Everyone involved says it’s too early to know if Wednesday’s decision by the Yukon Court of Appeal will be the last time a judge has to deal with the Peel land use planning process.
The Yukon government was lambasted by the court for the way they handled the process and for failing in its responsibility to First Nations. But they get to try again without the limitations originally set by a lower court.
That has both sides claiming at least partial success.
The court ruled “Yukon undermined reconciliation by failing to honour the letter and spirit of its treaty obligations” when it released its plan that protected 29 per cent of the Peel. That was dramatically different from the 80 per cent protection recommended by the Peel land-use planning commission.
“We are pleased this judgment confirms what First Nations have been saying all along – our final agreements matter and must be respected,” Tr’ondek Hwech’in Chief Roberta Joseph said in a statement.
“However, it is disappointing that the Yukon government’s failure to appreciate their responsibilities under our UFA (Umbrella Final Agreement) means more money and time will be spent on a planning process that should have been completed years ago and that we still lack clarity for the Peel.”
Nacho Nyak Dun Chief Simon Mervyn said the decision supports First Nation rights but does little to ensure the Yukon government respectfully listens in the future.
“Our trust has been seriously breached and we had hoped the court would rule more decisively in our favour.”
The court rolled the clock back to 2011, when the government commented on the commission’s first recommended plan for the 68,000 square kilometers of mostly undisturbed wilderness.
The appeal court ruled the government didn’t provide adequate information explaining what changes it wanted and “undermined the dialogue central to the plan for reconciliation.”
The decision allows the government to consult and then provide a more detailed explanation of the changes it wants to the commission. The commission would then issue another final recommended plan, which the Yukon government can then accept, reject or modify when it comes to the 97 per cent of the Peel that is unsettled land.
Lawyer Thomas Berger, who represented the First Nations and environmental groups, said they have to consider how much power that gives the government in the end.
“We must consider the question of whether sending the matter back to an earlier stage in the process may allow Yukon government to effectively implement the Yukon government plan, a plan which the court has held is a nullity, by the back door,” he said.
The Yukon government says it’s satisfied with the decision.
It’s possible to avoid going back to the planning process said Mark Pindera, assistant deputy minister with the Yukon Department of Justice.
“It’s by no means guaranteed that it would have to go back to the process,” he said.
“Think of it this way: if the government wishes to negotiate with the affected First Nations and come up with a different approach of some kind, then potentially they will agree not to implement a land use plan. They will do something else.”
But if everyone does go back to the table there are lots of unanswered questions, not the least of which is who would sit on a new planning commission.
The Umbrella Final Agreement doesn’t entertain the idea of a resurrected commission. There’s nothing that spells out whether a commission needs to be the same people it was when it started. So far Pindera’s office hasn’t been asked to look into that question, he said. It’s just too early.
But he thinks there may be precedence allowing a different commission to be pulled together. Years later, people may have moved or not be available, he said. There’s also no word on what budget a new commission would get.
Dave Loeks, the former head of the commission, said he remains interested in the planning process, but it’s too soon to say whether he would return to lead a commission.
Loeks said he believes 85 per of the benefits from the court of appeal decision go to the First Nation. That’s because of the judges’ strong rebuke of the government’s behaviour.
“They basically said to the Yukon government, ‘You don’t get to just make it up.’”
He said the government would have a hard road to travel if it tried to implement a plan for the Peel that was too close to the one that led to the lawsuit.
“The decision said, if you really read the fine print, they said to the government, you can’t just do anything you want. The honour of the Crown demands that if you’re going to participating in a land claims-based planning process you do have to really work closely with your First Nations partners. Even on government public lands.”
The original 80 per cent protection plan received support including from the Council of Yukon First Nations and a huge chunks of the Yukon population, Loeks said.
That means the government will have a lot of questions to answer about any changes it suggests.
“And they’re going to have to answer that question knowing that they have an election coming up in about eight months.”
If the first go-around was any indicator, any new plan for the Peel will take much longer than eight months.
The draft recommendations were released in December 2009. The Yukon government’s now defunct plan was adopted in 2014.
The lengthy court battle has led to uncertainly in Yukon’s mining industry, and has brought all land use planning in the territory to a halt. “Our concern is how much longer the uncertainty will surround land use planning in the territory,” said Samson Hartland, executive director of the Yukon Chamber of Mines.
If things go back to the planning process, Hartland said it’s important that everyone involved, including the First Nations, still believes in the integrity of the process.
Both sides have 60 days to decide if they want to ask the Supreme Court of Canada to hear the case.
Contact Ashley Joannou at