Canada: Reconciliation Includes Respecting Land Claims Agreements And Co-Management Processes – Supreme Court Of Canada Quashes Yukon's Peel Watershed Land Use Plan

 On December 1, 2017 the Supreme Court of Canada released its long-awaited decision on the future of Yukon's Peel watershed.1 In its unanimous decision, the Court quashed the Government of Yukon's (Yukon) land use plan and returned the parties to the stage in the land use plan approval process where Yukon can approve, reject, or modify the land use plan put forward by the Peel Watershed Planning Commission (the Commission).

This case centred on the interpretation of the Umbrella Final Agreement (UFA) and the roles of government and others in the implementation of a modern Treaty protected under section 35 of the Constitution Act 1982. More specifically, the Court's decision focuses on the implementation of the co-management processes set out in the UFA and other land claim agreements and clearly underscores the importance of reconciliation with Indigenous peoples in the context of abiding by those processes.

This decision will primarily affect governments, First Nations, Aboriginal organizations, industry and others living and operating in areas of Canada where modern comprehensive land claim agreements have been settled or are being negotiated. While the majority of the Canadians do not reside in these areas, this decision is geographically important as modern treaties cover more than 50% of the Canadian landscape and lands abundant in natural resources.

Background

The UFA and the First Nations Final Agreements that implement the UFA's terms were completed and ratified after decades of negotiation between Yukon First Nations and Yukon. The Final Agreements are modern treaties with individual First Nations including the First Nation of Nacho Nyak Dun, Tr'ondëk Hwëch'in, and Vuntut Gwitchin First Nation. The UFA applies to all Final Agreements but Final Agreements can be tailored to include provisions specific to each First Nation.

Chapter 11 of the UFA establishes a process for developing regional land use plans. The process is designed to ensure meaningful participation of First Nations in the co-management of public resources in settlement land (owned by a Yukon First Nation) and non-settlement lands. Each Final Agreement incorporates Chapter 11 of the UFA without modification.

The Yukon Land Use Planning Council established the Commission in 2004 to develop a Regional Land Use Plan for the Yukon portion of the Peel Watershed. As required by Chapter 11, the Yukon and First Nations individually and jointly nominated members of the Commission.

After more than four years of research and consultation, the Commission submitted its Recommended Peel Watershed Regional Land Use Plan (Recommended Plan) to Yukon and the affected First Nations. After consultation, Yukon was required to approve, reject, or propose modifications to the Recommended Plan. If Yukon proposed modifications, Chapter 11 required Yukon to provide written reasons supporting such modifications.

Prior to carrying out consultation on the Recommended Plan (as required by Chapter 11), Yukon and the affected First Nations met and signed a Letter of Understanding (LOU) in 2010, which set out plans to conduct joint community consultation and to work towards achieving consensus on the land use plan. Yukon and the affected First Nations signed a similar second LOU in January 2011 in anticipation of a second round of consultation.

In February 2011, parties, including affected First Nations, submitted responses to the Recommended Plan as required by the LOU. A few days later, Yukon submitted its written response. Yukon's written response included two statements expressing interest in increased options for access and development in the Peel Watershed area.

The Commission was required to reconsider the Recommended Plan in view of Yukon's written response and responses received from other parties. The Commission concluded that Yukon's statements on increasing access and development were merely expressions of general inclination and not "proposed modifications".2

In July 2011, the Commission released its Final Recommended Plan. The Final Recommended Plan incorporated specific modifications proposed by the parties, but did not incorporate any part of Yukon's statements on increasing access and development.

Following the release of the Final Recommended Plan, Yukon did not follow the second LOU agreed to by Yukon and affected First Nations. Instead, Yukon released principles to guide or explain its "modification" of the Final Recommended Plan, as well as a new land use designation system. First Nations objected to both the principles and the proposed land use designation system. Yukon then conducted a second round of consultation without coordination with affected First Nations as required by the LOU.

In October 2013, Yukon sent letters to affected First Nations summarizing its anticipated "modifications" to the Final Recommended Plan. Despite objections from the First Nations, in January 2014, Yukon approved its land use plan for non-settlement land in the Peel Watershed. Legal challenges followed.

