WHITEHORSE — Mineral staking in the Peel Watershed was off-limits for nearly a decade, but now industrial development is permitted in a portion of wilderness home to four First Nations.

The Yukon government approved an order in council this week that guides how development is to go ahead. 

Mining, roads and oil and gas projects are allowed in one parcel, representing 17 per cent (11,573 square kilometres) of the total land mass. 

Last summer, Yukon governments, including First Nations, inked the Peel Watershed Regional Land Use Plan, which protects most of the watershed. Simon Mervyn, chief of the First Nation of Na-Cho Nyäk Dun, said it would “resound through the ages.” 

The signing came after First Nations and environmental organizations brought the Yukon government to court over how much land should be off-limits to development. The saga ended up in the Supreme Court of Canada in 2017, with the court ruling in favour of the First Nations. 

What Does The Peel Watershed Ruling Mean for the Yukon – and Canada?

The order in council marks the first action toward implementation of the plan. 

Jerome McIntyre, director of the land planning branch of the Department of Energy, Mines and Resources, said miners have recently submitted notices for exploration work in the parcel of land. Miners interested in developing a claim must submit a notice to the government before they can move ahead with any work, after which a 25-day review period begins. 

 The five governments that oversee the implementation of the plan — four First Nations and the Yukon government — must reach a consensus to give the greenlight on exploration. If an area has heritage or cultural values, for instance, a project could be denied.

Lewis Rifkind, a mining analyst with the Yukon Conservation Society, said information on stipulations set out for the region is limited, particularly on the question of where certain types of industrial projects are permitted. He wants to know how standards will be implemented.

 According to a Yukon government news release, all activity is to be “monitored and limits to cumulative impacts established and enforced.”

Rifkind, who’s called on the Yukon government for more information, said it’s unclear under what legislation mineral development will take place and what enforcement measures will be in place.

“The devil’s in the details,” he said.

Since 2011, there have been no new mineral claims in the Peel Watershed, which spans 67,431 square kilometres. Staking was withdrawn at that time, McIntyre said, noting that mining activity, among other things, was accepted when the land use plan began development in 2004. There were 530 quartz claims that year, along with 525 iron-mica leases.

“It was an area where you could do business,” said McIntyre, referring to the Peel at large, adding that the number of claims grew while the plan was being worked on, plateauing in 2008.

Eighty-three per cent of the Peel is designated conservation land. The order in council limits staking in this area to varying degrees.

Within the area designated for conservation, there are three different types of protection. Fifty-five per cent of the Peel is permanently withdrawn from staking. Another 25 per cent is designated as “wilderness areas,” which are protected on an interim basis. Three per cent of the watershed is designated to safeguard boreal caribou habitat. The parties are to review the latter two areas in 10 years. 

This level of protection is a far cry from what could have happened had the former Yukon government not been taken to the Supreme Court of Canada by First Nations and environmental organizations.

The Yukon Party, in power until 2016, wanted to open up 71 per cent of the watershed to extraction. According to the ruling, this significantly diverged from a plan submitted by the Peel Watershed Planning Commission years earlier. Only minor changes were accepted, resulting in the current plan that guides the watershed’s future.

The plan also dictates how mineral resources can be accessed. 

As of February 2019, there were 8,380 existing quartz and 525 active iron-mica claims in the watershed, the plan says. Where they are is another matter.

Existing claims in the conservation area are grandfathered in. But there are tight restrictions, making it difficult to get to them as surface access isn’t allowed. Those hoping to work these claims have to get there by air.

“That would be a significant hurdle,” McIntyre said.

Surface access is permitted in the parcel where mineral development is accepted, but there are thresholds for surface disturbances — roads and setting up camps, anything with a footprint essentially, said McIntyre, noting that up to one per cent of the area can have such activity.

“The surface disturbance would be tracked over time, and once it starts to get close to that one per cent, there’s a review that’s done by the parties to see what should be done about that.”

