Whitehorse Daily Star

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Photo by Whitehorse Star

MAKING A POINT IN NUMBERS – The lengthy battle over the Peel watershed has been one of the highest-profile public issues the territory has seen in a generation. Above: supporters of the watershed’s preservation hold a vigil on the steps of the Yukon Law Courts on July 7, 2014. An estimated 150 people attended, including renowned lawyer Thomas Berger, who argued the case on behalf of First Nations and environmental groups.

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Thomas Berger and Christina Macdonald

Parties consider options after court ruling

Whether the coalition of First Nations and environmental organizations will appeal Wednesday’s decision on the Peel land use plan has not been decided.

By Chuck Tobin on November 5, 2015

Whether the coalition of First Nations and environmental organizations will appeal Wednesday’s decision on the Peel land use plan has not been decided.

Christina Macdonald of the Yukon Conservation Society said the ruling is still being reviewed by the society, the First Nation of Na-cho Nyak Dun, the Tr’ondek Hwech’in and the Canadian Parks and Wilderness Society.

“This process and how it is resolved will have enormous implications, of course for the Peel planning process, but also for all land use planning to follow,” Macdonald said. “So we are taking our time.”

The two First Nations and two environmental organizations joined forces to challenge the Yukon government’s decision to reject the land use plan recommended by the Peel planning commission and implement its own plan instead.

They won round one in the Yukon Supreme Court, but Wednesday’s decision by the three justices of the Yukon Court of Appeal was a mixed bag, the various parties acknowledge.

The high court agreed with the Justice Ron Veale’s finding that the Yukon government did not act honourably in its participation during the planning process for the Peel River watershed.

But it overturned Veale’s ruling that said because of the dishonourable conduct, the government must throw out its own land use plan and adopt the plan recommended by the commission.

Instead, the Court of Appeal ordered the parties back to planning table at the point where the government derailed the process.

Forcing the government to accept the commission’s recommended land use plan does not serve the public interest, the appeal court ruled.

Nor does it result in a land use plan negotiated fully under the provision of the territory’s aboriginal land claim settlements, the court ruled.

There is concern, however, that going that far back to in the planning process opens the door for the Yukon government to bring back and legitimize its own land use plan, the four-party coalition indicated in its press release following Wednesday’s decision.

Renowned lawyer Thomas Berger, who represented the four parties, described the Court of Appeal decision as possibly opening up the back door for the government to get its own way.

The Yukon government said yesterday it is satisfied with the decision. It had asked the Court of Appeal to set aside Veale’s finding of dishonourable conduct and his order that the government accept the planning commission’s recommedation.

The executive director of the conservation society said it’s important to understand the Court of Appeal – first and foremost – found that the government did undermine the planning process with its conduct.

Should the government resurrect plans to bring back its own land use plan, it had better be prepared to face the music, Macdonald suggested.

She said the government would have to explain in succinct detail – to a very awakened Yukon public – why the planning commission’s recommendation was not in the territory’s best interest.

“The public support for this really has been tremendous,” Macdonald said of the decision to challenge the government’s decision to implement its own plan.

“We certainly did not want to go down this path, but we did not have a choice.

“The public support has allowed us to pursue this.”

Premier Darrell Pasloski was unavailable this morning to discuss where the government goes from here, whether it will try to restart the planning process before next year’s territorial election, or pass on the task to the next government.

There’s also no indication yet of what the government plans to do now with the moratorium on staking minerals claims inside the Peel watershed, which will expire Dec. 31.

Macdonald said the question of how to go about renewing the planning process with the original six members of the commission was raised briefly yesterday, but not in detail.

The commission, she said, has been legally disbanded, and it was noted that one of the six members has passed away.

Gill Cracknell of the Canadian Parks and Wilderness Society expressed disappointment with the Court of Appeal decision in yesterday’s press release from the coalition.

“The public also deserves better than an order allowing the government a redo at enormous expense of time and money to Yukoners,” Cracknell said.

“The appeal court’s ruling supports our constitutional rights under the UFA, but does little to ensure the Yukon government respectfully listens to what we have to say,” Chief Simon Mervyn of the First Nation of Na-cho Nyäk Dun said in the press release.

