In Tłįcho˛ Government v. Canada (Attorney General), 2015 NWTSC 9, the Northwest Territories Supreme Court granted the Tłįcho˛ First Nation interlocutory injunctive relief, thus delaying the Government of Canada from enacting major structural changes to the resource management system in the Mackenzie River Valley.
The Government of Canada recently passed legislation to amend the Mackenzie Valley Resource Management Act (MVRMA). This was done through the Northwest Territories Devolution Act (“Devolution Act”), which received Royal Assent on March 25, 2014.
The MVRMA currently allows for four land and water boards, with each board exercising jurisdiction over portions of the Mackenzie River Valley. These amendments to the MVRMA, once in force, will amalgamate the four boards into a single management board for the Mackenzie Valley.
At issue in this action is the Tłįcho˛’s Wek’èezhìi Land and Water Board (the “WLWB”). This board has jurisdiction over the Wek’èezhìi Management Area, and was established to fulfill the Land Claims and Self-Government Agreement Among the Tłįcho˛ and the Government of the Northwest Territories and the Government of Canada (the “Tłįcho˛ Agreement”). This treaty is a modern treaty protected through section 35 of the Constitution Act, 1982.
The WLWB consists of four members and a chairperson, and two of the four members are appointed by the Tłįcho˛. However, if the amending provisions are permitted, the WLWB will cease to exist, and the Tłįcho˛ will only have the authority to appoint a single member out of the new ten member board that will manage the entire Mackenzie Valley.
The Court found that the Tłįcho˛ were entitled to injunctive relief because they had successfully established that:
- there was a serious issue to be tried;
- it would suffer irreparable harm should it not obtain the interlocutory relief; and
- the balance of convenience and public interest favoured the relief.
Further, the Court held that in order for the protection of constitutional rights to be meaningful, the courts must have the ability to ensure the enforcement of those rights. As such, it would be harmful if injunctive relief was not available to courts as against the Crown.
In reaching its decision the Court found that although the federal government underwent a consultation process in advance of the amendments, irreparable harm would be done if the consultation was not conducted according to the Tłįcho˛ Agreement and if the Tłįcho˛ were subsequently restricted to the more limited role under the new management structure.
However, it is notable that the Court did not prevent the Governor-in-Council from promulgating an Order-in-Council bringing the amendments into force, as this power was granted by Parliament. Instead, the provision in the Devolution Act that empowered the Governor-in-Council to bring the controversial amendments into force was suspended.
As a result of the decision, until a final determination is made in this action, the status quo will remain in the management and governance of the Mackenzie River Valley under all four existing boards, not just the WLWB.
The decision is important as it raises the spectre of regulatory uncertainty in an area that is evolving quickly. Further, the inability of government and project proponents to know who will consider and potentially approve projects will make planning difficult for the time being.