Tag Archives: peel watershed

Yukon Court of Appeal Decide on #ProtectPeel Watershed Land Use Plan

The Yukon Court of Appeal (the “Court”) has found that the Yukon Government (“Yukon”) failed to honour the letter and spirit of its treaty obligations with respect to the Land Use Planning Process for the Peel Watershed. The Court also found that Yukon failed to reveal its extensive plan modifications, and failed to provide the requisite details or reasons in support of its general comments on the plan which, ultimately, left Commission ill equipped to advance the Land Use Planning Process.

However, the Court did allow Yukon’s appeal, in part.

First, a quick recap

As I wrote on here in February, 2014, on December 2, 2009 a Recommended Peel Watershed Regional Use Plan (the “Plan”) was submitted to Yukon by the Peel Watershed Regional Planning Commission (the “Commission”). In the Plan, the Commission recommended that 80.6% of the Peel Watershed be given a high degree of protection as designated Special Management Areas. Those areas included heritage management, fish and wildlife management, watershed management and general environmental protection.

Following a series of consultations, and following some proposed modifications by Yukon, a Final Recommended Plan was released by the Commission on July 22, 2011, which designated approximately 80% of the Peel Watershed as “Conservation Area”. Approximately two-thirds of the Conservation Area were designated Special Management Areas, and the remaining portions were designated Wilderness Areas.

Following the Commission’s Final Recommended Plan, Yukon commenced a consultation process that lasted into February, 2013.

Ultimately, on January 20, 2014, Yukon announced its approval of a regional land use plan (the “Land Use Plan”). It was vastly different to the Final Recommended Plan. Instead of protecting close to 80% of the Peel Watershed, the Land Use Plan, in fact, leaves about 71% of the Peel Watershed unprotected.

Legislative Background

The Land Use Plan was being created as part of a consultation framework, which included the following provisions:

“11.6.2 Government, after Consultation with any affected Yukon First Nation and any affected Yukon community, shall approve, reject or propose modifications to that part of the recommended regional land use plan applying on Non-Settlement Land.

11.6.3 If Government rejects or proposes modifications to the recommended plan, it shall forward either the proposed modifications with written reasons, or written reasons for rejecting the recommended plan to the Regional Land Use Planning Commission, and thereupon:

11.6.3.1 the Regional Land Use Planning Commission shall reconsider the plan and make a final recommendation for a regional land use plan to Government, with written reasons; and

11.6.3.2 Government shall then approve, reject or modify that part of the plan recommended under 11.6.3.1 applying on Non-Settlement Land, after Consultation with any affected Yukon First Nation and any affected Yukon community.”

These sections have proved to be the main issues in this litigation.

Remedy Sought, Trial Decision

Because of the alleged breaches by Yukon, the Plaintiffs had asked for a declaration that the (unmodified) Final Recommended Plan was the final, binding land use plan for the Peel Watershed. However, at trial, the plaintiffs scaled back their request and sought an order quashing Yukon’s Final Plan and remitting the process to s.11.6.3.2 for Yukon to make its final modifications.

The Plaintiffs were successful at trial and obtained the scaled back remedy that they had sought.

Appeal

Yukon appealed on two main grounds: first that it had not breached Yukon First Nation Final Agreements (“Final Agreements”); and second, if it had breached the Final Agreements, the land use planning process should have been returned to the 11.6.2 stage, and not the 11.6.3.2 stage.

Yukon succeeded on its latter argument. It argued that it is an established principle that a breaching party should be put in the position it occupied prior to its breach, so it can “perform constitutionally what the court deemed to be unconstitutional”. In other words, if the Development and Access Modifications (proposed by Yukon under s. 11.6.2) were invalid, Yukon should be returned to s. 11.6.2 so it can articulate its priorities in a valid manner.

The Plaintiffs argued, in response, that the process should be remitted to the point of Yukon’s breach, which was not s. 11.6.2 but s. 11.6.3.2. To that end, the Plaintiffs argued that three of Yukon’s Modifications under s. 11.6.2 were valid. Although the Development and Access Modifications were invalid, that does not mean they breached the treaty; it means only that they had no effect, and in particular that they could not later be imposed over the objections of the First Nations under s. 11.6.3.2. Accordingly, the Plaintiffs argued, Yukon’s breach occurred at s. 11.6.3.2 (when Yukon imposed an entirely new plan) rather than at s. 11.6.2. Remitting the process to s. 11.6.2 would repeat stages of the process that had been lawfully conducted. The plaintiffs submitted that it was inconsistent with the honour of the Crown for Yukon to argue that it should be permitted to reconsider the proposals it made years ago in December 2009.