Roberta Joseph, chief of the Tr’ondëk Hwëch’in First Nation in Dawson City, said there has to be “faith in the process” moving forward — that development meets the parameters outlined in the land use plan, which, she noted, are relatively strict. 

She said all parties are moving to fully implement the plan “as soon as possible.”

“I think the First Nations, along with Tr’ondëk Hwëch’in, are fairly satisfied to be able to work with the Yukon government on this collaboratively,” Joseph said. “We look forward to continuing to monitor and co-manage all the activities where there’s interest, whether it’s an environmental interest or a mining interest.”

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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 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.

“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.” https://t.co/aFY1muiipB @ProtectPeel #cdnpoli #yukon #Y2Y @CPAWSYukon

— DeSmog Canada (@DeSmogCanada) November 28, 2017

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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The Peel Watershed covers 68,000 square kilometres of pristine mountains, wetlands, rivers, tundra and forest. It is world renowned for its rugged natural beauty and ecological richness, and, more recently, as a wilderness under threat. 

Thousands of mining claims dot the territory, with companies seeking to extract copper, platinum, uranium, lead-zinc, and iron. The mines themselves would disrupt the landscape and watershed, and the roads required to support those mines have attracted their own criticism for the landscape fragmentation they would bring. 

The Peel Watershed supports other values as well: First Nations make use of the watershed’s bounty, while the area has become a sought-after destination for paddlers, hunters and ecotourists. The Final Recommended Plan put forth by the Peel Watershed Planning Commission in 2011 recommended 80 per cent of the watershed be protected from mineral staking; in 2014 the government shrunk that number to 29 per cent. What will be protected — and how much protection it will receive — is currently being decided by the Supreme Court.

Terri Cairns sits a top a mountain above the Wind River. The Wind River is one of the five main tributaries of the Peel Watershed.

Early morning on the still waters of the Wind River in Northern Yukon.

Long time Peel Watershed activists Ken Madsen and Glen Davis canoeing past the confluence of the Snake River and Milk Creek. The Peel watersheds sees thousands of ecotourists venturing into its pristine wilderness every year.

Tom Clynes enjoys the whitewater on the Snake River. The Snake is also one of the five main watersheds that combine to form the greater Peel Watershed.

An aerial view of the smoke filled Wernecke Mountains and the Peel watershed.

Mount MacDonald is the highest and most striking mountain within the watershed.

The abundant wetlands of the Peel River plateau are critical to the migration of millions of birds and waterfowl that use it as a home and as a stop over during their spring and fall journeys.

A two month old red fox kit, catches a quick catnap near its den by the Blackstone River. The Blackstone is another one of the key tributaries that combine to form the greater Peel Watershed.

A bull caribou skull and antlers on the banks of the Wind River. The caribou was likely taken down by wolves in the winter.

A bull moose shakes the water off, after diving for food in a small pond near the headwaters of the Peel.

Sunrise cuts through the morning fog and the boreal forest of the Peel Watershed.

Smoking whitefish on the banks of the Peel River.

Fort McPherson elder, Agnes Neyando, hanging whitefish taken from the Peel River. Agnes and her husband spent their summers living in a wall tent along the river, into their 90s.

Gwich’in youth Tony Alexie singing the feathers off a goose that he harvested on the Peel River. 

Richard Abraham from Fort McPherson hauling firewood by dog team. The Tetlit Gwich’in people have fought hard for the protection for the entire watershed.

The Porcupine Caribou herd migrating to their wintering grounds in the Yukon Territory. The Peel is an important traditional wintering grounds for the caribou.

A bull caribou moves through the boreal forest of the Peel Watershed.

Tetlit Gwich’in youth Tony Alexie and Clifton Salu hunting caribou within the Peel Watershed. The caribou provide cultural and physical sustenance of the Gwich’in people.

Tetlit Gwich’in elder Ernest Vittrekwa in his smoke shack along the Peel River. The Tetlit Gwich’in have fought for protection of the Peel Watershed for 3 decades.

