Feds appeal land and water board ruling
Tlicho lawyer calls federal appeal ‘garden variety,’ doesn’t expect judge’s decision to be overturned
John McFadden
Northern News Services
Monday, March 30, 2015
SOMBA K'E/YELLOWKNIFE
A lawyer for the Tlicho Government does not think the NWT court of appeal will overturn a recent court decision that delays the scrapping of the territory's regional land and water boards in favour of one super board.
Nuri Frame said that the appeal, filed by the Harper government on March 23, will likely be heard in October but he doesn't expect it to go anywhere.
"It's a garden variety appeal. They've gone ahead and said the judge was incorrect in her ruling and the injunction shouldn't have been granted," Frame said. "We obviously disagree on every single point they make. (NWT Supreme Court Justice Karan) Shaner wrote a very strong decision which was clear, concise, well grounded in the law and I don't think there is anything there that is challenge-able at all."
On Feb. 27, following a Supreme Court hearing in December, Shaner granted the injunction called for by the Tlicho government.
Tlicho lawyers had argued for the preservation of the Wek'eezhii Land and Water Board. The federal government countered that the board should be eliminated and replaced by a pan-territorial super board. The super board was the most controversial provision within the devolution agreement between the territorial government and federal government which went into effect on April 1 of last year.
Changes to the Mackenzie Valley Resource Management Act (MVRMA) under the devolution bill would also see the elimination of the Sahtu and Gwich'in regional land and water boards.
The decision by Shaner remains in effect unless and until such time that an appeal overturns her decision and the injunction remains in place, Frame said.
Whether Shaner's decision delaying the implementation of a super board is overturned or not, the constitutional issues remain the same, Frame said.
"Canada unilaterally, over the strong objections of the Tlicho government and other aboriginal governments in the NWT, chose to amend the MVRMA, chose to eliminate the really successful system of regional land and water boards and chose to do so despite being told by the Tlicho and others that this was unconstitutional, that consultation had been inadequate and the changes couldn't be done without the agreement and support of the aboriginal people," Frame said.
Even if the appeal is successful and the judge's decision is overturned, a trial will still take place to decide whether the amendments to the MVRMA are constitutional, Frame said.
He expects the trial wouldn't begin until sometime in 2016.
In its legal brief, filed on behalf of Canada's attorney general and the minister of aboriginal affairs and northern development, the feds stated that the judge erred in finding that the Tlicho Government would suffer irreparable harm if the MVRMA amendment was proclaimed. That was one of six grounds for challenge the federal government made to Shaner's ruling. An e-mail from Emily Hillstrom, press secretary for Aboriginal Affairs and Northern Development Minister Bernard Valcourt, stated the government strongly believes the economic future of Canada's North, and in this case the Mackenzie Valley, requires a strong and efficient regulatory framework. The changes enacted in 2014 provide that framework and will help to safely spur economic growth in the NWT, it stated.
"We have appealed the court decision. We have been clear that we will vigorously defend the new regulatory framework and in the meantime are committed to ensuring that the NWT regulatory regime in place functions smoothly, she stated.
