Historic Win in Yukon First Nations’ Fight to Protect the Peel Watershed

It took more than 15 years, but the Peel Watershed finally has plan in place to protect this vast tract of pristine wilderness.

It was an intense process that involved consultations, protests and court battles, culminating in a ground-breaking decision by the Supreme Court of Canada that was cheered by both Yukon First Nations and environmental groups.

The unanimous decision by Canada’s highest court marked the end of a three-year legal battle between a coalition of First Nations and environmental groups and the Yukon government. At stake: the future of the Peel River Watershed, an untouched wilderness rich in biodiversity – but also coal, iron, gas and other non-renewable resources.

Contents:

• What is the Peel River Watershed?

• A Wild Place Under Threat

• Why Should We Protect the Peel Watershed?

• Land Use Planning and the Umbrella Final Agreement

• Brief Timeline of the Land Use Planning to Protect the Peel Watershed

• How it Began: Establishing the Peel Watershed Planning Commission

• The Final Recommended Plan

• Taking the Yukon Government to Court

• The Supreme Court of Canada Weighs In

• The Final Consultations

• Victory: An Agreement is Reached

After 15 years, an agreement was finally reached to the protect the Peel Watershed.

What is the Peel River Watershed?

Covering over 68,000 square kilometres of wilderness – an area larger than Yellowstone National Park in the United States, and approximately the size of Ireland – Yukon's Peel Watershed is one of the largest – and one of the only – unspoiled natural areas left in North America.

There, pure rivers wind through a land of rugged mountains, boreal forests and tundra, and grizzlies, wolves, moose, caribou and lynx still run free. Migratory birds thrive in the local wetlands (no less than six rivers flow into the Peel River: the Bonnet Plume, Snake, Wind, Hart, Blackstone and Ogilvie rivers), and there are unique plant species endemic to the area.

In fact, the Peel River watershed is the northern anchor of the Yellowstone to Yukon Conservation Initiative, a 3200 km (2000 mi) wildlife corridor that protects habitat for species threatened by climate change. In a way, the Peel is itself a threatened species: nearly the last of its kind, an entire landscape untouched, still sacred.

The Yellowstone to Yukon wildlife corridor map. Photo: Yellowstone to Yukon Conservation Initiative

The Peel is also the traditional territory of four First Nations – the Na-Cho Nyk Dän, Tr’ondëk Hwëch’in and Vuntut Gwitchin in Yukon, and the Teetl'it Gwich’in in the neighbouring Northwest Territories. For thousands of years,

[t]hese indigenous groups have hunted, fished, travelled and lived through all corners of the Peel Watershed, reflected in age-old stories and deep knowledge of the land; and still today, sustainable use of the watershed is the backbone of remote northern communities such as Old Crow and Fort McPherson. - “Protect the Peel”, 2017

(“It feels like a sacred land.” Check out this video to marvel at the beauty of the Peel River, and understand its cultural significance.)

A Wild Place Under Threat

The Peel Watershed also contains mineral deposits that some hope to exploit by mining and drilling.

The area has long been coveted by industry for its extractive potential. There are believed to be deposits of lead, zinc, copper, iron, nickel and uranium, as well as coal, oil and gas – a veritable bonanza of extractive opportunities.

The Peel Watershed in the Yukon also contains valuable mineral deposits that some would like to exploit. Photo by: Kalen Emsley (Unsplash)

Until recently, the Peel was considered too remote to exploit. With no roads and rough terrain, it would simply have been too expensive to develop. That started to change as market prices went up: between 2004 and 2008, there was a 400% increase in resource claims.

The Yukon government’s plan was to build roads, bridges and railroads to facilitate resource extraction, carving up the intact Peel landscape. These resource development activities would cause irreversible damage to such a pristine wilderness area, and would devastate the First Nations’ traditional way of life and their cultural identity.

This threat is what ultimately spurred Northwest Territories and Yukon First Nations, Yukoners and environmental groups to fight for the protection of the Peel.

Why Should We Protect the Peel Watershed?

It might seem trite to say but, at the end of the day, what the Peel offers us – in terms of its environmental and cultural value – is irreplaceable. We don’t have many wild places left in the world, and once we dig into this one, the impact will be irreversible. That reason alone warrants at least a cautious approach to development in the area.

