Canada: Court Suspends Implementation Of Mackenzie Valley "Superboard"

Last Updated: March 3 2015
Article by Toby Kruger

The Supreme Court of the Northwest Territories has granted an injunction to the Tlicho Government suspending the implementation of the Mackenzie Valley "Superboard" legislation. Creation of the Mackenzie Valley "Superboard" is contemplated in amendments to the Mackenzie Valley Resource Management Act (MVRMA) contained in the Northwest Territories Devolution Act, whose effect would be to collapse the functions of the Wek'eezhii Land and Water Board (WLWB), the Sahtu Land and Water Board, and the Gwich'in Land and Water Board into one single land and water board – or "Superboard". The injunction means that the existing land and water boards will continue to exist until the underlying issues in this case are determined, including a determination of whether the Superboard legislation is unconstitutional because it is contrary to Tlicho Land Claims Agreement.

Background

Beginning in 2007, the federal government formally embarked on a review of environmental regulatory systems throughout the North. This process, which included negotiations with the Government of the Northwest Territories and various Aboriginal Governments in the context of NWT devolution, led to several changes to the MVRMA, including creation of the Superboard. Among other things, creation of the Superboard would mean that Tlicho participation in decisions affecting the Wek'eezhi (traditional territory of the Tlicho) would continue, but that the nature and extent of that participation would change. Notably, whereas participation of a Tlicho Government appointee in decisions about land and water use in the Wek'eezhi is guaranteed under the existing regime, participation under the amended regime is not.

The Superboard legislation was to take effect on April 1, 2015. Canada maintained that the legislation is necessary to increase efficiency in the regulatory process. The Tlicho objected on the grounds that the Tlicho Agreement expressly requires the establishment of the WLWB. The Tlicho further said that they were not consulted on the amendments.

As a result of this disagreement, the Tlicho Government commenced an action against the federal government in May 2014, seeking among other things a declaration that Superboard legislation is unconstitutional, as well as an injunction preventing the Superboard legislation from taking effect until the constitutionality of the Superboard can be determined.

The injunction

The decision deals only with the issue of whether an injunction should be granted. The underlying question of whether the Superboard is constitutional has not been determined. Rather, the Court applied well-known injunction principles to decide that implementation of the Superboard should be temporarily suspended until the constitutionality of the Superboard legislation can be determined.

Before turning to the injunction test, the Court had to first satisfy itself that an injunction against the Crown was available at all, given Canada's arguments that an injunction was barred by reason of Crown immunity and because issuing an injunction would inappropriately interfere with the legislative process. On both counts, the Court found that Canada's arguments failed. First, the Court held that neither crown immunity nor the common law principle of immunity are bars to granting injunctive relief against the Crown where constitutional rights are in issue. Second, the Court held that an injunction would not constitute interference with the legislative process because the legislation at issue had already been validly enacted – the only question was when it was to come into force, a question that was within the Court's power to suspend.

Next, applying the injunction test, the Court found that the Tlicho had satisfied the three well-known criteria for granting an injunction:

  1. Is there a serious issue to be tried? Whereas Canada pointed to various provisions of the Tlicho Agreement that it said allowed it to create the Superboard, the Tlicho pointed to the provision of the Tlicho Agreement that state the WLWB "shall" be established. The Court found those positions to be legitimately in conflict and that this raised a serious constitutional issue to be tried.
  2. Would the Tlicho suffer irreparable harm if the injunction was not granted? The Court had no difficulty finding this requirement had been satisfied, appearing to agree with the Tlicho that, should they ultimately be successful, dismantling the WLWB in the interim would result in (1) loss of institutional knowledge and skill sets accumulated over many years and (2) permanent loss of opportunity to participate in decisions in the interim.
  3. Does the balance of convenience favour granting an injunction? In answering this question, the Court found that there is a very real public interest benefit in protecting the status quo where it has been demonstrated that there is a serious constitutional issue to be tried and that irreparable harm could result from the breach of a constitutionally protected right. It also found that there is a public interest in a stable regulatory regime, which could be lost if the constitutional validity of Superboard decisions are later called into question if the Tlicho are successful.  Lastly, the Court found that the risk for the federal government is significantly less than for that of the Tlicho. Should Canada succeed, the effect of the injunctive relief would be limited to a mere delay in implementing the new regulatory regime for developments in the Mackenzie Valley.

In granting the injunction, the Court found that the Superboard legislation is an "all or nothing" proposition, meaning that it was not possible for the Court to carve out the portions of the Superboard legislation that applied to the WLWB and leave those portions of the legislation applying to the Sahtu and Gwichin Boards in place. Accordingly, while the injunction application was brought only by the Tlicho with respect to the WLWB, the Sahtu and Gwichin Boards will also remain in place pending determination of the Tlicho issue by the Court.

Effect of the Decision

As mentioned above, the effect of this decision is not that the Superboard legislation is unconstitutional. Rather, the decision suspends the implementation of the Superboard legislation until that issue can be tried in Court. In the meantime, the existing regulatory structure for project development in the Mackenzie Valley will continue.

Whether Canada will appeal the injunction, or whether this case will be determined together with a similar challenge to the Superboard legislation brought by the Sahtu Secretariat, remains to be seen.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Toby Kruger
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions