SCC: Judicial Intervention in Modern Treaty Processes Should Promote Negotiation and Reconciliation

In First Nation of Nacho Nyak Dun et al. v. Government of Yukon,¹ the Supreme Court of Canada (SCC) emphasized that "[r]econciliation often demands judicial forbearance," and in that respect, "[c]ourts should generally leave space for the parties to govern together and work out their differences." In this case, the SCC considered Yukon's decision to approve its land use plan for the Peel Watershed (a largely undeveloped wilderness area in Northern Yukon), which was developed through a modern treaty process, as well as the role of courts in resolving disputes that arise in the context of modern treaty implementation.

What You Need To Know

• The SCC noted that "modern treaties are constitutional documents and courts play a critical role in safeguarding the rights they enshrine. Therefore, judicial forbearance should not come at the expense of adequate scrutiny of Crown conduct to ensure constitutional compliance."
• In this context, the SCC emphasized that "[j]udicial restraint leaves space for the parties to work out their understanding of a process – quite literally, to reconcile – without the court's management of that process beyond what is necessary to resolve the specific dispute." The role of courts is to "assess whether a challenged decision is legal, rather than closely supervise the conduct of the parties at each stage of the treaty relationship."
• Since the SCC found that Yukon breached the process agreed to by the parties, the appropriate remedy was to return the parties to that stage of the process where the breach occurred so that Yukon could "approve, reject or modify" the plan following consultations with affected First Nations and any affected Yukon community.
• The SCC indicated that the parties must act diligently to advance their respective interests when treaty issues arise; parties cannot use court proceedings to obtain another opportunity to exercise a right the party chose not to exercise at the appropriate time.

Background

In 1993, the Council of Yukon Indians, the Government of Canada and Government of Yukon entered into the Umbrella Final Agreement (UFA). The UFA provides a framework for concluding final agreements between First Nations, Yukon and Canada. The First Nations of Nacho Nyak Dun, Tr'ondëk Hwëch'in, and Vuntut Gwitchin have all entered into Final Agreements.

The Final Agreements incorporate Chapter 11 of the UFA dealing with the development of land use plans. This multi-step land use planning process facilitates the parties jointly appointing a land use planning commission. After the commission is appointed, the process generally unfolds as follows for non-settlement lands:

• First, the planning commission prepares and submits a recommended plan to Yukon and each affected First Nation. Yukon must, after consultation with any affected Yukon community and each affected First Nation, "approve, reject or propose modifications to" the parts of the land use plan applicable to non-settlement lands.
• Second, the commission reconsiders the plan and, with written reasons, issues a final recommended plan. Following further consultation with any affected Yukon community and any affected First Nation on the final recommended plan, Yukon must "approve, reject or modify" that part of the final recommended plan applicable to non-settlement land.²

Process Implementation

The parties established the Planning Commission for the Peel Watershed Region (Commission) in 2004. After extensive background work, the Commission forwarded its Recommended Plan to Yukon, the First Nations of Nacho Nyak Dun, Tr'ondëk Hwëch'in, and Vuntut Gwitchin, and the Gwich'in Tribal Council, in December 2009.

Yukon and the First Nations proposed modifications to the Recommended Plan, and the Commission reconsidered the Recommended Plan in light of the parties' submissions. The Commission rejected two of the changes proposed by Yukon because, in the Commission's view, they were not sufficiently particularized. The Commission forwarded its Final Recommended Plan in July 2011. In general, the Final Recommended Plan did not significantly alter the general management direction of the Recommended Plan.

In February 2012, Yukon announced that it was developing principles to guide its modifications to the Final Recommended Plan, and following a series of correspondence with the First Nations, Yukon sent a letter to the First Nations in October 2013 summarizing its anticipated modifications to the Final Recommended Plan. Following further correspondence, Yukon announced in January 2014 that it had approved its land use plan for non-settlement land in the Peel Watershed.

Prior Decisions

The appellants subsequently commenced legal proceedings in Yukon's Supreme Court (YSC) seeking, among other things, a declaration that Yukon did not properly consult on the Final Recommended Plan, and an order quashing Yukon's proposed land use plan and remitting the process for consultations on the Final Recommended Plan. YSC accepted the First Nations' position, and remitted the matter for consultation on the Final Recommended Plan. The Court of Appeal reversed YSC's decision in part, since the Court of Appeal found that the failure occurred at the Recommended Plan stage, and accordingly the Court of Appeal remitted the matter for consultation on the Recommended Plan.

SCC Decision

The First Nations appealed to the SCC, which granted the appeal in part. Specifically, the SCC found that Yukon's breach of the process occurred at the Final Recommended Plan stage and remitted the process to that stage for consultation on the Final Recommended Plan accordingly. In so finding, the SCC explained that "the appropriate judicial role [in this context] is informed by the fact that this dispute arises in the context of the implementation of modern treaties." These treaties, the SCC explained, "are intended to renew the relationship between Indigenous peoples and the Crown to one of equal partnership." Therefore, "[i]n resolving disputes that arise under modern treaties, courts should generally leave space for the parties to govern together and work out their differences. Indeed, reconciliation often demands judicial forbearance."

With these principles in mind, the SCC provided a roadmap for the parties going forward. At the Final Recommended Plan stage, and following consultation with affected First Nations, Yukon can "approve, reject or modify" the Final Recommended Plan. The SCC explained that in making modifications, Yukon may "make modifications that respond to changing circumstances, such as those that may arise from the second consultation and changes made by the Commission in its reconsideration of the plan." Further, the SCC indicated that, "[i]n all cases, Yukon can only depart from the positions it has taken earlier in the process in good faith and in accordance with the honour of the Crown."

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¹ Torys acted as counsel for Government of Yukon in this appeal.

² Each affected First Nation must follow a similar process in respect of parts of the plan applicable to the settlement land of that First Nation.