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.

Day 4 of the Peel Court Case

Blog Day 4

The final morning of the Peel watershed trial saw both court rooms overflowing with people eagerly awaiting Thomas Berger’s response to the arguments presented yesterday by Yukon government’s lawyer, John Hunter.

Mr. Berger took issue with the attacks on the Peel Commission that Mr. Hunter launched on behalf of Yukon government. Berger said the Commission was correct in saying they couldn’t go back to the drawing board as government’s vague proposal to create more balance and road access would have required. Mr. Berger demonstrated that some of government’s proposed modifications did have the detail, including reasons, required by the Umbrella Final Agreement (UFA), and these were adopted by the Commission.

He pointed out that there is no evidence to support Mr. Hunter’s allegation that the Commission had already made up its mind, and would have rejected specific modifications if government had proposed them. Berger asked the court to vindicate the integrity of the Commission, which is at the heart of the whole UFA process.

Then Mr. Berger went on to show the point in the consultation process when Yukon government departed from the UFA process. He said that, although some of government’s proposed modifications were too vague for the Commission to make use of, government did adhere to the process required by Chapter 11 of the UFA until after the Commission issued its Final Recommended Plan and the Commission was shut down.

It was only after the Commission no longer existed that government “went off the rails” by bringing forth its new concepts during consultations with affected First Nations and the public. Government should have consulted about the Final Recommended Plan and government’s earlier proposed changes to it. Government had no authority under the UFA process to introduce new options, and ultimately to adopt a wholly new plan at the tail end of the process. Mr. Berger provided details about the profound differences between the Commission’s Final Recommended Plan and the plan that Yukon government adopted in January 2014.

Mr. Berger pointed out that the government had a say in the appointment of four out of six members of the Peel Commission. Nonetheless, Mr. Berger said, government “threw the Peel Planning Commission under the bus” – even though it was its own Commission. Mr. Berger said that government has left the UFA behind by acting as though the Commission’s Recommended Plan and Final Recommended Plan have no more standing than a document they might have found on the internet. Government is acting as though the UFA was never signed. They have failed to observe the honor of the Crown – “they took the ball and went home with it.”

Mr. Berger asked Judge Veale, in his final decision, to find that:

– Yukon government’s vague proposals for the Commission to create a more balanced plan and provide more surface access were appropriately dealt with by the Commission;
– Yukon government cannot provide new modifications after the Commission has presented its Final Recommended Plan;
– Yukon government cannot reject the Final Recommended Plan because they elected to propose modifications in their response to the Recommended Plan in 2011.

Mr. Berger asked Judge Veale to declare that the Commission’s Final Recommended Plan is the approved plan for the Peel watershed. He also offered an alternate remedy that would have the same result. This remedy would send Yukon government back to the point where it departed from the UFA process – after the Final Recommended Plan was released by the Commission – and require government to consult upon only the Final Recommended Plan and the proposed modifications that government presented properly in 2011. Government’s new plan, or components of it, would not be allowed to be part of the consultations.

Under this remedy the court would declare that no further modifications can be proposed after the Final Recommended Plan is produced, and government cannot reject the Final Recommended Plan after opting to modify it earlier in the process. This would result in government having no other option than to approve the Final Recommended Plan.

Jeff Langlois, legal counsel for the Gwitch’in Tribal Council, requested that should the alternate order be granted, the GTC not be excluded.

Mr. Hunter asked for the record to note that his criticisms of the Commission were of their early policy decisions and not their integrity.

Mr. Berger concluded eloquently that Yukon government signed the UFA, agreed to Chapter 11, agreed to establish the Peel planning process, nominated Commission members, and participated fully until after receiving the Final Recommended Plan. But now government seeks to obstruct the legal process. First Nations and Yukoners should not be left with a blank page unsigned by Yukon government, which is what Yukon government has reduced the UFA to. The courts must defend the rights of Yukon people.

