Yukon Supreme Court Justice Ron Veale has a big job ahead of him. In the coming months he must determine how closely Yukon’s land use plans must be bound to the process intended to produce them.
Veale heard further submissions in the trial over the fate of the Peel watershed on Friday.
The case was launched by the First Nation of Nacho Nyak Dun, the Tr’ondek Hwech’in and conservation groups, who argued that the government had no right to advance its own ideas for the plan after the planning commission completed its work.
In July, famed aboriginal rights lawyer Thomas Berger argued on behalf of the plaintiffs that the Peel commission’s final recommended plan must be declared the approved plan, because it is the only plan that was produced in a legal way.
Lawyer John Hunter, representing the Yukon government, argued that the government maintains the ultimate say over the lands under its jurisdiction, and the case must therefore be dismissed.
Justice Veale made it clear early on in the proceedings that he would like to consider possible middle ground alternatives.
Friday’s hearing gave a chance for both sides to give more detailed submissions on the question of remedy.
In a surprise move, the plaintiff dialled back their request, no longer suggesting that the final recommended plan should be approved by the court.
That plan never made it through the final consultation phase, and it must before it can be approved, said Berger.
The remedy must therefore be to send the final recommended plan back to the government for reconsideration, he said.
But the court must put strict limits on how the final consultation and approval process must proceed, argued Berger.
The court’s directions “should leave no room” for the government to proceed on the basis of its own plan, he said.
Hunter maintained that the government did no wrong in approving its own plan for the Peel, and that the appropriate remedy would be dismissal of the case.
But, if the court decides that same error of law has occurred through the process, then the plan must be sent back to the government for reconsideration without tying its hands in a strict way.
“The government has to have a range of options here,” he said.
One possibility would be to send the plan back to an earlier stage, to give the government another chance at providing more detailed suggestions to the commission, argued Hunter.
Another would be to send the process back to the stage to where the final recommended plan was delivered, while maintaining the government’s right to approve, reject or modify broadly as it sees fit.
Judge Veale showed little appetite for a narrow, literal interpretation of the planning process as described in Yukon’s final agreements with First Nations.
“I don’t see any authority for a plain reading,” he told Hunter.
Veale asked, in a hypothetical scenario, if the government has proposed modifications and got everything it asked for, would it still have the authority to reject the final plan?
That would be “somewhat inconsistent,” and an “unexpected result,” said Hunter, but permissible under the law, he said.
Some new information could have come to light during consultations, for example.
However, “it would be difficult to defend in the absence of changed circumstances,” said Hunter.
Berger argued that the government had its chance to make carefully reasoned submissions to the planning commission, and it must be bound to the choices it made at that stage.
To send it back to that earlier stage would amount to granting the Yukon government a “do-over” and “this whole thing becomes a dog’s breakfast,” he said.
There’s no word so far on when Veale might release a decision in the case.
Contact Jacqueline Ronson at firstname.lastname@example.org