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Treaty obligation in Peel Watershed challenge upheld by the Supreme Court of Canada

“As both the trial judge and Court of Appeal noted, Yukon’s conduct was not becoming of the honour of the Crown.”

By Shari Narine
Windspeaker Contributor


A unanimous decision by the Supreme Court of Canada has supported the fight by First Nations and environmental groups to protect the Peel watershed region in the Yukon by honouring the collaborative process of the Umbrella Final Agreement.

Local First Nations and environmental groups charged that the territorial government had breached its treaty obligations under the Umbrella Final Agreement. That document had been signed in 1990 by First Nations and the Yukon as a means to reach modern land claims agreements.

“We are pleased that the court agrees that the path towards reconciliation requires honourable implementation of the spirit and intent of our Final Agreements,” said Chief Bruce Charlie of the Vuntut Gwitchin First Nation.

The Vuntut Gwitchin First Nation joined forces with the First Nations of Na Cho Nyäk Dän and Tr'ondëk Hwëch'in and the Canadian Parks and Wilderness Society, Yukon Chapter, and Yukon Conservation Society in the three-year legal battle against the Yukon government.

In the ruling written by Justice Andromache Karakatsanis and released this morning, the court upheld the trial judge’s order to quash Yukon’s approval of the land use plan, which would have seen significant access to and development of the Peel watershed region. That significant development came in the phase where Yukon was allowed to make modifications to the final recommended plan.

However, wrote Karakatsanis, the modification phase did not allow Yukon to make changes to the final recommended plan “so significantly as to effectively reject it.” Those changes also occurred without consultation with First Nations.

“As both the trial judge and Court of Appeal noted, Yukon’s conduct was not becoming of the honour of the Crown,” wrote Karakatsanis in his 39-page decision.

The Yukon govenrment’s new plan delivered in 2012 protected 30 per cent of the region from development.

However, in 2011, an independent commission developed a recommended plan, based on consultation with First Nations, Yukoners, and environmental groups that would have seen 80 per cent of the region remain undeveloped.

In his ruling, Karakatsanis said it was appropriate to return to the point in the process in which the government had made its modifications to the plan. He did not agree with the Court of Appeal’s approach which would have allowed the government to begin again, permitting the territory to introduce the wholesale changes it had attempted to push through.

“The court’s role is not to assess the adequacy of each party’s compliance at each of the modern treaty process. Rather it is to determine whether the challenged decision was legal and to quash it if is not,” Karakatsanis wrote.

“This is a victory for our modern-day treaties and the collaborative planning processes promised for Land Use Planning,” said Chief Roberta Joseph lf Tr'ondëk Hwëch'in First Nation.

The Supreme Court directed the territory to complete consultations on a land use plan that protects 80 per cent of the Peel watershed. The watershed is one of the largest unspoiled natural areas in North America. The 68,000-square-kilometres of rugged wilderness lies within the traditional territories of the Yukon First Nations of Tr'ondëk Hwëch'in First Nation, the First Nation of Na Cho Nyäk Dän, Vuntut Gwitchin First Nation and the Tetlit Gwich’in in the neighbouring Northwest Territories.

The case was initially heard by the Supreme Court of Yukon in 2014 and then again by the Court of Appeal of Yukon in 2015.

The Supreme Court hearing took place in Ottawa in March.

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