Front page news is often made when private interests fail to meet environmental assessment requirements and related regulatory or Indigenous consultation requirements. While often subject to the same rules, government projects and undertakings do not seem to attract the same level of public scrutiny - at least in the main stream media. A controversial case in point relates to a national park reserve and protected area in the Northwest Territories.

Earlier this year, the federal government appears to have not undergone a proper environmental assessment process before it established a 33,360 km2 protected area located at the eastern end of Great Slave Lake in the Northwest Territories. The area, Thaidene Nëné National Park Reserve, Territorial Protected Area and Wildlife Conservation Area ("Thaidene Nëné"), was formally proclaimed as protected on August 21, 2019.

Thaidene Nëné is a jointly protected park reserve by the federal and territorial governments together with the Łutsël K'é Dene First Nation, who will serve as the stewards of Thaidene Nëné. Indeed, the Łutsël K'é consider it to be the 'heart of the homeland' as well as a sacred place.

Thaidene Nëné consists of a 14,305 km2 National Park Reserve protected by Parks Canada as well as 12,220 km2 of territorially-protected areas and a wildlife conservation area under the jurisdiction of the Government of the Northwest Territories. The park is also considered an Indigenous Protected and Conserved Area. In addition, the federal government will invest $40 million over the next twelve years for the operation and establishment of the park.

Although the park was proposed over fifty years ago, Parks Canada and the Łutsël K'é Dene First Nation only signed a Framework Agreement in 2010. Over the five years that followed, Parks Canada met with the Łutsël K'é Dene First Nation, the Government of Northwest Territories, and a number of other groups to establish the boundaries and size of the proposed park.

By February 2019, the Łutsel K'e held a referendum, and 88% of ballots were in favour of establishment of the Park. By June 21, 2019 amendments to the Canada National Park Act to include the park as a national park reserve received Royal Assent. At that point in time, no stages in the environmental assessment process had been completed.

The Environmental Assessment Process and Outcome

In the case of Thaidene Nëné, the environmental assessment was to be conducted by a review panel, being the MacKenzie Valley Environmental Impact Review Board ("Review Board"), which was established through the federal Mackenzie Valley Resource Management Act, SC 1998 c 25 (the "Act"). The Review Board is responsible for environmental assessment processes that occur in the Mackenzie Valley and is a result of completed land claims in the Northwest Territories.

Under section 124 of the Mackenzie Valley Resource Management Act, all proposed developments must at minimum go through the first stage of a three-part environmental assessment process. Section 118 of the Act, speaking to the screening process, states that no authorization for the carrying out of development shall be issued "under any federal, territorial, Tlicho or Déline law unless the requirements of this Part have been complied with in relation to the development."

Under the Mackenzie Valley Review Board, the environmental assessment process begins with a preliminary screening, which is a review by a regulating authority, in this case, Parks Canada, to determine if the development would have adverse impacts on the environment. At this stage, the preliminary screener is required to apply the following test pursuant to section 125 of the Act:

  1. Might the development proposal cause significant adverse impacts on the environment?
  2. Might the development proposal be a cause of public concern?

If one or both of these two questions are answered in the affirmative, section 125 of the Act requires that the application be referred to the second-stage of the review process, an environmental assessment that is handled by the Review Board.

In the case of Thaidene Nëné, the preliminary screening began on April 5th, 2019 when it submitted a description of the development to interested parties. Within a month, Parks Canada received thirteen comments about the development, some of which had raised concerns about the impact of the park on economic activity due to the closing off of mineral rich lands to exploration.

The preliminary screening remained open until July 5, 2019, when a decision was released by Parks Canada not to refer the park to the Review Board for an environmental assessment because,

"There is no reasonable likelihood that establishment of Thaidene Nëné national park reserve might have a significant adverse impact on the environment (natural environment, social cultural resources, or heritage resources)."

The preliminary screening closed two weeks after the decision was made by the federal government to give Royal Assent to the creation of Thaidene Nëné, which legally created the park reserve.

In response to Parks Canada's decision at the preliminary screening stage, the Review Board was requested by two parties to order an environmental assessment on the development. The Review Board is empowered to do so under section 126(3) of the Act. In making its decision to order an environmental assessment, the Review Board does not need to apply the tests set out in section 125.

Although the Review Board ultimately decided not to order an environmental assessment, it noted that the preliminary screening process conducted by Parks Canada was inconsistent with the Act,

"In the view of the Review Board, it is not consistent with the MVRMA to complete a preliminary screening after irrevocable decisions to proceed with a development have already been made. That seems to be that case with TDNNPR. While it might be theoretically possible for Parliament to reverse or repeal its TDNNPR establishment decision, the Board is of the opinion that such an action is effectively impossible."

Some observers suggest that the inconsistency described by the Review Board likely would not have been as tolerated had it arisen from the actions of a non-governmental proponent. This raises the question of whether a double standard exists when it comes to the practical effect of environmental assessment regimes in the Northwest Territories.

The First Nations Point of View

As with all contentious matters there is more than one point of view to consider. As noted above, the Łutsël K'é Dene First Nation has been actively seeking protected status for the land in question for many years and has had much to say recently about the views of others.

Indeed, the Łutsel K'e, have been firmly opposed to further review of Thaidene Nëné. Having lead the establishment process since the 1970s, they have been vocal in their desire to preserve this land. In a letter to Parks Canada during the preliminary screening process, the First Nation stated that the park, "forms a significant element of our community's socio-economic and cultural vision for the future… Our people are ready to move forward with the opportunities Thaidene Nëné will bring. Let's not delay any longer."

On June 17, 2019, the Łutsel K'e Dene First Nation responded directly to a letter from the NWT Chamber of Commerce, which, along with other groups like the NWT & Nunavut Chamber of Mines, had called for an environmental assessment and a reduction in the size of the protected area. In that letter, the Łutsël K'é expressed the view that the Chamber's position was based on unfounded concerns. Further, they expressed that they took "deep offense" to the Chamber of Commerce claiming that their position was respectful to Indigenous communities,

"Actively working to undermine our community’s efforts to determine our own economic future is not "partnership"… The Chamber's opposition to Thaidene Nëné strengthens our reseolve to determine our own economic future, and our commitment to work with partners who share our vision. It is clear that the Chamber is not one of them."

The Chamber of Commerce responded by reopening dialogue and clarifying their support of the park in a letter to the Łutsel K'e Dene First Nation, but maintained the request for an environment assessment and reduced size of the protected area.  

Reconciliation and the EA Regime

Clearly this a complex situation with differing views from those occupying different positions. While industry and Indigenous interests may appear intractable that is may be less the fact than one might think. What is increasingly apparent, however, is the importance of the regulatory process itself. If stakeholders and participants in proposed undertakings - be they parks or mines - are unable to rely on the process, it is easy to see that they will be subject to being drawn into significant disagreements in the future.