me that that sort of monitoring and these data collection activities, there's a purpose to that? A. I would agree with that. 4598. Q. Okay. And from your discussions with the champions up in the Nunavut Regional Office on the monitoring activities, is it your understanding that an effective monitoring programme would contribute to good decision making about land use activities and environmental protection? A. I would. 4599. Q.

Would you also agree with me that the residents of Nunavut have a legitimate interest in the decisions that affect the environment in Nunavut and land use in Nunavut? A. Yes. 4600. Q. Would you agree with me, therefore, that an effective monitoring system would be of benefit to Inuit in Nunavut because it would contribute to better decisions? A. Yes. 4601. Q. And I take it you would agree with me that up to the present time, because there is no general monitoring system in place, the Inuit have not had the benefit that was contemplated? A.

Not the benefit of a general monitoring plan, no. [ 35 ] Para 22 of NTI’s Brief relied on the following questions and answers from the examination for discovery to support its allegation of fact that in 2007, after the commencement of this action, the NRO of DIAND decided to develop a "Business Case" to describe the components and structure of a general monitoring plan and to estimate the cost of implementing the plan. 5344. Q. If we could look next at Canada’s document 068038 [00-01]? This is another email from Mr. Nadler to Mavis Dellert, it’s August 9th, 2007.

A. Yes, I have that. 5345 Q. And Mr. Nadler indicates that “ The GN is pushing to develop a Memorandum of Understanding that will involve a commitment and negotiation for funding”? A. Yes. 5346. Q. And that was, as he put it, hitting the wall because there was no funding available? A. That’s correct 5347. Q. And then point number two, Mr. Nadler says that “In order to keep the thing going, the NRO wants to develop a pilot or prototype”.

And then he says that: “The NRO is willing to give to NTI and the GN the opportunity to participate and that DIAND would match investments from the other parties up to $100,000.” Now you would agree with me that the obligation under the Land Claim Agreement is an obligation that is solely on the Federal Government to establish the Nunavut general monitoring plan? A. In collaboration with the NPC, yes. 5348. Q. Right. So there’s nothing in the Land claim Agreement that would require NTI to invest money in this to get it up and running? A. That’s correct. 5349. Q.

And in para three he says that “The NRO is proposing the development of a business case with no commitment to funding and could be used by all parties to scare up resources in the future. [ 36 ] Para 32 of NTI’s Brief relied on paras 9 (

a) to (

d) of Reinhart’s affidavit to support its allegation of fact that until the 2010 Federal Budget announcement of funding for the NGMP, the activities of the NRO in relation to the general monitoring plan were limited to making presentations to groups inside and outside the government about the potential benefits of the NGMP. [ 37 ] Para 33 of NTI’s brief relied on para 20 of Kunuk’s affidavit and paras 2 and 9(

e) of Reinhart’s affidavit to support its allegation of fact that the NRO of DIAND started using the funding announced in the 2010 Federal Budget to begin work on the implementation of the NGMP on or about April 2010. The job of NGMP manager was filled in May 2010, when Reinhart was assigned to the position. An NGMP Secretariat was set up within NRO.

The inaugural meeting took place in July 2010. [ 38 ] Para 34 of NTI’s Brief relied on the following questions and answers from the examination for discovery to support its allegation of fact that, as a result of its failure to develop a general monitoring plan by the end of the 10-year planning period in July 2003, Canada has realized significant savings. 4651. Q. And the costs to actually establish the plan and to operate on an ongoing basis, those are costs that have not been incurred to date? A. The costs that have been incurred to date would be developmental reports, the cost of workshops.

Those sorts of costs. 4652. Q. Right. But in terms of the actual costs entailed in establishing the plan and then actually co-ordinating and directing the monitoring and the data collection, those are costs that have not been incurred, or certainly fully incurred to date?

A. That’s correct. 4653. Q. So would you agree with me that the failure to develop and establish a general monitoring plan to date and to co-ordinate the actual monitoring and data collection activities, that’s resulted in a savings to the Government because it hasn’t had to spend the money? A. That would be correct. 4654. Q. And the longer the delay in actually establishing the plan and getting the monitoring going and the data collection, the greater the savings? A.

That would be logical. [ 39 ] Para 35 of NTI’s Brief alleged that by not fulfilling its obligation to implement the general monitoring plan by the end of the initial planning period, Canada realized savings from July 2003 until July 2008 of $11,307,500, which is the undisputed cost of establishing the general monitoring plan in the first five years of its life. In addition, Canada also realized savings from July 23, 2008 to April 2010, when it belatedly commenced implementation of the plan in accordance with the agreed budget contained in the Business Case.

