Whitehorse Daily Star

Watershed moment in Peel saga looms Friday

The Supreme Court of Canada announced Monday it will deliver its decision on the Peel land use case Friday morning.

By Chuck Tobin on November 28, 2017

The Supreme Court of Canada announced Monday it will deliver its decision on the Peel land use case Friday morning.

Canada’s high court held the hearing last March 22.

The controversy over the future of the Peel River watershed has been hugely divisive in the last eight years.

Many, including Yukon First Nations, lobbied for wilderness protection over most of the 68,042 square kilometres.

Others, such as the former Yukon Party government and the mining community, pushed to keep much of the region open for economic development opportunities.

The result was a court battle between the territorial government and the coalition of three Yukon First Nations and two environmental organizations: the First Nation of Nacho Nyak Dun, the Vuntut Gwitchin First Nation, the Tr’ondëk Hwëch’in, the Yukon Conservation Society and the Canadian Parks and Wilderness Association.

The three chiefs of the First Nations and the executive directors of the two environmental organizations are heading to Ottawa and will be live-streaming a press conference following the decision.

The fight is about how to proceed with the final land use recommendation delivered by the Peel planning commission. The Liberal government has already promised to embrace the commission’s final recommendation.

Lawsuit likely

The Star has been told if the final recommendation is implemented, there’s a high likelihood of a lawsuit from mining companies with mineral claims in the Peel.

Under the land use planning provisions in the Yukon’s aboriginal land claim settlements, the Yukon government and affected First Nations can agree to embark on land use planning headed by a planning commission.

At the end of the planning process, the government in control of the land in question retains the right to accept, reject or modify the commission’s final recommendation.

The Yukon government has jurisdiction over 97 per cent of the land base in the Peel watershed.

The Yukon Supreme Court and the Yukon Court of Appeal both found the former Yukon Party government failed to act honourably during the development of the Peel land use plan by not being forthcoming with a specific vision for the Peel.

The First Nations, on the other hand, were clear from the start they wanted 100 per cent wilderness protection.

They later reduced the amount to 80 per cent, in what they described back then as a show of good faith.

The Yukon government never put forward any numbers.

Instead, it provided what the Supreme Court of Canada describes in its summary of the case as “very general suggestions.”

The Yukon government ultimately rejected the final recommendation of the Peel planning commission that called for 80 per cent wilderness protection and virtually no road nor rail access through the 68,000 square kilometres.

It went on to develop its own land use plan which provided for about 29 per cent wilderness protection.

The government relied on – and argued in court – that it had the right at the end of the planning process to accept, reject or modify the final recommendation of the Peel planning commission, in accordance with the land claim agreements.

Dishonourable conduct

Justice Ron Veale of the Yukon Supreme Court ruled its dishonourable conduct cancelled out that right. The government, Veale ruled, therefore had to accept the planning commission’s final recommendation, with the exception of a few house keeping matters.

The Court of Appeal agreed the government failed to live up to the honour of the Crown expected from governments when dealing with First Nations. But it disagreed with Veale’s remedy.

The appeal court instead ordered the parties back to table, to the point where the government gets another shot at responding to the draft recommendation from the planning commission.

To force the territorial government to accept the final recommendation because of its own error would not achieve the spirit of reconciliation the land claim agreements were meant to foster, the appeal court ruled.

The coalition of First Nations and the two environmental organizations are asking the Supreme Court of Canada to uphold Veale’s decision, forcing the Yukon to accept the final recommendation.

To permit the government to do it all over again knowing it could accept, reject or modify the final recommendation at the end of the day would not bode well for land use planning in the Yukon, the coalition argues.

The Liberal territorial government, while it is already committed to adopting the 80 per cent wilderness protection recommended by the Peel planning commission, supports the Court of Appeal’s decision.

The Yukon government has spent $449,000 on legal fees since the legal challenge began in 2014.

The amount spent by the coalition was unavailable.

Comments (2)

Up 0 Down 0

My Opinion on Nov 29, 2017 at 2:43 pm

Canada is sliding backwards quickly as every potential resource based potential we have is being shut down by huge US foundations like the Rockefeller and Tides groups who sprinkle money to the smaller groups and First Nations to be against anything that would benefit Canada. All this so that our Oil and Gas and other resources will still be here when they need them and they will just come and take them when they see fit. Remember these huge foundations like the Rockefeller were in that business, that is where all the money came from. Rockefeller's were Chevron, Standard Oil, Exon, Mobil. They owned the oil business from the start. The Fox will be guarding the Hen House.

Up 1 Down 0

jc on Nov 28, 2017 at 9:15 pm

Wouldn't waste my money betting on the outcome of this one.

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