Peel watershed: Yukon court strikes down government land use plan

In a historic ruling this morning, Yukon Supreme Court Justice Ron Veale found that the Yukon government’s modifications to the Peel land use plan did not respect the land use planning process set out in the territory’s final agreements with First Nations.

In a written judgment, he says the remedy is for the Yukon government to return to consultations on the final recommended land use plan.

The decision also scolds the Yukon government for pursuing a “flawed process” for two years, instead of revealing more detail about its proposed modifications in February 2011.

“I think it’s a total victory,” says Jeff Langlois, who represented the Northwest Territories’ Gwich'in Tribal Council, an intervener in the case. “It’s what Tom Berger was seeking entirely.”

Langlois says the ruling essentially orders the Yukon government to return to the final plan as recommended by the planning commission, and make modifications from there.

“I still don't understand in this case whether Yukon still has the ability to reject that final recommended plan but if they do not, and that was certainly an argument Tom Berger made, then I believe the land use plan for the Peel is going to closely resemble the final recommended plan."

In a statement, Thomas Berger called the judgment "remarkable."

"The Umbrella Final Agreement provides for a unique, community-based, collaborative land use planning process," he said.

"The vindication of this process is a great victory for the First Nations, the environmental organizations, and all Yukoners. In the end, one of the world’s last great wilderness areas will be protected."

The Yukon government issued a statement saying it "will carefully review today’s decision before determining how to move forward and will assess implications of the judgment on land use planning and the economic future in Yukon."

In 2011, the Peel Watershed Planning Commission released its final land use plan for the 67,000 square kilometres of wilderness in northern Yukon. The plan, created over five years at a cost of $1.6 million, called for up to 80 per cent of the watershed to be withdrawn from any industrial development, including mineral staking.​

Following the 2011 territorial election, the Yukon Party government rejected the commission’s land use plan and developed its own plan, which it released in 2012 and approved in January 2014. It provides protection from development of less than 30 per cent of the land.

The First Nation of Na-Cho Nyak Dun, and the Tr'ondek Hwech'in, along with the Yukon Conservation Society and the Yukon chapter of the Canadian Parks and Wilderness Society, filed a lawsuit disputing that plan in Yukon Supreme Court last February.

Veale heard the case over four days in July. In October, he heard from both sides on possible ways to resolve the dispute and reserved his decision.

"I'm just so thrilled," said Christina Macdonald, executive director of the Yukon Conservation Society, who said the ruling gives her group exactly what they asked for.

"We asked that the government quash the government's approved plan, return the process to the point where government went off the rails, which is at final consultations, and constrain the government in the modification that they can make."

Macdonald says the government could still appeal the ruling, but for now they're celebrating.

"This is a pretty historic moment."

Outside the courthouse, some people celebrated this morning, including Kate White, the NDP MLA for Takhini-Kopper King.

"This is massive for the Yukon," White said. "It's massive for First Nations' rights."

Richard Nerysoo, a former Gwich'in Tribal Council president and once the government leader of the N.W.T., was also celebratory.

"Clearly the government has an obligation to live up to spirit and intent" of the umbrella final agreement and treaties with First Nations, he said.

Dawson Regional Land Use planning on hold

Today’s decision will have a major impact on land planning in Yukon.

Yesterday, the Yukon government, the Tr’ondëk Hwëch’in and Vuntut Gwitchin government announced they suspended the Dawson Regional Land Use planning process pending the outcome of the Peel case.

The same section of the Umbrella Final Agreement governs both the Dawson and Peel planning processes.

Environment minister Currie Dixon says the Commission's work will be archived.

"The commission members terms will still be in effect and they'll just be in abeyance,” Dixon says. “Their work will be on the shelf and be ready to go once we receive clarity and can move forward."

A Dawson planning commission meeting scheduled for this week has been postponed.