SUPREME
COURT OF CANADA
Citation:
First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58
|
Appeal Heard:
March 22, 2017
Judgment
Rendered: December 1, 2017
Docket:
36779
|
Between:
First
Nation of Nacho Nyak Dun, Tr’ondëk Hwëch’in, Yukon Chapter-Canadian Parks and
Wilderness Society, Yukon Conservation Society, Gill Cracknell, Karen
Baltgailis and Vuntut Gwitchin First Nation
Appellants
and
Government
of Yukon
Respondent
-
and -
Attorney
General of Canada, Gwich’in Tribal Council and Council of Yukon First Nations
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner,
Gascon, Côté, Brown and Rowe JJ.
Reasons for
Judgment:
(paras. 1 to 64)
|
Karakatsanis J. (McLachlin C.J. and Abella, Moldaver,
Wagner, Gascon, Côté, Brown and Rowe JJ. concurring)
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
first nation of nacho
nyak dun v. yukon
First Nation of Nacho Nyak Dun,
Tr’ondëk Hwëch’in,
Yukon Chapter‑Canadian Parks and
Wilderness Society,
Yukon Conservation Society,
Gill Cracknell,
Karen Baltgailis and
Vuntut Gwitchin First Nation Appellants
v.
Government of Yukon Respondent
and
Attorney General of Canada,
Gwich’in Tribal Council and
Council of Yukon First Nations Interveners
Indexed as: First Nation
of Nacho Nyak Dun v. Yukon
2017 SCC 58
File No.: 36779.
2017: March 22; 2017: December 1.
Present: McLachlin C.J.
and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and
Rowe JJ.
on appeal from the court of appeal for yukon
Aboriginal
law — Treaty rights — Land claims — Honour of the Crown — Federal and
territorial governments and First Nations entered into final land claims
agreements setting out consultative and collaborative process for development
of land use plans — Modifications submitted by Yukon failed to follow process
contemplated by final agreements — Role of courts in resolving disputes arising
in context of modern treaty implementation — Whether Yukon’s approval of plan
authorized by final agreements — Appropriate remedy when government breaches
obligation under modern treaty.
The Umbrella Final
Agreement, a monumental agreement that set the stage for concluding modern
treaties in the Yukon, established a collaborative regional land use planning
process that was adopted in modern land claims agreements between Yukon,
Canada, and the appellant First Nations. These Final Agreements recognize the
traditional territories of the First Nations in the Yukon portion of the Peel
Watershed and their right to participate in the management of public resources
in that area. In 2004, the Peel Watershed Planning Commission was established
to develop a regional land use plan for the Peel Watershed. In 2009, after
years of research and consultation, the Commission initiated the land use
approval process by submitting its Recommended Peel Watershed Regional Land Use
Plan to Yukon and the affected First Nations. Near the end of the approval
process, and after the Commission had released a Final Recommended Plan, Yukon
proposed and adopted a final plan that made substantial changes to increase
access to and development of the region.
The appellants sought
orders quashing Yukon’s plan and directing Yukon to re-conduct the second
consultation required by s. 11.6.3.2 of the Final Agreements. The
appellants also sought orders limiting Yukon’s power to modify or reject the
Final Recommended Plan going forward. The trial judge declared that Yukon did
not act in conformity with the process set out in the Final Agreements and
quashed Yukon’s second consultation and its plan. By introducing changes that
had not been presented to the Commission, the trial judge found that Yukon did
not properly conduct the second consultation and invalidly modified the Final
Recommended Plan. The Yukon Court of Appeal allowed the appeal in part and set
aside the part of the trial judge’s order that returned the parties to the
second round of consultation. The Court of Appeal found that Yukon had failed
to properly exercise its rights to propose modifications to the Recommended
Plan and the court returned the parties to the earlier stage in the process where
Yukon could articulate its priorities in a valid manner. Before this Court, the
parties agree that Yukon did not respect the land use plan approval process set
out in the Final Agreements. However, they do not agree on the basis for
concluding that Yukon’s adoption of its final plan is invalid and the
appropriate remedy.
Held: The
appeal should be allowed in part. The trial judge’s order quashing Yukon’s
approval of its plan is upheld. The parties are returned to the s. 11.6.3.2
stage of the process. The other parts of the trial judge’s order are set aside.
These particular
proceedings are best characterized as an application for judicial review of
Yukon’s decision to approve its land use plan. In a judicial review concerning
the implementation of modern treaties, a court should simply assess whether the
challenged decision is legal, rather than closely supervise the conduct of the
parties at each stage of the treaty relationship. Reconciliation often demands
judicial forbearance. Courts should generally leave space for the parties to
govern together and work out their differences. However, judicial forbearance
should not come at the expense of adequate scrutiny of Crown conduct to ensure
constitutional compliance. Under s. 35 of the Constitution Act, 1982 ,
modern treaties are constitutional documents, and courts play a critical role
in safeguarding the rights they enshrine.
The provisions of
Chapter 11 of the Final Agreements, which set out the land use planning
process, must be interpreted in light of the modern treaty interpretation
principles. Compared to their historic counterparts, modern treaties are
detailed documents and deference to their text is warranted. Paying close
attention to the terms of a modern treaty means interpreting the provision at
issue in light of the treaty text as a whole and the treaty’s objectives. While
courts must show deference to the terms of a modern treaty, this is always subject
to such constitutional limitations as the honour of the Crown.
Yukon’s right to
modify a Final Recommended Plan arises from s. 11.6.3.2 of the Final
Agreements. The scheme and objectives of Chapter 11, as well as the text of s. 11.6.3.2,
show that this provision authorizes Yukon to make modifications to a Final
Recommended Plan that are based on those it proposed earlier in the process or
respond to changing circumstances. As modifications are, by definition, minor
or partial changes, s. 11.6.3.2 does not authorize Yukon to change the
Final Recommended Plan so significantly as to effectively reject it. The power
to modify (or approve or reject) in s. 11.6.3.2 is also subject to prior
“consultation”. In order to comply with the robust definition of this term in
the Final Agreements, Yukon must provide notice in sufficient form and detail
to allow affected parties to respond to its contemplated modifications to a
Final Recommended Plan, then give full and fair consideration to the views
presented during consultations before it decides how to respond to the Final
Recommended Plan. In all cases, Yukon can only depart from positions it has
taken earlier in the process in good faith and in accordance with the honour of
the Crown. When exercising rights and fulfilling obligations under a modern
treaty, the Crown must always conduct itself in accordance with s. 35 of
the Constitution Act, 1982 .
