David V. Wright
In late 2018, the Trudeau government tabled Bill C-88, An Act to amend the Mackenzie Valley Resource Management Act and the Canada Petroleum Resources Act and to make consequential amendments to other Acts. The primary purpose of the portion of the bill dealing with the Mackenzie Valley Resource Management Act (MVRMA) is to reverse several recent controversial amendments that would have reformed regional co-management boards in the Northwest Territories (NWT) to create a single “superboard.” The Harper government enacted those changes in 2014 as part of a broader suite of reforms to implement devolution in the NWT. The litigation discussed below stymied those plans. More recently, the Trudeau government committed to a broader review of the MVRMA regime. That review is now imminent, but will be happening in a context where the government has committed to “full implementation” of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and where Indigenous communities are driving revitalization of Indigenous laws and governance (Borrows, 2010, pp. 23-24). This context could drive major changes to the MVRMA regime.
This article provides context around Bill C-88, including the superboard litigation, then comments on the to-date unfulfilled government commitment to conduct a broader review of northern assessment regimes. The article then discusses the present juncture as a basis for significant changes to the MVRMA regime on at least two levels. On one level, the broad review of the MVRMA could explore whether any of the recent changes to the federal impact assessment regime south of 60o ought to be adopted in the Mackenzie Valley regime. On another, more fundamental level, the review could consider changes to the MVRMA impact assessment regime to ensure that it is keeping pace with recent and ongoing work to revitalize Indigenous laws and governance. Overall, recent events and potential next steps in the MVRMA story represent an instance of the challenging nature of modern treaty implementation in general, and the reality that implementation will be an ongoing, long-term endeavor. The Modern Treaties Implementation Research Project, funded by the Social Sciences and Humanities Research Council (SSHRC), stands to make a significant contribution to the research and thinking needed to support potentially significant changes to the MVRMA impact assessment regime.
2014 amendments & Tlicho lawsuit
The 2014 amendments, included as part of the Northwest Territories Devolution Act (Devolution Act), were part of a broader law reform package to legislate devolution in the NWT. An important part of the reforms sought to modify the process for review and approval of major resource projects in the Mackenzie Valley Region by creating a “superboard” and eliminating the land and water boards in each of the NWT land claim agreement areas (Gwich’in, Sahtu and Tlicho). These amendments were part of the federal and territorial governments’ attempt to selectively implement the recommendations of the “McCrank Report” (formally entitled “Road to improvement”) that came out of the “Northern Regulatory Improvement Initiative” (McCrank, 2008). The Devolution Act received Royal Assent in March 2014.
Throughout the consultation process for these amendments, the Tlicho, Sahtu and Gwich’in objected to the elimination of their respective land and water boards. Soon after the Devolution Act passed, the Tlicho brought an action in the Supreme Court of the Northwest Territories requesting that certain portions of the Devolution Act be declared by the court to be of no force or effect, and that the court grant an interim injunction to enjoin Canada from taking steps to implement the provisions of the Devolution Act that would affect the Wek’èezhìi Land and Water Board (and the Sahtu eventually took a similar step). The court was persuaded by a number of the Tlicho arguments, including the assertion that eliminating the Wek’èezhìi Land and Water Board (and, by extension, those under the other NWT modern treaties) would be unconstitutional because it would violate treaty rights in the Tłı̨chǫ Agreement. Specifically, the Tłı̨chǫ government argued that the amendments violated Tlicho rights to effective and guaranteed participation in the NWT co-management regime in Wek’èezhìi through the structure set up by the Tłı̨chǫ Agreement and implemented through the MVRMA.
On February 27, 2015 the Court released its decision in Tłı̨chǫ Government v. Canada (Attorney General), granting the injunction and ordering suspension of the contentious amendments (paras. 105-106). In March 2015, the Harper government appealed that decision. Owing to the court order, however, no changes took place to the structure of the land and water boards.
Overall, the government’s push for the superboard amendments can quite clearly be seen as a step backward in the broader context of modern treaty implementation.