Despite the Plaintiffs arguments, the Court found that the appropriate remedy for Yukon’s failure to honour the process was to return the parties to the point at which the failure began. The Court found that it was Yukon’s failure to properly exercise its right to provide modifications that derailed the dialogue essential to reconciliation as envisioned in the Final Agreements. This derailment of the dialogue was where Yukon’s failure began, and marks the point to which the process has now been returned. That point is s. 11.6.2.

So, what does this mean?

The trial judge had remitted the process to the stage of s. 11.6.3.2 for Yukon to consult and then make its final modifications to the Final Recommended Plan. The trial judge had ordered that Yukon’s final modifications had to be based upon the original response that Yukon had made pursuant to s. 11.6.2. The trial judge reasoned that remitting the process to the stage of s. 11.6.2 would take the Commission “back to the drawing board” and permit Yukon “to benefit from its flawed process”. It would amount to an endorsement of Yukon’s treaty breaching conduct.

The Court of Appeal, however, disagreed with these sentiments. First, the Court found, remitting the matter to the s. 11.6.2 stage would not permit Yukon “to benefit from its flawed process”; it would allow the process to unfold as it was meant to.

Second, the Court restated that the matter should be returned to the point of the breach. The trial judge found the breach to be at the stage of s. 11.6.3.2 when Yukon proposed a wholly new plan not based upon modifications it proposed at the stage of s. 11.6.2. However, the Court disagreed. It found that this was “a selective view of matters”. A more compelling argument, it found, could be made in support of the submission that the “breach” began when Yukon did not properly set out its detailed modifications at the stage of s. 11.6.2. That, the Court found, was the the status quo ante, or state that existed before the breach, to which the “breaching” party should be returned to allow it to perform its duties appropriately.

The Court added that it is a status quo ante which best serves the goals of achieving reconciliation as the remedy crafted by the trial judge would put in place a plan that emerged from a flawed process, which does not serve reconciliation.

In practical terms, therefore, rather than the Yukon being simply able to approve, modify or reject that part of the Land Use Plan that was recommended pursuant to 11.6.3.1, it can instead return to 11.6.2 to undertake more consultation with Yukon First Nations and approve, reject or propose modifications to the land use plan as a whole.

Essentially, the Court has rewound the clock six years and given Yukon another chance to attempt to significantly water down the protections that the Peel Watershed would have benefited from under the Final Recommended Plan.

It remains to be seen whether any further appeals (to the Supreme Court of Canada) will be filed, or whether all parties will return to December 2, 2009 and re-do the last several years of consultations and modifications.

One thing remains clear, however, the Court reaffirmed that Yukon failed to honour the letter and spirit of its treaty obligations with its First Nations people with respect to the Land Use Planning Process for the Peel Watershed. Further, Yukon’s own plan, which would have protected less than 30% of the Peel Watershed from development, remains quashed.

James Early

Battle Commences Over Yukon’s Peel Watershed

The Peel River Watershed is an approximately 77,000 square kilometre watershed, approximately 68,000 square kilometres of which is located in Yukon. The Peel River Watershed is one of North America’s largest intact ecosystems, consisting of mountains, deep canyons, plateaus, wetlands and rolling hills interlaced by free-flowing rivers. It supports a number of wildlife species including grizzly bears, wolverines, wolves, Dall sheep, caribou and moose. The Peel River Watershed is an ancient cultural landscape and provides an important fish and wildlife harvesting area for First Nations.

You would think that this introduction is a cut-and-paste from a travel brochure or the script for a Sir David Attenborough-esque voice over as his helicopter camera pans across the majestic Yukon landscape. It is not. In fact, it is a cut-and-paste from paragraph 25 of a Statement of Claim filed by various environmental groups and First Nations against the Yukon Government.

What Happened?

On December 2, 2009 a Recommended Peel Watershed Regional Use Plan (the “Plan”) was submitted to the Yukon Government by the Peel Watershed Regional Planning Commission (the “Commission”). In the Plan, the Commission recommended that 80.6% of the Peel Watershed be given a high degree of protection as designated Special Management Areas. Those areas included heritage management, fish and wildlife management, watershed management and general environmental protection.

Following a series of consultations, and following some proposed modifications by the Yukon Government, a Final Recommended Plan was released by the Commission on July 22, 2011, which designated approximately 80% of the Peel Watershed as “Conservation Area”. Approximately two-thirds of the Conservation Area were designated Special Management Areas, and the remaining portions were designated Wilderness Areas.

Following the Commission’s Final Recommended Plan, the Yukon Government commenced a consultation process that lasted into February, 2013.

