The Yukon government officially lost the Peel watershed land use case this morning in a unanimous decision by the Supreme Court of Canada.
The country’s high court agreed the government’s conduct in the planning process was unbecoming, and fell short of upholding the honour of the Crown.
It also agreed with the remedy set out by Justice Ron Veale of the Yukon Supreme Court, and disagreed with the Yukon Court of Appeal’s decision overturning Veale’s remedy.
Veale ruled the matter should be returned to the point in the process where the government receives the final land use plan recommended by the Peel planning commission, and then conducts a thorough round of consultation on that plan.
Veale’s decision returns the parties to the process where the Yukon government – after conducting that final round of consultation – can accept, reject or modify the final plan recommended by the commission.
This morning’s 39-page decision emphasizes, however, that modifications to the final plan have to be modifications, tweaks – not wholesale changes.
The ruling supports the position argued by the coalition of three Yukon First Nations and the two environmental organizations that appealed the Court of Appeal decision.
The final recommended plan calls for wilderness protection over 80 per cent of the 68,000 square kilometres, as well as no surface access through that 80 per cent.
The former Yukon Party government rejected the commission’s final land use plan, and substituted its own plan.
Both Veale and the Court of Appeal found the government did not have the authority to reject the commission’s plan at that point.
They found that the former Yukon Party regime did not have the authority to substitute its own plan, as it had failed to properly participate in the land use planning process.
The Supreme Court of Canada agreed.
“In this case, Yukon did not have the authority under s. 220.127.116.11 to make the changes that it made to the Final Recommended Plan,” writes Justice Andromache Karakatsanis on behalf of all nine Supreme Court judges.
“Yukon’s changes were neither partial nor minor.
“They were not based on modifications it had proposed earlier in the process, nor were they made in response to changing circumstances.
“Yukon’s changes to the Final Recommended Plan 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’s approval of its plan must therefore be quashed.”
The high court ruled the matter should be returned to the point outlined by Justice Veale. It also ordered the Yukon government to pay the legal costs of the other parties.
The territory’s Liberal government has already promised to accept the final land use plan recommended by the planning commission, the plan which is supported by the First Nations but strongly opposed by the mining sector.
Today’s decision was applauded by the chiefs of the three Yukon First Nations and two of the leaders of the environmental organizations that spearheaded the lawsuit against the Yukon government.
A press conference in Ottawa was hosted this morning by Chief Simon Mervyn of the First Nation Nacho Nyak Dün, Chief Roberta Joseph of the Tr’ondëk Hwëch’in, Chief Bruce Charlie of the Vuntut Gwitchin First Nation, Christina Macdonald of the Yukon Conservation Society and Chris Rider of the Canadian Parks and Wilderness Society.
The conference was live-streamed from Ottawa just over three hours after the decision was released at 9:45 Ottawa time (6:45 Yukon time).
Scores of people showed up to watch the live-stream at the Kwanlin Dün Cultural Centre.
They included Premier Sandy Silver and Dave Loeks, the former chair of the Peel River Planning Commission.
The chiefs took turns emphasizing that the importance of protecting the pristine wilderness of the Peel watershed has been upheld.
Chief Joseph told the audience the Peel is one of the last pristine regions in the Yukon.
It is a place where you can drink water from the river, a place where there is food on land, where her people use to the land to harvest food, she said.
The Peel, the chief emphasized, is their university, their hospital.
Chief Mervyn thanked the people of the Yukon for all their hard work making sure the Peel remained protected.
“To the trappers on the land, all the people on the land, we are on the path of environmental protection,” Mervyn said.
Lawyer Margaret Rosling, who represented the coalition alongside renowned aboriginal rights lawyer Thomas Berger, was also on hand for the press conference in Ottawa.
She described the decision as a message to the Yukon government that the land claim agreements must be honoured and respected.
“We are going to be working hard with the government to get on with it, and there is a very strong indication from this government they want to do just that,” Rosling said.
The Supreme Court of Canada did not, however, rule on a major outstanding question because it said it wasn’t necessary at this point.
It said it did not have to answer the question of whether the Yukon government ultimately retains the right at the very end of the process to accept, reject or modify the final recommended land use plan.
The matter is being referred back to the consultation step immediately prior to when the government must exercise its right to accept, reject of modify the final recommended plan, the high court pointed out.
“As well, it is premature to interpret the scope of Yukon’s authority to reject the Final Recommended Plan after it consults with the affected First Nations, and it is unnecessary to do so in order to resolve this appeal,” writes Justice Karakatsanis.
The First Nations had argued that giving the Yukon government the ability to reject a land use plan at the very end of the process, after years of work and negotiations, just doesn’t fit the spirit and intent of modern day treaties.
The territorial government, on the other hand, argued the provision to ultimately reject a land use plan was a negotiated provision of the land claim agreements, and must be allowed to stand.
Rosling said while the high court did not deal with the question, it remains the coalition’s position that the Yukon government cannot reject the plan at the end of the day, and simply walk away from years of planning and consultation.
Such a rejection would not be in keeping with the honour of the Crown that is infused in modern day treaties, she suggested.
Silver and Justice Minister Tracy-Anne McPhee held a press conference at noon today in Whitehorse to discuss the decision.
Both said they were elated with the decision.
“This is a victory for Yukon,” Silver said.
“I believe that when people look back at this moment, they will see this as the beginning of a new era for Yukon, one based on reconciliation.”
Silver said government officials will begin the consultation process on the final land use plan recommended by the planning commission as soon as possible. He mentioned he was already texting the chiefs in Ottawa.
The premier said he wants to see the Peel land use plan finalized before the government re-engages with the stalled land use planning exercise for the Dawson region, and before beginning land use planning in the other regions.
How long it will take to complete the next round of consultation and when Yukoners can expect to see an end to the Peel process, the premier couldn’t say.
He did emphasize the Supreme Court did provide direction about what is meant by modifications, that modifications are tweaks and not big changes.
How the government will address the interests of mining companies who have mineral claims inside the Peel watershed region and will be affected by the prohibition on road access is a matter that needs to be sorted out.
Today, the premier insisted, is a day to celebrate.
“Today we move forward, we move forward with clarity, and more importantly, we move forward together.”
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