Yukon failing to comply with consultative process set out in development plan

Supreme court | Aboriginal Law | Constitutional issues | Land claims agreements

Yukon and First Nations entered into final agreements, which set out consultative and collaborative process for development of land use plans. After consultation, Yukon was required to approve, reject, or propose modifications to part of plan that applied to non-settlement land (s. 11.6.2). Section 11.6.3.2 of final agreements authorizes Yukon to make modifications to final recommended plan (“FRP”) that are based on those it proposed earlier in process or respond to changing circumstances. Near end of approval process, after independent Commission had released FRP, Yukon proposed and adopted final plan that made substantial changes to increase access to and development of region. Plaintiffs, including First Nations, brought action against Yukon to quash its plan. Trial judge declared that Yukon did not act in conformity with process set out in final agreements and quashed Yukon’s second consultation and its plan. Trial judge ordered Yukon to re-conduct its second consultation, and to then either approve FRP, or modify it based on modifications it had previously proposed. Yukon appealed. Yukon Court of Appeal allowed appeal in part and set aside part of trial judge’s order that returned parties to second round of consultation. Court of Appeal found that Yukon had failed to properly exercise its right to propose modifications to recommended plan, and returned parties to stage in process where Yukon could remedy this failure. Plaintiffs appealed. Appeal allowed in part. By assessing adequacy of Yukon’s conduct at s. 11.6.2 stage of land use plan approval process, even though First Nations did not seek to have approval quashed on that basis, Court of Appeal improperly inserted itself into heart of ongoing treaty relationship between Yukon and First Nations. Appropriate remedy was to quash Yukon’s approval of its plan, thereby returning parties to s. 11.6.3.2 stage of land use plan approval process. It was not open to Court of Appeal to return parties to earlier stage. Trial judge’s order quashing Yukon’s approval of its plan was upheld. Parties were returned to s. 11.6.3.2 stage of land use plan approval process. It was unnecessary for trial judge to quash second consultation. Trial judge’s orders quashing second consultation and relating to Yukon’s conduct going forward was set aside.

First Nation of Nacho Nyak Dun v. Yukon (2017), 2017 CarswellYukon 135, 2017 CarswellYukon 136, 2017 SCC 58, 2017 CSC 58, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2015), 2015 CarswellYukon 81, 2015 YKCA 18, Bauman C.J.Y.T., Smith J.A., and Goepel J.A. (Y.T. C.A.).

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