FIRST NATION OF NA-CHO NYÄK DUN PETITIONER v. GOVERNMENT OF YUKON AND METALLIC MINERALS CORP., 2023 YKSC 5

SUPREME COURT OF YUKON Citation: First Nation of Na-Cho Nyäk Dun v Yukon (Government of) , 2023 YKSC 5 Date: 20230131 S.C. No. 20-AP013 Registry: Whitehorse BETWEEN: FIRST NATION OF NA-CHO NYÄK DUN PETITIONER AND GOVERNMENT OF YUKON AND METALLIC MINERALS CORP. RESPONDENTS Before Chief Justice S.M. Duncan Counsel for the Petitioner Nuri G. Frame by video conference Counsel for the Respondent, Government of Yukon Kimberly Sova and Julie DesBrisay Counsel for the Respondent, Metallic Minerals Corp. No one appearing REASONS FOR DECISION INTRODUCTION [ 1 ] This application for judicial review raises questions about the

interpretation and implementation of processes used to resolve land use conflicts in the Yukon.

The balancing of the various rights and interests connected to land use requires consideration of the rights and obligations in the modern treaties among self-governing First Nations, the territorial government and the federal government, in the environmental assessment and mining legislation, and in the common law. [ 2 ] The First Nation of Na-Cho Nyäk Dun (“FNNND”) asks the Court to quash and set aside the decision of the Yukon government approving the proposed exploration project of Metallic Minerals Corp. (“Metallic Minerals”) in the Tsé Tagé (Beaver River) watershed area of the traditional territory of the FNNND to proceed to the authorization stage.

The Tsé Tagé watershed area is currently the subject of a land use planning process under an Intergovernmental Agreement entered into between the Yukon government and the FNNND as a result of a previously proposed project by ATAC Resources Ltd. (“ATAC”), a different proponent. [ 3 ] In its decision, the Yukon government added several terms and conditions to the recommendation of the Yukon Environmental and Socio-economic Assessment Board (“YESAB”) to allow Metallic Minerals to undertake its proposed exploration activities in the Tsé Tagé area every summer for 10 years.

The decision is the final stage in the assessment process, before the project moves to the regulatory authorization stage. [ 4 ] The FNNND says the decision was unlawful because it breached certain duties flowing from the honour of the Crown: the duty to consult and if necessary accommodate; the duty to diligently implement the promises of the Treaty, especially the promise to engage in regional land use planning for the FNNND traditional territory as provided in

Chapter 11 of the Final Agreement (the modern treaty); and the duty to act in a way that accomplishes the intended purpose of the Treaty, including the duty to keep promises made in the Intergovernmental Agreement between the Yukon government and the FNNND to develop a land use plan in the Tsé Tagé watershed area. [ 5 ] The FNNND further says the decision was unreasonable because its internal reasoning was incoherent. The outcome was not

justified because of its failure to comply with the factual and legal constraints. They also say the Yukon government’s breach of the duty of good faith in the performance of the Intergovernmental Agreement rendered the decision unreasonable. [ 6 ] The FNNND seeks declarations of the breaches of the duties flowing from the honour of the Crown and a declaration of the breach of the duty of good faith in the performance of the Intergovernmental Agreement. [ 7 ] The Yukon government defends the decision as lawful. They say it complied with the requirements of the duty to consult.

The Final Agreement and the Intergovernmental Agreement are not relevant or applicable to this decision, but if they are, there was no breach of any duties arising from those documents based on the honour of the Crown. The Yukon government defends its decision as reasonable because it is internally coherent as well as transparent, intelligible and justified.

There was no breach of the duty of good faith in the performance of the Intergovernmental Agreement land use planning provisions. [ 8 ] Metallic Minerals takes no position on this application and counsel did not appear at the hearing. [ 9 ] Many arguments were raised in written and oral submissions by both parties.

The essence of this dispute is whether the Yukon government can approve an exploration project in the Tsé Tagé region of FNNND traditional territory in the context of the Final Agreement land use planning provisions and when a land use planning process between the Yukon government and the self-governing First Nation is occurring in the same area. BRIEF CONCLUSION [ 10 ] The decision of the Yukon government is quashed and set aside, on the basis that the Yukon government breached the honour of the Crown by failing to consult properly.

In the alternative it is set aside because the Yukon government breached the honour of the Crown by failing to act in a way that accomplishes the intended purpose of the Final Agreement. In the further alternative, the decision was unreasonable because the Yukon government did not engage with the submissions and evidence provided by the FNNND and did not comply with the legal constraints on the decision. The failure to consider the ongoing land use planning process was a breach of the duty of good faith in the performance of the Intergovernmental Agreement.

Declarations of the breaches of the two duties flowing from the honour of the Crown and of the breach of the duty of good faith are granted. [ 11 ] There is no finding or declaration that the Yukon government failed to diligently implement the promises of the Treaty including the land use planning process set out in

Chapter 11 of the Final Agreement. BACKGROUND First Nation of Na-Cho Nyäk Dun and the modern treaty [ 12 ] The FNNND is a Northern Tutchone nation with a traditional territory of over 160,000km², 130,000 km² of which are within the boundaries of the Yukon. Within the Yukon, the territory extends from near Fort McPherson (Northwest Territories) in the north to the Pelly River and South MacMillan River in the south, and from the Dempster Highway in the west to the border with Northwest Territories in the east.

Na-Cho Nyäk Dun in Northern Tutchone means “the people that come from these ancestral waters.” [ 13 ] The FNNND is a self-governing Yukon First Nation. It was one of the first four Yukon First Nations to sign a comprehensive land claims agreement, including a Final Agreement and a Self-Government Agreement, in 1993. This modern treaty meant that the Indian Act , R.S.C., 1985, c. I-5 , no longer applied to the FNNND citizens.

The FNNND obtained 4,739 km² of settlement land, similar in character to ownership of land in fee simple, and over which the First Nation can pass their own laws and have full administration and control. Settlement land is a relatively small percentage of the FNNND’s traditional territory. Their traditional territory is also Crown land.

The Final Agreement contains chapters on heritage rights, water management rights, economic development measures, rights to harvest fish and wildlife, and rights to harvest forest resources that can be exercised in its traditional territory. [ 14 ] The Final Agreement (also referred in this decision as the “Treaty”) includes several chapters addressing how the parties manage land in the traditional territory. One of them is

Chapter 11, describing the land use planning process for the use of land, water and other renewable and non-renewable resources in the traditional territory (s. 11.5.1). The objectives of land use planning set out in

Chapter 11 include: a. to minimize actual or potential land use conflicts both within settlement land and non-settlement land and between settlement land and non-settlement land (11.1.1.2); b. to recognize and promote the cultural values of Yukon First Nations (11.1.1.3); c. to utilize the knowledge and experience of Yukon First Nations in order to achieve effective land use planning (11.1.1.4); and, d. to ensure that social, cultural, economic and environmental policies are applied to the management, protection and use of land, water and resources in an integrated and coordinated manner so as to ensure “Sustainable Development” (defined as “beneficial socio- economic change that does not undermine the ecological and social systems upon which communities and societies are dependent” in the

Definitions

section of

Chapter 1 of the Final Agreement). [ 15 ] The land use planning provisions in

Chapter 11 have not yet been implemented for the FNNND. The parties gave different reasons for the delay. Nearly half of the FNNND traditional territory remains outside of any land use planning process. [ 16 ] Staking of quartz mining claims in the FNNND traditional territory by industry continues. 73,807 claims are in good standing in the FNNND traditional territory, amounting to 43% of all quartz mining claims in the Yukon. The Intergovernmental Agreement

[ 17 ] ATAC had a Class 3 mining land use approval of an operating plan to engage in an advanced mining exploration in the Tsé Tagé watershed. Classes of exploration programs reflect certain activities that meet defined criteria set out in the Quartz Mining Land Use Regulation , OIC 2003/064. They range from the least intrusive activities in Class 1 to the most intrusive activities in Class 4.

