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.

 

-30-

 

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

 

The Fight for the Peel Watershed Continues

peel-banner-r

The Yukon Government announced late yesterday that they would appeal Justice Veale’s decision in The First Nation of Nacho Nyak Dun et. al. v The Government of Yukon, the lawsuit concerning the Peel Watershed launched by the First Nation of Nacho Nyak Dun, Tr’ondëk Hwëch’in, Canadian Parks and Wilderness Society Yukon Chapter (CPAWS Yukon) and the Yukon Conservation Society (YCS).

Upon hearing this news Chief Ed Champion of the First Nation of Nacho Nyak Dun said, “It’s unfortunate that Yukon Government continues to create uncertainty for industry in Yukon by extending this process even further, but we are ready and willing to continue for as long as it is necessary to protect the integrity of our Final Agreements. We trust that the public and other First Nation governments will continue to stand with us to protect the Peel Watershed.”

“We won once, we believe we can win again,” added CPAWS Yukon Executive Director Gill Cracknell, “It’s shameful that Yukon Government continues to waste taxpayers’ money on a legal battle that is contrary to the will of the majority of the public – but if government refuses to stand up for the people we see no option but to continue to do so.”

The plaintiffs launched the legal proceedings on January 27, 2014, alleging that Yukon Government broke with the land use planning process laid out in the Umbrella Final Agreement (UFA), and incorporated in all the First Nations Final Agreements in Yukon.  The plaintiffs sought to have the process set out in the UFA upheld and to see the planning through to a conclusion that would protect more than 54,000 square kilometres of wilderness in northern Yukon’s Peel River Watershed from mining and other industrial development.  The week of July 7 – 10, renowned lawyer Thomas R. Berger O.C., Q.C. argued the landmark constitutional case in the Supreme Court of Yukon in front of a packed house.  The case was then continued on October 24 to accommodate a deeper discussion focused on remedy.  On December 2, 2014 Justice Ron Veale delivered his written decision in which he agreed with the plaintiffs.

Christina Macdonald, Executive Director of the Yukon Conservation Society, explained, “This is a betrayal of the thousands of people who have put their energy toward the protection of the Peel for so long.”

Chief Roberta Joseph of the Tr’ondëk Hwëch’in added, “We will defend the Peel as well as the principles of our Final Agreements, and the land use planning process promised to us in exchange for ceding Aboriginal title to 95% of our traditional territory. We ask that First Nations and non-First Nations people alike stand with us as we continue the fight to protect the Peel and preserve the integrity of our modern-day treaties.”

A rally will be planned for the New Year in reaction to Yukon Government’s announcement today as the plaintiffs wish to honour the public’s time with friends and family over the holiday break.
-30-
Media Contacts:
Chief Ed Champion, First Nation of Nacho Nyak Dun: 867 335 3989
Wayne Potoroka, Communications Director, Tr’ondëk Hwëch’in: 867 993 7100 x 108
Gill Cracknell, Executive Director, CPAWS Yukon: 867 332 8079
Christina Macdonald, Executive Director, YCS: 867 668 5678

The Plaintiff’s Press Release – A Victory for the Peel Watershed

Media Release

December 2, 2014

A Victory for the Peel Watershed

Earlier today Mr. Justice Ron Veale of the Supreme Court of Yukon announced his decision in The First Nation of Nacho Nyak Dun et. al. v The Government of Yukon, the lawsuit concerning the Peel Watershed launched by the First Nation of Nacho Nyak Dun, Tr’ondëk Hwëch’in, Canadian Parks and Wilderness Society Yukon Chapter (CPAWS Yukon) and the Yukon Conservation Society (YCS).

In his reasons for judgment, Justice Veale agreed with the plaintiffs that Yukon Government violated the land use planning process laid out in the Umbrella Final Agreement (UFA) with respect to the Peel Watershed Land Use Plan.  The planning process will now return to the stage where Yukon Government ran it off the rails – the final round of consultation with First Nations and the public.  The court order constrains Yukon Government to the modifications they previously proposed but the question of the amount of land protected and the question of access are off limits.

Upon hearing today’s news Chief Ed Champion of the First Nation of Nacho Nyak Dun said, “We are very happy to see the courts honour and uphold the integrity of the Umbrella Final Agreement and Yukon First Nation agreements.  We want to thank Justice Veale for all of his hard work and the thought and time he put into this decision.”

“We’re thrilled with the decision,” says CPAWS Yukon Executive Director Gill Cracknell, “This is not just a victory for the plaintiffs, but for everyone who has given generously of their time, money, and voices to see the Peel Watershed protected.”