The amount saved during this period is, at a minimum, $3,510,000—an additional year at the undisputed fifth year cost of $2,340,000 plus savings for a minimum of an additional half year of $1,170,000 (also based on the fifth year cost). The total amount saved by the Crown over a 6.5 year period is therefore at least $14,817,500. [ 40 ] Para 36 of NTI’s Brief relied on paras 9 (

e) to (

r) of Reinhart’s affidavit to support its allegation of fact that at the present time the NGMP Secretariat within the NRO is continuing to carry out the tasks identified to be carried out in the first year of the NGMP Workplan. Many, but not all, of the tasks for the first year have been completed. The NGMP remains a work in progress. V. ISSUES [ 41 ] I have divided my analysis of the arguments into five issues: (

a) What is the legal effect of the admissions made by Sewell in para 28 above? (

b) What are the other findings of fact from paras 29 to 40? (

c) Does Reinhart’s affidavit conflict with Kunuk’s affidavit on relevant facts? (

d) Do the admissions and other facts established by NTI leave any genuine issue for trial on the facts? (

e) If Canada breached

Article 12.7.6, are there genuine issues on questions of law on the remedy for the breach that should be decided on a

summary judgment application? (

f) If there are no genuine issues for trial, did Canada breach

Article 12.7.6 of the NLCA? (

g) If Canada breached

Article 12.7.6, what is the measure of damages? (

h) Pleading issues and Declaratory Remedy. A. What is the legal effect of the admissions made by Sewell in para 28 above? (i). Applicant’s argument [ 42 ] NTI argues that the questions and answers given in the transcript of the examination for discovery constitute clear and unequivocal admissions that the general monitoring plan was to be established within the 10-year initial planning period that ended on July 23, 2003.

The respondent also admits that data collection and co-ordination of monitoring were to start within the 10-year initial planning period. [ 43 ] On the timing admission in para 41 (a), NTI emphasized Sewell’s acknowledgement in questions 4563-4568 that he had spoken to the Nunavut Regional Director of DIAND - Michael Nadler, Bernie MacIssac - a champion in the Nunavut Regional Office, as well as Seth Reinhart, Manager of the Nunavut Regional Monitoring Plan to inform himself about the general monitoring issues. He

acknowledged he was sufficiently informed to answer questions on behalf of Canada. NTI submits that Canada’s understanding of when it was to carry its obligations under the Implementation Contract, to which it was a party, is not a matter of opinion. It is a fact. [ 44 ] NTI conceded that while Canada is bound by Sewell’s answers, they are not binding on the Court in adjudicating the issues. The reading in at a trial of an answer on an examination for discovery is an informal admission. It is not like a party standing up and admitting liability. An answer read in at trial is just part of the evidence that is subject to weighing and

interpretation by the trial judge. (ii). Respondent’s argument [ 45 ] Canada focused its argument on the alleged admission concerning Canada’s obligation to establish the general monitoring plan within the initial 10-year planning period. [ 46 ] Canada strongly disagrees with NTI’s

interpretation of Sewell’s answers in the excerpt from the transcript reproduced in para 28 above. It argues that Sewell’s answers did not constitute the admission that appears to come from the transcript. A close examination of the transcript indicates that Sewell is simply agreeing with an

interpretation placed on phrases in the Implementation Contract by NTI’s legal counsel. If it did amount to an admission, it was about an

interpretation of the Implementation Contract regarding timing for the development of the general monitoring plan and direction and coordination of general monitoring and data collection. Sewell’s agreement with an

interpretation proposed by NTI’s counsel is not an "admission of fact". [ 47 ] Canada argues that this "admission" is not a clear and unequivocal admission of fact as contemplated under Rule 181. Rather, it is a statement of law or mixed fact and law because Sewell was asked about an

interpretation of the provisions of the Implementation Contract. It is an opinion as opposed to a fact. That opinion cannot replace the legal

interpretation, analysis, and ultimate opinion of this Court. [ 48 ] Canada relies on Chitty on Contracts [Chitty], for the proposition that interpreting a contract in order to ascertain the nature of a party’s obligations is a question of law. Whether the actual performance measures up to that obligation is a question of mixed fact and law. In this case, it is a question of law to interpret the terms of the NLCA and the Implementation Contract to determine the nature of Canada’s obligation.

It is a question of mixed fact and law whether the actions of Canada in developing and implementing the general monitoring plan complied with that obligation. (iii). Applicant’s reply [ 49 ] One of the purposes of examinations for discovery is to obtain confirmation on the record of the opposing party’s case. The second purpose is to obtain admissions that either advance the examining party’s case or undermine the opposing party’s case.

NTI argues that Canada’s argument on the application was fundamentally inconsistent with those purposes and fundamentally undermines the purpose of having examinations for discovery. The answers given by a witness at an examination for discovery that are not helpful to the other party’s case have high probative value. It is for that reason the answers can be read in at trial and why they are accorded high probative value. Canada’s arguments amount to an attempt to impeach its own witness and it should not be permitted to retreat from its agreement that Sewell’s evidence bound Canada. (iv).

Analysis A.iv.1 Para 28 admission [ 50 ] As noted in The Art of Discovery , the rules of evidence are not applied as strictly to the conduct of an oral examination as they are to the evidence given at trial. This is because the purpose of discovery is not simply to obtain admissions that could constitute admissible trial evidence. Another significant purpose is to find out as much as possible about the other side’s case. That is why the examiner may ask questions on discovery that may not be read into the trial record.

