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Latest Peel Watershed Decision a Victory for First Nations, Environmental Values and the Democratic Process

By Donald Reid

In a far reaching decision, the Yukon Supreme Court ruled on December 2nd that the Yukon government did not honour the land-use planning process when it unilaterally intervened in that process, rejecting the Final Recommended Plan of the legally mandated Peel Watershed Planning Commission (Commission) and replacing it with another plan. The Court has upheld the primacy of the constitutionally-binding land claims settlements, and the key role of First Nations as Parties in the Yukon’s government-to-government planning processes.

Four of these First Nations, along with the Canadian Parks and Wilderness Society and the Yukon Conservation Society, were the plaintiffs, taking the Yukon government to court over its handling of the land-use planning process. In siding with the plaintiffs, this Court decision effectively re-instates the Commission’s Final Recommended Plan as the only Plan for the future. It will be the focus of one more round of consultations, but its central recommendations on land use designation will not be changed. Consequently, 80 percent of the watershed’s 67,000 square kilometres should become new protected areas in the near future, compared to only 29 percent that the Yukon government put forward in its unilaterally imposed plan.

Stormy weather over the upper Bonnet Plume drainage: Don Reid
Stormy weather over the upper Bonnet Plume drainage: Don Reid

WCS Canada is particularly interested in the Peel because the watershed is one of the last truly wilderness regions with intact predator-prey populations in Canada’s boreal mountains. From 2006 to 2009, I led a team of biologists in assembling what was known of the Peel’s wonderful ecological and wildlife values in a Conservation Priorities Assessment for the Peel Watershed Planning Commission. This Commission was charged with developing a land-use plan for the Peel watershed taking into consideration all its resource values and, in particular, the interests and values of four Yukon First Nations whose traditional territories overlap the watershed.

(c) Yukon Land Use Planning Council
(c) Yukon Land Use Planning Council

Conservation of ecosystems at these northern and relatively unproductive latitudes requires big spaces and intact watersheds. Sustainable populations of caribou and grizzly bears cover huge areas in their seasonal travels. Whitefish and grayling move hundreds of kilometres between spawning and wintering habitats. True conservation in the face of natural resource development pressures in surrounding areas will require large protected areas encompassing whole watersheds.
The four First Nations (Tetlit Gwich’in, Vuntut Gwich’in, Nacho Nyak Dun, and Tr’ondëk Hwëch’in), all of whom publicly rejected the Yukon government’s plan, hold a similar vision for the region’s future: large-scale protection to conserve the wildlife, water and fish on which they rely and which sustain many of their cultural traditions. As Tr’ondëk Hwëch’in chief Eddie Taylor puts it, the Peel watershed is also his people’s church: sacred ground for spiritual sustenance.

The campaign to protect the Peel began in earnest in the 1990s led by the Yukon chapter of Canadian Parks and Wilderness Society (CPAWS) under Juri Peepre, who just this year was recognized as a member of the Order of Canada. CPAWS raised the Peel’s profile internationally, nationally and territorially. They told the public about the region’s ecological values in books, movies and talks. They took artists on trips to express the beauty and civilizing influence of this wilderness. They helped the First Nations’ communities crystallize their voices.

Bonnet Plume Lake, Peel watershed: Don Reid
Bonnet Plume Lake, Peel watershed: Don Reid

The Commission heard these opinions and voices, along with that of our Conservation Assessment report and those of the mineral and petroleum industries, which have exploratory claims and licenses across the region. In their Final Recommended Plan of December 2011, they proposed full protection (no roads or access to existing mineral claims) of 55 percent of the land base in large watershed units, interim protection of another 25 percent in wilderness areas, restricting potential industrial development to 20 percent of the land base. First Nations and conservationists agreed to this approach even though it protected less than the 100 percent they had sought.

The Yukon Party government appeared non-committal at first, and did not take a firm stand on the Recommended Plan through the May 2012 territorial election. However, soon after that election, they unilaterally rejected the Commission’s Final Recommended Plan, and set up a new planning and decision process. That process offered four new land use scenarios, all ceding much more land to industrial interests and offering far less protection than the Commission’s Final Recommended Plan.

A series of public consultations conducted across the Yukon starting in December of 2012 indicated support for the Commission’s Plan, and not the government scenarios. This was clearly evident in print and voice media, and in paid advertising by individual citizens. However, any quantitative results of this public input to the formal consultation process were not available to Yukoners until a formal information request forced the government to release the results in late 2013. The results: 82—94 percent were in favor of the Commission’s Final Recommended Plan.

The Yukon Party government continued on its course, choosing in January 2014 to release its own final plan for the Peel: the second-most favorable to industry of its four scenarios. This Yukon government plan stated that only 29 percent of the land base would be protected, with much of that protection in narrow ribbons of land along the major rivers.

As a conservation scientist who was intimately involved in the analysis of conservation options in the region, I can safely say that the government plan intended to replace that of the Commission would not have offered significant protection to the Peel Watershed’s many irreplaceable values. The plan would have placed 44 percent of the land in Restricted Use Wilderness Areas. While this moniker suggests protection, “wilderness” is not an accurate description because roads would have been allowed and both existing and new mineral claims would have been operational up to a surface disturbance of 0.2 percent of the region at any one time. More intensive industrial activity would have been allowed in the remaining 27 percent of the watershed.

The rivers of the Peel drainage: Don Reid
The rivers of the Peel drainage: Don Reid

The Yukon Supreme Court decision of December 2nd has effectively rejected the Yukon government’s imposed plan, because the government imposed its views and suggested outcomes at a stage in the process too late to be reasonably considered by the Planning Commission and by the First Nations who were Parties to the planning process. The Yukon government worked outside of the process mandated by the land claims agreements.

Sunset over lower Peel River, where Tetlit Gwich'in harvest much of their fish: Don Reid
Sunset over lower Peel River, where Tetlit Gwich’in harvest much of their fish: Don Reid

Through this court case the Peel debate became one of respect for democracy and the rule of law as much as respect for environmental values. The Court has upheld the central role of the Umbrella Final Agreement with First Nations, which details the land-use planning process and the legally-binding role of First Nations as government-to-government partners in that process. At its heart though, the decision is a vindication of the strong love of the land and water that has driven the vision of the First Nations and the conservation community throughout. With a strong mandate in hand, the conservation community now looks forward to future implementation of conservation actions and safeguarding the natural and cultural values of this region.

 

Donald Reid is the Northern Boreal Mountains Landscape Leader.  As a Conservation Zoologist with the WCS Canada, Don leads conservation research and planning projects in theYukon and northern British Columbia.