Yukon government files its Peel arguments with the Supreme Court of Canada

The First Nations fighting the government over the Peel are confident the area will end up being protected the way the original commission intended, even if the current government doesn’t come right out and say so in its latest court documents.

The First Nations fighting the government over the Peel are confident the area will end up being protected the way the original commission intended, even if the current government doesn’t come right out and say so in its latest court documents.

The Liberal government filed its arguments with the Supreme Court of Canada on Jan. 19. The case involving the future of the Peel watershed will be heard by Canada’s top court on March 22.

Justice Minister Tracy-Anne McPhee raised some eyebrows at a press conference yesterday when she said, “It’s not open to us at this point in the process to accept the final recommended plan.”

The Liberals ran on an election promise to accept the final report of the Peel watershed planning commission.

That’s the plan that would protect 80 per cent of the wilderness area, which is about the size of New Brunswick, from new staking or development.

Premier Sandy Silver said the government needs to let the legal process finish. Then the government still intends to follow through on its promise, provided no legal roadblocks appear in the court’s decision, he told the News after the press conference.

“If we have the ability to do that, nothing has changed, we still will do that. We believe that the plan is a balanced plan, we believe the democratic process was adhered to up to and including a certain stage.”

The Peel planning commission spent years coming up with a recommended plan. At the end of 2011 it recommended 80 per cent of the region be protected from new staking or development.

When the Yukon Party government released its own plan for the region it looked nothing like what the commission had recommended, nearly reversing the percentage of protected land.

While much of the public face of the case has been about protecting the wilderness, from a legal perspective the Peel case is actually about the interpretation of agreements between the Yukon government and First Nations.

The Umbrella Final Agreement lays out how land use planning is supposed to be managed.

Every level of court has concluded that the Yukon government broke the rules when it came out with a plan that was so dramatically different from what was recommended.

That question of when the process went off the rails is what the Supreme Court of Canada will be grappling with.

First Nations and conservation groups agree with a Yukon Supreme Court decision that said the government could go back and try again, but could only alter relatively insignificant parts of the original recommended plan.

Despite promising a different result once the case is over, when the Liberal government’s lawyers stand up in front of the judges, their legal argument will have key points in common with their predecessor’s.

The government’s position remains that the process should be sent back to an early stage where more modifications are technically possible.

“About the only significant change appears to be that they’ve changed one of the three lawyers from the Outside legal firm,” Yukon Party MLA Brad Cathers said.

Cathers was quick to jump on Silver for criticizing the government’s position when the Liberals were in opposition and then turning around and arguing that position as government.

“They filed a legal argument that is virtually identical in every detail to what the Yukon (Party) government had submitted.”

There’s nothing that requires the government to make the same arguments to the Supreme Court of Canada that it did in lower courts. But both the First Nations and the conservation groups say the Liberals’ arguments are essentially what they expected.

Chris Rider, the executive director for the Yukon chapter of the Canadian Parks and Wilderness Society, said he would have been shocked had the government written in its legal documents that it wanted to implement the final recommended plan.

“We’re not surprised and we feel like this is a great opportunity to have the argument robustly tested at the Supreme Court of Canada,” he said.

First Nations have said even with a new government it is important that the court hear the case because the decision will impact future land use planning.

The Liberals also say they’re looking for clarity.

When all is said and done, the expectation is that the Liberals will follow through on their election promise to implement the original final plan, said Chief Roberta Joseph of the Tr’ondek Hwech’in First Nation.

“Whatever point that it goes back to, we would have to hold the government accountable to their election promise,” she said.

“I feel confident, and we feel confident, that the new government that’s been elected will uphold their promise.”

Silver said his government is different from the previous Yukon Party government because the Liberals don’t have their own plan waiting in the wings to replace the commission’s recommendations.

The Supreme Court of Canada is going to decide how far back the process gets pushed, he said. “Then … our stance will not change. We wanted to and we still want to implement that original plan.”

Contact Ashley Joannou at ashleyj@yukon-news.com

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