The long-awaited Supreme Court verdict on the Peel Watershed case is finally here.

In a unanimous ruling, the highest court in the country decided that three Yukon First Nations and two environmental organizations were correct in their push for a lengthy land-use planning process to be maintained and only rewound to the point where the government can conduct final consultations.

It’s been a lengthy and complex case. So what does today’s decision really mean?

The Supreme Court’s ruling sets a huge precedent for all future land-use planning in Yukon, as well as anywhere in Canada where a modern treaty has been established.

It’s also a serious reminder to governments that they can’t make unilateral decisions against the interests of Indigenous communities when there are clear processes in place.

At a press conference in Ottawa, Vuntut Gwitchin Chief Bruce Charlie said his government is “extremely pleased with the landmark decision, which benefits all Canadians, Indigenous people across the country and the wildlife. The highest court in Canada has ruled in favour of this protection and it could not come at a better time.”

“This region is almost a pristine region,” said Chief Roberta Joseph of the Tr’ondëk Hwëch’in First Nation during the press conference. “It has beautiful, clear, sparkling rivers where we can go and drink the water from. There’s a lot of food on the land for us: our people use it for food, we harvest medicines. One of our elders always says ‘this is our university and our hospital.’ That’s what’s at stake here.”

Yukon Conservation Society executive director Christina Macdonald added: “Today is a victory for the land, for the water, for democracy and the people. And it’s something we should all be very proud of.”

Yukon Government Botched Collaborative Land-Use Planning Process

The Peel Watershed Planning Commission worked for seven years to produce a land-use plan. In the end, it recommended that 80 per cent of the region be protected from industry: 55 per cent permanently protected, and another 25 per cent temporarily protected.

A 1993 Yukon agreement required all land-use planning in the territory proceed in a very specific way, with a bulk of the work done by a regional planning commission comprised of nominees from impacted First Nations and the territorial government.

But instead of following that agreement, the Yukon government came up with an entirely new plan: one that only protected 29 per cent of the Peel from industrial development. That outraged many Indigenous and environmental groups, who took the government to court to ensure the process was honoured.

Both lower courts ruled that the territorial government had messed up badly. Today, the Supreme Court of Canada agreed with that.

The real question that was addressed in today’s ruling concerning appropriate legal remedy was specifically, to which point in the land-use planning process should the government be required to return? The Yukon Court of Appeal ruling had rewound things too far back, according to the First Nations and environmental groups, giving the territorial government an effective “do-over” and unfair control over the process.

“The remedy that the court appeal granted really created a lot of uncertainty and undermined the integrity of those collaborative processes,” said Jeff Langlois, lawyer at JFK Law and counsel for Gwich’in Tribal Council, which intervened in the court challenge.

Supreme Court Agreed With Trial Judge, Reverting Process to Later Stage

The Supreme Court effectively overturned that decision, returning the process to where the Yukon government must conduct a final consultation.

That’s considered to be excellent news by the First Nations and environmental groups, as it keeps the original plan and multi-year process intact and requires the government to honour the original process. However, the government can still feasibly reject the Final Recommended Plan after consultations, as the Supreme Court declined to provide an interpretation on that.

“It’s an open question as to whether Yukon can reject this plan, I think is the right way to read this decision,” Langlois said. “I think it’s a partial victory for Yukon in that they’ve erased that part of the judgment.”

However, if the government did reject the plan, it wouldn’t be able to simply come up with its own; instead, it would have to restart the multi-year collaborative process. In addition, the recently elected Yukon government has pledged to accept the Final Recommended Plan. That commitment is arguably a significant part of why the Yukon Liberals won the territorial election in 2016.

The government appears ready to follow through on that commitment.

“This is a victory for all of Yukon,” Yukon Premier Sandy Silver said in a press conference following the ruling. “We believe that when people look back at this moment in time, they’re going to see this as the beginning of a new era, one that’s based upon reconciliation.”

Things might get especially interesting in the coming months.

