January 22, 2018

BC Supreme Court upholds decision quashing Peel Watershed land-use plan


The Supreme Court of Canada unanimously quashed the Yukon Government’s land use plan for the Peel Watershed, as Yukon did not respect the collaborative land use process set out in their agreements, and went on to determine its role in these types of proceedings, and the appropriate remedy in such circumstances, in First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58.

In 1990, fourteen First Nations from the Yukon concluded an Umbrella Final Agreement (UFA), which set out a framework for regional land use planning between the First Nations of the Yukon, and the government of Yukon and Canada. In 2004, a commission was established in order to generate a regional land use plan for the Peel Watershed. Near the end of the plan, Yukon made substantial changes that sought to increase access and development of the region.

While both parties agree that the Yukon did not respect the collaborative process set out in the UFA, they did not agree on what basis, and the remedy for this breach.

The Supreme Court found that the clear objective of the agreement was to allow the First Nations to engage in meaningful participation in regards to their traditional territories. Modern treaties were best seen as “constitutional documents,” whose rights were subject to the honour of the Crown.

The court defined it’s role as being one of judicial review, thus being able to decide “whether the challenged decision was legal, and to quash it or not (par 60).” The Court held that modifications under the UFA must be “minor or partial changes” and were always subject to prior consultation. The Court therefore upheld the trial judge’s order to quash the decision, and to return it back to the stage where the Yukon could approve, reject, or modify the plan after consultation. The Court found that it was not open to them to return it to an earlier stage.

This case demonstrates the importance of including provisions in modern day legal instrucments with First Nations to address government powers exercised contrary to the spririt of agreement. The Court affirmed in this case that deference to the text of modern treaties is warranted. Therefore, given that the Court’s role is simply to ensure whether a decision is legal or not, it is important to make sure that the text of an arrangement accounts for the Province acting in opposition to the treaty’s objectives. Since modern treaties are also interpreted in light of their scheme and objectives, the inclusion of these are also important in creating an agreement.

First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58

Lisa C. Fong and Kimberly Webber