Those who’ve led the legal battle over the Peel River watershed expressed optimism Sunday as they prepared to depart for the Supreme Court of Canada hearing in Ottawa.
“After years of defending the integrity of our final agreements and the Peel watershed planning process, we are only three days away from the final day in court,” Chief Roberta Joseph of the Tr’ondëk Hwëch’in told those attending a Peel send off. “The legal journey we have been in for the past three years is nearly over.”
Christina Macdonald of the Yukon Conservation Society told the audience gathered at the Kwanlin Dün Cultural Centre there were some 30 making the trip to be there for the hearing that begins Wednesday morning at 6:30 a.m. Yukon time.
The hearing is expected to take up to three hours.
All the parties – even the Yukon government – have accepted the findings of the two lower courts that the Yukon government failed to participate honourably in the Peel land use planning process, according to their written submissions to the high court.
What they don’t agree on is the remedy.
In the initial court case, Justice Ron Veale of the Yukon Supreme Court ruled that because of the Yukon government’s failure in its participation, it would have to largely accept the final land use plan recommended by the planning commission. The plan included 80 per cent wilderness protection across the 68,000 square kilometres with virtually no road or railway access, provisions the Yukon government was completely opposed to.
The Court of Appeal, on the other hand, ruled it would do no good to force the Yukon government to accept the final recommendation, as it would not promote the spirit of reconciliation the land claim agreements were designed to foster.
Instead, the appeal court ruled the matter should be sent back to the planning table to the point where the planning exercise went off the rails because of the Yukon government’s failure to provide a meaningful response to the plan recommended by the commission.
The Yukon government is supporting the Court of Appeal decision to return to the point in the planning process where it went off the rails.
It was because of their opposition to the appeal court’s decision that the First Nation of Nacho Nyak Dun, the Tr’ondëk Hwëch’in, the Vuntut Gwitchin First Nation, the Yukon Conservation Society and the Canadian Parks and Wilderness Society asked the Supreme Court of Canada to hear an appeal.
The appellants argue the Yukon government’s failure to participate honourably in the first go around should not be rewarded with a second chance. Allowing a “redo” could undermine future obligations set out in Yukon land claim agreements and other modern treaties right across Canada, they argue.
The Council of Yukon First Nations, the Gwich’in Tribal Council and the federal government were granted intervener status and will be given five minutes each to present their arguments, in addition to their written submissions to the court.
Statistics provided by the Supreme Court of Canada show that over the last five years, the court has taken an average of four to six months to issue its decision.
Liberal Premier Sandy Silver promised during the election campaign last fall that a Liberal government would honour the land use plan recommended by the planning commission that calls for 80 per cent wilderness protection with little surface access.
Also addressing Sunday’s audience were Chief Bruce Charlie of the Vuntut Gwitchin First Nation, Chief Simon Mervyn of the First Nation of Nacho Nyak Dun and Joanna Jack of the Canadian Parks and Wilderness Society.
The gathering heard how the Liberal government will be held to its promise.
In attendance Sunday were many who have stood as supporters of the Peel at rally after rally.
The afternoon send off also featured several local entertainers.
In Ottawa today, members of the Yukon delegation were scheduled to participate in a water ceremony performed by the grandmothers of the Kitigan Zibi Anishinabeg Band.
Following the hearing tomorrow morning, there will be a public reception in the afternoon followed by a private reception later in the evening to which Prime Minister Justin Trudeau has been invited.
On Thursday, members of the delegation and their lawyer Tom Berger will present the story of the Peel to an audience at Carleton University.
The chief of the Tr’ondëk Hwëch’in said the hearing over the future of the Peel will bring history to the territory.
It will determine how land use planning will be conducted in the Yukon with regard to the interpretation of the land claim agreements, Joseph said.
She told the audience the Tr’ondëk citizens told them to never stop fighting for protection of the Peel, to make sure the honour and intent of the final agreements was followed.
“It is a simple request,” the chief said. “And it is just a matter of respect and honour.”
In defence of its rejection of the land use plan recommended by the planning commission, the Yukon government relied on the clause that allowed it to approve, reject or modify the recommendation after all the public consultation had been completed.
But both the lower courts agreed the government’s less than honourable conduct happened long before that point, and therefore it was not entitled to use the approve, reject or modify provision at the end of the day.