The #PeelWatershed ruling was unanimous and long in the making. But what’s next? https://t.co/rlYbJdcFiE

— DeSmog Canada (@DeSmogCanada) December 1, 2017

What Can the Government Still Change?

The plan can still be modified following consultations, so long as the modifications aren’t so extreme that it would constitute a rejection of the plan.

However, modifications must have either been proposed during the collaborative land-use planning process or result from something that can be justified based on things that emerged since the plan was released, such as new scientific studies or recognition of a particularly vulnerable part of the region.

Langlois said that will likely rule out any “monkeying around with the fundamental mix of protected areas versus areas open for development,” such as was originally proposed by the former government, but leaves open the opportunity for both government and First Nations to create an even better plan.

“Any modification is going to be subject to that broad scrutiny: is imposing that modification in compliance with the honour of the Crown?” he said. “Is it consistent with their obligations under this collaborative process? It’s not a real black-and-white thing. It’s going to take a lot of thinking about.”

Ruling Potentially Sets Precedent for Modern Treaties Across Canada

This ruling isn’t limited to the Peel Watershed.

For one, it will serve as the foundation of any land-use planning process that goes ahead in Yukon. But its impact will also be felt across the country, potentially serving as a significant precedent for all modern treaties and collaborative processes of its kind.

“Really, what the court is saying is when a provincial or territorial government can say ‘yes’ or ‘no’ to land-use and other environmental decisions under a final agreement, that has to be in a way that gives life to the objectives of the treaty,” said Micah Clark, a lawyer who represented the environmental groups and First Nations, at the press conference. “And here, what they said the objective of the treaty was is that this is a collaborative process.”  

Langlois pointed to the Gwich’in Renewable Resources Board and ongoing land-use planning processes in Nunavut as examples of what might impacted by this decision.

Lawyers didn’t provide a timeline for next steps in the process, suggesting that the First Nations and environmental groups be given a few days to celebrate the decision. But it’s abundantly clear that people are in the struggle for the long haul.

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The Supreme Court of Canada has refused to hear an appeal brought by the West Moberly and Prophet River First Nations that argues the federal government failed to consider their constitutionally protected treaty rights when approving the $9 billion Site C dam in northeast B.C.

The rejection by Canada’s highest court has members of Treaty 8 First Nations wondering who bears the responsibility for determining whether or not a major project like Site C infringes on their rights as a treaty nation.

“This is very sad news,” Roland Willson, Chief of the West Moberly, told Desmog Canada.

“We have a treaty that is a part of the Constitution of Canada and there is no legal mechanism to protect the constitution, that piece of the constitution,” he said.

“Every other part of the Constitution they won’t tread on except the part that’s got to do with Indians — they’ll walk all over that.”

Image: Chief Roland Willson at the 2016 Paddle for the Peace. Photo: Carol Linnitt | DeSmog Canada

Infringement of Treaty Rights Not Adequately Considered

Caleb Behn, a former lawyer whose mother belongs to the West Moberly, said the decision has disturbing implications for the promise of reconciliation between the government of Canada and indigenous peoples.

“For the Supreme Court to think this appeal wasn’t even worth hearing confirms to me what my loyalty and that of my grandfather is worth to the Crown,” he said.

Under Treaty 8, the government of Canada promised to guarantee the rights of local First Nations to hunt, trap, fish and continue their traditional way of life on their land.

The West Moberly and Prophet River nations filed a judicial review of Site C in November 2014, saying the federal government failed to determine if the project, which will flood 107 kilometres of Peace River valley, violates those treaty rights.

In January 2017 a federal court ruled the government wasn’t obligated to make that determination, a ruling that puzzled legal experts.

The Supreme Court has now refused to hear the West Moberly and Prophet River First Nations’ appeal of that ruling.

“I’m a Treaty 8 person with a law degree, so I never allowed myself to get truly hopeful, because I’m too familiar with what the law really does to indigenous people, people of colour,” Behn told DeSmog Canada.