Both the trial judge and the Court of Appeal agreed with the appellants that Yukon did not act in conformity with the process set out in the Final Agreements. Additionally, both courts agreed that Yukon's authority to modify the Final Recommended Agreement was limited to modifications it had previously proposed to the Recommended Plan.

However, the courts differed on the scope of Yukon's authority to reject a Final Recommended Plan. While the trial judge held that Yukon could not reject a Final Recommended Plan in its entirety if it had already proposed modifications to the Recommended Plan, the Court of Appeal concluded that the Yukon's authority was broad and could include rejection of a Final Recommended Plan.

The courts also disagreed on the appropriate remedy. The trial judge ordered Yukon to re-conduct its second consultation, then either approve the Final Recommended Plan or modify it based on Yukon's previously proposed modifications. The Court of Appeal returned the parties to an earlier stage in the planning process where Yukon could propose new or further modifications to the Recommended Plan.

The Supreme Court Decision

The basic question to be resolved by the Court was whether Yukon had the authority to make the significant changes that it did to the Final Recommended Plan. If not, the Court had to determine at what stage in the land-use planning process should the parties return to under the UFA for any renewed efforts to complete the Peel watershed planning process.

As explained above, the UFA gives Yukon the authority to approve, reject or modify a Final Recommended Plan proposed by the Commission. On the question of how extensive a modification could be, the Court held that the term did not include an unconstrained power to make changes to the Final Recommended Plan as argued by Yukon. The Court held that the term "modify" is limited by its context and by a reading of the whole UFA. The Court found that such a modification exercise could only involve minor or partial changes that would not alter the fundamental nature of the Final Recommended Plan.

The interpretation of the word "modify" in this context is important because it has implications beyond just the UFA. Arrangements whereby the Crown may "accept, modify or reject" a decision of a co-management tribunal are commonly found in other land claims decision-making processes for matters ranging from wildlife management to environmental impact assessment.

The Court, consistent with its decision in the Little Salmon,3 spoke to the role of the courts when a dispute arises in the implementation of a modern treaty:

In resolving disputes that arise under modern treaties, courts should generally leave space for the parties to govern together and work out their differences. Indeed, reconciliation often demands judicial forbearance.4

The Court further held that:

It is not the appropriate judicial role to closely supervise the conduct of the parties at every stage of the treaty relationship. This approach recognizes... modern treaties... as in this case, may set out in precise terms a cooperative governance relationship.5

However, the Court did not back away entirely: "[J]udicial forbearance should not come at the expense of adequate scrutiny of Crown conduct to ensure constitutional compliance".6

The Court applied its framework of modern treaty interpretation principles consistent with its earlier jurisprudence and the interpretation principles set out in the UFA itself.7 The Court emphasized the importance of deference to the text of modern treaties and that such treaties will not accomplish the purpose of fostering positive, long-term relationships between Indigenous peoples and the Crown if they are interpreted "in an ungenerous manner or as if it were an everyday commercial contract".8

Most importantly, the Court held that courts must "strive to respect the handiwork of the parties to a modern treaty, subject to such constitutional limitations as the honour of the Crown".9 The Court was clear that the purpose of these interpretive principles is to advance reconciliation:

Although not exhaustively so, reconciliation is found in the respectful fulfillment of a modern treaty's terms.10

Speaking to the details in the UFA, the Court noted that the power to approve, reject or modify a land-use plan is subject to prior "consultation". The term "consultation" is defined in the treaty to require notice in "sufficient form and detail" to allow affected parties to respond to the Crown's contemplated modifications to the Final Recommended Plan and then give "full and fair consideration" to the views presented during the consultations before deciding how to respond to the Final Recommended Plan. The Court characterized the consultation process required by the Agreement as "robust".11 Other comprehensive land claim agreements include definitions of "consult" or "consultation" which are similar to those in the UFA.