Judge Veale commented on the unusual nature of the proceedings in that it proceeded on documents alone (rather than witnesses and evidence) and that the case came to court in only 6 months (a credit to the professionalism of the legal councils). He thanked the court staff for dealing so well with the large numbers of people and new technological requirements (live video to another courtroom). He thanked the public for their interest throughout the week which provided unusual exposure as normally court proceedings work in isolation. Judge Veale concluded by saying he would reach his decision in due course.

Please celebrate Thomas Berger’s historic Peel Watershed court case and all of our work to ensure the Commission’s Plan is implemented tonight (Thursday, July 10th) at the Kwanlin Dün Cultural Centre, with “Voices of the Peel, Together today for our children tomorrow”. This is a family friendly event featuring stories from the Peel by elders and youth from Peel communities, as well as live music, dancing, images and a silent art auction.

 

Day 3 of the Peel Court Case

Blog Day 3
Despite beautiful sunny weather in Whitehorse today, attendance at the Peel legal case in Yukon Supreme Court remained high, but a few of the people who’ve had to watch through a video feed from court room 3 were able to join elders and plaintiffs in the main court room.
In the morning, Yukon government’s lawyer, John Hunter, began presenting the defense arguments. He argued that the affected First Nations didn’t follow the process in UFA Chapter 11 when they provided input to the Planning Commission for both First Nation settlement land and non-settlement land. Rather, he argued, they should have only provided input for settlement land.
Mr. Hunter also said that Yukon government tried to consult with affected First Nations about government’s new proposal for the Peel, but First Nations were only willing to consult about the Commission’s Final Recommended Plan and government’s 2011 proposed modifications as outlined in Minister Rouble’s letter, not government’s new proposal for the Peel.
Mr. Hunter also said the Peel Planning Commission never made a single hard decision, and only adopted changes that both Yukon government and the First Nations agreed to. He called the Commission’s Final Recommended Plan a “non-planning plan.”
He went on to say that Yukon government was entitled to reject the Final Recommended Plan at the end of the process, just as First Nations would be entitled to make the final decision on their settlement land.
He disagreed with the Peel Commission’s statement in the introduction to the Final Recommended Plan that government didn’t provide enough detail about the changes it wanted to allow roads and more “balance”.
He argued that the UFA process requires flexibility and so government can bring new ideas forward at any point.
He also said that it doesn’t matter that government didn’t introduce its new concepts and plan until after the Commission was disbanded. He maintained that consulting with the public and First Nations about the new concepts after the Commission was finished was sufficient.
In the afternoon, Mr. Hunter argued that Yukon government’s plan is similar to the Final Recommended Plan, so it is not a rejection of the Commission’s Plan. But he said that even if Yukon government rejected the Final Recommended Plan, the courts would have no jurisdiction to declare the Final Recommended Plan to be the accepted plan because only Yukon government has the jurisdiction to accept a plan for the 97% of the Peel watershed that is non-settlement land.
Thomas Berger will respond to these arguments tomorrow morning, beginning at 10:00 am.
A small group continued their daily meditation on the steps of the court building, sending positive vibrations out for the success of the First Nations’ and conservation organizations’ case, and once the day in court was over a number of people went to the Fire Circle at Kwanlin Dün Cultural Centre to discuss the day’s proceedings.
Tomorrow (Thursday) the fire will be burning throughout the day and evening, and everyone is encouraged to go to the Fire Circle when court is over for the day.
We hope to see you all at 7pm on Thursday, July 10th at the Kwanlin Dün Cultural Centre for: “Voices of the Peel, Together today for our children tomorrow”. This is a family friendly event featuring stories from the Peel by elders and youth from Peel communities, as well as live music, dancing, images and a silent art auction.

 

 

Day Two of the Peel Court Case

Blog Day 2

Once again today courtrooms 1 and 3 in the Yukon Supreme Court in Whitehorse were packed.

Mr. Berger held the podium until late afternoon, laying out the evidence and case law in support of the plaintiffs’ case very thoroughly. He demonstrated that Yukon government did not provide sufficiently detailed input to the Peel Planning Commission, that government went on to consult about designations that the Commission had no opportunity to provide input into, and that government then proceded to adopt a plan that the Commission had no role in producing. In other words Yukon government did not follow the process dictated by the UFA.

