IN EARLY DECEMBER the Supreme Court of Canada allowed the appeal (in part) of Yukon First Nations and a conservation society in a five-year-old dispute over development of the Peel Watershed in the Yukon Territory, meaning the parties must return to the drawing board.
In First Nation of Nacho Nyak Dun, et al. v. Government of Yukon, 2017 SCC 58, a unanimous Supreme Court found the Yukon government had not respected the terms of the Uniform Final Agreement with First Nations. The decision had been widely anticipated for its interpretation of the role of courts in resolving disputes arising in the context of modern treaty implementation.
“As expressions of partnership between nations, modern treaties play a critical role in fostering reconciliation,” Justice Andromache Karakatsanis wrote on behalf of the full panel of justices in her introduction to the decision. “Negotiating modern treaties, and living by the mutual rights and responsibilities they set out, has the potential to forge a renewed relationship between the Crown and Indigenous peoples.”
The “big take-away” from this decision is the deference to the terms of modern treaties that the SCC has previously said is required, says Patrick Duffy, who has a project development practice at Stikeman Elliott LLP in Toronto. The issue before the SCC was whether Yukon — which, it was conceded, had not respected the land-use plan approval process agreed to in the treaty — “should be given a second chance and go back to an earlier stage of the consultation process,” Duffy says. “What’s important was a specific process agreed to in a modern agreement. The government said it would be bound by the process, then didn’t follow it.”
Other recent decisions involving First Nations’ land development disputes — such as Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, which the SCC handed down in July — dealt with specific projects and the impact of those projects on native rights, Duffy says. First Nations land dispute cases involving older treaties and unresolved claims have “much greater degrees of uncertainty regarding the process. The benefit of modern agreements is certainty in the process,” which binds governments to certain obligations.
The appellants in the case opposed Yukon’s proposed development of the Peel Watershed, a 68,000-square-kilometre swath of sub-Arctic wilderness that represents about 16 per cent of Yukon in land mass. Before the SCC, the parties agreed that Yukon did not respect the land-use plan approval process set out in the Final Agreements, but did not agree on the basis for concluding that Yukon’s adoption of its final plan was invalid, and the appropriate remedy.
In its decision, the SCC noted that Yukon’s right to modify a Final Recommended Plan for development arose from s. 188.8.131.52 of the Umbrella Final Agreement (1993) for concluding modern treaties in the Yukon. The Final Agreements established a collaborative regional planning process adopted in modern land claims agreements between Yukon, Canada, and the appellant First Nations.
“In this case, Yukon did not have the authority under s. 184.108.40.206 to make the changes that it made to the Final Recommended Plan,” Justice Karakatsanis wrote. “Yukon’s approval of its plan must therefore be quashed.”
Earlier, a trial judge had quashed Yukon’s second consultation and its plan. The Yukon Court of Appeal set aside the part of the trial judge’s order that returned the parties to the second round of consultation. The SCC allowed the appeal in part; the trial judge’s order quashing Yukon’s approval of its plan was upheld, and the parties were returned to the s. 220.127.116.11 stage of the process.
“This is a vindication of the battle by First Nations and Yukoners to protect the Peel Watershed,” says Thomas Berger of Aldridge & Rosling LLP in Vancouver, whose firm represented the appellants. “When First Nations entered into treaty in 1993, the government monopoly on land-use decisions was to come to an end. ... The process has been upheld, and a wilderness the size of New Brunswick has thus far been protected for this and future generations.”