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GOVERNMENT LOSES ITS QUEST – The Yukon Party government acted unilaterally and pursued ‘a flawed process’ in promoting its own land use plan for the Peel watershed (above), Justice Ron Veale of the Yukon Supreme Court has concluded. His much-anticipated ruling was released this morning.

The spirit of the land claim was betrayed: court

The Yukon government has lost the legal battle over the Peel watershed, and is now forced to accept maximum wilderness protection for the vast and remote region.

By Chuck Tobin on December 2, 2014

The Yukon government has lost the legal battle over the Peel watershed, and is now forced to accept maximum wilderness protection for the vast and remote region.

Justice Ron Veale of the Yukon Supreme Court released a 92-page decision this morning which criticizes the government’s conduct during the land use planning exercise, and quashes the land use plan adopted by the government last January.

Veale ordered the government to return to the planning process and the regional planning commission at the point where the government went off the rails, and failed to fulfill its duty to be forthright and open.

The government, however, will not be allowed to revisit the amount of land designated for wilderness protection in the commission’s final recommendation.

Nor will it be able to revisit tight restrictions for road and rail access into the watershed, says the decision.

Shortly after the government unveiled its own land use plan, a joint lawsuit was filed by the Tr’ondek Hwech’in of Dawson City, the First Nation of Na-cho Nyak Dun in Mayo, the Yukon Conservation Society and the Canadian Parks and Wilderness Society-Yukon.

The parties argued the government failed to live up to the spirit and intent of the aboriginal land claim agreements which provide the ground rules for regional land use planning.

The government, at the end of the day, essentially developed its own land use plan without any consultation, the parties argued.

A four-day trial was held in July, and another day was scheduled in October.

Veale concludes the Yukon government was wrong to apply a narrow interpretation of a clause in the land claim agreements that allows it to approve, reject or modify land use plans produced by regional planning commissions.

The government did not fulfill its obligation to behave honourably in its involvement with the land use planning process, the judge writes.

Veale says in these days of modern treaties and reconciliation, governments have an obligation to deal honourably with First Nations, and must give modern treaties liberal interpretation.

“The key principle is that modern treaties must be interpreted in a manner that fosters a positive long-term relationship between First Nations and Government of Yukon as well as between aboriginal and non-aboriginal communities,” writes Veale.

“In this context, the Government of Yukon’s adoption of a plain language reading of s. was, in my view, an untenable interpretation....”

The government’s conduct usurped the role of the planning commission, he says.

The government maintained all along the plain and straightforward language of the agreements gave it the authority to approve, reject or modify land use recommendations affecting territorial Crown land.

Veale, however, found the obligation to the land use planning process goes much deeper.

A statement issued late this morning by the Yukon government indicates it will be reviewing the decision before deciding what it will do.

Debate over the land use plan for the Peel watershed has been emotional and divisive from the very day in 2009, when the Peel planning commission delivered its first three land use options for public consideration.

The commission in July 2011 delivered its final recommendation calling for 80-per-cent wilderness protection across the 68,042 square kilometres, with very little or no road access.

While the recommendation was embraced by the First Nations and environmental community, the mining and economic development sectors lashed out against it.

Prior to the commission issuing its final recommendation, the Yukon government had asked the commissioners to reconsider five specific concerns raised by the government.

In general terms, it asked the commission to give more consideration to resource development, to achieve more balance.

And it asked the commission to develop options for access. It also put forward three other requests, which dealt largely with administration of the final recommended land use plan.

The commission implemented three administrative requests. But it indicated the other two regarding balance and access were too general with no specifics, and would have meant going back to square one in the planning process.

After the Yukon Party was successfully re-elected in the fall of 2011, the government developed its own land use plan which was substantially different than the commission’s plan.

After conducting community consultations, the government officially adopted its own plan last January, prompting the legal action.

In his decision, Veale threw out the government’s land use plan.

He ordered the government to return to the point in the process where it asked the planning commission to reconsider the five key areas of concern.

But Veale said the government will not be allowed to revisit its concern about balance and the amount of land for wilderness protection. Nor will it be able to revisit the restrictions on access, says the decision.

Veale found the government’s request to the commission to look at balance and access was far too general, and that there was nothing specific for the commission to digest or consider.