Post-litigation developments and Bill C-88
Soon after the 2015 election, the Trudeau government indicated that it would put the appeal on hold and work with NWT First Nations to remove the disputed amendments from the MVRMA (Quenneville, 2015). Part I of Bill C-88 is the product of that recent work, though progress has been slow. Reasons for the slower pace are not clear; but, in any event, the Bill was finally tabled and received first reading on November 8, 2018, and was the focus of hearings before the Standing Committee on Indigenous and Northern Affairs on May 16, 2019. The Bill was finally passed and received Royal Assent in June 2019. In short, Bill C-88 repeals the provisions of the Devolution Act that would have restructured the land and water boards in the Mackenzie Valley. This retains the current board structure consisting of the Mackenzie Valley Land and Water Board and the modern treaty groups’ respective land and water boards. The Bill also re-introduced regulatory provisions that were included in the Devolution Act, including a new Administrative Monetary Penalties regime, but did not come into force following the court injunction (Crown-Indigenous Relations and Northern Affairs Canada, 2018).
This is likely welcome news for land claim groups and helpful certainty for government and industry alike. It also represents a step forward in modern treaty implementation, albeit a small one. However, more change is foreseeable.
The case of the missing reviews of northern assessment regimes
Bill C-88 does not contain the full extent of changes expected for the MVRMA; it is a set of relatively narrow and targeted amendments (and as such will likely proceed quickly through the House of Commons). The federal government actually committed to broader review of northern assessment legislation. In summer 2016, when the federal government was initiating the “Review of Environmental and Regulatory Processes,” which dealt with reforming key federal environmental statutes (Canadian Environmental Assessment Act, 2012, Fisheries Act, Navigation Protection Act, and the National Energy Board Act), there was commitment to this broader review. At the very start of that process, the government explicitly committed to more. The Draft Terms of Reference for the Expert Panel reviewing the environmental assessment regime indicated the following:
The Minister of Indigenous and Northern Affairs has launched a process to amend northern environmental assessment regimes. As CEAA [Canadian Environmental Assessment Act], 2012 has limited application in the north, matters related to northern environmental assessment regimes will be redirected as appropriate to the process launched by the Minister of Indigenous and Northern Affairs to amend northern regimes. Matters relating to northern environmental assessment regimes are outside the mandate of this Panel (On file with author. Internet link no longer available.). (emphasis added)
The Final Expert Panel Terms of Reference included a similar statement:
Proposed amendments to the Yukon Environmental and Socio-economic Assessment Act have already been introduced in Parliament. Indigenous and Northern Affairs Canada will continue to work with Aboriginal and territorial governments on this front. The Minister of Indigenous and Northern Affairs intends to launch a process soon to work with all applicable First Nations and the territorial government in Northwest Territories to identify possible solutions related to the Mackenzie Valley Resource Management Act (Canada. Environment and Natural Resources, 2017). (emphasis added)
Now, almost three years later, the government has taken few, if any, steps beyond the targeted reversal of the litigated amendments. Put another way, to date the government could be seen as acting in accordance with the floor set by the courts, rather than taking further steps toward the “renewed nation-to-nation relationship” envisioned in the early days of the Trudeau government.
However, there are at least two developments now likely to push this review into motion. First, there is Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts (2018). Now passed as of June 2019, Bill C-69 revamps the federal assessment regime and shift it from environmental assessment to “impact assessment.” Though changes brought in through Bill C-69 are not as dramatic as the changes brought in during the 2012 overhaul, particularly after the set of changes put forward by the Senate in May 2019, the Bill still contains a number of important shifts, including explicit consideration of climate change, reference to sustainability as a guiding concept, and a number of procedural changes (e.g. an expanded “planning phase” with more guideposts for engagement with Indigenous communities). While the northern assessment regimes are distinct and different from the federal regime (indeed, for the most part the Canadian Environmental Assessment Act, 2012 does not apply north of 60o, though the Inuvialuit Settlement Region is a clear exception), the federal statute has traditionally cast a long shadow northward. For example, soon after the Harper government’s overhaul of the federal assessment regime in 2012, the Yukon Environmental and Socio-economic Assessment Act was amended to include tighter timelines that mimicked the new federal approach. As such, with the passage of Bill C-69, there may be some motivation, particularly on the part of the federal government, to review the MVRMA with an eye to achieving some consistency with the new statute.