White states at page 39: If the only purpose of discovery was to obtain admissions for use at trial, the same rules of evidence should be applied to discovery as are applied at trial. However, the law permits the examiner to find out more about the other side’s case than application of the strict rules of trial evidence would afford and accordingly certain aspects of the law of evidence. The specific modifications are with respect to hearsay, belief, and relevance and materiality.

[51] As White notes at page 29, the relaxation of the rules means that a corporate officer will often not have personal knowledge of allthe matters that are within the knowledge of the company. In order to properly answer the questions the officer is obliged to informhimself of those facts through whatever means are available from within the company and that are the proper subject of discovery. Ingiving answers based on such information, the officer is relating hearsay.

The degree to which the officer’s answers that are based onhearsay information and belief can be read into the record against the corporate party are a matter of complexity and confusion. [52] One example of this type of problem can be seen in Fullowka v Royal Oak Mines Inc., (NWT SC), [1997]NWTJ No 42, [1998] NWTR 32, where Vertes J. discussed the hearsay problem that arises when the corporate officer acknowledgesinformation in its possession from former employees. If the corporate representative accepts the information, it then becomes part of theevidence of that party.

The officer, however, may acknowledge that it is part of the corporate information but reject it. [53] The type of questions posed by counsel for NTI fall into the general category of what is known as a reliance question. Thesequestions seek answers about the other party’s factual position to enable it to know the case that has to be met and to avoid a surprise attrial. Sometimes the questions request the facts relied on by a party to support a pleading.

A more difficult issue is whether it is properfor a party to seek answers about the other party’s legal position. [54] The case law is divided on whether the examiner can ask questions about the party’s legal position. In Can-Air Services Ltd. vBritish Aviation Ins. Co. (1988), 1988 ABCA 341 , 91 AR 258, [1989] 1 WWR 750 [Can-Air], the Alberta Court of Appealindicated such questions are not proper.

However, in Six Nations v Canada (2000), (ON SCDC), 48 OR (3d) 377(QL), [2000] OJ No 1431 [Six Nations], the Ontario Court of Appeal declined to follow Can-Air, noting that the Alberta Rules ofProcedure were different from those in Ontario. Campbell J. for the Court stated at para 11: Canada has pleaded many issues of law or issues of mixed fact and law. This is perfectly appropriate in a case of this nature. Some ofthese issues are stated vaguely.

Canada takes the position that there is no mechanism under the Rules by which the plaintiff can compelCanada to confirm or clarify its legal position in respect of any issue of law prior to trial, that position is not consistent with the policyunderlying the Rules which is to encourage full and frank disclosure prior to trial so as to minimize costs and expedite the just resolutionof claims. Further, it is not an

interpretation of the Rules which is in accordance with their plain and ordinary meaning. [55] In Fullowka v Royal Oak Mines Ltd., 2001 NWTSC 76 , [2001] NWTJ No 83, Vertes J. declined to follow Can-Airbecause it interpreted the more restrictive Alberta Rules of Court. He adopted the approach taken in Six Nations because NorthwestTerritories Rule 251 was modeled on the Ontario Rules that were much broader and permitted this type of question. Other cases adoptingthe broader approach are Saskatchewan Trust Company (Liquidator of) v Coopers & Lybrand, 2001 SKQB 8, 204 Sask R 1; andMontana Band v.

Canada, (FC), [2000] 1 FC 267, [1999] FCJ No 1088 [Montana]. [56] I adopted the analysis of Vertes J. in Nunavut (Department of Community and Government Services) v Northern TransportationCompany Ltd., 2010 NUCJ 5 , [2010] NUCJ 5, [2010] Nu J No 1, because Nunavut has the same Rules of Court as theNorthwest Territories.

I am satisfied that it is proper in this jurisdiction to ask questions about a party’s legal position on matters in issueor on questions of mixed fact and law. [57] Sewell was produced as an officer of Canada under Rule 238(1) and, as noted in the transcript, counsel for the respondentacknowledged that his answers would bind Canada. Rule 251(2) required Sewell to inform himself before being examined. When heanswered the question he exercised some judgment that could be described as an opinion but he was in fact expressing the corporateposition.

As noted by Hugessen J. in Montana at para 20: It is nothing new to say that the border between fact and opinion, like that between fact and law, is easy to assert but hard to draw on theground. It is better to have the deponent answer any marginal questions and if the answer turn out to be simply the expression of apersonal point of view the Trial Judge can deal with the matter appropriately if necessary. [58] The questions put to Sewell sought answers to Canada’s understanding of the timing of its obligations under the ImplementationContract. The witness was asked if he agreed with a possible

interpretation of the contract and he answered that he agreed with theinterpretation suggested by the questioner. His answer expressed the corporate view at the time of the discovery. If it was incorrect orincomplete, Canada had the opportunity to correct it by using Rule 260 but chose not to do so. That Rule states:

