Peel case heard by the Supreme Court of Canada

A delegation of representatives from First Nations and environmental groups were in Ottawa today to hear the Supreme Court of Canada case surrounding the Peel watershed planning process.

A delegation of representatives from First Nations and environmental groups were in Ottawa today to hear the Supreme Court of Canada case surrounding the Peel watershed planning process.

Arguments wrapped up this morning, but a final decision isn’t expected for months.

In Whitehorse, a live early-morning broadcast of proceedings drew 50 people to the Kwanlin Dün Cultural Centre.

It was worth travelling thousands of kilometres from Old Crow to witness the few hours of arguments, Vuntut Gwitchin Chief Bruce Charlie said from Ottawa the day before the hearing.

“We feel that it’s very important for us to be right there, front and centre, so that they can see us and know how important this is to the Yukon and to Canada.”

About 30 people travelled to Ottawa. That includes the chiefs of the three first Nations that filed the appeal against the Yukon government — Vuntut Gwitchin, Tr’ondëk Hwëch’in and the First Nation of Nacho Nyäk Dun — as well as elders and council members. Representatives from the Gwich’in Tribal Council and Tetlit Gwich’in were also present.

First Nations have been at odds with the Yukon government over the fate of the Peel River watershed for years.

At its core the case boils down to questions over how to correctly interpret the land use planning process laid out in the Umbrella Final Agreement with Yukon First Nations.

The Peel watershed covers about 68,000 square kilometres of mostly undisturbed wilderness.

The Peel Watershed Planning Commission wrapped up a seven-year planning process in 2011 and recommended that 80 per cent of the land be protected.

The then-Yukon Party government angered First Nations when it decided instead to release its own plan for the Peel that nearly inverted that level of protection.

Both the Yukon Supreme Court in 2014 and the Yukon Court of Appeal a year later ruled the government broke the rules when it released its dramatically different plan.

The issue is what to do about that now.

How significantly can a recommended plan be changed now that the government has not honoured its side of the deal?

Originally the Yukon Supreme Court ruled the government could not change the balance between protection and development, or allow new roads or other surface access into the area because those two things had not been discussed in enough detail at an earlier stage.

The court of appeal later said the Yukon could make those more significant changes as long as it properly consulted with everyone first.

In the Supreme Court of Canada the First Nations and environmental groups argued the court of appeal was wrong to essentially give the Yukon government a do-over after failing to hold up its side of the agreement.

“Why would anyone participate in land use planning if they knew that it didn’t really matter?” said Christina Macdonald with the Yukon Conservation Society.

“(That) if the government didn’t like what they saw they could just throw it all out.”

Since winning a majority government in November, Liberal Premier Sandy Silver has said his government intends to implement the final recommended plan for the Peel, provided there’s nothing in the court’s ruling that prevents that from happening.

Despite that promise, government lawyers will still be making legal arguments that have key points in common with their predecessors in the Yukon Party.

The government’s position remains that the process should be sent back to an early stage where more modifications are technically possible.

Getting clarity on where to go in the process is important for future land use plans, even if this government is promising a certain result for the Peel, Macdonald said.

“The question of whether this government or any future governments in the territory can at the end of a process reject everything, that’s still very much a question that we’re asking the Supreme Court of Canada to decide on.”

Experts say it’s not just Yukoners who will be watching the case unfold.

Ken Coates, a professor of public policy at the University of Saskatchewan, said the final ruling by the Supreme Court of Canada will matter to others because of what it will say about the value and strength of modern treaties.

As Canada is becoming more influenced by modern land claim agreements, “we need to know what real authority they have,” Coates said.

“Do they call on governments to have a different relationship with First Nations than in the past and does it go beyond the sort of narrow confines of the actual agreement itself?”

Macdonald said people travelled from many of the Yukon’s communities to be in Ottawa for this hearing.

Gladys Netro is Gwich’in from Old Crow but lives in Dawson City.

She said she went to Ottawa to show her support for the Peel, something she’s been fighting for for years.

“With our nation coming together to protect the Peel, and with all the support nationally and internationally, I believe that this is a critical stage of our lives…. I want to see things happen in the right way for our agreements.”

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