Even with a new government, the Peel saga is not over

Now that the 14-year Yukon Party dynasty is a thing of the past, it’s worth turning to the question of how the closing round of the Peel Watershed court battle will proceed.

Now that the 14-year Yukon Party dynasty is a thing of the past, it’s worth turning to the question of how the closing round of the Peel Watershed court battle will proceed.

Last week we learned the new government had been granted an extension of a deadline to file its written legal argument with the Supreme Court of Canada to Jan. 20, 2017. Previously it only had until Dec. 14 of this year to submit arguments — a pretty tight timeline for a government that was elected just over a month ago and didn’t have a cabinet until this past weekend. The case is scheduled to be heard at the court in Ottawa next year on March 22.

Unlike its predecessor, the new government has already said that it is willing to accept a plan that places a greater emphasis on protection. During the campaign the party was unequivocal on the subject saying that “[a] Liberal Government will accept the final report of the original Peel Land Use Planning Commission.”

So some might be wondering: what is the point of even making an argument in the first place? Why is there any need for an extension? Why doesn’t the government just drop the case completely?

After all, the First Nations and environmental groups who brought the case look like they will get politically what eluded them legally under the previous Yukon Party government. If the government agrees to implement the planning commission’s plan for the region it isn’t the issue effectively moot?

Well, it’s not quite that simple.

The groups that brought the appeal want the Supreme Court of Canada to weigh in and have said they intend to proceed regardless. They have come this far. Their arguments are filed with the court and they are as close to being ready as they can get.

Readers will recall that the Yukon Supreme Court decided that the government’s failure to adhere to the land use planning process — a process other parties had engaged with in good faith — meant that the government should be effectively bound to implement the planning commission’s recommendations. While agreeing that the government had failed to follow the proper process by setting out its proposed changes earlier in the process, the Court of Appeal disagreed with the Yukon Supreme Court that the government ought to have its hands tied to a plan it doesn’t agree with and sent the process back to an earlier stage of the process.

The problem is that dropping the appeal now means leaving unchallenged a Court of Appeal decision that gives the government a mulligan — a decision the appellants have called “deeply flawed.” It is a legally binding precedent that those groups don’t want to see stand. After all, there will be more land use planning in the future and may not be the last time a government mucks it up. We are only four or five years away from the next election and that’s not much time at all when it comes to the glacial pace of government in the Yukon.

So the ball is in the new government’s court.

The Liberals have said that they will implement the planning commission’s plan and that the previous government’s litigious and adversarial approach to these issues has been unhelpful. But they haven’t actually told us how they feel about the Court of Appeal’s decision in terms of how a botched planning process ought to be handled.

It’s not inconsistent for the government to want to see the commission’s Peel plan implemented, while agreeing with the Court of Appeal that errors in the process ought not lead to the imposition of a plan against the wishes of an elected territorial government. Environmental protection and the role of democratic institutions are, at least in a legal sense, separate issues.

Whether Yukoners would accept such esoteric arguments for continuing the appeal, however, is doubtful. There is a danger that if the government tries to nuance its way through by continuing its defence of the Court of Appeal’s decision while promising to protect the region, it will be seen as a broken promise. So Sandy Silver’s new government will have to be careful if it chooses that route.

In any event, a successful appeal at the high court and a reinstatement of the original decision simply means that the government will have to be careful how it handles the process in the future. That’s hardly the most dangerous precedent imaginable for the territorial government. There is a question of principle that could theoretically justify arguing that the Court of Appeal got it right, but when weighed against the practical (and political) implications it seems doubtful that the new government will see this as a hill worth dying on. There is a decent chance that we won’t know what happens if a future government botches the process again.

Whatever the parties decide to do, there is a chance that the Supreme Court will elect to punt the issue anyway. Courts don’t usually like to be dragged into political disputes to opine on hypothetical legal issues when a case has been rendered moot by intervening events — as the Peel case has. They will often decline to settle questions — even vexing, thorny ones — when legislatures have the wherewithal to decide.

Kyle Carruthers is a born-and-raised Yukoner who lives and practises law in Whitehorse.