Tłįchǫ Government v Canada

Background

The Northwest Territories Devolution Act (the “Devolution Act”) is legislation that is primarily aimed at implementing certain provisions of the Northwest Territories Lands and Resources Devolution Agreement. It received Royal Assent in March 2014 and will come into force on a date to be set by Order-in-Council. Among other things, the Devolution Actamends the Mackenzie Valley Resource Management Act (the “MVRMA”), including the statutory authority in the MVRMA for the creation of four land and water boards that each have jurisdiction over portions of the Northwest Territories’ Mackenzie Valley.

One of these land and water boards is the Wek'èezhìi Land and Water Board (“WLWB”), which has jurisdiction over land and water use and waste deposit within a portion of Tłįchǫ traditional territory known as the Wek'èezhìi Management Area. The WLWB is a joint management body that has half its members (excluding the chairperson) appointed by the Tłįchǫ Government. It was created to fulfill one of the federal government’s commitments under Tłįchǫ’s land claims and self-government agreement with the federal and territorial governments (the “Tłįchǫ Agreement”), which was signed in August 2003. As a modern treaty, the rights created and confirmed under the Tłįchǫ Agreement are entrenched under s. 35 of the Constitution Act, 1982.

Among other things, the Devolution Act’s amendments to the MVRMA will result in the WLWB being eliminated. The jurisdiction and authority of all four regional land and water boards, including the WLWB, will be transferred to one board – a re-structured version of the MacKenzie Valley Land and Water Board. Tłįchǫ will continue to have opportunities to participate in decision-making for the Wek'èezhìi area. However, their current statutory right to nominate two out of four members of the WLWB will be replaced with a more restricted ability to appoint one of the eleven members of the new larger board. Likewise, there will be no guarantee of Tłįchǫ participation in decision making for the Wek'èezhìi area since the amendments contemplate three-person panels being formed from the new eleven-person board to deal with individual applications that come before it. If an application before the new board relates to Wek'èezhìi there will be discretion for the chairperson to put the Tłįchǫ-designated board member on the decision-making panel, but there will be no obligation to do so.

The federal government underwent a consultation process with respect to the amendments to the MVRMA that are contemplated in the Devolution Act; this was required under both the Tłįchǫ Agreement and the MVRMA.

The Minister of Aboriginal Affairs and Northern Development appointed senior energy lawyer Neil McCrank to lead a review of the regulatory systems throughout northern Canada in November 2007, and McCrank met with a number of individuals and organizations, including Tłįchǫ representatives, while gathering data and preparing a report. McCrank’s provided two options for improving the regulatory system. The first would require fundamental restructuring of the system, including amendments to the current comprehensive land claims agreements in place as well as to the MVLWB, such as eliminating the WLWB and other land and water boards. The second option would require less extensive restructuring and would leave the regional boards in place.

In May 2010, the federal government announced its “Action Plan to Improve Regulatory Regimes” and it appointed businessman and former politician John Pollard as its Chief Negotiator to lead consultations and negotiations with the territorial government and Aboriginal governments with respect to statutory amendments to the MVRMA. Pollard met with representatives of the Tłįchǫ Government on several occasions between May 2010 and November 2012 as part of this consultation process. Throughout this consultation period, the Tłįchǫ Government maintained its objection to the elimination of the WLWB and made its position on the proposed amendments known.

The Tłįchǫ Government brought an action to challenge the amendments to the MVRMA in May 2014, claiming that they violate their right to effective and guaranteed joint management over the Wek'èezhìi under the Tłįchǫ Agreement and disputing the federal government’s claim that the amendments are contemplated or permitted under the Tłįchǫ Agreement.

This application was brought to obtain injunctive relief to make the WLWB exempt from the amendments while the Tłįchǫ Government pursues a final determination of its rights from the courts.

Court’s decision

The Court rejected an argument from the Crown that the injunctive relief Tłįchǫ was seeking was barred by the Crown Liability and Proceedings Act. After reviewing several authorities, the Court held that it is necessary for the courts to have the power to protect constitutional rights through injunctive relief in order to ensure the enforcement of these rights does not become “a merely academic exercise”. It held that neither the Crown Liability and Proceedings Act nor the common law of Crown immunity could bar the relief sought by the Tłįchǫ Government.

The Court also rejected an argument from the Crown that injunctive relief was not available to the Tłįchǫ Government based on the separation of powers between the judicial and legislative branches of government. The Crown argued that the Governor-in-Council is acting in a legislative capacity when promulgating Orders-in-Council and this action is therefore beyond the jurisdiction of the courts. The Court agreed with the “well-established principle” that the courts, the legislature and the executive must all respect each other’s “legitimate sphere of activity”. The Court also agreed that there would be very few circumstances in which it might be appropriate for a court to directly enjoin the executive branch of government from doing that which has been directed and authorized by Parliament, such as setting a date on which the amendments to the MVRMA would come into effect. However, the Court found that this case involved special circumstances. As the Devolution Act had received Royal Assent and parts of it were already enacted, the “deliberative stage” of its development was complete. There were also constitutionally protected rights at issue in this case. While the Court did not think it appropriate to directly enjoin the Governor-in-Council from promulgating Orders-in-Council, it held that it could issue injunctive relief to suspend the operation of the provisions of the Devolution Act that empowered the Governor-in-Council to bring those amendments into force.

The Court went on to find that the legal test for interlocutory injunctive relief was satisfied. There was a serious constitutional issue to be tried as there was a legitimate dispute between the parties regarding how the Agreement is to be interpreted, the constitutional validity of the amendments to the MVRMA, and whether the federal government had met its consultation obligations to Tłįchǫ. There would also be unquantifiable and irreparable harm done to Tłįchǫ if the amendments came into effect without consultation having occurred as required under the Tłįchǫ Agreement, given the questions surrounding the adequacy of the federal government’s consultation and the fact that dismantling the WLWB would mean that Tłįchǫ would play a diminished role in the management of Wek'èezhìi. Finally, the Court accepted that there was a very real public interest benefit to protecting the status quo, particularly since it would be necessary to rebuild the WLWB if the federal government’s actions were subsequently found to be unconstitutional. The balance of convenience favoured preservation of the status quo and the regulatory certainty this entailed.

Scope of relief

The Court found that the manner in which the amending provisions were structured in the Devolution Act prevented it from exempting just the WLWB from their application. At the same time that the WLWB was being eliminated, so too were the Gwich’in and Sahtu land and water boards being done away with, although each was created pursuant to a separate land claims agreement. For the Court to try to carve out an exemption for the WLWB would require the Court to go “beyond interpretation and into the realm of drafting legislation, something that is beyond its scope of authority”. As a result, the Court suspended the effect of s. 253(2) of the Devolution Act, which will prevent the dissolution of any of the four land and water boards currently in place under the MVRMA.