There is an interesting phenomenon that we frequently see in modern societies whenever politics and law collide. Issues that inspire intense political passions are referred to the court on dry legal questions that normally wouldn’t interest anyone but the lawyers. Then the legal and the political blur together like two cans of paint that become one.
Activists on both sides line up in support of their “side” in the courtroom and occasionally become passionate about the procedural issues themselves. For example, when the Supreme Court of Canada struck down Canada’s abortion laws in the landmark R. v. Morgantaler case, it did so not because women have a constitutionally protected right to choose, but because the process for approval of abortions was flawed. That detail is often lost in the politics.
The Yukon’s Peel watershed and the botched planning process surrounding it is another case in point. The future of the Peel watershed is probably the hot button political issue in the territory at the moment. Or at least it would appear to be.
We’ve all seen the large protests (by Yukon standards), the numerous letters to the editor, and the “Save the Peel” bumper stickers that have popped up throughout the territory. On its face it would seem that this is a classic political contest between environmental and business interests - each jockeying for the ear of some politician who is being lobbied to come down on one side or the other on the issue.
The question of whether the Peel watershed should remain relatively untouched or whether it should be open to development has captured the attention of many Yukoners and inspired many people who usually keep their political views to themselves to speak up and get involved.
But the reality is that the politics of the Peel watershed are actually rather static. Our governing Yukon Party has made its position on the issue crystal clear (or at least it has since January 2014): it has a plan for the Peel that differs significantly from the plan created by the Peel Watershed Regional Planning Commission and shows no signs that it is open to any significant changes to that plan.
A territorial election is at least a year away - possibly more - so the chances that the opposition to the Yukon government’s plan will achieve a political solution to this dispute in the short term are not good.
For the moment at least, the future of the Peel watershed - one of the largest unspoiled areas in the world - will be determined by the resolution of rather dry legal issues in the courts between the Government of the Yukon and the several First Nations whose overlapping traditional territory lie in the Peel region.
The issues to be decided by the court have little to do with the economic and environmental concerns that motivate supporters and opponents of the government’s plan. Whether or not any of the various plans that have been presented for the region represent sound policy is not the question guiding the court. Instead the court is left with the task of resolving several somewhat esoteric legal questions relating to the interpretation of the Umbrella Final Agreement and the process that it entails.
The court is not deciding whether the Crest iron deposit on the Snake River should or should not be exploited, it is deciding whether the plan presented by the Yukon government in January 2014 qualifies as a “modification” of the plan created by the planning commission or if it is a whole new thing. The court is not deciding what percentage of the Peel should be open to roads or development, but rather whether the Yukon government is entitled to introduce all new modifications at the final stage of the planning process.
None of this stops the politically active among us from packing the courtroom or holding moments of silence on the courthouse steps. This is all very healthy in a democracy. An engaged public shows that Yukoner’s take the future of our territory seriously, and are motivated to express their views.
My only caution is that when politics and law collide as they do in the Peel watershed we should bear in mind that a legal system that makes decisions based on the rule of law is also of fundamental importance to our society. The court has to make its decisions based on the legal principles involved in the particular case, and those principles may or may not align with your political views or mine or even those of the judge.
If the court decides that the government followed the process set out in the UFA it does not mean that it wants to bulldoze the Peel, and if the court decides that the government did not follow the process does not mean it is anti-development.
Regardless of which legal arguments the court ultimately finds persuasive, the political debate will go on.
Kyle Carruthers is born and raised Yukoner who lives and practises law in Whitehorse.