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.