He went on to cite considerable case law that demonstrated that land claims treaties will not accomplish their purpose if they are interpreted ungenerously, like an ordinary commercial contract. He cited other case law that concludes that the words of an Act must be read in the entire context, including the intent of the framers of the Act, which argues against the narrow interpretation brought by Yukon government that it has unfettered jurisdiction over public lands.

Mr. Berger concluded that this case will provide guidance to future planning exercises, uphold the integrity of the Umbrella Final Agreement and provide a landmark for all planners who come after to abide by.

Toward the end of the day, Jeff Langlois was given a half hour to present his argument on behalf of the Gwichin Tribal Council who are intervening in the case. Mr. Langlois explained the importance of the Gwichin lands in Yukon to the Gwichin people, as well as their rights on Yukon lands under their Transboundary Agreement. Mr. Langlois supported the position of the Plaintiffs and spoke at some length about the purpose of the treaties being to foster reconciliation.

Down at the Kwanlin Dun Cultural Centre, the Fire Circle was burning all day. A group of First Nation people connected with three Peel communities came by and split wood for the Peel, and locals stopped in to give tobacco offerings and add wood to the fire.

Day One of the Peel Court Case

Christina Macdonald, Karen Baltgailis, Chief Ed Champion, Thomas Berger, Margie Rosling, Tricia Riley, Chief Eddie Taylor, and Gill Cracknell

The Peel court case started off with a bang this morning.  A huge crowd was waiting to gain access to the courtrooms with people lined up outside of the building before the law courts even opened their doors; several even camped out on the front stairs of the building overnight.  Both Courtroom 1, where the case was physically taking place, and Courtroom 3, where the court was video-streaming the proceedings live, were standing room only.

Justice Veale opened the day’s proceedings by introducing the plaintiffs, defendants and council.  The plaintiffs in the case are the First Nation of Na Cho Nyak Dun, Tr’ondëk Hwëch’in, Canadian Parks and Wilderness Society (CPAWS) Yukon Chapter, and the Yukon Conservation Society.  Their council are Thomas Berger, Margie Rosling, and Tricia Riley.  Yukon Government is the defendant and their council are John Hunter and Mark Radke.

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Thomas Berger opened with a summary of the plaintiffs’ argument that the very detailed land use planning process legislated through the Umbrella Final Agreement was not followed by Yukon Government.  He asked that the court rule that the Peel Watershed Commission’s Final Recommended Plan be implemented.

John Hunter then summarized the Yukon Government’s defence that they feel they retain the right to make final decisions in regards to non-settlement lands within the Peel Watershed, which account for 97% of the watershed.

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Berger than began to walk the court through the evidence that forms the backbone of the plaintiffs’ argument.  He began by outlining the Umbrella Final Agreement and its importance as a modern day treaty.

He then followed this by walking the court through the Peel Planning Commission’s Recommended Plan.  He spent some time emphasizing with examples the extreme depth of work and consultation that was put into the rational for the designation of each of the landscape management units presented in the plan.

He followed this by diving into a letter dated February 21, 2011 from then Minister of Energy, Mines and Resources Patrick Rouble to the Peel Planning Commission.  This letter detailed the Yukon Government’s proposed modifications to the Recommended Plan.  Berger highlighted that the Commission addressed three of the five modifications presented by the government.  He argued that the final two modifications were too vague and generalized for the Commission to be able to tackle, especially in light of the very detailed work that the Commission had put into the plan.  Berger will further elucidate this argument tomorrow.

He closed the day by beginning his discussion of the Final Recommended Plan, highlighting that the Recommended Plan forms the foundation for this subsequent plan.  He will continue this discussion when court resumes in the morning.

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Outside the courtroom, hundreds of members of the public gathered on the front steps of the Yukon Law Courts in a silent vigil in support of the legal case at mid-day.  It provided a powerful message, reminding the government how engaged the Yukon public is in this work.