Yukon Court of Appeal upholds Peel River Watershed ruling
Court says government of Yukon failed to honour treaty obligations
John McFadden
Northern News Services
Monday, November 9, 2015
WHITEHORSE
The lawyer for the Gwich'in Tribal council is calling it a partial victory after the Yukon Court of Appeal upheld a Yukon Supreme Court decision that stated the territorial government did not honour an agreement struck with First Nations groups over the Peel River watershed planning process.
Ruth Wright and Winston Moses enjoy a laugh during a Protect the Peel walk Jan. 29, 2014. Last week, the Yukon Court of Appeal said the Yukon Government did not properly consult with First Nations over land planning in the Peel Watershed. - NNSL file photo |
The Yukon government applied to have the court of appeal overturn a decision from almost a year ago by the territory's supreme court that the government had not properly consulted with First Nations and did not honour its treaty obligations in developing a land use plan for the region.
That plan called for only 20 per cent of the watershed to be protected from development. The appeal court ruled on Nov. 4 the Yukon Government failed to honour the letter and spirit of its treaty obligations by, among other breaches, failing to reveal its extensive plan modifications.
The Peel River Watershed Planning Commission had developed what was thought to be a final plan after years of consultations with First Nations, environmental groups and the public. It called for about 80 per cent of the watershed to be protected. However, in January of 2014, the Yukon Government released its own plan which would open 70 per cent of the area to developers. The lawsuit was launched within months of that decision.
Vancouver lawyer Jeff Langlois, who represents the Gwich'in Tribal Council in the lawsuit, said he is pleased the court agreed with the First Nations.
"The Yukon government's position in imposing a land use plan of their own unilateral design ... was that it has the ultimate power to draft a plan over non-settlement land, which is most of the Peel. First Nations, my client included, said, 'No you don't. You need to consult and follow the terms of this collaborative land use planning process that was set up in the Yukon-First Nations agreement,'" Langlois said.
"The reason it is a mixed result is because the court of appeal has set the land use planning process back in time about four years and they've essentially allowed Yukon a do-over. My client has already been through this process and dedicated a lot of time and money. The independent commission recommended a plan that my clients agreed with fundamentally. They compromised many of their positions and now they are discouraged because they have to spend more time and money to again be involved in this process."
Langlois said the court's ruling does not send the entire process back to square one. Both sides are now at square two, he said.
"The recommended plan still exists. It provides for a high degree of protection of the Peel watershed. That's what was recommended by the commission in 2011. If Yukon wants to make modifications to that plan, and I think they do, given how they've acted over the past four years, well now the court has said, 'Yukon - you can not show up at this consultation with your plan in hand. You need to consult meaningfully. The modifications you seek need to demonstrate that you've listened,'" Langlois said.
"There is not a lot of trust between First Nations and government at this point. I think Yukon's behaviour on this file over the last four years has turned this from what was supposed to be a collaborative process into one in which the discussions over the last couple of years have occurred solely through lawyers and courtrooms and judges. That doesn't earn a lot of trust."
"The Yukon government must consult and then make its final modifications to the final recommended plan," the court stated in its ruling.
In response to the court's decision, the Yukon Government issued a statement indicating it is reviewing the decision and considering the implications. It states government officials are satisfied with the court's direction to go back to an earlier stage in the planning process.
"Through this appeal, the government sought clarity that the Yukon government retains the authority to make final decisions on public lands," the government stated. "While we are taking time to review the decision, we will continue to work with First Nations on many important initiatives vital to Yukon's social and economic well-being. The Government of Yukon values the final agreements and is committed to upholding them. We remain open to discussing resolutions with First Nations outside of the courts."
The Peel River Watershed covers 14 per cent of the Yukon. It encompasses 77,000 square kilometres, 68,000 of which is in the Yukon, with the rest in the NWT.
