Lexpert Magazine

LEXPERT MAGAZINE | JANUARY/FEBRUARY 2018 11 treaty — "should be given a second chance and go back to an earlier stage of the con- sultation process," Duffy says. "What's im- portant was a specific process agreed to in a modern agreement. e government said it would be bound by the process, then didn't follow it." Other recent decisions involving First Nations' land development disputes — such as Chippewas of the ames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, which the SCC handed down in July — dealt with specific projects and the impact of those projects on native rights, Duffy says. First Nations land dispute cases involving older treaties and unresolved claims have "much greater degrees of un- certainty regarding the process. e benefit of modern agreements is certainty in the process," which binds governments to cer- tain obligations. e appellants in the case opposed Yukon's proposed development of the Peel Watershed, a 68,000-square-kilo- metre swath of sub-Arctic wilder- ness that represents about 16 per cent of Yukon in land mass. Before the SCC, the parties agreed that Yukon did not respect the land-use plan approval process set out in the Final Agreements, but did not agree on the basis for concluding that Yukon's Yukon First Nations win SCC appeal High court cites role of modern treaties in fostering reconciliation in Peel Watershed decision BY ELIZABETH RAYMER adoption of its final plan was invalid, and the appropriate remedy. In its decision, the SCC noted that Yukon's right to modify a Final Recom- mended Plan for development arose from s. 11.6.3.2 of the Umbrella Final Agreement (1993) for concluding mod- ern treaties in the Yukon. e Final Agreements estab- lished a collaborative regional planning process adopted in modern land claims agreements between Yukon, Canada, and the appellant First Nations. "In this case, Yukon did not have the authority under s. 11.6.3.2 to make the changes that it made to the Final Recom- mended Plan," Justice Karakatsanis wrote. "Yukon's approval of its plan must there- fore be quashed." Earlier, a trial judge had quashed Yukon's second consultation and its plan. e Yukon Court of Appeal set aside the part of the trial judge's order that returned the parties to the second round of consulta- tion. e SCC allowed the appeal in part; the trial judge's order quashing Yukon's ap- proval of its plan was upheld, and the par- ties were returned to the s. 11.6.3.2 stage of the process. "is is a vindication of the battle by First Nations and Yukoners to protect the Peel Watershed," says omas Berger of Ald- ridge & Rosling LLP in Vancouver, whose firm represented the appellants. "When First Nations entered into treaty in 1993, the government monopoly on land-use de- cisions was to come to an end. ... e process has been upheld, and a wilderness the size of New Brunswick has thus far been protected for this and future generations." IN EARLY DECEMBER the Supreme Court of Canada allowed the appeal (in part) of Yukon First Nations and a conserv- ation society in a five-year-old dispute over development of the Peel Watershed in the Yukon Territory, meaning the parties must return to the drawing board. In First Nation of Nacho Nyak Dun, et al. v. Government of Yukon, 2017 SCC 58, a unanimous Supreme Court found the Yukon government had not respected the terms of the Uniform Final Agree- ment with First Nations. e decision had been widely anticipated for its inter- pretation of the role of courts in resolving disputes arising in the context of modern treaty implementation. "As expressions of partnership between nations, modern treaties play a critical role in fostering reconciliation," Justice Andro- mache Karakatsanis wrote on behalf of the full panel of justices in her introduction to the decision. "Negotiating modern treat- ies, and living by the mutual rights and responsibilities they set out, has the po- tential to forge a renewed relationship be- tween the Crown and Indigenous peoples." e "big take-away" from this decision is the deference to the terms of modern treaties that the SCC has previously said is required, says Patrick Duffy, who has a project development practice at Stikeman Elliott LLP in Toronto. e issue before the SCC was whether Yukon — which, it was conceded, had not respected the land- use plan approval process agreed to in the PATRICK DUFFY > STIKEMAN ELLIOTT LLP THOMAS BERGER > ALDRIDGE & ROSLING LLP ON THE CASE "WHEN FIRST NATIONS ENTERED INTO TREATY IN 1993, THE GOVERNMENT MONOPOLY ON LAND-USE DECISIONS WAS TO COME TO AN END. FIRST NATIONS AND YUKONERS WERE TO PARTICIPATE IN THE PROCESS LAID OUT. THE PROCESS HAS BEEN UPHELD, AND A WILDERNESS ... HAS THUS BEEN PROTECTED FOR THIS AND FUTURE GENERATIONS." > THOMAS BERGER, ALDRIDGE & ROSLING LLP

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