First Nations launch Peel lawsuit

First Nations and environmental groups have sued the Yukon government over its new plan for the Peel watershed.

First Nations and environmental groups have sued the Yukon government over its new plan for the Peel watershed.

The details of the legal action were announced at a press conference in Vancouver Monday morning, and the statement of claim was filed in Yukon Supreme Court on Monday afternoon.

Thomas Berger, a pioneering lawyer in the area of Canadian aboriginal rights, will lead the case.

“It’s a lawsuit that nobody wanted to bring,” said Berger at the press conference, “but the Yukon government has forced these plaintiffs to go to court not only in defence of First Nations and environmental values in Yukon, but also to uphold principles entrenched in the Constitution.”

The First Nation of Nacho Nyak Dun, the Tr’ondek Hwech’in, the Yukon Conservation Society and the Yukon chapter of the Canadian Parks and Wilderness Society are parties to the suit.

The Yukon government last week implemented a land use plan for the Peel watershed that opens 71 per cent of the area to new staking.

The plan recommended by the Peel planning commission called for 80 percent of the area to be protected from new staking and roads.

“Does that seven years of work and consultation with First Nations and Yukoners mean anything at all?” Berger asked in an interview. “Or was it an interesting exercise that the government of Yukon, at the eleventh hour, can say, ‘No, no, we’re not going to do this?’”

That, he said, is the central question of the lawsuit.

The process for developing land use plans is outlined in the Umbrella Final Agreement signed in 1993 by Yukon First Nations.

This case will be a profound test of whether or not the Yukon government is required to live up to its agreements, said Berger.

The plaintiffs argue in their statement of claim that the Yukon government’s new plan amounts to a rejection of the final recommended plan, and does not follow from the process outlined in the treaty.

Premier Darrell Pasloski was not available for an interview this week, but the Yukon government will likely file a statement of defence in the next few weeks.

In it they will likely argue, as they have in the past on this question, that they have followed the word of the agreements with First Nations, and that their plan is merely a modification of that proposed by the planning commission.

But the Yukon government has been recently warned by Canada’s top court that following agreements in a literal way won’t cut it.

“The treaty will not accomplish its purpose if it is interpreted by territorial officials in an ungenerous manner or as if it were an everyday commercial contract,” wrote Supreme Court Justice Ian Binnie in his 2010 decision regarding a land dispute between Yukon and the Little Salmon/Carmacks First Nation. “The treaty is as much about building relationships as it is about the settlement of ancient grievances. The future is more important than the past. A canoeist who hopes to make progress faces forwards, not backwards.”

There are fundamental differences between the plan announced by the Yukon government last week and that advanced by the planning commission.

The government’s plan focuses on active management. Rather than all-out prohibitions on activities, the government insists that development in sensitive areas can be controlled and that landscapes will be returned to a natural state after industrial work is completed.

The planning commission discovered early on that this approach would please no one.

“It would have involved additional expenses and new ways of operating for industry,” wrote the planning commission in the foreward to its final recommended plan. “It would also have required acceptance and reduced expectations from First Nations, wilderness tourism, the environmental community, and from much of the public. They would have to be patient as impacted sites and roadbeds recovered over time through state-of-the-art restoration.

“No one wanted this. Not industry, not the First Nations, not wilderness businesses, not environmentalists, and apparently, not the Yukon public.”

Indeed, the Yukon government’s plan appears to have few supporters. First Nations and environmental groups say it opens the whole region to development, while industry groups worry that strict environmental conditions will make many projects unprofitable.

It’s up to the courts to decide if the plan is even legal.

The plaintiffs have asked for the court to rule that the planning commission’s recommended plan is binding to the Yukon government.

They will not be asking for a staking ban while the case is before the courts, said Berger.

It will be up to the mining companies to decide if it is worth investing in the area.

“They’ll have to look over their shoulder and decide what’s in their own interest,” said Berger. “But they have lawyers who can advise them, I’m not going to advise them.”

Ed Champion, the chief of the Nacho Nyak Dun warned that his First Nation will not look favourably on any resource company that seeks to explore the area while the future of the land use plan is uncertain.

Noon-hour protests in support of final recommended plan and the legal action were planned for Wednesday in Yukon and N.W.T. communities including Whitehorse, Mayo, Dawson, Haines Junction, Aklavik, Fort McPherson and Inuvik.

A petition on www.avaaz.org calling for the government to protect the Peel had collected 5,000 signatures in just three days as of Wednesday morning.

The issue has received international attention, including coverage in National Geographic.

Contact Jacqueline Ronson at

jronson@yukon-news.com

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Yukonomist Keith Halliday
YUKONOMIST: Another election, another anomaly

Monday’s “double-tie” election is generating some free publicity for the Yukon as Outside news agencies scramble to find someone to interview.

A cyclist rides along the Millenium Trail in downtown Whitehorse on a frigid Feb. 9. Whitehorse city council has passed the first two readings of an e-bike bylaw that would designate how e-bike riders can use city trails. (Haley Ritchie/Yukon News)
First two readings passed on Whitehorse e-bike bylaw

Delegate calls on city to consider age restrictions and further regulations

Whitehorse City Hall at its Steele Street entrance. (Stephanie Waddell/Yukon News)
Change of plans approved for city hall

Project would see 1966 city hall demolished

A city map shows the property at 107 Range Road. The zoning is now in place for developers to proceed with plans for a Dairy Queen drive-thru. If plans proceed on schedule the new restaurant is anticipated to open in October. (Cyrstal Schick/Yukon News)
October opening eyed for Dairy Queen

Will depend on everything going according to plan

NDP candidate Annie Blake, left, and Liberal incumbent Pauline Frost. (Submitted photos)
Official recount confirms tie vote in Vuntut Gwitchin riding

Both candidates Pauline Frost and Annie Blake are still standing with 78 votes each

Crystal Schick/Yukon News Whitehorse International Airport in Whitehorse on May 6, 2020.
NAV CANADA suspends review for Whitehorse airport traffic control

NAV CANADA announced on April 15 that it is no longer considering… Continue reading

A bulldozer levels piles of garbage at the Whitehorse landfill in January 2012. (Ian Stewart/Yukon News file)
Rural dump closures and tipping fees raise concern from small communities

The government has said the measures are a cost-cutting necessity

lwtters
Today’s Mailbox: Rent freezes and the youth vote

Dear Editor, I read the article regarding the recommendations by the Yukon… Continue reading

Whitehorse City Hall (Yukon News file)
City news, briefly

A look at city council matters for the week of April 12

Joel Krahn/joelkran.com Hikers traverse the Chilkoot Trail in September 2015. Alaska side.
The Canadian side of the Chilkoot Trail will open for summer

The Canadian side of the Chilkoot Trail will open for summer Parks… Continue reading

Letters to the editor.
Today’s mailbox: Hands of Hope, the quilt of poppies

Toilets are important Ed. note: Hands of Hope is a Whitehorse-based non-profit… Continue reading

École Whitehorse Elementary Grade 7 students Yumi Traynor and Oscar Wolosewich participated in the Civix Student Vote in Whitehorse on April 12. (Haley Ritchie/Yukon News)
Yukon Student Vote chooses Yukon Party government; NDP take popular vote

The initiative is organized by national non-profit CIVIX

Yvonne Clarke is the newly elected Yukon Party MLA for Porter Creek Centre. (Submitted/Yukon Party)
Yvonne Clarke elected as first Filipina MLA in the Yukon Legislative Assembly

Clarke beat incumbent Liberal Paolo Gallina in Porter Creek Centre

Most Read