Canada: Supreme Court Of Canada Underlines The Need For Diligence In The Negotiation And Implementation Of Modern Treaties

Last Updated: February 2 2018
Article by Khurrum Awan and Katlyn Cooper

The Supreme Court of Canada's recent judgment in First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58 (Nach Nyak Dun), has outlined the appropriate role of the Court in resolving modern treaty disputes. The judgment indicates that the Courts will pay close attention to and largely defer to the treaty terms stipulated by governments and First Nations, but will remain vigilant to ensure that governmental conduct is consistent with its constitutional obligations and the honour of the Crown.

The judgment provides key guidance to First Nations as well as federal and provincial governments in regards to the treaty negotiation process and the standard of conduct expected during the implementation of modern treaties.

Factual Background

At issue in Nacho Nyak Dun was Yukon's compliance with a framework agreement (the "Framework") for negotiating treaties with First Nations, and a number of treaties which had been negotiated under the Framework. The Framework had established a collaborative regional land use planning process for negotiating land claims agreements, and had been used to negotiate related treaties or agreements (the "Agreements") between Yukon and several First Nations.

The Agreements established the planning process for land use in the Peel Watershed Region of Yukon (the "Region"). The Region comprised one of the largest intact wilderness watersheds in North America, and was nearly untouched by contemporary development. The Region included the traditional territories of several First Nations.

The Framework and Agreements had established a commission to develop a land use plan for the Region (the "Commission"). After several years of research and consultation, the Commission issued an initial recommended plan to Yukon and affected First Nations, thus triggering the plan approval process under the Agreements. The approval process required Yukon to approve, reject or propose modifications to the initial recommended plan. The parties initially filed a joint response to the recommended plan. Further responses were subsequently filed by affected First Nations and Yukon. Yukon's response included two statements expressing its interest in a revised plan with increased options for access to and resource development in the Region.

As required by the Agreements, the Commission reconsidered the initial recommended plan in light of the parties' joint response and subsequent submissions. However, the Commission did not consider Yukon's statements of interest in a revised plan on the basis that the statements lacked sufficient detail. Several months later, Yukon proposed extensive changes to the Commission's final recommended plan, even though the changes had not been proposed earlier in the process. Yukon proceeded with consultations on its proposed changes without the coordinated involvement of First Nations, and then approved a land use plan for non-settlement lands in the Region – lands which were not held by First Nations pursuant to the Agreements. Yukon took the position that Yukon and First Nations each had ultimate authority to approve, reject or modify the part of the final recommended plan which applied to lands under their authority.

The affected First Nations commenced legal proceedings, seeking declarations and orders that Yukon had failed to properly consult with First Nations, requiring Yukon to reinstitute consultations on the final recommended plan, and limiting Yukon's powers to modify or reject any further recommended plan from the Commission.

Rulings of the Yukon Supreme Court and the Yukon Court of Appeal

The Yukon Supreme Court declared that Yukon had failed to comply with the planning process set out in the Agreements and quashed the land use plan approved by Yukon for non-settlement lands. The Court further ordered Yukon to reinstitute the second consultation and then either approve the final recommended plan or modify it based on modifications it had proposed earlier in the planning process.

The Yukon Court of Appeal set aside the part of the trial judge's order which returned the parties to the second round of consultation. The Court of Appeal found that Yukon had failed to properly exercise its right to propose modifications to the initial recommended plan and returned the parties to an earlier stage in the process, where Yukon could remedy this failure. It also overturned the limits imposed by the trial judge on the scope of Yukon's ability to reject the Commission's final recommended plan and concluded that the scope of the authority was broad.

Judicial Treatment of Modern Treaties

The Supreme Court of Canada outlined the principles which govern the judicial treatment of modern treaties. Modern treaties were intended to renew the relationship between Indigenous peoples and the Crown to one of equal partnership.1 As a result, the Courts are generally to leave space for the parties to govern together and work out their differences. It was not the appropriate judicial role to closely supervise the conduct of the parties at every stage of the treaty relationship.2

Furthermore, compared to their historical counterparts, modern treaties are detailed documents that warrant deference to their text. Modern treaties are "meticulously negotiated by well-resourced parties" and are "designed to place Aboriginal and non-Aboriginal relations in the mainstream legal system with its advantages of continuity, transparency, and predictability".3 Paying close attention to the terms of a treaty requires interpreting the provision at issue in light of the treaty's text as a whole and its objectives.4

On the other hand, the Supreme Court noted that modern treaties are constitutional documents, and Courts play a critical role in safeguarding the rights they enshrine.5 Modern treaties are not to be interpreted "in an ungenerous matter or as if [they] were ... everyday commercial contract[s]". While the Courts must "strive to respect the handiwork" of modern treaties, that was always subject to "such constitutional limitations as the honour of the crown".6

