I don’t begrudge the Yukon government for its decision to appeal the Yukon Supreme Court’s decision quashing the government’s unilaterally prepared plan for the Peel watershed.
Appeals are too often dismissed as the wasteful act of a sore loser. And, to be sure, many appeals are hopeless.
But I am not sure the law regarding the Peel is so clear cut.
Let’s remember some other cases also dismissed as wasteful turned out to be successful. The Government of Canada faced such accusations in its appeals of lower court orders that it seek the return of Omar Khadr from Guantanamo Bay, and that it hold a plebiscite of farmers prior to ending the Canada Wheat Board’s monopsony. Like it or not, the government succeeded in having the lower courts overturned in both cases.
Still, the reasons provided by the Yukon government for its Peel appeal are puzzling.
The government claims that it needs to “seek clarity that the democratically elected Yukon government retains the authority to make final decisions on public lands” and has expressed concern that the “impact this decision may have on the land use planning process in the territory as well as on Yukon’s economic future.”
Certainly an appeal could have a significant impact on development in the Peel, but the suggestion that the Yukon Supreme Court’s decision has broad implications for the planning process generally does not really withstand scrutiny.
As last Friday’s Yukon News editorial correctly noted, the court’s decision is actually quite narrow in some respects. It largely affirms that the government has the final say over public lands, provided that it participates meaningfully in the planning process. That means being open about its plans and collaborating with affected First Nations - which shouldn’t mean any undue hardship for a government. The court has essentially provided the government with a road map to compliance with its legal obligations in future land planning.
The claim that the court’s decision will have a significant effect on future land use planning is similarly weak. It is true that there is other land use planning underway in the territory and more is expected in the future, but nowhere else is that planning at a stage where the government has tied its hand by committing the same critical error.
So what grand principle of long lasting importance is the government defending by bringing an appeal? Its right to wait in the weeds, make vague criticisms of a proposed plan and release something altogether different at the 11th hour? Because if this appeal is really about the precedent that the Yukon Supreme Court’s decision set, that would seem to sum it up. Why not just do things differently next time?
Which leads me to believe this isn’t really about future land planning. It is truly about the Peel.
The problem for the government is that the court has effectively prevented it from returning to an earlier step in the planning process, so that it could still implement its own pro-development vision for the region. The court has ruled this option out, ordering that the government return to a later stage where the government is stuck with a handful of relatively minor modifications.
This is why there is an appeal. Scott Kent, the territory’s resources minister, has indicated the government won’t even contest that his predecessors mishandled the planning process. The focus will instead be on the fact that the court’s decision effectively means that the planning commission’s recommendation that most the watershed be protected will have to be approved.
So if this really is about the Peel, why keep fighting? I can’t explain the government’s dedication to, and its willingness to spend political capital on this cause. To what end is this political capital being spent? What drives this dogged insistence to open up the region to development? What is the political angle?
Does the Yukon Party really believe this is a major economic issue?
By the government’s own plan the Peel is unlikely to become a significant economic driver in the future. The government’s plan is often derided as opening up 71 per cent of the Peel to development, but if development truly is limited by the 0.2 per cent surface disturbance limit in Restricted Use Wildlife Areas the region is unlikely to become the Fort McMurray of the Yukon. We may get a few mines and some roads to those mines, but the activity in the region will not be a game changer for the territory.
In a way, the Yukon government’s plan represents the worst of both worlds. It opens up just enough of the Peel to development to spoil its untouched character and mess with its delicate ecology, while not opening up enough to really make an economic splash.
It is a rarity in these modern times to have such a vast area like the Peel untouched by development. It is something that is unique and worthy of protection.
Contrary to claims by those in favour of developing the Peel, opposing development in that particular region is not inconsistent with development generally. The Yukon is a vast area and most of it is not in the Peel.
Perhaps it would have made more sense for the government to move on to planning for those other areas and this time be upfront and clear about its intentions so it does not end up back in court.
Kyle Carruthers is a born and
raised Yukoner who lives and
practises law in Whitehorse.