In a unanimous decision, First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58, the Supreme Court of Canada quashed the Yukon Government’s land use plan for the Peel Watershed for not complying with their modern treaty obligations. In quashing the plan, the Court commented on the limited role of the courts in consultation processes established by modern treaties.
The Umbrella Final Agreement (the “UFA”) in the Yukon establishes a framework for collaborative regional land use planning adopted in modern land claims agreements between Yukon, Canada and First Nations with Final Agreements. Among other things, this framework ensures meaningful First Nations participation in land use planning for both settlement lands (lands held by First Nations) and non-settlement lands.
The land use planning process established by the UFA includes the creation of an independent commission which holds extensive consultations with stakeholders, experts and the public. After these consultations, the commission develops a recommended land use plan. The Yukon Government must accept, reject or propose modifications to the plan with respect to any non-settlement lands, while affected First Nations have similar rights and responsibilities with respect to settlement lands. Any proposed modifications are considered by the commission, which then releases a final recommended land use plan.
This case deals with the land use planning process for the Peel Watershed region of the Yukon. From 2004 to 2014, Yukon and affected First Nations participated in this process to develop a land use plan for the Peel Watershed. After reviewing the Recommended Plan put forth by the Peel Watershed Planning Commission (the “Commission”) in 2010, Yukon and the affected First Nations submitted a joint response, as well as individual responses. The Commission considered these responses and developed a Final Recommended Plan in 2011. Yukon was slow to respond to the Final Recommended Plan and eventually proposed and adopted a new land use plan. The First Nations objected to the new plan on the basis that it did not respect the planning process set out by the UFA, while Yukon was of the view that both it and the First Nations had the ultimate authority to accept, reject or modify the part of the Final Recommended Plan that applies to the land under each party’s authority. In 2014, Yukon approved its land use plan for non-settlement land in the Peel Watershed.
The Supreme Court of Canada found that Yukon’s adoption of its own land use plan was not valid. The Court found that Yukon can make changes or “modifications” to the Final Recommended Plan in two circumstances. First, it can make changes stemming from any proposed modifications contained in its response to the initial Recommended Plan. Second, it can make changes in response to changing circumstances, such as those arising from the consultation. Yukon conceded its modifications did not fit within either of these circumstances, and therefore, the Court found that Yukon did not have the authority to adopt them.
With respect to remedy, the Supreme Court of Canada found that the land use planning process should simply continue as though Yukon’s decision had never been made, returning the parties to the stage where Yukon can approve, reject or modify the plan after consultation. The Court commented:
… Yukon must bear the consequences of its failure to diligently advance its interests and exercise its right to propose access and development modifications to the Recommended Plan. It cannot use these proceedings to obtain another opportunity to exercise a right it chose not to exercise at the appropriate time. Accordingly, I agree with the trial judge that “it would be inappropriate to give the Government the chance to now put its January 2014 plan to the Commission” (para. 219). The appropriate remedy was to quash Yukon’s approval of its plan, thereby returning the parties to the s. 18.104.22.168 stage of the land use plan approval process. It was not open to the Court of Appeal to return the parties to an earlier stage. (para. 61).
This decision from the nation’s top court provides guidance as to the role of the courts in relationships between the Crown and First Nations, particularly where the parties have entered a modern treaty. Modern treaties are made with the specific purpose of reconciliation. In order to achieve this purpose, the parties must engage in the established processes and develop relationships without intervention by the courts. The Court is clearly indicating a preference for “judicial restraint” over micro-managing consultation:
The court’s role is not to assess the adequacy of each party’s compliance at each stage of a modern treaty process. Rather, it is to determine whether the challenged decision was legal, and to quash it if it is not. Close judicial management of the implementation of modern treaties may undermine the meaningful dialogue and long-term relationship that these treaties are designed to foster. Judicial restraint leaves space for the parties to work out their understanding of a process — quite literally, to reconcile — without the court’s management of that process beyond what is necessary to resolve the specific dispute. … (para. 60)
While this clearly applies in the context of modern treaties, it may also apply where consultation is taking place under the structure the Court put forward in the Haida decision, where the rights potentially impacted are asserted or found in historic treaties.