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Almost 40 years ago, former federal judge Thomas Berger issued a final report in the Mackenzie Valley Pipeline Inquiry, at the time Canada’s longest, largest and most comprehensive industrial project review.
The massive two-volume report was the product of exhaustive consultations between 1974 and 1977 with Dene, Métis and Inuit peoples, and recommended that the proposed construction of a gas pipeline be delayed for a full decade in the Northwest Territories and permanently barred from the Northern Yukon as it would “entail irreparable environmental losses of national and international importance.”
It turned out to be an incredibly pivotal moment in the history of Indigenous rights and ecological protections in Canada, arguably helping to preserve the largely pristine Northern Yukon, Mackenzie Delta and Beaufort Sea for the decades since.
And on March 22, 2017 — a single day before his 84th birthday — Berger will fight another battle on behalf of the region, this time representing three Yukon First Nations (Tr’ondëk Hwëch’in, Na-cho Nyak Dun and Vuntut-Gwitchin) and two environmental organizations (Canadian Parks and Wilderness Society and Yukon Conservation Society) in the Supreme Court of Canada over land-use planning in the Peel Watershed.
Berger told DeSmog Canada he reentered the fight for the Northern Yukon because what for decades had been protected was now facing new threats.
“The future of this very special place was at stake,” Berger says.
The case Berger is taking to the Supreme Court is complex and somewhat unusual, but fundamentally, it will determine how the future scope of industrial development is decided not only in the Peel Watershed — a 68,000 square kilometre region in the territory’s northeast — but across much of the rest of the Yukon and potentially across Canada.
“This will set the precedent for future land-use planning in the Yukon,” says Tr’ondëk Hwëch’in chief Roberta Joseph.
“It’s a generational hearing that’s happening,” adds Chris Rider, executive director of the Yukon chapter of the Canadian Parks and Wilderness Society (CPAWS).
First, a little bit of context about the Peel Watershed.
The Peel is a massive region, draining 14 per cent of the Yukon or an area the size of the entire Republic of Ireland.
Six tributaries flow into the Peel River, which itself later flows into the huge Mackenzie River and empties into the Beaufort. And the watershed serves as home to four First Nations (Na-Cho Nyak Dun, Tr’ondëk Hwëch’in, Vuntut Gwitchin First Nation and the Tetlit Gwich’in Council) as well as for important wildlife including the porcupine caribou, grizzly bears and dolly varden trout.
Bobbi Rose Koe, a 27-year-old Tetlit Gwich’in from Fort McPherson, Northwest Territories, emphasizes that her people are who they are because of the Peel River and watershed.
“We go out on the land for ourselves,” she says. “That’s where we feel at home and where we spend our free time. That’s where we get our food from, that’s where we get our fish from, that’s where we get our water from. That’s where my grandparents spent the majority of their time. We have that connection and that’s where we’re rooted to.”
So far, the watershed has been largely untouched by industrial development, despite being described as having “incredible mineral and hydrocarbon potential.” There’s only one major road, located on the far western side of the region.
It’s about as pristine a region as can be found in Canada.
A lone grizzly bear crosses a desolate road in the Northern Yukon. Photo: Peter Mather, all rights reserved.
In 2009, after five years of study and consultation, an independent land-use planning commission concluded that it should largely remain that way; the six-member commission issued a Recommended Plan that would ensure the protection of 80 per cent of the Peel from roads and industry.
That plan was finalized in 2011 after further consultations.
But in January 2014, without any warning and despite having engaged in the aforementioned land-use planning process for many years, the then conservative Yukon Government issued its own plan that only protected 29 per cent of the Peel from new mineral staking or oil and gas exploration.
“It was almost an exact reversal of the original plan,” Rider says. “The impacts would potentially be huge.”
Unfortunately for the government, such actions contravened how the land-use planning process must unfold according to provisions in the Umbrella Final Agreement of 1993 (which established a framework for Yukon’s First Nations to sign land claims and self-government agreements).
Chapter 11 of the Umbrella Final Agreement requires that the government “approve, reject or propose modifications” to the Recommended Plan, after which the land-use planning commission reconsiders the plan and submits a Final Recommended Plan to the government.
