The First Nation of Nacho Nyak Dun v. Yukon

Yukon First Nation Final Agreements - Land use planning - Honour of the Crown - Reconciliation

The Supreme Court of Yukon released a decision on December 2, 2014 in The First Nation of Nacho Nyak Dun v. Yukon (Government of), quashing a land use plan approved by the Yukon government for the Peel River watershed and ordering the Yukon government to hold final consultations on a previous land use plan created by a regional planning body before either approving that plan or making limited modifications. This case was brought by several First Nations and environmental organizations against the Yukon government in order to have the Court determine which of two proposed land use plans will govern what development is allowed in the 68,000 square kilometre Peel River watershed in northern Yukon.

The first land use plan was created in 2011 by the Peel Watershed Planning Commission, one of the regional planning bodies created pursuant to the Final Agreements signed between First Nations, the Yukon government and the federal government. Whereas First Nations with traditional territory within the Peel River watershed were calling for protection of 100% of this area, the Commission's plan proposed protection of 80% of the land ceded by First Nations to the Yukon government as "Non-Settlement Land" and expressly contemplated that at least 45% of the Conservation Areas would only receive interim protection that could be later revisited. When this plan was first released, the Yukon government decided not to reject it but did request five modifications including a request for the Commission to achieve a "more balanced plan", in terms of the balance between conservation and resource development, and a request for it to develop more options for access. When the Yukon government was not satisfied with the Commission's subsequent modifications to the plan, it decided to impose its own land use plan in 2012, which it later approved in 2014.

The Court was faced with an issue of statutory interpretation of the land use planning chapter of the Final Agreements. The Yukon government relied on a "plain reading" interpretation of this chapter to empower it with the ultimate authority over which land use plan would govern the Non-Settlement Land in the watershed. However, the Court rejected this interpretation for failing to "enhance the goal of reconciliation", for not being contextual and for being "ungenerous" to the point that it was inconsistent with the honour and integrity of the Crown. The Court noted that First Nations gave up undefined rights, interests and title to their traditional territories in Yukon in exchange for defined rights and interests that included a comprehensive land use planning process for those territories. In its interpretation of the land use planning chapter of the Final Agreements, the Court held that the government was not obliged to accept the land use plans recommended by the Commission but it was obliged to "respect the process". As the Yukon government decided not to reject the Commission's plan earlier in the process but instead proposed to modify it, the Court found this move "necessarily indicate[d] approval of the essential character of [the plan]" and prohibited the Yukon government from later thwarting the process entirely by imposing new modifications that the Commission had not been able to address.

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