The besieged Peel Watershed has been given a reprieve of sorts, with a three-judge panel’s ruling that the Yukon government breached indigenous treaty rights when it altered an agreed-upon land-use plan and stripped protections from the ecologically sensitive region to favor mining.
First Nations and others involved in the legal dispute had some reservations about the ruling, fearing it could leave the process open to further tinkering by the Yukon government. At the same time, the decision boosted treaty rights by affirming that the territory could not just change the plan at will.
"Yukon had asserted that they had the final say over the [land use] plan; they asserted that nothing in this process that they agreed to can limit them when it comes to imposing a land use plan," Jeff Langlois, counsel for the Gwich'in Tribal Council, told CBC News. "The court has rejected that argument soundly."
The Peel Watershed Land Use Plan was worked out over more than 10 years between First Nations, the Yukon government and environmental groups with the idea of protecting a pristine habitat and salmon breeding ground. It proposed protecting 80 percent of the region, while the Yukon’s plan would protect less than 30 percent.
The suit had been brought by the Nacho Nyak Dun and Tr’ondëk Hwëch’in First Nations, Canadian Parks and Wilderness Society Yukon Chapter (CPAWS Yukon), and the Yukon Conservation Society (YCS) against the Yukon government. A judge ruled in their favor in December 2014, and the territory had appealed. Now the appeal has been upheld.
The government had wanted the appeals court to overturn the Supreme Court’s ruling so Yukon could have full control over fashioning a land-use plan, CBC News said, while the First Nations and environmental groups wanted the original, agreed-upon plan to stand. The appeals court landed between the two.
In their decision, released on November 4, Chief Justice Robert Bauman, Justice Smith and Justice Goepel of the Yukon Court of Appeal found that the Yukon government “derailed the dialogue essential to reconciliation” as it was laid out in an agreement that had been finalized years earlier.
To solve the issue, the court sent the planning process back to the point at which the territorial government’s breach of the agreement began, which the judges determined happened in February 2011. This, however, is before the plan between the parties was fully hammered out, which means some of the meticulous work will have to be redone.
“We are pleased this judgment confirms what First Nations have been saying all along—our final agreements matter and must be respected,” said Tr’ondëk Hwëch’in Chief Roberta Joseph. “However, it is disappointing that the Yukon Government’s failure to appreciate their responsibilities under our UFA means more money and time will be spent on a planning process that should have been completed years ago and that we still lack clarity for the Peel.”
The Yukon government said it was opening to continue working on the issue.
“The government’s initial assessment is that we are satisfied with the court’s direction to go back to an earlier stage in the planning process,” Yukon said in a statement. “We remain open to discussing resolutions with First Nations outside of the courts.”