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SCC allows First Nations’ appeal in Yukon Peel Watershed dispute

|Written By Elizabeth Raymer
SCC allows First Nations’ appeal in Yukon Peel Watershed dispute
Thomas Berger of Aldridge & Rosling LLP in Vancouver says the Supreme Court called the treaty among the First Nations and Yukon “a model” for reconciliation.

The Supreme Court of Canada has allowed the appeal (in part) of Yukon First Nations and a conservation society in a five-year-old dispute over development of the Peel Watershed in the Yukon Territory, meaning the parties will return to the drawing board.

In First Nation of Nacho Nyak Dun, et al. v. Government of Yukon, a unanimous Supreme Court found the Yukon government had not respected the terms of the Uniform Final Agreement with First Nations. Today’s decision was widely anticipated for its interpretation of the role of courts in resolving disputes arising in the context of modern treaty implementation.

"As expressions of partnership between nations, modern treaties play a critical role in fostering reconciliation,” Justice Andromache Karakatsanis wrote on behalf of the full panel of justices in her introduction to the decision.

“Through s. 35 of the Constitution Act, 1982, they have assumed a vital place in our constitutional fabric. Negotiating modern treaties, and living by the mutual rights and responsibilities they set out, has the potential to forge a renewed relationship between the Crown and Indigenous peoples.”

“We are very pleased” with the decision, says Thomas Berger of Aldridge & Rosling LLP in Vancouver, noting that the Supreme Court called the treaty among the First Nations and Yukon “a model” for reconciliation. Aldridge & Rosling LLP represented the appellants in the case, namely First Nation of Nacho Nyak Dun, Tr'ondëk Hwëch'in, Yukon Chapter-Canadian Parks and Wilderness Society, Yukon Conservation Society, Gill Cracknell, Karen Baltgailis and Vuntut Gwitchin First Nation.

The appellants opposed Yukon’s proposed development of the Peel Watershed, a 68,000-square-kilometre swath of sub-Arctic wilderness that represents about 16 per cent of Yukon in land mass. The parties agreed that Yukon did not respect the land use plan approval process set out in the Final Agreements. However, they did not agree on the basis for concluding that Yukon’s adoption of its final plan was invalid and the appropriate remedy.

In its decision, the SCC noted that Yukon’s right to modify a Final Recommended Plan for development arose from s. 11.6.3.2 of the Umbrella Final Agreement (1993) for concluding modern treaties in the Yukon; the Final Agreements established a collaborative regional land use planning process adopted in modern land claims agreements between Yukon, Canada and the appellant First Nations.

“In this case, Yukon did not have the authority under s. 11.6.3.2 to make the changes that it made to the Final Recommended Plan,” Karakatsanis wrote.  “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.”

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. 11.6.3.2 of the Final Agreements, as well as to limit 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 it returned the parties to the earlier stage in the process at which Yukon could articulate its priorities in a valid manner.

The Supreme Court allowed the appeal in part; the trial judge’s order quashing Yukon’s approval of its plan was upheld and the parties were returned to the s. 11.6.3.2 stage of the process. The other parts of the trial judge’s order were set aside.

“This is a vindication of the battle by First Nations and Yukoners to protect the Peel Watershed,” Berger told Legal Feeds. “When [Yukon’s] First Nations entered into treaty in 1993, the government monopoly on land use decisions was to come to an end. First Nations and ordinary Yukoners were to participate in the process laid out. The process has been upheld, and a wilderness the size of New Brunswick has thus far been protected for this and future generations.”


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