The Yukon government failed to meet its constitutional obligations when it adopted a completely different Peel Watershed Plan than the one proposed by the Peel commission, the Yukon Court of Appeal has ruled.

The three judges have sent the government back to consultation of the recommended plan, which first happened in 2011.

The ruling was released this morning.

The Court of Appeal upheld part of Yukon Supreme Court Justice Ron Veale’s 2014 decision.

He had ruled the government hadn’t followed the land use process and quashed the final plan the government tried to implement on its own.

He also ruled the government should go back to the last stage of consultation, after the commission had issued its final recommended plan.

The Court of Appeal disagreed with the last part, ruling the government should go back “to the point at which the failure began.”

That failure first started when the government prosed vague modifications to the commission’s recommended plan, then extensive changes to the commission’s final recommended plan.

Under the Umbrella Final Agreement (UFA), which sets out the process for land-use planning, after consulting with the parties involved, the government can adopt, reject or modify the commission’s recommended plan.

The commission then issues a final recommended plan, which goes through yet another round of consultation, and the government can then again adopt, reject or modify it.

The Yukon government asked the commission in February 2011 for a more “balanced plan,” in responding to the recommended plan.

However, it didn’t provide many details about the modification requests.

“Yukon’s modifications were put in such general terms as to lack such specificity that they were effectively not formulated or disclosed,” Chief Justice Robert Bauman wrote in the decision.

During the consultation, “Yukon failed to reveal its extensive plan modifications, and failed to provide the requisite details or reasons in support of its general comments,” the Yukon Court of Appeal ruled.

“Yukon’s failure to properly exercise its power to propose modifications... effectively prevented the Commission from reconsidering and responding.”

During the final consultation, the government proposed a completely new plan that had nothing to do with its earlier suggestions, the court said.

“This effectively denied the commission performance of its treaty role to develop a land use plan for the Peel Watershed,” Bauman wrote for the court.

Sending the government back to an earlier consultation stage prevents it from simply resubmitting its final plan, the court said.

“Doing so with the requisite detail will allow the planning process to unfold as envisioned,” Bauman wrote.

The Court of Appeal did take issue with the commission’s inaction when faced with the government’s lack of details in its 2011 requests for modifications.

“The commission appears to have suffered in silence until it sent the Final Recommended Plan to the parties,” Bauman wrote.

In a letter to the government at the time, the commission complained it would have to go back to the drawing board if it was to consider the government’s broad modifications.

However, nothing in the UFA and the final agreement prevented it from doing so, the court ruled, noting it had done so for the initial draft plan of April 2009.

The commission also did not take up the government on its offer to “further elaboration” on the plan, the court noted.

Treaties that governments and First Nation sign are a way to achieve reconciliation, the court noted.

“The Yukon government undermined reconciliation by failing to honour the letter and spirit of its treaty obligations,” Bauman wrote.

The Peel Watershed Regional Planning Commission was first established in 2004.

After four years of consultation with the different parties, the commission published its recommended plan in December 2009.

In July 2011, the commission released its final recommended plan.

In January 2014, the Yukon government approved its own plan, starkly differing from the commission’s.

It opened 71 per cent of the Peel Watershed for development whereas the commission’s final recommended plan allowed for development in 20 per cent of the watershed.

The First Nation of Na-Cho Nyak Dun, the Tr’ondëk Hwëch’in, the Yukon chapter of Canadian Parks and Wilderness Society and the Yukon Conservation Society filed a lawsuit in January 2014.

The suit asked the court to declare that the government’s modifications did not comply with the UFA.

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