Deh Cho - Dehcho First Nations is taking Canada to court over a decision that has opened an area of land to potential underground resource development.

Edehzhie is the first area moving through the NWT Protected Areas Strategy to have its level of protection changed when its interim protection was renewed. - map courtesy of NWT Protected Areas Strategy

On Nov. 29 Dehcho First Nations (DFN) filed an application for judicial review in federal court. The application asks for the sub-surface protection of Edehzhie to be restored and for an order to prevent new mineral claims being staked in the meanwhile.

DFN is arguing that Canada broke agreements to negotiate in good faith and implement protection of Edehzhie through the NWT Protected Areas Strategy, said Chris Reid, the organization's legal counsel.

On Nov. 1 the federal government withdrew sub-surface protection for the area known as Edehzhie. The area, which encompasses the Horn Plateau, Mills Lake and Willowlake River, has both cultural and spiritual significance to the Deh Cho along with being a unique ecosystem.

"It was a blindside," Reid said.

DFN had been working since 1999 to receive permanent protection for Edehzhie and had been using the NWT Protected Areas Strategy (PAS) to secure a National Wildlife Area designation for the land. The 25,230-square-kilometre region has had both surface and sub-surface protection as part of an interim land withdrawal since 2002. The withdrawal, which was renewed in 2007, expired on Oct. 31.

DFN had no warning the withdrawal wouldn't be renewed, Reid said. When asked in May by Grand Chief Samuel Gargan of DFN if the withdrawal would be extended, Chuck Strahl, then the minister of Indian and Northern Affairs Canada, said it would be, said Reid.

Canada's decision not to renew the protection has undermined the Protected Area Strategy, he said.

"The PAS is meaningless in our view without sub-surface protection," said Reid.

Although Canada says it continues to support the Protected Area Strategy as the best way to safeguard sensitive lands in the territory Reid believes its decision makes the PAS ineffective and the whole process dangerous to undertake.

As part of the Protected Area Strategy a mineral assessment has to be done on candidate protected areas to identify potential underground resources.

If there's no sub-surface protection for areas once the assessment is done the PAS becomes a way to facilitate exploration for the mining industry, Reid said.

DFN participated in good faith and would not have if they knew Canada had no intention of protecting the sub-surface. Canada's removal of the protection is an insult, he said.

The federal government's decision also caught the PAS's steering committee by surprise, said Doug Mead, the committee's chair.

"I can see how it would bring some questions forward that haven't been asked before," he said.

The federal government has renewed interim protection for areas in the Protected Area Strategy process before and in each case the protection has remained the same. The committee is waiting for more information on why the government made the decision before holding a teleconference to discuss what effect it has, said Mead.

According to information provided by the Department of Indian and Northern Affairs Canada shortly after the withdrawal, Edehzhie's sub-surface protection wasn't renewed because the federal government determined it's appropriate to allow for a greater balance between conservation and development opportunities in the Deh Cho region.

The department has taken the view that resource development, "is not necessarily inconsistent with protecting the conservation values of Edehzhie," according to an email.

Dehcho First Nations now has 30 days from Nov. 29 to submit its affidavit of evidence to support their claim. Canada has to respond with its own affidavits 30 days after receiving DFN's.

"We expect this process to go quickly," Reid said.

Despite the application for judicial review DFN's leadership wants to see negotiations for the Dehcho Process continue, said Reid.

The negotiations are currently postponed because of an unrelated application for judicial review made by the Nahanni Butte and Sambaa K'e Dene Bands.

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