The activities include building of structures, length of time and numbers of people in camp, trenching, amount of fuel storage, removal of vegetative mat, establishment of trails, construction of corridors, use of off-road vehicles. [ 18 ] In 2016, ATAC proposed the building of a 65 km all season road to facilitate access to the Tiger gold deposit. The ATAC road proposal was submitted for assessment under the environmental assessment legislation ( Yukon Environmental and Socio-economic Assessment Act, S.C. 2003, c. 7 , “ YESAA ”) as an amendment to the approved Class 3 operating plan.

The designated office of the YESAB in Mayo, Yukon recommended the road construction proceed, recognizing there were significant adverse effects that could be mitigated. [ 19 ] As an accommodation measure, after community consultations with the FNNND, the Yukon government agreed to enter into an Intergovernmental Agreement with the FNNND to develop a small-scale land use plan for the Tsé Tagé watershed. Since the 1990s, the FNNND had been requesting land use planning in their entire traditional territory using the process set out in

Chapter 11 of the Treaty. For various reasons, this did not occur. In 2017, as an alternative to land use planning in the entire traditional territory, the FNNND requested

Chapter 11 land use planning for the Stewart River watershed, of which the Tsé Tagé watershed is a part. Protecting this wilderness area which their ancestors had called “a breadbasket for hard times” is of great importance to the Na-Cho Nyäk Dun. It has been described by a FNNND citizen as an area of “beautiful serene and basically untouched wilderness.” The Yukon government agreed to the planning process for only the Tsé Tagé watershed area in the Intergovernmental Agreement, not the whole Stewart River watershed. This initiative was outside of the process described in

Chapter 11 of the Treaty. [ 20 ] The Intergovernmental Agreement includes the following objectives for the development of the Tsé Tagé watershed land use plan, also referred to as the Beaver River Land Use Plan (“BRLUP”): a. promoting collaboration with respect to the use and management of land, water and resources, including fish and wildlife and their habitat, within the Planning Area (the Tsé Tagé watershed area); b. recommending measures to minimize actual and potential land use conflicts throughout the Planning Area; c. using the traditional knowledge and experience of FNNND citizens, scientific information and local knowledge of other residents in FNNND’s traditional territory; d. taking into account traditional land use by FNNND citizens and their traditional land management practices; e. promoting integrated management of land, water and resources including fish and wildlife and their habitats; and f. promoting development that does not undermine the ecological and social systems upon which FNNND citizens and their culture are dependent. [ 21 ] The Intergovernmental Agreement includes one order prohibiting entry in the area of the proposed road for the purpose of locating, prospecting or mining, until the BRLUP is approved by the parties.

It also contains a prohibition on any regulatory action approving the construction of the proposed road until the completion of the BRLUP. [ 22 ] The Intergovernmental Agreement further provides that the parties will exercise their lawful discretion to grant any interest in, or authorize the use of, land, water or other resources in conformity with the plan.

However, if any part of the assessment board recommends the approval of a project that is inconsistent with the plan, the parties may agree that the project proceed subject to certain terms and conditions. [ 23 ] The parties continue to negotiate the BRLUP pursuant to the Intergovernmental Agreement and it is anticipated that the plan will be complete sometime during 2023. [ 24 ] In the meantime, on November 27, 2020, the Yukon government issued its decision rejecting the ATAC proposed road project.

Its reasons included the ATAC road’s adverse impact on the ability of the FNNND citizens to exercise their rights under s. 35 of the Constitution Act, 1982 to hunt, fish and trap in that area. The mitigation plans proposed by ATAC were not sufficient to mitigate the significant adverse environmental and socio-economic effects created by the construction of the ATAC road and the significant adverse impacts identified by the FNNND on their Aboriginal and Treaty rights. Metallic Minerals Project [ 25 ] Metallic Minerals is a publicly traded mining exploration company incorporated under the laws of British Columbia.

It is focused on the acquisition and development of high-grade silver and gold in the Yukon. On February 11, 2020, it applied for a Class 3/4 Quartz Mining Land-Use Approval for its LOTR Project (the “Project”) under YESAA . [ 26 ] The Project consists of 52 quartz mining claims over 1,086.8 hectares. It is located entirely within Na-Cho Nyäk Dun traditional territory and more specifically, entirely within the Tsé Tagé watershed area that is the subject of land use planning under the Intergovernmental Agreement.

The application seeks approval for activities including prospecting, geological mapping and rock sampling, soil sampling, ground and airborne geophysics, drone aerial photography, heli-portable excavation, trenching, drilling, bedrock interface sampling and bedrock sampling. In order to carry out these activities, Metallic Minerals wants to construct: a. new temporary and permanent trails up to 5 km and 3 km long, and 5 m wide; b. new roads up to 2 km long and 5 m wide;

c. new cut lines up to 5 km long and 1.5 m wide; d. new corridors up to 2.5 km long and 1.5 m wide; e. up to 50 new clearings up to 500 m²; f. a new 600 m² camp to house 20 seasonal workers; g. a new 60 m² helipad; h. up to 100 trenches 15 m long, 2.5 m wide and 2 m deep; and i. up to 150 drill holes to a depth of 100 m. Helicopter use is proposed for up to three hours each day. [ 27 ] This Class 3/4 project application and the Class 4 ATAC amendment application are the only two projects submitted for assessment within the last three years above Class 1 in the Tsé Tagé watershed area.

YESAB assessment process [ 28 ] YESAA , the socio-economic and environmental assessment legislation applicable to development projects proposed in the Yukon, was created as a result of

Chapter 12 in the Final Agreements.

The objectives of YESAA include to protect and promote the well- being of Yukon First Nations and their societies and Yukon residents generally, as well as the interests of other Canadians; to recognize and, to the extent practicable, enhance the traditional economy of Yukon First Nations and their special relationship with the wilderness environment; and to guarantee opportunities for the participation of Yukon First Nations — and to make use of their knowledge and experience — in the assessment process. [ 29 ] Evaluations of a project are conducted most often by a designated office but in certain circumstances may be done by the executive committee or a panel of the YESAB, the arms-length body responsible for carrying out the assessment under the YESAA and its regulations.

In this case the Project evaluation was conducted by the designated office in Mayo. [ 30 ] The YESAA assessment is designed as a planning tool.

Once the designated office has concluded its evaluation of a project, it recommends one of the following: • the project proceed if it determines no significant adverse environmental or socio-economic effects; • the project proceed subject to terms and conditions if the project will or is likely to have significant adverse environmental or socio-economic effects that can be mitigated by terms and conditions; • the project not be allowed to proceed if it determines the project will or is likely to have significant adverse environmental or socio-economic effects that cannot be mitigated; • the project be referred to the executive committee if it cannot determine whether the project will or is likely to have significant adverse environmental or socio-economic effects (s. 56(1)). [ 31 ] The YESAB provides their recommendation to a decision body under YESAA .

A decision body is an entity that must issue a regulatory authorization in order for a project to proceed. A decision body may be a territorial minister or agency, a First Nation, or a federal minister or agency. A decision body must issue a decision document that accepts, rejects or varies the recommendation.

The decision document is a form document designed to meet YESAA requirements that outlines the decision and the reasons for rejecting or varying any recommendation. [ 32 ] A decision body considering a recommendation in respect of a project is required to give full and fair consideration to scientific information, traditional knowledge and other information that is provided with the recommendation ( s. 74(1) of YESAA ).

There is a statutory obligation on a decision body to consult with a First Nation without a Final Agreement about significant socio-economic and environmental adverse effects of a proposed project in the First Nation’s traditional territory ( s. 74(2) of YESAA ). [ 33 ] The practice of the Yukon government when they are a decision body is to provide a separate letter to the First Nation in circumstances where they are consulted before the decision document is issued, in order to meet their legal consultation obligations.

The Yukon government argues the decision document and the letter to FNNND, both dated February 19, 2021 constitute the decision to be reviewed in this case. Consultation process for the Project [ 34 ] The Yukon government is a decision body in the context of this Project.