It was incumbent upon the government to be specific when it asked the commission to revisit balance and access in February 2011, but it wasn’t, Veale writes.

He says the government cannot be allowed now to ask the commission to go back and open up the entire planning process to have another look at balance and access.

Any desire by the government to approve, reject or modify the final land use plan will now be restricted to the other three administrative requests the government put forward in February 2011, which have already been addressed, says Veale’s decision.

The judge says the government will also be prohibited now from putting forward its own land use plan for the planning commission to consider.

The government, writes Veale, had the opportunity to work collaboratively with the planning commission, but didn’t.

“However, it instead took over two years to pursue this flawed process, which betrayed the spirit of the Final Agreements and was criticized by both the public and by the Land Use Planning Council,” writes Veale.

“In my view, it would be inappropriate to give the government the chance to now put its January 2014 plan to the commission.”

Some accuse the pro-development Yukon Party government of playing politics with the Peel planning process.

They accuse the Yukon Party of not being upfront with its vision for the Peel watershed until the last minute because it did not want to jeopardize its chances of re-election in October 2011.

See related coverage.

Comments (22)

Up 6 Down 3

Atom on Dec 7, 2014 at 9:24 am

Yukon56.......there are 1895 jobs in mining in Yukon......Faro reclamation is beyond a Billion dollars and who knows what cost to environment, past and future......no need to get upset about common sense reasoning that a 1/4 mile high dam is a bad idea.......its a bad idea....mine some other way and use common sense.

Up 5 Down 7

How much of the Yukon Well every be mined including the Peel on Dec 6, 2014 at 1:36 pm

Less than 1% of the Yukon will ever be mined because minerals in the Yukon are limited to certain spots. Mining companies have to put up large bonds to mine in the Yukon. If people don't want jobs and wealth in the Yukon put your hands up. If you do want jobs and wealth in the Yukon than put your hands down.

Up 11 Down 13

Purpose of Land Claims on Dec 5, 2014 at 10:17 am

As a non first natives person I worked with one of the First Nations on parts of lands claims in the 1990's more as an information person not involved with negotiations. Land claims was there for First Nations to have the right to self government. The agreements are a guiding principle and give direction so the First Nation would set forth into self government. It was always known that the implementation would be the challenge part for land claims. Result of land claims I think has a different meaning to different First Nations. For example what has the elders received from land claims? What has First Nations people who do live on First Nations lands received? Land claims for the Yukon as a whole has been good but will change over time. A lot of people don't understand land claims and think it is a big money pit but it is far from that. Let's look at the Yukon it receives 80% or more money from Ottawa. Ottawa fully funds the great services we receive in the Yukon. Except for COW all the municipalities are fully funded by YTG 90% or more. The Federal gov't in 2007 employed an individual to review service delivery by the YTG and First Nations Gov't. His study indicated that First Nation housing, municipal and properties operation should be increased by four fold to be equal with the YTG. I analysed the funding transfers to the YTG, from the Federal Gov't and compared them to First Nations Gov'ts. My estimate on housing was 3 times more funds going to YTG than going to First Nations in housing. The people in one First Nations gov't had 8 people. The report stated they should have 18 to be equal to Yukon Housing. In municipal services, infrastructure, etc., there was 250% gap between the YTG and the Yukon First Nation Gov't. Education for First Nations next to nothing.
I have 12 years experience in these issues and the Federal Gov't needs to step up to provide fair and reasonable funding to Yukon First Nations Gov'ts. For all the people think First Nations are wasting our money look again and you might see waste elsewhere. There was a report done back in, I think, 2006 on the need for $150 million invested into housing in the Yukon. We got $50 million. This Federal gov't has not put anything into housing like other countries around the world. First Nations are not receiving their fair share from Ottawa as compared to YTG. The First Nations should just demand their share that YTG receives from Ottawa. The First Nation represents about 30% of the Yukon population they should get 30% of YTG budget which is $330 million dollars. Go to court and demand your share of Federal Funding for your own people and all the people of the Yukon interest.

Up 20 Down 5

yukon56 on Dec 4, 2014 at 4:50 pm

I am not a mining executive, shareholder or investor but I have worked developing mining for 30 years. Times have changed, respect for the environment is paramount as well as the bonds that must be posted by the multinational developer. Close it all down and where do all the middle class jobs which drive our country come from? Not tourism or service.

