David Loeks
The “Peel trial” is underway this week. After years of public controversy, this is coming to a head.
These hearings are not about the contents of the planning commission’s final recommended plan. That matter has been heard and judged in the court of professional review and public opinion. That verdict is in: the Yukon public and four of the five Parties (that is, the four First Nation sponsors) overwhelmingly accept the plan as reflecting the public interest. The Yukon Government is the exception, and their ersatz alternative plan was rejected in this same court.
So what is the Peel trial about? From a layman’s understanding (I am no lawyer) on the surface it addresses points of process in the Yukon land claims Umbrella Final Agreement. These are technical details and perhaps not very exciting, but on them, many important matters hang.
Two First Nation governments, along with two environmental organizations, have taken the Yukon government to court. They claim the territory failed to follow the legally required land-use planning process set out in the UFA and that the Yukon government’s alternative “plan” is invalid.
Setting aside the Peel plan for a moment, the First Nations have to draw a line on the government’s challenge to the UFA. If the territory can play loose with its details and with its guiding philosophy, the UFA is a shaky document.
At issue: the First Nations believe the UFA intends that public lands and resources to be managed by the territory and the First Nations cooperatively. The Yukon government claims the UFA intends that the territory manages public lands and the First Nations manage their lands independently. This lawsuit will clarify which interpretation of the UFA will hold. At stake is the edifice of self-government that we in the Yukon have been painstakingly erecting for the past generation.
Back to the Peel trial, if the plaintiffs are correct, the commission’s plan - not the Yukon government’s alternative - will be the binding outcome of the planning process. The UFA makes plain that land use planning in the Yukon must be a product of the UFA planning process. This is equally true for Yukon government and for First Nations land. So an important question is whether the Yukon government’s “plan” for the land it manages is a modification of the commission’s work or not. Can it be considered a product of the UFA planning process? Or is it is such a departure that it is a “wildcat” plan written outside of the bounds of the UFA? If it is, it is invalid.
The Yukon government’s lawyers will assert that the territory has been following the UFA process correctly and that they are entitled to modify the commission’s plan as they see fit. Technical details aside, beneath the government position is a philosophical challenge to the UFA as a template for co-management with First Nations.
Not being tested in the courts (but in the court of public opinion) is a conviction held by cabinet that politicians have an unfettered right to make far reaching decisions over public resources. Even if most people strongly disagree. Even if their decisions are short-sighted and harmful.
In other words, cabinet - a group of people elected for just four years - claim the right to mar assets that should be a legacy for future generations. Over a seven-year process, the Yukon people clearly said that they valued the wilderness character of the Peel watershed and that they saw no reason to change it at this time.
Cabinet wants to ignore and override the public’s wishes: “vote us out if you don’t like it,” they say. But here is the rub: politicians’ accountability is measured in just a few years. The consequences of their short-term decisions can persist on the Peel landscape for centuries.
The Peel trial would not be necessary had the Yukon government shown a decent respect for binding agreements. Had it participated squarely in the process, the government would have learned that Yukoners can identify the public interest through good land use planning.
A key objective set out by the parties for the Peel watershed plan is to sustain the ecological integrity of the region. To do this we need humility, ethical stewardship, and cautious decision-making. The Yukon people don’t need swagger from their government, they need it to be a cooperative partner.
That is what is at stake in the Peel trial.
David Loeks was the chairman
of the Peel Watershed
Planning Commission.