Edéhzhíe. Photo: J. Larivere

This week a federal judge ruled that the Dehcho First Nations could continue its court battle to protect the subsurface of a proposed National Wildlife Area (NWA) in the NWT’s Horn Plateau region – a swath of crucial wildlife habitat in the northwest territories also known as Edéhzhíe.

In 2010 the Dehcho had initiated the court action by filing an application for a Judicial Review in Federal Court. The application sought a legal order to reinstate vital interim protections on the area which the federal government failed to renew in October 2010 – protections that had been in place for over eight years on the land beneath the proposed Edéhzhíe NWA. Edéhzhíe is one of the most revered sites of the Dehcho and Tlicho Dene communities around Great Slave Lake. 

The government’s 2010 decision opened Edéhzhíe to mining and drilling before it could be permanently protected as a NWA, putting this irreplaceable and sacred area at risk. As reported in a press release by the Dehcho First Nation at the time, “The federal government opened Edéhzhíe to exploration and mining after making a publicly funded mineral assessment of the area available to the mining industry.” 

In November 2009 a multi-stakeholder Working Group presented recommendations to establish the Edéhzhíe National Wildlife Area encompassing 14,250 km2 – or 57% of the original area proposed for study – to the Dehcho First Nations and Tlicho Government, who had jointly proposed the area for protection. The Working Group recommended that both the surface and subsurface lands of the NWA be fully and permanently protected – guarding the area from mining and oil and gas development. In July 2010 the Grand Chiefs of the respective First Nations governments then submitted the recommendations with a request to then federal Minister of Environment, Jim Prentice, to establish the Edéhzhíe NWA.

All of those actions preceded the government’s decision to not renew interim protections on the subsurface lands within Edéhzhíe.

Situated along the headwaters of the mighty Mackenzie River, Edéhzhíe is an important wetland stop-over for globally significant numbers of birds, including Tundra Swan and Greater White-fronted Goose, and contains the Mills Lake Important Bird Area. It also provides habitat for national species at risk, including boreal woodland caribou, wood bison and wolverine. 

Nature Canada launched a letter-writing campaign in November 2010 asking the Government of Canada to reinstate interim protection for Edéhzhíe’s subsurface lands. We argued the Minister of Aboriginal Affairs and Northern Development had the power to recommend an Order-in-Council that would clearly protect the surface and subsurface lands of Edéhzhíe until the NWA is officially established. Without these protections, Edéhzhíe National Wildlife Area could fail to become a reality and we would lose this unique and bountiful region of Canada’s North.

In December 2011, the federal government reinstated protection to 57 per cent of the area. After that, the federal government wanted to dismiss the Dehcho First Nation’s application for the Judicial Review, on the grounds that since the area has 57 per cent protection, the legal case was no longer needed. This week’s court ruling allows the Dehcho to continue to press their case. 

I think this story illustrates three important points about how we establish protected areas in Canada…

1. The recent court decision underscores the importance of trusting in multi-stakeholder  protected areas planning processes, such as the NWT Protected Areas Strategy (NWTPAS) process through which Edéhzhíe and 4 other candidate NWAs are being proposed.
2. Justice O’Keefe’s decision also underscores the importance of comprehensive consultation with First Nations and Aboriginal governments at every step during the establishment of protected areas on lands of cultural and ecological significance. As the NWTPAS slogan suggests “the land takes care of us, we take care of the land”.
3. Finally, it reminds me of the ever-lurking the threat posed by potential development of subsurface resources in our protected areas – both before they are designated and after, depending on the laws used for their establishment. The Canada Wildlife Act, the law under which all National Wildlife Areas are established, does not include automatic protection for the lands beneath NWAs. In contrast, the Canada National Parks Act, which is used to establish National Parks, requires full protection of the surface and subsurface lands within parks. While Environment Canada has a permitting policy in place to limit access to subsurface resources once an NWA is established, the real risk comes from pre-existing mineral claims and oil and gas licenses that fall within the boundaries of a proposed NWA or one that’s already established. That’s the threat with respect to proposed sites like Edéhzhíe, and interim protections on subsurface lands are meant to prevent this problem from ever arising. 

Nature Canada released a report in early 2012 detailing the threat of subsurface resource development in Canada’s NWAs and Migratory Bird Sanctuaries, and offering recommendations to mitigate those threats. You can read the executive summary for a snapshot of just how ‘at-risk’ Canada’s NWAs and MBSs really are.