Gwich'in celebrate Peel decision
Judge quashes Yukon government land use plan for Peel River Watershed
Miranda Scotland
Northern News Services
Published Monday, December 8, 2014
NORTHWEST TERRITORIES
Sounds of triumph filled Chief Jim Koe Zheh hall last week as Gwich'in Tribal Council members celebrated the much-anticipated results of the Peel River Watershed court case.
In his written decision, released Dec. 2, Justice Ron Veale quashed the Yukon government's land use plan for the Peel River Watershed, which left 71 per cent of the region open to development.
He ordered the government return to the point where it went off the rails - the final consultation stage.
This time, the topic of discussion will be on the Final Recommended Plan drafted by the Peel Watershed planning commission following seven years of work.
The document calls for the protection of 80 per cent of the region with 25 per cent reviewed every five years.
"All Gwich'in should be proud today because we protected our traditional lands," stated GTC vice president Norman Snowshoe in a news release. "This was a huge battle and with your support we have won."
The First Nations of Na Cho Nyak Dun and Tr'ondëk Hwëch'in, as well as two environmental groups launched the lawsuit in January after the government released its modified plan for the region.
The GTC, which has the right to participate in land use planning processes for the Peel region under the Gwich'in Comprehensive Land Claim agreement, later came on board as an intervener in the case.
Famed former justice Thomas Berger represented the plaintiffs when the case went to trial in July.
He argued the government violated the Umbrella Final Agreement - a document signed by the federal government, Yukon First Nations and Yukon government in 1993 - when it went off "on a frolic of its own."
Lawyer John Hunter, who represented the Yukon Government, argued his client ultimately holds decision-making power and has the right to reject, modify or accept the commission's plan. The government, he argued further, asked the commission for more balance between development and environmental protection but its request went unheeded.
Hunter asked Veale to dismiss the case or order the parties back to the stage where the government could revisit the issue of balance.
In making his decision, Veale considered Hunter's request but ultimately decided against it because it would have allowed "the Government of the Yukon to benefit from its flawed process," he stated.
The government can now only modify the plan based on the detailed modifications it posed to the commission. The requests for more balance between environmental protection and access don't fall under this provision because they "were too vague and general, and failed to give detail sufficient for the Commission to address them," the judge wrote.
Berger hailed Veale's decision calling it a "remarkable judgement."
"The vindication of this process is a great victory for the First Nations, the environmental organizations, and all Yukoners," Berger stated in a news release. "In the end, one of the world's last great wilderness areas will be protected."
Jeff Langlois, lawyer for the GTC, said the decision is a win for his clients - possibly in more ways than one. Although the case is about interpreting agreements that apply to Yukon First Nations it could have a broader affect on governments' duties to consult with indigenous governments, he said.
In many modern land claim agreements, there are collaborative processes laid out for the parties to follow.
"I think this decision is really going to tell governments that they need to treat those processes with a high degree of respect. They can't just go through the motions in those processes and then at the end of the day make the decision they want to make," said Langlois.
Dene National Chief Bill Erasmus shared a similar opinion in congratulating Yukon and NWT First Nations on their victory.
"This is precedent-setting because it supports, at law, that the final land claim agreements supersede territorial legislation," stated Erasmus. "These agreements were negotiated over many years between the parties and agreed upon. They are part of the Canadian Constitution and therefore protection is provided and prohibits others to override the authority of First Nation governments."
It is unclear at this point whether the Yukon Government will launch an appeal.
However, it released a statement Dec. 2 saying it is committed to upholding the Final Agreements and will continue to work with First Nations as it looks over Veale's judgement.
"The government will carefully review today's decision before determining how to move forward and will assess implications of the judgment on land use planning and the economic future in Yukon," the statement reads.
Although the Yukon government's relationship with First Nations is now strained it doesn't have to stay that way, Veale noted in his decision.
"Modern treaties must be interpreted in a manner that fosters a positive and long-term relationship between First Nations and Government of Yukon as well as between Aboriginal and non-aboriginal communities," he wrote.
"The process the government has chosen, after seven years of collaboration, was a profound and marked departure from its previous approach. In my view, damage has been done to the process of reconciliation, but it is not by any means irreparable."
