Law Times

Law Times • May 4, 2015 Page 11 www.lawtimesnews.com Key watershed ruling heading to appeal court BY shannon Kari Law Times he Yukon Court of Ap- peal will hear a dispute between First Nations and the Yukon govern- ment that could determine the development of 68,000 square kilometres of land in the terri- tory this summer. The government is appealing the decision of Yukon Supreme Court Justice Ronald Veale last December in The First Nation of Nacho Nyak Dun v. Yukon (Gov- ernment of) over the planning process for the Peel watershed. Veale found the government had failed to act in conformity with an approved land-use plan process, didn't conduct proper consultations, and had intro- duced changes it didn't present to the regional land-use plan- ning commission that includes First Nations members. "Dam- age has been done to the process of reconciliation," wrote Veale. The watershed covers 14 per cent of the Yukon and contains six major rivers systems that all run into the Peel River that drains into the Mackenzie River and ultimately, the Beaufort Sea, the judge noted. The potential impact of the court case on this area is signifi- cant. The findings of the plan- ning commission would permit mining and development on up to 20 per cent of the largely unexplored region. The govern- ment's proposal would allow de- velopment of more than 70 per cent of the area. Vancouver lawyer John Hunter represented the gov- ernment at the Yukon Supreme Court. For its appeal, the Yukon has now retained a legal team led by John Laskin of Torys LLP in Toronto. Aboriginal rights lawyer and former B.C. Supreme Court justice Thomas Berger continues to represent the Na- cho Nyak Dun. The land-use dispute also highlights the issue of agree- ments signed between First Na- tions and governments in Can- ada and what remedies exist if they don't follow the terms. A few months after the Peel Watershed decision, a judge on the Northwest Territories Su- preme Court granted an injunc- tion to the Tlicho government. Justice Karan Shaner grant- ed an injunction that put on hold the territorial gov- ernment's decision to cre- ate a new super board and eliminate regional bodies to deal with land and water issues. The policy change would reduce First Nations representation compared to what currently exists on the smaller regional boards that, in the case of the Tli- cho, came about as a result of a land-claims agreement. The planning commis- sion for the Peel watershed came about in 2004 under the terms of the umbrella final agreement reached a decade earlier by the gov- ernments of the Yukon and Canada and the Yukon First Nations. A planning commission established in this fashion has a different type of author- ity, Veale stated in his ruling. "Because the planning process is incorporated into the Final Agreements, the regional land use planning commissions and their plans have a constitutional dimension," wrote Veale. Outlining the chronology of the decisions for the Peel water- shed, the judge noted the gov- ernment had made proposed modifications to the commis- sion in 2011. Several months after the commission issued the recommended final plan, the government released its own proposal that was "significantly different," Veale noted. The First Nations argued the government had improperly gone off "on a frolic of its own." The territorial government responded that it could "ap- prove, reject or modify" any plan issued by the commission if it involves "non-settlement land" and it can do so without restrictions. The judge, however, rejected that assertion. "The land use planning pro- cess, as it applies to both Settle- ment and Non-Settlement Land, must be interpreted in the context of an exchange of rights, including the rights of First Na- tions within their Traditional Territory," wrote Veale. "The Government of Yukon is required to act honourably and respect its treaty obliga- tions," the judge added. Jeff Langlois, who acted for the Gwich'in Tribal Council as an intervener in the case, says decisions that f low from final agreements with First Na- tions must ref lect certain basic principles. "This is not a simple commercial contract," he says. Decisions need to be "con- sistent with reconciliation," says Langlois, a lawyer at JFK Law Corp. in Vancou- ver. Yukon Premier Darrell Pasloski told CBC news earlier this year that his government is appealing Veale's decision to make sure a "democratically elected government" has the final say over what hap- pens to the Peel watershed. "Commissions are not elected and they are not ac- countable," said Pasloski. The premier suggested First Nations were try- ing to have a "veto power" over Crown land. But the explanation put forward for the appeal and the gov- ernment's position are "an unusual way to interpret a modern land-claim agree- ment," says Langlois. "There are treaty rights over that land and its use even though it is settlement land," he adds. The parties haven't yet filed the appeal factums. The Yukon government, though, will take is- sue with the trial judge's findings about whether the territory had followed the process in place and the remedies granted such as quashing the government's land-use plan, says Laskin. David Schulze, a partner at Dionne Schulze in Montreal, says Veale's decision doesn't take away the powers of the govern- ment. "The court said there is a process that must be followed and within that process the ab- original party will be heard," says Schulze, who specializes in ab- original law and has argued cases in that area across the country. Last year, Schulze success- fully represented the Makivik Corp. (the legal representative of Quebec's Inuit people) in a court challenge to sport hunting rates for caribou set by the Quebec government. The Court of Appeal found the province had violated treaty rights and hadn't sought the ad- vice of an advisory body set up under the treaty. If governments in Canada aren't going to respect agree- ments with First Nations "and take shortcuts, then they can expect to be taken to court," says Schulze. LT FOCUS Go behind the ballot box for a look at the ins and outs of enforcing election rules and promoting voter engagement. Discover how elections work in this collection of articles written by key Canadian and international experts in election law. 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In that case, the court ordered Aboriginal Affairs to cover the monthly medical costs for a teenager with a severe disability. Jordan's principle isn't a program but a "process" to access services, the federal government is arguing in the current case in which it's urging the tribunal to interpret the application of it narrowly. LT Child welfare debate Continued from page 9

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