Application for Leave to Appeal to be Filed with the Supreme Court of Canada on Peel Watershed

What’s Next for the Peel Press Conference

What’s Next for the Peel Press Conference

Media Release

December 15, 2015

Peel Watershed Case

Application for Leave to Appeal to be Filed with the Supreme Court of Canada

 

After careful consideration of the Yukon Court of Appeal’s decision in the Peel Watershed case, the First Nation of Nacho Nyak Dun, the Tr’ondëk Hwëch’in, the Vuntut Gwitchin First Nation, CPAWS Yukon and Yukon Conservation Society have decided to apply for leave to appeal the decision to the Supreme Court of Canada.

 

The application for leave to appeal will address the Yukon Court of Appeal’s ruling that the process for land use planning for the Peel Watershed should be sent back to the stage of consultation on the Recommended Peel Watershed Regional Land Use Plan, released in December 2009. The application will also seek leave to appeal the Yukon Court of Appeal’s interpretation of the procedure followed for land use planning in the Yukon under Chapter 11 of the Final Agreements between Canada, Yukon and Yukon First Nations.

 

The ruling of the Yukon Court of Appeal effectively returns the land use planning process to a stage completed approximately four years ago and allows the Yukon government to re-do its consultation with the First Nations and the public and then to choose whether to approve, reject or propose modifications to the Recommended Peel Watershed Regional Land Use Plan. In the application for leave to appeal the applicants will argue that this ruling was a mistake in law and that it does not uphold the integrity of the Final Agreements. The Yukon Court of Appeal also ruled that proposing modifications to a regional land use planning commission’s recommended plan does not preclude the Yukon government from rejecting the plan after final consultation. In the application for leave, the applicants will argue that this was a mistake in the interpretation of the Final Agreements and that it introduces substantial uncertainty in future land use planning processes in Yukon.

 

“This judgment, of the highest court in Yukon, will now govern land use planning not only in the Peel, but in every region of Yukon, as planning proceeds, for years to come,” stated lead lawyer for the respondents, Thomas R. Berger, Q.C., “It must be appealed.”

 

Chief Roberta Joseph of the Tr’ondëk Hwëch’in added to this, stating, “There are important questions that merit consideration by the Supreme Court of Canada.  We will continue doing all we can to protect the integrity of our agreements and the Peel.”

Interim Executive Director of CPAWS Yukon, Jill Pangman, spoke to the importance of the Peel Watershed to the public, stating, “In a world that’s becoming increasingly industrialized and fragmented, the most valuable resource Yukon can offer is its wildness. Yukoners spoke loud and clear over the years of consultations. The majority want to see the Peel Watershed protected.  They recognize that the region’s wilderness values, ecological integrity and remarkable landscape are far too precious to squander for short term monetary gain.”

 

“The Peel Watershed has been home to the Gwitch’in for millennia. Generations of both Vuntut and Tetlit Gwitch’in have been sustained by the life that has flourished here.  Of particular importance to the Gwitch’in Nation are the Porcupine caribou that migrate through the watershed each year.  Because of all of this we stand strong on seeking protection for the Peel,” added Chief Roger Kyikavichik of the Vuntut Gwitchin First Nation.

Looking beyond the Peel, to land use planning processes throughout the Territory, Yukon Conservation Society Executive Director Christina Macdonald said, “This court case is critical not only for protecting the Peel Watershed but for all future land use planning in the territory. This process allows all of us to have a say in how our natural environment is protected, developed and managed.  For this reason we are committed to seeing a just process upheld.”

 

Chief Simon Mervyn of the First Nation of Nacho Nyak Dun concluded with the words, “Our old people lived and survived off the land. They depended upon the animals and plants, the clean air and water. They understood that as humans we cannot own the land, but that it is our job to protect it.  We have seen the impact industry is having on the lands and waters of the Territory and we are determined that this will not happen in the Peel Watershed. ”

 

Once the application is filed with the Supreme Court of Canada, the Yukon government will have 30 days to respond to the application for leave to appeal.  This will be followed by a further 10 days for the applicants to file any reply to the Yukon government’s arguments.  Three judges of the Supreme Court of Canada will then decide whether leave to appeal is granted.  A decision from the Supreme Court of Canada on whether to allow the application for leave to appeal may take a number of months.

 

We expect to file the application in the next few days.