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 Recommended Plan. Yukon’s changes were neither partial nor
minor. They were not based on modifications it had proposed earlier in the
process, nor were they made in response to changing circumstances. Yukon’s
changes to the Final Recommended Plan did not respect the land use planning
process in the Final Agreements and its conduct was not becoming of the honour
of the Crown. Yukon’s approval of its plan must therefore be quashed. The
effect of quashing this approval is to return the parties to the stage in the
land use plan approval process where Yukon could approve, reject, or modify the
Final Recommended Plan after consultation, as per s. 11.6.3.2 of the Final
Agreements. It was not open to the Court of Appeal to return the parties to an
earlier stage of the planning process. By assessing the adequacy of Yukon’s
conduct at an earlier stage of the land use plan approval process, even though
the First Nations did not seek to have the approval quashed on that basis, the
Court of Appeal improperly inserted itself into the heart of the ongoing treaty
relationship between Yukon and the First Nations. Yukon must bear the
consequences of its failure to diligently advance its interests and exercise
its right to properly propose modifications related to access and development
to the Recommended Plan. It cannot use these proceedings to obtain another
opportunity to exercise a right it chose not to exercise at the appropriate
time.
Cases Cited
Referred
to: Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53,
[2010] 3 S.C.R. 103; R. v. Van der Peet, [1996] 2 S.C.R. 507; Delgamuukw
v. British Columbia, [1997] 3 S.C.R. 1010; Clyde River (Hamlet) v.
Petroleum Geo‑Services Inc., 2017 SCC 40; Quebec (Attorney
General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557; Manitoba Metis
Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R.
623; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage),
2005 SCC 69, [2005] 3 S.C.R. 388; Haida Nation v. British Columbia (Minister
of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Chandler v. Alberta
Association of Architects, [1989] 2 S.C.R. 848; Little Narrows Gypsum
Co. v. Nova Scotia (Labour Relations Board) (1977), 24 N.S.R. (2d) 406.
Statutes and Regulations Cited
Constitution Act, 1982, s. 35 .
Interpretation Act, R.S.C. 1985,
c. I‑21, s. 12 .
Rules of Court, Y.O.I.C. 2009/65,
Rule 54.
Yukon First Nations Land Claims Settlement Act, S.C. 1994, c. 34, ss. 6(1) , 8 .
Treaties and Agreements
Comprehensive Land Claim Agreement between Her Majesty The Queen in
Right of Canada and the Gwich’in as Represented by the Gwich’in Tribal Council
(1992).
First Nation of Nacho Nyak Dun Final Agreement between the
Government of Canada, the First Nation of Nacho Nyak Dun and the Government of
Yukon (1993).
Tr’ondëk Hwëch’in Final Agreement among the Government of Canada,
the Tr’ondëk Hwëch’in and the Government of Yukon (1998).
Umbrella Final Agreement between the Government of Canada, the
Council for Yukon Indians and the Government of Yukon (1993).
Vuntut Gwitchin First Nation Final Agreement between the Government
of Canada, the Vuntut Gwitchin First Nation and the Government of Yukon (1993).
Authors Cited
Brown, Donald J. M., and John M. Evans, with the
assistance of David Fairlie. Judicial Review of Administrative Action in
Canada. Toronto: Thomson Reuters, 2013 (loose‑leaf updated July 2017,
release 2).
Canada. Royal Commission on Aboriginal Peoples. Report of the
Royal Commission on Aboriginal Peoples, vol. 2, Restructuring the
Relationship. Ottawa: The Commission, 1996.
Council for Yukon Indians. Together Today for Our Children
Tomorrow. Brampton, Ont.: Charters Publishing,
1977.
Grand Robert de la langue française, 2e
éd. dirigée par Alain Rey. Paris: Le Robert, 2001, “modifier”.
Jai, Julie. “The Interpretation of Modern Treaties and the Honour of
the Crown: Why Modern Treaties Deserve Judicial Deference” (2010), 26 N.J.C.L.
25.
Newman, Dwight. “Contractual and Covenantal Conceptions of Modern
Treaty Interpretation” (2011), 54 S.C.L.R. (2d) 475.
Oxford English Dictionary (online:
http://www.oed.com), “modify” (archived version: http://www.scc-csc.ca/cso-dce/2017SCC-CSC58_1_eng.pdf).
Régimbald, Guy. Canadian Administrative Law, 2nd ed. Markham,
Ont.: LexisNexis, 2015.
Stuart, Barry. “The Potential of Land Claims Negotiations for
Resolving Resource‑use Conflicts”, in Monique Ross and John Owen Saunders,
eds., Growing Demands on a Shrinking Heritage: Managing Resource‑use
Conflicts. Calgary: Canadian Institute of Resources Law, 1992, 129.
APPEAL
from a judgment of the Yukon Court of Appeal (Bauman C.J. and Smith and
Goepel JJ.A.), 2015 YKCA 18, 379 B.C.A.C. 78, 654 W.A.C. 78, 95 C.E.L.R.
(3d) 187, [2016] 1 C.N.L.R. 73, [2015] Y.J. No. 80 (QL), 2015
CarswellYukon 81 (WL Can.), allowing in part an appeal from a decision of Veale J.,
2014 YKSC 69, 91 C.E.L.R. (3d) 286, [2015] 1 C.N.L.R. 81, [2014] Y.J. No. 85
(QL), 2014 CarswellYukon 102 (WL Can.). Appeal allowed in part.
Thomas R. Berger, Q.C., Margaret
D. Rosling and Micah S.
Clark, for
the appellants.
John B. Laskin, John A. Terry, Nick Kennedy and Mark
Radke, for
the respondent.
John S. Tyhurst, for the intervener the
Attorney General of Canada.
Jeff Langlois and David
Wright, for
the intervener the Gwich’in Tribal Council.
Lino Bussoli and Tammy
Shoranick,
for the intervener the Council of Yukon First Nations.
The judgment of the Court was delivered by
Karakatsanis J. —
I.
