Tłı̨chǫ Government Secures Court Injunction Against Canada’s Change to the Mackenzie Valley Resource Management Act
Wek’èezhìi Land and Water Board and the Land and Water Co-Management Regime in the Northwest Territories Protected
March 1, 2015
For Immediate Release
BEHCHOKǫ̀, NT – The NWT Supreme Court has granted the Tłı̨chǫ Government an injunction stopping Canada from implementing its amendments to the Mackenzie Valley Resource Management Act (“MVRMA”). The MVRMA amendments sought to dismantle the successful and long-standing system of regional land and water boards throughout the Mackenzie Valley.
This unique co-management system in the NWT flows from the modern day land claims agreements that were entered into with the Tłı̨chǫ Government and other Aboriginal groups. The injunction protects the regional board in the Tłı̨chǫ management area―the Wek’èezhìi Land and Water Board―while the Tłı̨chǫ Government’s lawsuit against Canada’s changes to the MVRMA proceeds. The injunction also preserves the Gwich’in and Sahtu regional boards.
“This decision is a huge win for the Tłı̨chǫ and for all of the Aboriginal peoples in the NWT. The court recognized the potentially disastrous effects of Canada’s actions, and exercised its jurisdiction to protect our constitutionally-protected rights as set out in the Tłı̨chǫ Agreement while our lawsuit proceeds,” said Tłı̨chǫ Grand Chief Eddie Erasmus.
Grand Chief Eddie Erasmus added, “The court’s statement is clear: our modern day treaty and the promises within it cannot simply be ignored by Canada. This injunction ensures Tłı̨chǫ will be able to continue to protect Wek’èezhìi and play our constitutionally-protected role in water and land management in our territory. We could not be happier with the ruling.”
In her reasons for judgment, Justice Karan Shaner held that Tłı̨chǫ Government’s lawsuit raises “a serious constitutional issue to be tried” and that Canada’s claim that its actions are constitutional “is far from a foregone conclusion.” The court explained that, “the Tłı̨chǫ Government will suffer irreparable harm should injunctive relief not be granted” and that the Tłı̨chǫ lawsuit “raised a reasonable possibility that Canada has overstepped the bounds of what it is permitted to do under the Tłı̨chǫ Agreement”. Justice Shaner concluded by finding that granting the injunction sought by the Tłı̨chǫ Government was “most certainly in the public interest.” A copy of the court’s decision is available at www.tlicho.ca.
This injunction was a critical step in the lawsuit that was filed by the Tłı̨chǫ Government in May 2014 following the passage of Canada’s changes to the MVRMA. If implemented, Canada’s MVRMA changes would almost eliminate the Tłı̨chǫ role in the protection and management of Wek’èezhìi, which lies in the heart of Tłı̨chǫ traditional territory and is identified as the Tłı̨chǫ management area under the Tłı̨chǫ Agreement. The lawsuit seeks to stop Canada’s creation of a “superboard” and elimination the Wek’èezhìi Land and Water Board.
Tłı̨chǫ Grand Chief Erasmus concluded, “We are optimistic that Canada will read this decision and recognize that we must begin to work together to find solutions that work for all treaty partners. The days of unilateral action by Ottawa are over. Our door is always open to respectful negotiations and finding mutually beneficial solutions.”
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Federal attempts to reduce Tlicho control of their land temporarily thwarted by Gloria Galloway, March 2, 2015, The Globe and Mail
Dene people in the Northwest Territories have temporarily thwarted federal attempts to reduce their control over their lands and waters in a case that is being heralded as a recognition of modern-day land-claims agreements.
The decision by the Supreme Court of the Northwest Territories says courts can prevent the federal Parliament from unilaterally altering deals with Canada’s aboriginal people that are protected by Canada’s Constitution.
Justice Karan Shaner granted an injunction to the Tlicho late last week that stops [Harper] from disbanding a regional land-and-water board created as part of a 13-year-old land-claim agreement until the resolution of a lawsuit brought by the Tlicho government to prevent the board’s elimination.
“The court recognized the potentially disastrous effects of Canada’s actions and exercised its jurisdiction to protect our constitutionally protected rights as set out in the Tlicho Agreement while our lawsuit proceeds,” Tlicho Grand Chief Eddie Erasmus said in a statement.
The Tlicho Agreement, which was negotiated over the course of a decade and is protected by the Constitution, created the Wek’èezhìi Land and Water Board to govern the use of an area of Tlicho territory that is twice the size of New Brunswick. The agreement says the Tlicho have the right to appoint or nominate 50 per cent of the board’s members.
But, last year, as part of its efforts to give the Northwest Territories control over its natural resources, the [Harper] government amended the Mackenzie Valley Resource Management Act to replace regional land-and-water boards with a larger 11-member board to which the Tlicho could appoint just one member.
The government says it consulted with the Tlicho about its plan. The Tlicho say the government’s decision was made before it even approached native leadership and they went to court to stop their board from being disbanded.
Cases involving aboriginal issues and constitutional affairs can take a long time to be decided and the [Harper] government planned to implement the changes on April 1. So the Tlicho asked for a temporary injunction to keep the smaller board in place until the case can be resolved.
During the court hearings on the injunction, [Harper] government lawyers told Justice Shaner she did not have jurisdiction to make a ruling in the case because the court must not intrude on the responsibilities of Parliament.
The judge disagreed saying the Tlicho had made a serious constitutional argument against the government’s plans and the court can prevent the the government from taking any action that has the potential for causing irreparable harm until the Tlicho’s case had been decided.
Andrea Richer, a spokeswoman for Aboriginal Affairs Minister Bernard Valcourt, said in an e-mail on Monday that the [Harper] government believes the economic future of Canada’s North requires a strong and efficient regulatory framework. [translation = massive deregulation to enable fracing free-for-all and zero accountability like fresh water under the legally immune, Charter violating, “No duty of Care” Alberta Energy Regulator]
“The changes we enacted in 2014 provide that framework, and will help to safely spur economic growth in the Northwest Territories,” Ms. Richer said. “We are reviewing the court’s decision. However, we are clear that we will vigorously defend the new [de]regulatory framework.”
But a lawyer for the Tlicho said the court has sent a strong message to the government that it cannot take actions that might be irrevocable while those actions are being debated before a judge.
“The assumption of Canada, or Ottawa, has always been ‘the Mackenzie Valley Resource Act is our legislation and we ultimately can do whatever we want to,’ ” said Jason Madden. But “that old reality has changed with the modern-day land claims agreements in the north. This case shows that the courts – as the guardians of the Constitution – are prepared to protect those treaty promises if Parliament has overstepped its bounds.” [Emphasis added]