The Court went further in its discussion of the context within which relevant provisions of Chapter 11 of the UFA should be interpreted, recognizing the fundamental trade-off made by First Nations in the negotiation of the UFA. The Court underlined the importance of the UFA as a "comprehensive process for how the territorial and First Nations governments will collectively govern settlement and non-settlement lands, both of which include traditional territories".12 The Court acknowledged that "[t]he Chapter 11 process ensures that Yukon First Nations can meaningfully participate in land-use planning for both settlement and non-settlement lands. ... [In] exchange for comparatively smaller settlement areas, the First Nations acquired important rights in both settlement and non-settlement lands, particularly in their traditional territories."13

The Court makes clear the application of the Nacho Nyuk Dun decision to the overall resource management framework established in Yukon by the UFA. The Court quotes with approval from the Chief Land Claims Negotiator for the Yukon government at the time the UFA was settled:

... It became abundantly clear that [the First Nations'] interests in resources were best served by creatively exploring options for shared responsibility in the management of water, wildlife, forestry, land and culture. Effective and constitutionally protected First Nation management rights advanced their interests and resource use more effectively than simply acquiring vast tracts of land [as settlement lands]...14

Through this decision, the Court has identified and emphasized the fundamental importance of the co-management regimes which characterize comprehensive land claim agreements across northern Canada. The Nacho Nyuk Dun decision underscores the constitutional underpinning of these arrangements and their importance in the quest for reconciliation in northern landscapes.

The Court has signalled that governments are required to consult First Nations with land claim agreements and may only make changes under these co-management regimes in a manner consistent with the land claims and with the honour of the Crown. Recent experience in the Northwest Territories devolution process with legislation purporting to consolidate land and water co-management boards in the Mackenzie Valley indicates that such changes must be approached carefully and, we suggest, where possible, collaboratively between government and the First Nations. For instance, in 2015 the Tlicho government successfully brought an application for an injunction preventing the elimination of various Land and Water Boards resulting from the Northwest Territories Devolution Act, SC 2014, c. 2.15 The Court found that the elimination of the Boards could violate the Tlicho government's right to effective and guaranteed participation under the Tlicho Agreement and granted the injunction.16

In Nacho Nyuk Dun, the Court also strongly emphasized the importance of good faith participation in the co-management process set out in the UFA for land-use planning. Respecting the options available to Yukon once the Final Recommended Plan had been presented, the Court concluded:

Yukon must bear the consequences of its failure to diligently advance its interests and exercise its rights to propose access and development modifications to the Recommended Plan. It cannot use these proceedings to obtain another opportunity to exercise a right it chose not to exercise at the appropriate time. Accordingly, I agree with the trial judge that "it would be inappropriate to give the Government the chance to now put its January 2014 plan to the Commission". The appropriate remedy was to quash Yukon's approval of its plan..."17

Conclusion

While this decision speaks to the importance of consultation, its overarching effect is to show the importance of land claims based co-management processes in the context of broader government decision-making about land and resource management in areas covered by comprehensive land claim agreements. These processes are a fundamental part of the bargain negotiated and accepted by First Nations and Inuit in exchange for the relinquishment of their claims over parts of their traditional areas of land use and occupancy. The constitutional protections afforded to these processes through land claim agreements establish a new framework for governance which must be respected by governments. While changes to such arrangements are possible, they can only be achieved collaboratively.

Government participation in decision-making in relation to such processes must be undertaken in good faith and in a manner which upholds the honour of the Crown. This framework of rights, obligations and processes is fundamental to the ongoing accommodation of Aboriginal interests which is essential to the Crown's long-term goal of reconciliation with Indigenous peoples.

Footnotes

1 First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58 [Nacho Nyak Dun].

2 Nacho Nyuk Dun, supra note 1 at para 22.

3 Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 [Little Salmon].

4 Nacho Nyuk Dun, supra note 1at para 33.

5 Ibid.

6 Ibid, at para 34.

7 All modern land claims include their own "interpretation" chapters.

8 Nacho Nyuk Dun, supra note 1 at para 37; Little Salmon, supra note 3 at para 10.

9 Nacho Nyuk Dun, supra note 1 at para 37; Little Salmon, supra note 3 at para 54.

10 Nacho Nyuk Dun, supra note 1 at para 38.

11 Ibid at para 41.

12 Ibid at para 42.

13 Ibid at para 46.

14 Ibid at para 46.

15 Tlicho Government v Canada (Attorney General), 2015 NWTSC 9.

16 The full name of the Tlicho Agreement is Land Claims and Self-Government Agreement Among the Tlicho and the Government of the Northwest Territories and the Government of Canada.

17 Nacho Nyuk Dun, supra note 1 at 61.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Charles Birchall
John J.P. Donihee
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions