Court sends Peel watershed planning back to the drawing board
Judgment represents 'important victory' for First Nations, but means there is much work ahead
The Yukon Court of Appeal has upheld the Supreme Court's decision that the Yukon government did not respect the Peel watershed land use planning process as set out in final land claim agreements with First Nations.
Chief Justice Robert Bauman said Yukon undermined reconciliation by "failing to honour the letter and spirit of its treaty obligations." It did that by not revealing its modifications to the initial recommended plan and by submitting a new plan "disconnected" from earlier proposals.
Bauman ruled the planning process must return to the point where "Yukon derailed the dialogue essential to reconciliation as envisioned in Final Agreements."
Judgment a mixed bag for First Nations
While the judgment does not represent a clear "win" for either side, there is one important victory for First Nations, said Jeff Langlois, counsel for the Gwich'in Tribal Council.
"Yukon had asserted that they had the final say over the [land use] plan; they asserted that nothing in this process that they agreed to can limit them when it comes to imposing a land use plan," Langlois said.
"The court has rejected that argument soundly."
But he said the judgment is no party's first choice and means there is a lot of work ahead for First Nations.
"The court has essentially said 'Go back and sort it out again, come up with a new plan.'"
So, the Final Recommended Plan (approved by FN after a multi year process) will not be implemented. It is back to the drawing board.—@jefflanglois
This said, First Nations have killed Yukon's plan. The task now will be to ensure that FN rights/interests in Peel are reflected in new plan—@jefflanglois
Return to 'point of breach'
The Yukon government had hoped the court would overturn a December decision from the Yukon Supreme Court that quashed the territorial plan for the region. The government's plan would have protected less than 30 per cent of the land from development.
Now, the planning process will return to the "point of breach."
Treaty obligations required the Yukon government to consult with First Nations on an initial recommended plan created by an independent planning commission. "Yukon provided very general suggestions at the [initial Recommended Plan] stage and then proposed its own plan at the [Recommended Plan] stage," Justice Bauman wrote in his judgment.
He said Yukon's actions left the independent planning commission "ill-equipped" to advance the process. Bauman said the planning process must therefore return to the initial recommended plan stage.
Yukon government 'satisfied' with ruling
The Yukon government said it is satisfied with the court's decision to send the parties back to an earlier stage in the planning process.
In a press release, the government said it sought clarity that the Yukon government retains the authority to make final decisions on public lands.