“This decision desecrates in my view something much more important that just the decision of the governor in council; this is how little regard sacred treaty, sacred balance, sacred law and natural law are worth in the 21st century,” he said.

A federally appointed Joint Review Panel found Site C would likely cause significant adverse effects on fishing, hunting and trapping in Treaty 8 territory.

The panel — which was instructed not to make a judgment if Site C infringed on treaty rights — found the negative impact of the dam could not be mitigated.

In May of 2016 a group of 250 prominent Canadian academics asked Prime Minister Justin Trudeau to halt construction of Site C so impacts on indigenous peoples could be properly considered.

Image: Site C construction. Photo: Garth Lenz | DeSmog Canada

Civil Suit Can Address Site C Damages After the Fact

Chris Tollefson, executive director of the Pacific Centre for Environmental Law and Litigation, previously told DeSmog Canada the two nations can file a civil case to determine if treaty rights have been infringed.

“If that is the only remedy, that that is not a very efficient or effective remedy,” he said.

“Whose responsibility is it to ensure decision are not made that irrevocably harm constitutionally protected rights?”

Chief Willson said a civil suit may be the only option to determine whether Treaty 8 is violated by Site C. The dam reservoir will flood sacred graves and spiritual sites as well as prized habitat

“There is no mechanism to protect the treaty. All we can do is file for damages now,” Willson said.

“This is the insanity of this whole thing: you can’t file a civil claim until there are damages. We have to sit here and wait until they destroy the valley and then file.”

“So they can approve every hair-brained project that comes up now and they only thing we can do is sue for damages,” Willson said.

“What’s the point of a consultation process?”

Tollefson said relying on a civil suit is a losing battle as long as Site C construction continues.

“You wonder whether that task has been assigned to any arm or branch of government or whether in the end all that is left is for this nation to undertake is a very complicated and lengthy proceeding to pursue that argument — which, without an injunction, will be a futile quest.”

Behn added the legal system plays off the disadvantage of indigenous peoples whose rights have long been undermined through Canada’s colonial past.

“We have to suck it up, wait for damage, and re-enter the fray in the same process that has proven itself to be incapable of providing justice for indigenous people.”

New B.C. Government a Final ‘Hail Mary’ for Fight Against Site C

The promise of a new government in B.C. is Chief Willson’s last hope to stop Site C, he said.

The NDP and Green parties have agreed to work together to topple the B.C. Liberal-led government and send Site C for immediate review with the B.C. Utilities Commission, a process the Liberals vetoed.

“That’s our hail Mary,” Willson said.

“We’re all sitting here praying there’s a vote of non-confidence and it will hit the pause button on Site C and stop what’s going on in Bear Flats,” he said.

“That’s the tragedy of this whole thing, the B.C. government is destroying our valley for a completely unnecessary project.”

NDP Party Leader John Horgan formally introduced a motion of non-confidence in the house, Wednesday and the outcome of that motion, whether a new NDP-led government or a re-election, is expect to be known by Friday.

Update July 4, 2017: The headline of this piece previously stated the case had been 'struck down' by the Supreme Court of Canada. It has been updated to more accurately reflect the legal situation.

Image: Valeen Jules at the 2016 Paddle for the Peace. Photo: Jayce Hawkins| DeSmog Canada

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This article originally appeared on The Tyee.

Two University of Calgary law professors have demanded Alberta’s energy regulator withdraw its “inaccurate and misleading” statement on a Supreme Court of Canada ruling that a landowner couldn’t sue it for alleged rights violations.

The court ruled Friday, in a split decision, that Jessica Ernst couldn’t sue the oil and gas regulator for allegedly violating her Charter rights.

The Alberta Energy Regulator posted a statement on its website in response to the highly technical ruling.

“The Court did not find there was a breach of Ms. Ernst’s Charter rights, and made no findings of negligence on the part of the AER or its predecessor the ERCB,” declared the statement.

But law professors Shaun Fluker and Sharon Mascher have written in a popular legal blog that the regulator’s claim isn’t true.

