First Nation of Nacho Nyak Dun v. Yukon
Court: Supreme Court of Canada
Citation: 2017 SCC 58
TAGS: Duty to Consult; Modern Treaty Agreements
A government does not have the authority to unilaterally modify land use plans contrary to negotiated agreements.
Final agreements (treaties) between the federal government, territorial government of Yukon, and the Na-cho Nyak Dun, the Vuntut Gwitchin First Nation and the Tr’ondëk Hwëch’in, respectively, set out a consultative process for developing land use plans. As part of this process, the territorial government of Yukon is able to make modifications to a final recommended land use plan, but only based on modifications it had already proposed or modifications made in response to a change in circumstances.
After the Peel Watershed Planning Commission had already released a final recommended land use plan, the territorial government of Yukon adopted a final plan that significantly increased the allowable development in Peel Watershed region. The Commission had recommended that 80% of the area be protected and 20% be developed. The government’s plan protected 29% and allowed development of 71% of the watershed.
In response, the affected First Nations brought an action against the territorial government of Yukon asserting that the territorial government did not properly conduct the consultation process as specified in the final agreements.
The Supreme Court of Canada held that the territorial government of Yukon did not have the authority to change the Peel Watershed Planning Commission’s final recommended land use plan to the extent that it did following consultative process set out in final agreements with the Na-cho Nyak Dun, the Vuntut Gwitchin First Nation and the Tr’ondëk Hwëch’in.
The Supreme Court returned the parties to the stage in the land use plan approval process where the territorial government could approve, reject, or modify the plan after consultation. This was contrary to the Court of Appeal Judge’s decision to return the parties to an even earlier stage in the process.
Why this Case Matters:
This decision assisted in clarifying the extent of the “duty to consult” and Crown conduct required by the government in modern treaties with First Nations. The significant changes made by the Yukon government, without the input of the Peel Watershed Planning Commission, did not satisfy the honour of the Crown in the duty to consult.
By circumventing the regional land use process, Yukon’s decision had the effect of preventing the First Nations from exercising their rights per the final agreements. While governments will generally have final decision-making authority, that authority cannot be used to thwart the agreed-upon process leading up to that decision.
Both parties, First Nations and governments alike, are expected to advance their treaty rights diligently and in good faith. These behavioral expectations accord with the positive and mutually respectful long-term relationship that modern treaties are intended to foster.
The Supreme Court of Canada held that where a treaty such as the final agreements set out in precise terms a cooperative governance relationship, those terms should be enforced.
Supreme Court Judgment:
The Duty to Consult at the Supreme Court in 2017: Part 1—Delegation by Bruce McIvor
The Duty to Consult at the Supreme Court in 2017: Part 2— Accommodation by Bruce McIvor
The Duty to Consult at the Supreme Court in 2017: Part 3—Existing Infringements, Environmental Assessments and Remedy by Bruce McIvor