A wolverine is caught on a camera trap as it returns to a caribou kill on the Blackstone River. The massive wilderness of the Peel Watershed provides healthy habitat for a variety of animals including wolves, wolverines, caribou, sheep, moose and bears.

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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).

Yukon Government Threw Out Five Years of Study For Pro-Industry Plan

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.”

Modern Treaty Process Requires Government to Stick to Planning Rules

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.”

Court of Appeals Verdict ‘Really Made A Mess of Things’

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.”

New Government Pledge to Implement Original Plan But Still Want Case Dismissed

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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A coalition of First Nations and conservation groups are suing the Yukon government over a controversial new land-use plan for the Peel River watershed. The Nacho Nyak Dun and Tr’ondek Hwech’in First Nations joined with the Canadian Parks and Wilderness Society and the Yukon Conservation Society to file a lawsuit in the Yukon Supreme Court on January 27.

The lawsuit is part of growing opposition facing the Yukon government over the development plan released on January 21. The plan would see major portions of one of North America’s largest remaining wilderness areas opened to industrial development.

Critics claim that the government plan violates land claims treaties signed with First Nations groups and endangers a pristine wilderness ecosystem host to a diverse range of plant and animal species.

Located at the northern end of the Rocky and Mackenzie Mountain Chain, the Peel River Watershed features wetlands, river valleys, forest and tundra untouched by industrial development. Over seven times the size of Yellowstone National Park, the Peel Watershed is home to large populations of caribou, sheep, moose, wolves, wolverines and grizzlies. 

Protests against the new land-use plan were held across the Yukon and N.W.T. on Wednesday, demanding that the government respect both land claims treaties and the recommendations of an earlier plan produced after an intensive seven-year research and consultation process. 

“The 2011 plan was developed by the Peel Watershed Planning Commission, a body mandated under Yukon land claims treaties,” explained Yukon Conservation Society Executive Director Karen Baltgailis in an interview. The Planning Commission had worked together with representatives of government and First Nations groups to carefully assess the potential impacts of development in the region.

In a significant change of course, Yukon Premier Darrell Pasloski’s new plan rejects the Planning Commission’s recommendations, dramatically increasing the amount of land to be opened for resource development.

Overlooking the Hart River, one of the rivers recommended for protection under the Peel Watershed Planning Commission. Photo by Juri Peepre for protectpeel.ca.

According to Gill Cracknell, Executive Director of Canadian Parks and Wilderness Society Yukon, the key difference between the two plans is the amount of land in the Peel region to be opened for mining. The Planning Commission had recommended that 20% of the watershed be designated for new mineral claim staking. But under Premier Pasloski’s plan, that number skyrockets to 71%.

“The government’s plan is not science-based, it’s industry-based,” said Cracknell. “It gives lip service to the needs of the wilderness tourism industry and ignores the science behind large-scale protection.”

The Planning Commission report recommended that 55% of the Peel Watershed region be designated as a special management area, putting it under permanent protection from mining and oil and gas exploration. Under the new government plan, only 29% is set aside as a protected area, and the ambiguous language of the plan leaves the door open to future development.

David Suzuki at a viewpoint above the Hart River. Photo by Marten Berkman for protectpeel.ca.

Noted Canadian aboriginal rights lawyer Thomas Berger will represent the plaintiffs in the lawsuit against the Yukon government.  “It’s a lawsuit nobody wanted to bring,” said Berger at a press conference in Vancouver. “But the government of the Yukon has forced these plaintiffs to go to court not only in defense of First Nations right and environmental values in Yukon, but also to uphold principles entrenched in the Constitution.”

Yukon Premier Darrell Pasloski responded to the lawsuit in an interview on Thursday, but had little to say about the specific details of the land-use plan, or what prompted the government to unilaterally reject the earlier, inclusive planning process with First Nations.

"We truly are leading not only the country, but in a lot of respects leading the world on this, and that's why sometimes you have opportunities where there is disagreement and that resorts to going to the courts to create that certainty," he said.

Image Credit: Juri Peepre

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