“The AER Public Statement is inaccurate and misleading, and is not the sort of action we would expect a quasi-judicial tribunal to consider appropriate,” they write. “The Supreme Court made no finding at all on a breach of the Charter in the Ernst decision.”

In 2007, Jessica Ernst, an oil patch environmental consultant, sued the Alberta government, Encana and the regulator for negligence over contamination of local aquifers near her Rosebud home allegedly caused by the hydraulic fracturing of shallow gas wells in 2004.

After Alberta courts ruled that Ernst could sue the government but not the regulator due to an immunity clause passed by the legislature, Ernst took her case to the Supreme Court.

Her lawyers and the BC Civil Liberties Association argued that an immunity clause should not prevent a citizen from suing for violations of Charter rights.

Ernst’s lawsuit claimed the AER breached her rights by branding her a security threat in 2005 and refusing to communicate with her unless she stopped criticizing the board publicly.

In a split ruling, five members of the Supreme Court dismissed Ernst’s Charter claim based on the immunity claim and the argument that she should have sought a judicial review of the regulator’s actions — something that lawyers familiar with Alberta courts say is almost impossible.

Fluker and Mascher question the Alberta Energy Regulator’s judgment in posting the response to the case.

“The Ernst proceedings are, at their core, allegations that the AER acted punitively,” they note. “One might think that a quasi-judicial tribunal, accused of acting like a bully, would be happy to let these sort of proceedings end quietly in its favour. But apparently not.”

“This Public Statement on the Ernst decision is long on self-vindication and short on facts,” they wrote. “Most problematic is that the AER incorrectly states the Supreme Court has cleared it of wrongdoing in its dealings with Jessica Ernst.”

The regulator’s statement said the Supreme Court “made no findings of negligence on the part of the AER or its predecessor the ERCB” (Energy Resources Conservation Board).

But the issue before the court wasn’t negligence but the constitutionality of the immunity clause, Fluker and Mascher note. “To suggest that the Court made no findings of negligence suggests that it made a finding of ‘no negligence’” they wrote.

The AER is responsible for overseeing the lifecycle of nearly 400,000 active and inactive well sites as well as bitumen mines, pipelines, coal plants and gas processing facilities. Its comprehensive activities affect groundwater, farmland, air quality, land prices, provincial revenues and First Nation rights.

But critics say the adversarial agency works for the oil patch and is now chaired by Gerard Protti, a former energy lobbyist, and is largely funded by industry.  

Among landowners the AER has a checkered history. In 2007, the regulator was caught spying on citizens opposed to a power line.

First Nations and environmentalists have also repeatedly criticized the board for restricting access to public hearings.

One 2014 review concluded “the institutionalized processes of participation have been restricted to the point of nullifying the possibility of effective, democratic control over the expansion of the tar sands.”

Although the AER is supposed to arbitrate disputes between landowners and oil and gas companies over pollution, land devaluation and public health impacts, it rarely performs that function, said Fluker in an interview.

“Any landowner who has a problem with industry has to go to the AER,” said Fluker who runs a public clinic to help rural citizens impacted by energy developers. “But they are not going to get a fair shake. The AER is there to look after industry and that’s a big problem.”

Diana Daunheimer, a landowner suing Bellatrix Exploration over pollution near her land in Didsbury, said the regulator is entirely captured by industry interests.

“The AER does everything in its power — which by the way is totalitarian — to discredit or disregard Albertans harmed by oil and gas operations,” she said. “The AER has no public interest or public health mandate. How can the AER purport to protect public safety, when they have no mandate to protect public health?”

When mother and landowner Kimberly Mildenstein raised questions about traffic congestion caused by fracking trucks in central Alberta between 2011 and 2012, she says the AER did nothing.

“Basically the AER listens to community complaints very well and then ignores them very well,” said Mildenstein. “As citizens residing in fractured communities, we are lured to believe regulation for our safety exists.” It doesn’t, she said. Mildenstein and her family eventually moved to Vancouver Island due to regulatory inaction on fracking abuses.

