Skip to main content

Dene people in the Northwest Territories have temporarily thwarted federal attempts to reduce their control over their lands and waters in a case that is being heralded as a recognition of modern-day land-claims agreements.

The decision by the Supreme Court of the Northwest Territories says courts can prevent the federal Parliament from unilaterally altering deals with Canada's aboriginal people that are protected by Canada's Constitution.

Justice Karan Shaner granted an injunction to the Tlicho late last week that stops Ottawa from disbanding a regional land-and-water board created as part of a 13-year-old land-claim agreement until the resolution of a lawsuit brought by the Tlicho government to prevent the board's elimination.

"The court recognized the potentially disastrous effects of Canada's actions and exercised its jurisdiction to protect our constitutionally protected rights as set out in the Tlicho Agreement while our lawsuit proceeds," Tlicho Grand Chief Eddie Erasmus said in a statement.

The Tlicho Agreement, which was negotiated over the course of a decade and is protected by the Constitution, created the Wek'èezhìi Land and Water Board to govern the use of an area of Tlicho territory that is twice the size of New Brunswick. The agreement says the Tlicho have the right to appoint or nominate 50 per cent of the board's members.

But, last year, as part of its efforts to give the Northwest Territories control over its natural resources, the federal government amended the Mackenzie Valley Resource Management Act to replace regional land-and-water boards with a larger 11-member board to which the Tlicho could appoint just one member.

The government says it consulted with the Tlicho about its plan. The Tlicho say the government's decision was made before it even approached native leadership and they went to court to stop their board from being disbanded.

Cases involving aboriginal issues and constitutional affairs can take a long time to be decided and the government planned to implement the changes on April 1. So the Tlicho asked for a temporary injunction to keep the smaller board in place until the case can be resolved.

During the court hearings on the injunction, government lawyers told Justice Shaner she did not have jurisdiction to make a ruling in the case because the court must not intrude on the responsibilities of Parliament.

The judge disagreed saying the Tlicho had made a serious constitutional argument against the government's plans and the court can prevent the the government from taking any action that has the potential for causing irreparable harm until the Tlicho's case had been decided.

Andrea Richer, a spokeswoman for Aboriginal Affairs Minister Bernard Valcourt, said in an e-mail on Monday that the government believes the economic future of Canada's North requires a strong and efficient regulatory framework.

"The changes we enacted in 2014 provide that framework, and will help to safely spur economic growth in the Northwest Territories," Ms. Richer said. "We are reviewing the court's decision. However, we are clear that we will vigorously defend the new regulatory framework."

But a lawyer for the Tlicho said the court has sent a strong message to the government that it cannot take actions that might be irrevocable while those actions are being debated before a judge.

"The assumption of Canada, or Ottawa, has always been 'the Mackenzie Valley Resource Act is our legislation and we ultimately can do whatever we want to,' " said Jason Madden. But "that old reality has changed with the modern-day land claims agreements in the north. This case shows that the courts – as the guardians of the Constitution – are prepared to protect those treaty promises if Parliament has overstepped its bounds."

Interact with The Globe