Overview
[1]
As expressions of partnership between nations,
modern treaties play a critical role in fostering reconciliation. Through s. 35 of the Constitution Act, 1982 , they have assumed a
vital place in our constitutional fabric. Negotiating modern treaties, and
living by the mutual rights and responsibilities they set out, has the
potential to forge a renewed relationship between the Crown and Indigenous
peoples (Beckman v. Little
Salmon/Carmacks First Nation,
2010 SCC 53, [2010] 3 S.C.R. 103, at para. 10; Report of the Royal Commission on
Aboriginal Peoples, vol. 2, Restructuring the
Relationship (1996), at pp. 3, 10, 40-41 and 56). This
case highlights the role of the courts in resolving disputes that arise in the
context of modern treaty implementation.
[2]
The Umbrella Final Agreement (UFA), a monumental
agreement that set the stage for concluding modern treaties in the Yukon,
established a collaborative regional land use planning process that was adopted
in modern land claims agreements between Yukon, Canada, and First Nations. For
almost a decade, Yukon and the affected First Nations participated in the
process set out in these agreements to develop a regional land use plan for the
Peel Watershed. Near the end of the approval process, after the independent
Commission had released a Final Recommended Peel Watershed Regional Land Use
Plan, Yukon proposed and adopted a final plan that made substantial changes to
increase access to and development of the region.
[3]
Before this Court, the parties agree with the
courts below that Yukon did not respect the land use plan approval process set
out in the Final Agreements. However, they do not agree on the basis for
concluding that Yukon’s adoption of its final plan is invalid and the
appropriate remedy.
[4]
In my view, this proceeding is best
characterized as a judicial review of Yukon’s decision to approve its land use
plan. In a judicial review concerning the implementation of modern treaties, a
court should simply assess whether the challenged decision is legal, rather
than closely supervise the conduct of the parties at each stage of the treaty
relationship. Reconciliation often demands judicial forbearance. Courts should
generally leave space for the parties to govern together and work out their
differences.
[5]
At issue in this appeal is the scope of Yukon’s
authority to “modify” a Final Recommended Plan as it applies to non-settlement
lands. In my view, s. 11.6.3.2 of the Final Agreements authorizes Yukon
to make modifications to a Final Recommended Plan that (1) are based on those
it proposed earlier in the process or (2) respond to changing circumstances. As modifications are, by definition, minor or partial changes, s.
11.6.3.2 does not authorize Yukon to change the Final Recommended Plan so
significantly as to effectively reject it. In all cases, Yukon can only
depart from positions it has taken earlier in the process in good faith and in
accordance with the honour of the Crown.
[6]
I conclude that Yukon did not have the authority
to make the extensive changes that it made to the Final Recommended Plan, and
that the trial judge therefore appropriately quashed Yukon’s approval of its
plan. The effect of quashing this approval was to return the parties to the
stage in the land use plan approval process where Yukon could “approve, reject
or modify” the Final Recommended Plan after consultation, as per s. 11.6.3.2 of
the Final Agreements. The Court of Appeal erred in returning the parties to an
earlier stage in the process. I would therefore allow the appeal in part. The
trial judge’s order quashing the approval is upheld. As no further judicial
direction was required, the other parts of the trial judge’s order are set
aside.
A.
The Final Agreements
[7]
The Umbrella Final Agreement and the specific
Final Agreements that implement its terms are the product of decades of
negotiations “between well-resourced and sophisticated parties” (Little
Salmon, at para. 9). The modern treaties at issue in this case are the
Final Agreements of the First Nation of Nacho Nyak Dun, Tr’ondëk Hwëch’in, and
Vuntut Gwitchin First Nation. A Yukon Transboundary Agreement executed by the
Gwich’in Tribal Council on behalf of the Tetlit Gwich’in is also implicated in
this case.
[8]
Section 35 of the Constitution Act, 1982 recognizes
and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples
of Canada, which include treaty rights that now exist by way of land claims
agreements. Section 6(1) of the Yukon First Nations Land Claims Settlement
Act, S.C. 1994, c. 34 , states that a Yukon Final Agreement or Transboundary
Agreement is in effect a land claims agreement within the meaning of s. 35 of
the Constitution Act, 1982 (see also s. 2.2.1 of the UFA). Thus, these agreements
fall within the constitutional protection of s. 35 .
[9]
The UFA reflects a unique approach in modern
treaty negotiation. It was designed to apply to all Final Agreements, but each
agreement may include provisions specific to a Yukon First Nation (s. 2.1.3).
While the UFA does not create or affect any legal rights (s. 2.1.2), a Yukon
First Nation may exchange its Aboriginal rights for defined treaty rights under
a Final Agreement (Little Salmon, at para. 9).
[10]
The UFA is a model for reconciliation. This
framework establishes institutions for self-government and the management of
lands and resources. The Final Agreements falling under the UFA are intended to
foster a positive and mutually respectful long-term relationship between the
signatories (see Little Salmon, at paras. 8 and 10). In this way, the
Final Agreements address past grievances, and yet are oriented towards the
future.[1]
[11]
The UFA establishes, and the Final Agreements
implement, a land use planning process for the lands designated in each Final
Agreement. These Final Agreements and the Transboundary Agreement recognize the
traditional territories of the affected First Nations in the Yukon portion of
the Peel Watershed and their right to participate in the management of public
resources in that area.
B.
The Peel Watershed
[12]
The Peel Watershed Planning Region spans almost
68,000 square kilometers and is located in northern Yukon. It is one of the
largest intact wilderness watersheds in North America. Its landscape ranges
from “rugged mountains to low, flat taiga forests”. The ecosystem is
characterized by its rich water resources and abundant and diverse fish,
wildlife, and plant populations. This wilderness character is nearly untouched
by contemporary development — there are no permanent residents and few roads in
the watershed. As an intact ecosystem, the watershed supports the traditional
activities of the First Nations.
[13]
Although the current level of land use activity
in the watershed is relatively low, it presents further opportunities for
economic development. The watershed currently carries low-level renewable
resource use, including traditional land uses, wilderness tourism, recreation,
big game outfitting, and trapping. There is also a growing interest in
developing its non-renewable resource potential, including mineral, and oil and
gas exploration. These land uses are not all necessarily compatible. In
recognition of this reality, the parties have created a process for managing land
use in the Peel Watershed.
C.