The consultation occurred on the basis of the constitutional obligation on the government to consult, as in this circumstance there are no applicable statutory consultation provisions under YESAA , other than the full and fair consideration requirement in s. 74(1) . [ 35 ] On March 24, 2020, the Yukon government initiated the consultation process for the assessment of the Project with the FNNND by letter to Chief Simon Mervyn from the Mining Lands Officer.

In the letter, they asked about potential adverse effects of the application on the FNNND established treaty rights and encouraged the FNNND to participate in the YESAA process.

[ 36 ] On May 29, 2020, the FNNND Lands and Resources Department provided the Mining Lands Officer with a copy of FNNND’s submissions to the designated office of YESAB. In those submissions, the FNNND expressed concerns about the environmental impacts of the Project. They stated the Yukon government’s failure to that date to enter a land use planning process as promised by

Chapter 11 of the Treaty was a breach of a key commitment in the Treaty and was inconsistent with the honour of the Crown. The FNNND wrote further that development could not continue unimpeded while the land use planning process under the Intergovernmental Agreement was ongoing. They wrote: “… Authorization of this development in the absence of a land use plan would only further undermine and infringe the

section 35 protected treaty rights of FNNND.” [ 37 ] On July 24, 2020, YESAB issued its evaluation report and recommendation, after receiving submissions from other entities affected by the Project, including a local outfitter with an overlapping concession, and Yukon Tourism. YESAB’s evaluation report acknowledged that the Project is within the Tsé Tagé land use planning area. It noted that assessment is not a substitute for land use planning.

The report concluded the proposed activities were “likely to have significant adverse effects on wildlife and wildlife habitat, environmental resources, and heritage resources”.

It recommended the Project be allowed to proceed, with seven terms and conditions considered sufficient to mitigate the adverse effects. [ 38 ] By letter dated July 27, 2020, the Mining Lands Officer requested further comments from the FNNND before they issued their decision document. [ 39 ] On August 18, 2020, the FNNND responded by letter to the Yukon government repeating their position that the Project could not be approved in the absence of a land use plan for the area. They said any approval that the project proceed would be against the wishes of the FNNND.

They also described the proposed Project activities as undermining First Nation rights, Final Agreement obligations and the deliberations of the Beaver River Land Use Planning Committee.

The FNNND in that letter identified proposed mitigations if the Project did proceed, relating to wildlife, particularly thin-horn sheep, wetlands, lakes, and other habitats. [ 40 ] On August 19, 2020, the Yukon government Mining Lands Officer responded to the FNNND by letter clarifying certain specific points raised by the FNNND and advising they would add more terms and conditions to those set out in the YESAB recommendation, to address wildlife and habitat concerns based on the FNNND’s proposed mitigations in their August 18, 2020 letter.

The Yukon government in the August 19, 2020 letter set out its disagreement with the FNNND’s position that no development could occur in this area before land use planning was complete, stating “the Final Agreements do not contemplate the cessation of all development activities until land use plans are complete” and the Final Agreements provide a process for addressing concerns in the interim through the YESAA process.

The letter also stated that a moratorium on all mineral permitting in the Northern Tutchone Land Use Planning Region and/or Dawson City Land Use Planning Region (Planning Regions created by the Yukon Land Use Planning Council under

Chapter 11 in which FNNND has traditional territory) was not appropriate at this stage of the land use planning process as “YG has a responsibility to attempt to balance the interests of all Yukoners including both development and conservation interests.” The Yukon government requested any additional information from the FNNND by August 26, 2020. [ 41 ] On September 3, 2020, the Yukon government sent a letter to Chief Mervyn of FNNND, and another letter to the Environmental Assessment Officer at FNNND.

Both letters enclosed a draft of the decision document that incorporated the changes to the terms and conditions explained in the letter of August 19, 2020, saying they were preparing to finalize the decision document. In the letter to Chief Mervyn, the Yukon government requested comments from the FNNND by September 10, 2020. In the letter to the Environmental Assessment Officer the Yukon government requested comments from FNNND before August 26, 2020.

They repeated the same comments that were in the August 19, 2020 letter about no cessation of development activity pending a land use plan, and no moratorium on mineral activity because of the need to balance interests of all Yukoners. [ 42 ] On September 4, 2020, the FNNND requested a teleconference with the Yukon government to discuss the Project. On September 24, 2020, the teleconference occurred, shortly after the FNNND community consultations about the ATAC road project proposal were concluded.

The FNNND representatives requested similar direct consultations with the community be conducted for the Project, given the close proximity of the two projects in an undeveloped part of the Na-Cho Nyäk Dun traditional territory, that held great significance for the Na-Cho Nyäk Dun. They also repeated their position that the Treaty would be breached and honour of the Crown not upheld if the Yukon government were to approve the Project before the completion of land use planning. They advised that if this occurred, legal action may result.

The Yukon government requested the FNNND put these concerns in writing for further consideration. [ 43 ] The following day, September 25, 2020, the Yukon government asked the FNNND by email if it wanted to review the draft decision document, which was still being worked on. The FNNND stated by return email that it expected to review and comment on any revised versions of the decision document.

It repeated its position stated during the conference call that if the Project were approved, it would be over their objections and in breach of the Crown’s constitutional duties to FNNND, including the duty to consult, specifically with the community members. [ 44 ] On September 29, 2020, the FNNND provided the Yukon government with the letter they had requested during the teleconference. Among other things, it stated:

a) direct consultation with the citizens in the community was necessary to fulfill the duty to consult and accommodate; and

b) the Yukon government approval of the Project before land use planning was complete would be a breach of the Treaty and honour of the Crown. [ 45 ] The FNNND suggested in their September 29, 2020 letter the following potential compromise:

a) no decision on the final regulatory approval of the Project by the Yukon government until the BRLUP was completed; and

b) any decision on the final regulatory approval of the Project shall be consistent with the final BRLUP and subject to all restrictions, terms, conditions and other requirements for development imposed by the BRLUP. [ 46 ] By letter dated October 9, 2020, the Yukon government responded to the FNNND, repeating the same two points about no cessation of development pending a land use plan and the need to balance interests of all Yukoners, including development and conservation interests.

The letter also stated that the Yukon government was preparing to issue the decision document, a final draft of which was attached, and was concluding consultation. The decision document included additional terms and conditions as well as clarifications as a result of the September 25 meeting. These terms and conditions related to timing of work to avoid lambing season,

restriction of location and timing of drone activity to avoid lambing habitat, mineral licks and raptors nests, reporting of caribou sightings and following best management practices for flying in caribou country.

The decision document approved the Project to proceed to the next stage. [ 47 ] On October 16, 2020, Chief Mervyn wrote to then Minister of Energy, Mines and Resources, Ranj Pillai, to express disappointment about the conclusion of consultation on the Project, reiterating that the Yukon government was required to engage in deep consultation, including directly and in-person with Na-Cho Nyäk Dun citizens.

He repeated that the honour of the Crown and the Treaty would be breached if Project approval was granted before the completion of land use planning and indicated legal action may be forthcoming as a result. [ 48 ] On November 17, 2020, Minister Pillai responded by letter, assuring Chief Mervyn that consultation was not concluded, and no decision document or authorization had been issued.

In that letter, Minister Pillai also wrote “[t]he Government of Yukon understands the importance of the Tsé Tagé watershed to the First Nation of Na-Cho Nyäk Dun and we look forward to completion of the Beaver River Land Use Plan.” [ 49 ] On November 26, 2020, the Mining Lands Officer wrote to Chief Mervyn, outlining the changes made to the draft decision document in response to consultation, as set out in the letter sent on October 9, 2020. The November 26, 2020 letter confirmed the Yukon government wanted to re-engage with consultation on the Project with the FNNND.

It repeated the Yukon government’s position that the Final Agreements do not contemplate the cessation of all development activities until the completion of land use plans. The Yukon government rejected the FNNND request for community consultation, explaining that it was “not feasible” to conduct individual project consultation in this manner, and the honour of the Crown and duty to consult were fulfilled by engaging with FNNND government officials. Finally, they enclosed the same draft decision document that was attached to the October 9, 2020 letter.