(1) Where a party has been examined for discovery or a person has been examined for discovery on behalf of, in place of or in addition to the party and the party subsequently discovers that the answer to a question on the examination was incorrect or incomplete when made or is no longer correct and complete, the party shall forthwith provide the information in writing to every other party. [59] Furthermore, counsel for Canada did not object to the questions nor attempt to re-examine Sewell as permitted under Rule 259.Another option open to Canada was to attempt to have counsel answer the question for the witness as permitted under Rule 258. [60] Accordingly, I am satisfied that the questions were proper questions for an examination for discovery and Canada is bound bythe answers. [61] Counsel for Canada argues that the “admission” is not an admission of fact as required by Rule 181 but rather it is a statement oflaw or mixed fact and law that cannot replace the legal

interpretation, analysis and ultimate opinion of this Court. Since the admissionwas not an admission of fact it cannot found a judgment under Rule 181. Canada then provided an alternative

interpretation thatsupported its argument that it was not required to establish the general monitoring plan with the first ten-year initial planning period. [62] Canada’s argument raises an issue concerning the admissibility of discovery evidence at trial. As White notes at p. 40, everyjurisdiction with a rule similar to Ontario Rule 31.11 (1) does not permit discovery evidence to be used unless the evidence is “otherwiseadmissible”. The Nunavut equivalent is Rule 261 that states: 266.

(1) At the trial of an action, a party may read into evidence, as part of the party's case against a party adverse in interest, any part ofthe evidence given on an examination for discovery of the party adverse in interest or, unless the trial judge orders otherwise, a personexamined for discovery on behalf of, in place of or in addition to the party adverse in interest, if the evidence is otherwise admissible,whether the party or person has already given evidence or not. [63] As noted earlier, some of the discovery evidence of an officer is hearsay because he does not have personal knowledge of all ofthe information provided.

As held in Claiborne Industries Ltd. v National Bank of Canada (1989), (ON CA), 69 OR(2d) 65, 59 DLR (4th) 533, a corporation is bound by its representative’s hearsay answers on examination for discovery and these areadmissible at trial, unless it expressly protects itself by disclaimer. I am satisfied that Sewell’s admission is similarly admissible and thatI can consider it as part of the body of evidence relied on by NTI. While the admission certainly represents Canada’s corporate thinkingat the time of discovery, it does not prevent Canada from advancing an alternative argument in response to the application.

Asacknowledged by NTI, the proper legal

interpretation is a matter for this Court to determine after considering all of the evidence. A.iv.2 Analysis of Respondent’s argument on

interpretation of

article 12.7.6 and the Implementation Contract Canada’s argument [64] Although Sewell agreed at discovery that DIAND was required to establish the NGMP within the first 10-year planning period,Canada now argues that

Article 12.7.6 of the NLCA and the Implementation Contract do not specifically discuss the timing of Canada’sobligations with respect to the development and implementation of the NGMP. Canada pointed out that

Article 12.7.6 of the NLCA wasreproduced at page 12-7 in

Schedule 1 of the Implementation Contract and states in part: Government, in co-operation with the NPC, shall be responsible for developing a general monitoring plan and for directing andcoordinating general monitoring and data collection. [65] The use of these words indicates that the responsibility for the NGMP was not entirely Canada’s. Below these words there is the

statement DIAND is assigned “Management Responsibility”. However, below that on the page there is a requirement for “Participation/Liaison with NPC and appropriate government departments that would include NTI and the GN. [ 66 ] Canada then referred to bottom of the page where there are three columns with the headings “Activities”, “Responsibility” and “Timing”. On the fourth line the activity identified is “In co-operation with NPC, develop a general monitoring plan”, the responsibility is assigned to “DIAND” and the timing is described as “ASAP after NPC established”.

Canada argues that since NPC was established in 1996 it was obligated to establish the general monitoring plan ASAP after 1996. Canada’s

interpretation of ASAP after 1996 is that these words do not mean that it had to establish the monitoring plan within the first 10-year planning period. It builds on this

interpretation by arguing that it met its contractual obligations when it provided the funding in 2010 that resulted in the creation of the NGMP. [ 67 ] On the fifth and sixth lines on the same page, the activities identified were “Provide information and data collected by government to NPC for collating” and “In co-operation with NPC, direct and coordinate general monitoring and data collection”. DIAND was assigned responsibility and the work was to be done “in accordance with the general monitoring plan”.

Canada argues that these words do not necessarily mean that the work was to be started during the initial 10-year planning period and suggests it fulfilled its obligation when the NGMP began its first year of operation in 2010. [ 68 ] Canada argues that the trial judge should decide this question of law. In oral argument, Canada submitted that the “interplay between the Implementation Contract and the modern treaty itself is a novel legal issue that has not been decided by a Canadian court in the context for certain of the NLCA”.

Noting the comments of Kilpatrick J. in NTI Firearms on the importance of the NLCA to the rights and freedoms of Inuit, Canada argues that this Court needs a full trial record to determine the meaning of provisions of the NLCA. [ 69 ] While noting that this application does not involve “warring affidavit evidence” as was the case in NTI Firearms, Canada indicated that a judge would need to understand the interplay between the Implementation Contract and the NLCA. A partial

summary judgment could run into a problem later when the trial judge rules on similar issues on the

interpretation of other articles of the NLCA because there could be inconsistent decisions. [ 70 ] Finally, Canada argued that it anticipated calling “more fulsome evidence” at trial to talk about the “NGMP chronology that is discussed in the Business Case”.

