Yukon North Of Ordinary

News archive for January 27, 2014

First Nation chiefs, Berger address press conference

A law suit challenging the Yukon government’s Peel land use plan will be filed in Yukon Supreme Court this afternoon.

By Ainslie Cruickshank on January 27, 2014 at 3:16 pm

photo

Photo by Whitehorse Star

PEEL SUIT FILED TODAY – Renowned aboriginal rights lawyer Thomas Berger will represent two Yukon First Nations and two local environmental organizations in a legal challenge of the government Peel land use plan.

A law suit challenging the Yukon government’s Peel land use plan will be filed in Yukon Supreme Court this afternoon.

Thomas Berger, a highly-regarded aboriginal rights lawyer, is representing two Yukon First Nations and two local environmental organizations in the suit against the government.

“It’s a lawsuit that nobody wanted to bring but the government of Yukon has forced these plaintiffs, seated here with me, to go to court not only in defense of First Nations’ rights and environmental values in Yukon but also to uphold principles entrenched in the constitution,” Berger said today at a press conference held in Vancouver to officially announce the suit.

Berger was joined by Tr’ondëk Hwëch’in Chief Eddie Taylor, Na-cho Nyak Dun Chief Ed Champion, the executive directors of the Yukon Conservation Society and the Yukon Chapter of the Canadian Parks and Wilderness Society, Karen Baltgailis and Gill Cracknell and lawyer Margaret Rosling.

The land use planning process outlined by the 1993 Umbrella Final Agreement, to which 11 Yukon First Nations, the Yukon government and the federal government are signatories, forms the basis of the claim.

The UFA is part of the “new constitutional settlement” that formed the basis of land use planning in the territory, Berger said.

“This case represents a profound test of that constitutional settlement.”

“Land use planning is not something that the government of Yukon can decide on its own,” he continued, going on to argue that the territorial governments in northern Canada do not have the absolute authority of provinces over land use planning.

“The government of Yukon is constrained by the constitutional settlement of 1993. It cannot say we were elected so we can do whatever we want.

“Under the Umbrella Final Agreement in each region of the Yukon it is to be done by a land use planning commission in consultation with First Nations and affected communities,” Berger continued.

In 2009 when the Peel commission put forward a plan recommending 80 per cent protection for the Peel, the government had the option to accept, reject, or modify it.

The government opted to put forward modifications, some of which the commission accepted.

“That was a choice binding on the government of Yukon,” Berger said.

“These plaintiffs will be asking the Supreme Court of the Yukon to declare that the Peel commission’s work cannot be discarded and that the final recommended plan must be upheld.”

Under the Yukon government’s Peel land use plan, released Tuesday, staking mineral claims can occur in 71 per cent of the Peel watershed. It precludes 29 per cent of the area from new staking but respects claims already in existence.

The final recommended plan put forward by the Peel Land Use Planning Commission in comparison called for 55 per cent of the region to be permanently protected, 25 per cent protected for an interim period of time, and 20 per cent opened to new staking and resource development.

Segments of the Yukon and Northwest Territories’ public are also finding ways to pressure the government to implement the final recommended plan.

A rally protesting the government’s Peel plan is scheduled for Wednesday at noon outside the Yukon legislature. Concurrent events are planned for Dawson City and Haines Junction in the Yukon and Fort McPherson, Aklavik and Inuvik.

Meanwhile, an online petition initiated Sunday evening supporting protection of the Peel watershed had gained more than 1,700 signatures by 12:30 this afternoon.

By Ainslie Cruickshank
Star Reporter

CommentsAdd a comment

Wolfe

Jan 27, 2014 at 5:31 pm

The best course of action for the YG at this time would be to reverse their decision, this is going to get very expensive.  I am pretty sure anyone in their right mind can see that this is a lost cause for the YG.

Frank

Jan 27, 2014 at 8:10 pm

I agree with Wolfe.

It will not only be expensive but viewed as being dishonest and disrespectful and not honouring the Umbrella Final Agreement and the Constitution.

