The Fight for the Peel Watershed Continues

Appeal-Postcard

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

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

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/

Peel-Water-Ceremony

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/

Peel-BBQ

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.

The Fight for the Peel Watershed Continues

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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.
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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.

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Media Contact:

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

WE WON!!!!

Justice Veale has just announced his decision on the Peel Watershed Court Case and we’re thrilled to announce that we won with all our remedies sought!  You can find Justice Veale’s summary of the decision here and the full document here.  The plaintiffs will be issuing a press release shortly.

Summary of October 24th’s Proceedings

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.

 

 

Don’t Forget Tomorrow’s Peel Court Case

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Friday, October 24th, 10 am, Yukon Law Courts

The final day of the Peel court case will take place tomorrow.  Judge Veale has called the plaintiffs and defendants back to consider the proposed remedies of the case in further detail.  The public is encouraged to attend the sessions which begin at 10 am.  An overflow courtroom equipped with live-streaming capability will be provided by the courts in case public interest outstrips the capacity of the main courtroom.  If you are unable to attend in person you can follow live tweets of the proceedings @CPAWSYukon and #protectpeel.  A summary of the day’s events will appear on this blog after the proceedings have finished for the day.