NTI argument [ 71 ] NTI argues that this Court has all the relevant evidence and is in as good a position as the trial judge to decide the question of law. [ 72 ] NTI argues that if Canada wants to argue that it took significant steps between 1993 and 2008 in carrying out its obligations, the simple straightforward way to do so is to file an affidavit from a knowledgeable person setting out what they say was done and what funding was available.

The reason Canada did not file an affidavit to support their argument is because Sewell gave truthful and accurate answers under oath at his examination for discovery. [ 73 ] NTI argues that

section 37.1.1 of the Implementation Contract provides the context to understand the intentions of the parties about the

interpretation of these clauses. It starts off with the words “the following principles shall guide the implementation of the agreement and shall be reflected in the Implementation Plan”. Subparagraph (

d) specifies that the parties would identify multi-year planning periods and the implementation activities and the level of government implementation funding that would be provided during any planning period. Subsection (

c) states that timely and effective implementation of the Agreement is essential for the Inuit to benefit from the Agreement. [ 74 ] The content of the Implementation Plan was specified in

Article 37.2.1 of the NLCA.

Article 37.2.3 specified that the Implementation Plan would be consolidated into the Implementation Contract. The definition of the initial planning period in

Section 1.1 of the Implementation Contract is “means the period commencing on the date of ratification and expiring on the tenth anniversary of the date of ratification”. The

interpretation put forward by NTI is that “ASAP means at a minimum within the initial ten-year planning period as accepted by Sewell at the examination for discovery.” A.iv.3 Analysis

[75] Both parties acknowledge that the determination of the timing of Canada’s obligation is a question of law involving theinterpretation of

Article 12.7.6 and

Schedule 1 of the Implementation Contract. They disagree on the legal effect of Sewell’s admissionsin determining the question of law. [76] I have ruled above that the admissions are admissible evidence that I may consider in determining the question of law. [77] I am satisfied that I am in as good a position as the trial judge to decide this point of law. Canada’s vague reference to the needfor contextual evidence at trial to interpret a modern land claim does not satisfy its obligation to put its best foot forward and to providespecific facts to show there is a genuine issue for trial under Rule 276.

In response to questioning from the court about what additionalevidence Canada might call at trial on this issue, Canada responded that it intended to call other witnesses who would expand on thedevelopment of the business case. There were no specifics given about any additional contextual evidence that would be called to helpthe Court interpret

Article 12.7.6 and the Implementation Contract. [78] In NTI Firearms, Kilpatrick J. held that contextual evidence was essential in interpreting a treaty particularly where there wereconflicting affidavits. In that case, Canada relied on Eastmain Band v Canada (Federal Administrator), (FCA),[1993] 3 CNLR 55, 99 DLR (4th) 16, to argue that context is less important when interpreting a modern land claim agreement.

In thiscase, there are no real conflicts in the affidavits as discussed in the next issue. [79] The interpretative exercise in determining Canada’s obligations under the Implementation Contract is to decide the meaning of“ASAP after NPC established”. Both parties agree and it is a historical fact that the NPC was established and in operation in 1996. [80] In King’s Old Country Ltd. v Liquid Carbolic Can. Corp.

Ltd., (MB KB), [1942] 2 WWR 603, Dysant J. heldthat “to do a thing ‘as soon as possible’” means to do it within a reasonable time, with an understanding to do it within the shortestpossible time. [81] The concept of reasonableness is also required when assessing the conduct of the promisor. As stated by Waddams : The principal function of the law of contracts is to protect reasonable expectations engendered by promises. It follows that the law is notso much concerned to carry out the will of the promisor as to protect the expectation of the promisee.

This in not, however, to say that thewill of the promisor is irrelevant. Every definition of contract, whether based on agreement or on promise, includes a consensualelement. But the test of whether a promise is made, or of whether assent is manifested to a bargain, does not and should not depend on anenquiry into the actual state of mind of the promisor, but on how the promisor’s conduct would strike a reasonable person in the positionof the promisee. [82] Fridman notes that where no particular time is specified for the performance of obligations, they must be performed within areasonable time.

What is a reasonable time is a question of fact for the judge to decide. [83] I am satisfied that by any objective standard “as soon as possible” in the context of the above terms from the ImplementationContract meant within the end of the first ten-year planning period. Since the NPC was not established until 1996, Canada had sevenyears to create the monitoring plan and, as Sewell admitted, the parties expected it to be in place at the end of the first planning period. B.

What are the other findings of fact from paras 29 to 40 of the judgment, as described above? [84] Although Canada did not admit the facts alleged in these paras it only took issue in argument with paras 34 and 38-39 in argumenton the calculation of damages. I will leave discussion of whether these admissions were clear and unequivocal to the damages issue. [85] Accordingly I find the factual allegations made by NTI in paras 29, 30, 31, 32, 33, 35, 36, 37 and 40 have been established by theadmissions or the evidence in the affidavits.

C. Does Reinhart’s affidavit conflict with Kunuk’s affidavit on material facts? (i). NTI’s argument [ 86 ] NTI argues that the Kunuk and Reinhart affidavits do not conflict on the material facts and, as a result, there is no genuine issue of fact that has to be determined at a trial. [ 87 ] The Reinhart affidavit was primarily focused on the respondent’s actions from 2007 to the present that were also described in the Kunuk affidavit. The alleged conflict in the affidavits concerns the actions of the respondent during the first ten-year planning period.

