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The Battle for the Peel

The Battle for the Peel

When First Nations and government agree to work together, who gets the final say?
By Eva Holland
Aug 05
From the August 2015 Issue

For four days in July 2014, half-a-dozen lawyers duelled in front of a packed courtroom and a Whitehorse judge. At stake: the fate of the Peel Watershed, a 68,000-square-kilometre region in northern Yukon, larger than Nova Scotia and Prince Edward Island combined.

THE PEEL TRIAL was simultaneously an esoteric legal argument and a dramatic public spectacle. It drew elders and chiefs, activists and government bureaucrats, and a squadron of local media. It was the culmination of months of rallies and fundraisers—Climb-a-Thon for the Peel; Zipline for the Peel; Yoga for the Peel—and had already spawned a series of rival bumper stickers: the dominant “Protect the Peel,” the cheeky “Protect the Peelers,” and the ambivalent “Protect the Peel? Let’s Vote On It.” 

The years-long wrangle over the Peel is often boiled down to a question of development versus conservation, but the court case wasn’t really about that. Instead, it was driven by a highly specific question of legal interpretation, involving one particular sub-section of one chapter of the Yukon’s seminal, and unique, Umbrella Final Agreement (UFA) with local First Nations. Eleven of the territory’s 13 First Nations had signed away rights and land in the deal, with the expectation of having a meaningful role in land use planning territory-wide. The chapter at stake outlines that role and brought about the Peel Watershed Planning Commission. 

The commission was formed in 2004, made up of six people: two nominated by affected First Nations, two nominated by the Yukon government, and two agreed upon by both parties. After years of work, the commission issued a Recommended Plan in 2009, and then offered its Final Recommended Plan in 2011. But in January 2014, the Yukon government announced a land use plan that differed sharply from the Final Recommended Plan—most notably, where the commission had recommended no new mineral staking in 80 percent of the region, the government plan only applied the staking ban to 29 percent. It was that gap that resulted in a lawsuit from the plaintiffs, and, seven months later, this trial.

The question before the judge was: had the government violated that one particular sub-section, and the First Nations’ broader expectations with it? Though it might not sound sexy, it was a gripping event right from the start.

This is what happened when the court was called to order and the real battle for the Peel watershed began.

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JUSTICE RON VEALE, a silver-haired, clean- shaven veteran of the Yukon Supreme Court, set a light-hearted tone early. “You all have to read this at lunch,” he joked to the unprecedented crowd in his courtroom as he arranged four massive three-ring binders, each one bulging with documents, in a row in front of him. “I read them all, I want you to know.” The courtroom responded with a murmur of half-hearted, nervous chuckling. No one was certain if they were permitted to laugh out loud.

By the time the trial began, every bench in the room was full, spectators packed in hip to hip, and a second courtroom, airing a video feed of the main action, was filling up too. The crowd had begun gathering well before the doors opened that morning, and when the court staff were ready, the bailiffs had called people in by seniority: chiefs and councillors first, then elders, then the rest. A front bench reserved for media was jammed with reporters from every outlet in town. 

The plaintiffs in the case were the Nacho Nyak Dun First Nation, the Tr’ondëk Hwëch’in First Nation, the Yukon Conservation Society (YCS), and the Yukon chapter of the Canadian Parks and Wilderness Society (CPAWS). They were represented by a legend, 81-year-old Thomas Berger, best known to Northerners as the head of the Mackenzie Valley Pipeline Inquiry, and two of his associates. The defendant was the Government of Yukon, represented by a grey-haired Vancouver litigator, John Hunter, and YG legal staffer Mark Radke. A sixth lawyer, young, curly-haired Jeff Langlois, represented the Gwich’in Tribal Council. Based in the Northwest Territories, but with traditional territory in the Peel watershed, the GTC stood to be directly impacted by the results of the trial. It had “intervener” status here, meaning that Langlois would have his chance to speak.

Once everyone was settled, Berger rose from his chair to give an opening statement. He was slow-spoken, with a deep, compelling, gravelly voice. He outlined the scope of the Peel watershed, and listed the First Nations with land claims and traditional territories there. He summarized the decade-long history of the Peel Watershed Planning Commission. The UFA, Berger said, “established an elaborate process in relation to land-use planning, and that is really the subject of this whole appeal.” The territorial government, he contended, his voice rising for emphasis, “has turned the process on its head.”

“To have that kind of rigidity in the process would be to put both sides in a straitjacket.” 

