Peel kerfuffle leaves big questions unanswered

Hundreds of thousands of dollars in legal fees later and we're back to where we were on the Peel in 20.11 And really we've learned very little of substance from two rounds of court battles.

Hundreds of thousands of dollars in legal fees later and we’re back to where we were on the Peel in 2011. And really we’ve learned very little of substance from two rounds of court battles.

We now know that the government is obliged to follow the processes set out in the final agreements and propose specific modifications – rather than generalities – early in the process, not at the last minute. We’ve been reminded that the Yukon government owes First Nations a duty of consultation, that it must honour the spirit and intent of its treaties, and that it must conduct itself honourably – all things we knew before.

It has been an unfortunately expensive lesson.

But after all this there is still a fundamental lack of clarity about who gets the final say in land planning and an obvious disagreement between various parties about the role of bodies like land use planning commissions. The more fundamental and substantive question that the Peel litigation didn’t even touch on is what the word “modify” really means.

“Modify” is a word used a number of times at key points in the most important statutes and agreements affecting development in the Yukon. The final agreements with 11 Yukon First Nations and the Yukon Environmental and Socioeconomic Assessment Act each use the word. Each establish a process for decision-making – the final agreements establish a process for the approval of land use plans like the one in the Peel and YESAA establishes a framework for any kind of development that goes on in the territory.

Once those processes are complete the Yukon government has the right to “accept, reject or modify” the recommendations of those bodies. And while the meanings of “accept” and “reject” are pretty clear, the word “modify” leaves a hole large enough to drive a truck through.

When drafting contracts, lawyers are often accused by their clients of being pedantic – too focused on small details and on imagining far-fetched “what if” scenarios. Clients who want to avoid expensive legal fees prefer to lay out their arrangement in broad strokes, get the document signed and worry about the details later.

But ambiguity in legal drafting is a recipe for lawsuits. If a document is clear when a dispute arises one party gets to claim victory while the other resigns in defeat. Truly frivolous litigation when the law is clearly on one side certainly occurs, but it isn’t as common as one might assume.

But insert a little bit of ambiguity into a document and the stakes change dramatically. Suddenly both parties have something to hang their hat on, thus providing them with the incentive to take the matter to court or at least try to leverage some sort of compromise.

The word “modify” presents exactly that kind of ambiguity.

The Yukon government’s stance seems to be that “modify” means whatever the government says it means. Our ministers have repeatedly stated that “public government” needs to have the final say over land development in the territory. Want to turn a plan that calls for protection of 80 per cent of the Peel into a plan that protects only 29 per cent? Just “modify” it. At the end of the day it is our decision. And while the government was slapped down for not proposing modifications early in the process, the court did not rule on whether essentially introducing a whole new plan fell within the meaning of “modify.”

The position of others seems to be that “modify” must mean something much narrower. In a statement, Yukon Vuntut Gwitchin Chief Roger Kyikavichik says that “this is not finished until we’ve concluded a final land use plan that we can all agree to.”

That doesn’t sound like a plan that the government can “modify” to the point that it is unrecognizable to those who participated in developing it. “Modify” – from this perspective – is a word that is limited in scope. In this view, control over development in the Yukon is seen as a true partnership, where decisions are made by consensus, not by one party with the final say.

Unfortunately, both are plausible interpretations of the word “modify,” and after all this kerfuffle we don’t have any clearer idea of which is correct.

And even when we do, the fun may not end immediately. The difficulty with the narrower interpretation preferred by those who view land management as a true partnership is that it will likely lead to even more litigation.

The government’s position has the advantage of clarity. If modify means anything and everything then there is no room for grey.

But if modify means something less than “whatever we say it means” then that means there is a line between a “modification” and something entirely different which will have to be sussed out.

It is unfathomable that after all the time, money and effort that went into negotiating final agreements and establishing a framework for development in the territory, we are left with such a fundamental disagreement about what was intended. How did this happen? Was it poor drafting? Did no one point out to the parties that this word could present a problem?

Or did the politicians of the day deliberately elect to punt and leave a fundamental question that goes to the heart of development in the territory to another day? Were politicians at the time to eager to have a photo op and say that the job was done while important details were left to a later today?

These are questions that will probably go without answers, but the end result is litigation on the taxpayer dime that will continue into the foreseeable future.

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

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