“Our trust has been seriously breached, and we had hoped the court would rule more decisively in our favour.”

Neither the coalition nor the Yukon government have willingly provided an estimate of how much they’re spending on the court case, though available but obscure documents indicate they’re each spending several hundred thousand dollars.

From the first day the Peel planning commission tabled its first three options for a land use plan six years ago, there’s been division.

The First Nations have been calling for 100 per cent wilderness protection over the Peel watershed which has been described as one of the last pristine landscapes in the world. Part way through the process, the First Nations indicated they would be willing to accept 80 per cent wilderness protection, as a sign of good faith.

The Yukon government, on the other hand, has always said the land use plan must provide a balance between economic development opportunities and wilderness protection.

The planning commission recommended 80 per cent wilderness protection, with no road nor rail access through most of the watershed.

The government’s plan called for varying degrees of wilderness protection over 30 per cent of the watershed, while providing for roads and rails throughout the region.

Comments (10)

Up 5 Down 0

Klondiker on Nov 11, 2015 at 6:59 pm

If the Peel can't be used by everybody then it should be protected from everybody. That means, no float planes, no helicopters, no boats, no skidoos, no atv's. You walk in, or go by horse. This applies to Native and non native. It is not a bank for a few Eco tourism people to take celebrities into. This is our Yukon, and if you say protect it then protect it from everybody period...

Up 4 Down 1

ProScience Greenie on Nov 10, 2015 at 2:31 pm

Well I don't know much but I do know a few things with boots on the ground in the southern and western parts of the watershed over the years. Studied most of the economic and academic geology reports on the area and read most of the documentation for land use planning. Know the difference between a mine permitted back in the old days like Faro/Whitehorse Copper and modern mines like Minto. Used to love the old pro-wrestlers back in the day - good mindless entertainment.

Profit takers? Take it easy there comrade, many of us believe you don't have to sit left of Karl Marx to push for a cleaner planet.

Up 3 Down 2

Our water is protected by regulations on Nov 10, 2015 at 12:59 pm

We have some of the best regulations in the world for protecting our water.

Up 5 Down 5

It takes more than a self adorned moniker. on Nov 9, 2015 at 10:19 pm

Have you ever been to the area in question and if not, your nothing more than someone like the old pro wrestlers making self aggrandizing claims on your own behalf. If not, then how do you know what it takes to get there? If you have been there, then what's up there in the way of mineable minerals? Where's the science? Someone wants to sell a bunch of shares based on mainly speculation go to the area, make a big toxic mess and then ask the public dime to clean the place up with the profit takers long gone after the first share offering. Time and time again this is the case with a bunch of bad paper left behind in characteristic fashion. Crater lake a toxic wasteland left behind by Whitehorse Copper is a prime example of what remains for future generations.

Up 13 Down 0

Groucho d'North on Nov 9, 2015 at 6:26 pm

I am encouraged by the change in public chatter following the recent court decision on the Peel Land Plan. As all the hype and promotion has been fired and tempers have calmed a bit, there is evidence that some are becoming better educated on the process and the ultimate outcomes all this barking is about.
It’s a competition to exploit the natural resources of the Peel region. On one hand there is the resource extraction industries who dig it up, and sell it. It employs lots of people at all stages of the process and also supports a large supply and service sector which serves all of the Yukon marketplace and makes available many things available only in larger markets.
On the other hand is the visitation industry, who can be from anyplace and have unfettered access to our unique wilderness resources. This is also an elite industry due to the logistical costs and effort required to put paying tourists on the river of their choice, equipped and catered to. For Yukoners it will be like the age old complaint of Kluane National Park being out of reach except for the young and fit, or those who can afford the high cost of aircraft.
Which option is the best for the Yukon- all of the Yukon? Of course there will be the arguments of damage each industry will create in the pursuit of their particular form of exploitation. But what is the cost to benefit ratio of each option?
Should there be fees and permits required to operate a visitor service in Yukon’s remote areas? Should this be open to all comers or should Yukon operators be exclusive operators? What regulations should be in place to protect the wilderness for visitor-influenced impacts and to also protect the visitors?
There is still plenty to talk about, and now that it appears there will be a bit of breathing room, let’s slow down and engage more of the public this time around rather than another of the orchestrated public relations games the first undertaking became. I also hope the coming public discussion is civil, honest and sincere and not pregnant with predetermined agendas and all the other mass media BS that grows in these forums.

