Thursday, June 9, 2016

Supreme Court lauded for saying YES to Peel

This is the news release issued by the three Yukon First Nations and two environmental groups that asked the Supreme Court to hear its appeal:

On June 9th 2016, the Supreme Court of Canada gave notice that it will be hearing The First Nation of Nacho Nyak Dun et al v Government of Yukon, otherwise known as the Peel Watershed case. The case will be heard in Ottawa after leave to appeal to the Supreme Court of Canada was submitted by the First Nation of Na-Cho Nyak Dun, the Tr'ondëk Hwëch'in, the Vuntut Gwitchin First Nation, CPAWS Yukon and the Yukon Conservation Society in December 2015.

"We signed our Final Agreements with Canada and the Government of Yukon in 1993, and we came to the table again in good faith for the Peel Watershed consultations," said Chief Simon Mervyn of the First Nation of Na-Cho Nyak Dun. "We are pleased that Canada’s highest court recognizes the legally binding nature of these agreements and the national significance of this case.”

The Peel Watershed is home to the First Nation of Na-Cho Nyak Dun, the Tr'ondëk Hwëch'in, Vuntut Gwitchin First Nation, and the Tetlit Gwich'in Council.

“The Supreme Court’s decision confirms what we’ve maintained all along: there are significant legal questions raised by the Yukon Government’s conduct during the Peel planning process that deserve the Supreme Court’s - and Canada’s - attention,” Chief Roberta Joseph of the Tr'ondëk Hwëch'in said. “We are thankful for this opportunity and look forward to defending the integrity of our Final Agreements.”

Chief Bruce Charlie from the Vuntut Gwitchin First Nation expresses his elation on the decision.  He states: “This pristine wilderness, caribou habitat and eco systems is an essential element of our very existence, the integrity of our agreements will be clarified once and for all and will stand the test of time.” 

The Peel Watershed is one of the largest unspoiled natural areas in North America. At 68,000 km², it is larger than the entire province of Nova Scotia.

“The Peel River Watershed is a wild land in a world that is quickly losing its wilderness," added Yukon Conservation Society Executive Director Christina Macdonald, "We are looking to the Supreme Court of Canada to help us keep it that way.”

Six rivers flow through this landscape into the Peel River, which travels north to the Arctic Ocean via the Mackenzie River Delta. Grizzly bears, wolves, and caribou roam freely; migratory birds find sanctuary in the wetlands; and rare plant populations thrive.

Chris Rider, Executive Director of CPAWS Yukon, stated “The Supreme Court of Canada’s decision to hear this case shows that they recognize the value of the Peel Watershed. It is a treasure of international significance and it deserves protection. Beyond this, the final ruling will set a precedent for all future land use planning in the Yukon and the significance of that cannot be underestimated.”

Lawyer Thomas Berger says the proponents are in a good position.

Mr. Berger stated, “It is important to remember that the Court of Appeal’s judgment upheld Justice Veale’s decision to set aside the Government of Yukon’s Peel Watershed Regional Land Use Plan of January 2014. The Court of Appeal held that the Government of Yukon failed to honour the letter and spirit of its treaty during the initial consultation with First Nations and Yukoners.

“However, the Court of Appeal, instead of remitting the matter to the stage of final consultation (as Justice Veale had), remitted the planning process to the earlier stage at which the Government of Yukon, having received the Recommended Plan (back in 2010), was to consult with First Nations and affected communities and then approve, reject or propose modifications to the Recommended Plan.

“The Court of Appeal’s judgment thus allows the Government of Yukon to go back to 2010 and to start the process over at the point when it received the Commission’s Recommended Plan. The Court of Appeal also held that the Government of Yukon had final authority at the end of the day to reject any plan resulting from the process.

“We are now in a position to argue, before the Supreme Court of Canada, that on all of these points the judgment of the Court of Appeal should be set aside and Justice Veale’s judgment reinstated.“

“Mr. Berger concluded: “We will now be moving the appeal forward as quickly as we can under the rules of the Supreme Court.”

