The two-day appeal of the Peel watershed land use planning case wrapped up Friday and is now in the hands of a panel of judges.
The Yukon government filed the appeal late last year after a Yukon Supreme Court judge ruled it had gone too far when it introduced its own plan for the watershed that was dramatically different from the one a commission took years to come up with.
The Yukon government says the case is about elected officials having the final say over the use of public lands.
The First Nations and environmental groups counter that it’s actually about following legal agreements signed with First Nations decades ago.
About 97 per cent of the Peel is public land.
The Peel Watershed Planning Commission was established in 2004. It was made up of members nominated by both the Yukon government and the impacted First Nations.
The process for the commission’s work is laid out in the Umbrella Final Agreement, which, as a modern treaty, involves aboriginal rights enshrined in Canada’s Constitution.
The commission took seven years to eventually come up with a recommend plan for the 68,000 square kilometres of mostly undisturbed Yukon wilderness. In the end it recommended protection of 80 per cent.
Instead of taking that recommendation, the government released its own plan for the area. It protected only 29 per cent of the watershed from new mineral staking.
“They said we don’t think we’re bound by the results of this. I think that is a kick in the teeth to reconciliation,” said pioneering aboriginal rights lawyer Thomas Berger outside the courtroom.
Berger is representing environmental groups and three First Nations – the Nacho Nyak Dun, Tr’ondek Hwech’in and Vuntut Gwitchin.
The Umbrella Final Agreement allows the Yukon government to accept, reject of modify a recommended plan for public lands. The Yukon government argued the plan they put forward is simply a “modification” of the recommend plan.
But Berger points out the government is required to discuss proposed modifications ahead of time – and put them in writing.
“That’s the big issue,” he said.
“After we’ve gone though the whole process, can the Yukon government say, pat the commission on the head, say well, that’s good work you did over the past five years; pat the First Nations on the head, it’s been good to talk to you; pat Yukoners on the head, glad you came out and did all those submissions at those meetings, but we’re going to do whatever we want to do now?”
In 2011, then resource minster Patrick Rouble wrote a letter to the commission after a first version of the plan was released asking for more balance with greater options for access.
If the government had given more detail at the time – such as presenting the plan that it would eventually adopt – then those changes could have been discussed, consulted on and later adopted, Berger said.
But as it stands those few sentences are not enough to count as a written response to a 300-page draft report, the First Nations argued. The original trial judge agreed.
When Yukon Supreme Court Justice Ron Veale quashed the government’s plan he ruled they couldn’t go back and reconsider those two points which had only been vaguely touched on in the earlier stage.
That’s not fair, Yukon government lawyer John Laskin said Friday.
The government believes it did everything by the book. But if its plan remains quashed, it would be unfair to not allow any consideration of balance or access, he said.
Veale’s decision “forces government into a situation where it can’t express its concerns about the final recommended plan and that is not consistent with reconciliation,” he said.
In court Friday, a lawyer for the Gwich’in Tribal Council was given a chance to speak.
The N.W.T-based First Nation also has land in the Peel.
Jeff Langlois argued this decision could have implications outside of the Yukon and urged the court of appeal to uphold Veale’s original ruling.
Land use planning is common in many modern First Nation agreements, Langlois said. First Nations have exchanged their rights and title for promises of dialogue and collaboration.
If the Yukon government had included details of what they wanted to do in the Peel it would have gotten a response to those changes from the other parties and might have been able to come up with a compromise, Langlois said.
If the Crown’s power remains absolute, First Nations that have signed agreements might have no choice but to enter into the process in a combative fashion, he said. Or other First Nations might be wary of entering into a new agreement at all.
A Court of Appeal decision may not be the end of the legal wrangling over the Peel. There is always the possibility of the case heading for the Supreme Court of Canada.
A case having national significance is one of the things the top court considers when deciding if it will hear a case. But both Berger and Laskin say it’s too early to know if this case will get that far.
“I think it’s really hard to say at this point, so much turns on how the Court of Appeal sees it and so you really can’t predict at this stage,” Laskin said.
“The Supreme Court in any event only hears about 10 per cent of the cases that people ask it to hear, so predicting whether the case will get there is a very difficult thing.”
The appeal judges reserved their decision.
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