In First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58 the Supreme Court of Canada (“SCC”) set aside Yukon’s approval of its Peel Watershed Regional Land Use Plan because it did not comply with the land use planning process set out in the modern treaties which governed the process. The SCC held that Yukon’s conduct was not becoming of the honour of the Crown.
The decision provides valuable guidance on the legal principles that apply to the interpretation and implementation of modern treaties.
The modern treaties, or “Final Agreements,” between the appellant First Nations, Canada and Yukon established a collaborative regional land use planning process. The Final Agreements recognized the traditional territories of the First Nations on a portion of the Peel Watershed and their right to participate in the management of public resources in that area.
The Peel Watershed Planning Region, located in northern Yukon, spans almost 68,000 square kilometres and is nearly untouched by modern development. It is one of the largest intact wilderness watersheds in North American and supports the traditional activities of First Nations.
For nearly a decade, pursuant to the terms in the modern treaties, Yukon and the affected First Nations participated in a process to develop a regional land use plan for the Peel Watershed. Near the end of the approval process, after an independent commission released a Final Recommended Peel Watershed Regional Land Use Plan (the “Final Recommended Plan”), Yukon proposed and adopted a final plan that made substantial changes to increase access to and development of the region.
Though the SCC agreed that Yukon had the power under the Final Agreements to modify the Final Recommended Plan, a unanimous Court said it could not modify it so significantly as to effectively reject it.
The SCC found that Yukon’s changes to the Final Recommended Plan were neither partial nor minor. For example, Yukon changed the designation of land in the Peel Watershed to allow for greater mineral exploration, thereby decreasing the area that was set to be protected.
This case highlights the role of the courts in resolving disputes that arise in the context of modern treaty implementation.
The SCC confirmed that modern treaties fall within the Constitutional protection of section 35 and described them “[a]s expressions of partnership between modern nations” that play a “critical role in fostering reconciliation” (para. 1).
“Modern treaties are intended to renew the relationship between Indigenous peoples and the Crown to one of equal partnership” (para. 33). Unlike historic treaties, such as the numbered treaties that cover the Prairie provinces and other parts of Canada, modern treaties are detailed documents that are often the product of decades of negotiations between well-resources and sophisticated parties. As such, deference to the text of modern treaties is warranted.
The Court explained that, “in resolving disputes that arise under modern treaties, courts should generally leave space for the parties to govern together and work out their differences,” and “it is not the appropriate judicial role to closely supervise the conduct of the parties at every stage of the treaty relationship” (para. 33).
Importantly though, while courts must show deference to the terms of modern treaties, this will always be subject to constitutional limits such as the honour of the Crown. The Crown must always conduct itself in accordance with s. 35 of the Constitution Act, 1982 when exercising rights and fulfilling obligations under a modern treaty.