First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58
On December 1, 2017, the Supreme Court of Canada allowed the appeal of the Nacho Nyak Dun (the “First Nation”) regarding the approval of land use plan for the Peel Watershed in the Yukon. While the case is in the modern treaty context, it has important implications that extend well beyond the Yukon.
The Umbrella Final Agreement, between Canada, Yukon and the Yukon First Nations, set the stage for the modern treaty making process in the Yukon and established a collaborative regional land use planning process. The Final Agreements recognized the right for First Nations to meaningfully participate in land use planning beyond their settlement lands across the whole of their traditional territories.
Pursuant to these Agreements, the Peel Watershed Planning Commission (the “Commission”) was established to develop a regional land use plan for the Peel Watershed. In 2009, the Commission initiated the land use approval process by submitting its recommend plan to Yukon and the First Nations. Consultation ensued over a number of years and changes were made to the land use plan. Near the end of the process the Commission tabled a Final Recommended Plan that recommended 80% of the Peel Watershed be protected with 20% open for mineral exploration. The Yukon government purported to exercise its power to “modify” the plan, opening up 71% of the watershed for mineral exploration and protecting only 29%. Yukon unilaterally adopted this radically different plan. The First Nation sought judicial review quashing Yukon’s plan and directing it to re-conduct consultation on the Final Recommended Plan.
The SCC Decision
The First Nation was successful at both levels of court in overturning Yukon’s approval of the land use plan. As part of the Umbrella Final Agreement with the Yukon First Nations, the government of the Yukon committed to collaborative management without the First Nation that required detailed consultation obligations as part of its land use planning process.
The question in the appeal was the scope of Yukon’s authority to “modify” a Final Recommended Plan as it applies to non-settlement lands. The court found that after having engaged in extensive consultations with the First Nation and the Commission to come up with the plan, Yukon made extensive changes to the Final Recommended Plan that effectively rejected it. At the Supreme Court of Canada, the Yukon admitted it had breached the process set out in the Umbrella Final Agreement with the Yukon First Nations, but that it ought to get “a do-over”, sending the matter back to an earlier stage in the process.
Having found that Yukon had breached its obligations under the Treaty, the court had to grapple with the remedy, in particular what stage the process was to return to. The court held that the effect of quashing the approval was to return the parties to the stage in the land use planning approval process where Yukon could “approve, reject or modify” the Final Recommended Plan, after consultation, not some earlier stage where Yukon would have much broader discretion. The court held that Yukon can only depart from positions it has taken in the past in good faith and in accordance with the Honour of the Crown.
Why this Case Matters
Governments are increasingly entering into contractual agreements with First Nations to address their consultation obligations. While not treaties, much the same reasoning as found in Nacho Nyak Dun would apply in our view.
The court pays particular attention to the requirement of “full and fair consideration”, holding that this contemplates a “robust consultation process.” In contrast, the same consultation definition was at issue in the Little Salmon case, where Justice Binnie referred to it as “consultation at the lower end of the spectrum.” British Columbia has used similar language in many of its consultation agreements with First Nations and pointed to the Little Salmon reference(s) to say it does not have to engage in deep consultation. In our view, the reasoning of Nacho Nyak Dun ought to be preferred when interpreting the Crown’s obligations under these agreements.
In addition, the court reminds us that the terms of these agreements matter and the courts must pay close attention to their terms. The Crown cannot simply ignore its constitutional and contractual obligations and run roughshod over the First Nations’ rights. This case gives voice to that principle.
Finally, this case is important for First Nations involved in any multi-stage negotiations with the Crown, such as the BC Treaty Process. The court holds that the Crown cannot depart from positions it has taken in the past, unless it is acting in good faith and in accordance with the Honour of the Crown. While there is some flexibility to depart from a previously-held position to respond to changed circumstances, the Crown is held to a high standard.
 Para. 5.
 Paras. 6 & 48.
 Para. 52.
 Para. 41.
 Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53,  3 S.C.R. 103 [Little Salmon] at paras. 74-75.
 Paras. 36-38.
 Para. 52.