Some members of the legal community have expressed dismay over the Supreme Court ruling.

“The Charter guarantees everyone the right to an appropriate and just remedy if their constitutional rights are violated, but a majority of the Court has now said that in some circumstances, legislatures may shield certain government administrative decision makers from Charter scrutiny,” noted Laura Track of the BC Civil Liberties Association.

“This decision has worrisome implications for people across the country seeking to hold government-appointed decision makers accountable for egregious unconstitutional actions.”

Ernst’s landmark lawsuit against the Alberta government and Encana over groundwater contamination caused by shallow gas fracking has now been before the courts for 10 years.

Not one piece of evidence has yet seen the light of day in court. 

In an email, the Alberta Energy Regulator’s senior public advisor Ryan Bartlett said the board welcomed comment from “all stakeholders” but “stands by its statement."

Image: Mysterious foamy water collected after heavy rainfall near a fracking site. Joshua B. Pribanic/Public Herald.

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First Nations’ consent to the Site C dam should determine the project’s fate, according to Amnesty International Canada’s Craig Benjamin.

“At the end of the day with regard to human rights you can simply ask ‘what are First Nations saying?’ ”

“And if they’re saying no, we have to say no as well,” Benjamin, campaigner for human rights and indigenous peoples from Amnesty International Canada, told an audience gathered in Victoria this week.

Speaking at a public education event with West Moberly First Nations’ Chief Roland Willson, Benjamin said Canada is breaking its own laws when it comes to the rights of First Nations.

The West Moberly First Nation is launching a legal challenge of the B.C. government’s recent approval of the Site C dam, a $9 billion dollar hydroelectric project that will flood over 100 square kilometres of forest and rich agricultural farmland.

Benjamin, who recently traveled to the region, said the project poses a threat to First Nations’ cultural way of life: “It’s a violation of standards that exist in the international community, which Canada has sworn to uphold.”

“These are all fundamental human rights — the right to a healthy environment, to clean water, the right to one’s culture, the right to one’s identity, the right of indigenous peoples to make their own decisions about their lives and their futures.”

“These are all being threatened by the plan to proceed with this dam.”

Benjamin noted the recent Tsilhqot'in Supreme Court victory further protects indigenous rights and self-determination on traditional territory.

“One of the things that court decision did was to set out in the clearest possible language that if the government wants to tread on the rights of indigenous peoples there’s an extremely high standard that it has to meet of justification to show why the project should be allowed to go forward.”

But according to the government’s own standards, no project can “substantially deprive future generations of the benefit of the land,” he said. In addition the government must meet a duty to consult and accommodate and demonstrate the project’s objective meets the needs of general Canadians and indigenous peoples.

“These are requirements that our own Supreme Court set out.”

“And this plan fails every one of those tests and yet two levels of government want to proceed with it. Two levels of government want to fight it in the courts. Two levels of government want to expend all of their resources to pursue it even though the highest court of the land has already set out a test that this project doesn’t meet.”

He also argued that there is an “underside” to the claim of benefits (i.e. jobs) associated with construction of the Site C dam.

“All of the oil and gas development that has taken place up there has created a situation where the ratio of short-term workers to long-term residents in Fort St. John is four to one,” he said. This has caused housing prices to skyrocket and has placed a significant strain on the “social safety net” in the area.

In addition, Benjamin argued, the potential impact on the most vulnerable members of society — especially indigenous women — should not be overlooked.

“The reason why Amnesty International initially wanted to look at this is because of what we’re already seeing in Canada around the issue of missing and murdered indigenous women.”

In Canada indigenous women and girls are more than seven times more likely to experience violence in its most brutal and extreme forms, he said.

The circumstances in the region, which include housing shortages, strained medical services, massive gender wage inequality and a flood of transitory workers create a “perfect storm…to accentuate the injury against the lives of women.”

