The Yukon takes reconciliation seriously. Two recent, historic judgments from Yukon courts remind us that reconciliation isn’t just hot air or idealism. Reconciliation is the law.
Two unlike decisions—the first from the Supreme Court of Yukon and the second on appeal to the Yukon Court of Appeal—illustrate vexing tensions in our understanding of reconciliation: as an intention, as a legal mechanism, and as a model for establishing reciprocity between Aboriginals and non-Aboriginals.
Canadian wilderness regions are under siege. One particular wilderness, the subject of this case, is home to Grizzlies, wolverine and caribou. A pristine area of northeastern Yukon, it is the size of Scotland and one of the most vital ecosystems on the planet. The Peel Watershed has sustained the Na-cho Nyak Dun, Tr’ondëk Hwëch’in and Vuntut Gwitchin First Nations for thousands of years.
Directed by the territorial government, the Peel Watershed Planning Commission developed a land use plan for the region based on conservation principles and preservation of First Nations heritage. Pursuant to the plan, the government would set aside 80 percent of the watershed as a conservation area; in the remaining 20 percent, development would require additional licensing.
The planning process took six years, from 2005 to 2011, and the Final Recommended Plan stands as a heroic example of research, consultation and collaboration with First Nations, and consensus-building in the territory.
But following a territorial election, the Government of Yukon announced its own blueprint for the region, where only 29 percent of the watershed would be protected, and 71 percent would be open for mineral, oil and gas staking.
The government relied on its authority under the Umbrella Final Agreement, or “UFA,” to approve, modify or reject a recommended regional use plan. First Nations and conservationists read the agreement to mean the government could only modify the plan based on previous drafts; it could not re-write the plan. For First Nations who demand 100 percent protection of the watershed, interpretation matters.
The only possible result in this titanic clash of visions? Litigation.
Action in the courts can be slow—even glacial. The cautious application of precedent and principle to achieve dramatic change requires time. And yet, with Thomas Berger as their counsel, the plaintiffs won two victories against the Government of Yukon. And both judges based their reasoning on reconciliation.
Yet, the judges’ visions for the purpose, or promise, of reconciliation do not match. At the Supreme Court of Yukon, Justice Veale declared that the government plan damaged the process of reconciliation that is at the heart of the land planning provisions of the UFA. He quashed that plan and agreed with the plaintiff First Nations of Na-cho Nyak Dun and Tr’ondëk Hwëch’in, the Yukon Chapter of the Canadian Parks and Wilderness Society and the Yukon Conservation Society: the government had overstepped its authority when it introduced a land use plan not based on prior consultation. As a remedy, the Court restricted government modifications to the Commission’s plan to the Final Recommended Plan.
Though short-lived, the decision provided a sense of relief for First Nations.
The Yukon Court of Appeal upheld the ruling, but Chief Justice Bauman elaborated an entirely different—and much more problematic—notion of reconciliation. The judge used reconciliation to substantiate renegotiation of the plan, going back to 2009. The remedy, despite the dialogue of reconciliation supporting it, may be deeply dissatisfying for First Nations and conservationists.
Read together, these judgments ask whether we are poised to accept a new vision of Aboriginal and non-Aboriginal relations.
The trial judgment
Justice Veale’s interpretation of reconciliation in The First Nation of Nacho Nyak Dun v Yukon (Government of) represents a significant improvement on the status quo.
The judge embeds a large and powerful conception of reconciliation into the UFA that exceeds the textual provisions on land planning. He begins his analysis by noting that the First Nations in Yukon had given up legal claims to their traditional territories in exchange for defined rights and the right to involvement in land use planning, guided by the UFA. In that sense, the planning provisions frame an opportunity to collaborate and to work together on a shared vision.
The agreement isn’t exactly about reconciliation, so this may come as a surprise: “reconciliation” does not appear once in the agreement, which provides a framework for treaty negotiation and land use in the territory. But Justice Veale asks whether the government’s actions under the procedure of the UFA achieved the purpose of reconciliation. Justice Veale expands the scope of reconciliation beyond where it would be if he employed a strict, textual analysis.
