EDITORIAL: The courts haven’t seen the last of the Peel

A judge is likely going to have to decide if those with claims deserve cash

Fifteen years of consulting and combatting over the Peel watershed has led to much ink being spilled on this editorial page.

Premier Sandy Silver, the Yukon government, First Nations and environmental groups are all rightly celebrating the deal that was signed last week that protects about 83 per cent of an area larger than Nova Scotia from development.

For a government that has had very few flashy success stories under its leadership, Silver’s Liberals can be proud that they were able to clean up some of the mess left behind by the previous Yukon Party government’s refusal to recognize its obligations to First Nations under the Umbrella Final Agreement.

The First Nations involved in the fight should be proud of the legacy created by the Peel case now that their rights have been confirmed all the way to the top court in the country.

But don’t get too comfortable. The Peel will likely end up in front of a judge at least one more time.

Representatives of Yukon mining organizations have already said aloud what anyone watching the situation unfold could have predicted years ago – those with unusable claims in the Peel are going to want compensation and that could mean another lawsuit.

Yukon Chamber of Mines executive director Samson Hartland has argued that even though 17 per cent of the Peel is open to development, 100 per cent of the region is inaccessible and uneconomic due to the access limitations and requirements contained in the plan.

He called it “de facto expropriation.”

But the situation is more complicated than the mining groups want Yukoners to believe. Which is why having a judge decide whether Peel claims have any inherent value is likely in everyone’s best interest particularly with more Yukon land use plans left to write.

Mining and Yukon’s free entry staking system are not constitutional-protected rights but the land use planning process laid out in the Umbrella Final Agreement with First Nations is. The top court in Canada confirmed that.

If the Liberals try to please miners by handing out money for claims in the Peel what precedent does that set for future land use planning? If the potential cost of paying out a staked claim starts being factored in when the Yukon government negotiates, does that illegally influence the land use planning process?

That’s a decision for a judge to make.

Former Yukon Party premier Darrell Pasloski used to like to insist that implementing the recommended Peel plan – the way the Liberals have done – would bankrupt the territory. He picked up that line from previous Yukon Party leaders who have been spouting fears of financial ruin for at least the last decade.

Yukon Party talking heads always conveniently leave out that it’s their fault the territory found itself in this legal quagmire to start with. If the Yukon Party had negotiated in good faith with First Nations from day one the matter likely wouldn’t have ended in the Supreme Court of Canada.

Instead they tried to re-write the Peel plan completely and ignore their obligations to First Nations.

Land use planning for the Peel started in 2004 but the Yukon Party government waited six years – until 2010 – before introducing a staking ban in the area. In those six years the number of claims in the watershed reportedly grew from around 1,500 to the current 8,400.

Don’t be fooled into thinking there was suddenly a gold rush-style interest in mining. It’s more likely people were rushing in the hopes of an easy government handout once the Peel plan was settled. Odds are they didn’t expect to have to wait 15 years.

It might be possible to make a case that miners with claims that pre-date land use planning could get compensation.

Again, it’s best that’s left up to a judge.

People who staked after the planning started were knowingly taking a risk that they might not end up with access to their claims. Their risk did not pay off and that’s not the government’s problem.

Miners who actually started working on land in the Peel could also argue in favour of compensation but those with untouched claims have a much harder hill to climb.

In order to argue “expropriated” land deserves cash, claim holders have to prove that the land has value.

Mining is inherently risky. Simply staking a claim does not guarantee that the land will hold minerals or be financially viable.

That’s the risk anyone takes when they stake anywhere in the territory and the Peel is no different.

Those with long enough memories will recall the Windy Craggy saga in British Columbia nearly 25 years ago.

Windy Craggy was well on its way to becoming a copper mine in 1993 when the British Columbia government announced plans to envelope the land with the Tatshenshini-Alsek Park thereby ending any mining.

At that point the mining company, Geddes Resources, had already passed an early environmental assessment phase and had exploration expenditures for Windy Craggy that neared $50 million, according to a University of British Columbia research paper.

The mining company was eventually paid $29 million in government cash for its troubles and another $138 million went towards a separate mining project though most of that larger pot of money reportedly was for publicly owned infrastructure like roads.

The Peel is no Windy Craggy. It remains mostly untouched. Those with claims likely have little documented proof of spending money and therefore little proof that they should be paid out.

Silver says the Yukon government isn’t contemplating compensating claim holders at the moment. Fine, take a week or two to party, but it’s time to come up with a position now.

Government lawyers will likely be arguing about the Peel at least one more time before we can really claim this fight is over.

(AJ)

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