Duo Lakes near the Snake River in the Peel watershed. (Mike Thomas/Yukon News)

Supreme Court rules Yukon government overstepped in Peel watershed case

‘This is a victory for our modern-day treaties’

Yukon First Nations and conservation groups declared victory Friday morning after the Supreme Court of Canada issued a landmark decision in the Peel watershed case, ruling that the Yukon did not have the authority to make the changes that it did to the Final Recommended Plan.

The decision marks the ostensible end of a five-year-long legal battle over the future of the Peel, a 68,000-square-kilometre area of largely undisturbed wilderness in northern Yukon, and one that tested the territorial government’s commitment to modern treaties with Yukon First Nations.

The dispute began shortly after the Peel Watershed Planning Commission finished a seven-year planning process in 2011, recommending that 80 per cent of the Peel be protected from development. The ruling Yukon Party released its own plan in 2012 that nearly inverted the amount of protected land.

“In this case, the Yukon did not have the authority under (the Umbrella Final Agreement) to make the changes that it made to the Final Recommended Plan,” reads the unanimous judgment written by Justice Andromache Karakatsanis. “Yukon’s changes were neither partial nor minor…. (The changes) did not respect the land use planning process in the Final Agreements and its conduct was not becoming of the honour of the Crown.”

“Yukon must bear the consequences of its failure to diligently advance its interests and exercise its right to properly propose modifications related to access and development to the Recommended Plan.”

The decision orders all parties to return to the stage in the planning process where the Yukon can approve, reject or modify the final plan after consultation.

The current Yukon Liberal government had already promised as part of its election platform to implement the original Final Recommended Plan.

The Supreme Court of Canada decision comes after — and overrides — earlier decisions from the Yukon Supreme Court and the Yukon Court of Appeal, both of which ruled that the Yukon Party government broke the rules by releasing its dramatically different plan. Both lower courts offered different remedies.

In 2014, the Yukon Supreme Court, in response to a lawsuit brought against the territorial government by the First Nation of Nacho Nyak Dun, Tr’ondëk Hwëch’in First Nation, Vuntut Gwitchin First Nation, the Yukon Chapter-Canadian Parks and Wilderness Society, and the Yukon Conservation Society ruled the government could not change the amount of protected land or allow new roads or other surface access. It ordered the second round of consultations to be done again.

The Yukon government appealed that decision and, a year later, the court of appeal said the Yukon could make more significant changes as long as it properly consulted with everyone first, returning planning to the first stage of the process and essentially giving the territorial government a do-over after it failed hold up its side of the agreement.

The court of appeal had no right to return the parties to an earlier planning stage, Karakatsanis wrote, adding that it “improperly inserted itself into the heart of the ongoing treaty relationship between Yukon and the First Nations.”

“In my view, the Court of Appeal’s approach is inconsistent with the appropriate role of courts in a judicial review involving a modern treaty dispute,” Karakatsanis wrote. “The court’s role is not to assess the adequacy of each party’s compliance at each stage of a modern treaty process…. Modern treaties are constitutional documents, and courts play a critical role in safeguarding the rights they enshire.”

In a press release, Tr’ondëk Hwëch’in First Nation Chief Roberta Joseph said she was “extremely pleased to be finally arriving on a path of certainty.”

“This is the outcome we were hoping for. This is a victory for our modern-day treaties and the collaborative planning processes promised for Land Use Planning,” Joseph said. “We look forward to working with the present government on the next steps outlined by the court.”

Chief Simon Mervyn of the First Nation of Na Cho Nyäk Dun and Chief Bruce Charlie of the Vuntut Gwitchin First Nation echoed Joseph’s sentiments.

“I want to thank Yukoners and Canadians for all the support in protecting the integrity of our final agreements. The agreements were designed for us to protect the environment, and now we will work in unity, for the animals, the land and the people,” Mervyn said. “As we move forward, we hope that Canadians and Yukoners will plan for the betterment of humanity. I’m looking forwards to coming home to celebrate.”

“We have always been responsible stewards of our traditional territory even in the face of adversity and uncertainty,” Charlie said. “We are pleased that the Court agrees that the path towards reconciliation requires honourable implementation of the spirit and intent of our final agreements.”

Jeff Langlois, counsel for the Gwich’in Tribal Council, who served as interverners on the case, said in a phone interview he considered the decision a victory.

“At the outset of this case, this result was far from certain and my clients, they’re really ecstatic,” Langlois said, describing the case as “foundational” for future land use planning done under the Umbrella Final Agreement.

Although the Gwich’in Tribal Council is not a signatory to the UFA, Langlois said it wanted to get involved because it recognized the case would have an impact on all future collaborative processes between First Nations and governments.

“These modern treaties set out a lot of processes by which the government, as a result of claims for titles for Aboriginal rights, have said, ‘OK, reconciliation is going to mean we’re going to share some of the decision-making power the Crown says we have,’” Langlois said.

“Gwich’in Tribal Council’s point was, if that’s going to have any meaning, and you’re going to do that through this collaborative decision-making process … every party going forward for the other planning regions will have to pay attention to this, and really, what I think it’s going to mean is, it’s going to tell First Nations and the Crown, ‘You need to be participating in details and saying your piece when you’re supposed to.’”

Speaking to reporters Friday, Premier Sandy Silver said the government intends to implement something resembling the original final plan. He said there could be “minor tweaks” to that plan but wouldn’t speculate on what those might be and added they would not come from the government.

Yukon NDP MLA Kate White said the decision was “fantastic” and spoke to the perseverance and resilience of Yukon First Nations as well as all Yukoners.

“It’s hugely valuable, and not just for Yukon… This sets out the expectations for other governments in Canada and First Nation communities and First Nation governments,” she said in a phone interview.

“I’m super excited… Facebook showed me a picture from five years ago on Monday, and it was us, a huge group, hundreds of people at the Gold Rush Inn talking about protecting the Peel and how we wouldn’t accept the government’s desire to re-write it. It’s awesome.”

Not everyone was pleased with the decision. In a news release, the Yukon Chamber of Mines said it was concerned with the amount of land that has been put off limits to development.

With files from Ashley Joannou

Contact Jackie Hong at jackie.hong@yukon-news.com

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