Thousands of tired, nerve-shaken, over-civilized people are beginning to find out going to the mountains is going home; that wilderness is a necessity. – John Muir

In the face of climate change and the unrelenting pace of industrialization, we also owe it to future generations to hang on to such rare natural areas. After all, the Peel is a source of fresh air and clean water – and those resources are priceless.

For the First Nations in the Peel Watershed, protecting it is also about protecting their way of life and their cultural heritage. Photo (Carcross, Yukon) by: Pat Josse (Pixabay)

For the First Nations who call the Peel Watershed home, the untouched landscape is the definition of sacred. For them, the need to protect it is even more profound:

The lands and waters of the Peel Watershed have unparalleled cultural and ecological significance for our people. The value of this area to our people far transcends any monetary value to be gained from resource extraction. We are protecting the Peel for future generations, not only for our grandchildren but for your grandchildren also. – Chief Eddie Taylor of the Tr’ondëk Hwëch’in First Nation. Tr’ondëk Hwëch’in means “the people who lived at the mouth of the Klondike,” or, alternatively “River People”.

Moreover, a decision to protect the Peel would demonstrate that Canada and Yukon are serious about reconciliation, helping to fulfill Canada’s commitment to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which it adopted in 2010.

Some Background on Protecting the Peel: Land Use Planning and the Umbrella Final Agreement

In Yukon, the relationship between First Nations and the government is governed by modern treaties referred to as “Final Agreements”. In May, 1993, the Governments of Canada and the Yukon and the Council of Yukon First Nations signed the Umbrella Final Agreement (UFA), a framework developed for negotiating individual Final Agreements with each First Nation.

Chapter 11 of the UFA – which was incorporated without alteration into each of the 11 individual Final Agreements so far signed – establishes a process for developing land use plans within settlement and non-settlement lands. This process includes the meaningful participation of First Nations in the management of these lands, including public resources.

As the Nacho Nyak Dun and Vuntut Gwitchin Final Agreements were signed in 1993, and that of the Tr’ondëk Hwëch’in in 1998, these First Nations have a right to participate in the land use planning and management of the Peel Watershed.

In 2004, the affected First Nations and the Yukon government began the process of developing a land-use plan, following the protocols set out in Chapter 11 of the UFA. Towards the end of the planning process – after a decade of negotiations – the First Nations accused Yukon of breaking the terms of the UFA, and the fight to protect the Peel began.

The Peel River watershed is a vast pristine wilderness area, one of the last of its kind. Photo by: Kalen Emsley (Unsplash)

Brief Timeline of the Land Use Planning to Protect the Peel Watershed

2004: Start of the land-use planning process overseen by the Peel Watershed Planning

Commission.

2009: The Commission released a Draft Land Use Plan allocating 50% of the watershed to

development; stakeholders and the public were unhappy with this plan, demanding

stronger protections for the Peel, and the Commission went back to the drawing board.

2011: The Commission released their Final Recommended Plan which recommended that

80% of the Peel be protected and mostly closed to industrial development.

2014: Completely ignoring the Final Recommended Plan, the Yukon government approved their own plan in which 71% of the Peel would be opened up to development.

2014: Amidst public outcry, environmental groups and a coalition of First Nations take the

Yukon government to court.

2015: The Yukon government appeals, and the case is taken to the Yukon Court of Appeal.

2017: The case reaches the Supreme Court of Canada (SCC). In December, the SCC ruled that the Yukon could not make such drastic modifications to the Final Recommended Plan without consultation, and ordered the parties to go back to an earlier stage in the process.

2018: The final round of consultations occurs.

2019: The parties sign a final land use planning agreement which designates 83% of the region as Conservation Areas with a mix of permanent and interim protection, and 17% as Integrated Management Areas, open to development.

How it Began: Establishing the Peel Watershed Planning Commission

Beginning in 2004, Yukon and the three Yukon First Nations began the land use planning process by establishing the Peel Watershed Planning Commission. The Commission was tasked with developing a Regional Land Use Plan for the Yukon portion of the Peel Watershed.

