On December 1, 2017, in First Nations of Nacho Nyak Dun v. Yukon (Nacho Nyak Dun), the Supreme Court of Canada (SCC) overturned a Yukon government decision to open the Peel watershed for development and significantly modify the Peel Watershed Planning Commission’s (Commission) final recommended plan (Plan). The SCC ruled that the final agreements with a number of First Nations, which enabled the Commission and provided for the land use planning process, did not permit Yukon to make such dramatic modifications to the Commission’s Plan.
In 1993, Canada, Yukon and the Council for Yukon Indians entered into an Umbrella Final Agreement, which served as the blueprint for individualized final agreements, which were later negotiated with Yukon First Nations. The final agreements recognize the traditional territories of the First Nation signatories and their right to participate in the management of public resources in that area. Each final agreement adopted the consultative and collaborative process for the development of regional land use plans in Yukon, which had been negotiated in the Umbrella Final Agreement.
The Peel watershed, rich in non-renewable natural resources, forms part of the traditional territory of a number of Yukon First Nations. The Commission is a politically neutral body formed in 2004 with appointments from both Yukon and First Nations. Its mandate is to generate a land use plan for the region in accordance with the final agreements reached with First Nations in the area. The Commission was responsible for producing a draft and final recommended plan, with a prescribed process for consultation with First Nations. Yukon has the authority to approve, reject or modify the Commission’s recommendations.
In 2009, after more than four years of research and extensive consultation, the Commission released its draft land use plan. Following further consultation, Yukon submitted its proposed modifications to the draft plan. The Commission accepted three of Yukon’s proposals but rejected the other two, and released its Plan in 2011.
In 2014, Yukon unilaterally adopted a dramatically different land use plan for the Peel watershed. Whereas the Commission had recommended protection of 80 per cent of the region and development in the remaining 20 per cent, the plan adopted by Yukon permitted development in 71 per cent of the region and protection of the remaining 29 per cent. The affected First Nations sought judicial review of Yukon’s plan.
The Yukon Supreme Court quashed the government approval, holding that Yukon was only entitled to propose modifications to the Commission’s Plan, which were consistent with Yukon’s prior proposals. The Yukon Court of Appeal found that because Yukon had failed to properly exercise its right to propose modifications to the Commission’s draft plan, the process ought to restart back at that point, before the Commission’s Plan.
Modern Treaty Interpretation
Modern treaty interpretation has undergone development since the SCC’s 2010 decisions in Quebec (Attorney General) v. Moses (Moses) and Beckman v. Little Salmon/Carmacks First Nation (Beckman). In the Moses decision, the SCC (by a 5:4 majority) strictly enforced the terms of the 1975 James Bay and Northern Quebec Agreement. The SCC emphasized the nature of modern treaties as detailed and meticulously negotiated documents that ought to be regarded with deference. For further information on Moses, please see our May 2010 Blakes Bulletin: Quebec v. Moses: Canadian Environmental Assessment Act Applies on James Bay Treaty Land. In Beckman, the SCC acknowledged that strict adherence to the treaty text may undermine its underlying reconciliatory objectives, and held that a modern treaty must not be confused with a commercial contract. The SCC thus applied the “honour of the Crown” principle, which has become central to the interpretation of historical treaties and aboriginal rights.
In Nacho Nyak Dun, the SCC emphasized that deference to the treaty text must not take precedence over its underlying objectives and the constitutional limitations imposed by section 35 of the Constitution Act, 1982. The SCC stated that “[m]odern treaties are intended to renew the relationship between Indigenous peoples and the Crown to one of equal partnership”, and found that where a treaty such as the final agreements sets out in precise terms a cooperative governance relationship, those terms should be enforced. In this way, “reconciliation is found in the respectful fulfillment of a modern treaty’s terms.”
Peel Watershed Plan
Applying these principles to the case, the SCC concluded that the Yukon government could not unilaterally modify the Plan; it could only make minor or partial changes, based on those it proposed earlier or in response to changing circumstances. By circumventing the regional land use process, Yukon’s decision had the effect of preventing the First Nations from exercising their rights as per the final agreements. The SCC found that Yukon’s conduct did not uphold the honour of the Crown.
The SCC agreed with the trial judge that the appropriate remedy was to overturn the government’s decision and return the parties to the position in the process prior to the government’s decision to unilaterally adopt its own plan. The SCC rejected the Court of Appeal’s decision to return the parties to an earlier stage in the process, as it would have allowed the government a new opportunity to make more substantial modifications than it had originally proposed. Yukon would have to bear the consequences of its lack of diligence in the early part of the Commission’s planning process.
This decision emphasizes the SCC’s respect for the terms of modern treaties and its role in preserving First Nations’ rights to meaningful participation in land use planning processes prescribed under those treaties. While governments will generally have final decision-making authority, that authority cannot be used to thwart the agreed-upon process leading up to that decision. Both parties, First Nations and governments alike, are expected to advance their treaty rights diligently and in good faith. These behavioural expectations accord with the positive and mutually respectful long-term relationship that modern treaties are intended to foster. In this sense, the SCC has once again demonstrated its commitment to enforcing processes as a means to reconciliation between the Crown and Aboriginal Peoples in Canada.