Hardly anyone visits the Peel watershed, thanks to the region’s remoteness. This makes the battle being fought over its fate largely symbolic for both sides. First Nations and conservationists like the idea of the region remaining wild, even if few will visit, while miners like the idea of digging up shiny metals there, even if they lack a realistic scheme to later get that metal to market.
This clash of values would be difficult to reconcile at the best of times. It’s probably impossible when one party is determined to undermine the negotiating process itself. That’s what the Yukon government has done.
Things would be far different today if territorial government leaders had shot straight during the public consultation process. If they had simply said aloud what everyone knew all along - they wanted to allow mining in most of the watershed - and provided details of how to make this happen to the planning commission, we wouldn’t be in the ugly situation that we find ourselves today. A lengthy court battle now seems inevitable.
Resources Minister Brad Cathers claims to be confident that the Yukon Party has followed the Umbrella Final Agreement. Perhaps the government followed the letter of the law, but they’ve clearly violated the agreement’s spirit with their last-minute rewrite of the land-use plan.
Such hard-driving tactics may be appropriate if you’re a Bay Street tax lawyer. They likely won’t fly if you’re required by law to engage in meaningful consultations with First Nations, as the territory is.
Don’t take our word for it. Listen to Thomas Berger, the esteemed lawyer who led the Mackenzie Valley Pipeline Inquiry in the 1970s.
“The government isn’t entitled to say, ‘Well, all that consultation was interesting, but it really means nothing, and we’re still allowed to do whatever we want to do,” Berger says in a video recently released by First Nations and conservationists.
The territory had plenty of opportunities to put forward its own proposals during the six-year planning process. It didn’t. Instead, the Yukon government waited for the planning commission’s work to wrap up before releasing its own, radically different schemes.
Berger, who helped establish the field of aboriginal law in Canada, is crying foul. He says the territory is confined to introducing changes it had indicated earlier. “That’s the way the Umbrella Final Agreement is set up,” he said. “That makes public consultation meaningful.”
If Berger is correct, the territory needs to more-or-less accept the recommended plan, which would protect most of the watershed. It’s inconceivable that the Yukon government would do this. They’d rather fight a long-running and ultimately doomed court battle than concede defeat.
It didn’t need to be this way. But the Yukon government apparently decided at the onset of the planning process to play silly games, rather than participate in good faith.
Recall how the government let miners engage in a staking free-for-all in the region under review, then complained that protecting the area is impossible without upsetting miners. It also suppressed pro-conservation documents prepared by its own Department of Environment, depriving planners of valuable information.
Now the territorial government seems eager to muddy the debate as much as possible. Consider Cathers’s assertion that the territory owns 97 per cent of the Peel region, so it’s ultimately entitled to do as it wishes on that land.
This is partly true. The territory does hold clear title of the land, but only because of the Umbrella Final Agreement and the land-claim deals that followed it. In these treaties, First Nations gave up their undefined rights to the land in exchange for things like collaborative regional planning.
The territory now appears to be reneging on its side of the bargain. Cathers should remember that you mess around with Constitutionally-backstopped agreements with aboriginals at your own peril.
Another half-truth offered by the Yukon Party is that it took a clear position during the territorial election against the planning commission’s final plan. In fact, Premier Darrell Pasloski spent the first half of the election campaign insisting it would be “irresponsible” to take a position on the Peel. Then he went ahead and took a firm one, warning that to accept the final recommended plan would trigger a landslide of lawsuits by angry miners. In other words, the Yukon Party flat-out contradicted itself during the election on the Peel. But it never clearly stated what it would do.
Now the government continues to do the public a disservice by shrouding its stance on the Peel with euphemisms. In Yukon Party lingo, “balance” means more mining, while “modifying” the plan means starting from scratch.
Similarly, a slight-of-hand is being performed with the government’s colour-coding scheme of its plans for the Peel. It turns the watershed almost entirely green, which looks impressive, until you realize that all the hues allow industrial development in various forms, along with access roads and bridges.
That’s quite different from what planners proposed, which was to protect four-fifths of the watershed from access roads. Their reasoning held that remote wilderness loses its distinct character once access roads run through it.
The government contends you can have it both ways, with the untrammeled character of the region somehow preserved alongside mining. But it hasn’t provided much in the way of specifics to support this claim.
Fuzzy words like “active management” are bandied about, and vague commitments are made to protect “key areas containing significant ecological, wilderness and cultural values.”
But these words are empty without specifics of what will be protected. The only big restriction specified is a ban on building any mines that would be visible from the region’s three major rivers.
At an earlier date, this could have been something to work with. But not now. The glib approach taken by the Yukon government has poisoned the process. The First Nations will wait for the final steps of the process to wrap up, then sue.
As the case slowly wends its way to the Supreme Court of Canada, expect this controversy to become a festering sore that lingers throughout the Yukon Party’s term in office.