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

Chief Medical Officer of Health Dr. Brendan Hanley gives a COVID-19 update during a press conference in Whitehorse on May 26. The Yukon government announced two new cases of COVID-19 in the territory with a press release on Oct. 19. (Alistair Maitland Photography)
Two new cases of COVID-19 announced in Yukon

Contact tracing is complete and YG says there is no increased risk to the public

Yukon Energy in Whitehorse on April 8. Yukon Energy faced a potential “critical” fuel shortage in January due to an avalanche blocking a shipping route from Skagway to the Yukon, according to an email obtained by the Yukon Party and questioned in the legislature on Oct. 14. (Crystal Schick/Yukon News file)
Yukon Energy faced ‘critical’ fuel shortage last January due to avalanche

An email obtained by the Yukon Party showed energy officials were concerned

Jeanie McLean (formerly Dendys), the minister responsible for the Women’s Directorate speaks during legislative assembly in Whitehorse on Nov. 27, 2017. “Our government is proud to be supporting Yukon’s grassroots organizations and First Nation governments in this critical work,” said McLean of the $175,000 from the Yukon government awarded to four community-based projects aimed at preventing violence against Indigenous women. (Crystal Schick/Yukon News file)
Yukon government gives $175k to projects aimed at preventing violence against Indigenous women

Four projects were supported via the Prevention of Violence against Aboriginal Women Fund

Yukonomist Keith Halliday
Yukonomist: You don’t know what you’ve got ‘til it’s gone

When I was a kid, CP Air had a monopoly on flights… Continue reading

asdf
EDITORIAL: Don’t let the City of Whitehorse distract you

A little over two weeks after Whitehorse city council voted to give… Continue reading

Whitehorse City Hall. (Joel Krahn/Yukon News file)
City hall, briefly

A look at decisions made by Whitehorse city council this week

Northwestel has released the proposed prices for its unlimited plans. Unlimited internet in Whitehorse and Carcross could cost users between $160.95 and $249.95 per month depending on their choice of package. (Yukon News file)
Unlimited internet options outlined

Will require CRTC approval before Northwestel makes them available

Legislative assembly on the last day of the fall sitting in Whitehorse. Yukon’s territorial government will sit for 45 days this sitting instead of 30 days to make up for lost time caused by COVID-19 in the spring. (Crystal Schick/Yukon News file)
Legislative assembly sitting extended

Yukon’s territorial government will sit for 45 days this sitting. The extension… Continue reading

asdf
Today’s mailbox: Mad about MAD

Letters to the editor published Oct. 16, 2020

Alkan Air hangar in Whitehorse. Alkan Air has filed its response to a lawsuit over a 2019 plane crash that killed a Vancouver geologist on board, denying that there was any negligence on its part or the pilot’s. (Crystal Schick/Yukon News file)
Alkan Air responds to lawsuit over 2019 crash denying negligence, liability

Airline filed statement of defence Oct. 7 to lawsuit by spouse of geologist killed in crash

Whitehorse city council members voted Oct. 13 to decline an increase to their base salaries that was set to be made on Jan. 1. (Crystal Schick/Yukon News file)
Council declines increased wages for 2021

Members will not have wages adjusted for CPI

A vehicle is seen along Mount Sima Road in Whitehorse on May 12. At its Oct. 13 meeting, Whitehorse city council approved the third reading for two separate bylaws that will allow the land sale and transfer agreements of city-owned land — a 127-square-metre piece next to 75 Ortona Ave. and 1.02 hectares of property behind three lots on Mount Sima Road. (Crystal Schick/Yukon News file)
Whitehorse properties could soon expand

Land sale agreements approved by council

Most Read