Yukon could see legal trouble over Peel

Numbers exposed by the News this week show that many Yukoners feel that the government is disrespecting agreements with First Nations regarding the Peel watershed land use plan.

Numbers exposed by the News this week show that many Yukoners feel that the government is disrespecting agreements with First Nations regarding the Peel watershed land use plan.

The numbers come from drafts of the What We Heard document prepared by a consultant on the most recent round of public consultations on the Peel.

They were deleted from the report released to the public.

Either 7,105 or 7,958 responses urged the government to respect the Umbrella Final Agreement, depending on which draft of the numbers you look at.

That agreement is a treaty between the government and the 11 Yukon First Nations with signed land claims. It lays out the process for developing and implementing land use plans across the territory.

Critics of the government say that, by coming up with its own set of plans for the Peel after the work of the planning commission was complete, the government has run afoul of the treaty.

But the government insists it has met every obligation to First Nations under the agreement.

Environment Minister Currie Dixon recently told the News that the government has followed the Umbrella Final Agreement “to a tee.”

And, he may be right.

The Umbrella Final Agreement only requires that the government consult First Nations and affected communities before approving, rejecting or modifying the final plan recommended by the commission.

But following the agreement in a literal way won’t cut it, and the Yukon government should know better, said lawyer Bill Gallagher, an expert on resource battles with First Nations in Canada.

He pointed to the 2010 Supreme Court of Canada decision involving a land dispute between Yukon and the Little Salmon/Carmacks First Nation.

In the decision, the judge clearly spells out that the Yukon government must follow agreements with First Nations, but it must also meet common law obligations to consult and accommodate above and beyond what is spelled out in treaties.

And, it must do so in the spirit of co-operation and building relationships with First Nations.

“The treaty will not accomplish its purpose if it is interpreted by territorial officials in an ungenerous manner or as if it were an everyday commercial contract,” wrote Justice Ian Binnie. “The treaty is as much about building relationships as it is about the settlement of ancient grievances. The future is more important than the past. A canoeist who hopes to make progress faces forwards, not backwards.”

The government’s argument that their actions are appropriate because they have followed agreements word-for-word won’t stand up in court, said Gallagher.

“The Yukon has taken a very clinical approach in all of these court cases, where they tend to litigate stuff right on the line, and they don’t win it.”

The Umbrella Final Agreement isn’t the only relevant agreement to the government’s recent actions on the Peel.

In January 2011, Yukon and the four First Nations involved with the Peel plan signed a letter of understanding outlining how the parties would approve a plan in a timely way.

The letter indicates that the Yukon and First Nations would co-operatively consult the public on the final recommended plan.

Instead, the government designed and administered the public consultation without input from the First Nations.

In this case, the government has arguably run afoul of not only the co-operative spirit but also the literal word of the agreement.

The First Nations say they are ready for a legal fight over the Peel, if it comes to that.

“We’ve still got our guns loaded and ready to go,” said Simon Mervyn after the government revealed its modified plans for the Peel. Mervyn was chief of the First Nation of Nacho Nyak Dun and spokesman for the four affected First Nations at the time.

In the meantime, we wait.

The final round of consultation with First Nations is ongoing, despite a March 25, 2013 deadline set by the government.

There is no word on how those talks are progressing.

In a recent interview, Environment Minister Currie Dixon said he could not comment on how the discussions or going, or say when they might wrap up.

The affected First Nations did not respond to interview requests by press time.

Contact Jacqueline Ronson at

jronson@yukon-news.com

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