Up 28 Down 26

yukon56 on Dec 4, 2014 at 2:22 pm

The only ones left with jobs will be government workers and first nations managing the tax flow. May as well move, no opportunities now exist. So much for Diefenbaker's dream.

Up 16 Down 25

north_of_60 on Dec 3, 2014 at 8:48 pm

Yukon's Prospector of the Year, Shawn Ryan, made mining's intent quite clear when he told National Geographic “I tell people not to get too attached to all this beauty. We just might want to mine it.”

Peel Park -- no compromise !!!

Up 29 Down 9

Lost in the Yukon on Dec 3, 2014 at 6:13 pm

... to the issue of Yukon Party elected officials doing the right thing. I believe Taylor, Graham and Nixon are good people but are being damaged by the action of a few in their Party. Cathers, Pasloski, and a few others (driving while drinking) to name a few are destroying the Party along with a few privileged back room boys. The good guys and gals in the Party have to take a stand if the Party is to be saved. But if they stand by silently they become as guilty as the rest in the destruction of the Party and the public’s confidence in government.

Up 17 Down 6

Groucho d'North on Dec 3, 2014 at 5:35 pm

I am surprised by some of the comments both in articles, and in reader comments, on the recent decision on the Peel Land Plan.
I well remember the day the Umbrella Final Agreement was signed and the pomp and circumstance in the main government building. It was a large crowd and I was there to share in this milestone event in our history - Yukon’s and Canada’s. Johnny O said some nice things about the UFA being a first in the nation and the compass to the Yukon’s future and how we are all bound by it. Then Grand Chief Judy Gingell, said some more inspiring things about a promising future, and how everybody in the Yukon could begin working together; but she also said - while holding the agreement over her head, “Now we get to interpret what it means…” The most profound words spoken that day I think. It turns out Judy was absolutely correct, but not in the way I think she meant it back then.
On that day of May back in 1993, the UFA was about Yukon native land claims - period. But since then the UFA has been usurped by the environmentalists as a means to achieve their ends in this conflict between conservation and development. The only ones benefiting from this are the lawyers and PR firms who do the attention-getting promotions we all enjoy so much.
I’m wondering if all the pieces in this game could be put back to first positions and replayed and what the outcome would be if we knew then what we know today. Somehow I doubt if anything would be different.

Up 29 Down 8

Land Use Planning on Dec 3, 2014 at 2:39 pm

The judge can only make his decision based on the agreements in place because of land claims. The judge ruling just sends everyone back to the drawing boards and doubt if the Yukon Gov't will take it to the supreme court or if the supreme court would hear the case because it does not reach the bar of the supreme court.
The Yukon is here for all the people to enjoy and that includes First Nation and Non First Nations. Places like the Peel are there for all of use to benefit from and that includes access for recreation, hunting, trapping fishing, economic development. There has to be fairness and reasonableness in the land use of the Peel. It cannot be one sided, then you have trouble and unrest that never ends.
We have the Cantung road, south and north canal roads. Nothing has effected theses areas because of these roads and First Nations and Non First Nations enjoys these areas together and do not destroy the wilderness.

Up 23 Down 13

Frank ... on Dec 3, 2014 at 12:58 pm

... you are correct the Supreme Court will decide - if it gets that far. What we have now is a climate of uncertainty and this Government needs to be pragmatic moving forward.

The need to consider the cost and time involved in going to the Supreme Court and the potential outcome, which if the current decision is upheld will simply be directing them to start again ... but with the result of possibly delaying the inevitable a couple of years. Even if they win, it will still result in a two year delay in something be settled.

The pragmatic decision would be to suck it up, accept the decision and get on with the direction provided by the Court as quickly as possible. This will require putting aside personal egos and interests and truly acting on behalf of all Yukon.

Unfortunately, I think ego, ineptitude and self-interest will win out.

Up 27 Down 13

Frank de Jong on Dec 3, 2014 at 11:00 am

If the Yukon gov appeals it will go to the Supreme Court of Canada. If the top court decides to hear it, their ruling will clarify the present gray area whether First Nations have veto over governments or not.

