Photo by Whitehorse Star
The Peel River Watershed
Photo by Whitehorse Star
The Peel River Watershed
The Supreme Court of Canada announced this morning it will hear the appeal in the dispute over the hotly contentious land use plan for the expansive Peel River Watershed.
The high court does not provide any reasons when ruling whether it will hear appeals. It only hears about 10 per cent of the requests that come in.
According to statistics from the last 10 years published by the Supreme Court, from the date leave to appeal is granted – today – to the actual hearing in Ottawa takes between seven and nine months. Most recently, it was closer to seven months.
From the day of the hearing to a decision is anywhere from four to eight months, according to the statistics.
Using the averages, Yukoners can expect a final decision on the Peel land use plan anywhere from 11 to 17 months.
The request to have the Supreme Court of Canada hear an appeal in the Peel case was filed by the First Nation of Na-cho Nyak Dun of Mayo, Dawson’s Tr’ondëk Hwëch’in, Old Crow’s Vuntut Gwitchun First Nation, the Yukon Conservation Society and Yukon Chapter of the Canadian Parks and Wilderness Society.
At the heart of the legal dispute is the remedy that should be applied when a party to a modern treaty breaches the requirements set out in that treaty.
The Yukon Supreme Court and subsequently the Yukon Court of Appeal agreed with Yukon First Nations and environmental organizations that the Yukon government did not fulfill its obligations during the land use planning exercise for the Peel.
But the two courts disagreed on what the remedy should be, which is in part what the Supreme Court of Canada is being asked to sort out.
Provisions for regional land use planning are set out in the Yukon’s aboriginal land claim agreements. The agreements are enshrined in the Constitution of Canada.
The multi-year planning initiative for the 68,042 square kilometres making up the Peel River watershed began in 2004 with the appointment of the six-member planning commission.
The work of the commission culminated when it released its final recommendation in 2011 calling for wilderness protection over 80 per cent of the remote wilderness area, with little or no surface access into the watershed.
First Nations, which had initially sought 100 per cent wilderness protection, applauded the commission’s recommendation, as did many Yukoners and others around the world who saw the Peel as one of the last pristine areas on the planet.
The Yukon government, on the other hand, disagreed, as did industry.
Removing such a large area from future economic development opportunities, particularly mineral exploration and mining, would shackle the territory’s economic potential and send an unsettling message to future investors, the government maintained.
At the end of the day, the government used a clause in the land claim agreements that allows the owner of the land in question to “approve, reject or modify” the planning commission’s recommendation.
As the owner of 97 per cent of the watershed, the government rejected most of the planning commission’s recommendation and instead brought forward its own plan, which it officially adopted in January 2014.
Days later, the First Nations and the environmental organizations filed a lawsuit.
In his decision, Justice Ron Veale of the Yukon Supreme Court found that the Yukon government did not fulfill its obligations in the land use planning process set out in the land claim agreements
Its participation did not live up to the honour expected from territorial and provincial governments when dealing with First Nations, Veale ruled.
He found the government never really put all its cards on the table, that it never clearly articulated exactly what its position was, but rather relied on generalities then pulled the ace out of its sleeve at the end: the ability to “approve, reject or modify” the recommendation from the planning commission.
Veale threw out the government’s land use plan and ordered the government to largely adopt the planning commission’s recommendation, including the recommendation for 80 per cent wilderness protection and restricted surface access.
The government appealed.
The Yukon Court of Appeal agreed with Veale’s finding that the Yukon government did not live up the honour expected from governments when dealing with First Nations.
But it overturned the order forcing the government to adopt the commission’s recommendation.
Instead, the Court of Appeal ordered the parties back to the table.
Forcing the government to accept the commission’s recommendation and maximum wilderness protection for the Peel would not be in the spirit of reconciliation the land claim agreements were meant to achieve, the Court of Appeal ruled.
The Court of Appeal indicated if the government played by the rules the second time around, if it fulfilled its obligation to participate honourably, it could then invoke the provision that allows it to “approve, reject or modify” the commission’s recommendation.
The First Nations and environmental organizations filed a request to have the Supreme Court of Canada hear an appeal.
Having breached its treaty obligations in the first place, the government should not be rewarded with the opportunity to do it all over again, they argued.
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