‘Confounded’ regulator condemns Parks Canada over Thaidene Nene

Days before the formal creation of Thaidene Nene, a top environmental authority has criticized Parks Canada for disregarding due process – and the territorial government for “deeply concerning” flaws.

The board tasked with governing the NWT’s environmental assessments says neither Parks Canada nor the territorial government properly conducted preliminary screenings for the new park.

Thaidene Nene’s formal signing ceremony is set to take place on Wednesday, August 21.

That ceremony will finalize the creation of a national park reserve overseen by Parks Canada and a territorial protected area and wildlife conservation area governed by the NWT. The Łutselkʼe Dene First Nation considers the entire proposal a protected area under its own laws.

Thaidene Nene will cover 26,376 square kilometres of land extending to the northeast of Łutselkʼe – just over half the size of nearby Wood Buffalo National Park, which is Canada’s largest such park. Parks Canada has been trying to create Thaidene Nene, in proposals of varying size, since the 1970s.

While the Łutselkʼe Dene have expressed excitement at the opportunity to protect nearby land and benefit from a park economy – in part through federal funding and tourism ventures – the Yellowknives Dene First Nation has been less receptive.

Meanwhile, the mining and exploration industries have opposed sealing off a significant area of the NWT to development. The NWT’s chamber of mines, for example, contends that even though Parks Canada spent several million dollars assessing the area for its mining potential, that figure is many times smaller than the amount a mining company would spend performing the same work.

More recently, the chamber and other industry figures have complained that in creating Thaidene Nene, Parks Canada and the NWT government have failed to abide by the same rules a mine would be expected to follow in similar circumstances.

Any project of this size must go through a process known as a preliminary screening. This is an initial examination of a proposal to see if its potential impacts on the surrounding area might require a more thorough review, called an environmental assessment.

Environmental assessments are often time-consuming and costly endeavours. Projects undergoing preliminary screening are usually hoping to avoid having to go through an assessment, which can create uncertainty and delays.

Both the federal government (in the form of Parks Canada) and the territorial government are allowed, by law, to conduct preliminary screenings on their own projects – which, in the case of Thaidene Nene, they did.

More: What are preliminary screenings?

But the Mackenzie Valley Environmental Impact Review Board, which oversees the screening and assessment process, says both governments cut corners.

In its conclusion, the review board says it won’t trigger an environmental assessment despite its dissatisfaction with the preliminary screenings, essentially because it would be pointless – Thaidene Nene already has parliamentary approval, which appears to render the review board powerless.

“The review board is left to consider what an environmental assessment could reasonably be expected to accomplish after Parliament has already decided on the boundaries,” the board stated in response to requests from two groups – the NWT Chamber of Mines and the North Slave Métis Alliance – to order an environmental assessment of the federal side of Thaidene Nene.

The review board did not pass judgement on the criticisms raised by those two groups. The chamber expressed concern about reduced access to potentially mineral-rich land and Parks Canada’s decision-making process, while the Métis expressed concern about their rights in the region and their involvement in the park’s establishment.

A map of the proposed Thaidene Nene park published by the Łutselkʼe Dene First Nation.

However, the review board said Parks Canada’s preliminary screening – which found no environmental assessment would be needed – was significantly flawed.

The review board’s primary complaint is that the federal government jumped the gun by putting laws in place to create Thaidene Nene, even while the preliminary screening was still taking place.

“Preliminary screening is intended to be carried out before a development is acted upon, when it is still feasible to make changes,” the review board stated in an August 2 decision.

The board said new legislation was tabled in Ottawa on April 8 and given Royal Assent on June 21, but the preliminary screening was not completed until July 5.

‘Deeply concerned’

One senior mining industry official, speaking on condition of anonymity to discuss a sensitive political topic, said no proposed mine would ever be allowed to proceed without further assessment in similar circumstances.

They accused Parks Canada of ignoring rules mines are obliged to follow.

The review board agreed.

“The review board acknowledges the careful planning and negotiations which went into the Thaidene Nene proposal, but the timing of the legislative process relative to the screening is problematic,” the board wrote.

“While it might be theoretically possible for Parliament to reverse or repeal its Thaidene Nene establishment decision, the board is of the opinion that such an action is effectively impossible.

“The amendments already made to the Canada National Parks Act raise significant legal questions about the value of an environmental assessment in this case,” the board concluded, ruling an assessment could not take place because it was unclear how one could have any impact.

“The review board’s consideration of the concerns raised … has been confounded by Parks Canada’s approach to, and the timing of, the preliminary screening.”

Thaidene Nene required a second preliminary screening conducted by the territorial government for its share of the overall park. The review board was not thrilled with that screening process, either.