However, Reinhart’s discovery evidence demonstrates that there is no material conflict in the affidavits about the respondent’s failure to establish and implement the NGMP during the first ten-year planning period. (ii).

Canada’s argument [ 88 ] The respondent argues that it took significant initiatives during the first ten-year planning period as indicated in the NGMP chronology attached as Appendix “A” to the NGMP Business Case that was attached as exhibit “D” of Kunuk’s affidavit pages 3 and 4 of 116. [ 89 ] In oral argument, Canada’s counsel directed the Court to a number of initiatives where Canada sponsored and spent considerable sums of money during the first ten-year planning period. These included the West Kitikmeot pilot project and the technical workshop that took place in Yellowknife on April 21-22, 1998.

Canada argues these facts conflict with the allegations in the Kunuk affidavit that Canada took no steps to establish and implement the NGMP and create a genuine issue of fact that should be determined at trial. [ 90 ] Canada also argues that there were numerous meetings and discussions with NTI and the NPC during the first ten-year planning period concerning the conceptual framework for the NGMP. Until these issues were fleshed out, Canada was unable to proceed because it required the co-operation of these other parties. (iii).

Analysis [ 91 ] Canada argues that, unlike the respondents in Papaschase or Ootoova Estate, it has adduced some evidence to show there is a genuine issue of material fact on the matter of the development and implementation of the NGMP during the first ten-year planning period. However, Sewell’s discovery evidence removed the apparent conflicts and established that there is no genuine issue of material fact on these very material facts. [ 92 ] Reinhart’s affidavit was primarily directed at establishing what Canada accomplished in developing the Business Case and the establishment of the monitoring program in 2010.

However, para 4 included some information about events that occurred during the first ten-year planning period. He stated: A selected chronology of the substantive initiatives respecting

Article 12.7.6 of the Nunavut Land Claims Agreement (NLCA) is attached as Appendix “A” to the NGMP Business Case NGMP Business Case (NGMP Chronology) which is located in Exhibit “D” to the Affidavit of David Kunuk, Can-078860, pages 3 and 4 of 116. The NGMP chronology includes a description of presentations, discussion papers, AANDC correspondence and AANDC sponsored workshops on NGMP over the period from 1993 to December 2008.

I am informed through my discussions with Bernie MacIsaac, Director of Operations in the NRO, and by my review of the HGMP Chronology and do verily believe that key research and exploration of monitoring plans in other jurisdictions, receipt and review of discussion papers regarding NGMP, and presentations by the NRO’s internal working group on NGMP to the GN, NTI and the NPC in October 2006. [ 93 ] Canada argues that these actions demonstrate that it began work on the plan in the first ten-year planning period but did not complete it until 2010 when the NGMP was in place.

Canada’s counsel spent a considerable amount of time in oral argument taking the Court through exhibits to Reinhart’s affidavit to demonstrate Canada’s level of activity.

[ 94 ] She described these activities as “periods of engagement and discussion about what the model of NGMP might look like”. She referred to the conceptual design workshop in April 1997, noting the consultant was hired by NTI and that NTI supervised the administration of the contract. While Canada did not pursue this activity it provided the funding and therefore takes credit for participating.

Canada’s counsel went on to state that Canada participated in many of these projects by either funding them or conducting pilot projects. [ 95 ] For example, Canada funded a technical workshop held in Yellowknife on April 21-22, 1998, and a five-year West Kitikmeot pilot project that ran between 1996 and 2001.

Canada relies on these facts to argue that it may have been guilty of delayed performance but was not guilty of completely failing to perform within the first ten-year planning period. [ 96 ] At first glance, para 4 of Reinhart’s affidavit appears to conflict with Sewell’s admissions at discovery as set out in para 29 above and reproduced below: 4641. Q. The plan is not in place? A. That's correct. 4642. Q. It's not been established? A. There is no plan in place today, no. 4643. Q. And so there's no actual monitoring taking place? A. Well, the --- 4644. Q. Under the aegis of the plan? A.

The plan, from my reading of the documents, is about co-ordinating of data and access to data. Departments all have the responsibility to gather data in carrying out their affairs. 4645. Q. All right. The departments may be collecting data, but it's not being done as part of a general monitoring plan that is in place? A. That's correct. 4646. Q. Okay. So to come back to my question, the obligations in the Agreement with respect to general monitoring and development of a plan, and the actual monitoring and data collection, to this point in time, that's not been accomplished? A.

As called for in the Agreement, no, it's not in place. [ 97 ] However, in response to Canada’s argument, NTI’s counsel referred to other parts of the discovery where Sewell clearly and unequivocally admitted that these “periods of engagement” did not satisfy Canada’s obligation to create and implement the NGMP within the first 10-year planning period. [ 98 ] NTI relied on the following question and answer from Sewell’s examination for discovery to prove that the West Kitikmeot

monitoring program did not satisfy Canada’s obligation. 4867 Q. And you’re not suggesting that this West Kitmeot monitoring program represented satisfaction of the obligation to develop and implement a general monitoring plan? A. No. [ 99 ] Similarly, Canada acknowledged that the technical workshop in Yellowknife on April 21-22, 1998, was not part of the development of the NGMP from the following questions and answers from Sewell’s examination for discovery. 4869 Q.