A deadline of December 4, 2020 was provided to the FNNND for response. [ 50 ] On December 1, 2020, Chief Mervyn wrote again to Minister Pillai, observing that the Yukon government appeared not to be interested in further consultations based on its November 26, 2020 letter.

Chief Mervyn noted that s. 35 rights are collectively held and the duty to consult requires the Crown to consult with the rights-holders, who are the citizens of the community, as a collective. [ 51 ] On December 29, 2020, Minister Pillai responded to Chief Mervyn by letter, acknowledging FNNND’s concerns about consultation on the Project and recognizing their lack of support for the Project. The Minister wrote that the Yukon government had conducted consultation with the FNNND in good faith and in keeping with the honour of the Crown.

He stated: It is clear that the [FNNND] opposes project exploration authorizations in this area until the government-to-government sub-regional land use planning is completed. However, the practice of land use planning does not preclude responsible resource management. Consultation on this exploration renewal application between our governments has focused on finding mitigations on impacts to rights. [Yukon] must balance the interest of all Yukoners, and remains committed to the consultation process to understand and mitigate the impacts of exploration projects to the rights of the [FNNND].

No further consultation about the Project occurred after this letter. [ 52 ] On January 28, 2021, the FNNND wrote to the Yukon government to ask if the decision document would be signed or if the FNNND should be preparing for more consultation. The decision [ 53 ] On February 19, 2021, the Yukon government issued its decision document, varying the recommendation and terms and conditions of the YESAB evaluation report in the manner set out in the draft decision document sent to FNNND on October 9, 2020.

Seven terms and conditions were added to those in the YESAB report and recommendation, and one was removed from the original YESAB terms and conditions, for a total of 13 terms and conditions.

They included ensuring the camps were located more than 3.5 km from mapped mineral licks; fitting water intake pipes with screens to prevent the entrapment of fish; notifying the FNNND Heritage Department upon discovery of a heritage resource; requiring Metallic Minerals to develop and implement an Ungulates Effects Monitoring and Adaptive Management Plan, to follow applicable best management practices set out in “Flying in Caribou Country”, to report all caribou sightings to the FNNND Lands and Resources Department and the Regional Biologist, and not to conduct serial or ground-based work within 500 metres of the lambing areas and habitat; and restrictions on location and timing of drone operations to prevent disturbance of raptor nests and animals who use the mineral licks.

None of these terms and conditions addressed the FNNND’s proposed compromise about ensuring any regulatory approval was delayed until land use planning was completed and consistent with the terms and conditions of a BRLUP. [ 54 ] The decision document stated: After giving full and fair consideration to the Evaluation Report and supporting information, including the scientific information, traditional knowledge and other information provided with the recommendation contained in the Evaluation Report, the Decision Body varies the recommendation and the terms and conditions of the Mayo Designated Office. [ 55 ] Also on February 19, 2021, the Yukon government issued a letter directly to FNNND entitled Re: 2020-0028-Quartz Exploration-LOTR – YG Response to FNNND Letter Sent September 29, 2020.

The Yukon government acknowledged FNNND’s significant concerns about the proposed project activities affecting FNNND Treaty Rights, and that it should not be allowed to proceed until after the BRLUP was completed. They acknowledged the socio-cultural value of the area to FNNND. They repeated the statement about the Final Agreement not contemplating the cessation of development activities pending the completion of a land use plan, and that the process for addressing concerns in the interim was the YESAA process. They also repeated the statement that the Yukon government

has a responsibility to balance the interests of all Yukoners, including development and conservation interests. They highlighted the differences they saw between the ATAC proposed road project, the approval of which was rejected, and this Project. This Project had a comparatively small amount of access and no all season road, and was an exploration program involving drilling, trenching and clearing, all of which must be reclaimed. The Yukon government noted it had worked diligently to address the specific concerns identified by FNNND through the introduction of new terms and conditions.

They advised the Aboriginal Relations branch would be responding to FNNND about their request for community consultation. The letter also outlined the changes and clarifications made to the YESAB recommendation as a result of consultation with FNNND. [ 56 ] The decision document is not a regulatory authorization, licence or permit, but it is a necessary decision in order to allow the regulator(

s) to consider authorizing the activities in the Project. [ 57 ] On February 24, 2021, the Yukon government wrote to Chief Mervyn requesting comments within two weeks about adverse effects of the project on FNNND Treaty rights, given the conclusion of the assessment stage and the commencement of the regulatory process for permitting. [ 58 ] On March 10, 2021, the FNNND responded by letter, stating their objections to the issuance of any regulatory permits.

They summarized the concerns previously expressed: … The Tsé Tagé watershed, where the Project is proposed to occur, is a pristine area of our traditional territory and an area of significant ecological and cultural importance to FNNND….As we have repeatedly explained, authorising the [Project] will have dramatic and irreversible adverse effects on the ability of FNNND citizens to exercise our Aboriginal and treaty rights and on our Traditional Territory itself. Furthermore, approval of the [Project] irrevocably undermines the ability of the Tsé Tagé Land Use Plan to achieve its objectives, as set out in the..

Intergovernmental Agreement. The FNNND also noted the consultation process was undermined and not fulfilled by the Yukon government’s decision not to engage in direct in-person consultation with FNNND citizens to understand the full impact of the project on the Aboriginal and treaty rights of the citizens. [ 59 ] This petition was commenced on March 15, 2021.

ISSUES [ 60 ] What is the role of the court in judicial review and the appropriate standard of review for the questions related to the review of the decision to be answered? [ 61 ] What is the role and effect of the Treaty in this case? [ 62 ] Should certain paragraphs of the affidavits of Albert Peter and Josée Lemieux-Tremblay be struck or given little weight because they contain extrinsic evidence and fail to comply with the Rules of Court of the Supreme Court of Yukon, Rule 49(12) because they contain opinion, argument and information and belief without stating the source? [ 63 ] Was the honour of the Crown and the duties flowing from it engaged by the decision in this case? [ 64 ] Should the decision be set aside because it was unlawful on the basis that: a. it breached the honour of the Crown and the duties flowing from it, specifically:

i) the duty to consult and if necessary accommodate; ii) the duty to diligently implement the promises of the Treaty including the promise of land use planning in

Chapter 11; iii) the duty to act in a way that accomplishes the intended purpose of the Treaty, including the promise to engage in land use planning set out in

Chapter 11; iv) the duty to keep the promise made in the Intergovernmental Agreement to develop a land use plan for the Tsé Tagé watershed. [ 65 ] Should the Court issue declarations of breaches, if found, of the above-noted duties? [ 66 ] Should the decision be set aside because it was unreasonable on the basis that: a. its reasoning was not internally coherent, and it was not transparent, intelligible and justified; b. it cannot be justified in light of the relevant factual and legal constraints, specifically the evidence in the record and the submissions of the parties, and the common law requirements including a breach of the contractual duty of good faith arising from the Intergovernmental Agreement. [ 67 ] In the following, I will first set out the role of the Court in judicial review.

I will then comment on the role and effect of the Treaty in a review of this decision. I will set out my ruling on the motion to strike parts of the Albert Peter and the Josée Lemieux- Tremblay affidavits. Then I will explain how the honour of the Crown is engaged by the decision. I will explain why the duty to act diligently to implement the Treaty, especially

Chapter 11 is not engaged by this decision. I will set out how the Crown’s duty to consult and duty to act in a way that fulfills the purpose of the Treaty were breached by the decision. Next, I will assess whether the decision was reasonable. Finally, I will set out which declarations will be granted.

Issue #1 – The role of the Court in judicial review and standard of review [ 68 ] Judicial review is an exercise of the court’s supervisory function, to ensure that decision-makers act within the scope of their delegated authority. The Supreme Court of Canada summarized the role of the court aptly in Dunsmuir v New Brunswick , 2008 SCC 9 (“ Dunsmuir ”) at para. 28 : By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution.

Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority.

