Natives win their 250th court ruling on Canada’s road to resources

A benchmark event has transpired with First Nations winning an important lawsuit at the Supreme Court of Canada respecting ‘saving’ a wilderness area the size of New Brunswick.

They won on account that the Yukon Territorial Government had tried to do and end-run on their land claim settlements, and overrode the First Nations point of view almost entirely.

Readers who have followed my tracking of the native legal winning streak will be familiar with my preferred wording (land-rights) being the legal concept whereby natives typically win in the resources sector; since they have constitutionally-protected land-rights that the rest of us don’t have. Thus, my message to government and to industry is always the same: realize that natives are resource gatekeepers and work them into the project as the key local players that they are.

In this instance, the Yukon Party (under former Premier Pasloski) proposed to reverse the independent environmental protection measures proposed for the Peel Watershed, wherein, 80% was slated to be kept pristine and 20% to be opened for resource development. The Yukon government wanted to reverse that equation in order to get its resource sector up and running. However, planning for the Peel Watershed had been ongoing for a decade, with the process governed by settled native land claim procedures via an independent land-use commission.

The native-side held fast to its belief that the Peel Watershed was special: “it’s our university, our hospital, indeed there’s lots of activity going on there already. Our traplines, our ancestors, our thousand years of history; that’s where we go to bond and to gain back our spiritual and cultural strength.” (Chief Roberta Joseph speaking Dec 01/17 CBC News) There was a merging of agendas as eco-activists climbed aboard, and a very sophisticated public relations machine rolled-out to stop the reversal process during the litigation lead-up to the final court ruling.

The problem being, the Yukon Party had by then lost a number of other resource sector rulings to the native side; meaning the law respecting the on-going application of modern day land claim settlements was already well-defined. The risk the Yukon Party ran by litigating the Peel Watershed Land Use Plan was that it might well be directed to follow its own defined process.

Perhaps that was why it turned to Bay Street lawyers to argue the case for the subsequent appeals. In court, they freely admitted in argument that the Yukon Government had ‘erred’, ‘didn’t follow the process’, ‘accepted there was a breach of the agreement’, ‘stepped off the judicial path’, ‘failed to express sufficient detail’ and ‘misread the agreement’. That in turn, invited the Supreme Court to weigh-in with a series of reprimands in the final decision:

[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. (First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58)

One could be forgiven in thinking that these lands were Crown lands over which Yukon had sole jurisdiction. That would be mistaken, because modern-day land claim settlements imbue the native-side with land-rights to Crown lands (being their traditional lands). Here’s the court on how those Crown lands are to be managed:

[42]  As well, the language … 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.

That ‘collectively govern’ requirement is what the Yukon Government lost on, and when the final decision issued last month, the Supreme Court didn’t mince words:

[61] 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.

Back to Chief Roberta Joseph: “This is the outcome we were hoping for. We wanted a collaborative planning process. It was not our choice, we never wanted to go to court. But we’re prepared to work to protect the Peel Watershed.”

As a strategist, I’m saying it’s hard to believe that cases like this get this far. Yukon will now have to go on bended-knee to try and convince the native-side to open up more of the Peel Watershed to exploration. That will be a very tough assignment. Because, a win like this advances the land-rights legitimacy of the rise of native empowerment right across Canada.

Now at 250 legal wins, it’s the biggest win cycle in Canadian legal history. They’re redrawing the map of Canada one ruling at a time; solidifying their status as Resource Rulers in the process.