Last week, the Yukon Court of
Appeal heard arguments about the future of the massive Peel River
watershed, and about the meaning and application of modern
aboriginal treaties. Will this land be mostly protected from
development, as the Planning
Commission decided after extensive aboriginal consultation? Or
will it mostly be used for resource extraction, as the Yukon
government wants? So soon after the report of the Truth
and Reconciliation Commission, will First Nations interests
again be sacrificed for the economic gain of others?
The PWPR is contains no communities, but is within the
Traditional Territories of, and extensively utilized by, four
Nations: The Na-cho Nyak Dun, the Tetlit Gwich'in, the Vuntut
Gwitchin and the
Tr'ondëk Hwëch'in. These people, along with
the now gone Tukudh Gwich'in, have lived and travelled in the
region for millennia; some of the earliest evidence of humanity in
Canada is within Vuntut Gwitchin territory. For the Tetlit
Gwich'in, the Peel is the centre of their world; the name
Tetlit Gwich'in means "people who live at the head of the
The Peel watershed also contains substantial mineral resources,
including the huge Crest iron ore
deposit explored half a century ago.(Estimated regional
geological resource 18 billion tonnes.) The multi billion
dollar Crest Deposit belongs to Chevron,
which wants to build roads, railways and pipelines to develop
it. If Chevron pays for this infrastructure, many other
resource deposits in the area will also become economic to
First Nations here say no to development
The First Nations and Planning
Commission cannot stop Chevron from developing its
mine, but they would not permit Chevron to develop any surface
infrastructure, such as roads, to get there. As a result, more
than 54,000 square kilometres of wilderness would be
protected from mining and other industrial development.
Who gets to decide?
The key issue is who gets to decide what should be done with
this huge watershed. Under the 1990 Umbrella
Final Agreement, incorporated in all the First Nations Final
Agreements in Yukon, what did the First Nations get in exchange for
giving up their land claims? Did they get a voice, a vote or
a veto on resource development in their traditional lands?
Can the Yukon government simply reject what the
First Nations have to say about the exploitation of their
The Yukon Government claims that, as the government of the
entire territory, it has the right to make land use planning and
resource extraction decisions, regardless of the opinions of the
handful of people who claim traditional territories there. The
First Nations have been consulted, the government just doesn't
agree with their conclusion. Yukon wants and needs the roads and
other infrastructure that Chevron would build, and the tax revenue
they would pay. And how could the government ever afford to
compensate Chevron for preventing the development of its mine?
First Nations argue that allowing Chevron to exploit their land,
against their will, makes a mockery, again, of everything that
was promised to them when the treaties were negotiated.
Last year, the Supreme Court of the Yukon ruled that the
Yukon Government violated the land use planning process laid out in
the Umbrella Final Agreement when it decided to open most of the
Peel Watershed to resource extraction, notwithstanding the Planning
Commission recommendations to the contrary. The Yukon
The facta are powerful and well worth reading. You can read
the Yukon government's Appeal factum here. The passionate response from Thomas
Berger on behalf of the First Nation of Nacho Nyak Dun,
Tr'ondëk Hwëch'in, Vuntut Gwitchin First Nation,
CPAWS Yukon and YCS is here.
A summary of the Yukon Supreme Court Judge's decision
here. And the full text of the Yukon Supreme
Court Judge's decision is here.
Now we wait for the decision, and ultimately for the ruling of
the Supreme Court of Canada. And if you want to paddle the
Peel River, go now.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).