Up 12 Down 2

ProScience Greenie on Nov 7, 2015 at 11:02 am

It takes a few barrels of oil to get to the Wind River for a nice canoe trip. A few more barrels to get back home again. It also takes a few toxic hard rock mines, oil and gas wells, smelters, refineries, manufacturing plants and infrastructure networks for transportation and communication.

Easily affordable by Bill Gates, Leonardo DiCaprio and other wealthy people around the world but unless a ‘local’ has a very good paying job it is not something that is affordable unless you’re willing to spend a few weeks to portage into those headwaters on foot.

The Peel Watershed needs special protection (read park) and we certainly need to reduce our global carbon footprint. It’s just a shame that so many wanting that to happen do so with the same levels of scientific illiteracy, disconnection from reality and willingness to use fear, misinformation and exaggeration as those that sit in the AGW Denial camp. Like two warring religious factions truth, reality and workable solutions get thrown out the door.

It’s almost embarrassing that some on the right side of this debate, the side that wants a healthier planet, do not take the time and effort to learn about basic science and technology, the existing regulatory systems and most importantly - their own footprint on this planet. There is no excuse for ignorance, hypocrisy, the use of fear, lies, exaggerations, misinformation or taking things to near religious fanatical levels. It’s not helping.

Up 14 Down 18

Dee on Nov 6, 2015 at 12:00 pm

The rest of the world is finally realizing the impacts of climate change. When is the Yukon Government going to realize this water needs to be protected for future generations? Look up the United Nations presentations from last years gather and other articles such as this. http://calgaryherald.com/business/energy/analysis-the-oil-industry-has-been-put-on-notice

Up 13 Down 17

Heart & soul on Nov 5, 2015 at 9:37 pm

Several hundred thousand dollars is peanuts when you consider what is at stake here. Once mining has finished with a site there's not much left to reclaim but toxic ground including the water. Think about all the mines that eventually burn out and see what's left behind. The list of toxic sites is endless and you only get untouched wilderness once.
Possibly a legal sponsor could be obtained from the very wealthy like Bill Gates or Leonardo DeCaprio for examples. There must be lots of other potential candidates with too much money that want to do something meaningful for good ol' Mother earth. I mean what is up there anyways but a bunch of obsolete coal beds that are better left where they are. Let's make it so that locals can go on a canoe trip on the wind river. Why not?

Up 38 Down 8

Curious Yukoner on Nov 5, 2015 at 4:48 pm

I think this issue needs a rest......some very entrenched positions and polarization are not what we need to find an outcome that will be acceptable to all parties. Put a moratorium on staking and claims for 5 years and table this matter for 3 years, at which point perhaps different players and attitudes will be more successful in finding a resolution.
In the meantime pass a bill that taxes the living "s#$t" out of any use by the eco tourism industry who are touring the rich Americans and Europeans through this pristine wilderness. I'm not saying take away their livelyhood - just place a significant tax on the activity (that they pass on to their clients) so there is at least some economic return to Yukon... because let's face it not many Yukoners will load up the family and go canoeing on the Wind River for the weekend!... most of us can't afford it, and that will only get worse as the economy slips due to the pressures being brought on by the greenies and the lefties........

Up 37 Down 3

ProScience Greenie on Nov 5, 2015 at 4:00 pm

100% wilderness protection over the Peel would mean no industrial activity, no hunting and fishing and eco-tourism activity only allowed under the strictest rules and with maximized fees from clients to help pay for protection. Which kind of sounds like a park.

Seeing how no party, including the Canadian Parks and Wilderness association wants a park in the Peel, lets hope the land use planning can now continue only this time free of conflicting lobbyists, ideology and the feeding of so many tax dollars to law firms.

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