NORTHWEST TERRITORIES
The federal government's plans to create a land and water super board have been put on hold.
NWT Supreme Court Justice Karen Shaner granted an injunction Feb. 27 which will preserve the Wek'eezhii Land and Water Board, as well as the territory's two other regional land and water boards, until the Tlicho government's lawsuit against the feds is heard in court.
Jason Madden, the lawyer representing the Tlicho Government, explained Shaner has essentially suspended the Government of Canada's attempt to implement parts of the Mackenzie Valley Resource Management Act (MVRMA) that would eliminate regional land and water boards in favour of a territory-wide super board.
"Canada has to recognize that (with) these treaties the constitutional architecture up in the Northwest Territories has fundamentally changed," said Madden.
"Ottawa just doesn't get to do whatever they want without working with its treaty partners, First Nations as well as the Government of the Northwest Territories. This unilateral behaviour doesn't cut it anymore."
The injunction means boards in the Sahtu and Gwich'in regions will also be left in place until the Tlicho's case is heard, which won't happen before the federal government's April 1 deadline for implementing the super board, said Madden.
"We'll be lucky if we had a hearing date this year," he said.
"Possibly in 2016, when the trial will go forward. The reality is this isn't that big of a problem because the systems are in place. The land and water boards haven't been dismantled."
The super board is designed to be made up of 11 members, and the Tlicho would have one member in that body.
"The Tlicho appointee may not even be on the sub-panel of the 11 that hears applications," said Madden. "If this was put into place you would annihilate the Tlicho voice in their home territory. That's the antithesis of what the modern day land claims agreements were all about."
The Tlicho case needed to meet three parameters in order to be granted the injunction, according to Madden.
First, the lawsuit needed to demonstrate it raises a serious constitutional question.
"The judge clearly agreed saying 'yes, Canada's interpretation is far from a slam dunk,'" he said.
Second, it needed to demonstrate that irreparable harm would be done by dismantling the regional boards.
"It's in the public interest (to) preserve what's working, instead of breaking Humpty-Dumpty and maybe never being able to put him together again," said Madden.
Third, the Tlicho case passed a "balance of convenience test", showing they would bear the greatest loss if the super board was launched.
"The judge sided with the Tlicho, saying you've got a system now that's working," he said. "The Wek'eezhii Land and Water Board has been heralded for its success. The Auditor General of Canada has said this is a success and you're tearing it down to create something that may be unconstitutional."
The Wek'eezhii Land and Water Board won the NWT's Excellence in Water Stewardship award last March.
The Sahtu Secretariat Incorporated (SSI) announced Feb. 16 it has launched a similar lawsuit to block the elimination of the Sahtu Land and Water Board.
"The Crown failed to make any efforts in good faith to accommodate the concerns that we raised about the proposed amendments to the MVRMA," stated Ethel Blondin Andrew, chairperson of the SSI, in a news release.
