The Fight for the Peel Watershed Continues
On August 20 and 21, 2015 the Peel court case was heard at the Yukon Court of Appeal in Whitehorse. At this hearing, the Yukon Government argued that the Yukon Supreme Court ruling by Justice Ronald Veale be dismissed. The respondents (the First Nation of Nacho Nyak Dun, Tr'ondëk Hwëch'in, Vuntut Gwitchin First Nation, CPAWS Yukon and YCS), supported through an intervention by the Gwich'in Tribal Council, defended against this appeal and argued that Justice Veale's ruling be upheld.
On November 4, 2015 the Yukon Court of Appeal judgement was released. Read the Media release from the respondents here:
Court of Appeal upholds integrity of Final Agreements while Sending the Peel Back to the Drawing Board
Earlier today, Chief Justice Bauman, Madam Justice Smith and Justice Goepel of the Yukon Court of Appeal confirmed the Yukon Government failed to honour its treaty obligations with respect to the Peel Watershed Land Use Plan.
This ruling vindicates arguments advanced by the First Nation of Na-cho Nyäk Dun, Tr'ondëk Hwëch'in, Vuntut Gwitchin First Nation, Canadian Parks and Wilderness Society Yukon Chapter (CPAWS Yukon) and the Yukon Conservation Society (YCS) that land-planning provisions of the Umbrella Final Agreement (UFA) are binding on the Yukon Government. The Court further upheld the trial judge's finding that the Yukon Government's Plan for the Peel Watershed is a legal nullity.
With respect to the question of remedy, the Court of Appeal directed that the process should go back to the stage when the Yukon Government's breach of the Final Agreements began. The Court found that this occurred back in February of 2011.
"We are pleased this judgment confirms what First Nations have been saying all along – our final agreements matter and must be respected," said Tr'ondëk Hwëch'in Chief Roberta Joseph. "However, it is disappointing that the Yukon Government's failure to appreciate their responsibilities under our UFA means more money and time will be spent on a planning process that should have been completed years ago and that we still lack clarity for the Peel."
Chief Roger Kyikavichik of the Vuntut Gwitchin wants to see the Peel Land Use Plan through to completion. "This is not finished until we've concluded a final land use plan that we can all agree to," he said. "We must ensure the integrity of this pristine ecosystem is protected for all time. Let's be clear: we are not against development, but it must be done in an environmentally sensitive way. The water, land, environment, and the animals have to be protected for our children for the future."
"The judgment of the Court of Appeal represents a major step in guaranteeing that land use planning in the Peel and elsewhere in Yukon proceeds according to the process laid down in the UFA," said lead lawyer for the respondents, Thomas R. Berger, Q.C.
"However, the respondents are concerned about the Court of Appeal's direction that, since the Government's land use plan is of no legal effect, the planning process should go back to the stage (February 21, 2011) when Yukon Government advanced its proposed modifications to the Commission's Recommended Plan. Justice Veale had held that Yukon Government should be bound by the modifications it proposed back in 2011 and that final consultation on the Commission's Final Recommended Plan should now proceed. The Court of Appeal has turned the clock back to February 21, 2011, when Yukon Government proposed modifications to the Recommended Plan. We must consider the question of whether sending the matter back to an earlier stage in the process may allow Yukon Government to effectively implement the Yukon Government Plan, a plan which the Court has held is a nullity, by the back door.”
"This decision confirms again what the public has been saying all along, that government's process was badly flawed," said CPAWS Yukon Executive Director Gill Cracknell. "The public also deserves better than an order allowing government a redo at enormous expense of time and money to Yukoners."
"The Appeal Court's ruling supports our constitutional rights under the UFA, but does little to ensure the Yukon Government respectfully listens to what we have to say," says First Nation of Na-cho Nyäk Dun Chief Simon Mervyn. "Our trust has been seriously breached and we had hoped the Court would rule more decisively in our favour."
The respondents and their legal team are carefully considering the Court's direction that the matter be remitted back to an earlier stage and whether further steps should be taken.
"Support for protecting the Peel Watershed has been growing since day one of this court case," said Yukon Conservation Society Executive Director Christina Macdonald. "Our numbers are going to continue to grow as we decide on our next steps and work together to protect this land that we love."
You can read the November 4, 2015 Yukon Court of Appeal judgement here
You can read the Yukon government's Appeal argument here
You can read the Appeal response from Thomas Berger on behalf of the First Nation of Nacho Nyak Dun, Tr'ondëk Hwëch'in, Vuntut Gwitchin First Nation, CPAWS Yukon and YCS here
You can find a summary of the Yukon Supreme Court Judge's decision here
. And the full text of the Yukon Supreme Court Judge's decision can be found here