Judge Rules for First Nation, Rejects Yukon Government’s Attempt to Evade Hearing on Land Use Planning and Treaty Breaches
Supreme Court of Yukon rejects Yukon’s application seeking to dismiss claims from lawsuit filed by First Nation of Na-Cho Nyäk Dun
Yukon, Canada: On Wednesday, Chief Justice Duncan of the Supreme Court of Yukon dismissed an application from Yukon Government. The application had asked the court to strike out claims related to land use planning, treaty breaches, and breaches of the honour of the Crown from a lawsuit filed by the First Nation of Na-Cho Nyäk Dun (“FNNND”). In dismissing the application, the court rejected every single argument advanced by Yukon Government lawyers.
On March 15, 2021, the First Nation filed a petition for judicial review, seeking to quash and set aside Yukon Government’s decision to proceed with a mining project in a pristine, highly sensitive part of FNNND traditional territory. The petition alleges that, in issuing the decision, Yukon Government acted unlawfully and breached various constitutional obligations owing to FNNND related to treaty implementation, land use planning, the honour of the Crown, and the duty to consult.
Rather than respond to the First Nation’s claims, Yukon Government instead brought an application seeking to prevent the court from even considering treaty breaches and Yukon’s failure to undertake constitutionally-required land use planning processes. In her decision dismissing Yukon Government’s application, Chief Justice Duncan confirmed—as previously held by the Supreme Court of Canada—that the purpose of FNNND’s modern treaty is “to foster a positive and mutually respectful long-term relationship between the signatories.” She further held that “diligent implementation of [treaty] promises that are constitutional obligations is required by the honour of the Crown.” Chief Justice Duncan concluded by holding that Yukon Government’s arguments were “not persuasive” and their “application is dismissed.” The court’s decision was clear confirmation of FNNND’s right to proceed with its challenge of Yukon Government’s failure to land use plan and its continuing disregard of First Nation treaty rights.
“It is distressing—and depressing—that in this time of reconciliation, Yukon still refuses to honour its treaty promises to us, and then seeks to evade judicial review of their unconstitutional actions” said FNNND Chief Simon Mervyn. “The court’s decision is a complete victory for our First Nation and a complete rejection of Yukon Government’s tactics. We look forward to moving quickly towards a final hearing on our petition.”
This lawsuit arose from Yukon’s February 19, 2021 authorization for Metallic Minerals Corporation’s advanced mineral exploration activities in the Tsé Tagé (Beaver River) watershed. The Tsé Tagé watershed is a pristine, highly significant part of FNNND’s Traditional Territory. Whether this authorization breached FNNND’s Treaty will be determined at a future hearing.