Canada: Case Commentary: First Nation Of Nacho Nyak Dun v. Yukon, 2017 SCC 58

Last Updated: January 25 2018
Article by Kennedy A Bear Robe

Most Read Contributor in Canada, October 2018

Introduction

The Peel Watershed Regional Land Use Plan, which has been in the works for almost a decade, received a major setback on December 1 with the Supreme Court of Canada's ("SCC") judgement in First Nation of Nacho Nyak Dun v. Yukon. The SCC quashed the Government of Yukon's ("Yukon") approval of the Final Recommended Plan because it acted in a manner "not becoming of the honour of the Crown"1 by failing to follow the collaborative planning process required by modern treaty. As Yukon conceded that it "did not respect the land use plan approval process set out in the Final Agreements"2, the SCC was required to determine: (1) whether Yukon's decision to approve its land use plan is legal and (2) the role of the courts in resolving disputes that arise in the context of treaty implementation.

Background

The treaties engaged by the land use plan approval process in respect of the Peel Watershed Planning Region include the Final Agreements of the First Nation of Nacho Nyak Dun, Tr' ondëk Hwëch'in, and Vuntut Gwitchin First Nation (collectively, the "First Nations"). A Yukon Transboundary Agreement executed by the Gwich'in Tribal Council on behalf of the Tetlit Gwich'in is also implicated. 

The majestic Peel Watershed Planning Region is an intact and biodiverse watershed ecosystem covering almost 68,000 km2 that supports the traditional activities of the First Nations.3

In 2004, the Yukon Land Use Planning Council established the Peel Watershed Planning Commission (the "Commission"). Thereafter, the Commission initiated the land use plan approval process in 2009 by submitting its Recommended Peel Watershed Regional Land Use Plan (the "Land Use Plan") to Yukon and the First Nations. This approval process is prescribed at sections 11.6.1 through 11.6.5.2 of Chapter 11 of the Final Agreements, referred to above as modern treaties (the "Approval Process").

Ultimately, the SCC determined that Yukon did not have the authority under the treaties to make the modifications that it made to the Final Recommended Land Use Plan (the "Final Recommended Plan"). As Mr. Justice Veale's decision of the Supreme Court of Yukon found:

The Government approved plan is significantly different than the Final Recommended Plan created by the Commission, in that it both changed the land designation system and shifted the balance of protection dramatically. Under the Government approved plan, 71% of the Peel Watershed is open for mineral exploration with 29% protected compared to 80% protected and 20% open for mineral exploration under the Final Recommended Plan. (My emphasis added.)

In addition, at the trial level, Mr. Justice Veale concluded that Yukon "did not respect" the Approval Process and that its "interpretation and execution pursuant to s. 11.6.3.2 is impermissibly flawed."4 Justice Veale quashed Yukon's approval of its plan and the second consultation between Yukon and the First Nations. On appeal at the Yukon Court of Appeal, Chief Justice Bauman reached the same conclusion as the lower court that "Yukon undermined reconciliation by failing to honour the letter and spirit of its treaty obligations."5 However, Chief Justice Bauman ordered a different remedy which effectively gave Yukon a second kick at the can by sending it back to a stage in the Approval Process where Yukon could rectify its failure to put forward its modifications.

The First Nations appealed to the SCC and the SCC allowed the appeal in part. In quashing Yukon's decision to approve its plan, the SCC found that the Yukon Court of Appeal erred in returning the parties to an earlier stage in the Approval Process "so as to allow Yukon to articulate its priorities in a valid manner."6 Given the effect of quashing Yukon's decision, the SCC set aside the trial judge's orders quashing the second consultation and relating to Yukon's conduct going forward.

Issue 1: Was Yukon's Decision to Approve its Final Recommended Plan legal?

