The Northern Miner, first published in 1915, during the Cobalt Silver Rush, is considered Canada’s leading authority on the mining industry.
This past December, the Yukon Supreme Court handed down an important aboriginal law ruling that has implications for future mining operations in the Yukon. In The First Nation of Nacho Nyak Dun v. Yukon (Government of), 2014 YKSC 69, Yukon Supreme Court Justice Ron Veale held that the Yukon government’s modifications to the Peel land use plan did not respect the land use planning process set out in the final agreements (modern treaties) with the Na-Cho Nyak Dun, Tr’ondek Hwech’in and Vuntut Gwichin First Nations, and struck down the land use plan as a result.
The case marks the first time that a court has been asked to consider the meaning of land use planning provisions contained in the Umbrella Final Agreement between Canada, Yukon and Yukon First Nations, which forms part of 11 final agreements across Yukon. Among other things, the final agreements provide First Nations with the right to participate in land and resource management decision-making for Crown lands, including land use planning processes, in exchange for the release of claims to aboriginal rights or title to those lands.
While the decision deals specifically with the Peel watershed in northeast Yukon, the case will have direct implications for land use planning throughout the Yukon, and could have indirect impacts on consultative requirements under modern treaties for other governmental land and resource use decision making.
Background
The Peel watershed is a vast, largely undeveloped area covering 14% of Yukon, with nearly 8,500 active mining claims.
In 2004, the Peel Watershed Planning Commission was established under the relevant final agreements to develop a regional land use plan for the Yukon portion of the Peel watershed. The Commission’s mandate was limited to land use planning for the Yukon, however, the final agreements all made provision to protect the interest of the Tetlit Gwich’in who live in the Northwest Territories but have traditional territory in the Yukon.
The final agreements prescribe a process by which the Commission recommends a Plan to the government, who must consult with any affected First Nation before approving, rejecting or proposing modifications to the plan. Unless the Plan is approved at the outset, it is sent back to the Commission to reconsider the Plan and make a “final recommendation” to the Yukon government. Upon receipt of the final recommendation, the government of Yukon is again to consult with affected First Nations before approving, rejecting or modifying the final recommended plan.
Following seven years of background work and information gathering from First Nations, government and the general public, the Commission proposed a land use plan for the Peel watershed and recommended it to the government. The government then proposed modifications to the Plan and sent it back to the Commission. Following review, the Commission then made some modifications and resubmitted the Final Recommended Plan back to the government. The controversy in the case arises from what the government did with the Plan after receipt of the Final Recommended Plan. f
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