Now we just looked at the discussion paper for the technical workshop, and this document we’ve just called up is, in fact, the final report of that technical workshop held on April 21-22 1998 in Yellowknife. Do you see that? A. I see that, yes. 4870 Q. Okay. It looks like Geo-North had a contract to prepare the discussion paper and be the rapporteur on the workshop? A. That would be a common practice, yes. 4871 Q. Is Geo-North, is that Mr. O’Connell’s consulting company? A. I’m not sure, I’ve seen his name in some of the documents, but I’m not certain. 4872 Q.

Now if you could look, please, at page 10 of the electronic document? A. Is this page two? 4873 Q. Yes it should be Appendix “A”? A. Yes I have Appendix “A”,” Presentation on the Process to this Point? 4874 Q. Yes, and you’ll see the name there Jon Pierce. I believe Mr. Pierce was the executive director of the Nunavut Planning Commission at this point in time? A. I believe so yes. 4875 Q. And in the third para the conference report states, and I quote “Jon explained that neither DIAND nor NPC were sufficiently funded to carry out an ongoing and comprehensive NGMP.

Do you agree that’s an accurate statement of the funding situation as at that time in April ’98. A. I think so, yes.

5071 Q. Because up to this point of time, by the time you come in as Regional Director, it’s fair to say, isn’t it that there hasn’t even really been enough funding over the years to develop the vision or the plan of what this is really supposed to be all about, it’s really what we see as just sporadic workshops and consultant’s reports? A. And I think that from the way I reviewed the documents that it seemed to me that part of the problem was there was such a divergence of viewpoints as to what NGMP meant, that I think there was a great deal of struggle to come to terms with what it was all about.

And so I think it’s both finding resources, but also seeking of clarity and an agreement among the parties as to what NGMP means. 5072 Q.Okay. But you’d agree with me that up to this point in time, there had not been enough time attention and money devoted to obtain that clarity? A. I think it would be clear that the efforts seemed to be sporadic on that matter. [ 100 ] Sewell was asked about NPC’s cooperation with Canada in the development of the NGMP.

As indicated in the questions and answers set out below, he accepted on behalf of Canada that he knew of no instances where the NPC failed to co-operate with Canada and that Canada was responsible for the creation and implementation of the NGMP. 4994. Q. Mr. Sewell, we've been discussing the requirement under

Article 12.7.6 to develop a general monitoring plan. Are you aware of any instances or occasions where the Nunavut Planning Commission has failed or refused to co-operate with the Government in working on the plan and working on the development of the plan? A. No, I'm not aware of that. 5027. Q. All right. So if anything was going to get done in terms of getting the general monitoring plan developed and established and up and running, the ball was really in the Government's court? A. That's correct. 5028. Q. Not NPC's court? A.

That's correct. [ 101 ] Sewell was also asked about whether there was any lack of collaboration by NTI in helping to develop the NGMP. As set out below, he clearly removed any doubts that NTI was responsible for the failure to create and implement the NGMP in the first ten-year planning period. 4916. Q. But you’d agree with me that the money that was available in the first 10 years of the Implementation Contract had not, apparently been sufficient to get the plan designed? A. I don’t know that. 4917. Q.

So is it your position that the failure to develop the general monitoring plan within the first 10 year period, that wasn’t attributable to lack of funding, it was just attributable to inaction? A. I don’t believe it was an absence of money. I believe what we see is various attempts to try to understand what that clause means. For, instance, the title of this paper is “Nunavut General Monitoring Programme”, and the Land Claim Agreement calls for a Nunavut general

monitoring plan. 4918. Q. But all those attempts and all those efforts were ultimately unsuccessful, right? A. To this point, yes. 4919. Q. And you’re not laying any of the blame for this at the feet of NTI? A. No. 4920. Q. Or the NPC? A. No. [ 102 ] I am satisfied that the Kunuk and Reinhart affidavits do not conflict on material facts. D.

Do the admissions and other facts established by NTI leave any genuine issue for trial on the facts? [ 103 ] In response to my questions during oral argument, counsel for Canada indicated she intended to call “more fulsome evidence” at trial in relation to these “periods of engagement”. However, she was unable to provide any particulars other than those discussed above about the pilot projects. [ 104 ] I am satisfied that all the material evidence is before me.

Canada put its best foot forward in the fourth para of Reinhart’s affidavit and it does not disclose any genuine issue of fact that has to be determined at a trial. In particular, there is no genuine issue for trial as to whether Canada carried out its obligations within the first 10-year planning period. [ 105 ] As a result of the admissions by the Crown in its pleadings, pre-trial brief and the other admissions established in Sewell’s examination for discovery as analyzed above, I am satisfied that NTI has proved the following facts: i. The NLCA is an enforceable contract between the Inuit and Canada; ii.