In particular, the review board took issue with one sentence in the territorial government’s summary of its screening, which stated “there is no likelihood that the proposed development might be a cause of public concern in relation to a potential impact on the environment that could be included within the scope of an environmental assessment.”

The review board said it was not the NWT government’s job to reach “speculative conclusions” about how an environmental assessment might look. The board also said the territory had wrongly ignored potential economic concerns with the park’s creation.

Despite these reservations, the review board again said it would not trigger an environmental assessment.

Parks Canada silent

Parks Canada was first approached for comment by Cabin Radio on July 19, regarding key concerns expressed by industry about Thaidene Nene’s creation and Parks Canada’s approach to its preliminary screening. All such enquiries are referred by staff in the NWT to Parks Canada’s central communications team.

In an extraordinary series of responses, Parks Canada failed to produce a single written or verbal reply of substance to Cabin Radio’s questions over a one-month period, despite the questions being set out in detail by email (an excerpt of which is shown below).

On August 6, Parks Canada said by email it had “been having a hard time tracking down some of the information” as staff had been on leave.

On August 9, by phone, a Parks Canada spokesperson said none of the questions would receive an answer. “We have this announcement coming up,” the spokesperson said. “If we were to give you the responses to your questions, you would be publishing our announcement.”

Cabin Radio challenged the suggestion of any similarity between questions regarding industry concerns and due process, and an announcement at a signing ceremony.

Parks Canada promised on August 9 to follow up. No further communication on the matter was received.

(Parks Canada’s refusal to answer such questions, on a regular basis, was the subject of an extended essay by The Narwhal in September 2018. Earlier this month, Parks Canada was unable even to confirm the number of whooping cranes in the NWT – despite having given the number to non-profits for publication – as “the process for media is different,” a spokesperson said.)

Parks Canada last week refused to confirm August 21 will be the date of the final signing ceremony for Thaidene Nene. Three officials with other organizations briefed on the ceremony told Cabin Radio this was the new date, after a July ceremony had been pushed back.

(Had the July ceremony gone ahead as planned, it would have taken place before the review board had even had the chance to publish its ruling on whether Thaidene Nene required an environmental assessment.)

Métis Nation seeks assurances

A federal government official briefed on the Thaidene Nene proposal, speaking on condition of anonymity to discuss a sensitive matter, said discussions with the NWT Métis Nation had held up the signing.

“We’re still in negotiations [with the federal and territorial government],” Northwest Territory Métis Nation President Garry Bailey told Cabin Radio last week, admitting his organization likely had “a little bit” to do with the signing getting pushed back.

Bailey said he believed the Yellowknives Dene First Nation also had concerns that remained to be addressed.

“We were pushing to make sure that our issues are addressed before they do anything. And like I said, we’re back at the table and we’re talking,” said Bailey. He said specific details of those negotiations were confidential.

The Métis Nation is in full support of the park, said Bailey, but feels the negotiation process for the territorial protected area was lacking compared to its federal equivalent.

“We wanted to make sure that our Aboriginal rights were protected, [like] harvesting and taxation. There’s a lot of issues we had to make sure were covered,” he explained. Bailey hopes to secure a compensation package with the NWT government “for the loss of opportunities in that area when it comes to economic development.”

Bailey said his group expected to sign off on all relevant documentation by the end of August 20.

Łutselkʼe Dene ready to celebrate

Steven Nitah, Thaidene Nene negotiatior for the Łutselkʼe Dene First Nation, dismissed remaining industry concerns when reached by Cabin Radio at the start of August for this report.

Nitah said the 50-year process of reaching this point had provided “an opportunity for everybody to have a discussion and identify concerns.” (The NWT Chamber of Mines has, in the past, said the 50-year history of Thaidene Nene is irrelevant as it is the final proposal, created only in recent years, which must be given full and thorough consideration.)

“From Łutselk’e’s perspective we have reduced the size of Thaidene Nene, from the original area of interest, to accommodate the mining industry,” said Nitah. “We eliminated high-potential areas and those areas that are unknown simply because of lack of resources to check. We have accommodated the mining industry quite a bit.

“From Łutselk’e’s perspective, we’re managing our territory to ensure that future generations continue to use that land and enjoy that land. Once we have Thaidene Nene signed off, we know those lands will never be developed industrially nor will new communities be developed in that area.

“We have a beautiful territory, a huge territory,” Nitah concluded. “You can have a 26,000 square-kilometre protected area and, at the same time, have industrial development within our territory.

“We’re taking the time to get everybody on board. We’d like everybody to come to Łutselk’e and celebrate with us.”

Sarah Pruys contributed reporting.

Cabin Radio will have more coverage of Thaidene Nene, the signing ceremony, and how some residents of Łutselk’e see their future changing with the park’s creation, later this week.