The photo, “Hart River” by Juri Peepre is made available under Attribution-NonCommercial 2.0 Generic license (CC BY-NC 2.0)
On December 2, 2014 the Yukon Supreme Court released its decision quashing a land use plan adopted by the Yukon government for the Peel Watershed.
First Nations had challenged the adoption of that land use plan, arguing that Yukon had failed to follow the spirit and intent of the land use planning chapter of land claim agreements that cover the Peel.
This is an important decision that has impacts on the interpretation of modern land claim agreements, and in particular, on processes for collaborative management of lands and resources within areas subject to such agreements.
What was this case about?
This case involves land use planning in the Peel Watershed, which encompasses over 68,000 square kilometres of Yukon and covers six major rivers which empty into the Peel River and then the MacKenzie River. The Peel Watershed is one of the largest intact ecosystems in North America. There are no permanent settlements in the Peel, and very limited resource exploration and development has taken place in the region. However, it is an important area for a number of northern First Nations, including the First Nations of Nacho Nyak Dun and Trondëk Hwëch’in, the Vuntut Gwich’in and the Gwich’in communities of the Northwest Territories represented by the Gwich’in Tribal Council.
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The First Nations of Nacho Nyak Dun and Trondëk Hwëch’in (the “Yukon First Nations”), along with two environmental organizations and two non-indigenous residents of Whitehorse, brought an action against Yukon challenging the government’s approved land use plan for the Peel Watershed. The Gwich’in Tribal Council, which represents Gwich’in communities in the Northwest Territories who have rights in the Peel pursuant to a 1991 land claim agreement, intervened in support of the Yukon First Nations (and was represented by lawyers from JFK Law).
The Yukon First Nations are parties to land claim agreements with Canada and Yukon which designate land within Yukon as “Settlement Land” owned and managed by these nations and set out the required process for regional land use planning on Settlement and Non-Settlement Land. According to the land claim agreements, land use planning is to take place through the establishment of a regional land use planning commission composed of nominees from First Nations and government. The process by which Yukon approves the land use plan can be summarized in six steps:
- The independent planning commission proposes a Recommended Plan to First Nations and Yukon.
- Yukon may “approve, reject, or propose modifications” to the part of a Recommended Plan which applies to Non-Settlement Land.
- If Yukon decides to reject or modify the Plan, it must provide written reasons to the commission.
- The commission then reconsiders the Plan, and releases a Final Recommended Plan.
- Yukon must then consult with affected Yukon First Nations and other affected communities on the Final Plan.
- Yukon may then “approve, reject or modify” that part of the Final Plan which applies on Non-Settlement Land (11.6.3.2).
The commission released its Recommended Plan which provided for about 80% of the Peel to be given a high degree of protection and the remaining 20% to be open to oil and gas and mineral development. At that time, Yukon opted to propose modifications to the plan, but provided only brief, non-specific comments, requesting that the commission modify the plan to allow for more “balance” between conservation and resource development; and more options for greater access to existing claims within the region.
The commission reviewed these comments and issued its Final Recommended Plan which incorporated some changes in response to Yukon’s comments, but stated that it was not possible to accept Yukon’s comments related to balance and access without “going back to the drawing board”.
At this stage, instead of consulting on the Final Recommended Plan, Yukon developed a new land use plan which introduced new land use designations and dramatically shifted the balance of protection in the region to 71% open for mineral exploration and 29% protected.
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Protected areas in light and dark green.
The Yukon First Nations and the Gwich’in Tribal Council argued that Yukon, in discarding the Final Recommended Plan and creating a new plan, had rendered the collaborative land use planning process set out in the Yukon land claim agreements meaningless. Yukon argued that it retained the “final say” on non-settlement land and that a plain language interpretation of the agreements permitted Yukon to adopt its plan for the Peel.
Summary of decision
Justice Veale agreed with the First Nations and held that the interpretation of the land use planning process adopted by Yukon was inconsistent with the honour of the Crown and the goal of reconciliation. He noted that, because the planning process in this case was derived from a land claim agreement, the Commission and its plans have a constitutional dimension and these processes are one way that land claim agreements facilitate reconciliation.
The court held that modern land claim agreements must be interpreted by taking a large, liberal and contextual approach with the objective of reconciliation in mind. In implementing treaties, including the land use planning processes provided for within them, the honour of the Crown is always at stake, and the Crown must behave accordingly.
The court found that the plain reading interpretation of the land use planning provisions employed by Yukon in implementing the process was “ungenerous” and inconsistent with the honour of the Crown. In this context, Yukon’s previous proposed modifications at the Recommended Plan stage were merely bald assertions without sufficient detail for the commission to respond in a meaningful way. These vague suggestions could not later be used to justify sweeping changes to the Plan.
The court issued a declaration that Yukon had failed to act in conformity with the land use planning process; quashed the final consultation process and Yukon’s adopted plan; and ordered that Yukon redo final consultations on a land use plan on the basis of the Final Recommended Plan (with narrowly limited modifications permitted).
What does this case mean?
Most if not all modern land claim agreements create collaborative processes for governments and First Nations to manage land and resources within settled areas. This case provides much needed guidance as to the interpretation of the provisions which govern those processes, stating that technical, legalistic interpretation of these provisions is inconsistent with reconciliation and the collaborative management of lands intended by land claim agreements. According to this decision, these processes have a constitutional dimension and the Crown must act honourably in implementing these processes.
The specific implications for the Peel Watershed are not yet clear. Yukon has appealed the decision and has withdrawn the area from staking and issuing of oil and gas rights until appeals are concluded. An appeal to the Yukon Court of Appeal is likely to take place in mid to late 2015.