In 2014, a Yukon Supreme Court judge decided the government failed to follow that process with its last-minute rejection of the Final Recommended Plan; by previously submitting a letter with suggestions for minor modifications to the Recommended Plan — as opposed to an outright rejection of it — the government implicitly agreed to continue with the process.
As a result, the judge set aside the government’s industry-friendly plan of 2014, and ordered the process be rewound to the stage of final consultation so the process could be completed under the rules of the Umbrella Final Agreement.
Berger paraphrases the judge’s argument to the government as: “If you wanted to reject it, that’s what you should have done at the outset and given written reasons, but what you did was propose modifications and in those modifications you never argued about the amount of land protected. If this procedure is to mean anything at all, you have to be obliged to live by what you agreed to.”
This was considered a major win for the plaintiffs: all the hard work that had been completed by the land-use planning commission would be retained, as well as the recommendations of limited industrial development.
But the verdict was appealed. In 2015, a Yukon Court of Appeals judge agreed that the government had behaved inappropriately in replacing the Final Recommended Plan with its own land-use plan after submitting proposed modifications, “failing to honour the letter and spirit of its treaty obligations.”
However, instead of rewinding the process to the point of final consultations, the judge ordered it back to the 2010 stage — prior to the government issuing its approval, rejection or proposed modifications — which would allow the Yukon government to effectively have a do-over. In addition, the judge reiterated the government’s final authority to reject any plan that results from the lengthy process and adopt a plan of their own.
The appellants contend that verdict was a serious mistake and, unless unchallenged, will grant the territorial government far too much power over the land-use planning process. That in turn could erode the purpose of the Final Agreements.
In the words of Christina Macdonald, executive director of the Yukon Conservation Society, “it really made a mess of things.”
Berger says it puts at risk all of the foundational work previously laid: “If you want this process to work and all parties to proceed in good faith, you can’t allow Yukon to pull a completely new plan out of its hip pocket at the end of the day and reject all that has gone before.”
The situation is only made more complex by the fact that a new territorial government was elected in November 2016, with the winning Yukon Liberals promising to implement the land-use planning commission’s original Final Recommended Plan.
In other words, the Supreme Court of Canada case is going to be a fight between two parties who ostensibly both want to see 80 per cent of the Peel Watershed protected from industrial development.
However, the new Yukon government maintains the current Supreme Court appeal should be rejected, arguing that the process: 1) be rewound to the first round of consultations; and 2) allow the government to retain the ultimate power to reject any plan that is recommended by a land-use planning commission regardless of whether the process was conducted in good faith or not.
Macdonald explains that if the Supreme Court doesn’t set aside the Court of Appeal ruling it will mean that: “We can go through this process, Yukon government can play along, opt to modify the plan at the early stage of consultations but ultimately just be like ‘we don’t like that plan, here’s our own plan.’
“That’s what happened with the Peel,” she continues. “And our argument is that is not in keeping with what the creators of these Final Agreements intended.”
The Yukon government did not respond to a request for comment.
In its January 2017 factum for the Supreme Court case, the government’s legal counsel contended that setting aside the ability to reject any future Final Recommended Plan “would have the effect of turning the final land use plan approval decision over to the commission, contrary to the scheme of the Final Agreements.”
That’s ultimately the key disagreement.
The appellants contend that the independent land-use planning commission should in fact have a final approval decision of sorts, separate from any political bias or influence.
And in addition, that if First Nations are going to be truly equal partners in the land management and development, that the planning process as articulated in the Umbrella Final Agreement must be honoured.
“If everyone else is engaged in this process in good faith and done what they need to do then it should be essentially a binding process,” Rider says. “This government may be committed to acting in a fair and reasonable way. But there’s no guarantee that a future government would be. It’s important we get that precedent right, now.”
“The Court of Appeals judgment undermines the land-use planning process not only for the Peel but for every region of the Yukon over a period of what may well be decades,” Berger concludes. “It’s important that this matter be determined now.”
The Supreme Court can take six months or more to issue a verdict following a hearing.
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