The central issue of this case was the scope of Yukon's authority to "modify" a Final Recommended Plan relating to non-settlement lands. Under the Final Agreements, Yukon has the right to "approve, reject or modify that part of the plan recommended under 11.6.3.1 applying on Non-Settlement Land, after Consultation [as defined therein] with any affected Yukon First Nation and any affected Yukon community." On this first question, and having regard to the Final Agreements definition of "Consultation," the SCC held:

[Section] 11.6.3.2 of the Final Agreements authorizes Yukon to make modifications to a Final Recommended Plan that (1) are based on those it proposed earlier in the process or (2) respond to changing circumstances. As modifications are, by definition, minor or partial changes, s. 11.6.3.2 does not authorize Yukon to change the Final Recommended Plan so significantly as to effectively reject it. In all cases, Yukon can only depart from positions it has taken earlier in the process in good faith and in accordance with the honour of the Crown.7

In so doing, the SCC noted that a primary intention of the First Nations signatories to the Final Agreements included the preservation of their responsibility in land use management over non-settlement lands. Also noted by the SCC, the modern treaties "sets out a collaborative process for developing a land use plan, and an unconstrained authority to modify the Final Recommended Plan would render this process meaningless, as Yukon would have free rein to rewrite the plan at the end. Interpreting s. 11.6.3.2 in the context of Chapter 11 shows that Yukon cannot exercise its modification power to effectively create a new plan that is untethered from the one developed by the Commission, on which affected parties had been consulted."8

Issue 2: What is the Role of the Courts in Resolving Disputes that arise in the Context of Treaty Implementation?

Turning to the issue that informed the SCC's remedy analysis—what is the role of the Court in this judicial review—the SCC noted that reconciliation demands judicial forbearance. The SCC clarified the courts role in treaty interpretation and implementation disputes:

  • The role of the court is simply to assess the legality of the challenged decision and not the legality of every decision that preceded the challenged decision;
  • Given that modern treaties may set out in precise terms a co-operative governance relationship, it is not the appropriate judicial role to closely supervise the conduct of the parties at every stage of the treaty relationship; and
  • Lastly, judicial forbearance should not come at the expense of adequate scrutiny of Crown conduct to ensure constitutional compliance.9

As such, lower courts are guided to temporarily waive their authority to render orders informing Crown conduct moving forward. Instead, courts ought to determine whether the impugned decision is legal and if not, quash it and "return the parties back to position that they were in prior to making the invalid decision"10.

In this case, the SCC overturned the Yukon Court of Appeal's order sending the parties back to an earlier stage. The Court reasoned that Yukon "cannot use these proceedings to obtain another opportunity to exercise a right it chose not to exercise at the appropriate time."11

What are the Implications of this Decision?

The immediate effect of this decision is that the parties are now back to the consultation process in respect of the Peel Watershed Regional Land Use Plan. However, this decision will have broader implications for other regions in the Yukon given that the Peel Watershed Plan was only one of two regional plans that have been proposed. Namely, Yukon ought to undertake an assessment of its policies guiding Crown conduct to ensure that it is acting in a manner that is consistent with principles of reconciliation and the honour of the Crown. It is also a polite nudge to Yukon (and other government parties to co-management regimes) that reconciliation includes shared responsibility of decision-making processes related to land use planning over non-settlement lands. Moving forward, it is expected that parties will comport themselves as an "equal partnership"12 in land use planning processes for non-settlement lands.

Although this case does not change the existing law in terms of modern treaty interpretation, it does clarify the role of courts in resolving implementation issues between the parties. Courts need to exercise judicial forbearance, but not at the expense of adequate scrutiny of Crown conduct to ensure constitutional compliance. 

Footnotes

1 First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58 at para. 57.

2 First Nation of Nacho Nyak Dun v. Yukon at para. 3.

3 First Nation of Nacho Nyak Dun v. Yukon at para. 12.

4 Nacho Nyak Dun v. Yukon, 2014 YKSC 69 ("YKSC Decision") at para. 197.

5 Nacho Nyak Dun v. Yukon, 2015 YKCA 18 ("YKCA Decision") at para. 177.

6 YKCA Decision at para. 178.

7 First Nation of Nacho Nyak Dun v. Yukon at para. 5.

8 First Nation of Nacho Nyak Dun v. Yukon at para. 49.

9 First Nation of Nacho Nyak Dun v. Yukon at para. 32 – 34.

10 First Nation of Nacho Nyak Dun v. Yukon at para. 58 – 60.

11 First Nation of Nacho Nyak Dun v. Yukon at para. 61.

12 First Nation of Nacho Nyak Dun v. Yukon at para. 33.

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