You may have noted with surprise that Baffinland was able to reverse the decision of the Nunavut Planning Commission by applying for and receiving a federal ministerial exemption. Does this mean that the federal government can simply override the decisions of modern treaty organizations? Let’s return to the Nunavut Agreement for our answer:

Article 11.5.11 of the Nunavut Agreement states: “Where the NPC has determined that a project proposal is not in conformity with the plan, the proponent may apply to the appropriate Minister for an exemption. The Minister may exempt the project proposal from conformity with the plan…”

The answer is clear: In the Nunavut Agreement the federal government holds ultimate decision-making power over the environmental assessment process. The same powers are in place in most modern treaties.

Remember the Yukon Peel River Supreme Court of Canada victory? Many who celebrated that victory are unaware of the details of the ruling. If the Government of Yukon now properly follows the land use planning process to its conclusion as required by the Umbrella Final Agreement, they can still essentially ignore the Final Recommended Plan of the Peel Planning Commission and open the Peel to greater industrial development.

It should be noted that the vast majority of decisions made by modern treaty organizations are not reversed or otherwise challenged by other levels of government. There are political and sometimes legal costs to wielding this ultimate power, so it is used sparingly.

In our Yukon example public opinion was and is on the side of the modern treaty holders. Following an election in 2016 the new territorial government committed to complete the Peel planning process, but this alone will not protect the Peel. Over the long term, a combination of modern treaty provisions and public and political pressure will determine how much of the Peel watershed is open to industrial development.