If the decision is revered it may be possible for the Yukon Party to gain some credibility. When would the Premier and a few ministers ever take the trouble to address a large environmental forum- likely never but they are happy to attend the Geosciences Forum and the Mineral Roundup.

robert

Jan 28, 2014 at 7:10 am

Wolfe is absolutely correct, this will be an expensive legal battle, which is exactly why it will go to court.  This is what happens when governments are taken over by corporate interests; they outsource the cost of litigating their exploitative deregulatory wish lists onto the public purse.  Win or lose, it won’t cost the mining companies a dime.  The money they spent to elect their candidates will appear to be a bargain.  Trouble is, if they had told the truth about their intentions, would the Yukon Party have won?

Non First Nation but life time Yukoner

Jan 28, 2014 at 10:31 am

I am disappointed and frustrated with our current Premier, his ministers and deputy’s who despite many opportunities have ignored public interest in more protection and longer term thinking for the Peel Watershed. I had voted for the Conservative Government, and now I can assure you that I will attend Party meetings to express my displeasure and to inform them that the lack of leadership and vision is not what I signed up for.

Further, I have to say, Thank You to Chief Taylor and Champion for being true leaders, for putting short term economic gain for your community aside for a longer term protection and quite possibly longer term more sustainable economic gain in the future.

As a non-first nation person, I think that Yukoners should start a campaign that vocally, visibly and firmly shows our support for these courageous First Nations that are spending their energy and money to protect an important area for Yukoners, Canada and for the world for that matter. All those frustrated people out there that feel at a loss of what to do, I think standing up and showing your support for the two First Nations with a vision is a great start…

Community Gal

Jan 28, 2014 at 4:53 pm

The Ross River Band, after a lengthy legal battle, won the right to have all staking banned on their territory, thus denying their future generations job opportunities and trade apprenticeship programs based on the remote possibility that a mining company might leave a mess, contrary to loads of legislation that would prevent them from doing so.
Then the Ross River Band was broke and had to lay off all their staff. It’s a shame they did not put their money and resources into such things as child care, sports, community feasts, educational programs, job creation, welfare assistance…
Folks, you have limited funds and either you keep a balance and distribute these funds wisely to address and enhance social and community issues or you put all your funds into a legal fund and spend it. You won the legal battle but at what cost?
Sad to see the Mayo and Dawson Bands taking the same misguided steps which will be to the detriment of their community and its members and will have long-term consequences on the next generation of youth who want jobs and careers.
It does not even make sense to sue for a Plan. No harm has been done, it is just a plan that may or may not involve a future mine.

north of 60

Jan 28, 2014 at 9:37 pm

The YP “Bozos in Blue” just bit off way more than they can chew. 
They can either withdraw their plan and accept the land use planning commission recommendations with minor ‘face saving’ changes,
or they can face a battle in the courts they can never win while they slide down the drain into political insignificance to mark the end of a corrupt crony-capitalist era.

Mayoite

Jan 29, 2014 at 10:27 am

Mayo is showing their support today starting at the Administration building and walking down town. WAY TO GO MAYOITES!!

Josey Wales

Jan 29, 2014 at 3:53 pm

And so the lucrative tactic of “lawfare” is going to line many more pockets…of yup…lawyers.
I think we here in THE Yukon should raise/set the bar with…making the entire territory a park.
Think of it folks, call the elitists on their wailing and trump their bleats with a 100% parkification of Canada’s Yukon.
Jobs? Who needs those?
It would be sweet as the exodus back to Vancouver and Toronto could start with our many nimby’s and their minions, roll up the streets and highways as they won’t be required anymore.
Raze all the communities, yup ALL of them, even those allegedly belonging to the cultural elites…and what may be left?
Well we can run it on love and good intentions.
I went and checked out today’s “protest”, seen lots of cars there and in rotary with…“save the Peel” PVC decals…new age hippies warming up in their (gasp) oil fueled cars…running I guess on love as oil is evil to the crew of lobbyists?

Look forward to the unbiased journalism (so sooooo sarc) covering this latest wailing.
If we all went home? At least the critters would be happy.
....yes all of us back home, some can take the land bridge back to Mongolia…the rest go where ever they call(ed) home.
Ontario would get back thousands more tax payers to fund that have not province.
Can you tell I am sick of the Peel debate and the uber polarization of our fine citizens?

Shenya

Jan 29, 2014 at 4:45 pm

The Demonstration at home was Great and the message is clear.  As baby Silas sign says, “?Respect the Future”.
To Community gal - for the record, we are not “band”.  We are Tr’ondek Hwech’in Government.
For all who are supporting the protection of Peel Watershed.  Thank you.