The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [emphasis added] [ 69 ] Although the Supreme Court of Canada revised the framework for determining the standard of review and the conduct of reasonableness review in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 (“ Vavilov ”), that decision did not override the principles underlying judicial review articulated in Dunsmuir – broadly stated, “that judicial review functions to maintain the rule of law while giving effect to legislative intent” ( Vavilov at para. 2 ). [ 70 ] The presumptive standard of review in a judicial review is reasonableness ( Vavilov at paras. 23-32 ).

The Supreme Court of Canada in Vavilov identified certain exceptions to the reasonableness standard: three types of legal questions to which the standard of correctness applies. The relevant one in this case is constitutional questions, including the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982 ( Vavilov at para. 53 ). [ 71 ] Courts since Vavilov have held the correctness standard exception for constitutional questions also applies to matters of Crown- Indigenous treaty

interpretation (Makivik Corporation, The Grand Council of the Crees and Nunavik Marine Region Wildlife Board v The Attorney General of Canada and Nunavut Tunngavik Incorporated , 2021 FCA 184 , (“ Makivik ” ) at para. 77 ), as well as to whether the Aboriginal duty to consult exists in any particular case (Ermineskin Cree Nation v The Minister of Environment and Climate Change, The Attorney General of Canada and Coalspur Mines (Operations) Ltd., 2021 FC 758 , (“ Ermineskin Cree ” ) at para. 83 ). Treaties are protected by s. 35 of the Constitution Act, 1982 and the duty to consult arises from the honour of the Crown, a constitutional principle that informs the purposive

interpretation of s. 35. The existence, extent and content of the duty to consult have been legal questions reviewable on the standard of correctness since the 2004 decision of Haida Nation v British Columbia (Minister of Forests) , 2004 SCC 73 , (“ Haida ”) and Vavilov did not change this. [ 72 ] The following questions in this case are reviewable on the standard of correctness: a. whether the honour of the Crown and duties flowing from it were engaged by the decision under review in this case; b. the existence, extent and content of the Yukon government’s duty to consult about the decision; and c. the Yukon government’s

interpretation of the FNNND’s constitutionally protected treaty rights, assuming those are engaged. [ 73 ] Whether or not the duty to consult was adequate is reviewable on a standard of reasonableness. [ 74 ] The merits of the decision under review and whether or not there was a contractual duty of good faith created by the Intergovernmental Agreement are reviewable on a standard of reasonableness. [ 75 ] Reasonableness requires that a reviewing court not substitute its decision for that of the administrative decision-maker, but instead ensure the reasoning process and the outcome are transparent, intelligible and justified ( Vavilov at para. 15 ).

However, any duties flowing from the honour of the Crown and any constitutionally protected treaty rights affected by the decision under review will inform the reasonableness review ( Redmond v British Columbia (Forests, Lands, Natural Resource Operations and Rural Development) , 2020 BCSC 561 (“ Redmond ”) at para. 26 ; Coldwater Indian Band et al v Attorney General of Canada et al. , 2020 FCA 34 , (“ Coldwate r”) at para. 27 .

As noted by the Supreme Court of Canada in First Nation of Na-Cho Nyak Dun v Yukon , 2017 SCC 58 (“ FNNND 2017”): [33] … [T]he appropriate judicial role [in the application for judicial review] is informed by the fact that this dispute arises in the context of the implementation of modern treaties … It is not the appropriate judicial role to closely supervise the conduct of the parties at every stage of the treaty relationship … [34] That said, under s. 35 of the Constitution Act, 1982 , modern treaties are constitutional documents, and courts play a critical role in safeguarding the rights they enshrine.

Therefore, judicial forbearance should not come at the expense of adequate scrutiny of Crown conduct to ensure constitutional compliance. Issue #2 – Preliminary comments on the role and effect of the Treaty [ 76 ] A preliminary assessment of the role and effect of the modern Treaty in relation to the decision under review is useful because of the significance of the parties’ disagreement on this issue.

The FNNND argues that the government decision allowing a 10-year mining exploration Project in a pristine area of great value to the First Nation to proceed with conditions to the regulatory authorization stage, before the completion of a targeted land use planning process for that area, undermines and infringes their protected treaty rights. Much of the FNNND’s challenge is based on the way in which the decision demonstrates the Yukon government’s failure to implement the promise of land use planning set out in

Chapter 11 of the Final Agreement. “Yukon’s failure to co-develop a land use plan for the

Traditional Territory, coupled with an onslaught of industrial development, has prevented the promise of

Chapter 11 and the Treaty itself from being fulfilled.” [ 77 ] The Yukon government’s position throughout is that

Chapter 11 of the Final Agreement is not relevant to or engaged by the decision under review. They argue there is no legal requirement for the implementation of the land use planning process set out in

Chapter 11 because it sets out a voluntary and collaborative process the parties may choose to follow for land use planning. Once chosen, it must be followed, but it requires agreement of both the First Nation and government to enter into the process and to agree on the various steps within the process. There is no legal obligation in

Chapter 11 or anywhere in the Final Agreement that economic development projects in the traditional territory cease until land use planning is completed. The Yukon government says that

Chapter 11 does not create treaty rights. [ 78 ] The Yukon government further notes that in this case the ongoing land use planning process is not occurring as a result of the

Chapter 11 process, but outside of it, through the Intergovernmental Agreement. This Agreement did not require a suspension of development activities while the BRLUP was being completed, other than in the area of the proposed ATAC road, for which a limited prohibition order was issued. [ 79 ] As a result, the Yukon government says the decision-maker was not required to take land use planning into account when making its decision.

Chapter 11 of the Final Agreement is outside the scope of this judicial review.

This position of the Yukon government informed their interlocutory application to strike pleadings, their application to strike certain paragraphs of the affidavits of Albert Peter and Josée Lemieux-Tremblay, and their arguments on the merits. [ 80 ] The Supreme Court of Canada has described the modern treaties in the Yukon as models for reconciliation, intended to foster a positive and mutually respectful long-term relationship between the signatories (the First Nation government, the federal government and the Yukon government). “This framework establishes institutions for self-government and the management of lands and resources … [T]he Final Agreements address past grievances, and yet are oriented towards the future.” ( FNNND 2017 at para. 10 ). [ 81 ] The modern Treaties for each Yukon First Nation are based on the Umbrella Final Agreement (“UFA”).

Each Treaty contains all the provisions set out in the UFA, as well as additional provisions negotiated by each individual Yukon First Nation and the federal and territorial governments. [ 82 ] The monumental achievement of finalizing the Yukon Treaties after 30 years of negotiations was in no small part due to the Yukon First Nations surrendering their undefined Aboriginal rights, title and interests in their traditional territory of over 484,000 km² of land in the Yukon, in exchange for defined Treaty rights, including: title to 41,595 km² of settlement land (8.5% of Yukon land); financial compensation; rights to harvest fish, wildlife and forest resources; and rights of representation and involvement in land use planning and resource management in their traditional territories. [ 83 ] The reconciliation objective of a positive and mutually respectful long-term relationship is in part fulfilled by

Chapter 11 of the Final Agreements.

Chapter 11 allows for the development of a common land use planning process for the use of land, water and other renewable and non-renewable resources in the traditional territories. This land use planning process was described by the Supreme Court of Canada as ensuring “the meaningful participation of First Nations in the management of public resources in settlement and non- settlement lands” ( FNNND 2017 at para. 14 ). The Court noted further in FNNND 2017 at para. 46 : The

Chapter 11 process ensures that Yukon First Nations can meaningfully participate in land use planning for both settlement and non- settlement lands. It does so by setting out consultation rights and the authority of First Nations to approve, reject, and modify land use plans (ss. 11.6.1 to 11.6.5.2). In the Final Agreements, most traditional territory was designated as non-settlement land. In exchange for comparatively smaller settlement areas, the First Nations acquired important rights in both settlement and non-settlement lands, particularly in their traditional territories …

Section 9.3.1 recognizes that “[t]he amount of Settlement Land to be allocated …has been determined in the context of the overall package of benefits in the Umbrella Final Agreement”.

