Q&A: Why the Fate of Canada’s Peel Watershed Rests in the Supreme Court’s Hands

The fate of the Yukon’s Peel Watershed — one of the most pristine wilderness areas in Canada and home to four First Nations — will be decided by the Supreme Court of Canada on Dec. 1.

What lies in store for the Peel will be determined by future land-use planning in the territory and whether and how those plans grant industry access to the undeveloped region.

In 2014, the previous territorial government tossed out the lengthy work of an independent land-use planning commission that recommended protecting 80 per cent of the region from industry and roads, replacing it with one that only protects 29 per cent of the region.

ICYMI: Battle to Protect Northern Yukon, Home of Pristine Peel Watershed, From Industry Heads to Supreme Court

Two lower courts both agreed that the government seriously erred in doing so. The question being resolved by the Supreme Court is what stage in the planning process things must return to.

The plaintiffs — three First Nations and two environmental organizations represented by legendary lawyer Thomas Berger — contend that rewinding the process too far back will give the government an unfair do-over and set a dangerous precedent for future land-use battles.

To help try make sense of the situation, DeSmog Canada interviewed David Loeks, who served as chair of the six-member independent land-use planning commission. This interview has been edited for length and clarity.

In 2014 the Yukon Government decided to effectively throw out the plan and come up with its own, which only protected 29 per cent of the Peel as opposed to 80 per cent. Did that come as a surprise to you?

All through the planning process, we had shown the evolution and direction of our thinking. And the Yukon Government said, basically, “yup, ok, no worries, carry on.”

When we had written our recommended plan and we did it in good faith.

It’s at the 11th hour and 59th minute, after we had fielded the recommended plan and were now ready to draft the final recommended plan… the Yukon Government comes in with bunch of very routine things…[including] two very key [concerns], which were posed in inoperative language like “we want to see more balance” and “we want you to rethink your access provisions.”

At that stage in the planning process, the Umbrella Final Agreement required that review comments be actionable and strictly referenced to the text. These were neither. We more-or-less had to say that if we were to take these substantively, we’d have to back way, way up in the planning process. We’d have to go back two years or so. So we more-or-less carried on writing the plan as we did, saying “these are inoperative review comments.”

Meanwhile, by this time there is data that between 75 and 80 per cent of the Yukon wanted highly protected landscape. The First Nations wanted it 100 per cent protected. So there’s a lot of push towards the kind of plan we were drafting.

ICYMI: PHOTOS: Documenting the North’s Mighty and Threatened Peel Watershed

What happened next?

The Yukon Government is obligated by the UFA to take that plan out for review. This is where things left the rails.

They didn’t do that. Rather than taking the commission’s plan out for review, they cooked up their own plan. Rather than using the five-year process that we had, they did it in a backroom in three-and-a-half months out and pulled it out and went “tada.” And they claimed — rather than an illegitimately done, backroom, in-house plan — that they were only modifying the commission’s plan.

It was a stunning bit of misrepresentation. Then, they proceeded to take that out for review. Not the commission’s plan — the one they cooked up.

At that point, a number of parties were starting to cry foul. I more-or-less said there was nobody here speaking for the commission. So I adopted a public role of speaking in public, writing editorials, giving interviews and adding my voice to the other ones.

I was speaking for what the commission had in mind and what we were thinking. The public pressure really, really mounted and culminated in this lawsuit, and eventually brought the government down.

How has it felt for you, watching from the sidelines after doing so much work?

The government had been unequivocally reprimanded by the courts. So I thought, “ok, our position is well founded.”

If the Supreme Court comes in favour of the plaintiffs, you can pretty well be assured that the Peel plan will get adopted. If it sides in favour of the government, we’ll have to take at face value and hold him to it, Premier Sandy Silver’s statement that he will, regardless of what the courts have to say, accept and adopt the final recommended plan.

One will have more teeth behind it. The second is going to rely on the integrity and character of Mr. Silver. At this stage, there’s no reason to question that. I’m extremely hopeful that the final recommended plan will be adopted and if the plaintiffs lose their case and if Mr. Silver and the Liberal Party reneged on a very clear promise, then I guess you’d have to say “watch out” as society won’t let that lie.

What are some important takeaways from this experience?

Planning, if properly done, is radically democratic.

People should be informed and weigh in and should weigh in a meaningful way. I found having good survey data that showed what the public wanted was really important.

In a representative democracy, our parliamentarians like to believe that they are both anointed and uniquely gifted for knowing what the public interest is. History shows that’s not really true.

Very often, our political apparatus really ends up being the handmaiden to particular interests, often resource development industries.

I’ve been left with the really firm belief that when it comes to making fundamental decisions about how is our landscape going to look over time, you shouldn’t leave that to technical experts.

Commissioners, who after all aren’t elected but appointed, are citizens trying to do a good job. And the critical question all the while is ‘are we on the right track here?’ That’s what a planning commission is trying to figure out. If someone was to say ‘what’s the public interest?’ then let’s ask them as opposed to saying that you’ve been elected by them and will speak for them.

It’s made me more committed to participatory democracy than ever. That’s really what land-use planning needs a healthy dose of.

We did our planning process saying “we’ve got to have a lot of public meetings and consultations.”

There is a huge contrast between what we did and what the government did in their process. Government held open houses, and an open house can be okay but it’s really easy to make it fundamentally dishonest because nobody knows what the sense of anybody’s interests are other than the folks who run the open house.

In a public meeting, where you can actually have statements by the public and debates, you can see how things start to look. That’s a chance for the public to interact with each other as well as with the commission. These kinds of things really are profoundly democratic and really important.

That was one of the things I found was intellectually dishonest about the way the government had presented their pseudo-plan.

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