The country’s top court is set to announce on Thursday morning whether it will hear an appeal brought by Yukon First Nations and conservation groups about the Peel watershed land use plan.
The case stems from the Yukon government’s decision to go against the final recommended land use plan for the watershed.
The 68,000-square kilometre area of Yukon wilderness is in the traditional territory of the First Nation of Nacho Nyak Dun, the Vuntut Gwitchin, the Tr’ondek Hwech’in and Gwich’in Tribal Council, based in the Northwest Territories.
In 2014, the government unveiled its final land use plan for the watershed that saw 71 per cent of it open for staking.
By comparison, the planning commission’s recommended plan, developed over years of consultation with First Nations and the government, called for only 20 per cent of the remote region to be open to development.
In December 2014, Yukon Supreme Court Justice Ron Veale quashed the government’s plan. The government, he ruled, couldn’t introduce changes to the final plan that hadn’t been discussed at any earlier stages of the process.
Last year, the Yukon Court of Appeal partially sided with Veale but ordered the government to go back to an earlier step of the consultation. That could give the Yukon government a chance to press ahead with its plans for the Peel, after conducting adequate consultation.
“Yukon undermined reconciliation by failing to honour the letter and spirit of its treaty obligations,” the court ruled.
The First Nations took issue with the court of appeal’s remedy and want it changed back to what Justice Veale ordered.
“It is essentially giving them another kick at the can,” said Jeff Langlois, lawyer for the Gwich’in Tribal Council, about the remedy.
“How does that advance reconciliation between the parties?”
The Gwich’in Tribal Council is the largest landowner in the Peel watershed.
It didn’t bring the legal action but got intervenor status, basically supporting the other First Nations’ case.
The appropriate remedy is to implement the final recommended plan, Langlois said.
Both Veale and the court of appeal ruled the government introduced changes to the plan without consulting First Nations.
If the Supreme Court of Canada refuses to hear the appeal, it would then be up to the Yukon government to release a new recommended land use plan.
It would have to consult with First Nations before issuing a final plan.
And even once the final recommended plan is adopted, there are ways it could be modified, Langlois noted.
“It’s not like it’s locked in for a million years,” he said.
“The final recommended plan has procedures to amend it.”
If the court decides to hear the case, it will take at least six months before a hearing can be scheduled, said Langlois.
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