Second, it has been five years since finalizing the NWT Devolution Agreement, meaning 2019 is the year parties committed to review the MVRMA-related provisions of the Agreement. Periodic review is also required under s.50 of the Act. Perhaps more than Bill C-69, this should finally move the government to act on its commitment to a broader MVRMA review.
Opportunities for further steps – or leaps – forward
Taken together, the five-year devolution review, the statutorily required periodic review, the government’s commitment to a broader MVRMA review, and the proposed overhaul of the federal assessment regime present an opportunity for perhaps the most significant changes to the MVRMA regime since its inception. This is particularly the case if one considers the broader context of the federal government’s commitment to “full implementation” of UNDRIP, and Indigenous communities’ efforts to revitalize Indigenous laws and governance. Potential changes can be viewed along at least two levels. First, at a more technical level, the review of the MVRMA could explore whether any of the changes proposed in the Impact Assessment Act for the regime south of 60o ought to be adopted in the NWT. Second, on a more fundamental level, the review could consider changes to the MVRMA impact assessment regime to ensure that it is keeping pace with the push to revitalize Indigenous laws and governance. These are briefly discussed in turn below, primarily by putting forward questions that could serve as starting points for the MVRMA review and as starting points for further research projects, including those under the SSHRC-funded Modern Treaty Implementation Research Project.
Changes flowing from the proposed Impact Assessment Act
While the proposed federal Impact Assessment Act retains the basic architecture of CEAA, 2012, it introduces a number of concepts not explicitly present in the existing regime. Several IAA changes stand out as potentially relevant in the MVRMA context: an expanded “planning phase” at the start of an assessment process, (re)expanded participation rules, new factors to consider in the assessment phase, new parameters for final decision-making (including sustainability and climate change considerations), and a requirement for “detailed reasons” (i.e. enhanced transparency) to accompany final decisions.
These changes to the primary federal assessment regime raise a number of questions that could be considered through review of the MVRMA or by interested researchers. How do such changes compare to the existing MVRMA regime? To what extent might it make sense to modify and introduce equivalent changes in the MVRMA? To what extent would importing some of these changes be another instance of imposing legal “solutions” from the south? What advantages and disadvantages might there be in aligning the MVRMA with the new IAA? Which new assessment factors and decision-making considerations explicitly set out in the IAA (e.g. climate change, gender-based analysis, sustainability), if any, would be of value in the MVRMA regime? How do “regional assessments” and “strategic assessments” relate to mechanisms already in place under MVRMA (e.g. land-use planning) or other post-devolution arrangements?
For the most part, these questions are best left to be answered by Indigenous governments in the NWT through a collaborative legislative review (one in which Indigenous governments design, or at least co-design, the process). After all, the MVRMA is a product of collaboration between Indigenous modern treaty groups, Canada, and the Government of the Northwest Territories to implement the constitutionally protected commitments in the land claims agreements. In many ways, the MVRMA review could at least benefit from the significant amount of work that was put into development of the IAA, which included numerous submissions by Indigenous communities and experts in impact assessment.
Changes flowing from UNDRIP and revitalization of Indigenous Laws
While the MVRMA regime has been recognized by some as a model for facilitating participation of Indigenous peoples in decision-making (see e.g. Armitage, 2005, p. 239), Canada’s broader legal landscape is evolving from a paradigm predicated on Indigenous “participation” to one rooted in legal pluralism, revitalized Indigenous laws, and Indigenous Peoples’ inherent right to self-government. In some ways the land claims approach may be seen as leading the way on this, but the present context offers an important opportunity. Fundamental questions ought to be asked by Indigenous communities, governments, industry and other stakeholders about whether the MVRMA regime is poised to keep pace with recent and ongoing work to revitalize Indigenous laws and governance. Related, it is also prudent to ask what changes may be needed to ensure the MVRMA regime is consistent with “full implementation” of UNDRIP. For example, is it still (or was it ever) appropriate that the federal Minister of Indigenous and Northern Affairs has unilateral power to reject a recommendation of a review panel under s.135? How might the regime provide a stronger basis for Indigenous-led impact assessment beyond what is currently available to the land and water boards? What does the concept of Free, Prior, Informed Consent, as set out in UNDRIP, look like in the modern treaty context? How effective is the MVRMA regime at facilitating nation-to-nation relationships between the Crown and Indigenous governments? What would the MVRMA look like in a context of revitalized Gwich’in, Sahtu and Tlicho laws?
