Environmental, Indigenous and Natural Resources Blog

The Supreme Court of the Northwest Territories has granted an injunction to the Tlicho Government suspending the implementation of the Mackenzie Valley “Superboard” legislation. Creation of the Mackenzie Valley “Superboard” is contemplated in amendments to the Mackenzie Valley Resource Management Act (MVRMA) contained in the Northwest Territories Devolution Act, whose effect would be to collapse the functions of the Wek’eezhii Land and Water Board (WLWB), the Sahtu Land and Water Board, and the Gwich’in Land and Water Board into one single land and water board – or “Superboard”. The injunction means that the existing land and water boards will continue to exist until the underlying issues in this case are determined, including a determination of whether the Superboard legislation is unconstitutional because it is contrary to Tlicho Land Claims Agreement.

Background

Beginning in 2007, the federal government formally embarked on a review of environmental regulatory systems throughout the North. This process, which included negotiations with the Government of the Northwest Territories and various Aboriginal Governments in the context of NWT devolution, led to several changes to the MVRMA, including creation of the Superboard. Among other things, creation of the Superboard would mean that Tlicho participation in decisions affecting the Wek’eezhi (traditional territory of the Tlicho) would continue, but that the nature and extent of that participation would change. Notably, whereas participation of a Tlicho Government appointee in decisions about land and water use in the Wek’eezhi is guaranteed under the existing regime, participation under the amended regime is not.

The Superboard legislation was to take effect on April 1, 2015. Canada maintained that the legislation is necessary to increase efficiency in the regulatory process. The Tlicho objected on the grounds that the Tlicho Agreement expressly requires the establishment of the WLWB. The Tlicho further said that they were not consulted on the amendments.

As a result of this disagreement, the Tlicho Government commenced an action against the federal government in May 2014, seeking among other things a declaration that Superboard legislation is unconstitutional, as well as an injunction preventing the Superboard legislation from taking effect until the constitutionality of the Superboard can be determined.

The injunction

The decision deals only with the issue of whether an injunction should be granted. The underlying question of whether the Superboard is constitutional has not been determined. Rather, the Court applied well-known injunction principles to decide that implementation of the Superboard should be temporarily suspended until the constitutionality of the Superboard legislation can be determined.

Before turning to the injunction test, the Court had to first satisfy itself that an injunction against the Crown was available at all, given Canada’s arguments that an injunction was barred by reason of Crown immunity and because issuing an injunction would inappropriately interfere with the legislative process. On both counts, the Court found that Canada’s arguments failed. First, the Court held that neither crown immunity nor the common law principle of immunity are bars to granting injunctive relief against the Crown where constitutional rights are in issue. Second, the Court held that an injunction would not constitute interference with the legislative process because the legislation at issue had already been validly enacted – the only question was when it was to come into force, a question that was within the Court’s power to suspend.

Next, applying the injunction test, the Court found that the Tlicho had satisfied the three well-known criteria for granting an injunction:

1. Is there a serious issue to be tried? Whereas Canada pointed to various provisions of the Tlicho Agreement that it said allowed it to create the Superboard, the Tlicho pointed to the provision of the Tlicho Agreement that state the WLWB “shall” be established. The Court found those positions to be legitimately in conflict and that this raised a serious constitutional issue to be tried.
2. Would the Tlicho suffer irreparable harm if the injunction was not granted? The Court had no difficulty finding this requirement had been satisfied, appearing to agree with the Tlicho that, should they ultimately be successful, dismantling the WLWB in the interim would result in (1) loss of institutional knowledge and skill sets accumulated over many years and (2) permanent loss of opportunity to participate in decisions in the interim.
3. Does the balance of convenience favour granting an injunction? In answering this question, the Court found that there is a very real public interest benefit in protecting the status quo where it has been demonstrated that there is a serious constitutional issue to be tried and that irreparable harm could result from the breach of a constitutionally protected right. It also found that there is a public interest in a stable regulatory regime, which could be lost if the constitutional validity of Superboard decisions are later called into question if the Tlicho are successful.  Lastly, the Court found that the risk for the federal government is significantly less than for that of the Tlicho. Should Canada succeed, the effect of the injunctive relief would be limited to a mere delay in implementing the new regulatory regime for developments in the Mackenzie Valley.

In granting the injunction, the Court found that the Superboard legislation is an “all or nothing” proposition, meaning that it was not possible for the Court to carve out the portions of the Superboard legislation that applied to the WLWB and leave those portions of the legislation applying to the Sahtu and Gwichin Boards in place. Accordingly, while the injunction application was brought only by the Tlicho with respect to the WLWB, the Sahtu and Gwichin Boards will also remain in place pending determination of the Tlicho issue by the Court.

Effect of the Decision

As mentioned above, the effect of this decision is not that the Superboard legislation is unconstitutional. Rather, the decision suspends the implementation of the Superboard legislation until that issue can be tried in Court. In the meantime, the existing regulatory structure for project development in the Mackenzie Valley will continue.

Whether Canada will appeal the injunction, or whether this case will be determined together with a similar challenge to the Superboard legislation brought by the Sahtu Secretariat, remains to be seen.