A legalistic interpretation might give unfettered discretion to the territorial government to simply reject the Commission’s plan. The government does have the final authority to approve a recommended plan. Were the judge solely concerned with the wording of the UFA, rather than the vision for reciprocity it enforces, the defendants may have trampled the claims of the plaintiffs.
Canadian jurisprudence supports a more conservative understanding of the Crown/First Nations relationship. Since the creation of Section 35 of the Constitution Act, 1982, courts have articulated reconciliation to achieve a utilitarian outcome that doesn’t always appreciate the First Nations’ perspective. The trial judgement takes on greater significance when juxtaposed with conventional iterations of reconciliation in Canadian jurisprudence.
The orthodox view from the Supreme Court is the “reconciliation of pre-existing societies with the sovereignty of the Crown,” as Chief Justice Lamer wrote in the R v Van der Peet decision (at para 35). Lamer CJ presents an unsatisfying conception of reconciliation, linguistically and visually. Linguistically, the pre-existing societies seem to be doing the reconciling; and spacially, aboriginal rights are an inconvenient burden on the unilateral assertion of Crown sovereignty. This paradigm represents a fairly accurate illustration of the relationship. Reconciliation substantiates the Crown’s interest in Crown land.
The Truth and Reconciliation Commission of Canada elaborates a very different understanding: “By establishing a new and respectful relationship, we restore what must be restored, repair what must be repaired, and return what must be returned.” (page 6, Summary of the Final Report).
In contrast, the methodology of the courts serves a model that should be dépassé: “reconciliation” allows the government to substantiate infringements on aboriginal rights by claiming that those infringements serve the public interest of reconciliation between various groups living on the land. The judicial test asks whether infringement fits the broader public goal of “reconciliation.” the Court declared that many policy goals could justify infringement, such as the development of agriculture, forestry, mining or settlement (para 165, Delgamuukw v British Columbia). Arguably, reconciliation has become short-hand for a reduction of Aboriginal rights in service of the larger population.
But the spirit of the trial decision presents something fresh and distinct. The remedy appreciates the perspective of First Nations—who collaborated with the Commission to protect their traditional lands— and does not allow the government to renegotiate a plan that dismantles the Commission’s plan for conservation and development.
The judge’s interpretation gives meaning to the perspective of the First Nations: the UFA preamble indicates that the agreement aspires “to recognize and protect a way of life that is based on an economic and spiritual relationship between Yukon Indian People and the land,” and “ to achieve certainty with respect to the ownership and use of lands and other resources of the Yukon.” That sounds like reconciliation according to the TRC.
This judgement reflects an Aboriginal understanding of the UFA as creating a treaty relationship that protects one party from exploiting another. Treaties are an important element of reconciliation because they formed the basis of the original Nation-to-Nation relationship between the Crown and First Nations. The quintessential example remains the Treaty of Albany, where the Iroquois presented the British with a Two-Row Wampum that depicted the British ship and the Iroquois canoe side-by-side. Created from beads made of shells, the Two-Row Wampum symbolized a relationship of equals, whereby neither party would try to steer the other’s vessel.
Although no longer as visually moving, and less physically tangible, modern treaties are illustrations of reconciliation. The Final Agreements, which are the land settlement agreements between the government and Yukon First Nations, are modern-day treaties. The UFA is incorporated into each of the Final Agreements because, as an “umbrella agreement,” it provides a framework for the negotiation of land claims.
The Final Agreements are treaty rights according to s. 35, and the “grand purpose” of the provision is the reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship, as Justice Binnie elaborated in another Yukon decision, Little Salmon/Carmacks.
