Peel Watershed Case headed to the Supreme Court of Canada

  • Published on Jun 09 2016 |
  • This article is tagged as: peel-watershed

First Nations & Yukon Environmental groups granted leave to take the Peel Watershed Case to the Supreme Court of Canada

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 for the case 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 judgement of the Court of Appeal should be set aside and Justice Veale’s judgement reinstated.“

Mr. Berger concluded: “We will now be moving the appeal forward as quickly as we can under the rules of The Supreme Court.”
The affected First Nations and environmental groups will be organizing public information events within Whitehorse and the communities in the weeks to come. Notice of these events will be widely circulated.
Stand with the First Nations and environmental groups in their work to protect the Peel Watershed by signing the new Peel Pledge, which was launched today on http://www.protectpeel.ca
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Media Contacts:
Chris Rider, Executive Director, CPAWS Yukon: 867-393-8080 (ext. 4)

Christina Macdonald, Executive Director, Yukon Conservation Society: 867-668-5678

Thomas R. Berger O.C., Q.C: 604-605-5555

Margaret D. Rosling, Aldridge + Rosling Barristers and Solicitors: 604-605-5555

Chief Simon Mervyn, First Nation of Na-Cho Nyäk Dun, Chief Roberta Joseph, Tr’ondëk Hwëch’in & Chief Bruce Charlie, Vuntut Gwitchin: via Wayne Potoroka 867-993-7100 Ext 108

Background:
The Peel Watershed case was heard by the Supreme Court of Yukon in 2014 and Court of Appeal of Yukon in 2015. The interpretation of the terms of the land use planning process laid out in the Umbrella Final Agreement which Canada, the Government of Yukon and the Yukon First Nations entered into in 1993 is central to the case. These terms were subsequently incorporated into the Final Agreements of various First Nations including Na-Cho Nyak Dun, Tr’ondëk Hwëch’in, and Vuntut Gwitchin. Both Yukon courts found that the Government of Yukon failed to honour the letter and spirit of its obligations under the Final Agreements during the Peel Watershed land use planning process.

Where the courts differed was on the remedy for the Government of Yukon’s breach of the land use planning process. The remedy in the Peel Watershed case determines at what point in the land use planning process the Government of Yukon is allowed to return to. The trial judge in the Supreme Court of Yukon ordered that the process should be returned to the stage of final consultation with the First Nations and affected communities so that the process can be completed in accordance with the Final Agreements. However, the Court of Appeal of Yukon ordered that the process should be sent back to the earlier stage of consultation on the Recommended Peel Watershed Regional Land Use Plan, so that the Government of Yukon can conduct the consultation and then decide again whether to approve, reject or propose modifications to that plan.
The courts also disagreed in respect to whether the Government of Yukon has the right, at the end of the day, to outright reject a land use plan after years of expense and consultation and after previously indicating it was only seeking to modify the regional land use planning commission’s recommended plan.

The First Nations and environmental organizations (the applicants in these proceedings) filed their application for leave to appeal to the Supreme Court of Canada on December 23, 2015.  The Gwich’in Tribal Council subsequently filed a motion for leave to intervene in the application for leave to appeal to the Supreme Court of Canada.

On February 8, 2016, the Government of Yukon filed its written Response to the application for leave to appeal. The Government of Yukon argued in its Response that none of the issues in the case are of national or public importance and that the Supreme Court of Canada should not grant leave to appeal the decision of the Court of Appeal of Yukon.

Find the Peel Watershed appeal decision here: http://tinyurl.com/qx837rz

For more background and media resources on the Peel campaign and its history, go here: https://www.dropbox.com/sh/mg4n4rfm6santg7/AAA_QnrKoEZOrzaV0Gj6bP-Va?dl=0

For CPAWS Yukon: http://cpawsyukon.org/

For Yukon Conservation Society: http://yukonconservation.org/

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