Denise

Jan 29, 2014 at 6:29 pm

I am very proud of the Na-Cho Nyak Dun and Tondek Hwech’in Governments. Keep up the good work and continue on with the long term planning. There are many other areas in the Territory to develop and sone places need to be protected from humans. One day in the not too distant future, Canadians and the world will thank you for saving this special place. People who do not know any better, their offspring will be thankful when they need a drink of water.. My god, cities pretty much drink filtered poop…  food for thought…

ralpH

Jan 29, 2014 at 7:10 pm

i fully agree that this is a tragedy. They simply should have not made any decision at all. At least the peel would have been in limbo, but left with no development. But what worries me most about this whole episode is who governs. The government or public? We may not like their decision but they govern. Kick them out at election time. Berger and his group should not be heard by the court in my opinion. Just a waste of money, and will be told that they had every right to their decision.

Dorothy Drake

Jan 29, 2014 at 7:13 pm

As a long time Yukoner I have one question for the First Nations.  If this Peel River area was so important then why was this not negotiated when you settled your land claims?  I think it is just another land grab and if we don’t look out we will be a great big park.  Look out the Liard Basin is next.  How much of Yukon are we asking to be protected.  Protected from what? We have very strict environmental laws in place.  I’m sorry but we need a balanced economy to survive. Yes tourism is important but really can we survive on four to five months of traffic.  We cannot all have YG and Federal Government jobs with huge pensions when you retire to the south.  So yes let the courts decide once and for all. Another question is it the elected persons that make decisions or it the persons that bark the loudest.  If your not satisfied then let’s see your names on the ballot next election.

Abazaba

Jan 29, 2014 at 7:52 pm

The reality of all this is that the Yukon Party was permitted by the Umbrella Final Agreement to reject the final recommendation.  Even giving the Umbrella Final Agreement a liberal interpretation, and considering the words of the agreement “read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (as Drieger’s principle of statutory interpretation states), there is nothing that precludes the Yukon Government from rejecting the final recommendation put forward by the regional planning committee with regard to non-settlement (Crown) Land.  One cannot ignore the language in chapter 11.6.3.2 which expressly gives the government this right.  The natives have a concurrent right to accept, modify, or reject any part of the recommended plan with regards to their settlement land, as outlined in chapter 11.6.5 (including subs 1 and 2).  There is no legal obligation for either party to agree with and implement the final recommended plan.

Jane Smith

Jan 29, 2014 at 11:39 pm

The Yukon Party has so badly mismanaged issues surrounding the Peel watershed that it was inevitable they would be sued by someone. It says a lot about the Yukon Party that they decided they would rather be sued by First Nations than mining companies.

The Yukon Party has turned their back on Yukoners.

RossRiver

Jan 29, 2014 at 11:51 pm

@Community Gal you really need to pay attention a bit more. Ross River hasn’t banned staking. It’s called consult before staking! And hello RRDC hasn’t laid anyone off. You’re confusing RRDC with Liard FN.

Jack Malone

Jan 30, 2014 at 4:59 am

Lots of uninformed comments.  Ross River Dena Band did not lay off its workers - it was the Liard First Nation. 
Relax Josey Wales: your latest lame attempt at satire is weak.  The Tr’ondek Hwech’in and Nacho Nyak Dun are not against mining, but they are against mining in the pristine area of the Peel.  In fact, both have entered into exploration and mining agreements with various mining companies, including mining activities on their settlement lands, over the past five years.  The Peel is an important area that should be protected. 
@community girl: this legal action is not just about suing for a land use plan, it is also about ensuring that the provisions of the UFA are respected and followed by YG.

Fluke

Jan 30, 2014 at 8:42 am

The problem with everyones argument is that the Yukon Government doesn’t expect 29% to be park. What they did was expect a legal battle, so they set the bar at 29% percent expecting to go to court so that the judge says meet in the middle around 50 percent and then we all feel happy that we got 50% covered under our own terms, forgetting that we actually wanted 80% protected. Currie Dixon sure turned into a puppet fast, hey? I had great expectations for him when he started out but quickly turned into a self absorbed puppets like the rest of the YP.

north of 60

Jan 30, 2014 at 2:53 pm

Resource development already has access to most of the Yukon.  Restricting 80% of the Peel will not curtail economic development.  Mining has to stop being greedy and selfish, they can’t have all the Yukon to exploit.

