Judge to rule on future of land and water board
Tlicho challenge elimination of Wek'eezhii Land and Water Board in court
John McFadden
Northern News Services
Published Monday, December 8, 2014
SOMBA K'E/YELLOWKNIFE
The fate of the Wek'eezhii Land and Water Board now rests in the hands of NWT Supreme Court Judge Karan Shaner.
She reserved judgment last Thursday after a two-day hearing in Yellowknife involving lawyers for the Tlicho government, which oversees the board, and lawyers for the federal government, which is seeking to eliminate it in favour of a pan-territorial super board.
Changes to the Mackenzie Valley Resource Management Act would see the Wek'eezhii board, along with the Sahtu and Gwich'in regional land and water boards, scrapped in favour of a single super board. The legislation calling for that was part of the devolution bill which took effect in the NWT on April 1.
"What we've asked for is an injunction calling for the status quo," said Jason Madden, a lawyer who represented the Tlicho government in court.
"We filed an injunction to preserve the land and water board as is until a larger, full trial between the feds and the Tlicho government is held sometime next year, hopefully before the summer."
The revamped resource management act still needs what's known as an order in council - essentially cabinet approval - before it becomes official. That's expected to take place on April 1, 2015.
"What we were saying to the judge is that if it ain't broke, don't break it," Madden said.
"The Wek'eezhii Land and Water Board has been working well for the past 10 years. Canada has arrogantly said let's kill the regional board. They did so with next to no consultation with the Tlicho government which has a constitutionally protected agreement with the feds.
Andrew Fox, a lawyer representing the federal government, argued in court that the judge shouldn't - and technically can't - grant the injunction because the legislation hasn't passed into law yet.
"The court would be intruding upon the legislative process," said Fox.
"Courts don't create legislation, they review it. I argued that the court can't intervene in the process while the cabinet has yet to end its process by issuing the order in council. I just don't know exactly when that is going to happen," he said.
Fox said this particular court challenge is somewhat unusual so he expects it may take some time for the judge to issue her decision.
Madden said the federal response to the lawsuit is incorrect as the resource board is protected under Treaty 11, which encompasses the Tlicho.
"These treaties aren't just suggestions," said Madden. "The court can interpret the Tlicho rights under the constitution. Better a judge in the NWT do that than some bureaucrat in Ottawa."
Tlicho Grand Chief Eddie Erasmus was a keenly interested spectator for both days of the hearing.
"We requested meetings with the prime minister on this," said Erasmus.
"We wanted to speak with the aboriginal affairs minister. We've met with representatives from the federal government. We sent them correspondence, pleading our case. Nothing worked. Court was our last resort."
Erasmus said it is critical to the Tlicho that they have a strong voice when it comes to resource development on their land.
"Don't forget the Tlicho land claim agreement is a deal between us and the federal government. They agreed to it," he said.
"You can't then come in later and makes changes without the other side's approval. This getting rid of our land and water board was done without our participation in the process, never mind our approval."