Peel case = 'decade of (gov't) failure'

Here’s the Peel court case statement from the Yukon Liberal Party following the news that the Supreme Court will hear the appeal of the Yukon Court of Appeal decision:
“Land use planning brings certainty for economic development while protecting our shared environment for future generations. When these decisions are left to the Supreme Court of Canada to decide, we lose our ability and responsibility to negotiate our share future through a local lens.
“The Yukon Party government has fought the will of the people at every turn. Today’s decision is a reminder of their inability to consult or negotiate with First Nation governments.
“While it is very disappointing that we have to go to the highest court in the land to be heard, at least the Yukon will find certainty for our environment and our economy after a decade of failure.
"Yukon Liberals have been clear on this issue for many years. Yukon Liberals believe and respect democracy. We respect the land use planning process. We accept the will of an overwhelming majority of Yukoners and would implement the Recommended Peel Land Use Plan.”

Let's cut a deal on the Peel: Yukon gov't

The Yukon Party government released this statement on the Peel Supreme Court case (note the absence of the politicians responsible for this political, economical, social and legal morass):
 "While continuing to have this matter in the courts is not the Yukon government’s preferred approach, we are hopeful that the Supreme Court of Canada can provide clarity and certainty to questions about how Yukon’s regional land use planning process should work and can make it clear that public government has the final say over public land.
"We remain committed to enhancing our government-to-government relationships and building positive, productive partnerships with First Nations for the benefit of all Yukoners, based upon the implementation of the Self-Government and Final Agreements.
"On several occasions, both publicly and through direct communication, our government has sought to work with First Nations to settle this matter outside the court. We remain open to these discussions.
"The prohibition on mineral staking and oil and gas development in the Peel watershed remains in place until Jan. 1, 2018 which we hope will provide enough time for the case to be heard."

Peel's fate now lies with Yukon voters: NDP

The following is a statement by Yukon NDP leader Liz Hanson following the Supreme Court of Canada’s June 9 decision to hear the Peel watershed land use plan appeal case:
"Early this morning, the Supreme Court of Canada granted leave to appeal in the Peel Watershed case, as requested by several Yukon First Nation governments and environmental groups. The decision by the Supreme Court, a win for Yukon First Nation governments and the Yukon public, will prompt a review of the Yukon Court of Appeal’s decision.

"The court of appeal decision essentially offered the Yukon Party government a do-over despite the bad faith it showed through the planning process towards First Nation Governments and Yukon citizens. This is a second chance that they do not deserve. Premier Darrell Pasloski and his government have failed to honour the letter and spirit of the Final Agreements and they have set the land use planning process back by years.

"But there is good news: we are heading into an election this fall. This time, the Yukon Party will not be able to hide its position on the Peel from you like they did in 2011. The fate of the Peel – one of North America’s last pristine natural ecosystems – will be up to the Yukon people who will choose Yukon’s next government. Under a Yukon NDP government, that means a Peel decision that reflects the Final Recommended Plan, respects the balance struck by the land use planning process and upholds the spirit and intent of the Yukon’s Final Agreements with First Nations governments.

"The Truth and Reconciliation Commission says that reconciliation is about an ongoing process of establishing and maintaining respectful relationships with all levels of government. A Yukon NDP government would put this vision at the core of our work."

Top court says YES to Peel appeal

The Peel watershed fiasco will get its day in the Supreme Court of Canada.
The court agreed to wade into the legal quagmire surrounding the Yukon’s Peel watershed at the request of three First Nations and two environmental groups.
It only grants leave to a small percentage of the cases that come asking for a hearing so this is a major victory for those who want to see the Peel protected.
It means the court believes this is an issue of national importance, an issue of great public interest.
The coalition of groups is asking the court to strike down a decision by the Yukon Court of Appeal which gave the government another chance to impose its development plans on the region.

Monday, June 6, 2016

Peel appeal appeal reveal June 9

Canada's top court is poised to say whether or not it wants to deal with the Peel watershed land use plan debacle.

