Means don’t justify the ends in Peel spat

The dispute over land use planning in the Peel watershed is off to the Supreme Court of Canada for the third round in this drawn-out fight between the Yukon government and the several First Nations whose traditional territories fall within the region.

It’s official. The dispute over land use planning in the Peel watershed is off to the Supreme Court of Canada for the third round in this drawn-out fight between the Yukon government and the several First Nations whose traditional territories fall within the region.

For those keeping score, in the first round the First Nations won by knockout after the Yukon Supreme Court not only found that the government had violated its agreements but ordered a remedy that effectively left the government with a plan it didn’t like.

Who won the second round at the Yukon Court of Appeal is a more contentious question. The government was found to have botched the process but the court was more forgiving and gave the government an opportunity to return to an earlier stage in the process. Given that it was the First Nations who have filed this latest appeal I think it can be safely inferred that they were less happy with the court’s decision.

Whether this matter will ever receive a full hearing before the Supreme Court is still an open question. There is only one Supreme Court of Canada, so it is selective with its schedule. Before the case is allowed a full hearing, the court has to be convinced that not only is the case strong enough on its face to warrant its time but that the matter is of “national importance” – a process known in legal circles as obtaining “leave to appeal.”

As I’ve opined in these pages before I think the government should have simply let this matter go. I am not persuaded that opening up the Peel to development would deliver the economic punch to justify trammelling such a treasure – a vast unspoiled parcel of wilderness. In the process it has alienated First Nations and reinforced the perception that (right or wrongly) exists in a segment of the public’s mind that the Yukon Party doesn’t take environmental concerns seriously.

All that said, I have some nagging doubts that as a matter of process imposing the Peel Land Use Planning Commission’s proposed plan on an unwilling democratically-elected government is a fitting punishment for its transgressions – which is effectively what will be argued for in this appeal. I don’t like seeing important substantive issues decided on the basis of procedural matters, even when I’m generally satisfied with the outcome.

The argument against granting the government a mulligan in the planning process is essentially that since all the other parties had invested so much time and effort in the process and the government failed to follow the process – intentionally or innocently, depending who you ask – it shouldn’t get a do over.

However, I think an argument could be made that the agreements themselves envision just such a “do over.” The government screwed up by purporting to “modify” the commission’s plan when they hadn’t been clear about the modifications they wanted to see earlier in the process. On that point, all four judges who have heard this case have agreed.

What the government should have done was simply “reject” the commission’s proposed plan at the final stage – something it unquestionably had the power to do.

What happens after the government “rejects” a proposed plan? Well that’s a darn good question and the possible subject of “Rumble in the Peel Episode 2.” It’s another one of those gaping holes in the wording of the final agreements that has never been resolved. But it seems likely that the answer is that the parties would need to go back to the drawing board in one way or another – exactly what the government has argued should happen here.

All this to say that I think it is fair to point that all the participants had some notice that the whole process could be for naught and the expense and inconvenience of a do-over is not necessarily a persuasive argument against allowing one to proceed.

I also have some concerns with the implications of depriving the government of a meaningful opportunity to exercise its prerogatives under the final agreements. This case has always been (ostensibly) about the importance of adhering to the planning process, and there is a certain irony in arguing that a proposed plan should be imposed on an unwilling territorial government – something the final agreements unquestionably don’t contemplate.

The right of the government – which they correctly remind us from time to time was democratically elected – to “accept, reject or modify” a proposed plan is as fundamental a part of the process as any other. Is the government’s botched attempt at modifying the plan sufficient reason to take away its say altogether? How is such an outcome staying true to the agreements?

The truth is that many people (but not all) who want to see this appeal proceed do so because they want the pro-mining Yukon Party to keep its grubby hands off the Peel, not because they feel a deep commitment to the planning process to play out as it is laid out in the agreement. They know that a “do over” means facing the possibility that to (one degree or another) the process set out in the final agreements does allow the government significant – possibly absolute – say over the final plan.

Such is often the problem when law and politics collide. A lot of Yukoners, including myself, want the Peel to be protected, so for many the ends justify the means. But if this case is truly about the importance of the planning process we should be somewhat concerned about the lack of meaningful say accorded our elected representatives.

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

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