This week’s historic judgement on the fate of the Peel watershed confirms what Dave Loeks has been saying for a long time: The Yukon government did not play by the rules.
Loeks chaired the now-disbanded Peel Watershed Planning Commission, which spent seven years trying to come up with a land use plan that would best represent the public interest.
Like many Yukoners, Loeks was glued to his computer Wednesday morning in anticipation of the ruling, and quickly scrolled to the conclusion of the 90-page document.
“I thought, ‘Fantastic,’” he said. “The plaintiffs knocked it right out of the ballpark. It was a fine start to the day.”
The commission recommended in 2011 a plan that would see 80 per cent of the watershed protected from new development.
But the Yukon government didn’t like that plan, and came up with its own after the commission had finished its work. The new plan would see new mineral staking banned in only 29 per cent of the area.
This week’s Supreme Court of Yukon decision struck down the government’s plan.
Justice Ron Veale found that the territorial government strayed from the land-use planning process as set out in agreements with First Nations. He ordered the government to consult again on the commission’s plan and approve it, or something very much like it.
“I had privately thought that the plaintiffs would either win big or lose big, because there’s not a lot of grey zone,” said Loeks.
“The Yukon government was either abusing the intent of the umbrella agreements or they weren’t. Because I had been seeped in it for six years, I was quite sure that they were abusing it. And so I was pleased to see I wasn’t wrong in my assessment of it.”
The case hinged on how much discretion the government should have to do as it likes at the end of the day, despite the choices it made along the way.
Yukon’s lawyer argued that the letter of the law clearly leaves all options open for the government to implement the plan it prefers.
But the judge concluded that this is only true if the government fully participates in the process. That means spelling out exactly what you want, and why, at the appropriate stage. That wasn’t done in this case.
“The nature of the error was a six-year long error of not coming to the table and putting your cards down, face up,” said Loeks.
The commission was open about the direction it was taking with the plan all along the way, he said.
Back in 2006 the commission released a statement of intent indicating that preserving the wilderness character of the land was to be a primary goal of the plan.
“That would have been a real, real good time for the Yukon government to say, ‘Um, hmm, we should talk.’ They didn’t. They accepted it without reservation.”
It wasn’t until the commission was working on final revisions to the recommended plan that the government made a vague request for “more balance” and “options for access.”
“When we received that letter as a commission, we were at basically the 11th hour, 59th minute of the process, a seven year process,” said Loeks.
The agreements spell out that any requests for revisions at that stage must be supported with reasons.
That didn’t happen.
“Do not tell me, ‘Oh, you knew,’ said Loeks. “A public body like that doesn’t operate with nudges and winks.
“If the government really wanted that, and they were honest about that, they should have said so.”
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