Yukon court quashes Peel Watershed plan

The Supreme Court of Yukon Dec. 2 struck down a land use plan crafted by the Government of Yukon for the territory's vast Peel River Watershed region that could have ripple effects throughout Yukon and beyond.

The Peel Watershed, roughly the size of Ireland, sprawls across 77,000 square kilometers (30,000 square miles) of mountainous terrain situated at the northern end of the Rocky and Mackenzie mountains. Though about 10 percent of the watershed lies across the border in Northwest Territories, some 68,000 square kilometers (26,248 square miles) is located within Yukon's borders, directly north and west of more populous central areas of the territory near Whitehorse, Dawson and other smaller communities.

Hailed by conservationists as one of the largest intact natural ecosystems left in North America, the Peel Watershed drains about 14 percent of Yukon's land mass.

While it is almost entirely undeveloped, and there are no mines in the region, there are nearly 8,500 active mining claims and more than C$100 million has been spent on mineral exploration in the region. The area is considered to harbor a large portion of Yukon's oil and gas potential.

Once completed, a regional land use plan will apply to non-settlement lands, which cover more than 97 percent of the Peel region. The plan also will balance protection for the most sensitive areas of the watershed with providing opportunities for economic activities.

Government plan

After several years of consultation with the public and affected First Nations, Yukon officials unveiled a final land use plan for the Peel Watershed Jan. 21, drawing sharp criticism from major stakeholders in the agreement and one legal challenge.

The First Nations of Nacho Nyak Dun and Tr'ondëk Hwëch'in, the Canadian Parks and Wilderness Society Yukon Chapter and the Yukon Conservation Society appealed the government's decision to Yukon's Supreme Court.

They argued that the government broke with the land-use planning process laid out in the 1990s under an Umbrella Final Agreement between Canada, Yukon and Yukon First Nations, which forms part of 11 final agreements across Yukon.

The plaintiff First Nations with two environmental organizations sought an order that the government-approved Peel Watershed 2 Regional Land Use Plan, dated January 2014, be quashed, as well as an order requiring the Yukon government to re-conduct the s. 11.6.3.2 consultation with constraints on its ability to modify the final recommended plan.

Legal observers say the case marks the first time that a Canadian court has been asked to consider the meaning of land-use planning provisions contained in the Umbrella Final Agreement.

In "The First Nation of Nacho Nyak Dun et al v. The Government of Yukon," the plaintiffs sought to have the process outlined in the Umbrella Final Agreement upheld and to see the planning through to a conclusion that would protect some 54,000 square kilometers (20,844 square miles) of Peel wilderness from mining and other industrial development.

During the week of July 7 - 10, renowned lawyer Thomas R. Berger argued the landmark constitutional case before the Yukon Supreme Court. The case was then continued on Oct. 24 to accommodate a deeper discussion focused on remedy.

Reasons for judgment

In announcing his decision Dec. 2, Justice Ron Veale of Yukon's high court listed the reasons for his judgment. Veale agreed with the plaintiffs that the Yukon government violated the land-use planning process laid out in the Umbrella Final Agreement in developing its final land use plan for the Peel Watershed

The planning process will now return to the final round of consultation with the affected First Nations and the public.

The court order further constrains the Yukon government to the modifications it previously proposed but the question of the amount of land protected and the question of access are off limits.

In a summary of the case, the court said the Peel Watershed is a vast and virtually undeveloped piece of land in northern Yukon. In 2004, a land-use planning process was entered into pursuant to Chapter 11 of the final agreements of the First Nation of Na-Cho Nyak Dun and the Tr'ondëk Hwëchin, both of which have traditional territory within the watershed.

Following roughly five years of background work and information-gathering, the Peel Watershed Regional Planning Commission released a recommended land use plan for the Peel Watershed in December 2009.

After receiving proposed modifications from both the Yukon government and the affected First Nations in February 2011, the planning commission released its final recommended land use plan for the watershed on July 22, 2011.

In February 2012, the Yukon government announced eight core principles to guide modification and completion of the Peel Watershed Regional Land Use Plan, and in September 2012, it revealed new land use designations and four maps reflecting proposed new concepts for the land use plan.

After consultation, the government ultimately approved a Peel Watershed Regional Land Use Plan in January.

Relying on its s. 11.6.3.2 authority to "modify" the Planning Commission's final recommended plan as it applies to non-settlement land, the approved plan shifted the balance of protected land in the area from 80 percent to 29 percent.

In its decision indexed as "The First Nation of Nyak Dun v. Yukon (Government of), 2014 YKSC 69," the court granted the remedies sought by the plaintiffs.

The land-use planning process set out in Chapter 11 of the Final Agreements has a constitutional dimension by virtue of s. 35 of the Constitution Act, 1982.

"As treaties, the final agreements are to be given a large and liberal interpretation consistent with the objectives of the treaty and in a manner that upholds the honor of the Crown," wrote Justice Veale. "The final agreements must be interpreted in a manner that furthers the objective of reconciliation between Aboriginal and non-Aboriginal societies.

The final agreements give Yukon First Nations certain rights in their traditional territories in exchange for the release of their claims to it. This includes a right to participate in the management of public resources. Chapter 11 encourages the development of a common land-use planning process that applies to both Settlement and Non-Settlement Land in the Traditional Territories of the First Nations," he added.

The approach to land use planning in Chapter 11 is consultative and collaborative and relies on an independent and objective commission.

