Regulatory and Policy Updates

Thaidene Nëné National Park Reserve - EA Process and Questions of Double Standard

Thursday, November 21, 2019 - 12:00pm to 12:20pm Theatre Three


A.G. Chamberlain (Presenting)
Gowling WLG

The federal government appears not to have complied with its own environmental assessment process before it established a 33,360 km2 protected area in the NWT. The area, Thaidene Nëné National Park Reserve, Territorial Protected Area and Wildlife Conservation Area, was formally proclaimed as a National Park Reserve 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 consider it to be the ‘heart of the homeland’ and a sacred place. It consists of a 14,305 km2 National Park Reserve protected by Parks Canada as well as 12,220 km2 of territorially protected areas and wildlife conservation areas. The park is considered an Indigenous Protected and Conserved Area, and the Łutsël K’é Dene will serve as its stewards.

Proposed developments in the region must apply and go through the environmental impact assessment process pursuant to the Mackenzie Valley Resource Management Act. The Act states that no authorization for the carrying out of development shall be issued “under any federal, territorial, Tlicho or Déline law unless the requirements … have been complied with ...”

The environmental assessment process begins with a preliminary screening, which is a review by a regulating authority, in this case, Parks Canada. At this stage, the preliminary screener is required to apply the test pursuant to 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 answered in the affirmative, the Act requires that the application is referred to the second-stage of the review process, an environmental impact assessment that is handled by the Review Board.

The Thaidene Nëné preliminary screening began April 5th, 2019. Within a month, Parks Canada received thirteen comments about the development, some raising concerns about the impact of the park on economic activity and the closing of mineral rich lands to exploration.

On July 5th, 2019, a decision was released by Parks Canada not to refer the park to the Review Board for an environmental assessment

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 created the park.

The Review Board did not order an EA and it noted that the preliminary screening process conducted by Parks Canada was inconsistent with the Act as irrevocable decisions to proceed had already been made. The Review Board stated that while it might be theoretically possible for Parliament to reverse or repeal its decision to create the park, such an action was “effectively impossible.”

This presentation will discuss the process and competing views on the validity of the process in light of the decision of the Review Board, the legal requirements to which the government is itself subject to and the involvement of Łutsel K’e Dene First Nation in the park creation process.