The Supreme Court of Canada is scheduled to release its leave to appeal decision on Thursday, June 9 at 9:45 a.m. Eastern Daylight Time.

Officially it's case #36779 - First Nation of Nacho Nyak Dun, et al v. Government of Yukon.

"Et al" includes Dawson City's Tron'dek Hwech'in, the Old-Crow based Vuntut Gwich'in, the Yukon Conservation Society and CPAWS-Yukon. The N.W.T.-based Gwich'in Tribal Council wants to be an intervener if the court decides to hear the appeal.

The case against the Yukon government dates back to early 2014.  It was launched just days after the government imposed a controversial land use plan for the region. That plan provided almost no protection and was in stark contrast to the 80 per cent protection put forward in the plan developed by the independent Peel planning commission.

The Yukon Supreme Court sided with the First Nations and environmental groups. It ruled the government had broken the Yukon's modern-day treaty by rejecting the commission's plan and replacing it with one it produced unilaterally.

The court quashed the government's Peel plan. It also ordered the Yukon to redo the consultation on the final recommended plan.

Although the government didn't deny the wrongdoing, it did take issue with the court-ordered remedy. If it had to go back in time, it argued before the Yukon Court of Appeal, it should go back to a much earlier point in the process where its pro-development ambitions would be considered.

The Yukon Court of Appeal agreed with the government, saying it should pick up where it left off in 2010 and submit new proposals to the (now defunct) planning commission.

The First Nations and environmental groups think that's wrong. They say it gives the government the chance to sneak its development proposals through the back door.

They're hoping the Supreme Court of Canada at least agrees to hear its arguments. If they get their way, it could be at least another year before it's all settled or well after the next territorial election which has to be held by this fall.

Yukon Court of Appeal decision  2015
Yukon Supreme Court decision    2014
Final Recommended Plan             2011
Recommended Plan                      2009


Friday, March 13, 2015

Yukon puts new legal guns on Peel appeal

A Toronto-based law firm that specializes in international business has been hired to review the Peel land use planning court case for the Yukon government.

A three-man legal team from Torys LLP, which includes retired Supreme Court of Canada Justice Frank Iacobucci, replaces B.C. lawyer John Hunter on the controversial Peel lawsuit file.

Hunter unsuccessfully defended the government against the 2014 lawsuit launched by two Yukon First Nations and two environmental groups.They claimed the government's handling of the Peel land use plan violated the Yukon's treaties. After listening to five days of arguments and pouring through dozens of documents, Yukon Supreme Court Justice Ron Veale agreed.

In his Dec. 2 landmark ruling, he quashed the government's new Peel plan and ordered it return to the point in the planning process where it went off the rails. Veale also restricted the government's ability to reject the final recommended plan outright after conducting a final round of public consultation.

The government's decision to appeal Veale's ruling came as no surprise, but it angered many Yukoners who say the long and protracted legal battle is damaging the economy.

Now the government says it's "considering all its options" by hiring new legal counsel "to make recommendations to the Yukon government on how to proceed."

That could mean the government's thinking about dropping the appeal, but given its track record on the Peel it could also simply be another stalling tactic to give it time to sort out the growing suite of other legal hot potatoes, like the pending changes to environmental reviews of resource projects.

The new legal team "will engage in a thorough analysis of the record and give us their fresh views, with the objectivity that comes with being new to the matter," said assistant deputy minister of justice Mark Pindera.

As for a timeframe, the government has until the end of the month to file its written arguments but it could ask the Yukon Court of Appeal for an extension, said Pindera.

The court hasn't set a date to hear the case. The Yukon's appeal court is made up of three B.C. judges who usually only come to the territory once or twice a year to hear all the cases.

When the government filed its notice of appeal in late December, it told the media it needed "clarity" around the land use planning provisions of the Yukon's final land claim agreements. 

At the same time it imposed a ban on new mineral claim staking and oil/gas/coal dispositions in the Peel until the end of 2015.

Yukon Supreme Court Peel decision
Yukon Supreme Court Peel media summary