The Yukon Court of Appeal has confirmed that public governments must act diligently to ensure fulfillment of the purposes behind their treaty obligations. The First Nation of Nacho Nyak Dun v. Yukon case has important implications for the land, water and resource co-management regimes set up under modern land claim agreements.
The Court of Appeal reached their decision on an appeal by the Yukon Government of a trial court decision that bound the government to previous submissions within a land use process established pursuant to final land claim agreements for the Peel River Watershed
This is a victory on key principles of treaty interpretation re: the importance of co-management to the reconciliation objectives of s. 35, and a solidly reasoned decision on the process that should be followed to remedy a breach when a co-management process established under a treaty is not followed.
Although the court below granted a remedy that was more favorable to First Nations and conservation interests on the specific facts in this instance (by limiting the scope of the Yukon government’s modifications to a watershed plan), I believe that the Court of Appeal has it right on how such breaches should be addressed as a matter of law.
Priority of Co-Management Institutions
Key passages in the case on the priority of co-management institutions and shared decision-making under a treaty reject the Yukon’s “public government has the final say” arguments in their entirety.
 In my view, Yukon’s stark submission that the s. 18.104.22.168 words “approve, reject or modifyˮ accorded a power that is entirely or even virtually unconstrained respects neither the context of the words, nor the need for a generous administration of the agreement; as the judge concluded such an interpretation does not uphold the honour of the Crown.
The Court of Appeal also confirmed that co-management means co-management:
 What is to be stressed in the context of the issue at bar, is that the UFA and the Final Agreements include as part of the bargain between the parties participation by the affected First Nations “in the management of public resources”.
The Court also made an important observation re: the public policy considerations supporting the importance of co-management in guiding public governments in land use decisions outside of settlement land:
 If Yukon were to reject a Final Recommended Plan then there would be no land use plan for that particular region. Yukon would then have responsibility for the Non-Settlement Lands without the guidance or certainty of a regional plan. Such an outcome is not in the best interests of any of the parties.
Crown Obligations and Remedies for Breach
The Court of Appeal also upheld several procedural findings (including failure to adequately consult or provide reasons) and ultimately upheld the trial judge’s finding that the Yukon government had breached the process at a key stage, but disagreed with the remedy that the process only be reset back to the stage at which the Yukon government ‘hijacked’ the process, rather than to an earlier stage at which full consideration of the Yukon governments’ proposed modifications could be considered by the Commission and made subject to consultations with the First Nations.
The Court of Appeal’s reasoning is set out in paragraphs 167- 169 of the decision:
Yukon would not be permitted to simply submit Yukon’s Final Plan as its response to the Commission’s Recommended Plan. Rather, the requirement at s. 11.6.2 is that Yukon consult and then respond to the Commission’s Recommended Plan. Doing so with the requisite detail will allow the planning process to unfold as envisioned. It seems to me that a more compelling argument can be made in support of the submission that the “breachˮ began when Yukon did not properly set out its detailed modifications at the stage of s. 11.6.2. That is the status quo ante, or state that existed before the breach, to which the “breachingˮ party should be returned to allow it to perform its duties appropriately. And it is a status quo ante which best serves the goals of achieving reconciliation. The remedy crafted by the trial judge would put in place a plan that emerged from a flawed process. I do not see how that serves reconciliation.
Although the original remedy provides a better result from the perspective of the First Nation and public-interest conservation groups who were plaintiffs in this case, in that it limited the scope of the Yukon’s potential modifications to the Peel River Watershed Plan, it is easy to imagine circumstances in which the shoe could be on the other foot. It is well-established that public governments often take advantage of capacity challenges when consulting First Nations in order to drive decisions to certain outcomes. This should not be permitted, and particularly so in a treaty context where there are clear procedural rules that are to be followed.
This decision confirms that if there is a failure in the process at a key step, the process should be ‘reset’ to that step so that full consideration can be given to the issues that arise once the failure is corrected.
As an example, a public government could be required under a treaty provision to establish harvest levels for wildlife based on harvesting studies and other information provided by First Nations to a wildlife co-management board. If a First Nation was unable to fully participate in a harvest study or provide certain information to the wildlife co-management board, and if that board then made recommendations which resulted in the government making allocations without that information, the entire process could be tainted. To correct this, it would not be adequate to simply allocate additional harvesting opportunities – the matter would need be remitted back to the co-management board to re-do the analysis and reconsider the evidence so that their recommendations and any final decisions would be fully informed by all of the necessary facts and considerations.
As the Court concludes, “the Crown must act diligently to ensure fulfillment of the purposes behind its various treaty obligations.” This case will be an important corrective to the view that public governments have the final say, or that treaty-based co-management processes can be ignored when their processes or outcomes are considered inconvenient or inconsistent with the interests of public governments.
By Larry Innes