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TREATIES AND AGREEMENTS - Land claims agreements - Practice and procedure Courts - Jurisdiction

Friday, December 01, 2017 @ 12:47 PM  


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Appeal by the First Nation of Nacho Nyak Dun and others from a Yukon Court of Appeal judgment allowing in part the appeal from a decision ordering the government of Yukon (Yukon) to reconduct its consultation as part of the land use plan approval process pertaining to the Peel Watershed. This consultation was prescribed by the Umbrella Final Agreement, which established a collaborative regional land use planning process that was adopted in modern land claims agreements between Yukon, Canada, and First Nations. For almost a decade, Yukon and the affected First Nations participated in the process set out in these agreements to develop a regional land use plan for the Peel Watershed. Near the end of the approval process, after the independent Peel Watershed Planning Commission (Commission) had released a Final Recommended Peel Watershed Regional Land Use Plan, Yukon proposed and adopted a final plan that made substantial changes to increase access to and development of the region. The trial judge declared that Yukon did not act in conformity with the process set out in the Final Agreements and quashed both its second consultation and plan. He held that, by introducing changes that had not been presented to the Commission, Yukon had not properly conducted the second consultation and had invalidly modified the Final Recommended Plan. The Yukon Court of Appeal allowed Yukon’s appeal in part and set aside the part of the trial judge’s order that returned the parties to the second round of consultation. It agreed with the trial judge that Yukon’s authority to modify the Final Recommended Plan was limited to modifications it had previously proposed to the Recommended Plan. The Court of Appeal however disagreed with the trial judge’s interpretation of the scope of Yukon’s authority to reject a Final Recommended Plan and concluded that this authority was broad.

HELD: Appeal allowed in part. The Court of Appeal’s approach was inconsistent with the appropriate role of courts in a judicial review involving a modern treaty dispute. The courts’ role was to determine whether the challenged decision was legal and to quash it if it was not. Close judicial management of the implementation of modern treaties could undermine the meaningful dialogue and long-term relationship that these treaties were designed to foster. By assessing the adequacy of Yukon’s conduct at the s. 11.6.2 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. Section 11.6.3.2 of the Final Agreements authorized Yukon to make modifications to a Final Recommended Plan that were based on those it proposed earlier in the process or responded to changing circumstances. As modifications were, by definition, minor or partial changes, s. 11.6.3.2 did not authorize Yukon to change the Final Recommended Plan so significantly as to effectively reject it. In all cases, Yukon could only depart from positions it had taken earlier in the process in good faith and in accordance with the honour of the Crown. Yukon did not have the authority to make the extensive changes that it made to the Final Recommended Plan, and the trial judge appropriately quashed Yukon’s approval of its plan. The effect of quashing this approval was 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. 11.6.3.2 of the Final Agreements. The Court of Appeal erred in returning the parties to an earlier stage in the process.

First Nation of Nacho Nyak Dun v. Yukon, [2017] S.C.J. No. 58, Supreme Court of Canada, McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ., December 1, 2017. Digest No. TLD- November272017011SCC