Jul 20, 2016

Aboriginal Law: Treaties: Interpretation; Implementation

The First Nation of Nacho Nyak Dun v. Yukon, 2015 YKCA 18 (CanLII)
The Nacho Nyak Dun, Tr’ondëk Hwëch’in and Vuntut Gwitchin had traditional territory in the Peel Watershed, which covers approximately 68,000 square kilometers representing 14% of the Yukon. On May 29, 1993, Canada, Yukon and the Yukon First Nations, represented by the Council for Yukon Indians, entered into an Umbrella Final Agreement (“UFA”). Its terms were incorporated into the Final Agreements of Canada and Yukon with various First Nations including Nacho Nyak Dun, Tr’ondëk Hwëch’in and Vuntut Gwitchin. The terms established a consultative and collaborative process for the development of land use plans in various regions, including the Peel Watershed. The process required an independent planning Commission to create an initial Recommended Plan, and Yukon to consult on that plan before approving, rejecting or proposing modifications to it (s. 11.6.2). The Commission was then required to reconsider the plan and propose a Final Recommended Plan, followed by another obligation on Yukon to consult on that plan before final approval, rejection, or modification of it (s. 11.6.3.2).  In this case process began for the Peel Watershed in 2004 and led to the creation of the Recommended Plan in late 2009. The process broke down in 2012 when Yukon changed the plan over the objections of the First Nations, who took the position Yukon did not have the authority under the Final Agreements to make the changes it had made. The Government of Yukon had provided very general suggestions at the s. 11.6.2 stage, and then proposed its own plan at the s. 11.6.3.2 stage. The Nacho Nyak Dun, Tr’ondëk Hwëch’in and others commenced an action against Yukon. The trial judge held Yukon had breached the Final Agreements when it changed the land use plan for the Peel Watershed. The judge quashed Yukon’s final land use plan and ordered the process be remitted to the point in time at which Yukon came to engage in final consultation with the First Nations. The C.A. upheld the trial judge’s order quashing the Government Plan. However, the C.A. ordered the matter be remitted to the point at which Yukon had received the Recommended Plan. 'The motion for leave to intervene by the Gwich’in Tribal Council is dismissed, without prejudice to its right to apply for leave to intervene in the appeal. The application for leave to appeal...is granted with costs in the cause.'
Note: These brief summaries were originally prepared for Supreme Advocacy LLP’s weekly newsletter which covers Supreme Court of Canada appeals and leaves to appeal.