The plaintiffs launched the legal proceedings on January 27, 2014, alleging that Yukon Government broke with the land use planning process laid out in the UFA, and incorporated in all the First Nations Final Agreements in Yukon.  The plaintiffs sought to have the process set out in the UFA upheld and to see the planning through to a conclusion that would protect more than 54,000 square kilometres of wilderness in northern Yukon’s Peel River Watershed from mining and other industrial development.  The week of July 7 – 10th renowned lawyer Thomas R. Berger argued the landmark constitutional case in Yukon Supreme Court in front of a packed house.  The case was then continued on October 24th to accommodate a deeper discussion focused on remedy.

Christina Macdonald, Executive Director of the Yukon Conservation Society, explained, “This is not just a victory for the Peel, but for land use planning across the Territory.”

Chief Roberta Joseph of the Tr’ondëk Hwëch’in added, “The Peel River Watershed is as sacred to our people as it was to our ancestors, and through this decision today we have ensured it will remain so for our grandchildren.”

The details of a community celebration to honour this historic victory will be announced by the plaintiffs in the near future.

Statement prepared by Thomas Berger, Q.C. re Reasons for Judgement –The First Nation of Nacho Nyak Dun et al. v. Government of Yukon:

This is a remarkable judgment. The land use planning process in the Umbrella Final Agreement signed by Canada, Yukon First Nations and the Yukon Government in 1993, and entrenched in the Constitution has been vindicated.

The collaborative process for long-term land use planning provided for in the UFA is unique in that it does not allow the Yukon Government to exercise complete authority over land use planning. Instead, it enables First Nations and Yukoners to play an important part in land use planning.

The decade-long land use planning process for the Peel Watershed began with the work of the Peel Watershed Planning Commission. In 2009, the Commission recommended that 80% of the Peel Watershed (over 68,000 square kilometres in extent, situate in the traditional territories of the First Nation of Nacho Nyak Dun, the Tr’ondëk Hwëch’in, the Vuntut Gwitchin, and the Tetlit Gwich’in) be protected, with 20% open to industrial development. This balance was struck by the Commission after years of study and consultation with all parties and with Yukoners.

The Government of Yukon had an opportunity when the Recommended Plan came out, to consider its position. In 2011, the Yukon Government advised that it did not dispute the main recommendations of the Recommended Plan. As the Court has found, the Yukon Government offered “criticism”, but did not identify any specific changes to the Commission’s detailed Recommended Plan. The Court has found that these were too “vague and general” and that the Commission was justified in determining that these should not be treated as proposed modifications.

Nevertheless, at the 11th hour, the Yukon Government sought to cast aside the Commission’s plan, and substitute their own Government Plan, which left the matter of the amount of protected land almost wholly in their discretion.

As the Judge said at para. 216 “the Government of Yukon usurped the Commission’s role in the planning process and introduced new substantive proposed modifications that were neither consulted on [at the appropriate stage] nor put to the Commission for consideration.” The Judge went on “the process the Government has chosen, after seven years of collaboration, was a profound and marked departure from its previous approach.”

The Judge said at para. 221, these “statements of preference for more balance and access were too vague and general, and failed to give detail sufficient for the Commission to address them.”

In the result, the balance struck by the Commission, after consultation with the First Nations and Yukoners, has been upheld. The Court has directed that the final consultation with First Nations and Yukoners – which the Court has found was not fairly conducted by the Yukon Government – must be held again, but has also held that the Yukon Government does not have any authority at this final stage to derail the proceedings again.

The Umbrella Final Agreement provides for  a unique, community-based, collaborative land use planning process. The vindication of this process is a great victory for the First Nations, the environmental organizations, and all Yukoners. In the end, one of the world’s last great wilderness areas will protected.

-30-

Media Contact:

Amber Church, 867-335-4884, achurch@cpawsyukon.org

Yukon First Nations and environmental groups go to court to protect the Peel River Watershed July 7-11

Announcing-the-Peel-Court-Case

Whitehorse, YT – Thomas R. Berger, O.C., Q.C. will argue a landmark constitutional case against the Government of Yukon on behalf of two Yukon First Nations and two environmental organizations in Yukon Supreme Court in Whitehorse, July 7-11, 2014.

Berger and his clients, the First Nation of Nacho Nyak Dun, Tr’ondëk Hwëch’in, Canadian Parks and Wilderness Society Yukon Chapter (CPAWS Yukon) and the Yukon Conservation Society (YCS), launched legal action January 27, 2014, to force the Government of Yukon to implement a Land Use Plan that would protect 54,000 square kilometres of wilderness in northern Yukon’s Peel River Watershed from mining and other industrial development.

