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

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.