Ultimately, on January 20, 2014 the Yukon Government announced its approval of a regional land use plan (the “Land Use Plan”). It was vastly different to the Final Recommended Plan. Instead of protecting close to 80% of the Peel Watershed, the Land Use Plan, in fact, leaves about 71% of the Peel Watershed unprotected.

Hence, immediately following the release of the Land Use Plan, a Statement of Claim was filed.

The Claim

The Plaintiffs are seeking a declaration that the Final Recommended Plan is, in fact, the binding regional land use plan. The Claim alleges that the Yukon Government has purported to impose a land use plan which is not based on or derived from the Recommended Plan, or from the Final Recommended Plan and that the Yukon Government has no authority to reject the Final Recommended Plan.

The Claim is centred around Chapter 11 of an agreement called the Umbrella Final Agreement (the “UFA”). The UFA is an agreement between Canada, the Yukon and Yukon First Nations, signed on May 29, 1993. The UFA is described as a common template for negotiating First Nation Final Agreements. Ratification of the UFA signified the parties’ intent to negotiate Yukon First Nation Final Agreements (“Final Agreements”).

Chapter 11 of the UFA governs the issue of land use planning. The objectives of Chapter 11 are, amongst other things, to encourage the development of a common Yukon land use planning process and to ensure that social, cultural, economic and environmental policies are applied to the management, protection and use of land, water and resources in an integrated and coordinated manner so as to ensure Sustainable Development.

The Commission, formed in 2004 to address the Yukon portion of the Peel Watershed, was formed pursuant to section 11.4.1 of the UFA. Chapter then describes the obligations of the Commission to prepare and recommend a regional land use plan, and sets out the guidelines to be followed in developing a regional land use plan. Following these guidelines, the Commission issued its Plan pursuant to section 11.6.1.

The crux of the claim relates to section 11.6, more specifically, section 11.6.3.2. It is worth setting out part of section 11.6 here:

“11.6.2 Government, after Consultation with any affected Yukon First Nation and any affected Yukon community, shall approve, reject or propose modifications to that part of the recommended regional land use plan applying on Non-Settlement Land.

11.6.3 If Government rejects or proposes modifications to the recommended plan, it shall forward either the proposed modifications with written reasons, or written reasons for rejecting the recommended plan to the Regional Land Use Planning Commission, and thereupon:

11.6.3.1 the Regional Land Use Planning Commission shall reconsider the plan and make a final recommendation for a regional land use plan to Government, with written reasons; and

11.6.3.2 Government shall then approve, reject or modify that part of the                  plan recommended under 11.6.3.1 applying on Non-Settlement Land, after Consultation with any affected Yukon First Nation and any affected Yukon community.”

Following the release of the Plan by the Commission on December 2, 2009, the Yukon Government submitted proposed modifications to the Plan. This was done by letter dated February 21, 2011. This was in accordance with sections 11.6.2 and 11.6.3, above.

After taking into account the proposed modifications, the Commission issued its Final Recommended Plan on July 22, 2011. This was in accordance with section 11.6.3.1, above.

The essence of the Plaintiffs’ claim is that the Yukon Government, after proposing modifications to the Plan pursuant to section 11.6.2 and 11.6.3 of the UFA, was not legally entitled to propose further modifications to the Final Recommended Plan beyond those first proposed modifications on February 21, 2011, as this would “amount to a new plan and violate the terms of the constitutionally-protected Final Agreements”.

To put it another way, the Plaintiffs argue that section 11.6.3.2 limits the Yukon Government to addressing those modifications proposed on February 21, 2011 and does not allow the Yukon Government to propose new modifications following the Final Recommended Plan.

In correspondence to the Yukon Government prior to the end of the consultation process, the First Nations claimed that the Government “introduced sweeping proposals and concepts [that undermined] the process set out in Chapter 11 of the Umbrella Final Agreement”. Further, “to put a new land use planning process forward [following the Final Recommended Plan] would amount to a rejection of the constitutionally protected land use planning process provided for under the Umbrella Final Agreement and a rejection of the Final Recommended Plan”.

In short, the Yukon Government’s Land Use Plan is significantly different from the Final Recommended Plan that was many years in the making, and which followed extensive consultations. The First Nations and environmental groups are not happy.

What’s Next?

A Case Management Conference is presently scheduled for March 11, 2014. At that conference, such matters as the simplification of the issues, directions for the conduct of the litigation, and the requirement and length of examinations for discovery, amongst other things, may be considered.

It may be some time before this issue is resolved. In the meantime, the Yukon is open for business and the Yukon Government’s Land Use Plan is now in effect.

By James Early.