Canada had an obligation under

Article 12.7.6 of the NLCA to develop a general monitoring plan and to carry out monitoring and data collection under the plan; iii. The plan was to be developed and monitoring was to be underway within the 10-year planning period that ended on July 23, 2003; iv. The plan was not developed within the initial 10-year planning period; v. During the first 10-year planning period there were only minimal and sporadic efforts by Canada to develop a general monitoring plan in compliance with

Article 12.7.6 of the NLCA;

vi. It was only after NTI commenced this action that Canada initiated a sustained effort toward developing a general monitoringplan. In December 2008, Canada completed a Business Case that set out a detailed plan for developing and implementing a generalmonitoring plan but Canada did not proceed with its implementation on the ground that funding was unavailable. vii. Both Canada and NTI accepted the recommendation in the Business Case that the funding required to implement the generalmonitoring plan over five years was $11,307,000; viii.

Notwithstanding the acceptance of the work plan and the cost estimates in the Business Case, Canada did not make any fundingavailable to proceed with implementation of the general monitoring plan; ix. DIAND used the Business Case to make a “pitch for funding” to the Treasury Board; x. Funding for the implementation of the general monitoring plan was announced in the Federal Budget in March 2010, and afterthat date $11,307,000 was made available to the NRO of DIAND for the implementation and operation of the general monitoring plan; xi.

The plan approved spending of $1,447,500 in the first year, $2,440,400 in the second year, $2,465,000 in the third year,$2,615,000 in the fourth year and $2,340,000 in the fifth year; xii. The Inuit had a reasonable expectation that Canada would spend what was necessary to perform its obligations under the NLCA; E. If Canada breached

Article 12.7.6 are there genuine issues on questions of law on the remedy for the breach that should be decided ona

summary judgment application? (i). NTI’s argument [106] NTI argues that Canada’s breach of contract was also a breach of a fidicuary duty as discussed in Alberta v Elder AdvocatesSociety of Alberta, 2011 SCC 24, [2011] 2 SCR 261 [Elder]. In either case, the remedy should be consistent with the over-archingprinciple that the Crown must act honourably in dealing with aboriginal peoples as enunciated in Beckman v Little Salmon/CarmacksFirst Nation, 2010 SCC 53, [2010] 3 SCR 103 [Little Salmon]; and Haida Nation v B.C. (Minister of Forests), 2004 SCC 73, [2004] 3SCR 511 [Haida].

This principle is firmly established in Canadian law and includes implementing land claims agreements in a mannerthat upholds the honour of the Crown. [107] As pronounced by the Supreme Court of Canada in Little Salmon, the honour of the Crown is not empty rhetoric. The courtobserved that the honour of the Crown has become an “important anchor in this area of the law” and has “been confirmed in its status asa constitutional principle”.

The court also clarified that the principle applies to modern land claim agreements. [108] As stated at para 41 in Haida, quoting R v Badger, (SCC), [1996] 1 SCR 771, 133 DLR (4th), "[i]t is alwaysassumed that the crown intends to fulfill its promises”. [109] Relying on Elder, NTI argues the relationship between Canada and aboriginals is trust-like rather than adversarial. In Haida theCourt recognized that the honour of the Crown gives rise to different duties in different circumstances.

As stated by McLaughlin J.,where the Crown has assumed discretionary control over specific aboriginal interests, the honour of the Crown gives rise to a fiduciaryduty. The content of the fiduciary duty may vary but the duty’s fulfillment requires that the Crown act with reference to the aboriginalgroup’s best interests in exercising discretionary control over the specific aboriginal interest at stake.

[110] In most contexts, governments do not have a fiduciary relationship with individuals or groups in society because the nature ofgovernment is such that governments do not undertake to act in the best interests of a beneficiary. Such an undertaking is a necessaryrequirement for the existence of a fiduciary relationship.

However, with respect to aboriginal peoples, the necessary undertaking is met“…by clear governmental commitments from the Royal Proclamation of 1763 to the Constitution Act, 1982 and considerations akin tothose found in the private sphere”. [111] As held in Wewaykum Indian Band v Canada, 2002 SCC 79, [2002] 4 SCR 245 [Wewaykum], in order to determine whether aspecific obligation of the Crown to an aboriginal group also gives rise to fiduciary duties, a court must assess whether the Crown hasunilateral control in relation to a “cognizable aboriginal interest” that can be exercised in a way that affects the legal or practical interestsof the aboriginal group.

Cognizable aboriginal interests sufficient to ground the Crown’s fiduciary obligation to an aboriginal group arenot limited to aboriginal interests in land. [112] In the case at bar, the Inuit of Nunavut surrendered their aboriginal title, rights and interests to the settlement area. Theiraboriginal title included the ability to make decisions about the uses to which the land could be put. As noted by Lamer J. at para 115 inDelgamuukw v British Columbia, (SCC), [1997] 3 SCR 1010, 153 DLR (4th) 193 [Delgamuukw], aboriginal title isheld communally.

It is a collective right to land held by all members of an aboriginal nation. “Decisions with respect to that land are alsomade by that community.” [113] In return for the surrender by the Inuit of this aboriginal interest as part of their surrender of aboriginal

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