Peel lawsuit slated for brief court debut in Yukon

Peel lawsuit slated for brief court debut in Yukon
The future development of the Yukon-NWT Peel watershed has become a legal battleground for First Nations and the Yukon Government.Mary Walden.

It’ll likely be short, sweet and simple, but the first Yukon Supreme Court appearance for the Peel watershed land use plan challenge next week may draw a crowd, nevertheless.

The Mar. 11 case management conference is a chance for the lawyers to discuss procedural matters with the judge, including how they want the case to move forward and the possible timeframe.

The mandatory meeting begins at 4:00 p.m. at the Whitehorse courthouse. Typically these conferences only last 10 to 15 minutes.

The Na-cho Nyak Dun, Tr’ondek Hwech’in, Yukon Conservation Society and CPAWS-Yukon are suing the Yukon government for allegedly violating the land use planning process spelled out in their modern-day treaty.

They launched the suit in January after the government pushed aside the final recommended Peel land use plan, prepared by the Peel commission, and replaced it with one of its own making.

The commission’s plan would protect 80 per cent of the watershed while the government’s plan opens most of the region to industrial development.

Represented by land claims lawyer Thomas Berger, the two First Nations and two environmental groups want the commission’s plan declared as the binding blueprint for the wilderness region.

In its recently-filed statement of defence, the Yukon government denies it did anything wrong in the way it handled the Peel plan.

It says it followed the process for land use planning and made it clear to the Peel commission in 2011 that it opposed large-scale protection.

A letter from then-Energy, Mines and Resources Minister Patrick Rouble “advised the commission that the defendant (Yukon government) was seeking modifications to the recommended plan and that the commission re-evaluate some of the plan’s recommendations,” it says.

The final plan had to pave the way for possible resource development and new access, wrote Rouble, who has since retired from politics and now chairs the Yukon Land Use Planning Council.

The Yukon also maintains that the last round of public consultations on the Peel in 2012-13 met the legal requirements of land use planning.

The government introduced new “concepts” and land use designations, alongside the commission’s final recommended plan, for the public to consider.

“At all times during its consultation it clearly stated that it was consulting on both the final recommended plan as well as proposed modifications to that plan, which would address the two modifications previously identified in Minister Rouble’s letter of February 21, 2011 that had not been addressed by the commission,” reads the statement of defence.

It says it opted for an open house format, as opposed to town hall meetings, because it felt dealing one-on-one with government officials would be less intimidating for the public.

“When requested, its representatives facilitated presentations in a town hall format and also undertook presentations with respect to the defendant’s proposed modifications to the final recommended plan,” it says.

Under the terms of the final agreements, the government says it has every right “to reject or modify that part of the revised plan recommended by the regional land use planning commission after reconsideration.”

The Yukon Government has hired BC lawyer John Hunter to lead its legal team. His background includes Aboriginal rights cases such as the 2004 Haida decision on the duty to consult, where he represented forestry giant Weyerhaeuser.

Although lawsuits can be settled out of court at any time along the way, if the Peel case proceeds to trial, it’s expected to be three or four months before the court can squeeze it into its busy schedule. Decisions usually take another two to three months.

The NWT’s Gwich’in Tribal Council is not part of this court action but plans to launch its own suit based on its comprehensive land claim agreement.

Despite the legal uncertainty surrounding the Peel region, the government’s new plan is now in effect. It has lifted a four-year ban on new mineral claim staking and renewed a “relief order” for most of the 8,400 active claims.

That means claimholders don’t have to do $100 worth of work or pay in lieu to have another year added on to the claim’s life.

Meanwhile, conservationists have set up a legal defence fund to help finance their case. A Whitehorse family donated more than $5,000 and a benefit concert raised another $4,000.

In April, Brad “Caribou Legs” Firth plans to run from Inuvik to Whitehorse with letters of support for Peel protection to the Yukon government.

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