Wolfe

Jan 31, 2014 at 9:45 am

They are all puppets.  Did you hear Darius Elias on the radio, he attended the protest and was interviewed by a CBC reporter.  That had to be the interview of the year.  His mother is one of the most vocal advocates for protection of FN lands and habitat protection.  And now her son is on the other side of the fence afraid of his own shadow.  Way to go Darius-standing up for your people, NOT!

Abazaba

Jan 31, 2014 at 5:39 pm

@Jack Malone
If the Nacho Nyak Dun are completely against mining in such a pristine area as you say, then why did they support the plan recently proposed (~2002) by Promithian Mining which entailed mining the Crest Iron deposit AND MILLING IT INTO STEEL IN A FACILITY IN THE REGION using the vast coal deposits contained therein? 
The whole deal here is that if the lands of the Peel were so important to each respective FN then each FN government should have opted to claim settlement land within the region in accordance with their final agreements.  Instead they focused their land acquisition around Keno and Mayo.  One cannot sign on to a final agreement in which settlement lands and Crown lands are clearly delineated giving the Crown and each respective FN government contractually accepted jurisdictional powers over land management and then attempt to turn around and cry foul when one party exercises its powers over land which was contractually accepted as their jurisdiction.  Simply, if the FN governments wanted control over the management of region then it should have been the focus of their final agreement land claims.

ralpH

Feb 1, 2014 at 12:08 pm

@Community Gal it should be pointed out Ross River won their battle on the fact that the government did not do all the consultations necessary under the UFA. In this case, the YP used the Pell Commission for this work. I do not think that dog will hunt in this court battle and that is the tragedy YP’s hidden agenda had them use well intentioned people to get what they wanted. Just a charade from the beginning.

jack Malone

Feb 2, 2014 at 1:30 am

@Abazaba.  Your comment is so uninformed, I don’t know where to start.  Firstly, the UFA is not simply about dividing lands between Yukon First Nations and public government.  Yukon First Nations accepted a small amount of land under their treaties on the basis that they would be involved in planning land use on non-settlement lands under the UFA, reviewing projects under the YESAA, etc.
The Yukon government cannot simply do whatever it wants on non-settlement lands.  It must comply with the processes of the UFA.  Secondly, the NND is completely opposed to mining in the pristine area of the Peel.  For instance, it has a mining agreement with a company to support its mining but the company agreed not to undertake any activities in the Peel.  Thirdly, it is false to state that the NND “focused their land acquisition around Keno and Mayo”.  Check the maps, they have lands throughout their traditional territory.  Lastly, I would not count on NND’s support for the Promithian project.

Abazaba

Feb 2, 2014 at 3:25 pm

@jack malone
I would argue that I am more of a realist as opposed to uninformed as you say.  In addition, I am not reading my own emotions into the relevant legislation as many appear to be doing.  I reiterate that in 2002 the NND Development Corporation was involved, as one of 3 interested parties, in commissioning an evaluation of Promithian Mining’s plan to mine the Crest Deposit and the Deslaurier Coal Deposit (both within the Peel) for the purpose of manufacturing steel at a mill which would be constructed nearby.  While the story may now be they oppose development in the region (as it accords with the tune of Protect the Peel which is now being played) that was not the case in 2002.  The Peel is regarded by them now as a sacred region with great cultural value.  My problem with this is at what time did this region become so sacred and so inviolable???  Obviously this was not the case in 2002.  I don’t care that they now oppose development (as they are free to change their minds), just don’t claim that they have always held the region in such high regard when they have actively participated in a plan which contradicts this claim.