Barry Stuart, the Chief Land Claims Negotiator for the Yukon Territorial Government, explains that it was more important to First Nations that they be able to meaningfully participate in land use management in all of their traditional territory than to acquire vast tracts of their traditional territory as settlement lands: … it became abundantly clear that [the First Nations’] interests in resources were best served by creatively exploring opinions for shared responsibility in the management of water, wildlife, forestry, land, and culture.

Effective and constitutionally protected First Nation management rights advanced their interests in resource use more effectively than simply acquiring vast tracts of land [as settlement lands] … The Yukon government’s desire to decentralize decision making and create meaningful opportunities for public participation in managing resources complemented First Nation interests in resource management, and served their interests more effectively than increasing settlement land holdings. [ 84 ] Contrary to the Yukon government’s position at the hearing that

Chapter 11 does not create treaty rights, Chief Justice Bauman in the Court of Appeal of Yukon decision of The First Nation of Nacho Nyak Dun v Yukon , 2015 YKCA 18 at para. 10 described

Chapter 11 as setting out a “treaty right to participat[e] in the management of public resources.” This echoes the description of

Chapter 11 by the Supreme Court of Canada in Beckman v Little Salmon/Carmacks First Nation , 2010 SCC 53 ((“ LSCFN ”) at para. 36) as providing the “rights [of Yukon First Nations] to representation and involvement in land use planning [Chapter 11]”, rights gained in exchange for their surrendering of undefined Aboriginal rights, title and interests in their traditional territory.

[ 85 ] The decision under review directly engages the principles, values and purpose of the Treaty. It does so first because the Treaty, protected by s. 35 of the Constitution Act, 1982 , is the framework for the new relationship among the federal, territorial and Yukon First Nations governments that has reconciliation between First Nation and non-First Nation people as its objective. It cannot be dismissed or ignored. [ 86 ] Further, meaningful participation by Yukon First Nations in the management of public land and resources in their respective traditional territories is one of the purposes of the Treaty.

It is a benefit obtained by Yukon First Nations as a result of the negotiated compromise. [ 87 ] The Yukon government decision approving an exploration development project’s progression to the regulatory stage in the traditional territory of the FNNND demands meaningful participation by the First Nation. This requirement for meaningful First Nation participation in decisions about land and resources in this area is heightened when the governments are negotiating a land use plan for the same area as the proposed development.

Land use planning is one of the important tools to fulfill this purpose of meaningful participation. Even if the governments are negotiating this land use plan outside of the

Chapter 11 process, the purposes and principles emanating from

Chapter 11 and the Treaty as a whole must apply. [ 88 ] The Yukon government’s failure in this case to recognize the role of the Treaty in informing their decision gave rise to the breaches of the honour of the Crown described in more detail below and results in the setting aside of their decision.

Issue #3 – Application to strike affidavits [ 89 ] The Yukon government has applied to strike parts of the affidavits of Albert Peter and Josée Lemieux-Tremblay, both affiants on behalf of FNNND. [ 90 ] Albert Peter is an Elder and citizen of FNNND who has held many leadership roles within FNNND over the last 40 years, including advisor to the Chief, lead negotiator and Chief. Among other things, his affidavit describes the background of the negotiation of the Final and Self-Government Agreements, with an emphasis on land use planning.

He also describes the attempts to develop land use planning for the FNNND traditional territory and the development of the BRLUP. [ 91 ] Josée Lemieux-Tremblay is the manager of the FNNND Lands and Resource Department, a position she has held since 2019. She is responsible for overseeing the preservation, enhancement and administration of lands, fisheries and other land-based resources in the Na-Cho Nyäk Dun traditional territory in accordance with the Final and Self-Government Agreements, and for the development of appropriate land use management strategies for the Na-Cho Nyäk Dun traditional territory.

She was directly involved in the consultations between the FNNND and the Yukon government about the ATAC road proposal and the Metallic Minerals Project. From 2008 to 2019 she was a Mining Reclamation Coordinator for FNNND for the closure of the Keno Hill mine. Josée Lemieux-Tremblay describes in her affidavit the consultation process for the ATAC proposed road project and the Metallic Minerals Project.

More generally, she discusses the role of the FNNND Lands and Resources Department in consultation with the Yukon government and the impact of the absence of a land use plan on the Na-Cho Nyäk Dun traditional territory. [ 92 ] The concerns of the Yukon government about these affidavits fall into two areas. First, they say the historical and other extrinsic evidence that was not before the original decision-maker does not fall within any of the recognized exceptions prohibiting its admissibility.

Second, they say the affidavits includes impermissible opinion evidence and argument and contain statements of belief without identifying the source. Albert Peter affidavit Positions of parties on extrinsic evidence [ 93 ] The Yukon government argues the early sections in the affidavit entitled pre-contact history, early colonial experiences, towards a FNNND treaty, early land claims movement, early negotiations and renewed negotiations, and the promise of the FNNND treaty should be struck in their entirety.

They further seek to strike many of the paragraphs in the following sections – attempts at co- governance, Northern Tutchone Land Use Planning and Tsé Tagé (Beaver River) Land Use Planning, and the Path Forward. [ 94 ] The Yukon government says the early sections are irrelevant and unnecessary to the decision under review. The historical circumstances leading up to and describing the negotiations of the land claim are not the subject of the judicial review and not necessary for the

interpretation of the modern treaty. The Yukon government says this is not a breach of treaty case and this evidence of pre-Treaty and Treaty negotiations is unconnected to the decision under review. [ 95 ] The FNNND says this evidence is admissible under certain exceptions to the prohibition against extrinsic evidence.

Most of the impugned paragraphs are intended to assist the Court in determining its exercise of remedial discretion to grant the declarations that the Yukon government breached its duties flowing from the honour of the Crown to diligently implement the Treaty’s promises and to act in a way that accomplishes the intended purposes of the Treaty. [ 96 ] The FNNND says the affidavit evidence is about the promises made by the Crown in the Treaty, the purpose of the promises, and the history and context related to the alleged breaches of the duties.

The evidence is admissible on an analogous basis to the admissibility of evidence related to an allegation of a breach of the duty to consult, as a recognized exception to the prohibition on extrinsic evidence. It is necessary for an understanding of the context around the Crown’s actions and the nature of the Aboriginal rights and interests at stake. Further, the FNNND disagrees with the Yukon government’s position that

Chapter 11 of the Treaty and the consideration of land use planning are not relevant to the decision under review and the declarations sought. In order to understand how

Chapter 11 of the Treaty informs the issues in this judicial review, the FNNND says a review of its history and development is helpful and necessary. Analysis of extrinsic evidence

[ 97 ] A principled approach is the preferred way to assess the appropriateness of affidavit evidence in a judicial review. As a general rule, the evidentiary record before a court on judicial review is restricted to the evidentiary record that was before the decision-maker.

This is because “[t]he essential purpose of judicial review is the review of decisions, not the determination, by trial de novo , of questions that were not adequately canvassed in evidence at the tribunal” ( Association of Universities and Colleges of Canada and The University of Manitoba v The Canadian Copyright Licensing Agency, Operating as “Access Copyright” , 2012 FCA 22 at para. 19 ). However, courts have consistently set out exceptions to this general rule, grounded in the rationale for the general rule and administrative law values.

Understanding the context of each case is necessary in determining admissibility of extrinsic evidence.

The categories of exceptions are not closed. [ 98 ] Recognized categories of exceptions include: • The provision of general background information, where it consists of orienting statements to assist the court in understanding the history and nature of the case before the administrative decision-maker ( Yukon Big Game Outfitters Ltd. v Yukon (Government of) , 2021 YKSC 51 (“ Yukon Big Game ”) at para. 15 and ‘ N a m g is First Nation v Minister of Fisheries, Oceans and The Canadian Coast Guard and Mowi Canada West Ltd. (formerly Marine Harvest Inc.) , 2019 FCA 149 (“ N a m g is ”) at para. 10 ); • The provision of evidence that cannot be found in the record and is necessary for the court to carry out its role of review ( N a m g is at para. 10, Yukon Big Game at para. 15); • The provision of evidence relevant to procedural fairness ( Yukon Big Game at para. 15 ; N a m g is at para. 10); • The provision of evidence related to a claim that the Crown breached its duty to consult ( Chief Rene Chaboyer et al v Government of Saskatchewan, the Water Security Agency and Saskatchewan Power Corporation , 2021 SKQB 200 at para. 36 ; and Swan River First Nation v Alberta (Agriculture and Forestry) , 2022 ABQB 194 at para. 20 ); • The provision of evidence related to the reviewing court’s remedial discretion, where evidence is not being used to supplement the record of the decision-maker; rather, it is assisting the reviewing court in formulating an appropriate remedy ( N a m g is at para. 10). [ 99 ] The Yukon government’s argument here suffers from the same flaw that permeates their view of and approach to this case.

