First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58 – Aboriginal law – Treaty rights – Land claims

On appeal from a judgment of the Yukon Court of Appeal (2015 YKCA 18) allowing in part an appeal from a decision of Veale J. (2014 YKSC 69).

The Umbrella Final Agreement, a monumental agreement that set the stage for concluding modern treaties in the Yukon, established a collaborative regional land use planning process that was adopted in modern land claims agreements between Yukon, Canada, and the appellant First Nations. These Final Agreements recognize the traditional territories of the First Nations in the Yukon portion of the Peel Watershed and their right to participate in the management of public resources in that area. In 2004, the Peel Watershed Planning Commission was established to develop a regional land use plan for the Peel Watershed. In 2009, after years of research and consultation, the Commission initiated the land use approval process by submitting its Recommended Peel Watershed Regional Land Use Plan to Yukon and the affected First Nations. Near the end of the approval process, and after the Commission had released a Final Recommended Plan, Yukon proposed and adopted a final plan that made substantial changes to increase access to and development of the region.

The appellants sought orders quashing Yukon’s plan and directing Yukon to re-conduct the second consultation required by s. of the Final Agreements. The appellants also sought orders limiting Yukon’s power to modify or reject the Final Recommended Plan going forward. The trial judge declared that Yukon did not act in conformity with the process set out in the Final Agreements and quashed Yukon’s second consultation and its plan. By introducing changes that had not been presented to the Commission, the trial judge found that Yukon did not properly conduct the second consultation and invalidly modified the Final Recommended Plan. The Yukon Court of Appeal allowed the appeal in part and set aside the part of the trial judge’s order that returned the parties to the second round of consultation. The Court of Appeal found that Yukon had failed to properly exercise its rights to propose modifications to the Recommended Plan and the court returned the parties to the earlier stage in the process where Yukon could articulate its priorities in a valid manner. Before this Court, the parties agree that Yukon did not respect the land use plan approval process set out in the Final Agreements. However, they do not agree on the basis for concluding that Yukon’s adoption of its final plan is invalid and the appropriate remedy.

Held (9-0): The appeal should be allowed in part. The trial judge’s order quashing Yukon’s approval of its plan is upheld. The parties are returned to the s. stage of the process. The other parts of the trial judge’s order are set aside.

These particular proceedings are best characterized as an application for judicial review of Yukon’s decision to approve its land use plan. In a judicial review concerning the implementation of modern treaties, a court should simply assess whether the challenged decision is legal, rather than closely supervise the conduct of the parties at each stage of the treaty relationship. Reconciliation often demands judicial forbearance. Courts should generally leave space for the parties to govern together and work out their differences. However, judicial forbearance should not come at the expense of adequate scrutiny of Crown conduct to ensure constitutional compliance. Under s. 35 of the Constitution Act, 1982, modern treaties are constitutional documents, and courts play a critical role in safeguarding the rights they enshrine.

The provisions of Chapter 11 of the Final Agreements, which set out the land use planning process, must be interpreted in light of the modern treaty interpretation principles. Compared to their historic counterparts, modern treaties are detailed documents and deference to their text is warranted. Paying close attention to the terms of a modern treaty means interpreting the provision at issue in light of the treaty text as a whole and the treaty’s objectives. While courts must show deference to the terms of a modern treaty, this is always subject to such constitutional limitations as the honour of the Crown.

Yukon’s right to modify a Final Recommended Plan arises from s. of the Final Agreements. The scheme and objectives of Chapter 11, as well as the text of s., show that this provision authorizes Yukon to make modifications to a Final Recommended Plan that are based on those it proposed earlier in the process or respond to changing circumstances. As modifications are, by definition, minor or partial changes, s. does not authorize Yukon to change the Final Recommended Plan so significantly as to effectively reject it. The power to modify (or approve or reject) in s. is also subject to prior “consultation”. In order to comply with the robust definition of this term in the Final Agreements, Yukon must provide notice in sufficient form and detail to allow affected parties to respond to its contemplated modifications to a Final Recommended Plan, then give full and fair consideration to the views presented during consultations before it decides how to respond to the Final Recommended Plan. In all cases, Yukon can only depart from positions it has taken earlier in the process in good faith and in accordance with the honour of the Crown. When exercising rights and fulfilling obligations under a modern treaty, the Crown must always conduct itself in accordance with s. 35 of the Constitution Act, 1982.

In this case, Yukon did not have the authority under s. to make the changes that it made to the Final Recommended Plan. Yukon’s changes were neither partial nor minor. They were not based on modifications it had proposed earlier in the process, nor were they made in response to changing circumstances. Yukon’s changes to the Final Recommended Plan did not respect the land use planning process in the Final Agreements and its conduct was not becoming of the honour of the Crown. Yukon’s approval of its plan must therefore be quashed. The effect of quashing this approval is to return the parties to the stage in the land use plan approval process where Yukon could approve, reject, or modify the Final Recommended Plan after consultation, as per s. of the Final Agreements. It was not open to the Court of Appeal to return the parties to an earlier stage of the planning process. By assessing the adequacy of Yukon’s conduct at an earlier stage of the land use plan approval process, even though the First Nations did not seek to have the approval quashed on that basis, the Court of Appeal improperly inserted itself into the heart of the ongoing treaty relationship between Yukon and the First Nations. Yukon must bear the consequences of its failure to diligently advance its interests and exercise its right to properly propose modifications related to access and development 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.

Reasons for judgment: Karakatsanis J. (McLachlin C.J. and Abella, Moldaver, Wagner, Gascon, Côté, Brown and Rowe JJ. concurring)

Neutral Citation: 2017 SCC 58

Docket Number: 36779