Supreme Court affirms that modern Treaties must be honoured

by Benjamin Brookwell

Despite co-management provisions in modern treaties, the Yukon Government acted unilaterally to try to impose what it wanted in the Peel Watershed. Today’s Supreme Court decision confirmed a lower court’s finding that the Yukon Government can’t do that. It has to work with the final recommended plan proposed by an independent commission, and has only a narrow leeway to modify that plan, acting according to the treaty-based co-management process.

• This blog provides a summary of the Supreme Court of Canada (“Supreme Court”)’s decision in First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58, released this morning, and some related commentary. This case dealt with a dispute that arose in the context of modern treaty implementation, and also touched on the role of the courts in resolving such disputes generally.

OVERVIEW OF THE CASE

For thousands of years prior to the arrival of Europeans, the Nacho Nyak Dun, Tr’ondëk Hwëch’in and Vuntut Gwitchin  have lived in what is now known as the Yukon. In this blog, I’ll refer to them as the “First Nations”. The traditional territory of these First Nations includes the Peel Watershed, which spans almost 68,000 square kilometers of northern Yukon and is one the largest undeveloped natural areas in North America.

Around 1990, these First Nations, Yukon and Canada, along with other Yukon First Nations, concluded an Umbrella Final Agreement. This agreement set out a framework for reaching land claim and self-government agreements, known as Final Agreements: binding modern treaties. The 3 First Nations who led the court case released today all reached Final Agreements in the 1990s. Their Final Agreements (modern treaties) are based on the Umbrella Final Agreement.

These Final Agreements are “land claims agreements” within the meaning of section 35(3) of the Constitution Act, 1982, and accordingly the rights held by the First Nations under these agreements are modern treaty rights with constitutional protection.

For almost a decade, the First Nations and Yukon worked to develop a regional land use plan for the Peel Watershed using the co-management process set out in their treaties. 

In 2004, they established the Peel Watershed Planning Commission with representatives appointed by the First Nations, by Yukon, and jointly. The Commission then undertook a broad process to develop a recommended Regional Land Use Plan for the portion of the Peel Watershed within Yukon. The plan addresses land use in both lands held by the First Nations (“settlement land”) and lands held by the Yukon Government or others (“non-settlement land”).

In 2009, the Commission reached a Recommended Plan. It forwarded that Recommended Plan to Yukon and the affected First Nations. This started the approval process.

At that stage, Yukon had the obligation to consult with the affected First Nations and communities, and then approve, reject, or propose modifications to the plan as it applies to non-settlement land. First Nations had the same obligation for settlement land.

At first, the Yukon Government and the First Nations developed an agreed back-and-forth process based on their treaty obligations in which their consultations would be coordinated. As per the treaties, their written responses would be considered by the Commission in a Final Recommended Plan for approval.

But near the end of the approval process in 2012-2013, after the Commission had released a Final Recommended Peel Watershed Regional Land Use Plan, Yukon proposed and adopted a different final plan that made substantial new changes to increase access to and development of the region. These changes did not reflect its earlier submissions, or the results of earlier steps in the process.

The new Yukon plan substantially changed the percentage of land in the Peel Watershed that would be given protection from development from 80% to only 29%. Yukon argued that it could do this because it had the “ultimate authority” to approve, reject, or modify any part of the Final Recommended Plan that applied to non-settlement land (para. 23).

LOWER COURT DECISIONS

At trial, the court held that Yukon had no authority to present new modifications to the Final Recommended Plan, and further, had no authority to approve its own Plan. The trial judge ordered Yukon to re-conduct its consultation, and to then either approve the Final Recommended Plan, or modify it based on the modifications it had previously proposed.

Yukon appealed the trial decision. The Yukon Court of Appeal found that Yukon had failed to properly exercise its right to propose modifications to the Recommended Plan. But Yukon’s appeal succeeded in part, as the Court of Appeal put no limitations on the modifications that Yukon could propose after it re-conducted consultation.  Effectively, it told Yukon to follow the procedural steps but allowed it to disregard the substance of the remainder of the process.

TODAY’S SUPREME COURT DECISION

The Supreme Court found that the clear objective of the Umbrella Final Agreement and the modern treaties made under it was to ensure First Nations meaningfully participate in land use management in their traditional territories. An unconstrained authority for Yukon to modify the Final Recommended Plan at the very last stages would render the rest of this process meaningless, as Yukon would have free rein to rewrite the plan at the end (para. 48).

The Supreme Court agreed with the courts below that the Yukon did not have the authority to make the extensive changes that it made to the Final Recommended Plan. It confirmed that Yukon’s plan was invalid, and ordered Yukon to re-conduct its consultation, and to then either approve, modify, or reject the Final Recommended Plan – but within a narrower scope.

Overturning the Court of Appeal, the Supreme Court ordered that Yukon’s modifications had to be “minor or partial” (para. 5), and must be limited to those that:

(1) are based on those it proposed earlier in the process; or

(2) respond to changing circumstances.

Yukon cannot “change the Final Recommended Plan so significantly as to effectively reject it” (para. 5).

The Supreme Court held that 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 (para. 5).  The court said that Yukon had to bear the consequences of its failure to diligently advance its interests and exercise its right to propose access and development modifications at an earlier stage (para. 61).

GENERAL LEGAL PRINCIPLES

 In making this decision, the Supreme Court decision also set out some guiding principles on the court’s role in similar cases:

• It said: “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 a challenged decision was legal, and to quash it if it is not.” (para. 60) However, in our view at OKT, we would have concerns if this ends up becoming a signal for “non-interference” by the courts in when modern treaties are breached in their implementation. Honouring treaties is important at every stage, not just in the final result. Breaches at earlier stages will also have important implications for decisions at the end. As this bulk of this decision recognizes, a path-dependency takes hold and cannot necessarily be changed later on.
• The Court also said that modern treaties are “meticulously negotiated by well-resourced parties,” and courts must pay close attention to their terms. 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. (paras. 36-37) Clearly, paying close attention to what the parties negotiated, as a whole and in context, is essential.
• Finally, it said, reiterating earlier cases, that while courts must “strive to respect [the] handiwork” of the parties to a modern treaty, this is always subject to the constitutional limitations of the honour of the Crown (para. 37). The Crown has an overriding obligation to act honourably, and this remains true in implementing modern treaties.