Throughout the planning process, the Commission held extensive consultations with stakeholders, experts and the general public. It published various reports documenting these consultations and the development of its recommended plan.

Northern lights seen near Whitehorse, Yukon. Photo by: Leonard Laub (Unsplash)

The Final Recommended Plan

After releasing a number of draft plans, the Commission eventually released their Final Recommended Plan in 2011. This final plan designated 80% of the Peel Watershed as Conservation Areas – 55% with permanent protection, and 25% with interim protection.

Provision 11.6.3.2 of the UFA and individual Final Agreements provides Government an opportunity to “approve, reject or modify” the Final Recommended Plan, “after consultation with any affected Yukon First Nation and any affected Yukon community”.

Over the next three years, Yukon signalled its intention to modify the Recommended Plan, each time under the objections of the First Nations who claimed that their modifications did not comply with the land use planning processing established under the UFA.

Nevertheless, in January 2014, Yukon approved its own land use plan for the non-settlement areas in the Peel watershed, one which turned the Commission’s Recommended Plan on its head: now, instead of 80% protected areas, the Yukon plan would open up 71% of the Peel Watershed to mining and other extractive industries.

After a decade of consultations, the Yukon government ignored the planning commission's Final Recommended Plan and approved their own plan which opened up 71% of the Peel to development. Photo: “Protect the Peel”

Taking the Yukon Government to Court

This new plan felt like a betrayal. Yukoners responded with unprecedented zeal: demonstrations, rallies and fundraisers were held across the territory, protesting this reversal and pushing for protection of the Peel. It became a top election issue.

And the First Nations – alongside the Yukon Conservation Society and the Yukon division of the Canadian Parks and Wilderness Society (CPAWS) – decided to take the matter to court.

The Yukon Supreme Court ruled in December 2014 that the Yukon Government had violated the Land Use Planning Process, finding that Yukon can only make modifications based on those it proposed under the Recommended Plan, and that, if it had proposed modifications, it could not then reject the Plan in its entirety. [1] It sent the Parties back to the second consultation stage, indicating that Yukon could either approve the Final Recommended Plan, or modify it following its previously proposed modifications.

The Yukon Government appealed the ruling in 2015. The subsequent judgment by the Yukon Court of Appeal concurred with the lower court that Yukon was limited in the modifications it could make, but concluded that it had the authority to reject the Final Recommended Plan.

The First Nations had no other choice but to appeal to the Supreme Court of Canada. In December 2015, the First Nations of Na-Cho Nyak Dun, Tr’ondëk Hwëch’in, and Vuntut Gwitchin, along with the two environmental conservation organizations, applied for leave to appeal to the Supreme Court of Canada (SCC). The Peel Watershed case was heard in March 2017.

The Peel River watershed is home to many threatened species like the Grizzly bear. Photo by: brigachtal (Pixabay)

The Supreme Court of Canada Weighs In

The SCC considered the scope of Yukon’s authority to modify the Final Recommended Plan, and whether its approval of its own plan was in breach of the land-use planning process authorized under the UFA.

The Court found that it was.

In what was considered a decisive victory for the movement to protect the Peel, the SCC ruled on December 1, 2017 that Yukon was not authorized to make the changes it had and, therefore, its approval of its own plan was invalid.

What does it mean for Yukon to be able to “modify” the Final Recommended Plan?

A textual interpretation of s. 11.6.3.2 led the Court to find “that Yukon cannot modify a Final Recommended Plan so significantly as to effectively reject it.” [2] The term “modify” indicates a limited change that does not alter its fundamental nature.

Moreover, the Court found that Chapter 11 outlines a collaborative process for land use planning. As noted at paragraph 48 of their decision, “an unconstrained authority to modify the Final Recommended Plan would render this process meaningless, as Yukon would have free rein to rewrite the plan at the end.”

Can Yukon reject the Final Recommended Plan during the final stages of consultation?