Justice Veale will not want let the government steer the First Nations’ canoe. The judge illustrates that the Commission’s work, as an extension of the UFA, represents an elaboration of reconciliation: it is “one mechanism by which the Final Agreements facilitate reconciliation.” By designing its own plan, the government usurped the role of the Commission in the planning process. Justice Veale will not allow the government to benefit from doing damage to reconciliation.
On Appeal
Two judges may agree on someone’s misbehaviour, but disagree vehemently on the best way to discipline him. This proves the case here.
Chief Justice Bauman writes: “the remedy crafted by the trial judge would put in place a plan that emerged from a flawed process. I do not see how that serves reconciliation” (at para 169). He deconstructs the more fundamental notion of reconciliation elaborated at trial. In simple terms, the Chief Justice reduces the case to a clear case of a relationship that has soured and must be rehabilitated. Forget about the land, and just get along!
His language resembles the advice of a marriage counsellor, rather than a court adjudicator: “Reconciliation is understood as a process, “not a final legal remedy in the usual sense;”” “Reconciliation involves both parties;” “the purpose of modern treaties is to further reconciliation by “creating the legal basis to foster a long-term relationship between Aboriginal and non-Aboriginal communities;” and finally, “[Reconciliation] is a two-way street.”
But will the Chief Justice’s remedy of renegotiation contribute to reconciliation? Not likely.
The appeal judgment reflects a troubling—and too-easily accepted— understanding that frames reconciliation solely in terms of human relationships. For Aboriginal people who could care less about having a perfect relationship with the government—and arguably never have—protection of the Peel Watershed is what matters. The decision emphasizes reconciliation as a long-term goal; but an emphasis on the long-term sustainability of relationships between First Nations and the government potentially jeopardizes the long-term sustainability of the land.
Whereas relationships are malleable, the land does not have the benefit of reconciliation.
The auxiliary effects of mining alone—road construction, traffic of heavy machinery, increased human presence on the land and in the air— could cause irreparable harm to the ecology of the region. In its recommendation, the Commission considered the consequences of new infrastructure on the unique fauna of the Peel, such as the Bonnet Plume caribou herd. The herd ranges throughout the watershed and provides a sensitive indicator of habitat health. Taking into account the irreversible nature of non-renewable resource development, these two visions for the Peel are utterly incompatible.
The government’s reliance on a retroactive interpretation of reconciliation resembles an abuse of process: Government of Yukon may use the Court’s order to renegotiate—as a means to “achieve reconciliation”—to act with impunity. The appeal decision essentially sanctions the government’s breach. We might ask whether, in future, other governments will take up this reading to retroactively change agreements: “to foster reconciliation.”
These two cases reflect the dilemma of reconciliation articulated in Canadian jurisprudence. Justice Veale sees reconciliation for what it might promise—a reconfiguration of power that gives value to an Aboriginal perspective on land, and not just a restatement of the lack of trust between government and Indigenous peoples. By reiterating the habitual fiction, Chief Justice Bauman offers the government immunity for its bad faith. These two judgments illustrate that we have some time to go before we near reconciliation. And let’s hope that the land is still there, when we do.
LEGISLATION
Umbrella Final Agreement. Aboriginal Affairs and Northern Development Canada. Umbrella Final Agreement between the Government of Canada, the Council for Yukon Indians and the Government of the Yukon (1993), online: www.aadnc-aandc.gc.ca.
JURISPRUDENCE
Delgamuukw v British Columbia, [1997] 3 SCR 1010, 153 DLR (4th) 193
The First Nation of Nacho Nyak Dun v Yukon (Government of), 2014 YKSC 69 (CanLII)
The First Nation of Nacho Nyak Dun v Yukon (Government of), 2015 YKCA 12 (CanLII)
Tsilhqot’in Nation v BC, [2014] 2 SCR 256, 374 DLR (4th) 1
SECONDARY MATERIALS
John Borrows and Leonard Rotman, Aboriginal Legal Issues: Cases, Materials and Commentary 3rd ed (Markham, Ont: Butterworths, 2007)
forthetreesandwater 