Kyle Carruthers | Pointed Views
The Supreme Court of Canada’s decision on land use planning in the Peel region was short in comparison to some of the lengthy tracts we were forced to digest in law school. But what it lacked in length — weighing in at just 39 pages in PDF format — it made up for in density of legal substance. Written by Justice Andromache Karakatsanis for a unanimous court, I was impressed by its pith and clarity.
I support the protection of the Peel, so I am pleased by the outcome.
But I must confess I’m surprised by the result. Given the relative newness of the final agreements, the lack of clarity about the government’s role in the land use planning process, and the ostensibly broad authority of Yukon to “accept, reject or modify” a proposed land use plan I expected that the government would get another kick at the can like it did at the Court of Appeal.
I was caught off guard by how far our country’s highest court went in its decision. It was as if the court wanted to put to bed some issues surrounding the interpretation of the final agreements which, while not directly at issue in the lower court rulings, would inevitably arise in the future. In particular, I was struck by the constraints the court put on the ability of the government to modify a land use planning decision.
As those who have followed the case know, the meaning of the word “modify” has important implications for the land use planning process. If its scope is broad, Yukon is very much in the driver’s seat and — provided it follows the process properly — can create whatever plan it desires. If the meaning of modify is narrow, the commission has much more clout and the government’s only option is to reject the proposal in its entirety.
The judges and justices of the Yukon Supreme Court and the Court of Appeal had all declined to limit the term’s scope — focusing instead on the government’s failure to show its cards at the earlier stage of the process as the basis for rejecting its imposed plan.
All levels of court had found that the government breached the process. The more important question all along was what the repercussions of that breach would be. The Supreme Court of Canada’s decision is more in line with that of the Yukon Supreme Court than the Court of Appeal but it went significantly further in terms of protecting the authority of land use planning commissions and limiting that of the government.
Justice Karakatsanis wrote of how the co-management of traditional territory was a compromise the First Nations received when they signed final agreements in exchange for scaled-back land claims. She borrowed from the Oxford English Dictionary which defines the term “modify” as “to make partial or minor changes to … to vary without radical transformation” and a French dictionary which defines the word as “to change (a thing) without altering its nature, its essence.”
These conclusions put to rest the oft-stated position of the former Pasloski government that land use planning was the prerogative of “public government” in the territory and its implied position that the land use planning commission effectively played an advisory role. If modifications are to be partial and minor, and they cannot not alter the essence of a proposed plan, the role of the commission is very much enhanced.
Now that the Supreme Court has had the final word on the subject it appears that the only recourse available to a government displeased with a proposed plan will be to reject it in its entirety. Choosing to appeal the original Yukon Supreme Court decision will go down as a very poor decision.
I wrote previously that I did not expect the Peel decision to become a significant precedent because no future government would make the same error as the previous Yukon Party government by proposing vague, general changes and waiting in the weeds with a substantially different plan at the last moment. Those are words I think I must now take back. First Nation of Nacho Nyak Dun v. Yukon is an important, precedent-setting decision that defines the scope of land use planning for the future.
Part of me wonders if the top court felt an urge to rehabilitate its reputation as an important institutional safeguard for Indigenous rights after a recent decision permitting the development of a large ski resort in an area regarded as sacred by the local Ktunaxa Nation over their objections. It was a decision generally seen as a blow to First Nations lands rights and by some as an insult to Indigenous spiritual beliefs and the imposition of westernized standards of religious freedoms.
But whatever the court’s reasons for writing such a far-reaching judgment, we have unexpected guidance about the land use planning process.
Kyle Carruthers is a born-and-raised Yukoner who lives and practises law in Whitehorse.