Image Credit: Chief Roland Willison. Photo by Garth Lenz

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Marilyn Baptiste of the Xeni Gwet’in First Nation in British Columbia has won the prestigious $175,000 Goldman Prize  for her five-year effort to prevent construction of the Prosperity gold and copper mine 600 kilometres north of Vancouver.

“I hope the Goldman award will bring world recognition to help us protect our land,” Baptiste told DeSmog Canada.  “We’d like to improve our lives, but our land and water comes first."

That simple statement echoes the words of millions of indigenous peoples in Canada and around the world facing governments and industries intent on extracting minerals, oil, coal, gas and timber from their lands.

“It’s the same story everywhere,” she said.

However, the beginnings of a new story may be in the works in Canada. Baptiste is a member of the Tsilhqot’in people who won a landmark Supreme Court of Canada decision in 2014 that granted aboriginal title to more than a 1,750-square-kilometre area in the Cariboo-Chilcotin area.

For more than 20 years, the 3,000-member Tsilhqot’in opposed clear-cut logging on its unceded territory in and around the Nemaiah Valley. The Tsilhqot'in have no treaties with governments, but the B.C. government approved the logging regardless. The Supreme Court ruled that B.C. had infringed on the rights of the Tsilhqot’in.

Most of B.C. is unceded territory, so the implications of the Supreme Court decision are potentially far-reaching for the rest of the province.

“Our land, our water, our future generations are not for sale," Baptiste said.

Vancouver’s Taseko Mines Ltd, the proponent of the renamed “New” Prosperity Mine, says it will proceed with its project because it is outside of the 1,750 square kilometre Tsilhqot’in territory.

Taseko has spent 20 years trying to get the open pit mine built beside Teztan Biny (Fish Lake). Although the project was approved by B.C., a federal environmental review panel rejected the project in 2010 for its serious potential environmental and cultural impacts. In a rare statement, then minister of environment Jim Prentice said the project would destroy Fish Lake and surrounding streams and wetlands.

A Taseko animation of the New Prosperity Mine plans for Fish Lake via Youtube.

Taseko made some changes, called it "New" Prosperity and re-submitted it to the federal review panel soon after with the blessing of the B.C. government. Taseko started to work on the mine in 2011 without getting federal approval.

That’s when Baptiste stood up and started a one-woman blockade preventing construction crews from reaching the proposed mine site. Alone and in a very remote location, Baptiste drew her courage from the mountains around her.

Baptiste stands over a map of Tsilhqo'tin Territory. Photo: Goldman Environmental Prize

“We’re part of the mountains and lakes. They’re our source of health and sustenance….It is just my duty and responsibility to protect our lands, water, wildlife, wild plants for our future generations,” she said.

Baptiste was soon joined by members of her community and the Tsilhqot’in Nation in blocking the road.

The federal government rejected Taseko again in 2013, saying it would cause irreversible environmental damage. Taseko’s response was to sue the federal government. And then again when it lost.

In January 2015, the B.C. government granted Taseko a new extension to build the mine.

“It’s been five years but it feels like ten,” said Baptiste.

“We’re definitely going to continue to oppose the project.”

The open pit mine would be up to 1.6 kilometres wide and more than 500 metres deep. The contaminated tailings will be dumped into a tailings pond near the lake — the specifications of which are based on those of the Mount Polley tailings pond, Baptiste said.

The Mount Polley tailings pond, about four square kilometres in size, failed in August 2014, releasing millions of cubic metres of contaminated water. It was considered one of Canada’s biggest environmental disasters.

Indigenous peoples appreciate modern technology and want to enjoy the benefits, but not if that means the destruction of their land and waters, Baptiste repeated.

“We can’t continue the way we are going. Mother Earth is telling us we are going the wrong way.”

Laws and regulations for mining and the extractive industries need major reforms, something First Nations in the Mount Polley area are actively engaged in pursuing. Governments need to work with local people, not ignore or disrespect them as the B.C. government has, Baptiste said.

Image Credit: Goldman Environmental Prize

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