Both sides involved in the Peel land use dispute are waiting to sort out what the new Liberal government means for the case that is scheduled for the Supreme Court of Canada.
The Liberals made an election promise to accept the final report of the original Peel Watershed Planning Commission. That’s the plan that recommended protecting 80 per cent of the Peel from development.
For years it’s also been the plan at the centre of multiple court cases over the interpretation of the Yukon’s Umbrella Final Agreement with First Nations, and how decisions are made around land use planning.
But even if both sides now want to undo the legal wrangling, that might be more complicated than pulling the plug on the latest case.
“I don’t think what we’re dealing with is a problem,” said Yukon Conservation Society executive director Christina Macdonald. “It’s simply needing our lawyers to clarify.”
The Peel court battles started when the former Yukon Party government tried to implement a plan that protected only 29 per cent from new mineral staking.
Both the Yukon Supreme Court and the Yukon Court of Appeal agree the Yukon broke the rules when it tried to create its own plan that was so different from the recommended one.
The First Nations and environmental groups won the first case when the judge said the government could go back and try again, but could only alter relatively insignificant parts of the original plan.
The Yukon government took victory in the Court of Appeal when the judges there said government could make any changes it wanted so long as it properly consulted and provided a more detailed explanation of its plans.
The First Nations and environmental groups disagreed and took the case to the country’s top court. It is scheduled to be heard in March.
If the First Nations dropped the Supreme Court of Canada case, the decision by the Court of Appeal could essentially become the law of the land.
Land use planning processes in other parts of the Yukon have been put on hold while the Peel case is sorted out.
The Liberals have promised to restart that process.
The decision by the Court of Appeal is “deeply flawed,” said Macdonald. Her side has always maintained they don’t want that decision to stand.
If the government is allowed to go back too far in the process it can essentially ignore the years of work put into planning and do what it wants, she said.
So is it possible for two sides of a court case to go to the Supreme Court of Canada and request that the judges rule in a certain way? No one seems quite sure at this point.
The Liberals have weeks to sort this out before they officially become government. For now, officials with the Justice Department say they can’t comment until they get instructions from the new leaders.
Macdonald said the First Nations and environmental groups are meeting with their lawyer, Thomas Berger, today. After that they’ll have a better idea of what the next step is.
“We’re going to court no matter what. If we don’t go to court the appeal ruling will stand and it’s going to mess everything up. That appeal ruling must be quashed,” she said.
“Without a doubt we’re going to the Supreme Court of Canada. The real question lies in… how (the Yukon government) will present themselves at that hearing.”
The First Nations and environmental groups have already filed their arguments with the court. So far the government hasn’t filed a reply.
Contact Ashley Joannou at firstname.lastname@example.org