These interpretive principles ensure that modern treaties advance reconciliation, which was founded partly "in the respectful fulfillment of a modern treaty's terms".7

Yukon's Violation of Treaties with First Nations

Applying these interpretive principles, the Supreme Court found that the Agreements did not authorize Yukon to make extensive changes to the final recommended plan. The language of the Agreements indicated that the power to modify a final recommended plan was a limited exercise which did not extend to an alteration of the fundamental nature of the plan. The power to modify was also limited by the requirement of prior consultation. Under the Agreements, prior consultation required Yukon to provide sufficient notice to affected parties of contemplated modifications, and to then accord "full and fair consideration" to the views which were presented.

The context of the relevant provisions indicated that the Agreements had established a comprehensive process for how Yukon and First Nations would collectively govern settlement and non-settlement lands. That process included consultation and meaningful participation for Yukon First Nations in the land use planning process for their traditional territories, which were situated in both settlement and non-settlement areas. Background evidence on the negotiations which led to the Agreements indicated that First Nations had agreed to receive relatively smaller settlements areas in exchange for meaningful participation in land use management for all of their traditional territories.

The Court thus concluded that Yukon's authority to modify a final recommended plan was limited to two circumstances. Firstly, Yukon could proposed modifications it had proposed earlier in the process. Secondly, Yukon could modify a final recommended plan in response to changing conditions, which could arise, for instance, from consultations on the final recommended plan or changes proposed by the Commission. However, Yukon could not modify a final recommended plan so significantly as to effectively reject it.

In this instance, Yukon had not proposed modifications to the initial recommended plan in sufficient detail to allow the Commission to respond in a meaningful way. The significant changes Yukon made to the final recommended plan had not been advanced earlier in the process. Furthermore, Yukon had failed to properly consult First Nations on these changes as required by the Agreements. This conduct was unbecoming of the honour of the Crown and Yukon's approval of its plan was thus quashed.

In granting a remedy, the Supreme Court directed the parties to return to the stage in the process where Yukon could approve, modify or reject the final recommended plan following consultations. The Court of Appeal had erred in returning the parties to an earlier stage of the process on the basis that Yukon had failed to exercise its right to modify the initial recommended plan. That remedial approach was inconsistent with the appropriate judicial role in resolving modern treaty disputes. When the initial recommended plan was issued, Yukon had chosen not to exercise its right to advance the significant changes it eventually proposed. By permitting Yukon to return to a stage in the process where it could then advance those significant changes, in the form of modifications to the initial recommended plan, the Court of Appeal had improperly inserted itself into the treaty relationship between Yukon and the First Nations.

Key Takeaways

The judgment in Nacho Nyak Dun highlights the importance of a detailed and well-drafted modern treaty and the need for the parties to act diligently in the implementation of their agreements. There is a presumption that modern treaties are detailed documents negotiated by well-resourced parties, thus warranting a deferential approach from the Courts. This presumption could be rebuttable in appropriate circumstances. However, it highlights the need for proper and competent legal advice over the course of the treaty negotiation process.

In regards to the implementation of modern treaties, the Supreme Court noted that "[i]t is up to the parties, when treaty issues arise, to act diligently to advance their respective interests".8 It was on that basis that the Supreme Court declined to return Yukon to an earlier stage in the planning process. Yukon had to "bear the consequences of its failure to diligently advance its interests and exercise its right to propose access and development modifications to the [initial recommended plan]".9 This reasoning again highlights the need for diligence and the engagement of legal counsel where appropriate during the implementation of modern treaties.

First Nations can also take some comfort from the judgment in Nacho Nyak Dun. It indicates that the Courts are prepared to intervene where the Crown had acted dishonourably and contrary to its constitutional obligations to First Nations. However, in the absence of such conduct, the parties to modern treaties cannot rely on the Courts to rescue them from a lack of diligence during the treaty negotiation and implementation process.

Footnotes

[1] Beckman v Little Salmon/Carmacks First Nation (2010), 2010 SCC 53, 97 RPR (4th) 1, at para 10, see also Nacho Nyak Dun at para 33 .

[2] Nacho Nyak Dun at para 33.

[3] Nacho Nyak Dun at para 36.

[4] Nacho Nyak Dun at para 37.

[5] Nacho Nyak Dun at para 34.

[6] Nacho Nyak Dun at para 37.

[7] Nacho Nyak Dun at para 38.

[8] Nacho Nyak Dun at para. 61.

[9] Nacho Nyak Dun at para. 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
Khurrum Awan
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
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