With regards to the UFA I understand it is more than merely dividing land, however, YESAA etc do not factor into the equation at this stage.  Treatment of settlement and non-settlement land is a significant issue in chapter 11.4.0 and this cannot be ignored.  The government has primary jurisdiction over non settlement land and is explicitly given the power to “approve, reject or modify that part of the plan recommended under 11.6.3.1 [the final recommended plan] applying on Non-Settlement Land”.  The natives are given the same power over settlement land in chapter 11.6.5.2.  The UFA generally recognizes the powers of each respective government (territorial and FN) over their land interests, and this is cannot be ignored.  This power to accept, reject, or modify the recommended final plan is qualified only by a duty for each party to consult with the other when making this decision.  A duty to consult however, does not mean a duty to agree.  If either party could undermine the decision making power of the other with regard to the final recommendation’s acceptance, rejection or modification, this would lead to absurdity (which MUST be avoided in any interpretation of statute).  Why would the document discuss each party’s power to accept reject, or modify the plan if the other could unilaterally undermine it?  There would be no reason to have such explicitly worded powers.  Additionally, why would there be separate treatment of settlement and non settlement land at all in the UFA if the FN governments may exert the same or similar power over non-settlement land as they do on settlement land?
While the management of land in the Yukon by the YTG(settlement land or otherwise) must take into consideration the extent to which FN interests will be affected, I do not think the UFA contemplated non-settlement land management decisions presumptively being subject to FN acceptance prior to implementation.

And yes, lands have been claimed throughout their traditional territory but there is a relative absence of settlement land within the Peel when compared to the region around Keno and Mayo.  It should be said that in determining where settlement land should be established, native groups employed geologists as consultants, a fact from which it can be inferred they hoped to establish claims on lands with future economic value (Hence claiming much of the region surrounding the significant mineralization of Keno).  This is germane to the question of why, if the lands of the Peel are so important and sacred, did the FN not focus land acquisition in the region but instead chose, arguably, more economically strategic areas?

I am sure you have read the statement of claim that has been made publicly available.  This is a very tenuous case they are bringing and it appears it is purely political in nature as it names CPAWS, YCS, Ms. Baltgailis and Mr. Cracknell as complainants when they really have no legal status to bring the claim and could be struck from it upon application by YTG.  By naming themselves they will be exposed to potentially having to cover the YTG’s cost in fighting this battle when it is all over.  If the YTG does not have them struck then I presume this exposure of the complainants to damages is the reason. 
There are implications for bringing a weak case for the FN as well as it will set a precedent which may preclude success in more deserving future complaints.  I recall a case from Ontario (the name escapes me at the moment) when a very weak case was lost for a native community asserting aboriginal title and it essentially shut the door in Ontario to other FNs successfully bringing similar but more valid cases.

Abazaba

Feb 2, 2014 at 3:46 pm

@ jack Malone
I forgot to mention that there were other influences at play when the FNs accepted “a small amount of land” as you state.  Have a look at BC cases (Delgamuukw, Williams, etc)to see how difficult it is to establish aboriginal title.  This is especially true for nomadic people as in the Yukon.  The FN in their final agreements received definite regions of land which they themselves chose and which carried rights above and beyond those conferred by Aboriginal Title. On top of this they also received 10s of millions of dollars.  This was the bulk of the compromise.  If this was not done, the claim to land in question would be subject to court analysis of pre contact, regular use and occupation which would likely have lead to aboriginal title over a much more limited land base and the right to future use limited to activities that don’t undermine the aboriginal connection to the land.  As well, the large sums of money would not have been present.  The natives of the Yukon have received a much better deal under the final agreement than they would have merely through legally asserting aboriginal title and rights under s. 35 as the BC natives have had to do.

Abazaba

Feb 2, 2014 at 4:20 pm

@jack Malone
I also take issue with you stating that my assertion that NND land acquisition was focused on the area around Mayo and Keno is “false”, as you pejoratively put it.  Looking at the map, the outer boundary of approximately 80%, likely more, of NND settlement land falls within 70km of either Keno or Mayo.  The norther 40% (approx. 94 km X 230km) of their traditional territory and easternmost 25% is absent any class A settlement land and has a handful of tiny parcels of class B settlement land embodying site specific rights.  My assertion that the bulk of their settlement land is located around Keno and Mayo is a very apparent fact for anyone who has actually looked at the map, as you have condescendingly directed me to do.

Add a comment

In order to encourage thoughtful and responsible discussion, comments will not be visible until a moderator approves them. Please add comments judiciously and refrain from maligning any individual or institution. Read about our user comment and privacy policies.

Your full name and email address are required before your comment will be posted.

Commenting is not available in this section entry.

Comment preview