In Tłįcho˛ Government v. Canada (Attorney
General), 2015 NWTSC 9, the Northwest Territories Supreme
Court granted the Tłįcho˛ First Nation interlocutory
injunctive relief, thus delaying the Government of Canada from
enacting major structural changes to the resource management system
in the Mackenzie River Valley.
The Government of Canada recently passed legislation to amend
the Mackenzie Valley Resource Management Act (MVRMA). This
was done through the Northwest Territories Devolution Act
("Devolution Act"), which received Royal Assent on
March 25, 2014.
The MVRMA currently allows for four land and water boards, with
each board exercising jurisdiction over portions of the Mackenzie
River Valley. These amendments to the MVRMA, once in force, will
amalgamate the four boards into a single management board for the
At issue in this action is the Tłįcho˛'s
Wek'èezhìi Land and Water Board (the
"WLWB"). This board has jurisdiction over the
Wek'èezhìi Management Area, and was established
to fulfill the Land Claims and Self-Government Agreement Among
the Tłįcho˛ and the Government of the Northwest
Territories and the Government of Canada (the
"Tłįcho˛ Agreement"). This treaty
is a modern treaty protected through section 35 of the
Constitution Act, 1982.
The WLWB consists of four members and a chairperson, and two of
the four members are appointed by the Tłįcho˛.
However, if the amending provisions are permitted, the WLWB will
cease to exist, and the Tłįcho˛ will only have the
authority to appoint a single member out of the new ten member
board that will manage the entire Mackenzie Valley.
The Court found that the Tłįcho˛ were entitled to
injunctive relief because they had successfully established
there was a serious issue to be tried;
it would suffer irreparable harm should it not obtain the
interlocutory relief; and
the balance of convenience and public interest favoured the
Further, the Court held that in order for the protection of
constitutional rights to be meaningful, the courts must have the
ability to ensure the enforcement of those rights. As such, it
would be harmful if injunctive relief was not available to courts
as against the Crown.
In reaching its decision the Court found that although the
federal government underwent a consultation process in advance of
the amendments, irreparable harm would be done if the consultation
was not conducted according to the Tłįcho˛
Agreement and if the Tłįcho˛ were subsequently
restricted to the more limited role under the new management
However, it is notable that the Court did not prevent the
Governor-in-Council from promulgating an Order-in-Council bringing
the amendments into force, as this power was granted by Parliament.
Instead, the provision in the Devolution Act that
empowered the Governor-in-Council to bring the controversial
amendments into force was suspended.
As a result of the decision, until a final determination is made
in this action, the status quo will remain in the management and
governance of the Mackenzie River Valley under all four
existing boards, not just the WLWB.
The decision is important as it raises the spectre of regulatory
uncertainty in an area that is evolving quickly. Further, the
inability of government and project proponents to know who will
consider and potentially approve projects will make planning
difficult for the time being.
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