On the question of whether or not the Yukon government has the authority – as the Court of Appeal found it did – to reject a land use plan at the final stage of the process, the Supreme Court seemed to suggest that it did have this authority, but that rejection of the Recommended Plan did not grant the government the authority to substitute its own. Instead, a rejection “brings the land use plan approval process to an end. The parties are left with no land use plan for the region, unless they initiate the process again.” [3]

What now? Final Outcome & Next Steps

The remedy provided was to return the Parties to that stage in the planning process (under s. 11.6.3.2 of the UFA) where Yukon could, following consultation, “approve, reject or modify” the Final Recommended Plan, a later stage in the process than that to which the Court of Appeal had directed them.

This was a victory for the First Nations of Na-Cho Nyak Dun, Tr’ondëk Hwëch’in, and Vuntut Gwitchin, and for all Yukon First Nations, as this ruling set a precedent for how the Yukon Government should work with First Nations.

Nevertheless, the fight to protect the Peel Watershed was not over. While the Supreme Court’s ruling required that the government go back to the consultation stage, it did not actually protect the Peel itself.

The Supreme Court of Canada's decision was a victory for conservation groups and First Nations fighting to protect the Peel.

The Final Consultations

The ruling meant that the Yukon government must meet with the First Nations for another round of consultations. By that time, a new government was in power.

Final Consultations were held between September and November, 2018. The Peel Watershed protection advocates were hopeful that, this time, the consultations would lead to the protection of at least 80% of the region.

In fact, there was an overwhelming response (some 2600 comments in the form of questionnaires and letters) from the public during this time, with nearly 65% of respondents advocating for greater than 80% protection of the Peel watershed; only just over 3% wanted to see more of the area opened up for development.

An Agreement is Reached

After years of fighting for the protection of the Peel, the Peel Watershed Regional Land Use Plan was finally approved and signed by the five governments on 22 August, 2019. Victory!

From now on, Conservation Areas will make up 83% of the Peel River Watershed. The Conservation Areas are regions where the primary goal is to preserve the area’s “wild” character, “protecting and conserving [their] ecological and heritage resources”. [4] Although existing mineral claims can be developed, no new mineral rights and surface access will be granted.

These Areas are further broken down into three categories:

• Special Management Area (55%) – these jointly managed areas have permanent protection, and include two proposed National Historic Sites, Tshuu tr’adaojìich’uu and Teetl’it njik.

• Wilderness Area (25%) – these areas enjoy interim protection, and their status will be reviewed periodically by the Parties to the agreement.

• Wilderness Area – Boreal Caribou (3%) – areas specially designated for the protection of boreal caribou. These areas require a management plan under the Species at Risk Act (SARA). Nevertheless, the agreement only provides interim protection to these areas, and their status will also be reviewed periodically.

The new Land Use Plan for the Peel Watershed provides a special conservation area for the threatened boreal caribou. Photo by: Victor ADAM (Pixabay)

The remaining 17% will be Integrated Management Areas – a “working” landscape “where a variety of land uses and new surface access can occur”. The area is further broken down into zones according to varying allowed levels of development and surface disturbance.

The final land use agreement provides a mix of permanent and interim protection to 83% of the Peel River Watershed area. Photo: "Protect the Peel"

Victory in the Fight to Protect the Peel Watershed

This final Regional Land Use Plan completes the journey to protect the Peel and defend the integrity of the land agreements between the Yukon and Canadian governments and First Nations. As Tr’ondëk Hwëch’in chief Roberta Joseph said in a statement, “I am so pleased the pristine nature of this landscape will exist for our citizens yet to come.”

Thanks to the Na-Cho Nyk Dän, the Tr’ondëk Hwëch’in, the Vuntut Gwitchin, the Teetl'it Gwich’in and all the supporters of the campaign, the Peel Watershed will for now remain, like the Yukon, “Larger than Life”.

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About the Author

Kimberley has a M.Sc in International Studies (Cooperation, Development, Economics) from the University of Montreal. She is passionate about the environment and Indigenous peoples' land rights.

Further Reading

For resources including the Peel Watershed Regional Land Use Plan, past news stories, press releases, and legal documents, visit this Dropbox Link.

Notes

[1] First Nation of Nacho Nyak Dun v. Yukon [2017] 2 SCR 576, para 28.

[2] Ibid, para 39.

[3] Ibid, para 49.

[4] Peel Watershed Regional Land Use Plan (August 2019), pg. 15.