The Yukon Court of Appeal has ordered the territorial government to pay 75 per cent of the costs incurred by First Nations and environmental groups in the original Peel watershed trial.
The order was issued Monday.
The plaintiffs are the First Nation of Nacho Nyak Dun of Mayo, the Tr’ondek Hwech’in of Dawson City, the Yukon Conservation Society and the Canadian Parks and Wilderness Society.
Reasons issued by the Court of Appeal note the plaintiffs and the Yukon government agreed to pay their own costs for the Court of Appeal proceedings.
“We have received and reviewed the submissions of the parties,” says the brief, three-sentence order.
“We acknowledge their agreement that each of the parties will bear their own costs of the appeal. In all the circumstances, we award the plaintiffs in the trial court 75 per cent of their costs as assessed by that court or agreed to by the parties.”
The coalition of First Nations and environmental groups has not disclosed what it has spent on legal fees for the original trial or the Yukon Court of Appeal proceedings.
Thomas Berger, lead lawyer from the plaintiffs, told the Star Wednesday that normally when the plaintiff loses at the Court of Appeal level, there are no cost awards, and each party pays its own costs of the entire legal action.
But since the Court of Appeal decision was somewhat of a split decision, the court found there to be special circumstances, he said.
Berger explained the court awarded the plaintiffs 75 per cent of their trial costs based on the arguments put forward by the coalition.
The plaintiffs, he said, told the Court of Appeal that three-quarters of the original trial – 75 per cent – was spent showing the court how the Yukon government’s conduct during the Peel land use planning process breached its legal obligations under the Yukon aboriginal land claim agreements.
Figures provided by the territorial government show the government spent $53,271 to hire an Outside law firm for the original trial.
It spent another $232,496 on the Yukon Court of Appeal case.
Costs associated with the pending Supreme Court of Canada hearing tentatively scheduled for Feb. 20, 2017 will not be calculated until after the case has been heard, Dan Cable, a Department of Justice spokesman, explained Wednesday.
In questions about Monday’s order by the Court of Appeal, Mark Pindera, assistant deputy minister of Justice, provided the following statement:
“We accept the ruling of the Yukon Court of Appeal on costs; however, the Supreme Court of Canada may change the costs order following the appeal regardless of outcome.
“At this time, we will be working with the Plaintiffs as to next steps regarding payment of costs. We will report these costs with the final costs after the Supreme Court has ruled, as we have committed to at every stage of this court action.”
The coalition of First Nations and environmental organizations took the government to court after it threw out the land use plan recommended by the Peel watershed planning commission and substituted its own.
The government lost at trial when Justice Ron Veale of the Yukon Supreme Court found its participation or lack of participation in the planning process was in breach of its legal obligations.
Veale ordered the government to largely adopt the planning commission’s recommendation, including 80 per cent wilderness protection over the region.
The government appealed. The Court of Appeal agreed with Veale’s finding that the government had breached its legal obligations.
But it overturned his order forcing the government to embrace the planning commission’s recommendation. Instead, it ordered the parties to return to an early point in the planning exercise.
It would not be in the spirit of reconciliation the land claim agreements are founded on to force the government to adopt the commission’s recommendation.
The four First Nations whose traditional territories are part of the Peel watershed initially sought 100 per cent wilderness protection, but later accepted 80 per cent.
The Yukon government always maintained it wanted to see a balance between economic development opportunities and wilderness protection.
The coalition sought leave to appeal the Court of Appeal decision.
It argues, in part, that the Yukon government should not be given a second chance when its conduct was dishonourable in the first place, and that it should be forced to accept the planning commission’s recommendation.
The Supreme Court of Canada announced earlier this month it will hear the case next year.
The highest court only agrees to hear about 10 per cent of the requests it receives.