The Peel Watershed Land Use Planning Process
[14]
Chapter 11 of the UFA establishes a process for
developing regional land use plans that ensures the meaningful participation of
First Nations in the management of public resources in settlement and
non-settlement lands (Little Salmon, at para. 9). “Settlement
Land” is land held by a Yukon First Nation. The Final Agreements each
incorporate, without modification, the provisions in Chapter 11 of the UFA,
including the provisions that set out the land use plan approval process (s.
11.6.0).
[15]
By voluntary agreement of Yukon and the affected
First Nations, the Yukon Land Use Planning Council established the Peel
Watershed Planning Commission in 2004 to develop a Regional Land Use Plan for
the portion of the Peel Watershed within Yukon. The plan would address land use
in both settlement and non-settlement areas. As required by Chapter 11 of the
Final Agreements, the members of the Commission were nominated by Yukon, the
First Nations, and jointly.
[16]
Throughout the planning process, the Commission
engaged in intensive stakeholder, expert, and public consultation and published
various reports which informed its development of the Recommended Plan.
[17]
In 2009, after more than four years of research
and consultation, the Commission initiated the land use plan approval process
by submitting its Recommended Peel Watershed Regional Land Use Plan to Yukon
and the affected First Nations (s. 11.6.1). This process is found in ss. 11.6.1
to 11.6.5.2 of Chapter 11, set out in an Appendix to these reasons.
[18]
After consultation, Yukon was required to
approve, reject, or propose modifications to the part of the plan that applied
to non-settlement land (s. 11.6.2). If Yukon chose to reject it or propose
modifications, it was required to provide written reasons (s. 11.6.3). The
First Nations have similar rights and responsibilities with respect to the part
of the Recommended Plan that applies to settlement land (ss. 11.6.4 and
11.6.5).
[19]
Before carrying out consultation on the
Recommended Plan as required by s. 11.6.2, Yukon met with the affected First
Nations and in 2010, signed a Joint Letter of Understanding (LOU). The 2010 LOU
set out the parties’ intention to establish a coordinated response to the
Recommended Plan, to conduct joint community consultation, and to endeavour to
achieve consensus on the plan. In January 2011, the parties signed a second
LOU, with similar terms to the 2010 LOU, in anticipation of the second round of
consultation.
[20]
A joint response of all the parties to the
Commission’s Recommended Plan, as required by the 2010 LOU, and a response of
the affected First Nations were submitted to the Commission in February 2011. A
few days later, Yukon submitted its own written response to the Commission.
[21]
Yukon’s written response included three specific
proposed modifications to the Recommended Plan that were similar to those set
out in the joint response. In addition, Yukon made two statements expressing its interest in a plan that included increased options for access and development:
1. Re-examine conservation values,
non-consumptive resource use and resource development to achieve a more
balanced plan.
2. Develop options for access
that reflect the varying conservation, tourism and resource values throughout
the region.
(Letter from Minister of
Energy, Mines and Resources, dated February 21, 2011; A.R., vol. VII,
at p. 84)
[22]
The Commission was required to reconsider the
Recommended Plan in light of Yukon’s written response (s. 11.6.3.1). In the
Commission’s view, the development and access points were not sufficiently
detailed to be considered in the development of the Final Recommended Plan;
they were simply expressions of Yukon’s general desires and were not “proposed
modifications”. The Commission reconsidered its Recommended Plan in light of
the joint response, the First Nations’ response, and Yukon’s response,
including the three specific proposed modifications, and released its Final
Recommended Plan in July 2011.
[23]
Yukon was slow to respond, and when it did so,
it did not follow the January 2011 LOU. In February 2012, the Minister of
Energy, Mines and Resources issued a news release developing eight core
principles to guide its “modification” of the Final Recommended Plan. Within
days, the First Nations objected and stated that Yukon could only modify the
Final Recommended Plan in accordance with previously proposed modifications.
Yukon responded that it had carried out the process in good faith and acted
within the scope of its authority. Several months later, Yukon proposed a new
land use designation system. The First Nations objected to the new system,
stating that it was a rejection of the land use planning process set out in the
Final Agreements. In response, Yukon set out its view that Yukon and the First
Nations each had the “ultimate authority” to approve, reject, or modify that
part of the Final Recommended Plan that applies to the land under their
authority.
[24]
Yukon then turned to conducting the second
consultation under s. 11.6.3.2. It carried out this consultation on its own,
without the coordinated involvement of the First Nations required by the 2011
LOU.
[25]
In October 2013, Yukon sent a letter to the
affected First Nations summarizing its anticipated “modifications” to the Final
Recommended Plan. The changes were intended to increase development and access.
Later that month, the First Nations again objected to this position, stating
that it was inconsistent with the process set out in the Final Agreements. In
January 2014, Yukon approved its land use plan for non-settlement land in the
Peel Watershed (s. 11.6.3.2).
[26]
These legal proceedings ensued. The appellants,
First Nation of Nacho Nyak Dun, Tr’ondëk Hwëch’in, Yukon Chapter-Canadian Parks
and Wilderness Society, Yukon Conservation Society, Gill Cracknell and Karen
Baltgailis sought a declaration that Yukon did not properly conduct the second
consultation as required by s. 11.6.3.2 and orders quashing Yukon’s plan and
directing Yukon to re-conduct the second consultation. The appellants also
sought orders limiting Yukon’s power to modify or reject the Final Recommended
Plan going forward. The Vuntut Gwitchin First Nation did not originally join
the court action, but was added as a respondent on the appeal to the Court of
Appeal.
II.
Decisions Below
[27]
The trial judge, Veale J., declared that Yukon
did not act in conformity with the process set out in the Final Agreements and quashed
Yukon’s second consultation and its plan (2014 YKSC 69, [2015] 1 C.N.L.R. 81).
He held that, by introducing changes that had not been presented to the
Commission, Yukon did not properly conduct the second consultation and
invalidly modified the Final Recommended Plan.
[28]
In interpreting the Chapter 11 process, the
trial judge held that Yukon can only make modifications to a Final Recommended
Plan (under s. 11.6.3.2) that are based on those it proposed to the Recommended
Plan (under s. 11.6.2) and that Yukon cannot reject a Final Recommended Plan in
its entirety if it has proposed modifications to the Recommended Plan. The
trial judge therefore ordered Yukon to re-conduct its second consultation, and
to then either approve the Final Recommended Plan, or modify it based on the
modifications it had previously proposed.