Certainly, the MVRMA amendments introduced in 2005 with Tlicho self-government represent steps in the right direction. For example, the Tlicho government has significant decision-making power under s.137(1) in an environmental impact review situation. However, now, almost 15 years later, the context has evolved further. It may be time to consider how the MVRMA can be modified to facilitate not just next steps, but leaps forward in modern treaty implementation and Crown-Indigenous relations in the NWT and across the North. At a high level, the present juncture is an opportunity for the federal, territorial and Indigenous governments to make significant strides toward accomplishing a key purpose of modern treaties, as stated by the Supreme Court of Canada: “to foster a positive and mutually respectful long-term relationships between the signatories” (First Nation of Nacho Nyak Dun v Yukon, 2017). Time will tell whether governments seize this opportunity. One would hope that at the very least the federal and territorial governments work with Indigenous governments and communities with more sensitivity, creativity and respect than has the process leading to the 2014 superboard changes. ◉
David V. Wright is an assistant professor and member of the Natural Resources, Energy and Environmental Law research group in the Faculty of Law at the University of Calgary. He holds an MA and JD from Dalhousie University and an LLM from Stanford University. He has been called to the bars of the Northwest Territories, Nunavut and Nova Scotia.
Armitage, D. (2005) Collaborative environmental assessment in the Northwest Territories, Canada. Environmental Impact Assessment Review, 25(3), 239.
Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, 1st Session, 42nd Parliament, 2018 (third reading 2018, June 20). Retrieved from http://www.parl.ca/DocumentViewer/en/42-1/bill/C-69/third-reading
Bill C-88, An Act to amend the Mackenzie Valley Resource Management Act and the Canada Petroleum Resources Act and to make consequential amendments to other Acts, 1st Session, 42nd Parliament, 2018 (first reading 2018, November 8). Retrieved from http://www.parl.ca/DocumentViewer/en/42-1/bill/C-88/first-reading
Borrows, J. (2010). Canada’s Indigenous Constitution (pp. 23-24). Toronto: University of Toronto Press.
Canada. Environment and Natural Resources. (2017, June 28). Review of environmental assessment processes: Expert Panel Terms of Reference. Retrieved from https://www.canada.ca/en/services/environment/conservation/assessments/environmental-reviews/environmental-assessment-processes/final-terms-reference-ea.html
Crown-Indigenous Relations and Northern Affairs Canada. (2018, November 9). Backgrounder: Bill C-88 – Amendments to the Mackenzie Valley Resource Management Act (MVRMA). Retrieved from https://www.canada.ca/en/crown-indigenous-relations-northern-affairs/news/2018/11/bill-c-88—amendments-to-the-mackenzie-valley-resource-management-act-mvrma.html
First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58.
McCrank, N. (2008). Road to Improvement. Ottawa, ON: Indian and Northern Affairs Canada. Retrieved from http://publications.gc.ca/site/eng/332602/publication.html
Northwest Territories Devolution Act, SC 2014. c. 2.
Quenneville, G. (2015, December 11). Canada pauses legal fight to launch N.W.T. land and water superboard. CBC News. Retrieved from https://www.cbc.ca/news/canada/north/nwt-superboard-appeal-paused-1.3361540
It is worth noting that at the same time, the federal government also began working with Yukon First Nations to remove contested reforms to the Yukon Environment and Socio-Economic Assessment Act, SC 2003, c 7 by the Harper Government and litigated by Yukon First Nations. This led to Bill C-17, which received Royal Assent on December 14, 2017 and rescinded those reforms.
Tłı̨chǫ Government v Canada (Attorney General), 2015 NWTSC 9 (paras. 105-106).