Photo by Whitehorse Star
Chief Simon Mervyn and Margaret Rosling
Photo by Whitehorse Star
Chief Simon Mervyn and Margaret Rosling
Allowing the Yukon Court of Appeal decision to stand in the Peel land use case could create huge and harmful uncertainty, it was said Tuesday.
The coalition of First Nations and environmental groups involved in the legal action against the Yukon government announced it will ask the Supreme Court of Canada to hear an appeal of the Court of Appeal decision.
Even if next year’s territorial election sees the government switch to the NDP or Liberals, parties which support wilderness protection of the Peel, there’s still a need to challenge the decision, coalition representatives said Tuesday.
They suggested if the Court of Appeal decision is allowed to stand, it will muddy the waters of regional land use planning forever more.
Instead of the parties coming to the table with firm positions to discuss and negotiate, the door would be wide open for anybody to change their mind at any point and decide they want to start over, the representatives suggested.
They said a regional planning exercise is exhaustive to begin with.
Allowing one party to suddenly return to step one in the exercise after all parties thought they moved on to step three would undermine the intent of the planning process set out in the aboriginal land claim agreements, they said.
That’s exactly what could happen if the Yukon Court of Appeal decision is allowed to stand, they added.
Yukoners might become disinterested and distrustful of a process that may appear to be less than sincere or substantial, they said.
They suggested the planning exercise needs to be undertaken with commitment and certainty, but the Court of Appeal decision does not entrench commitment and certainty.
“The Court of Appeal got it wrong,” said Vancouver lawyer Margaret Rosling of Aldridge and Rosling, the firm representing the coalition with renowned aboriginal rights lawyer Thomas Berger as lead counsel.
“The ability for a do-over works to the advantage of the Yukon government and the great disadvantage of the First Nations and Yukoners.”
The government was solely to blame for the failure of the Peel land use planning exercise, yet it is the government that comes out ahead as result of the Court of Appeal decision, they said.
Rosling said the coalition will be asking the Supreme Court of Canada to set aside the Court of Appeal decision in favour of the original order by Justice Ron Veale of the Yukon Supreme Court. Veale ordered the government to adopt the land use plan recommended by the planning commission.
Representing the coalition at Tuesday’s announcement were Chief Roberta Joseph of the Tr’ondek Hwech’in, Chief Simon Mervyn of the First Nation of Nacho Nyak Dun, Christina Macdonald of the Yukon Conservation Society and Jill Pangman of the Canadian Parks and Wilderness Society.
Macdonald said there will come a time when the coalition will openly disclose how much the lawsuit is costing, and where exactly the money is coming from, but Tuesday was not that time.
Chief Mervyn said it’s nice to have the partnership in the lawsuit, but he insisted that Nacho Nyak Dun would have gone alone and footed the bill itself if it had come to that.
Both Mervyn and Chief Joseph said the lawsuit goes way beyond the future for the Peel watershed. It goes to protecting the very spirit and intent of the territory’s aboriginal land claim settlements, they said.
Premier Darrell Pasloski issued a statement Tuesday indicating the government is disappointed with the coalition’s decision to ask the highest court to hear an appeal.
The statement, however, does not say if the government will oppose the application.
Cabinet spokesman Dan Macdonald said yesterday the government has to first see the coalition’s request for leave to appeal before determining how to respond.
The high court agrees to hear between 10 and 15 per cent of the cases it’s asked to take on.
The Vancouver lawyer said the coalition will be filing its request with the court before Christmas.
At the initial trial, Justice Veale found the government did not participate in the Peel planning exercise in good faith; that its participation was less than honourable.
Instead of being upfront and forthright with its position on the Peel, the government was cryptic and vague, and didn’t lay its cards on the table until the last minute, Veale found.
He found the government relied on the provision in the land claim agreements that allows the owner of the land to accept, reject or alter any recommendation coming from the regional planning commission, as though it was an ace up the sleeve.
But the judge ruled the government should not be allowed to play the ace if it didn’t play fair throughout the entire planning exercise.
Instead, Veale ordered the government to adopt the land use plan recommended by the six-member planning commission which called for wilderness protection over 80 per cent of the Peel region with very restricted road access.
The Yukon Court of Appeal agreed with Veale’s finding of dishonourable conduct but it set aside the order compelling the government to accept the plan recommended by the commission.
Forcing the government to accept a land use plan it didn’t support was not in the spirit of reconciliation which is at the foundation of the land claim settlements, said the Court of Appeal.
Instead, it ordered the parties back to the point where the government drove the process off the tracks by not participating openly and honourably.
Representatives of the coalition suggested the Court of Appeal decision was indeed a victory for the government, as it gives the government a chance to do it all over again.
And if the government is upfront and honourable, if it follows the planning process as it should, then at the end of the day it will be free to invoke the clause that allows it to accept, reject or alter recommendations from the planning commission, they said.
The coalition representatives insisted the government should not be allowed to benefit from its dishonourable conduct, and its failures.
From the outset of the public debate over the future of the Peel back in 2009, the Yukon government said consistently the land use plan needed to provide a balance between wilderness protection and economic development opportunities – mining.
But the government never spelled out what it meant by balance. It never put forward any options, it never said it wanted 50 per cent wilderness protection and 50 per cent for development or 70-30, 40-60, or any number.
Only after it rejected the planning commission’s final recommendation did the government deliver and adopt its own land plan that was largely in support of development with provisions for road access throughout the region.
The First Nations, on the other hand, were clear from the start that they wanted the entire Peel watershed protected for its wilderness values and withdrawn from any future development.
They eventually reduced their position to 80-per-cent protection, suggesting it was meant to be a show faith for the Yukon government.
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