[29]
Bauman C.J., writing for Smith and Goepel JJ.A.
of the Yukon Court of Appeal (2015 YKCA 18, [2016] 1 C.N.L.R. 73), allowed the
appeal in part and set aside the part of the trial judge’s order that returned
the parties to the second round of consultation. The Court of Appeal found that
Yukon had failed to properly exercise its right to propose modifications to the
Recommended Plan, and the court returned the parties to the stage in the process
where Yukon could remedy this failure (s. 11.6.2). The court agreed with the
trial judge that Yukon’s authority to modify the Final Recommended Plan was
limited to modifications it had previously proposed to the Recommended Plan.
The Court of Appeal however, disagreed with the trial judge’s interpretation of
the scope of Yukon’s authority to reject a Final Recommended Plan, and
concluded that this authority was broad.
III.
Analysis
[30]
The appellants submit that Yukon’s
authority to modify a Final Recommended Plan under s.
11.6.3.2 is restricted to modifications based on those
it proposed to a Recommended Plan. The trial judge agreed. At trial and before
the Court of Appeal, Yukon argued that its ability to modify the Final
Recommended Plan was unconstrained. Before this Court,
Yukon concedes that it breached the Final Agreements and that its approval of
its final plan is invalid. However, it agrees with the Court of Appeal that the
appropriate remedy was to return it to the earlier stage of the planning
process, where it can propose modifications to the Recommended Plan (s.
11.6.2). In contrast, the First Nations agree with the trial judge that the
matter should be returned to the s. 11.6.3.2 stage.
[31]
The following issues arise in this appeal:
(a)
What is the appropriate role of the court in
these proceedings?
(b)
Was Yukon’s approval of its plan authorized by
s. 11.6.3.2 of the Final Agreements?
(c)
What is the appropriate remedy?
A.
The Appropriate Role of the Court in These
Proceedings
[32]
The nature of these proceedings informs the
appropriate judicial role in resolving this dispute. As demonstrated by the
remedies sought by the First Nations, and the powers set out in s. 8 of the Yukon First Nations Land Claims Settlement Act ,
these particular proceedings are best characterized as an
application for judicial review of Yukon’s decision to approve its land use
plan. The First Nations submitted that Yukon’s approval of its land use plan
did not comply with the land use plan approval provisions of the Final
Agreements, and they asked the trial judge to quash the plan on that basis.
This type of remedy is available on judicial review (Rule 54 of the Rules of Court, Y.O.I.C. 2009/65; see also trial reasons, at para.
167). The role of the court is simply to assess the
legality of the challenged decision. An application for judicial review does not
invite the court to assess the legality of every decision that preceded the
challenged decision.
[33]
In any event, the
appropriate judicial role is informed by the fact that this dispute arises in
the context of the implementation of modern treaties. Modern treaties are
intended to renew the relationship between Indigenous peoples and the Crown to
one of equal partnership (see Report of the Royal Commission on Aboriginal Peoples, at pp.
3, 10 and 40-41; see also Little Salmon, at para. 10). In resolving disputes that arise under modern treaties, courts should
generally leave space for the parties to govern together and work out their
differences. Indeed, reconciliation often demands judicial forbearance (see R. v. Van der Peet, [1996] 2 S.C.R. 507, at para. 313, per McLachlin J., dissenting, but
not on this point; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010,
at para. 186, per Lamer C.J.; Clyde River (Hamlet) v. Petroleum Geo‑Services
Inc., 2017 SCC 40, at
para. 24). It is not the appropriate judicial role to
closely supervise the conduct of the parties at every stage of the treaty
relationship. This approach recognizes the sui generis nature of modern
treaties, which, as in this case, may set out in precise terms a co-operative
governance relationship.
[34]
That said, under s. 35 of the Constitution
Act, 1982 , modern treaties are constitutional documents, and courts play a
critical role in safeguarding the rights they enshrine. Therefore, judicial forbearance
should not come at the expense of adequate scrutiny of Crown conduct to ensure
constitutional compliance.
B.
Yukon’s Approval of Its Plan Was Not Authorized
by Section 11.6.3.2 of the Final Agreements
[35]
I agree with the parties and both courts below that
Yukon’s changes to the Final Recommended Plan did not respect the land use
planning process in the Final Agreements. However, the reasoning and the focus
of the parties and courts below lead to different conclusions and different
remedies. In my view, Yukon’s approval of the plan was not valid as Yukon’s
changes to this plan were not authorized. To explain why, I must interpret s.
11.6.3.2 of the Final Agreements, which sets out Yukon’s right to modify a
Final Recommended Plan.
[36]
The provisions of Chapter 11 must be interpreted
in light of the modern treaty interpretation principles set out in this Court’s
jurisprudence and the interpretation principles in the Final Agreements (ss. 2.6.1 to 2.6.8). Because modern treaties are “meticulously negotiated by well-resourced
parties,” courts must “pay close attention to [their] terms” (Quebec
(Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557, at para. 7).
“[M]odern treaties are designed to place Aboriginal and non-Aboriginal
relations in the mainstream legal system with its advantages of continuity,
transparency, and predictability” (Little Salmon, at para. 12). Compared
to their historic counterparts, modern treaties are detailed documents and
deference to their text is warranted (Little Salmon, at para. 12; see
also Julie Jai, “The Interpretation of
Modern Treaties and the Honour of the Crown: Why Modern Treaties Deserve
Judicial Deference” (2010), 26 N.J.C.L. 25, at p. 41).
[37]
Paying close attention to the terms of a modern
treaty means interpreting the provision at issue in light of the treaty text as
a whole and the treaty’s objectives (Little Salmon, at para.
10; Moses, at para. 7; ss. 2.6.1, 2.6.6 and 2.6.7 of the Final
Agreements; see also the Interpretation Act, R.S.C. 1985, c. I-21, s.
12 ). Indeed, a modern treaty will not accomplish its purpose of fostering
positive, long-term relationships between Indigenous peoples and the Crown if
it is interpreted “in an ungenerous manner or as if it were an everyday commercial
contract” (Little Salmon, at para. 10; see also D. Newman, “Contractual
and Covenantal Conceptions of Modern Treaty Interpretation” (2011), 54 S.C.L.R.
(2d) 475). Furthermore, while courts must “strive to respect
[the] handiwork” of the parties to a modern treaty, this is always “subject to
such constitutional limitations as the honour of the Crown” (Little Salmon,
at para. 54).