The Yukon government’s separation of the decision under review from the Treaty has led to their submission that most of Albert Peter’s affidavit is irrelevant and unnecessary.

However, as described above, the purpose of the Treaty and how that purpose may be achieved is critical context in this case. [ 100 ] As noted above, a central issue raised by the decision under review is whether or not the Yukon government’s approval of the Project to proceed to the next stage in an area where land use planning is simultaneously occurring was lawful and appropriate. [ 101 ] Albert Peter describes the traditional way of life of Na-Cho Nyäk Dun; how that was impacted by colonialism; the subsequent genesis of the land claims movement; the stages of negotiation of the Treaty; and the intentions behind the land use planning provisions and the expectations of FNNND from the Treaty.

He describes the objectives of the Treaty from the FNNND perspective to include protecting the land, water, and wildlife so that they are able to carry on their traditional ways of life. [ 102 ] Albert Peter’s affidavit sets out the factual matrix surrounding the reason for the Treaty and the reasons why land use planning was included in its provisions and is important. It is a complex history over many years. Albert Peter’s evidence focusses on showing the Treaty’s goal of achieving reconciliation between the assertion of Crown sovereignty and the First Nations’ pre-existing sovereignty over the same land.

His evidence is concrete support for the observations and conclusions made by Barry Stuart and quoted in LSCFN about the importance of FNNND participation in the management of land and resources in their traditional territory as above (see para. 83 above). [ 103 ] The extrinsic evidence related to the background, purpose and promises of the Treaty is admissible under three of the recognized exceptions. First, it is necessary material for the Court to conduct the review properly.

It is absent from the record of the judicial review because of the Yukon government’s position that the decision under review is divorced from the Treaty context. Second, it is background information to assist the Court in understanding the nature of the effects of the Project before the decision-maker; a Project which despite its relatively small scope, has broad implications because of its intersection with an ongoing land use planning process which has its roots in the Treaty.

Third, the remedy sought in this case is to set aside the decision because of its breach of constitutional duties to consult and act in a way that accomplishes the purposes of the Treaty. The FNNND also seeks declarations that these duties (and others) have been breached. The evidence in Albert Peter’s affidavit assists the Court in determining whether or not these remedies should be granted. Position of the parties on opinion and argument [ 104 ] The second area of concern to the Yukon government is that the affidavit contains evidence that would not be admissible at trial.

Further it does not comply with Rule 49(12) of the Rules of Court of the Supreme Court of Yukon, because it contains opinion, argument and information without stating its source. They say that Albert Peter has not been qualified as an expert and as a result his opinions are not admissible. Examples of these statements are: 51. NND wanted full control of our Traditional Territory through recognition of our self-government rights. I was part of NND’s delegation presenting to the Penner Task Force in Whitehorse in 1983. NND was then called the Mayo Indian Band.

Our submission to the Penner Task Force stated: The final solution for effectively restoring family and community health and social well being of the Mayo Indian Band community, is dependent on parliamentary recognition of the right for self determination through Indian self government at the community level.

[emphasis in original] 109. We expected that the land use plan would be used by the development assessment process to make recommendations to governments – both public government and the First Nation government – and that the land use plan would determine whether and where development could take place. 131. These requests have fallen on deaf ears. [ 105 ] The Yukon government concedes that opinion evidence from lay witnesses is now considered acceptable.

The British Columbia Court of Appeal in Ganges Kangro Properties Ltd. v Shephard , 2015 BCCA 522 referred to the criteria for receiving lay witness opinion set out in the Law of Evidence in Canada : [73] … Courts now have greater freedom to receive lay witnesses’ opinions if: (1) the witness has personal knowledge of observed facts; (2) the witness is in a better position than the trier of fact to draw the inference; (3) the witness has the necessary experiential capacity to draw the inference, that is, form the opinion; and (4) the opinion is a compendious mode of speaking and the witness could not as accurately, adequately and with reasonable facility describe the facts she or he is testifying about. [74] … Couched in these terms, the modern opinion rule for lay witnesses should pose few exclusionary difficulties when based on the witness’ perceptions.

The real issue will be the assessment and weight to be given to such evidence after it is admitted. However, they say that Albert Peter’s evidence does not satisfy these criteria because he includes in his affidavit a number of events that occurred well before he was born and other matters that are hearsay. He should have been qualified as an expert and because he was not, the Court should exercise its discretion to exclude the evidence.

They also object to many of the paragraphs they say are opinion or statement of belief because the source of the belief is not identified. [ 106 ] The FNNND says the evidence here satisfies the criteria for admitting lay witness opinion. They also note that the evidence objected to is from Albert Peter’s own experience, or his own knowledge obtained from other Elders, or inferences from that experience and knowledge. [ 107 ] The Yukon government also objects to certain paragraphs because they are argumentative. Examples are: 63. In 1984, Canada put forward an AIP for CYI and First Nations to consider.

Under the 1984 AIP, the initial amount of settlement lands proposed by Canada for First Nations in Yukon was one square mile for a family of four. That would have left NND with roughly 400 square miles. You could literally cover that land with a thumbtack on the map. That was unacceptable. 140. The Northern Tutchone region also partially overlapped with Ross River’s Traditional Territory, and the Ross River community said they would not acknowledge the UFA [Umbrella Final Agreement].

So, how could we resolve overlaps there? [ 108 ] The FNNND responds that affidavit evidence is inadmissible on the basis of argument if it is legal argument, not “statements of fact presented from the affiant’s point of view.” Albert Peter is not making legal argument but is stating facts based on his experience from his perspective. They further observe that the Yukon government appears to object to the tone of the evidence, rather than its substance. Analysis of opinion and argument [ 109 ] I agree with the response of FNNND to the Yukon government’s objections.

Most of the paragraphs characterized as opinion evidence by the Yukon government are facts within the personal knowledge of Albert Peters, an Elder who has occupied many roles within the FNNND, particularly related to negotiation and implementation of the Treaty and engagement with public government. With this depth and breadth of experience, he can draw inferences from facts gained from his personal knowledge.

The source of his information and belief in paragraphs objected to by the Yukon government is his own knowledge and experience and inferences drawn from them. [ 110 ] Other paragraphs objected to in the early sections contain information Albert Peters obtained from the many “stories from Elders about what they did, how they lived and where they traveled.” This oral history passed from generation to generation in Indigenous communities is regularly found to be admissible in principle by courts, since the Supreme Court of Canada confirmed this approach in

Delgamuukw v British Columbia, (SCC), [1997] 3 SCR 1010 at para. 87: Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted inorder that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts arefamiliar with, which largely consists of historical documents. This is a long-standing practice in the

interpretation of treaties between theCrown and aboriginal peoples: [citations omitted]. To quote Dickson C.J., given that most aboriginal societies “did not keep writtenrecords”, the failure to do so would “impose an impossible burden of proof” on aboriginal peoples, and “render nugatory” any rights thatthey have (Simon v. The Queen, (SCC), [1985] 2 S.C.R. 387, at p. 408).

