On November 4, 2015, the Yukon Court of Appeal released its reasons in the Peel Watershed case which concerns the collaborative land use planning process set out in the modern treaties entered into with Nacho Nyak Dun, Tr’ondëk Hwëch’in and Vuntut Gwitchin First Nation (and also affecting Gwich’in Tribal Council who participated as interveners). Yukon appealed the lower court decision of Justice Veale who had found that the territorial government breached the spirit and terms of the modern treaties by unilaterally imposing a pro-development land use plan for the Peel Watershed at the eleventh hour of the planning process (The facts of the case can be found in our case summary on the lower court decision here).
The Court of Appeal agreed that Yukon had not lived up to its treaty obligations in the planning process. However, the Court of Appeal departed from the lower court when it came to the remedy to be granted. Now the parties are ordered back to the “drawing board.” The decision is bittersweet for the plaintiff and intervening First Nations who now return to a process with certainty as to the respect that is required to be afforded to their modern treaties, but uncertainty surrounding the protection they thought had been achieved for a vital watershed of approximately 67,000 km². First Nations and the public are now expected to return to a lengthy and expensive process in which they had previously engaged, in good faith, for 7 years before Yukon decided to go “on a frolic of its own.”
I. THE DECISION
Sitting as a member of the Yukon Court of Appeal, Chief Justice Bauman reaffirmed the honour of the Crown and reconciliation as the operative constitutional principles at stake, and came to the same conclusion as the lower court: “Yukon undermined reconciliation by failing to honour the letter and spirit of its treaty obligations.” In particular, the Chief Justice reasoned that Yukon had undermined the collaborative management objectives of the planning process in three ways:
- Failing to disclose the extent of its pro-development modifications to the land use plan during consultations with First Nations and the public;
- Failing to provide the required details and written reasons for its pro-development modifications to the land use plan; and
- Introducing a unilaterally developed land use plan at the final stages of the planning process that was entirely disconnected from any of its earlier proposals that had been considered.
II. THE REMEDY
The lower court had offered a remedy with both procedural and substantive elements as it sent the parties back to the point where Yukon had breached the planning process, and effectively placed constraints on the extent of pro-development modifications Yukon could make to the land use plan moving forward. Justice Veale had reasoned that to send the parties any further back in the planning process without such constraints would allow Yukon to benefit from its treaty breach.
Chief Justice Bauman instead agreed with Yukon that giving the territorial government a second chance “best serves the goals of achieving reconciliation.” As a result, the parties are now sent back to the point in the planning process just prior to the breach so that Yukon can perform its duties under the planning process in a manner that upholds the honour of the Crown. This time around Yukon will have to be transparent in consultations, and provide adequate details and reasons for any modifications it makes to the land use plan. However, Yukon is no longer substantively constrained. Chief Justice Bauman did not want to “speculate” whether in meeting these procedural requirements Yukon will ultimately put forward a land use plan that is substantially the same as the pro-development one it had unilaterally imposed.
III. POTENTIAL IMPLICATIONS
Beyond the facts of this case, the decision has potential implications for the treatment of shared planning and management processes with the Crown. The decision signals that courts may approach breaches of such processes as if they were breaches of the procedural duty to consult (even when they are breaches of a substantive treaty obligation, as was the case here). This is another example of courts preferring to send the parties back to the table instead of directing any specific outcomes or forms of accommodation. This is particularly disappointing in this context where the process the Crown breached is one that the Crown itself committed to in concluding the treaty; a conclusion that is intended to provide certainty and has achieved the protection of the constitution after previous decades spent at the table.
It also remains to be seen whether the second chance remedy granted to the Crown in this case may be similarly available to First Nations moving forward. For example, First Nations who may be momentarily unable to meet their reciprocal duty to engage in burdensome consultative or regulatory processes due to circumstance ought to have the same opportunity to return to the process with court guidance.
The plaintiff First Nations are currently considering seeking leave to appeal to the Supreme Court of Canada.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.