Supreme Court of Canada set to hear Peel case

The Supreme Court of Canada has agreed to hear the case involving the Peel River watershed.

The Supreme Court of Canada has agreed to hear the case involving the Peel River watershed.

The country’s top court said Thursday it will have the final say over how far back in the planning process the Yukon government gets to go when deciding what to do with the land.

The Supreme Court of Canada only hears about 10 per cent of the cases that apply. Judges don’t have to give reasons for their decision to hear a case, just a simple yes or no.

Based on how long it usually takes, it’s unlikely the Peel case will be heard by the court until next year.

Three Yukon First Nations – the Tr’ondek Hwech’in First Nation, the First Nation of Nacho Nyak Dun and the Vuntut Gwitchin – and two conservation groups are suing the government over its plan for the 68,000 square kilometres of mostly undisturbed Yukon wilderness.

In 2011, after about seven years of work, a planning commission recommended that only 20 per cent of the land be open for resource industries right away.

In January 2014 the Yukon government released its own plan for the Peel, which opened up 71 per cent of the area to some type of new mineral staking.

Both the Yukon Supreme Court and the Yukon Court of Appeal ruled the Yukon government failed to honour the letter and spirit of its treaty obligations when it released its plan that was so dramatically different than anything that had been discussed before.

“The Supreme Court’s decision confirms what we’ve maintained all along: there are significant legal questions raised by the Yukon government’s conduct during the Peel planning process that deserve the Supreme Court’s – and Canada’s – attention,” Chief Roberta Joseph of the Tr’ondek Hwech’in said in a statement. 

“We are thankful for this opportunity and look forward to defending the integrity of our final agreements.”

The case now boils down to how to fix the mistake.

When Justice Ron Veale of the Yukon Supreme Court ruled in 2014, he said the Yukon government couldn’t make changes to the recommended plan that it hadn’t already talked about in detail earlier.

That essentially meant that whatever it came up with would end up looking a lot like the recommended plan.

The court of appeal took things back a step further, saying the government could make more changes as long as it consulted about them first.

The First Nations and environmental groups think it’s wrong for the government to be given this “do-over” after not meeting its obligations.

“We signed our final agreements with Canada and the government of Yukon in 1993, and we came to the table again in good faith for the Peel watershed consultations,” said Chief Simon Mervyn of the First Nation of Na-Cho Nyak Dun. 

“We are pleased that Canada’s highest court recognizes the legally binding nature of these agreements and the national significance of this case.”

In order to hear a case, the Supreme Court of Canada has to believe it has national importance.

Jeff Langlois, a lawyer who has taken part in the case for the Gwich’in Tribal Council, said the Peel situation has that kind of significance.

Courts have consistently said First Nations need to participate in good faith in the consultation process if they want their concerns heard, he said.

“The shoe’s really on the other foot now, where it’s the Yukon who failed to bring forward its concerns about the recommended plan.

“Yet the court of appeal granted a remedy which basically allowed the Yukon to go back and basically have a do-over. I think there’s an important point here about equity between the First Nations and the Crown here.”

The Yukon government, meanwhile, is maintaining its position that public government should have final say over public land.

“While continuing to have this matter in the courts is not the Yukon government’s preferred approach, we are hopeful that the Supreme Court of Canada can provide clarity and certainty to questions about how Yukon’s regional land use planning process should work and can make it clear that public government has the final say over public land,” the Yukon government said in a statement.

The prohibition on mineral staking and oil-and-gas development in the Peel watershed remains in place until Jan. 1, 2018.

Opposition politicians took the top court’s decision as an the opportunity to take a shot at the Yukon Party with their eyes clearly on this year’s election.

“The fate of the Peel – one of North America’s last pristine natural ecosystems – will be up to the Yukon people who will choose Yukon’s next government,” said NDP Opposition Leader Liz Hanson.

“Under a Yukon NDP government, that means a Peel decision that reflects the final recommended plan, respects the balance struck by the land use planning process and upholds the spirit and intent of the Yukon’s final agreements with First Nations governments.”

The Liberals also say they will implement the recommended plan if elected.

“Land use planning brings certainty for economic development while protecting our shared environment for future generations. When these decisions are left to the Supreme Court of Canada to decide, we lose our ability and responsibility to negotiate our shared future through a local lens,” said Liberal Leader Sandy Silver.

“The Yukon Party government has fought the will of the people at every turn. Today’s decision is a reminder of their inability to consult or negotiate with First Nation governments.”

Contact Ashley Joannou at

ashleyj@yukon-news.com

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

A Copper Ridge resident clears their driveway after a massive over night snowfall in Whitehorse on Nov. 2, 2020. Environment Canada has issued a winter storm warning for the Whitehorse and Haines Junction areas for Jan. 18. (Crystal Schick/Yukon News file)
Winter storm warning for Haines Junction and Whitehorse

Environment Canada says the storm will develop Monday and last until Tuesday

Maria Metzen off the start line of the Yukon Dog Mushers Association’s sled dog race on Jan. 9. (Gabrielle Plonka/Yukon News)
Mushers race in preparation for FirstMate Babe Southwick

The annual race is set for Feb. 12 and 13.

The Yukon government is making changes to the medical travel system, including doubling the per diem and making destinations for medical services more flexible. (Joel Krahn/Yukon News file)
Subsidy for medical travel doubled with more supports coming

The change was recommended in the Putting People First report endorsed by the government

Chloe Sergerie, who was fined $500 under the <em>Civil Emergency Measures Act</em> on Jan. 12, says she made the safest choice available to her when she entered the territory. (Mike Thomas/Yukon News file)
Woman fined $500 under CEMA says she made ‘safest decision’ available

Filling out a declaration at the airport was contrary to self-isolation, says accused

Yukon University has added seven members to its board of governors in recent months. (Crystal Schick/Yukon News file)
New members named to Yukon U’s board of governors

Required number of board members now up to 17

Yukonomist Keith Halliday
Yukonomist: Your Northern regulatory adventure awaits!

“Your Northern adventure awaits!” blared the headline on a recent YESAB assessment… Continue reading

Yukoner Shirley Chua-Tan is taking on the role of vice-chair of the social inclusion working group with the Canadian Academy of Health Sciences’ oversight panel and working groups for the autism assessment. (Submitted)
Canadian Academy of Health Sciences names Yukoner to panel

Shirley Chua-Tan is well-known for a number of roles she plays in… Continue reading

The Fish Lake area viewed from the top of Haeckel Hill on Sept. 11, 2018. The Yukon government and Kwanlin Dün First Nation (KDFN) announced they are in the beginning stages of a local area planning process for the area. (Crystal Schick/Yukon News file)
Local area planning for Fish Lake announced

The Government of Yukon and Kwanlin Dün First Nation (KDFN) announced in… Continue reading

Whitehorse City Hall. (Joel Krahn/Yukon News file)
City hall, briefly

A look at decisions made by Whitehorse city council this week

Fire damage, photographed on Jan. 11, to a downtown apartment building which occurred late in the evening on Jan. 8. Zander Firth, 20, from Inuvik, was charged with the arson and is facing several other charges following his Jan. 12 court appearance. (Gabrielle Plonka/Yukon News)
More charges for arson suspect

The Inuvik man charged in relation to the fire at Ryder Apartments… Continue reading

The grace period for the new Yukon lobbyist registry has come to an end and those who seek to influence politicians will now need to report their efforts to a public database. (Mike Thomas/Yukon News file)
Grace period for new lobbyist registry ends

So far nine lobbyists have registered their activities with politicians in the territory

Most Read