[38]
By applying these interpretive principles,
courts can help ensure that modern treaties will advance reconciliation. Modern
treaties do so by addressing land claims disputes and “by creating the legal
basis to foster a positive long-term relationship” (Little Salmon, at
para. 10). Although not exhaustively so, reconciliation is found in the
respectful fulfillment of a modern treaty’s terms.
[39]
I turn first to the language of s. 11.6.3.2 in
the UFA and Final Agreements:
Government shall . . . approve, reject
or modify that part of the plan recommended under 11.6.3.1 applying on
Non-Settlement Land, after Consultation with any affected Yukon First Nation
and any affected Yukon community.
While the word “modify” is
unqualified in this provision, its juxtaposition to “reject” shows that Yukon
cannot modify a Final Recommended Plan so significantly as to effectively
reject it. The limited nature of “modify” is also supported by the Oxford
English Dictionary (online) definition of this term: “To make partial or
minor changes to; to alter (an object) in respect of some of its qualities, now
typically so as to improve it; to cause to vary without radical
transformation.” Similarly, “modifier” [modify] which appears in the
French version of the UFA is defined in the Grand Robert de la langue
française (2nd ed. 2001) as [translation]
“to change (a thing) without altering its nature, its essence”. The meaning of
the term conveys that a modification is a limited exercise, which involves
changing something without altering its fundamental nature.
[40]
The power to modify (or approve or reject) in s.
11.6.3.2 is, by the language of the provision, subject to prior “consultation”.
The consultation requirement also limits the nature of the modifications
authorized by the section.
[41]
“Consultation” is a defined term in the UFA and
Final Agreements and requires Yukon to provide
(a) to the party to be consulted, notice of a matter to
be decided in sufficient form and detail to allow that party to prepare its
views on the matter;
(b) a reasonable period of time in which the party to be consulted
may prepare its views on the matter, and an opportunity to present such views
to the party obliged to consult; and
(c) full and fair consideration by the party obliged to
consult of any views presented.
Yukon must therefore provide notice
in “sufficient form and detail” to allow affected parties to respond to its
contemplated modifications to a Final Recommended Plan, then give “full and
fair consideration” to the views presented during consultations before it
decides how to respond to the Final Recommended Plan in order to comply with
the robust definition of “ consultation”. Thus, all parties and courts below
agree that if Yukon decides to modify a Final Recommended Plan, it must comply
with these procedural requirements in exercising its authority under s.
11.6.3.2.
[42]
As well, the language of s. 11.6.3.2 must be
read in the broader context of the scheme and objectives of Chapter 11 of the
Final Agreements, which establishes a comprehensive process for how the
territorial and First Nations governments will collectively govern settlement
and non-settlement lands, both of which include traditional territories.
[43]
The land use plan approval process is initiated
when the Regional Land Use Planning Commission forwards a Recommended Plan to
Yukon and affected First Nations (s. 11.6.1). Yukon then has the obligation,
after consultation with the affected First Nations and communities, to approve,
reject, or propose modifications to the plan as it applies to non-settlement
land (s. 11.6.2). Written reasons are required if Yukon rejects the plan or
proposes modifications (s. 11.6.3). If Yukon does not approve the plan, the
Commission reconsiders it and then proposes a Final Recommended Plan (s.
11.6.3.1). After consultation, Yukon then approves, rejects, or modifies this
Final Recommended Plan as it applies to non-settlement land (s. 11.6.3.2). Once a plan
is approved, it must be periodically reviewed and can be amended (ss. 11.2.1.4
and 11.2.1.5). Each step of the process builds on decisions made at an earlier
stage. This process may span many years and government cycles.
[44]
Chapter 11 gives a politically neutral
Commission a central role in the land use planning process. The expert
Commission’s responsibilities overlap significantly with the objectives of
Chapter 11, and include ensuring adequate opportunity for public participation,
minimizing actual or potential land use conflicts, utilizing the knowledge and
traditional experiences of Yukon Indian People and the knowledge of other
residents in the region, promoting the well-being of Yukon residents, and
promoting sustainable development (ss. 11.1.0 and 11.4.5). As well, the
Commission must reconsider a Recommended Plan, in light of any proposed
modifications and the written reasons, and propose a Final Recommended Plan (s.
11.6.3.1).
[45]
Consultation is a key component of the approval
process. Consultations between the parties and affected community members on
the Commission’s Recommended and Final Recommended Plans foster meaningful
dialogue.
[46]
The Chapter 11 process ensures that Yukon First
Nations can meaningfully participate in land use planning for both settlement
and non-settlement lands. It does so by setting out consultation rights and the
authority of First Nations to approve, reject, and modify land use plans (ss.
11.6.1 to 11.6.5.2).[2] In the Final Agreements, most traditional territory was designated
as non-settlement land. In exchange for comparatively smaller settlement areas,
the First Nations acquired important rights in both settlement and
non-settlement lands, particularly in their traditional territories (see
Chapters 7, 10, 13, 14, 16, 17 and 18; see also Little Salmon, at para.
9). Section 9.3.1 recognizes that “[t]he amount of Settlement Land to be
allocated . . . has been determined in the context of the overall package of
benefits in the Umbrella Final Agreement.” Barry Stuart, the Chief Land Claims
Negotiator for the Yukon Territorial Government, explains that it was more
important to First Nations that they be able to meaningfully participate in
land use management in all of their traditional territory than to acquire vast
tracts of their traditional territory as settlement lands:
. .
. it became abundantly clear that [the First Nations’] interests in resources
were best served by creatively exploring opinions for shared responsibility in
the management of water, wildlife, forestry, land, and culture. Effective and
constitutionally protected First Nation management rights advanced their
interests in resource use more effectively than simply acquiring vast tracts of
land [as settlement lands]. . . .
.
. .
The
Yukon government’s desire to decentralize decision making and create meaningful
opportunities for public participation in managing resources complemented First
Nation interests in resource management, and served their interests more
effectively than increasing settlement land holdings.[3]
[47]
In short, it is a clear objective of Chapter 11
to ensure First Nations meaningfully participate in land use management in
their traditional territories. As well, the Chapter 11 process is designed to
foster a positive, mutually respectful, and long-term relationship between the
parties to the Final Agreements.
