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Yukon Peel Watershed Case will go to the Supreme Court of Canada

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Aboriginal Law Bulletin

On June 9, 2016 the Supreme Court of Canada granted leave to appeal in the case of First Nation of Nacho Nyak Dun et al. v. Government of Yukon, 2015 YKCA 18. This case has to do with the Peel Watershed, a remote and relatively undeveloped region in the Yukon that spans an area of 67,431 square kilometres. The Government of Yukon (“Yukon”) manages 97.3% of the Watershed, which is Crown land. Four First Nation governments, including the First Nation of Na-Cho Nyak Dun, the Tetlit Gwich’in Council, Tr’ondëk Hwëch’in, and the Vuntut Gwitchin First Nation, hold traditional territories in the region and own and manage the remaining 2.7% of the Watershed.

The Yukon has several First Nation Final Agreements (“Final Agreements”) with various Yukon First Nations. These Final Agreements adopt terms from what is called the Umbrella Final Agreement (“UFA”) and are considered constitutionally-protected treaty “land claims agreements” within the meaning of s. 35 of the Constitution Act, 1982. Chapter 11 of the UFA establishes a blueprint for land-use planning processes and requires that consideration be given to both the interests of the Yukon and First Nations. First Nations have primary authority over settlement lands, and the Yukon has primary authority over non-settlement lands. The UFA also established the Peel Watershed Planning Commission (the “Commission”). The Commission’s purpose was to create land use plans for the Watershed – plans that the Yukon and/or First Nations governments could “approve, reject, or modify”.

The 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 that Yukon did not have the authority under the Final Agreements to make the changes it had made. The Nacho Nyak Dun, Tr’ondëk Hwëch’in and others commenced an action against Yukon. The trial judge held that 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 that the process be remitted to the point in time at which Yukon came to engage in final consultation with the First Nations. The Court of Appeal upheld the trial judge’s order quashing the Government Plan. However, the Court of Appeal ordered that the matter be remitted further back in the process to the point at which Yukon had received the Recommended Plan.

The Supreme Court of Canada will have to grapple with the role of the honour of the Crown in interpreting and perhaps limiting government actions when implementing treaty provisions in the modern treaty context.

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