 

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Media Contacts:

 

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

Chief Simon Mervyn, First Nation of Na-cho Nyäk Dun, Chief Roberta Joseph, Tr’ondëk Hwëch’in, and Chief Roger Kyikavichik, Vuntut Gwitchin: via Wayne Potoroka 867-993-7100 Ext 108

Jill Pangman, CPAWS Yukon: 867-332-8079

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

 

To access the leave for appeal once it is filed go to: http://tinyurl.com/jhup3mh

 

Background:

 

The plaintiffs launched legal action in the Supreme Court of Yukon on January 27, 2014 to force the Yukon government to implement a land use plan that would protect more than 54,000 square kilometres of wilderness in northern Yukon’s Peel Watershed from mining and other industrial development. The week of July 7-10, 2014, renowned lawyer Thomas R. Berger, Q.C. argued the landmark case Whitehorse in front of a packed house. The case was continued on October 24th to accommodate a deeper discussion focused on remedy. On December 2, 2014 Justice Veale delivered his written decision in which he agreed with the plaintiffs that the Yukon government had violated the land use planning process laid out in the Final Agreements with respect to the Peel Watershed. He held that the planning process should be returned to the stage where the Yukon government ran it off the rails – the final round of consultation with First Nations and the public. Justice Veale ordered that after the final round of consultation, the Yukon government was limited to approving the Final Recommended Peel Watershed Regional Land Use Plan or modifying it in accordance with the modifications it previously proposed. On December 30, 2014 the Yukon government announced it was appealing Justice Veale’s decision.

 

The appeal was heard by the Yukon Court of Appeal on August 20 and 21, 2015. The Court of Appeal released its Reasons for Judgment on November 4, 2015. While the Court of Appeal found that Justice Veale was essentially correct in reasoning that the Yukon government did not honour the process as properly interpreted, the Court of Appeal disagreed with the remedy granted by Justice Veale. The Court of Appeal allowed the appeal of the Yukon government in part by holding that the matter should be remitted back to the stage of consultation on the Recommended Peel Watershed Regional Land Use Plan, released by the Peel Watershed Planning Commission in December 2009.

 

Find the Peel 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/a2rkzl0mutgd74c/N_Ao14ZEIp

 

What’s Next for the Peel? Live Stream and Public Event

Next-For-The-Peel-Poster

Tuesday, December 15th
7-9 pm (Pacific Time)
Yukon Beringia Interpretive Centre
and online at: https://www.youtube.com/watch?v=KSTePF-Hf4Y

Join us for a public information session to discuss the Yukon Court of Appeal ruling on the Peel Watershed and our next steps.

Speakers include:
Chief Simon Mervyn, Nacho Nyak Dun
Chief Roberta Joseph, Tr’ondëk Hwëch’in
Chief Roger Kyikavichik, Vuntut Gwitchin
Jill Pangman, CPAWS Yukon
Christina Macdonald, Yukon Conservation Society
Margaret Rosling, Aldridge and Rosling

For those who cannot attend the event in-person it will be live streamed at: https://www.youtube.com/watch?v=KSTePF-Hf4Y

The live stream audience will be able to ask questions of the speakers during the question period through the live stream chat functions, by emailing jjack@cpawsyukon.org, or by phoning or texting 867-332-0310.

Join a Live Stream Hub in your local community! Hubs can be found in:

Aklavik
Band Office Board Room
8:00pm to 10:00pm (Mountain Time)
Doors open at 7:45pm

Dawson City
Tr’ondëk Hwëch’in Hall
7 – 9 pm (Pacific Time)

Haines Junction
St. Elias Convention Centre
7 – 9 pm (Pacific Time)
178 Backe Street

Inuvik
Gwich’in Tribal Council – Main Boardroom
Chief Jim Koe Zheh Building
1-3 Council Crescent
8:00pm to 10:00pm (Mountain Time)
Doors open at 7:45pm

Mayo
Yukon College Campus
7 – 9 pm (Pacific Time)

If your community isn’t yet listed and you’d like it to be please get in touch: achurch@cpawsyukon.org

Daily Summary of August 21 Peel Appeal

The Peel appeal reconvened this morning at 9 am with both courtrooms again packed to capacity.  Thomas Berger led off this morning’s proceedings, detailing for the court the reasons why Justice Veale’s decision should be upheld.  He stressed that dialogue, facilitated through detailed written reasons was at the heart of this case.  “It is obvious from my learned colleagues’ testimony that Yukon Government did read the recommended plan in detail,” he said, “which leads to the conclusion that they made a conscious choice not to submit more than a sentence in response.”  He added, “The commission can’t provide written reasons in return if there’s nothing to reply to.”

Berger characterized the government’s action to adopt its own plan in the final stages as an end –run around the process and the First Nation’s and NGO’s decision to seek legal action as a defence of the land use planning process.

After a 15 minute recess, Berger went on to explain that the government’s decision to modify the plan in the early stages constrained them modification in the later stages.  Adding that had the government chosen to reject the plan initially the option to reject at the final stage would still be open to them, but by not doing so that option was no longer available.  He explained, “The process can be viewed as one of vertical integration – Yukon Government is constrained by their earlier choices.”

Justice Goepel then posed the question that if the commission had accepted the First Nations’ proposed modification of 100% of the area being placed under protection, would Yukon Government have then been allowed to reject the plan?  Mr. Berger requested some time to reflect on the answer from the court, which was granted.

Berger then went on to discuss the concept of honour of the Crown and how it required a “fair and liberal interpretation of the text” versus a plain-reading interpretation as forward by Yukon Government’s counsel.  He reminded the court that Justice Veale found that “a legalistic interpretation that divorced words from meaning was not appropriate in this case.”