[48]
Thus, I agree with the lower courts that Yukon’s
authority to “modify” a Final Recommended Plan is limited by the language of s.
11.6.3.2, with its requirement of consultation, as robustly defined, and by the
objectives and scheme of the land use planning process, including the central
role of the Commission and the rights of First Nations to meaningfully
participate in the process. Chapter 11 sets out a collaborative process for
developing a land use plan, and an unconstrained authority to modify the Final
Recommended Plan would render this process meaningless, as Yukon would have
free rein to rewrite the plan at the end. Interpreting s. 11.6.3.2 in the
context of Chapter 11 shows that Yukon cannot exercise its modification power
to effectively create a new plan that is untethered from the one developed by
the Commission, on which affected parties had been consulted.
[49]
I agree with both courts below that Yukon can
make modifications to a Final Recommended Plan (s. 11.6.3.2) that are based on
those it has proposed to the Recommended Plan (s. 11.6.2), as the Commission
has had the chance to consider these modifications. However, I disagree that
these are the only modifications Yukon can make. Interpreting “modify” that
narrowly would mean Yukon could only respond to changing circumstances that may
arise in the land use planning process by rejecting the Final Recommended Plan.
A rejection triggers different consequences than a modification — it brings the
land use plan approval process to an end. The parties are left with no land use
plan for the region, unless they initiate the process again. Yukon’s power to
modify in s. 11.6.3.2 was intended to give it some flexibility to respond to
changing circumstances.
[50]
For example, in responding to Yukon’s proposed
modifications to a Recommended Plan, the Commission may make changes that
impact the overall plan. A land use plan is not made of self-contained
autonomous components. A change to one aspect of the plan may impact other
aspects. Yukon must be able to respond to those changes.
[51]
Furthermore, views expressed during the second
consultation, views to which Yukon must give “full and fair consideration”, may
indicate that modifications to the Final Recommended Plan are needed (Chapter 1
— Definitions, “Consultation”). Given the importance of the robustly defined
“consultation” to the land use planning process, Yukon must be entitled to
respond to these views.
[52]
Yukon may therefore make modifications that
respond to changing circumstances, such as those that may arise from the second
consultation and changes made by the Commission in its reconsideration of the
plan. Given that modifications are, by definition, minor or partial changes,
Yukon cannot “modify” a Final Recommended Plan so significantly as to
effectively reject it. In all cases, Yukon can only depart from positions it
has taken in the past in good faith and in accordance with the honour of the
Crown (Manitoba Metis Federation Inc. v. Canada (Attorney General),
2013 SCC 14, [2013] 1 S.C.R. 623, at para. 73; Mikisew Cree First Nation v.
Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at para. 51; Haida Nation v. British Columbia (Minister of
Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at paras. 19 and 42). When exercising rights and fulfilling
obligations under a modern treaty, the Crown must always conduct itself in
accordance with s. 35 of the Constitution Act, 1982 .
[53]
Turning to the circumstances of this case, I
agree with the courts below and the parties that Yukon did not have the
authority under s. 11.6.3.2 to make the changes that it made to the Final
Recommended Plan, and that Yukon’s approval of its plan must therefore be
quashed. Yukon’s changes to the Final Recommended Plan were neither partial nor
minor. As the trial judge found:
The Government approved plan is
significantly different than the Final Recommended Plan created by the
Commission, in that it both changed the land designation system and shifted the
balance of protection dramatically. Under the Government approved plan, 71% of
the Peel Watershed is open for mineral exploration with 29% protected compared
to 80% protected and 20% open for mineral exploration under the Final
Recommended Plan. [para. 111]
[54]
Yukon concedes that these significant changes were
not based on modifications it had proposed earlier in the process. While it expressed a general desire for more development and access in the
Peel Watershed after reviewing the Recommended Plan, it did not properly
propose modifications on this matter. Rather, it sent the Commission “bald
expressions of preference” related to access and development which were “not
sufficiently detailed to permit the Commission to respond in a meaningful way”
(trial reasons, at para. 196). Further, Yukon does not argue that its changes
to the Final Recommended Plan were made in response to changing circumstances.
[55]
Imagined as a conversation, Yukon chose not to
propose a point for discussion, but then proceeded to advance its point in the
most general terms and only after the discussion had substantially progressed.
Had Yukon proposed these specific modifications for increased access and
development after it received the Recommended Plan, the communities would have
had an opportunity to provide their views in the first round of consultation
and the Commission would have had the opportunity to provide its expert
response. By ultimately making these changes to the Final Recommended Plan
after failing to present them to the Commission in sufficient detail, Yukon
thwarted the land use plan approval process.
[56]
Furthermore, Yukon’s plan was based upon a
second round of consultation that ignored the framework that it had agreed to
in the 2011 LOU. This LOU required Yukon and the affected First Nations to
conduct the consultations together and to prepare a joint response to
the Final Recommended Plan.
[57]
By proceeding in this manner, Yukon “usurped the
planning process and the role of the Commission” (trial reasons, at para. 198).
Its changes did not respect the Chapter 11 process. Respect for this process is
especially important where, as here, the planning area includes First Nations’
traditional territories within non-settlement areas. As both the trial judge
and Court of Appeal noted, Yukon’s conduct was not becoming of the honour of
the Crown. I therefore agree with the courts below that Yukon’s approval of its
plan must be quashed.
C.
The Appropriate Remedy
[58]
Where a government decision is quashed, the
process prescribed by the treaty simply continues as though the government
decision “had never been made” (G. Régimbald, Canadian
Administrative Law (2nd ed. 2015), at p. 557). The
effect of quashing Yukon’s approval of the plan is to return the parties to “the position that they were in prior to the
making of the invalid decision”, that is, to the s. 11.6.3.2 stage of the land
use plan approval process (D.J.M. Brown and J.M. Evans, with the assistance of
D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf),
at p. 12-105; Chandler v. Alberta Association of Architects, [1989] 2
S.C.R. 848, at p. 862). At this stage, Yukon must “approve, reject or modify
that part of the plan . . . applying on Non-Settlement Land, after
Consultation”. As a result, it was unnecessary for the trial judge to quash the
second consultation.
