As predicted, navigating the thorny final chapter of the Peel appeal has turned out to be challenging for the new government. Last week, the Yukon government filed its factum with the Supreme Court of Canada and held a press conference to explain its decision to continue the previous government’s opposition to the appeal brought by First Nations and environmental groups.
The legal argument, contained in a factum filed with the court, represented a fully defensible response to the dilemma the government faces.
After all, the Peel appeal isn’t just about the Peel. It’s about the land use planning process and the adverse precedent that might be set if the appellants were able to argue their case unopposed. The government was, in my view at least, correct to argue that despite the breach committed by the previous government, the process ought to be returned to an early stage. I see little inconsistency in arguing that the Court of Appeal’s decision ought to be upheld while rejecting the previous government’s plans for development.
But the government’s statements at last week’s press conference have proven a tad more controversial. Not only did the government concede that it could not simply accept the plan proposed by the Peel planning commission (as it promised in its platform in the recent election), the new justice minister mused that the plan that might ultimately emerge from this process may not be the same as that which was previously proposed by the commission.
The opposition Yukon Party was quick to pounce, accusing the Liberals of “flip flopping” on its election promises and (gasp!) continuing to do exactly what the Pasloski government had done.
So did the Liberals break their promise?
In a literal sense, they have. The new government will not — and they say cannot — simply “accept the final report of the original Peel Land Use Planning Commission” as they explicitly promised in their platform. That is unquestionably a broken promise.
And once again we have an example of a very specific guarantee being made during the heat and excitement of an election campaign that, in hindsight, ought to have been framed in a more cautious and narrow manner (although it seems likely that the NDP would have pounced on any attempts by the Liberals to insert any nuance into its position on the Peel, as they did with fracking, but I digress).
But it is not fully clear if the Liberals are just being overly cautious in their wording or are truly backtracking on the substance of their promise and have some sort of hidden agenda to allow more development in the region than the original plan allowed. Or perhaps they are simply over-lawyering the appeal.
But excessive cynicism isn’t my thing so — like others including the Tr’ondek Hwech’in First Nation and the Yukon Conservation Society — I want to see how this all plays out before writing off the broader principles of the government’s promise.
The Liberals still have plenty of opportunities to stay loyal to the substance of their commitment to those Yukoners who want to see a plan for the Peel that emphasizes protection over development.
It is, after all, technically true that it isn’t within the government’s range of options to simply accept the recommended plan and call it a day. There is a process that needs to play out before that option will again be in front of them.
And it is also true that, if the process is sent back to an earlier stage in the proceeding, the government may need to consult with affected First Nations who may propose changes to the plan. The process has already been derailed and by putting the matter in front of the court we can’t be sure how it will all shake out.
Despite what the official Opposition is implying, neither the arguments made in the new government’s factum, nor the statements made at its press conference mean that the Liberals have any intention of introducing a plan resembling the now-infamous Yukon Party proposal, which ultimately is what those following this case would be most concerned about. Legally this may be about land use planning, but politically it is about protecting the Peel.
But by being coy about where this is all going, the Liberals are certainly inviting people to draw negative inferences.
I appreciate the reasons for this and I agree with the government’s decision to continue the defence of the Court of Appeal decision. Its hands are more or less tied by the fact that the appellants insisted on moving forward with the appeal.
But Premier Sandy Silver and company could have done a better job communicating their rationale and assuring Yukoners that they hadn’t been duped by a party that says one thing to get elected and does another.
Kyle Carruthers is a born-and-raised Yukoner who lives and practises law in Whitehorse.