Judge hears further arguments in Peel trial

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.

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 jronson@yukon-news.com

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Yukonomist Keith Halliday
Yukonomist: The aesthetics and economics of highway strips

One of the many cultural experiences you enjoy while driving from Whitehorse… Continue reading

Submitted
Artwork by Grade 2 student Faith showing her thanks for everyone.
Artwork by Grade 2 student Faith showing her thanks for everyone. (Submitted)
Yukon kids express gratitude for nature, pets and friends in art campaign

More than 50 children submitted artwork featuring things they are grateful for

Team Yukon skip Laura Eby, left, directs her team as Team Northern Ontario skip Krysta Burns looks on at the Scotties Tournament of Hearts in Calgary on Feb. 22. (Jeff McIntosh/CP)
Team Yukon reports positive experience at Scotties

Team Yukon played their final game at the national championship in Calgary on Thursday afternoon

A sign indicating a drop-off area behind Selkirk Elementary school in Whitehorse on Feb. 25. (Haley Ritchie/Yukon News)
Parking lot proposal for Selkirk Elementary criticized

Parents and school council are raising concerns about green space and traffic woes

adsf
WYATT’S WORLD

Wyatt’s World for Feb. 26, 2021

Tom Ullyett, pictured, is the first Yukoner to receive the Louis St-Laurent Award of Excellence from the Canadian Bar Association for his work as a community builder and mentor in the territory. (Gabrielle Plonka/Yukon News)
Tom Ullyett wins lifetime achievement award from the Canadian Bar Association

Ullyett has worked in the Yukon’s justice ecosystem for 36 years as a public sector lawyer and mentor

The Blood Ties outreach van will now run seven nights a week, thanks to a boost in government funding. Logan Godin, coordinator, and Jesse Whelen, harm reduction counsellor, are seen here on May 12, 2020. (Crystal Schick/Yukon News file)
Blood Ties outreach van running seven nights a week with funding boost

The Yukon government is ramping up overdose response, considering safe supply plan

Ranj Pillai speaks to media about business relief programs in Whitehorse on April 1, 2020. The Yukon government announced Feb.25 that it will extend business support programs until September. (Crystal Schick/Yukon News)
Government extends business relief programs to September, launches new loan

“It really gives folks some help with supporting their business with cash flow.”

Whitehorse City Hall. (Joel Krahn/Yukon News file)
A look at decisions made by Whitehorse City Council this week

Bylaw amendment Whitehorse city council is moving closer with changes to a… Continue reading

Susie Rogan is a veteran musher with 14 years of racing experience and Yukon Journey organizer. (Yukon Journey Facebook)
Yukon Journey mushers begin 255-mile race

Eleven mushers are participating in the race from Pelly Crossing to Whitehorse

Legislative assembly on the last day of the fall sitting in Whitehorse on Nov. 22, 2018. As the legislature prepares to return on March 4, the three parties are continuing to finalize candidates in the territory’s 19 ridings. (Crystal Schick/Yukon News file)
Nine new candidates confirmed in Yukon ridings

It has been a busy two weeks as the parties try to firm up candidates

David Malcolm, 40, has been charged with assaulting and attempting to disarm a police officer after an incident in Whitehorse on Feb. 18. (Phil McLachlan/Capital News)
Man resists arrest, assaults officer

A Whitehorse man has been charged with assaulting and attempting to disarm… Continue reading

Yukon Energy in Whitehorse on Aug. 4, 2020. A site on Robert Service Way near the Alaska Highway has been selected as the future home of Yukon Energy’s energy storage project. (Crystal Schick/Yukon News file)
Site selected for Yukon Energy battery project

Planned to be in service by the end of 2022

Most Read