Dig in or bug out?

There's a tantalizing possibility, however remote, that the Yukon government's decision to replace its legal team assigned to the Peel watershed case presents a way out of this otherwise hopeless mess. 

There’s a tantalizing possibility, however remote, that the Yukon government’s decision to replace its legal team assigned to the Peel watershed case presents a way out of this otherwise hopeless mess.

It’s not through victory. The odds of that still look extremely remote, even with a high-powered Bay Street firm defending the territory. It wouldn’t be surprising if the new lawyers reach the same conclusion as many others: that the cards are stacked badly against the government, due to both the sheer ineptitude of the government’s handling of the matter and the broad preference of the courts to side with First Nations during legal battles such as this.

Yet the pretense of reviewing new advice presents Premier Darrell Pasloski with a face-saving way to extricate himself from this quagmire. New information has come to light, he could assert. After prudent consideration of the matter, an out-of-court resolution is preferable for all parties, yadda yadda. You get the idea.

The implication would be that this really isn’t the premier’s fault. He was acting on advice before; he has better advice now. In other words, don’t blame him; blame the lawyers.

It may seem implausible that the government would give up the fight now, given the stubbornness with which it has fought until now to defend its plan to largely open the Peel watershed to mining. But something important has changed since the Yukon Party announced its plans after the last election.

Then, it must have seemed like a good way to prop up the government’s image as the champions of the economy. Now, the opposite is true: relations between the government and First Nations are so tattered that it threatens to freak out investors, to the point at which miners and other business executives are publicly fretting about it.

It doesn’t matter how many times the premier rearranges the chairs around the cabinet table, or switches his chief of staff. As long as the Peel issue continues to fester, the Yukon Party will be unable to shake the perception they have badly harmed the territory’s claim to economic stability.

There’s no better symbol of the growing mistrust between the government and First Nations than the Peel mess, which stands as a reminder of the government’s cynical way of undermining land claims to suit its own purposes.

Even our political leaders, who long insisted they were playing by the rules, now admit they didn’t follow the process spelled out in Yukon’s land claim deals during the Peel talks. Rather than provide specifics during seven years of planning talks about what they wanted, they instead waited until the 11th hour, then introduced a plan that was pretty much the opposite of what was discussed up until that point. To allow such a plan to pass would obviously flout the spirit of land claims, which promised First Nations a meaningful say in regional land-use planning.

Now the government wants to be able to rewind the clock to a point at which it could legally introduce its plan. Yet it remains extremely difficult to square this proposed outcome with the law’s clear expectation that governments behave honourably with their dealings with First Nations. As First Nations lawyers have noted, such a result would simply reward the government’s dirty dealings.

But even if the premier’s lawyers help take the fall, many words would still have to be eaten by Pasloski. He has told the Yukon public that the government’s appeal of the court ruling on the Peel case is about defending nothing less than democracy itself, and that the ruling threatens to undermine the principle of allowing governments to have final say over what happens on its own land.

This is overwrought and silly – no future Yukon government would be so stupid as to repeat the blunders committed during the Peel planning talks, so there should be little concern about us finding ourselves in the same position again. But it would take some fancy talking for the premier to reverse course on this.

Presumably, the Yukon government would want to reach some sort of out-of-court compromise with affected First Nations that would give the appearance of something less than a complete surrender. Yet the territory has little leverage at this point. Chiefs may wonder why they would broker a compromise, even one heavily weighted in their favour, if they are able to get the terms they want through a court fight that is going their way. There’s no rush, as the legal limbo hanging over the entire region effectively makes it off-limits to mining. And if money is an issue, conservationists could launch a fundraising campaign, to which many sympathetic residents, fed up with the government, would gladly donate.

The Bay Street lawyers claim to be experts at smoothing over spats with First Nations. Yet even with some of the country’s priciest legal minds tackling the problem, there may be no other way about it but to have the premier admit, at some point, that he made a big mistake. And there is no evidence to date that this is something he is capable of doing.