Hunter stood next to make an opening statement on behalf of the government. He had a warm, soothing voice—the voice of a kind-hearted TV sitcom dad, the kind of voice you trust instinctively. The differences between the two sides, he suggested, were relatively narrow—a question of interpretation. He outlined the rights and responsibilities granted to First Nations and the government under the UFA, noting that they mirror each other in inverse: the powers that First Nations hold over settlement lands—which they own and manage, as laid out in the UFA—are held by the government over non-settlement lands, and the secondary rights that First Nations retain on non-settlement lands are, likewise, retained by the government on settlement lands. The Peel, he noted, was 97 percent non-settlement land.

The argument between the two sides was about whether the Yukon government had the right to change the Final Recommended Plan the way it did. But of course, Hunter said, the government retained the final say over non-settlement lands just as the First Nations would over settlement lands. How could it be otherwise? “To have that kind of rigidity in the process would be to put both sides in a straitjacket,” he said.

With the opening shots fired, Justice Veale called for a 20-minute break.

*                *                *

THE UMBRELLA Final Agreement was signed in 1993. It’s a detailed document—300 pages long—that lays out the respective roles of First Nations governments and the Yukon government in determining how the territory’s land and resources are allocated and used. It covers everything from surface rights and road access to forestry and fishing. Section 11.6, “Approval Process for Land Use Plans,” is at the heart of the Peel dispute.

11.6.1 reads: “A Regional Land Use Planning Commission shall forward its recommended regional land use plan to Government and each affected Yukon First Nation.” That happened in 2009, when the Peel commission issued its initial Recommended Plan. The next four steps are the crux of the case:

Step 1 (11.6.2): Government, after Consultation with any affected Yukon First Nation and any affected Yukon community, shall approve, reject or propose modifications to that part of the recommended regional land use plan applying on Non-Settlement Land. 

Step 2 (11.6.3): If Government rejects or proposes modifications to the recommended plan, it shall forward either the proposed modifications with written reasons, or written reasons for rejecting the recommended plan to the Regional Land Use Planning Commission, and thereupon: 

Step 3 ( the Regional Land Use Planning Commission shall reconsider the plan and make a final recommendation for a regional land use plan to Government, with written reasons; and 

Step 4 ( Government shall then approve, reject or modify that part of the plan recommended under applying on Non-Settlement Land, after Consultation with any affected Yukon First Nation and any affected Yukon community.

The Yukon government chose, at Step 1, to propose changes to the Recommended Plan. At Step 2, it forwarded a letter signed by Patrick Rouble, then the Minister of Energy, Mines, and Resources, offering five suggestions to revise the plan. The commission then fulfilled its duty under Step 3, in 2011, by issuing the Final Recommended Plan. The government’s contention was that it had modified the Final Recommended Plan, as is its right under Step 4. The plaintiffs would argue that the January 2014 plan was a radical departure from the process: that having initially proposed modifications to the 2009 plan, the government couldn’t simply scrap the 2011 plan that resulted. 

“Every time someone says ‘proposed modifications,’ take a drink!”

Much of the arguments to follow would revolve around the specificity of the suggestions offered by the government in the Rouble letter, and the extent to which the commission adopted them. Much time was occupied, too, by a debate over whether the government was constrained, in any way, by its earlier proposed modifications when it came time to complete Step 4. Did the Rouble letter suggest tacit acceptance of the portions of the Recommended Plan that it left uncriticized? Could the government then, later, change its mind and propose more sweeping changes?

At one point during the proceedings, a reporter seated in the courtroom would tweet: “Every time someone says ‘proposed modifications,’ take a drink!”

*                *                *

AFTER THE BREAK, during which spectators stretched their legs and filtered outside for coffee, Berger launched into the meat of his argument. The UFA had set the ground rules for the modern relationship between the Yukon government and signatory First Nations. “This was a new document, a new approach to land-use planning,” he said. The Yukon’s most important treaty affirmed the role of First Nations in the territory’s land-use planning, he argued.

Then he dug into the specifics of section 11.6. “The plan is produced by the process,” Berger said, his volume rising again. “The plan is not supposed to emanate from the government or the First Nations. It is produced by the planning commission!” He pounded his fist on the lectern in front of him, the microphone picking up the thud of impact. “That is the point of this whole elaborate process.”

He argued the Yukon government had its chance to suggest changes, and that if it was so unhappy with the 2009 plan, it had years to say so before detouring to produce its 2014 plan. “If you want to propose modifications, you’ve got to propose modifications to the Recommended Plan as written,” he said, “and we will show that the Government of Yukon failed to do that. And that has given rise to the dispute here.”

In the afternoon, Berger dug into the Rouble letter, a brief document that contained five proposed modifications. The first two, he argued, were so vague that they could hardly be considered concrete proposals. 