Up 35 Down 29

Chris Macleod on Dec 3, 2014 at 8:47 am

Everybody complaining about biased judges - get an education. This outcome is no surprise to anyone who's actually read the final agreements. Which apparently doesn't include the current government.

Up 32 Down 27

Nice move Pas... lose ... ski on Dec 3, 2014 at 7:09 am

Now that it has been confirmed by a Court that you have totally screwed up the Yukon when are you going to do the honorable thing and call an election. If you are so convinced you and your "back room hospital-chair puppeteer" are right, then go to the people of Yukon and let them have a voice. You may have the legal right to avoid the Yukon people but you don't have the moral right. But then again, ethics and morality have never been a big part of your government, have they?

Up 23 Down 27

Julius Caesar on Dec 2, 2014 at 8:51 pm

The Territorial Government does not appoint Supreme Court judges, only judges of the Territorial Court. Stop playing politics with court decisions. This Territorial Government of the chemist is just as underhanded as that of daddy Harper and look what his own appointees in the Supreme Court of Canada have been doing to him and his underhanded tactics. Time for the chemist and his gang to stop selling the Yukon out for some short time profit to China, just as Harper does. Deport them to Alberta and send Leef along.

Up 35 Down 23

bob marely on Dec 2, 2014 at 6:43 pm

Yukon doesn't need industry.... why would you need an industry when you have the government spoon feeding you to live there.

Up 19 Down 25

BnR on Dec 2, 2014 at 6:23 pm

I wonder how many people like Bud Mgee below have even read the PRPCs original recommendations and report?
Regardless, if we all harken back to why the government decided to throw the commissions report in the ash and embark on their own new plan, it was not because they thought the process was flawed, or that it was improperly conducted, it was simply that it did not like the outcome.
It didn't just happen overnight. Everyone had a chance to have input. I don't think it was perfect, but it was what came out of a very long process, and it was made in Yukon, not in Ottawa.
The reality is that, despite what bud says re. economic development, what happens in the Peel doesn't have any effect on any economic development. This won't affect Western Copper one Iota, or Selwyn Resources, and those will be more than we can handle for a long time to come.

Up 17 Down 31

north_of_60 on Dec 2, 2014 at 6:12 pm

The YP regime is in power only because the left can't put aside their petty differences and unite to save the Peel.
Unite the left and create a Yukon we can all be proud of.

Up 24 Down 27

Jackie on Dec 2, 2014 at 6:09 pm

Hold on with the conspiracy theories. Veale and other judges of the Supreme Court of Yukon are appointed by the federal government, not the territorial government. If YG appeals the decision, good luck. It is a sound judgement that is well-written. This decision is not about the judge, it is about how Paslowski screwed up. Now his federal buddies are throwing him under the bus about Bill S-6. They say that Paslowski asked for the four controversial amendments to the YESAA. Can you say political hot potato!

Up 23 Down 37

woodcutter on Dec 2, 2014 at 5:46 pm

In your eye yukon party. How was that for a slap down? The day's of old boy's carving the best land for themselves and their cronies is coming to an end. Go ahead and appeal, you will just get another kick in the arse with a pointy boot.
The puppet master's in the Yukon party are so out of step with the political reality of the modern day, they need to consider more then their own greed.

Up 36 Down 10

Dan Davidson on Dec 2, 2014 at 5:43 pm

If there is a pattern, it is that this government should not go to court on questions related to its relations with First Nations. It doesn't matter who the judge is - they lose.

Up 69 Down 79

Bud McGee on Dec 2, 2014 at 3:58 pm

So, we are all to be held hostage to a judge's interpretation of what the "spirit" of these treaties was when they were negotiated? Who needs economic development, I guess. Where can I apply for my welfare cheque?

Up 49 Down 86

June Jackson on Dec 2, 2014 at 3:41 pm

Woot!!!! First time in ? Can't remember how long the courts have done anything that really benefits the entire continent.

The summary of the report above is a damning condemnation of the current sitting governments policies and practices and I think reflects the opinions of quite a lot of Yukoners.
I can only hope for the next election that we get a Liberal minority with a new NDP leader in the opposition and no one ever see's or hears from a conservative in what's left of my lifetime.

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