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.
This gallery contains 50 photos.
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.
This gallery contains 34 photos.
On August 20 and 21, 2015 the Peel court case will be heard at the Yukon Court of Appeal in Whitehorse. At this hearing, the Yukon Government will argue that the Yukon Supreme Court ruling by Justice Ronald Veale be dismissed. The respondents (the First Nation of Nacho Nyak Dun, Tr’ondëk Hwëch’in, Vuntut Gwitchin First Nation, CPAWS Yukon and YCS), supported through an intervention by the Gwich’in Tribal Council, will defend against this appeal and argue that Justice Veale’s ruling be upheld.
The public is encouraged to attend the appeal in-person at the Yukon Law Courts (2134 Second Avenue, Whitehorse). The appeal begins each morning at 9 am.
For those unable to attend in person the proceedings will be live tweeted @CPAWSYukon and #ProtectPeel. Photos, video, audio podcasts, and daily summaries will be posted at https://peelwatershedtrial.wordpress.com/
There are a number of other ways for the public to get involved:
Peel Pep Rally
Wednesday, August 12, 11:30 am – 1 pm
Whitehorse Wharf, at the end of Main Street
A citizen-organized event to get everyone energized for the big event the following week. Bring your lunch and come for music, cheers, pep, information and cake.
Prints for the Peel
Hands Together to Protect the Peel.
Drop by the Yukon Conservation Society office at 302 Hawkins St. during office hours on Mondays and Wednesdays to stamp your hand on our Unity Wall. Watch for us at Thursday’s Fireweed Market and other upcoming events where you can make your mark.
Check out the Facebook event here: https://www.facebook.com/events/2144844378989608/
Water Ceremony for the Peel
Thursday, August 20, 12 (noon) – 1pm
Front steps of the Law Courts (2134 Second Avenue, Whitehorse, Yukon).
At noon on August 20, join us on the steps of the Yukon Laws Courts in Whitehorse for a First Nations-led water ceremony for the Peel.
We invite you to take part by bringing water from a Yukon water body that has special meaning to you. Water vials are available at the Yukon Conservation Society office (302 Hawkins St) and the CPAWS-Yukon office (506 Steele St).
Check out the Facebook event here: https://www.facebook.com/events/106272409724381/
BBQ for the Peel
Thursday, August 20, 5-8pm
Official welcome 6 pm
Kwanlin Dün Cultural Centre (1171 First Ave, Whitehorse, Yukon), Fire pit
Join us for a BBQ, a chance to celebrate the public’s tireless efforts to protect the Peel, and the conclusion of the Water Ceremony as the water collected is poured into the Yukon River. All are welcome.