The Government of Yukon is required to consult, as that term is defined by the final agreements, with affected First Nations and affected Yukon communities in each of the recommended and final recommended plan reviews.

In accepting, rejecting or proposing modifications in response to the recommended plan, the Yukon government must be responsive to the preceding consultation.

If the government proposes modifications, it must provide written reasons.

These reasons must be drafted with some precision so that the commission can reconsider the recommended plan and make a final recommendation addressing the proposed modifications.

Once the final recommended plan is released, the Government of Yukon must again consult, following which it may accept, reject or modify the final recommended plan.

If the government proceeds to modify the final recommended Plan, those modifications must be based on the proposed modifications with written reasons earlier put forward to the planning commission.

Without this constraint, the government could thwart the land use planning entirely by imposing new modifications that the commission was not able to address.

"In this case, the process adopted by the Yukon government in approving the Peel Watershed Regional Land Use Plan was not based upon a contextual interpretation of s. 11.6.0 of the final agreements. The plain reading interpretation endorsed by the government does not enhance the goal of reconciliation and is inconsistent with the honor and integrity of the Crown," the justice wrote.

The government chose to propose modifications to the recommended plan in February 2011. Of the five modifications proposed, two simply stated a preference for more balance and increased options for access. This level of detail was insufficient for consultation and lacked any tangible or practical guidance for the planning commission.

To comply with the final agreements and respect the planning process, it was incumbent on the Government of Yukon at this stage to set out details about which Land Management Units it wanted zoned for increased access along with rationales and suggestions about mechanisms to accomplish this. These details should have been provided to the First Nations and the affected communities at the consultation stage and their responses considered before the proposed modifications were submitted to the planning commission."

"The modifications the government made to the final recommended plan at the final stage of the process in s. 11.6.3.2 did not flow from the valid proposed modifications communicated earlier and did not respect the land-use planning process set out in Chapter 11 of the final agreements," Veale wrote.

The appropriate remedy is to return the matter to the point in the process where the error occurred. This was at the stage of consultation with respect to the final recommended plan. In the result, the January 2014 government-approved Peel Watershed Regional Land Use Plan is quashed, he added.

As a result, the Yukon government is now required to hold final consultations with the affected First Nations and affected communities under provisions of the final agreements, based on the modifications it proposed in sufficient detail at the earlier stage in the process.

"Any modifications to the final recommended plan shall be limited to these proposed modifications, including the government's 16-page detailed response attached to the modifications, but not the stated preference for more balance and increased options for access," the justice concluded.

Reaction to ruling

Berger, who argued the case on behalf of the plaintiffs, called the ruling "a remarkable judgment."

He said the land-use planning process in the Umbrella Final Agreements signed by Canada, Yukon First Nations and the Yukon Government in 1993, and entrenched in the constitution has been "vindicated."

"The collaborative process for long-term land use planning provided for in the UFA is unique in that it does not allow the Yukon Government to exercise complete authority over land-use planning. Instead, it enables First Nations and Yukoners to play an important part in land-use planning," he added.

Reacting to the court's decision, Chief Ed Champion of the First Nation of Nacho Nyak Dun said, "We are very happy to see the courts honor and uphold the integrity of the Umbrella Final Agreement and Yukon First Nation agreements. We want to thank Justice Veale for all of his hard work and the thought and time he put into this decision."

CPAWS Yukon Executive Director Gill Cracknell said, "This is not just a victory for the plaintiffs, but for everyone who has given generously of their time, money, and voices to see the Peel Watershed protected."

Christina Macdonald, executive director of the Yukon Conservation Society, said, "This is not just a victory for the Peel, but for land-use planning across the Territory."

Chief Roberta Joseph of the Tr'ondëk Hwëch'in added, "The Peel River Watershed is as sacred to our people as it was to our ancestors, and through this decision today we have ensured it will remain so for our grandchildren."

Yukon officials said the government will carefully review the court's decision before determining how to move forward and will assess implications of the judgment on land-use planning and the economic future in Yukon. As we examine the court's opinion and the reasons given by the judge, we will continue to work with First Nations, consulting and engaging on many ongoing files, projects and activities.

The court's ruling did little to alleviate concerns members of Yukon's mining industry have expressed about the restrictions imposed by territorial government's land-use plan for the Peel region.

Samson Hartland, executive director of the Yukon Chamber of Mines, told reporters recently that planning should be done through talking and not courtroom showdowns.

Hartland also said the litigation has engendered significant uncertainty in Yukon miners about Yukon's land-use planning process.

Dawson regional land use

The Yukon high court's decision also is expected to have a major impact on land-use planning across the territory. Though the ruling deals specifically with the Peel Watershed in northeast Yukon, observers says the case will have direct implications for land use in other regions, and could have indirect impact on consultative requirements under modern treaties for other governmental land and resource use decision making in Canada.

The Yukon government, the Tr'ondëk Hwëch'in and Vuntut Gwitchin governments, meanwhile, have suspended the Dawson Regional Land Use planning process, pending the outcome of the Peel case.

The same section of the Umbrella Final Agreement governs both the Dawson and Peel planning processes.

Yukon Environment Minister Currie Dixon said work on the Dawson plan will be archived until further notice.

"The commission members' terms will still be in effect, and they'll just be in abeyance," Dixon said. "Their work will be on the shelf and be ready to go once we receive clarity and can move forward."