SCC: Judicial Intervention In Modern Treaty Processes Should Promote Negotiation And Reconciliation

In First Nation of Nacho Nyak Dun et al. v. Government of Yukon,¹ the Supreme Court of Canada (SCC) emphasized that "[r]econciliation often demands judicial forbearance," and in that respect, "[c]ourts should generally leave space for the parties to govern together and work out their differences." In this case, the SCC considered Yukon's decision to approve its land use plan for the Peel Watershed (a largely undeveloped wilderness area in Northern Yukon), which was developed through a modern treaty process, as well as the role of courts in resolving disputes that arise in the context of modern treaty implementation.

What You Need To Know

• The SCC noted that "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."