The year 2014 closed out with yet another court decision regarding land use in a remote stretch of Canada, this time in northeastern Yukon’s vast Peel watershed.
Specifically, Justice Ron Veale of the Supreme Court of Yukon reached a decision in The First Nation of Na-Cho Nyak Dun et al. v. The Government of Yukon, which was a lawsuit over the fate of the Peel watershed that had been launched by the First Nation of Na-Cho Nyak Dun, Tr’ondek Hwech’in, Canadian Parks and Wilderness Society Yukon Chapter (CPAWS Yukon) and the Yukon Conservation Society (YCS). The defendant, the Yukon government, is widely seen as pro-resource industry.
The Peel watershed is largely devoid of roads or infrastructure, and encompasses 68,000 sq. km, or 14%, of the Yukon. It covers six major river systems — Ogilvie, Redstone, Hart, Wind, Bonnet Plume and Snake — that run into the Peel River, which eventually drains into the Mackenzie River in the Northwest Territories and then into the Beaufort Sea.
The First Nations of Na-Cho Nyak Dun, Tr’ondek Hwech’in, Vuntut Gwitchin and Tetlit Gwich’in all have what is legally termed “traditional territory” in the Peel watershed, while the settlements of Keno, Mayo, Dawson City and Fort McPherson surround the watershed.
There are no mines in the relatively unexplored watershed, but, as the decision notes, there were 8,428 active quartz claims as of July 2011, and two economic mineral deposits: the Crest iron deposit and the Bonnet Plume coal deposit. The watershed’s greatest resource potential may indeed be its untapped oil and gas.
Renewable resources in the watershed are subsistence harvesting, trapping, big-game hunting and tourism.
In a nutshell, Justice Veale ruled on Dec. 2 that the Yukon government violated its own land-use planning process as laid out in the “Umbrella Final Agreement” that was signed in 1993 by the Canadian and Yukon governments and Yukon First Nations.
As a result, land-use planning in the watershed — which began in 2004 — will return to the consultation stage with local First Nations and the general public.
The land use plan that had been agreed to by the original planning commission that had input from First Nations had recommended in July 2011 that 80% of the watershed be set aside from resource development, with 20% available for industrial development such as mining and oil and gas development.
The Yukon government essentially ignored the planning commission’s recommendation and instead went ahead with its own modifications in 2011 that reduced the protected area of the watershed to 29%, and formally entrenched its plan in January 2014.
It’s this move that turned the First Nations into plaintiffs, with environmental non-governmental organizations CPAWS and YCS providing support.
With the decision rendered by Justice Veale, the government’s January 2014 plan has been quashed and it has been ordered to resume earlier consultations, this time with constraints on its ability to modify the final recommended plan.
As Justice Veale notes in his decision: “the First Nations and the Government of Yukon have widely divergent views on the interpretation to be placed on [the final consultation process] and the words ‘approve, reject or modify.’”
He commented that the Yukon government’s actions in overriding the commission “did not enhance the goal of reconciliation. It was an ungenerous interpretation not consistent with the honour and integrity of the Crown.”
Tr’ondek Hwech’in Chief Roberta Joseph said in a release after the decision that the Peel River watershed “is as sacred to our people as it was to our ancestors, and through this decision we have ensured it will remain so for our grandchildren.”
Put another one in the “win” column for First Nations in Canada in their years-long string of successful court actions related to resource development.
Why the quotation marks around “traditional territory”? There’s no room for interpretation or second guessing here– those First Nations, under their land claim agreements, have legislative and historical backing to call those areas of land home. And by virtue of the government signing the very same land claim agreements, there’s no question that they too acknowledge those areas to be ancestral homes to these Indigenous peoples.
Hi MK, I used quotation marks to signifty that it is a specific legal term, not to signify that it is dubious. I’ll reword it a bit to make it clearer.