Canada: ­­Implementation Of Modern Treaties: First Nation Of Nacho Nyak Dun v. Yukon

Originally published December 2017

On Friday, December 1, the Supreme Court of Canada released its decision in the Peel River case that we first reported on here and here. The decision deals with the obligations of the Yukon Government to follow the land use planning process set out in modern land claim agreements with First Nations in Yukon, more specifically the development of a land use plan for the Peel River watershed. However, while the decision arises from a land use planning regime unique to Yukon, the decision will have implications for how governments and courts approach interpretation and application of obligations under modern treaties across Canada. By extension, the decision will have implications for resource developers in parts of Canada that are covered by modern treaties.

Background

As set out in more detail in our previous posts, this case involved the interpretation of provisions in modern treaties (called final agreements) between three Yukon First Nations, Canada and the Yukon Government. Those final agreements contain provisions setting out a process for collaborative development of land use plans within the First Nations' traditional territories. The process allows the parties to create an independent land use planning commission to develop an initial recommended plan for approval by the Yukon government (for territorial lands) and by the First Nations (for their settlement lands). The process requires the Yukon government to consult on that plan before approving, rejecting, or proposing modifications to it (section 11.6.2 of the Final Agreement). In response to Yukon's decision at that stage, the Commission was then required to reconsider as necessary and propose a Final Recommended Plan, followed by another obligation on Yukon to consult on that plan before final approval, rejection or modification by Yukon (section 11.6.3.2 of the Final Agreement).

In this case, Yukon provided very general requested changes to the initial recommended plan developed by the Commission.  When the Final Recommended Plan was submitted by the Commission, the Yukon government then proposed substantial modifications. The trial judge found that to be "an ungenerous interpretation not consistent with the honour and integrity of the Crown", and not only remitted the process back to the 11.6.3.2 stage, but ordered Yukon, after it conducted the ordered consultation, to either approve the Final Recommended Plan, or modify it based on the modifications it had proposed to the initial recommended plan. In other words, in the trial judge's view it was not open to the Yukon government to reject the Final Recommended Plan.

The Court of Appeal agreed with the trial judge that Yukon had run afoul of its obligations under the treaties, but imposed a significantly different remedy. The Court of Appeal ordered that the parties return to the 11.6.2 stage, which would effectively have given Yukon an opportunity to propose more extensive changes to the recommended plan, as opposed to limited modifications to the Final Recommended Plan. In many ways, for the Yukon First Nations this was "winning the battle but losing the war", and they appealed to the Supreme Court of Canada.

Before the Supreme Court, the Yukon government did not contest that it had not complied with the process set out in the final agreements. However, at issue was whether the land use planning process should be sent back to an earlier stage in the process, or to the final stage where the Yukon government's options were limited to approving, modifying or rejecting the Final Recommended Plan.  

This was more than an academic dispute about processes. The Final Recommended Plan had proposed significant limits to resource development activities in the Peel River region, focussing instead on conservation priorities. The Yukon government wished to override those recommended limits through the extensive changes it proposed to the Final Recommended Plan.  If the planning process was only sent back to the final stage, the Yukon government's ability to make those changes would be more limited. 

Decision

The Supreme Court overturned the Court of Appeal's decision and reinstated part of the trial judge's ruling, which was to return the parties to the point in the process where Yukon was only able to either approve, reject or modify the Final Recommended Plan.  Unlike the Court of Appeal, the Supreme Court did not send the parties back to an earlier stage in the process, which would have effectively allowed Yukon an opportunity to "backfill" and introduce modifications that it previously failed to make.  Rather, the Court returned the parties to the position they were in after the Commission issued the Final Recommended Plan, significantly narrowing the range of modifications Yukon would be allowed to make to the plan. The Court stated:

[61] ... Yukon must bear the consequences of its failure to diligently advance its interests and exercise its right 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. 

In making its decision, the Court underscored that courts should not go further than they need to in resolving a dispute regarding an alleged breach of a modern land claims agreement. The Court was clearly concerned that the Court of Appeal had inserted itself into the ongoing treaty relationship by returning the parties to an earlier stage of the land use planning process. In a similar vein, the Court was concerned that the trial judge had also gone further than needed by ordering that Yukon must either accept or modify the Final Recommended Plan based on recommendations it had previously proposed. Rather, the Court simply returned the parties to the stage they were at, without constraining the Yukon government's decision beyond what was required by the treaty. In doing so, the Court clarified that the Yukon government was not necessarily limited to recommendations it had previously proposed and that it could make minor amendments based on changing circumstances, but it could not do as it had done earlier and effectively propose a brand new plan at this stage of the process.

Implications

As with the lower court decisions, the Supreme Court of Canada's decision confirms that the Yukon government has the ultimate power to make decisions regarding the management and use of its territorial lands. However, that power is not unfettered. The decision also reminds governments — and by extension resource developers relying on authorizations given by governments — that treaty rights contained in modern land claim agreements are to be given a large and liberal interpretation consistent with the objectives of the treaty and in a manner that upholds the honour of the Crown. This includes commitments governments have made about processes for consideration of Indigenous interests in making decisions about Crown lands. In particular, the decision sends a message to governments that where a land use planning process is set out by a treaty, governments must follow that process in good faith from the outset – they will not be allowed to backfill where they fail to raise issues at the outset.  

Because this case deals with the unique wording of the land use planning provisions of the Yukon treaties, its direct impact outside the Yukon may be limited.  Nevertheless, there are broader implications.

First, the decision emphasizes the Court's view that reconciliation is achieved not only by negotiating modern treaties, but in how they are implemented. At one time the conclusion of modern treaties alone was seen as a way for governments to achieve finality and certainty as to the extent of Indigenous rights and the scope of government responsibilities to Indigenous groups. Now conclusion of treaties is only one step in the process of reconciliation, which continues into the treaty implementation phase.

Second, while the Court states that "reconciliation often demands judicial forbearance" and that "[i]n resolving disputes that arise under modern treaties, courts should generally leave space for the parties to govern together and to work out their differences", at the same time "courts play a critical role in safeguarding the rights" that modern treaties, as constitutional documents, provide.  Courts will still supervise Crown conduct in the implementation of modern treaties, and can strike down government decisions not consistent with the honour of the Crown. It remains to be seen whether this approach will result in the meaningful dialogue and reconciliation that the Court no doubt wishes to encourage, or whether this approach will result in parties landing back in Court every time a further snag in the treaty implementation process is encountered. 

Third, for resource developers — particularly in the North where many modern treaties have been entered into —  the message remains as before that modern treaties define and constrain the processes that governments must follow in making decisions about Crown lands and resources. Resource developers must therefore pay close attention to obligations arising under modern treaties that apply in areas where a project is proposed and should independently consider whether government regulatory decisions are being made in a manner that respects the terms of the treaties and the honour of the Crown. If proper processes are not being observed, then it is possible, as in this case, that the resulting decision may be quashed.

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
Keith B. Bergner
Toby Kruger
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
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