Country
Canada
Sources
InforMEA
Tagging
Jurisdiction, Land Use, Permits, Declaratory Relief, Constitutional, Licences, Remedies, Forests, Standing
Abstract
This was an amended application for judicial review of the decision of the Mackenzie Valley Land and Water Board (the Board) to issue an amended land use permit (the permit) to Paramount Resources Ltd. (Paramount) under the Mackenzie Valley Resource Management Act (the Act). The permit was issued following the approval of an “extension project” representing the third phase of oil and gas development in the Mackenzie Valley. The applicants objected to this decision, alleging that it was made in breach of the federal Crown’s duty to consult and accommodate. The Board considered the amended application and, after having received submissions from the interested parties (the Minister of Indian and Northern Affairs, Paramount, and the applicants), rendered the decision at issue herein, stating, inter alia, that it was not within its authority to evaluate the accuracy of the Crown’s consultation and accommodation. The issues were: (1) whether the Court had jurisdiction to hear the application; and (2) whether the Crown’s failure to consult with and accommodate the applicant First Nation constituted a failure to comply with the requirements of the Act. The Court held the application should be allowed. The question of the Court’s jurisdiction engaged the interpretation of section 32 of the Act. Subsection 32(1) grants the Supreme Court of the Northwest Territories concurrent jurisdiction with the Federal Court in respect of applications for prerogative relief against the Board. But subsection 32(2) confers exclusive jurisdiction upon the Supreme Court of the Northwest Territories to hear and determine any action or proceeding “concerning the jurisdiction” of the Mackenzie Valley Land and Water Board or the Mackenzie Valley Environmental Impact Review Board. The word jurisdiction here does not include “any relief against a board by way of an order in the nature of certiorari, mandamus, quo warranto or prohibition” as provided for in subsection 32(1). Had Parliament intended to vacate the Federal Court’s jurisdiction entirely, it would have used clear language to that effect. The exclusive jurisdiction conferred in subsection 32(2) is limited to matters concerning the two boards’ loss or lack of statutory authority to act. As such, section 32 of the Act does not vacate the Federal Court’s concurrent jurisdiction with respect to matters involving natural justice and procedural fairness. The Court could therefore hear and decide the matters at issue in the present instance. The purpose of Part 5 of the Act, which pertains to the Mackenzie Valley Environmental Impact Review Board, is set out in section 114. It is “to establish a process comprising a preliminary screening, an environmental assessment and an environmental impact review in relation to proposals for developments” and, inter alia, “to ensure that the concerns of aboriginal people and the general public are taken into account in that process.” In application T-1379-05, the Crown was found to have failed to discharge its duty to consult and accommodate before making a final decision on the approval of the extension project. Inherent in the Crown’s duty to consult is the obligation to ensure that the concerns of the Aboriginal people are taken into account. By failing to meet its duty to consult and accommodate in the circumstances of this case, the Crown could not, therefore, be said to have taken into account the concerns of the Aboriginal people, as required by section 114 of the Act, before making its decision to approve the extension project. As the requirements of Part 5 were not complied with, the Board was prevented, pursuant to section 62 of the Act, from issuing the permit at issue in these proceedings. The Board’s decision was therefore set aside. However, because an immediate order quashing the permit might have been counter-productive to the overall process, the parties were given an opportunity to address the question of whether the effect of such an order should be stayed for a period of time to allow for consultation.