“This is all at a level of generality,” he said dismissively as he read the letter’s first two recommendations, which expressed a desire for “balance” between “society’s interests”—i.e., development vs. conservation.

The third proposal: simplify, simplify. “The Yukon government is looking for a less complex and more streamlined land management regime in the Final Plan,” the letter read. “This is approaching the specific,” Berger said, sarcasm coming through strong.

Berger argued the commission had, in fact, adopted the government’s third, fourth, and fifth proposed modifications. The first and second, he shrugged, were too vague for the commission to grapple with. They had done their best with what the government provided them.

*                *                *

THE NEXT AFTERNOON, Jeff Langlois rose to speak briefly on behalf of the Gwich’in Tribal Council. He was efficient, fast-talking, and clear in his arguments. He said a narrow reading of the government’s obligations to cooperate with the Peel planning commission under the UFA would leave First Nations who had settled their land claims and signed modern treaties with little choice but to litigate their disagreements, which the treaties were meant to help resolve. It might, he added, even undermine the future utility of modern treaties, and discourage First Nations with unsettled claims from coming to the table.

The purpose of a modern treaty is to foster reconciliation, he said, to rebuild the fractured relationships between Canada’s governments—federal, provincial, and territorial—and its First Nations. If the court allowed the defendant to do the barest minimum, to define its obligations too narrowly, he suggested, that purpose would be ill-served.

“You’ve got a commission that went back into its shell very early on. They got shouted down, and they said, ‘Let’s just not do anything’ … It’s not, in my respectful submission, much of a planning process.”

That suggestion is backed by a well-established legal precedent, the concept of the “honour of the Crown,” which requires that Canada’s governments must not engage with First Nations treaties the way two parties might in a business deal, jockeying for every possible advantage. The “honour of the Crown” requires a certain generosity, fulfilling the spirit of the treaties and not merely the letter.

“The plaintiffs before you advance what I might call a threshold legal question. And that is, does the Yukon government have the legal authority to modify the Peel plan in the way that it did, or is it constrained to the modifications proposed in the first plan?”

The land-use planning process outlined in Chapter 11 wasn’t there as a mere suggestion for the Yukon government to take or leave. “This requirement for dialogue seems pointless,” he said, “if the Yukon retains total discretion” over the end result of the process.

He urged the court to see its decision not as a question of siding with the First Nations or the government, but as ruling in favour of the goal of reconciliation. “Reconciliation requires very hard work,” he told the courtroom, which was still full to the brim after two full days of action. “And sometimes it might require one of the parties to give up some of their authority.”

*                *                *

ON THE THIRD morning of the trial, John Hunter rose to offer the government’s defence. Tall and dark-suited, he spoke for most of the day in his calm Mr. Rogers voice. Summarizing the chronology of events leading up to the lawsuit from the government’s point of view, he depicted a Peel planning commission that was paralyzed by indecision over the question of development versus conservation. He described the Final Recommended Plan as a “non-planning plan,” and argued that the commission “never made a single hard decision.”

“You’ve got a commission that went back into its shell very early on,” he said. “They got shouted down, and they said, ‘Let’s just not do anything’ … It’s not, in my respectful submission, much of a planning process.”

In Hunter’s version of the story, the Yukon government had to step in and make the hard land-use planning choices that the planning commission had backed away from. Hence the 2014 plan—in Hunter’s terminology, always referred to as the “approved plan”—which was, he said, “a much more sophisticated and sensitive plan than it’s been presented as.”

Like Berger, he spent time working his way through the Rouble letter. Only this time, Justice Veale seemed skeptical of the logic being thrown at him and kept interrupting Hunter’s oration. 

Veale: “So do you say that [the Rouble letter] complies with the requirement” to propose modifications?

Hunter: “Yes. It’s not chapter and verse, I’ll grant you that.”

Veale: “Do you accept that it might have been better to get into these details [in #1 and #2] as it did with 3, 4 and 5?” 

Hunter: “Well, I’m going to come to that in a moment.”

The government was damned if they did and damned if they didn’t, Hunter said. “The commission does the Recommended Plan,” he explained. Then, “the party with the ultimate responsibility for approving the plan”—the Yukon government—“has the ability to ask for changes. But it’s not really appropriate for that party to start redoing the plan. The commission is still in place, the commission is still doing its work. One can imagine the response if the government had sent a proposal to the commission with a long list of specific suggestions … Everybody would have said, ‘You’re usurping the role of the commission. You can ask for changes, but you can’t be so prescriptive.’” If the government had, say, put forward the substance of its eventual 2014 plan when it was offered its chance to suggest changes to the 2011 plan, Hunter argued, they would have been told their actions were inappropriate.