This process must be undertaken on a case-by-case basis. … [111] In this case, the information from oral history in the affidavit is, as noted above, background to assist the Court in theunderstanding of the purposes of the Treaty and the significance of the protections sought by the FNNND in their traditional territory.There is no valid legal reason to exclude those paragraphs in the affidavit. [112] Some of the Yukon government’s objections appear to be based on the manner in which Albert Peter speaks, or the tone he uses.While I agree that in some instances the information could have been more “clinically expressed” (Tsleil-Waututh Nation et al v AttorneyGeneral of Canada et al, 2017 FCA 116 at para.42) I do not find the prejudice to the Yukon government sufficient to justify striking theimpugned paragraphs.

I agree, however, that they should be given less weight. [113] The Yukon government has not identified legal arguments made by Albert Peter in his affidavit. They do not object to statementsthat should more properly be in the memorandum of fact and law, called an “outline” in the Yukon (see Coldwater at para. 19). Instead,as stated by the Court in Tsleil-Waututh Nation et al v Attorney General of Canada et al (at para. 44) it appears that the Yukongovernment is more concerned that the statements they refer to as argument are wrong or incomplete.

The remedy to address this concernis through cross-examination, not an application to strike. A further remedy is to request that less weight be given to such evidence. [114] I have reviewed the tables prepared by counsel setting out the basis of the objections to the specific paragraphs of the affidavitand the responses. I agree with the responses of the FNNND to all of the objections made by the Yukon government. No part of theaffidavit of Albert Peter will be struck. [115] To the extent that the tone of certain paragraphs is argumentative or unnecessarily opinionated, I will assign less weight to them.

Josée Lemieux-Tremblay affidavit Positions of parties on extrinsic evidence [116] Similar arguments are made by the Yukon government about Josée Lemieux-Tremblay’s affidavit. The Yukon governmentobjects to the paragraphs about the assessment of the ATAC proposed road project and the community consultation process in that case,on the basis that this was not before the decision maker and is irrelevant to the decision.

They concede the Intergovernmental Agreementis relevant. [117] The FNNND says this is relevant information as part of the factual matrix explaining the negotiation of the IntergovernmentalAgreement as well as the context for explaining their proposed consultation process for the Project. The description of the developmentof the community consultation process and the content of the consultation sessions for the ATAC proposed road project are backgroundto help place in context the request for community consultation sessions for the Project in this case.

The FNNND also notes that theYukon government refers to both subjects in two of their affidavits –Todd Powell #2 and John Bailey #1. Analysis of extrinsic evidence [118] I agree with the response of FNNND to the Yukon government objections. The background to the Intergovernmental Agreementprovided by the description of the ATAC proposed road project is relevant to the allegation by the FNNND in this case of the Yukongovernment’s failure to implement terms of the Intergovernmental Agreement in good faith as part of the challenge to the decision.

Thebackground and description of the community consultations in the ATAC proposed road project are relevant because similar communityconsultations were requested and refused by the decision maker in this decision, leading to a legal challenge of the fulfilment of the dutyto consult. [119] These paragraphs are not truly extrinsic evidence because the ATAC proposed road project is referred to in the record of thedecision maker as a comparison, and in the affidavits of the Yukon government affiants.

To the extent that specifics in the JoséeLemieux-Tremblay affidavit were not before the decision-maker, they fall under the exception of background information to assist inunderstanding the context of the decision and the Intergovernmental Agreement, and information that helps to explain the concernsraised about the duty to consult. Position of the parties on opinion and argument [120] The Yukon government objects to a number of paragraphs of this affidavit on the basis of opinion and argument. Examples are: • “it is necessary for Yukon to hear directly from NND citizens, whose

Section 35 Rights will be affected by the project”(para. 21) • “While the proposed work set out in the Metallic Application is not as extensive as what was proposed for the constructionof the ATAC Road, its impact on the NND Traditional Territory and the

Section 35 Rights of NND citizens will still be very significant”

(para. 56) • “… the impacts of the work on the Metallic Project proposed in the Metallic Application are not fully known because Yukon refused to engage in consultations with NND’s citizens, where they would have been able to directly express how the Metallic Project would affect them and the exercise of their

Section 35 Rights.” (para. 59). [ 121 ] FNNND says these statements and other similar ones the Yukon government objects to are statements of fact based on Josée Lemieux-Tremblay’s experience. To the extent there is lay opinion, it is based on her knowledge and experience, and inferences arising from them. There is no legal argument included in the affidavit and, again, the Yukon government’s objection appears to be to the tone, not the substance. Analysis of opinion and argument [ 122 ] I agree with the FNNND’s position set out in the table prepared by counsel.

The opinion expressed by the affiant arises from her position, knowledge and experience. There is no legal argument made; the paragraphs set out facts or permissible lay opinion evidence based on valid inferences that can be made by Josée Lemieux-Tremblay’s experience. [ 123 ] All of the affidavit of Josée Lemieux-Tremblay will remain in evidence. [ 124 ] Where there are some statements or phrases that are more argumentative or unnecessarily opinionated in tone, I will accord them less weight.

Issue #4 – Is the honour of the Crown engaged? [ 125 ] The honour of the Crown arises from s. 35(1) of the Constitution Act, 1982 , and has been called a “constitutional principle”. ( LSCFN at para. 42; Manitoba Metis Federation Inc v Canada (Attorney General) , 2013 SCC 14 (“ Manitoba Metis ”) at para. 69 ). The Supreme Court of Canada has described honour of the Crown in many decisions over the past twenty years. [ 126 ] The honour of the Crown is a foundational principle of Aboriginal law and governs the relationship between the Crown and Aboriginal peoples.

It arises from the Crown’s assertion of sovereignty over Aboriginal peoples and de facto control of land and resources that were formerly in the control of Aboriginal peoples and extends from the Royal Proclamation of 1763 ( Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 ( “ Mikisew Cree ” ) at para. 21 ; Haida at para. 32 ; Manitoba Metis at para. 66 ).

It recognizes that the tension between the Crown’s assertion of sovereignty and the pre-existing sovereignty, rights and occupation of Aboriginal peoples creates a special relationship that requires that the Crown act honourably in its dealings with Aboriginal peoples ( Mikisew Cree at para. 21). [ 127 ] The underlying purpose of the honour of the Crown is to facilitate the reconciliation of Aboriginal peoples’ pre-existing sovereignty and the Crown’s assertion of sovereignty (Mikisew Cree at para. 22; Manitoba Metis at paras. 66-67 ). [ 128 ] The honour of the Crown is “always at stake in [the Crown’s] dealings with Aboriginal peoples” ( Haida at para. 16 ).

It applies when the Crown acts through legislation or executive conduct ( Mikisew Cree at para. 23). [ 129 ] “It is not a mere incantation, but rather a core precept that finds its application in concrete practices … In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably” ( Haida at paras. 16-17 ). [ 130 ] The honour of the Crown “refers to the principle that servants of the Crown must conduct themselves with honour when acting on behalf of the sovereign” ( Manitoba Metis at para. 65 ). [ 131 ] The honour of the Crown gives rise to different duties in different circumstances ( Haida at para. 18 ).

Not all interactions between the Crown and Aboriginal people engage the honour of the Crown. It has been found to be engaged in situations involving reconciliation of Aboriginal rights with Crown sovereignty. When it is engaged, it imposes a heavy obligation on the Crown ( Manitoba Metis at para. 68 ). [ 132 ] It is not a cause of action itself but it gives rise to justiciable duties.

It speaks to how obligations that attract it must be fulfilled ( Manitoba Metis at para. 73 ). [ 133 ] Three circumstances in which the Supreme Court of Canada has identified the honour of the Crown applies are relevant to this case: a. the honour of the Crown informs the purposive

interpretation of s. 35 of the Constitution Act, 1982 and gives rise to a duty to consult; b. the honour of the Crown governs treaty-making and implementation, leading to requirements of honourable negotiation and the avoidance of the appearance of sharp dealing; and c. the honour of the Crown requires the Crown to act in a way that accomplishes the intended purposes of treaty and statutory grants to Aboriginal peoples ( Manitoba Metis at para. 73 ).

[ 134 ] When the issue is the implementation of a constitutional obligation to Aboriginal people, the honour of the Crown requires that the Crown: 1) takes a broad purposive approach to the

interpretation

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