While Wednesday’s Yukon Court of Appeal decision on the Peel Watershed presents mixed results for First Nations, it’s fundamentally a loss for the Yukon government, according to Jeff Langlois, the lawyer for the Gwich’in Tribal Council.

“Yukon, however they spin it, have suffered a core loss,” he told the Star in an interview earlier today.

The court of appeal ruled the Yukon government had failed its constitutional obligations by adopting a plan starkly different from what the Peel planning commission had recommended.

The court came out against the government’s approach to impose its own plan and disregard consultation and input from First Nations.

“The court has said ‘nope’; they soundly rejected that position,” said Langlois.

“You have to engage meaningfully, and your final plan better reflect in a high degree what happened in that (consultation) process.”

But, in its decision, the court also sent the planning process back to an earlier consultation stage than the Yukon Supreme court had ruled last year.

The Peel commission was established in 2004. After four years of consultations, it released a first draft plan, then a recommended plan in 2011.

The court insisted the government has to provide reasons to the commission if it decides to modify it.

“(The proposed modifications) were too vague and general for the commission to respond meaningfully,” the court noted.

“It was incumbent on the Government of Yukon to set out details about which Landscape Management Units it wanted zoned for increased access, along with rationales and suggestions about mechanisms to accomplish the proposed modifications.”

The commission will then issue a final recommended plan, and the government will have to consult affected parties, then again decide to accept, reject or modify it.

But that also means the government could propose its development-heavy plan to the commission one more time.

“My opinion is that the practical result is that Yukon does have a do-over,” Langlois said.

“Yukon is able to go back and propose their heavy modifications to that recommended plan.”

In 2014, the government unveiled its own Peel plan, opening 80 per cent of the watershed to exploration, while the commission’s final plan had recommended exploration in 20 per cent of it.

However, the court’s decision doesn’t mean the government can keep shoving its own plan and ignore the commission’s and First Nations’ input.

“They’ll have to consult with First Nations and explain in details what they want,” said Langlois.

“Yukon (also) needs to demonstrate through consultation they’ve meaningfully consider First Nations’ rights and interests.”

And if the government was to adopt a plan First Nations didn’t agree with, it wouldn’t bode well for investment in the region, the lawyer noted.

“If this process does not establish trust and does not get a lot of degrees of buy-in from First Nations, how much confidence will the industry have to invest?” Langlois asked rhetorically.

Ultimately, it’s in everybody’s best interest for the government to go back to consultation with a new approach.

“Yukon should be motivated to put a bit of a reset on their strategy,” he said.

The court decision could also resonate for other land claim agreements, setting a new jurisprudence, according to the lawyer.

“The decision stands for there has to be meaningful engagement in the collaborative process,” he said.

The Gwich’in Tribal Council was an intervenor in the case opposing the three Yukon First Nations and two environmental groups to the Yukon government.

As an intervenor, the Gwich’in Tribal Council had the ability to address interest that might not be addresses by other parties.

The First Nation does not have a self-government agreement under the Umbrella Final Agreement (UFA), unlike the three other First Nations suing, Langlois explained.

Much of the case revolved around interpretation of the UFA, which sets out the process for land use planning in the Yukon.

The Gwich’in Tribal Council is, however, the largest private land owner in the Peel, Langlois noted. That’s why it sought intervenor status.

See related coverage.