The Peel court case reconvened for a fifth and final day today at the behest of Justice Veale. The judge brought the plaintiffs and defendants back together at the Yukon Law Courts to delve deeper into the issue of remedies for the Peel trial. As in July, both the main court room and the additional room where the hearing was being live-streamed were packed.
The judge opened the trial with a statement that today’s hearing was not a settlement hearing, as some media outlets had implied, but a remedies hearing.
Thomas Berger, on behalf of the plaintiffs, led off the proceedings. Despite suffering from bronchitis he assured Justice Veale that his voice could hold out for the half day of proceedings. He laid out the remedy sought by the plaintiffs: a remittance of the Peel land use planning process back to the stage where the Yukon Government ran it off the rails. That is to say at the stage of the final consultation on the Final Recommended Plan.
He argued that the final round of consultations should focus on only those modifications to the plan put forward by Yukon Government, that the Commission had deemed sufficiently detailed for them to address in the drafting of the Final Recommended Plan (i.e. points 3, 4, and 5 of Minister Rouble’s letter). He stressed that there was real value in this process – especially since it would allow the affected First Nations and communities to comment on details of the implementation process for the Peel plan. He further argued that post this final round of consultation the Yukon Government could not chose to reject the Final Recommended Plan, as they had previously chosen the route of modifications. Mr. Berger stated that they needed to “exit the process through the portal that they chose to enter”.
Berger continued to pick up speed throughout his argument, joking, “My voice seems to be improving the more I speak,” to which Justice Veale replied, “It’s the same with all lawyers.” Berger then delved deeply into several examples of case law in support of his arguments including considerable focus on the honour of the Crown.
After a short intermission Jeff Langlois, counsel for the Gwitch’in Tribal Council (GTC) who are interveners in this case, made a short set of remarks. He started by stating that the GTC agreed in full with the statements made by Mr. Berger. He then brought to the judge’s attention the broader issue of the impact Justice Veale’s decision will have on future land use planning exercises.
John Hunter then addressed the court on behalf of the Government of Yukon. He asked for the case to be dismissed. He then stated if the judge would not dismiss the case he should remit the plan back to the point in the process where Minister Rouble proposed his original modifications to allow the Government of Yukon to submit more detailed modifications. Failing that, Mr. Hunter asked the court to preserve the government’s right to reject the plan at the final stage of the process. Throughout his statements he argued for less prescriptive restrictions from the court in relation to the process. Mr. Hunter often stressed that the issue at the heart of this case is that of balance between development and protection. Justice Veale heavily questioned Mr. Hunter throughout his comments, often eliciting softening of statements or conceding of points from Mr. Hunter.
Mr. Berger then issued a reply. He stated that the Yukon Government’s suggestions would run the process into the ground. He explained that the issue of balance had been addressed by the Commission in their work. He also said that the government had chosen not to pursue the issue, stating, “the government can’t say ‘we didn’t feel strongly about it then but now we do’…they can’t send it back to the Commission as they no longer exist, who would they be sending it back to? The whole thing becomes a dog’s breakfast…it’s inoperable. The government cannot simply have a do-over…we live by the rule of law and there is no precedent for such a thing.”
He then went on to state his disagreement with Mr. Hunter that the core issue of this case is one of balance between development and preservation; rather, at the core of this case is the issue of the honouring of constitutional agreements with First Nations.
That concluded today’s proceedings. All of the parties will now await Justice Veale’s decision.