On November 4, 2015 the Yukon Court of Appeal (the "Court") released its decision in The First Nation of Nacho Nyak Dun v. Yukon, rejecting the Yukon government's land use plan for the Peel Watershed.1 This decision was an appeal of the Yukon Supreme Court's ("Supreme Court") decision released on December 2, 2014. We commented on the Supreme Court decision here.
The Court allowed the appeal in part. The Court upheld the Supreme Court's finding that the Government of Yukon ("Yukon") did not honour the letter or spirit of Chapter 11 of the Umbrella Final Agreement ("Final Agreement") between Yukon and the affected First Nations. The Court also found that the Supreme Court's remedy did not return the parties far enough back in the land use planning process to reflect the intent of the Final Agreement. The Court's decision centered on returning the parties to the point where Yukon's failure to honour the process laid down in the Final Agreement first occurred. The Court found that Yukon's error occurred at an earlier stage in the land use planning process where Yukon curtailed the dialogue that was essential to the reconciliation envisioned in the Final Agreement.
The Planning Process
The Peel Watershed is an undeveloped wilderness area in northeast Yukon. Currently, there are no mines in the Peel Watershed, although there is considerable interest in mineral exploration there. The land use planning process in Yukon is based on Chapter 11 of the Final Agreement, which works in concert with individual self-government treaties between First Nations in Yukon and the Crown, once negotiated. As required by Chapter 11, a Peel Watershed Planning Commission was established to draft the Land Use Plan for this area. Chapter 11 requires the Planning Commission to draft an initial Recommended Plan, and Yukon was required to consult on that plan before approving, rejecting or proposing modifications to it (s.11.6.2). If Yukon rejected or proposed modifications, it was required to forward written reasons to the Planning Commission. The Planning Commission was then required to reconsider the plan, taking into consideration the proposed modifications, and propose a Final Recommended Plan. Yukon was then required to consult on the Final Recommended Plan before final approval, rejection, or modification of that plan (s.18.104.22.168).
In January 2010, the Planning Commission released the Recommended Plan pursuant to s.11.6.2. Following consultation with affected First Nations and communities, Yukon proposed important modifications and provided only general comments on the Recommended Plan. Yukon's proposed modifications were not sufficiently detailed. The Planning Commission later expressed frustration about the lack of detail in the revised plan and reasons supporting Yukon's proposed modifications.2
In July 2011, the Planning Commission released its Final Recommended Plan pursuant to s.22.214.171.124. In this plan, the Planning Commission responded to the parties' comments and proposed modifications, including Yukon's general comments.
In 2012, Yukon announced its plans to modify and complete the Land Use Plan. Yukon released its final version of the Land Use Plan in January 2014 (Yukon's "new Plan"). Yukon's new Plan was significantly different than the Planning Commission's Final Recommended Plan. In Yukon's new Plan, the percentage of the Peel region designated conservation lands was unilaterally reduced from 80% to 29%.
The Court upheld the Supreme Court's finding that Yukon did not honour the letter or spirit of Chapter 11 of the Final Agreement. In affirming this finding, the Court noted that Yukon's right to propose modifications to the Recommended Plan is subject to prior consultation with affected Yukon First Nations and communities. Proposed modifications must also be accompanied by written reasons that set out a much better explanation than was offered by Yukon. Written reasons were required by the planning process to allow the Planning Commission to fully comprehend Yukon's response and to allow consulted parties to provide meaningful feedback on Yukon's proposed modifications. 3 The Court also found that Yukon did not properly exercise its right to propose modifications at the final stage of the planning process (s.126.96.36.199), as Yukon's new Plan could not be said to be based upon the modifications proposed at the earlier stage of the planning process (s.11.6.2).4
The Court held that the proper remedy in this instance would be to return the parties to the point in the planning process they were in before the breach, thus allowing the Commission to perform its duties appropriately. In this regard, the Court went further than the Supreme Court. The Court found that the remedy granted by the Supreme Court, remitting the parties back to the later stage of the process (188.8.131.52), would rely on a plan that was the result of a flawed process and would not serve the interests of reconciliation. 5 The Court found that the breach began when Yukon did not properly set out the details behind its proposed modifications to the Planning Commission at the earlier stage of the planning process (s.11.6.2).
The Court clarified that by sending the parties back to the earlier stage of the planning process, Yukon would not be permitted to simply submit its new Plan as its response to the Planning Commission's Recommended Plan. Yukon would be required to consult with affected First Nations and then respond to the Recommended Plan with a sufficient level of detail and written reasons, as the Chapter 11 planning process envisioned.6
This decision represents a partial victory for Yukon, since it had argued that if the Supreme Court was correct in finding that Yukon breached the Final Agreement, it should have been put in the position it occupied prior to the breach, so that it could properly represent the people of Yukon in completing the plan and serve the goal of reconciliation.7
This decision also represents a victory for First Nations. It follows a line of decisions including Little Salmon/Carmacks First Nation v. Yukon, which hold that the duty to consult forms part of the legal framework which informs the implementation of treaties or land claim agreements.8 The Final Agreement, the role of the Planning Commission, and the planning process were the result of a collaborative agreement between Yukon and the First Nations. The agreement must be respected in order to uphold the honour of the Crown and to serve the goal of reconciliation.
This decision confirms that the honour of the Crown is engaged in the process of implementing modern treaties and land claims agreements and that these agreements are central components of the process of reconciliation. In this case, there was a process set out in the Final Agreement that was misinterpreted and misapplied by Yukon. In doing so, Yukon undercut key requirements for consultation, and the objective of reconciliation. This decision emphasizes the protection afforded to land claim processes, as well as to substantive rights. It also affirms Canadian courts' continuing focus on reconciliation and the honour of the Crown as fundamental guiding principles for the Crown to adhere to in Aboriginal consultation and planning processes, particularly in the management of public resources. Land claim based land use planning processes exist in both the Northwest Territories and Nunavut and this decision should be of interest to planning boards and governments working toward land use planning approvals in those jurisdictions as well.
1 The First Nation of Nacho Nyak Dun v. Yukon, 2014 YKSC 69.
2 Ibid at para 56.
3 Ibid at para 138.
4 Ibid at paras 160 to 162.
5 Ibid at para 169.
6 Ibid at para 167.
7 Ibid at para 110.
8 Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53.
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