The environmental groups and First Nations fighting with the Yukon government over the Peel watershed have officially asked the Supreme Court of Canada to hear their case.
The Peel case, and the way Yukon’s umbrella final agreement is interpreted, will impact all of Canada’s First Nations that have modern treaties, they argue.
“If allowed to stand, the reasoning of the Court of Appeal will inevitably undermine the careful balance between the respective roles in future decision-making of non-Aboriginal governments and Aboriginal peoples that has been so assiduously negotiated and set out not only in the Yukon modern treaties, but in similar modem treaties across Canada,” the document says.
The Supreme Court of Canada judges only hear about 10 per cent of the cases that are sent its way, so lawyers have to prove a case is worth their time.
In the Peel case, both the Yukon Supreme Court and the Yukon Court of Appeal agreed that the Yukon broke the rules when it tried to create its own plan for the giant swath of mostly untouched Yukon land.
While the Peel land use planning commission had recommended 80 per cent protection, the government’s plan was for 29 per cent. The government’s plan was thrown out by both courts.
To fix the mistake, the Yukon Supreme Court said the government could go back and try again to modify the recommended plan. But the judge said the government couldn’t alter balance between protection and development, or allow building new roads or other surface access into the area.
The judge said the government didn’t provide enough detail about the changes it wanted earlier in the process, so those points were off the table.
The Court of Appeal arrived at a different conclusion, saying the government could make any changes it wanted so long as it properly consulted with everyone and provided a more detailed explanation of their plans.
The Yukon government has always maintained that it needs to have final say in the management of public lands.
But the First Nations and environmental groups say that giving the government this much of a do-over is taking things too far.
While most of the Peel case centres around treaty interpretation, Thomas Berger, the aboriginal law pioneer going against the Yukon government, touches on the Peel’s environmental value as being nationally significant.
“The Peel watershed is a national treasure in the custodianship of the government of Yukon and First Nations. The future of the Peel Watershed is a matter of importance not only to Yukoners but to all Canadians.”
The Yukon government will have 30 days to respond to the application for leave to appeal. After that, the other side gets 10 days to respond to any of the government’s arguments.
It will be months before anyone gets a yes or no answer from the Supreme Court of Canada.
Meanwhile, more legal wrangling means more costs.
The Yukon Department of Justice says it spent $232,496 on Outside lawyers for the Yukon appeal alone.
That brings the total spent in the whole thing so far to $285,767.
The First Nations and environmental groups have refused to say how much money they’ve spent so far.
Contact Ashley Joannou at