Veale wasn’t buying the hypothetical. How can you put forward generalities, he asked Hunter, and then later present your specific plan and say, “This is what we meant”?

At one point, Justice Veale referred to the 2014 plan as a “new plan.” Hunter was quick to object. “I’d say it’s a changed plan,” he said. The judge didn’t back down. "It is different," Veale said. "Not as different as it's been portrayed [by Berger]," he allowed. "...It's different in a material way. I accept that."

"Plans change over time. The scheme and the internal architecture, if one will, of this chapter, is that there is a step-by-step development to the point where the final decision maker has to make a decision.”

As Veale’s sparring with the government lawyer went on, the CPAWS and YCS activists in the courtroom caught each other’s eyes and shared fierce, elated, silent smiles. Senior government bureaucrats, some of whom had been instrumental in drafting the 2014 plan, exhaled in sharp little huffs of disagreement, or shook their heads vehemently. The elders held themselves in respectful silence throughout, one or two of them nodding off, chins falling to their moosehide-covered chests.

The judge wasn’t picking sides, only seeking clarification of the government’s assertions, probing how they fit into its overall argument and how they stood up against Berger’s case. Still, it was clear that he was finding holes in a presentation that Hunter had hoped would appear seamless.

Hunter kept swinging, though. “I’m trying to establish the proposition that the government has been assiduous in following the process in Chapter 11,” he said.

“The proposition that one is limited to modifications proposed to a Recommended Plan when one is deciding whether or not to modify a Final Recommended Plan cannot be right. Plans change over time. The scheme and the internal architecture, if one will, of this chapter, is that there is a step-by-step development to the point where the final decision maker has to make a decision,” he argued. The point of the process laid out in Chapter 11, he said, was not to constrain the ultimate decision-maker but to provide them with more and better information with which to make their decisions as the process unspooled.

He concluded by arguing that even if Judge Veale found that the government had failed to follow the Chapter 11 process in its entirety, he could not impose the 2011 Final Recommended Plan as the new “approved plan,” as Berger was urging. Only the government, he said, had the power to approve a plan.

*                *                *

DAY FOUR BEGAN with Thomas Berger’s reply for the plaintiffs.

The elder statesman of Canadian aboriginal law got to his feet and delivered a forceful oration that reminded everyone why he’s a legend.

“My argument is that Government of Yukon has left the Umbrella Final Agreement behind,” he said, in the slow, decisive, listen-to-me cadence of a preacher, or a skilled politician on the stump. “They claim that the Recommended Plan and the Final Recommended Plan are only materials that Government of Yukon may find useful, but they have no standing. They might as well be a report that they found on the internet and said to themselves, oh, this has some good ideas. It’s as if the UFA had never been signed by Government of Yukon and entrenched in the Constitution."

The government, he said, claimed only they could approve the Peel plan—that even if the court found they had violated the most important agreement in modern Yukon history, Veale could not impose the 2011 plan on them.

“Now it was the Government of Yukon that derailed the process,” he said. “And I submit with respect that if you analyze the behaviour of Government of Yukon, it falls squarely within the language of the Manitoba Métis case. Para 80, [Supreme Court] Chief Justice McLachlin said, ‘To fulfill this duty—that is, to observe the honour of the Crown—Crown servants must seek to perform the obligation entrenched in the Constitution to aboriginal people in a way that pursues the purpose behind the promise. The aboriginal group must not be left with an empty shell of a treaty promise.’ 

“And that’s where Government of Yukon proposes to leave the First Nations and the Yukoners in the affected communities who have rights under the Umbrella Final Agreement. They too have been left by the roadside, holding an empty shell of a promise.”

*                *                *

THE END of the Peel trial was anticlimactic. Unlike on TV or in the movies, there was no commercial break followed by a quick conclusion. Justice Veale reserved his judgment for the time being and the crowd of lawyers, elders, politicians, bureaucrats, activists, and media got to their feet, stretched their limbs after four days of sitting on hard benches, and trooped outside into the endless summer sunlight.

In December 2014, Justice Veale ruled in favour of the plaintiffs. He quashed the 2014 plan, but rather than declare the 2011 Final Recommended Plan must be adopted, he ordered the territorial government to consult Yukoners about the Final Recommended Plan before applying some limited modifications to it—based only on what they had proposed in the latter portions of the Rouble letter.

The government appealed the decision, and the Yukon Court of Appeal will hear the case this month in Whitehorse.