IQALUIT
The Qikiqtani Inuit Association (QIA) says Baffinland Iron Mines Corporation, the owner of the Mary River Project, owes it $6.25 million. Baffinland disagrees.

Renowned indigenous-rights lawyer and former judge Thomas Berger, now 83 and showing no signs of stopping his advocacy role, will represent the regional Inuit organization in an arbitration process initiated by QIA in an attempt to obtain the $6.25 million it alleges it's owed.

"Arbitration should be the last resort, and that's clearly outlined in the IIBA (Inuit Impact Benefit Agreement). We've tried going through the proper steps but on these two particular points, there's been letter writing, meetings with the president. But it didn't get resolved there so, unfortunately, we had to go there," QIA president PJ Akeeagok told Nunavut News/North.

The "two particular points" to be settled by arbitration Akeeagok refers to involve $6,250,000 plus interest in royalty payments allegedly owed by Baffinland as of June 30, and the defining concept of "commercial production" as noted in the benefit agreement and on which those payments hinge.

In a nutshell, the QIA has requested the arbitration panel interpret Baffinland's financial payment obligations, including a request to calculate amounts owed and make an order for the payment to be made to QIA.

Eager to get a positive outcome

"QIA is aware that the Mary River Project has experienced financial pressures, but QIA negotiated substantial financial participation payments in the IIBA as compensation for the impact to Inuit of mining activities on Inuit-owned lands. As such it is imperative to QIA that the objectives and intent of all IIBA provisions be complied with to the greatest extent possible," said Akeeagok.

"We are very eager to get a positive outcome. We're definitely stoked to have Mr. Berger representing the Inuit of this region throughout the process."

The regional Inuit organization and Baffinland arrived at an in impact benefit agreement regarding the Mary River Project in September 2013. In that agreement there are provisions for royalty payment from the company to the organization. The requirement for an Inuit Impact Benefit Agreement is set out in the Nunavut Land Claims Agreement.

Berger is familiar with that agreement. In 2005 the federal government appointed him as conciliator in a dispute between Nunavut Tunngavik Inc. (NTI), the Government of Canada and the Government of Nunavut. NTI alleged the federal government at the time was guilty of 16 breaches regarding the land claims agreement, including the final one, "consent to use the arbitration process provided for in the agreement to resolve funding and other issues relating to the implementation of the agreement has been unreasonably withheld."

That dispute, which eventually became a 10-year, $1-billion lawsuit, was resolved through negotiations in 2015.

"The process is very open in terms of who we would want to select as our key arbitrator representing Inuit. It's definitely something we didn't take lightly," said Akeeagok, adding the Inuit association looked at a pool of qualified individuals.

"Obviously Mr. Berger has an extensive background with his involvement throughout aboriginal rights at the national level. We're just very honoured that he accepted the role of QIA arbitrator and that our position will be fought for in terms of the two very specific things that we put forth to the arbitration."

Baffinland, meanwhile, says the Inuit organization's Sept. 6 news release, informing the public and media of its position regarding the arbitration, contains inaccuracies.

"Baffinland and the QIA are currently engaged in a formal arbitration process under Article 21 of the IIBA. Baffinland remains committed to meeting its obligations under the IIBA and respects the QIA's commitment to transparency to its members. However, we are not prepared to negotiate in the press. Baffinland will be responding to factual inaccuracies in QIA's media release through the arbitration process," stated Baffinland vice-president of sustainable development Todd Burlingame in an e-mail to Nunavut News/North.

"Sorry we can't get into the details, but we feel it is important to let the panel do their job without distraction."

Akeeagok agrees it's an issue involving the interpretation of the Inuit Impact Benefit Agreement.

"But obviously it's a lot of money. We've been working extremely hard to make sure that provision and other provision in the IIBA are implemented," he said.

Berger will represent the QIA in the arbitration process, while Jim McCartney, of McCartney ADR Inc., will represent Baffinland. On his website, McCartney is said to have "mediated or arbitrated more than 900 disputes involving commercial, industrial, public sector and residential construction, architectural services, franchise agreements, fatalities, vehicle accidents, employment, corporate dissolution, debt, shareholder agreements, trusts, tenancy, disability, insurance, industrial land sales, government contracts, fires, pipelines, petroleum versus coal exploration & development rights, environmental monitoring agreements and other matters."

According to the arbitration process, Berger and McCartney have selected Murray Smith to act as chairperson of the three-person arbitration panel. Smith, in turn, is a barrister practicing out of arbitration chambers in Vancouver, whose practice is confined to commercial arbitration cases and has an international reputation.

The high-profile arbitration hearing is set to take place in Vancouver Oct. 25 and 26.

Akeeagok plans to attend. However, QIA has asked that the hearings be video linked and/or recorded to ensure that all proceedings, orders and decisions will be made available for Inuit, said Akeeagok.

"It goes right down to our mandate of being transparent and open. We understand it will be very technical but Inuit have a right to that information."

He adds the $6 million-plus funds QIA alleges Baffinland owes it are not earmarked for anything at this point. The Inuit organization is currently working on a resource revenue policy.

QIA hopes the matter will be settled by Dec. 24.

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