He went on to discuss the issue of remedy, pointing out to the court that the remedy associated with Justice Veale’s decision would not result in an empty exercise as opposing counsel suggested.  “It is very possible that the public would have serious views to express on the issues of implementation and the number of land management units,” he explained.

Jeff Langlois, counsel for the interveners – the Gwich’in Tribal Council, then took the podium.  Langlois reminded the court that First Nations had exchanged their rights and title for promises of dialogue and collaborative decision making.  He stressed that if the Crown’s powers in the process remained unfettered than First Nations would be forced to enter these collaborative processes in a combative fashion and may ultimately question the point of these agreements.  He reinforced his points by stated that “unfettered government power does a dis-service to reconciliation”.

The court then took a second 15 minute recess, after which Margaret Rosling took the stand for the appellants to address Justice Goepel’s earlier query.  She explained that had the commission gone off the rails and accepted the First Nations proposal for 100% protection they would have been in contravention of the UFA and would find themselves in the same position Yukon Government now finds itself.  She pointed out that this of course was all hypothetical, since the commission didn’t take that action.  She closed with stating that “we urge the court to put reconciliation back on track by upholding Justice Veale’s decision”.

At this point Mr. Laskin rose to provide Yukon Government’s response.  He re-iterated his earlier arguments, stressing that the court should not enforce an “artificial consensus” and answered several questions from the bench.

Chief Justice Bauman then thanked both counsels and called the proceedings to a close.  The justices chose to reserve their judgement and did not provide a timeline for the delivery of that judgement.

Daily Summary of August 20th Peel Appeal

The Peel appeal hearing started this morning at 9 am at the Yukon Law Courts in Whitehorse, but the crowds started to gather more than an hour before to secure a spot in one of the two courtrooms to take in the proceedings.  Courtroom 1, where the arguments were physically taking place, was jam-packed with the appellants, respondents, First Nation elders, and media.  The proceedings were live-streamed into Courtroom 3 for members of the public.  This room was overflowing with a lineup outside the door waiting to get in at various times throughout the day.

John Laskin, senior counsel for Yukon Government (the appellant), started the day off taking the panel of three Yukon Court of Appeal Justices (Chief Justice Bauman, Madam Justice Smith and Justice Goepel) through the reasons for Yukon Government’s appeal of the Yukon Supreme Court ruling, released December 2014 by Justice Veale.  Laskin outlined that Yukon Government believes that Justice Veale erred in five points of his ruling.  These points are:

  • The proposal of modifications (rather than rejection or acceptance) signifies tacit approval of the parts of the plan that weren’t proposed to be modified.
  • Modifications to the final recommended plan must be based on previous modifications to earlier versions of the plan.
  • Points 1 and 2 in Minister Rouble’s letter outlining Yukon Government’s proposed modifications lack sufficient specificity.
  • Yukon Government’s modifications should not be derived from previous modifications.
  • Yukon Government failed in their duty to consult.

The three presiding justices posed a number of questions to Mr. Laskin as he worked through his arguments, resulting in extensive back-and-forth.

During the lunch break a Water Ceremony for the Peel took place on the front steps of the Law Courts.  Over 200 people gathered in the pouring rain for an hour to show their support for Peel protection.  With them they brought over 350 vials of water collected from Yukon water bodies of personal significance that were mingled together in large glass vessels.

Once court resumed, John Terry, another member of Yukon Government’s legal counsel, took to the podium to elaborate on the issue of remedy. Terry argued that if the appeal court finds Justice Veale’s ruling stands and the Government’s plan is quashed, the remedy Justice Veale presented is incorrect. Terry pointed to 4 reasons he felt the remedy was inappropriate.  These were:

  • The remedy fails to uphold the status quo.
  • The remedy fails to take into account the role of an elected legislated government.
  • The remedy isn’t fair to Yukon Government.
  • The remedy is not consistent with reconciliation.

John Terry’s presentation concluded the appellants’ arguments leaving a short time for Thomas Berger to begin to delve into the respondents’ argument for why the ruling by Justice Veale should be upheld by the Court of Appeal. Much of his discussion and the resulting questions from the three Justices revolved around how and when Yukon Government could modify or reject the Peel land use plan.

The day wrapped up with a crowd of over 300 people coming together at the Kwanlin Dün Cultural Centre for a delicious BBQ for the Peel.  The respondents took the opportunity to thank the public for all of their support during the legal battle and then Dana Tziyza-Tramm, a member of the recent First Nations youth Peel Watershed canoe trip, shared youths’ perspective on the court case and the need to protect the watershed.  A citizen of the Gwich’in people from the North West Territories also spoke to the crowd. This was followed by the closing of the Water Ceremony for the Peel, led by Nacho Nyak Dun elder Jimmy Johnny, where the waters mingled earlier in the day were poured into the Yukon River.

Court resumes tomorrow at 9 am, when Mr. Berger, along with his co-counsel Margaret Rosling and Patricia Riley, will present the meat of their arguments.  This will be followed by a presentation by Jeff Langlois, counsel for the interveners in this case – the Gwich’in Tribal Council, and then a response by Mr. Laskin on behalf of the appellants.