This plan was produced by the Peel Watershed Planning Commission after seven years of research and consultation, following a constitutionally mandated process under Yukon land claims agreements.  It recommends permanent protection of 55 per cent and interim protection for an additional 25 per cent, of the Peel watershed. Although the Commission’s plan is endorsed by the affected First Nations and has widespread public support, on January 21, 2014 the Government of Yukon adopted its own plan for the region, which opens up over 70 percent of the watershed to roads and industrial development.

“Yukon Government’s unilateral decision to accept their own plan for the Peel undermines our Final Agreements,” says Nacho Nyak Dun Chief Ed Champion. “Government’s decision is also creating uncertainty for resource companies who want to do business in the Yukon, and it makes meaningful business relations between First Nations and resource companies difficult.”

“The fresh water that the seven rivers of the Peel Watershed provide is by far the most valuable resource within the Peel,” says Tr’ondëk Hwëch’in Chief Eddie Taylor.  “Although we wanted 100% protected, we are willing to compromise and accept the Peel Commission’s Final Recommended Peel Watershed Regional Land Use Plan.  We will stand up for our rights in court – the Peel Watershed is sacred to us as it was to our ancestors, and we want it to be around for our grandchildren.”

More than 50 elders from Mayo, Dawson and Mackenzie Delta communities are expected to join First Nation leadership to witness the historic proceedings.

“We are excited by the tremendous public support there is for our case,” says CPAWS Yukon Executive Director Gill Cracknell. “The importance of protecting one of North America’s last remaining large-scale wilderness watersheds has united people across the Yukon, Northwest Territories and beyond. To honour the many people who have expressed an interest in being involved during the trial week, a number of events have been organized in Whitehorse and the communities, as well as on social media.”

“There is no social license for resource development in the parts of the watershed that the Peel Commission has recommended for protection,” says YCS Peel Watershed Coordinator Karen Baltgailis. “We encourage mining companies with claims in those parts of the Peel to show their good will by giving up their contentious claims and operating in other parts of the Yukon where they are welcome.”

Details about the trial, events, the Peel Protection campaign, the plaintiff’s and defendant’s Outline of Argument and the plaintiff’s statement of claim can be viewed at: http://www.protectpeel.ca/protect_peel_campaign.html.

A daily Peel Trial Blog has also been established that will feature a daily audio podcast summarizing the day’s events inside and outside the courtroom. Follow or join the conversation on Facebook, @CPAWSYukon,  #ProtectPeel

Events planned for the week of the trial include:

  • July 7th:  12:30 – 1 p.m. a Silent Vigil for the Peel on the front steps of the Law Courts (2134 Second Ave., Whitehorse)
  • July 10th: 7:00 p.m. Voices of the Peel – Together Today for our Children Tomorrow at the Kwanlin Dün Cultural Centre (1171 First Ave, Whitehorse): Elders and youth tell their stories, images, music and dancing.
  • July 7 – 11th: noon – 1:00 p.m. Prayer Circle for the Peel at the Dänojà Zho Cultural Centre (1131 Front Street, Dawson City).

 

About the Peel River Watershed

Located at the northern end of the Rocky and Mackenzie Mountain Chain, the Peel River Watershed is a spectacularly rugged region defined by the Peel, Ogilvie, Blackstone, Hart, Wind, Snake and Bonnet Plume rivers. One of Canada’s most striking and pristine mountain river watersheds, the Peel is the heart of a great mountain ecosystem with a long cultural history, free-ranging wildlife and a rugged northern beauty. Encompassing over 67,500 square kilometres, the Peel Watershed dwarfs more famous landscapes, such as Banff and Yellowstone national parks – in size, unspoiled splendor and ecological integrity.

The Peel Watershed is one of North America’s largest intact ecosystems – a region of mountains, deep canyons, plateaus, wetlands and rolling hills laced by rivers. The watershed is the northern anchor of the Yellowstone to Yukon Conservation Initiative, a broad-based international project to protect ecosystem connections for wildlife.

-30-

Media:  high resolution Images, video and facts are available in Dropboxhttps://www.dropbox.com/sh/a2rkzl0mutgd74c/N_Ao14ZEIp

Media interested in attending the trial can contact Amber Church achurch@cpawsyukon.org or 867-335-4884. Typical trial hours are 10 a.m. to 4 p.m. If you wish to record the proceedings with video, audio, or wish to live-tweet or live-blog the proceedings an official application must be made to the court registry. Inquiries regarding photography should be directed to the court registry. You can contact the courts at: 867-667-5441 or courtservices@gov.yk.ca

Media Contacts:

Kate Rogers, Tartan Group: 604-880-1494 (cell) or kate@tartangroup.ca

Amber Church (as of July 2nd):  867-335-4884 (cell) or achurch@cpawsyukon.org