The Yukon government has lost the legal battle over the Peel watershed, and is now forced to accept maximum wilderness protection for the vast and remote region.
Justice Ron Veale of the Yukon Supreme Court released a 92-page decision this morning which criticizes the government’s conduct during the land use planning exercise, and quashes the land use plan adopted by the government last January.
Veale ordered the government to return to the planning process and the regional planning commission at the point where the government went off the rails, and failed to fulfill its duty to be forthright and open.
The government, however, will not be allowed to revisit the amount of land designated for wilderness protection in the commission’s final recommendation.
Nor will it be able to revisit tight restrictions for road and rail access into the watershed, says the decision.
Shortly after the government unveiled its own land use plan, a joint lawsuit was filed by the Tr’ondek Hwech’in of Dawson City, the First Nation of Na-cho Nyak Dun in Mayo, the Yukon Conservation Society and the Canadian Parks and Wilderness Society-Yukon.
The parties argued the government failed to live up to the spirit and intent of the aboriginal land claim agreements which provide the ground rules for regional land use planning.
The government, at the end of the day, essentially developed its own land use plan without any consultation, the parties argued.
A four-day trial was held in July, and another day was scheduled in October.
Veale concludes the Yukon government was wrong to apply a narrow interpretation of a clause in the land claim agreements that allows it to approve, reject or modify land use plans produced by regional planning commissions.
The government did not fulfill its obligation to behave honourably in its involvement with the land use planning process, the judge writes.
Veale says in these days of modern treaties and reconciliation, governments have an obligation to deal honourably with First Nations, and must give modern treaties liberal interpretation.
“The key principle is that modern treaties must be interpreted in a manner that fosters a positive long-term relationship between First Nations and Government of Yukon as well as between aboriginal and non-aboriginal communities,” writes Veale.
“In this context, the Government of Yukon’s adoption of a plain language reading of s. 18.104.22.168 was, in my view, an untenable interpretation....”
The government’s conduct usurped the role of the planning commission, he says.
The government maintained all along the plain and straightforward language of the agreements gave it the authority to approve, reject or modify land use recommendations affecting territorial Crown land.
Veale, however, found the obligation to the land use planning process goes much deeper.
A statement issued late this morning by the Yukon government indicates it will be reviewing the decision before deciding what it will do.
Debate over the land use plan for the Peel watershed has been emotional and divisive from the very day in 2009, when the Peel planning commission delivered its first three land use options for public consideration.
The commission in July 2011 delivered its final recommendation calling for 80-per-cent wilderness protection across the 68,042 square kilometres, with very little or no road access.
While the recommendation was embraced by the First Nations and environmental community, the mining and economic development sectors lashed out against it.
Prior to the commission issuing its final recommendation, the Yukon government had asked the commissioners to reconsider five specific concerns raised by the government.
In general terms, it asked the commission to give more consideration to resource development, to achieve more balance.
And it asked the commission to develop options for access. It also put forward three other requests, which dealt largely with administration of the final recommended land use plan.
The commission implemented three administrative requests. But it indicated the other two regarding balance and access were too general with no specifics, and would have meant going back to square one in the planning process.
After the Yukon Party was successfully re-elected in the fall of 2011, the government developed its own land use plan which was substantially different than the commission’s plan.
After conducting community consultations, the government officially adopted its own plan last January, prompting the legal action.
In his decision, Veale threw out the government’s land use plan.
He ordered the government to return to the point in the process where it asked the planning commission to reconsider the five key areas of concern.
But Veale said the government will not be allowed to revisit its concern about balance and the amount of land for wilderness protection. Nor will it be able to revisit the restrictions on access, says the decision.
Veale found the government’s request to the commission to look at balance and access was far too general, and that there was nothing specific for the commission to digest or consider.
It was incumbent upon the government to be specific when it asked the commission to revisit balance and access in February 2011, but it wasn’t, Veale writes.
He says the government cannot be allowed now to ask the commission to go back and open up the entire planning process to have another look at balance and access.
Any desire by the government to approve, reject or modify the final land use plan will now be restricted to the other three administrative requests the government put forward in February 2011, which have already been addressed, says Veale’s decision.
The judge says the government will also be prohibited now from putting forward its own land use plan for the planning commission to consider.
The government, writes Veale, had the opportunity to work collaboratively with the planning commission, but didn’t.
“However, it instead took over two years to pursue this flawed process, which betrayed the spirit of the Final Agreements and was criticized by both the public and by the Land Use Planning Council,” writes Veale.
“In my view, it would be inappropriate to give the government the chance to now put its January 2014 plan to the commission.”
Some accuse the pro-development Yukon Party government of playing politics with the Peel planning process.
They accuse the Yukon Party of not being upfront with its vision for the Peel watershed until the last minute because it did not want to jeopardize its chances of re-election in October 2011.
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