Turning back the clock on failed consultations
Next week the Supreme Court of Canada will hear a case that will clarify how to remedy failed consultations on land-development projects where the Crown has been found to be in breach of its obligations. Of course, the courts have not shied in the past from overturning project approvals that do not respect the process for meaningful consultation. What makes this case unique is the question of whether the Yukon government, in spite of its actions in sandbagging an entire process for the development of land use plans that had been agreed upon, should be allowed to scrap it altogether and go back to the drawing board.
The case involves a modern treaty, the overall "umbrella" agreement of the Yukon Land Claims package, which requires that a third-party commission, in consultation with the Yukon First Nations and the Government of Yukon, develop a land-use plan for traditional territory in the Peel Watershed. Respecting the consultation process outlined in the agreement, the Peel Watershed Planning Commission released a plan that set aside 80 per cent of land for protection while allowing 20 per cent open for development.
Following the consultation process, the Yukon government requested some broad modifications (without rejecting it) that would favour a more balanced approach (i.e. more than 20 per cent open for development). The Commission responded by making some changes, though not enough to satisfy the government, which in turn released its own plan. In doing so, it dramatically reversed the ratio of developed to conserved land from 80 per cent development versus 20 per cent to be set aside for protection and conservation.
Shortly thereafter the Yukon First Nations sued the government for not respecting the consultation process. A Yukon Supreme Court judge decided in favour of the Yukon First Nations, emphasizing that modern treaties should be read within the context of furthering reconciliation. As Bergner, Olynyk and Kruger from Lawson and Lundell Law write:
In drawing on previous jurisprudence from the Supreme Court of Canada in Little Salmon/Carmacks and Manitoba Metis, including direction that modern treaties must be interpreted in a manner that fosters a positive long-term relationship between First Nations and government as well as between Aboriginal and non-Aboriginal communities, the court concluded that the process adopted by the Yukon government to enact the plan was not based upon a contextual interpretation of the final agreements, nor did it enhance the goal of reconciliation. In the words of the Court, “It was an ungenerous interpretation not consistent with the honour and integrity of the Crown”, resulting in the government usurping the Commission’s role and the planning process by introducing new land use planning tools and concepts at the final stage of the process.
The decision was appealed and Court of Appeal concurred that Yukon failed to honour the letter and spirit of its treaty obligations. However, it prescribed a different remedy, returning the parties even further back in time to the point where, in its view, the government derailed the dialogue essential to reconciliation as envisioned in the agreement.
This, say the Yukon First Nations, can only advantage the government. Jeff Langlois and Claire Truesdale from the JFK Law corporation, who represent intervening parties, have written that sending the parties back to the drawing board is a waste of energy, costs and resources:
With the clock turned back on the land use planning process to the point when the Recommended Plan was delivered by the commission, Yukon may now propose modifications (with detailed reasons) so long as it consults with First Nations. This gives the Yukon another chance to seek modifications to the Recommended Plan. In doing that, the Court ordered, Yukon cannot simply table its proposed plan; it must meaningfully consult First Nations about any proposed modifications. But this means that First Nations and other affected communities must continue to articulate why the Peel should be protected, continue to participate, express their concerns, provide information, and hold Yukon to account in its conduct of the process and decision making. As we have seen in many cases, the process of consultation is burdensome and can be expensive and frustrating.
Therein lies the main area of concern for the plaintiffs. In their written submission to the Supreme Court, the plaintiffs argue:
If the Court of Appeal's remedy is allowed to stand, there could be no certainty in the land use plan approval process. The process would be open-ended. The Government of Yukon (or First Nations in respect of Settlement Land) could restart the process at any time after they have proposed modifications with written reasons under s. 1 1.6.2 by announcing that they have formulated further plan modifications never advanced before, which they now want to be considered. All that would be necessary would be to raise a general concern or "bald expression of preference" about any issue. There would never be any certainty or predictability or sense of resolution of issues through participation, dialogue, compromise, or persuasion. First Nations' participation in the planning process would not be meaningful. There would be little motivation for First Nations or affected Yukoners to bother participating if, at the end, the Government would have the untrammelled ability to roll the matter back to an earlier stage in the proceeding. The whole process would become utterly unworkable.
A Supreme Court ruling on the matter should provide some clarity on the appropriate remedy for when the government does not respect a land use process. Yukon First Nations and environmental groups are hoping the top court will rule that allowing the government “do-over” when it is not satisfied with the outcomes of consultation, is not the appropriate one.