Yukon Court of Appeal kills Yukon’s Peel Watershed plan, but parties sent back to the drawing board

The Hart River. Credit to Flickr Images ProtectPeel.ca/Juri Peepre.

On November 4, 2015, the Yukon Court of Appeal released its decision about Yukon’s adoption of a land use plan for the Peel Watershed. The decision is a mixed result for the First Nation plaintiffs and intervener.

While the Yukon Court of Appeal upheld the trial court’s 2014 decision to overturn Yukon’s plan, the Court said that proper remedy for Yukon’s failure to honour the treaty process is to send the parties back to the point in the planning process where this failure began, and where Yukon had not revealed the extent of its modifications to the plan. This gives Yukon another opportunity to seek a greater degree of development in the Peel Watershed.

In January 2015, we reviewed the trial decision in more depth and a more detailed backgrounder can be found in recent articles written by Eva Holland and the CBC.

Background

This case arises from the land use planning process in the Peel Watershed, which encompasses 68,000 km2 of Yukon and six major rivers. This is an important area for a number of northern First Nations, including the First Nations of Nacho Nyak Dun and Trondëk Hwëch’in, the Vuntut Gwich’in and the Gwich’in communities of the Northwest Territories represented by the Gwich’in Tribal Council.

Land claims agreements with Yukon First Nations required that an independent land use planning commission develop a recommended plan for Yukon and First Nations to approve. This process took place over the course of 7 years and required the following steps:

1. The independent planning commission studies the Peel and recommends a land use plan to First Nations and Yukon.
2. Yukon, at that stage, has the power to “approve, reject, or propose modifications” to the Recommended Plan, after consulting with First Nations.
3. If Yukon decided to reject or modify the Plan, it had to provide written reasons to the commission.
4. The commission then reconsiders the Plan, and releases a Final Recommended Plan.
5. Yukon must then consult with affected Yukon First Nations and other affected communities on the Final Plan.
6. Yukon may then “approve, reject or modify” the Final Plan.

The commission’s Recommended Plan gave a high degree of protection to 80% of the Peel while allowing oil and gas and mineral development in the remaining 20%. At this stage, Yukon opted to provide only brief, non-specific comments requesting more “balance” between conservation and development and greater access to existing mineral claims.

The commission incorporated some changes in response to Yukon’s comments before issuing its Final Recommended Plan, but stated that it was not possible to accept Yukon’s comments related to balance and access without “going back to the drawing board”.

At that point, Yukon essentially re-wrote the land use plan from scratch, discarding much of the work of the commission, introducing new land use designations and dramatically shifting the balance of protection in the region to 71% open for development with only 29% protected.

Charlie Snowshoe. Views from Fort McPherson: Public consultations on Peel Watershed. Credit to Inuvikphotos.ca

Two Yukon First Nations, Na-Cho Nyak Dun and the Tr’ondek Hwech’in; two environmental organizations, Yukon Chapter of CPAWS and Yukon Conservation Society; and two residents of Whitehorse commenced an action. They sought a declaration that the Final Recommended Plan was the approved plan for the Peel Watershed pursuant to the land claim agreements of the plaintiff First Nations.  Gwich’in Tribal Council was added as an intervener to the proceedings.

Peel Watershed. Credit to Mining.com

Protected areas in light and dark green. Credit to Protectpeel.ca

Supreme Court of Yukon Decision

At trial, the Yukon First Nations and the Gwich’in Tribal Council argued that Yukon, in discarding the Final Recommended Plan and creating a new plan, had rendered the collaborative land use planning process set out in the Yukon land claim agreements meaningless. Yukon argued that it retained the “final say” on non-settlement land and that a plain language interpretation of the agreements permitted Yukon to adopt its plan for the Peel.

Justice Veale, for the Yukon Supreme Court, accepted the arguments of the First Nations, quashed Yukon’s plan, and ordered that the Final Recommended Plan be implemented, with limited modifications, as the land use plan for the Peel Watershed.

Yukon Court of Appeal decision

The Court of Appeal upheld Justice Veale’s decision to overturn Yukon’s land use plan, stating that Yukon “undermined reconciliation by failing to honour the letter and spirit of its treaty obligations” in three ways:

1. Failing to reveal the extent of its plan modifications at the Recommended Plan stage, thereby undermining the dialogue central to reconciliation.
2. Proposing modifications that lacked detail or reasons, leaving the commission ill-equipped to advance the dialogue with a Final Recommended Plan that considered Yukon’s position.
3. Proposing a new plan disconnected from its proposed modifications at the Recommended Plan stage, denying the commission its role to develop a final recommendation for land use planning in the Peel.

The Court departed from Justice Veale in terms of how practically to solve the problem. The Court concluded that the remedy for Yukon’s failure is to rewind to the point in the process where Yukon’s failure began  – the stage where it provided comments on the Recommended Plan –  so that Yukon could provide its comments in a valid way and in a manner that does not thwart the principle of reconciliation. The Court said:

It was Yukon’s failure to properly exercise its right to provide modifications that derailed the dialogue essential to reconciliation as envisioned in the Final Agreements. This derailment of the dialogue is where Yukon’s failure began, and marks the point to which the process must be returned.

Yukon and the First Nations will now have to return to the planning process to continue dialogue on a plan for the Peel.

The clock has been turned back on Yukon’s plan, but is it gone for good?

This case has important ramifications for the Peel and for the implementation of modern land claims generally. We may see the decision appealed to the Supreme Court of Canada should the parties and the court so decide.

For land use planning in the Peel, the Court has strongly rejected Yukon’s assertion that it has final say over land use planning. Instead, the Court has accepted the submission of First Nations – that the collaborative land use planning process required by treaty must be respected and that Yukon must meaningfully engage with First Nations. Yukon cannot simply provide an opportunity for First Nations to blow off steam, and then implement the plan the government has wanted all along.

While this is a welcome conclusion, the effect of the Court of Appeal’s version of the remedy may impose a high burden on the First Nation parties who have much at stake in the consultation process.

With the clock turned back on the land use planning process to the point when the Recommended Plan was delivered by the commission, Yukon may now propose modifications (with detailed reasons) so long as it consults with First Nations. This gives the Yukon another chance to seek modifications to the Recommended Plan. In doing that, the Court ordered, Yukon cannot simply table its proposed plan; it must meaningfully consult First Nations about any proposed modifications.

But this means that First Nations and other affected communities must continue to articulate why the Peel should be protected, continue to participate, express their concerns, provide information, and hold Yukon to account in its conduct of the process and decision making. As we have seen in many cases, the process of consultation is burdensome and can be expensive and frustrating.

From a broader perspective, this decision confirms that reconciliation is key to the implementation of modern land claims agreements, many of which provide for collaboration between First Nations and governments. These collaborative processes must be treated with respect and the outcomes of these processes cannot be ignored by governments. Indeed, collaborative decision making  – where the parties communicate openly, take proper account of one another’s priorities and concerns, and make well-crafted decisions together – must be seen as the touchstone of meaningful reconciliation.