Bill C-88: A Return to Status Quo for the Northwest Territories’ Regulatory Regime

By: Nathaniel Brenneis & Stuart Chambers

In November 2018, federal Bill C-88, (the “Bill”) was introduced in the House of Commons by the Liberal federal government. If passed, the Bill will repeal controversial amendments that were planned for the Mackenzie Valley Resource Management Act, SC 1998, c 25 (“MVRMA”). Essentially, the Bill is intended to reverse previously proposed structural changes to the Land and Water Boards of the Mackenzie Valley. If the Bill is passed it will introduce new regulatory provisions, but maintain the current structure of having four separate Boards.

The Initial Amendments and Controversy

In 2014, the Conservative federal government passed the Northwest Territories Devolution Act, SC 2014, c 2 (“NTDA”) which included some provisions amending the MVRMA . This was all part of the ongoing plan for the devolution of governance in the Northwest Territories, wherein the federal government transferred control of the territory's land and resources to the Northwest Territories government.

One of NTDA’s amendments, however, sought to restructure the Mackenzie Valley Land and Water Boards. Specifically, the federal government intended to combine the four Mackenzie Valley Land and Water Boards into a single consolidated “super-board.”

This proposed change was very divisive. A number of Indigenous governments and organizations in the Northwest Territories raised concerns about the planned restructuring as they perceived this proposal as failing to honour Indigenous land claims and self-government agreements. Ultimately, the Tłįchǫ Government and Sahtu Secretariat Inc. filed for an injunction with the Supreme Court of the Northwest Territories to suspend the related provisions. They argued that the federal government did not have the authority to unilaterally abolish the Mackenzie Valley regulatory regime without consultation with affected indigenous communities.

The Court granted the injunction in February 2015. The purpose of the injunction was to preserve the existing regulatory processes until the Court could provide further instruction.

On September 23, 2016, the Liberal federal government launched a consultation process with all relevant parties, including Indigenous governments and organizations in the Northwest Territories, the territorial government, and other stakeholders to discuss a way forward. These discussions directly contributed to the development of the Bill. 

The Proposed Amendments under Bill C-88

The Bill proposes to repeal the provisions of the NTDA that would have restructured the four Land and Water Boards of the Mackenzie Valley. Instead, under the MVRMA, the boards will retain their current structure and consist of:

• Mackenzie Valley Land and Water Board;
• Gwich’in Land and Water Board;
• Sahtu Land and Water Board; and
• Wek’eezhii (Tlicho) Land and Water Board.

The Bill also re-introduces regulatory provisions that were included in the NTDA, but did not come into force following the court injunction. These provisions have been redrafted to function under the current four-board structure and provide for the following:

• The development of regulations respecting consultation, which are intended to help clarify the procedural roles and responsibilities respecting indigenous consultation.
• An “administrative monetary penalty” scheme that will provide inspectors with additional tools to enforce compliance with permits and licenses under the MVRMA.
• An “enforceable development certificate” scheme following environmental assessments and environmental impact reviews.
• Clarification of requirements for equal proportions of nominees from government and Indigenous governments and organizations.
• A 10-day pause period between a board’s preliminary screening decision and the issuance of an authorization to allow for other bodies under the MVRMA to refer a project to an environmental assessment.
• Regional studies that provide the Minister with the discretion to appoint committees or individuals to study the effects of existing and future development on a regional basis.
• The authority to develop cost-recovery regulations that would provide the federal government with the ability to recover costs associated with proceedings.
• The extension of a board member’s term during a proceeding to ensure board quorum is maintained until the conclusion of an application decision.

Take Away

The Bill is intended to resolve years of uncertainty regarding the status of the four Boards in the Mackenzie Valley. The intent is also to streamline and modernize the regulatory regime. We will monitor the status of the Bill to see whether it is passed, and whether it can achieve these objectives

Litigating Climate Change: Group of Young Quebecers Launch Climate Change Lawsuit Against Federal Government

By Sarah Levine

ENvironnement JEUnesse ("ENJEU"), a Quebec-based environmental youth group, has commenced a class action lawsuit in the Superior Court of Quebec. The lawsuit, advanced on behalf of all Quebec residents under the age of 35, alleges that failure by the Government of Canada to address climate change is an infringement of rights under the Canadian Charter of Rights and Freedoms (the “Charter”). 

Such environmental, youth-led litigation is on the rise in the United states and elsewhere. Cases such as Juliana, et al. v United States of America, et al, are giving rise to the American legal doctrine of "atmospheric trust litigation". While similar litigation has been slower to take hold in Canada, the ENJEU case shows that it is likely only a matter of time until environmental groups, investors and First Nations seek litigation, Charter-based or otherwise, as another means of forcing government(s) to pay attention to and address climate change and its associated impacts.

 

In this brief blog post, we examine the foundation of the ENJEU class action and seek to discuss some of the implications that may arise.

The Class Action

The lawsuit alleges that the Canadian government is infringing on the fundamental rights of those persons under the age of 35. The alleged infringement is rooted in the claim that the federal government has or will be unable to meet the climate targets agreed to at the Paris climate change talks. 

ENJEU cites the recent United Nations Intergovernmental Panel on Climate Change report which identifies Canada as being nowhere near meeting the agreed upon reduction of 385 million tonnes of carbon dioxide equivalent emissions per year. Rather, ENJEU points to figures from 2016 which indicate that Canada's emissions are nearly double the target agreed upon in Paris.

 

Legal Infringements

To succeed in being certified as a class action, and ultimately to succeed on the merits, ENJEU must convince the Superior Court of Quebec that the Federal government’s failure to act as it relates to climate change and as evidenced by the current volume of emissions is a violation of the Plaintiffs’ rights under the Charter. Particularly, the government’s failures must be shown to impede the rights of an entire generation of youth in Quebec to the use and enjoyment of a safe and stable future. 

ENJEU points to sections 7 and 15 of the Charter, which are the rights to life, liberty and security of the person and the right to equality, respectively. ENJEU has also cited sections of the Quebec charter, such as section 46.1 which provides for the protection of the right to live in a healthful environment in which biodiversity is preserved.

Final Thoughts

 

ENJEU has a high burden to satisfy in order to establish that Charter rights have been infringed. However, as noted, it is not entirely unheard of to have cases of this nature brought against national governments. 

In 2015, the District Court of The Hague found the Dutch government had an obligation to increase efforts relating to climate change following a suit filed on behalf of 900 Dutch citizens. While the constitutional basis of the claims differ, the Dutch case demonstrates how the judicial system can be used to make climate change a major political and social issue that must be addressed.

Even if the ENJEU case fails to meet the burden that is necessary to find that Charter rights have been violated, it represents a change in the way both affected parties and their lawyers characterize and address issues related to climate change both in Canada and internationally. Whether such a change is appropriate or even effective is yet to be seen. The Court’s decision in the class action brought by ENJEU will be an interesting test of just how far the Courts are willing to go in shaping political realities.