Peel Watershed: SCC affirms the Honour of the Crown in Modern Treaty Implementation

On Friday December 1, 2017, in First Nation of Nacho Nyak Dun, et al. v. Government of Yukon, the Supreme Court of Canada rendered a unanimous decision on  the Peel Watershed land use planning process that is an integral part of  the Umbrella Final Agreement. The Court allowed the appeal on key parts of Yukon First Nations and several other Yukon parties’ five-year struggle  over the application of this  planning process. The Court found the Yukon government failed to fully respect the terms constitutionally entrenched in the planning process.

The Peel Watershed decision makes a vital contribution to what the Court’s role will be in resolving disputes arising from modern treaties. This decision sets important guidelines governing how courts can safeguard rights of all parties enshrined in treaties. The Court recognized  the important contribution treaties make to  reconciliation between First Nation and all  other Canadian governments.

This decision begins to address many important questions :

  1. What diligent efforts to resolve disputes will be expected of all parties before turning to courts?
  2. Will the honour of the crown extend the duty to negotiate in good faith to a duty to implement a treaty in good faith?
  3. What remedies will the court engage to ensure rights enshrined in treaties are safeguarded?
  4. What influence will explicit and implicit treaty objectives have in interpreting modern treaties?

This decision affirms that courts will play an important role in maintaining the collaborative partnerships necessary to make the social contract, inherent in all treaties, to successfully advance reconciliation.

Newly elected Yukon Premier Sandy Silver has said he will accept the final recommended plan from the Peel Planning Commission in accordance with the Supreme Court of Canada decision.

Former Chief Yukon Negotiator Barry Stuart said “A good day for all  Yukon parties as the Court recognized that modern treaties are intended to foster reconciliation at all levels. Diligent, collaborative efforts to implement treaties are expected from all parties. It is particularly important for Courts in interpreting modern treaties to consider the intent and purpose of the treaties.”

PBLI will include this decision in our upcoming programs, to advance a shared understanding of the contribution this SCC decision  provides to  making treaties a viable part of the Canadian governing process.

By Pauline Cusack and Amelia Boultbee

Posted on June 22, 2018  |  Comments (0)


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