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Losing the Battle but Winning the War?

On November 4, 2015, the Yukon Court of Appeal released its decision in the Peel River case that we first reported on here.  The decision focussed on whether the Yukon Government properly followed the land use planning process set out in three modern land claims agreements in the development of a land use plan for the Peel River region.  The Court of Appeal largely agreed with the lower court that the Yukon Government had not followed the proper process in making extensive changes to a land use plan prepared by an independent regional planning Commission.  However, the Court of Appeal also confirmed that the Yukon Government has a broad power to make land use decisions for Crown lands in the territory, as long  as those decisions are made in a manner consistent with the treaties, interpreted in a generous, purposive manner, and consistent with the honour of the Crown.  Accordingly, the Court of Appeal sent the parties back to the point at which the process failure began, in contrast to the trial judge, who would have sent the parties back to the final stage of the land use planning process. As a result, while the Yukon Government may have lost the process battle, it won the war over the more fundamental issue of its power to make land use decisions for Crown lands in the territory.

Background

As set out in more detail in our previous post, this case in involved the interpretation of provisions in final agreements between Yukon First Nations and the Yukon Government that established a consultative process for the development of a land use plan in the Peel Watershed. The process allowed the parties to create an independent planning Commission to create an initial recommended plan, and required Yukon to consult on that plan before approving, rejecting, or proposing modifications to it (section 11.6.2 of the Final Agreement). In response to the Yukon’s decision at that stage, the Commission was then required to reconsider as necessary and propose a final recommended plan, followed by another obligation on Yukon to consult on that plan before final approval, rejection or modification by Yukon (section 11.6.3.2 of the Final Agreement).

In this case, the Yukon provided very general suggestions at the 11.6.2 stage, and then proposed its own plan at the 11.6.3.2 stage. The trial judge found that to be “an ungenerous interpretation not consistent with the honour and integrity of the Crown”, resulting in the government usurping the Commission’s role and the planning process by introducing new land use planning tools and concepts at the final stage of the process. As a result, the trial judge quashed the Yukon’s plan and remitted to process to the 11.6.3.2 stage. It is this choice of remedy that marks the significant difference between the trial judge and the appeal court in resolving this case.

The Decision
In its decision, the Yukon Court of Appeal confirmed that the Yukon Government has a broad power to modify plans proposed by regional planning commissions.  However, it must do so at a point the in the planning process that allows for proper consultation with affected First Nations and communities, and allows those parties to understand and respond meaningfully to the proposed modifications.  In this case, this meant providing detailed proposals for modifications, and written reasons explaining those modifications, to enable meaningful consultation (the 11.6.2 stage).  However, once those consultations are complete, and a revised plan is received from the planning commission, the Yukon government could exercise its powers to reject the revised plan, or to modify the revised plan to incorporate modifications on which the government had adequately consulted.

Implications

Because this case deals with the unique wording of the land use planning provisions of the Yukon treaties, its direct impact outside the Yukon may be limited.  However, the case is consistent with other past case law and may have the following implications:

  • The decision recognizes that the final decision-making authority over the management and use of public lands and resources rests with government.
  • At the same time, governments must exercise that decision-making authority in a manner that is consistent with the ongoing reconciliation of societal interests with Aboriginal rights and interests.
  • The honour of the Crown requires transparency in government communication with First Nations — stating government’s proposed measures in a specific and clear enough manner that First Nations being consulted under the proposed measures and can comment effectively on those measures.
  • The decision emphasizes the need for government decision-makers to provide proper reasons in support of decisions that may affect Aboriginal interests (see for example West Moberly and Adam).  The courts want to see how a government has arrived at its decision, and how governments balanced Aboriginal rights and interests with broader societal interests in arriving at that decision.  Reconciliation of those rights and interests can be demonstrated where adequate reasons are given.

In the result, the Yukon Court of Appeal’s decision represents another step in understanding governments’ powers over public lands and resources, as well as governments’ continuing obligations under modern treaties to reconcile Aboriginal rights and interests with broader public interests. For project proponents – particularly in the north where many modern treaties have been entered into – the message remains that treaty rights can apply to Crown lands and that First Nations may have a right to participate in decision-making for the management of public lands and resources.  Project proponents and governments must therefore pay close attention to any applicable treaties in areas where they wish to work and must be satisfied that the processes set out in the treaties are being observed in a manner that reflects ongoing Aboriginal interests in decisions affecting Crown lands within their traditional territories. If those processes are not being observed, then it is possible, as in this case, that the parties may be forced to return back to the point at which the failure began.

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Lawson Lundell's Project Law Blog focuses on updating proponents on issues emerging in the law and policy that applies to the development of major projects in Canada. The focus of the blog is on matters relating to environmental assessment and compliance, regulatory matters and Indigenous consultation.

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