Peel decision pending
Parties lay out proposed remedies during court hearing
Miranda Scotland
Northern News Services
Published Monday, November 3, 2014
WHITEHORSE
Well-known lawyer Thomas Berger asked the Yukon Supreme Court last week to give all parties involved in the Peel Watershed case a chance to go back in time.
Norman Snowshoe, acting president of the Gwich'in Tribal Council, was in Whitehorse Oct. 24 for a remedy hearing in the Peel Watershed case. Snowshoe said he believes Yukon Supreme Court Justice Ron Veale has a strong understanding of the case and he's optimistic the court will come up with a good solution. - Miranda Scotland/NNSL photo |
If Justice Ron Veale determines the Yukon government acted unlawfully in its plans to open the majority of the watershed for development, he should "consider returning the process to the point when the Yukon went off the rails," said Berger during a remedy hearing Oct. 24 in Whitehorse.
In January, the Yukon government released a plan for public lands in the Peel Watershed - a 67,000 sq. km area - that called for the protection of 29 per cent of the region, leaving 71 per cent open to development.
In doing so, they ignored the work of the Peel Watershed Planning Commission, which spent years consulting with aboriginal governments, communities and the territorial government to create a land use plan all parties could agree on.
The commission's plan recommended protection for 80 per cent of the region with 25 per cent reviewed every five years.
Less than one week after the Yukon government unveiled its Peel Watershed Land Use Plan, First Nations and environmental groups filed a court challenge. With Berger representing the plaintiffs, the Yukon Supreme Court first heard the case in July.
Berger originally requested that Veale order the Yukon government to adopt the Peel Watershed Planning Commission's plan but later settled on a different solution.
He suggested that Vaele return the process to the point where final consultations would be came on the commission's plan. He also called on Vaele to ensure that the territorial government be allowed to take no further steps in implementing its own plan.
The approval process for land use plans is laid out in the Umbrella Final Agreement, a document accepted by the federal government, the Yukon government and Yukon First Nations.
Lawyer John Hunter, who represents the Yukon government, maintained that the "appropriate remedy" would be to dismiss the case.
However, if that doesn't happen, the parties should return to the stage where modifications can be proposed, said Hunter.
He argued that the commission's plan does not strike enough of a balance between development and environmental protection. The Yukon government suggested five modifications earlier in the process but the commission only accepted three, arguing that the government wasn't specific enough in its requests.
If the case isn't dismissed, it's important that the Yukon government gets the chance to revisit the issue of balance, said Hunter.
Berger rejected the suggestion saying the commission has already addressed the topic. Also, it would make a mockery of the process if parties were given a chance to present new modifications never brought before the commission, he said.
Berger further noted that the commission has been disbanded and thus would be unable to respond.
"The whole thing is inoperable the way Mr. Hunter sees it," he said.
In the event the court orders the parties to return to the final consultation stage, the government must have the option to reject the plan, said Hunter, noting that choice is laid out in the Umbrella Final Agreement.
Jeff Langlois is representing the Gwich'in Tribal Council, an intervener in the case. Langlois agreed with Berger, saying there is no reason to restart the entire consultation process and the court should direct parties to the final consultation stage.
He cautioned Veale about the dangerous precedent that would be set if the court allowed the Yukon government to circumvent the consultation that has already taken place.
Norman Snowshoe, acting president of the Gwich'in Tribal Council, said he believes Veale has a good understanding of the case and he's optimistic the court will come up with an agreeable remedy.
"We're working under the umbrella of treaties and when you sign a treaty it means you have to collaborate and work together," he told News/North following the hearing Oct. 24. "In a sense we have to work together, we have to be at the table when we make any modifications and in this case we weren't. So hopefully the judge will see that."
It is unknown when Veale will release his decision.