[59]
The Court of Appeal would have returned the
parties to an earlier stage in the process. Although it agreed with the trial
judge that Yukon’s changes to the Final Recommended Plan were an invalid
exercise of Yukon’s power under s. 11.6.3.2, it went on to consider whether
Yukon’s conduct earlier in the land use plan approval process, specifically its
“failure to properly exercise its right to provide modifications” to the
Recommended Plan, respected the land use plan approval process (paras. 113-14).
The Court of Appeal concluded that Yukon “fail[ed] to honour the letter and
spirit of its treaty obligations” by proposing modifications to the Recommended
Plan that were not sufficiently detailed (para. 177). Accordingly,
the Court of Appeal returned the parties to the s. 11.6.2 stage of the land use
plan approval process, where Yukon would have the opportunity to remedy this
failure and to once again respond to the Recommended Plan.
[60]
In my view, the Court of Appeal’s approach is
inconsistent with the appropriate role of courts in a judicial review involving
a modern treaty dispute. The court’s role is not to assess the adequacy
of each party’s compliance at each stage of a modern treaty process. Rather, it
is to determine whether the challenged decision was legal, and to quash it if
it is not. Close judicial management of the implementation of
modern treaties may undermine the meaningful dialogue and long-term
relationship that these treaties are designed to foster. Judicial restraint leaves space for the
parties to work out their understanding of a process — quite literally, to
reconcile — without the court’s management of that process beyond what is
necessary to resolve the specific dispute. By assessing
the adequacy of Yukon’s conduct at the s. 11.6.2 stage of the land use plan
approval process, even though the First Nations did not seek to have the
approval quashed on that basis, the Court of Appeal improperly inserted itself
into the heart of the ongoing treaty relationship between Yukon and the First
Nations.
[61]
Moreover, Yukon’s “failure to properly exercise
its right to provide modifications”, as described by the Court of Appeal, was
exactly that: a failure to exercise a right, not a breach of an obligation.
This failure therefore had no bearing on the validity of Yukon’s approval of
its final plan (Chandler, at p. 863; see also Little Narrows
Gypsum Co. v. Nova Scotia (Labour Relations Board) (1977), 24 N.S.R. (2d)
406 (S.C. (App. Div.)), at para. 19). As Binnie J. explained in Little
Salmon, “[i]t is up to the parties, when treaty issues arise, to act
diligently to advance their respective interests” (para. 12). Yukon must
bear the consequences of its failure to diligently advance its interests and
exercise its right to propose access and development modifications to the
Recommended Plan. It cannot use these proceedings to obtain another opportunity
to exercise a right it chose not to exercise at the appropriate time.
Accordingly, I agree with the trial judge that “it would be inappropriate to
give the Government the chance to now put its January 2014 plan to the
Commission” (para. 219). The appropriate remedy was to quash Yukon’s approval
of its plan, thereby returning
the parties to the s. 11.6.3.2 stage of the land use plan approval process. It
was not open to the Court of Appeal to return the parties to an earlier stage.
[62]
In addition to quashing Yukon’s approval of its
plan, which returned the parties to the s. 11.6.3.2 stage, the trial judge
ordered Yukon, after it conducts the consultation, to either approve the Final
Recommended Plan, or modify it based on the modifications it had proposed to
the Recommended Plan.
[63]
As I have explained, the effect of quashing
Yukon’s decision to approve its plan was to return the parties to the s.
11.6.3.2 stage of the process. It was unnecessary to quash the second
consultation. As well, it is premature to interpret the scope of Yukon’s
authority to reject the Final Recommended Plan after it consults with the
affected First Nations, and it is unnecessary to do so in order to resolve this
appeal. I would therefore set aside the trial judge’s orders quashing the
second consultation and relating to Yukon’s conduct going forward.
IV.
Conclusion
[64]
The appeal is allowed in part with costs to the
appellants. The trial judge’s order quashing Yukon’s approval of its plan is
upheld. As a result, the parties are returned to the s. 11.6.3.2 stage of the
land use plan approval process, where Yukon can approve, reject, or modify the
Final Recommended Plan as it applies to non-settlement land after consultation
with the specified parties. The other parts of the trial judge’s order are set
aside.
APPENDIX
Final Agreements, Chapter 11, ss. 11.6.1 to 11.6.5.2
11.6.1 A Regional Land Use Planning Commission shall forward its
recommended regional land use plan to Government and each affected Yukon First
Nation.
11.6.2 Government, after Consultation with any affected Yukon
First Nation and any affected Yukon community, shall approve, reject or propose
modifications to that part of the recommended regional land use plan applying
on Non-Settlement Land.
11.6.3 If Government rejects or proposes modifications to the
recommended plan, it shall forward either the proposed modifications with
written reasons, or written reasons for rejecting the recommended plan to the
Regional Land Use Planning Commission, and thereupon:
11.6.3.1 the Regional Land Use Planning Commission shall
reconsider the plan and make a final recommendation for a regional land use
plan to Government, with written reasons; and
11.6.3.2 Government shall then approve, reject or modify that
part of the plan recommended under 11.6.3.1 applying on Non-Settlement Land,
after Consultation with any affected Yukon First Nation and any affected Yukon
community.
11.6.4 Each affected Yukon First Nation, after Consultation with
Government, shall approve, reject or propose modifications to that part of the
recommended regional land use plan applying to the Settlement Land of that
Yukon First Nation.
11.6.5 If an affected Yukon First Nation rejects or proposes
modifications to the recommended plan, it shall forward either the proposed
modifications with written reasons or written reasons for rejecting the
recommended plan to the Regional Land Use Planning Commission, and thereupon:
11.6.5.1 the Regional Land Use Planning Commission shall
reconsider the plan and make a final recommendation for a regional land use
plan to that affected Yukon First Nation, with written reasons; and
11.6.5.2 the affected Yukon First Nation shall then approve,
reject or modify the plan recommended under 11.6.5.1, after Consultation with
Government.
Appeal
allowed in part with costs to the appellants.
Solicitors for the
appellants: Aldridge + Rosling, Vancouver.
Solicitors for the
respondent: Torys, Toronto; Attorney General of Yukon, Whitehorse.
Solicitor for the
intervener the Attorney General of Canada: Attorney General of Canada,
Ottawa.
Solicitors for the
intervener the Gwich’in Tribal Council: JFK Law Corporation, Vancouver;
David Wright, Inuvik, Northwest Territories.
Solicitors for the
intervener the Council of Yukon First Nations: Boughton Law Corporation,
Vancouver.