Whether the coalition of First Nations and environmental organizations will appeal Wednesday’s decision on the Peel land use plan has not been decided.
Christina Macdonald of the Yukon Conservation Society said the ruling is still being reviewed by the society, the First Nation of Na-cho Nyak Dun, the Tr’ondek Hwech’in and the Canadian Parks and Wilderness Society.
“This process and how it is resolved will have enormous implications, of course for the Peel planning process, but also for all land use planning to follow,” Macdonald said. “So we are taking our time.”
The two First Nations and two environmental organizations joined forces to challenge the Yukon government’s decision to reject the land use plan recommended by the Peel planning commission and implement its own plan instead.
They won round one in the Yukon Supreme Court, but Wednesday’s decision by the three justices of the Yukon Court of Appeal was a mixed bag, the various parties acknowledge.
The high court agreed with the Justice Ron Veale’s finding that the Yukon government did not act honourably in its participation during the planning process for the Peel River watershed.
But it overturned Veale’s ruling that said because of the dishonourable conduct, the government must throw out its own land use plan and adopt the plan recommended by the commission.
Instead, the Court of Appeal ordered the parties back to planning table at the point where the government derailed the process.
Forcing the government to accept the commission’s recommended land use plan does not serve the public interest, the appeal court ruled.
Nor does it result in a land use plan negotiated fully under the provision of the territory’s aboriginal land claim settlements, the court ruled.
There is concern, however, that going that far back to in the planning process opens the door for the Yukon government to bring back and legitimize its own land use plan, the four-party coalition indicated in its press release following Wednesday’s decision.
Renowned lawyer Thomas Berger, who represented the four parties, described the Court of Appeal decision as possibly opening up the back door for the government to get its own way.
The Yukon government said yesterday it is satisfied with the decision. It had asked the Court of Appeal to set aside Veale’s finding of dishonourable conduct and his order that the government accept the planning commission’s recommedation.
The executive director of the conservation society said it’s important to understand the Court of Appeal – first and foremost – found that the government did undermine the planning process with its conduct.
Should the government resurrect plans to bring back its own land use plan, it had better be prepared to face the music, Macdonald suggested.
She said the government would have to explain in succinct detail – to a very awakened Yukon public – why the planning commission’s recommendation was not in the territory’s best interest.
“The public support for this really has been tremendous,” Macdonald said of the decision to challenge the government’s decision to implement its own plan.
“We certainly did not want to go down this path, but we did not have a choice.
“The public support has allowed us to pursue this.”
Premier Darrell Pasloski was unavailable this morning to discuss where the government goes from here, whether it will try to restart the planning process before next year’s territorial election, or pass on the task to the next government.
There’s also no indication yet of what the government plans to do now with the moratorium on staking minerals claims inside the Peel watershed, which will expire Dec. 31.
Macdonald said the question of how to go about renewing the planning process with the original six members of the commission was raised briefly yesterday, but not in detail.
The commission, she said, has been legally disbanded, and it was noted that one of the six members has passed away.
Gill Cracknell of the Canadian Parks and Wilderness Society expressed disappointment with the Court of Appeal decision in yesterday’s press release from the coalition.
“The public also deserves better than an order allowing the government a redo at enormous expense of time and money to Yukoners,” Cracknell said.
“The appeal court’s ruling supports our constitutional rights under the UFA, but does little to ensure the Yukon government respectfully listens to what we have to say,” Chief Simon Mervyn of the First Nation of Na-cho Nyäk Dun said in the press release.
“Our trust has been seriously breached, and we had hoped the court would rule more decisively in our favour.”
Neither the coalition nor the Yukon government have willingly provided an estimate of how much they’re spending on the court case, though available but obscure documents indicate they’re each spending several hundred thousand dollars.
From the first day the Peel planning commission tabled its first three options for a land use plan six years ago, there’s been division.
The First Nations have been calling for 100 per cent wilderness protection over the Peel watershed which has been described as one of the last pristine landscapes in the world. Part way through the process, the First Nations indicated they would be willing to accept 80 per cent wilderness protection, as a sign of good faith.
The Yukon government, on the other hand, has always said the land use plan must provide a balance between economic development opportunities and wilderness protection.
The planning commission recommended 80 per cent wilderness protection, with no road nor rail access through most of the watershed.
The government’s plan called for varying degrees of wilderness protection over 30 per cent of the watershed, while providing for roads and rails throughout the region.