The Fight to Protect This Swath of Wilderness Is Going to Canada’s Supreme Court

The Peel Watershed, in the Yukon, is one of the largest intact pieces of wilderness left in North America. The Supreme Court will decide its fate.

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Mar 22 2017, 12:00pm

On Wednesday, Canada's Supreme Court hears a case that will decide the fate of one of the most pristine pieces of wilderness left in North America—the Peel Watershed, an area roughly the size of Scotland in northern Yukon.

The hearing, which follows a five-year legal battle, could determine how much of the region will be open to development—including coal and mineral extraction—and define how governments work with Indigenous communities on land use planning in the future. It pits the Yukon territorial government against three First Nations and two environmental non-profits.

The Peel Watershed networks together at least six major rivers and several lakes, draining 14 per cent of the Yukon. (March 22, the day of the hearing, is coincidentally World Water Day.)

"What's most precious to us is the water," said Elaine Alexie, 37, a member of the Tetlit Gwich'in First Nations north of the Peel. "If anything should happen to that water, it will directly affect us."

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In the Peel Watershed region, mountain ranges cradle turquoise waters.

Many species of fish (such as whitefish and trout) live in its rivers and lakes. It's home to caribou, wolves, grizzly bears, and wolverines. Nobody lives there permanently, though surrounding First Nations communities—including the Na-cho Nyak Dun, Vuntut Gwitchin and Tr'ondëk Hwëch'in, who are all plaintiffs in the lawsuit, alongside the Yukon chapter of the Canadian Parks and Wilderness Society (CPAWS) and the Yukon Conservation Society—travel throughout and use the land as they've done for generations.

Fireweed blooms in a wetland on the Wind River. Image: Peter Mather

Alexie, who grew up in Fort McPherson in the Northwest Territories, told me about spending an entire winter in the Peel Watershed when she was 12. Her family had to fly in with a small plane, she said, then spent the season living off the land.

"I spent half my childhood in the Peel," she said. "I see it as a place that I have a connection to as a Tetlit Gwich'in woman. Once a year I go up the Peel, because it's such a part of who we are." Tetlit Gwich'in means "People of the Headwaters," she said.

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Development of the Peel Watershed has been hotly debated for more than a decade. As set out by land claim agreements, the Yukon territorial government has to consult all affected First Nations groups before any development plan goes forward.

In 2004, an independent planning commission was established to see how much of the region could be opened up to development. It was the commission's responsibility to consult with various groups and put forward a land use plan—a compromise.

"There was a seven-year planning process in which [the commission] interviewed people from across the Yukon," Chris Rider, executive director of CPAWS Yukon, told me. "They got a range of different perspectives and feedback."

The commission released its final plan in July 2011, recommending that 80 percent of the Peel Watershed be protected, and that 20 percent be opened to development. But in 2014, the Yukon government published a separate plan, basically flipping the ratio by setting out to protect just 29 percent and leave the rest open to development.

This launched a lengthy court battle that, after passing through lower courts, has now reached the highest court in the land.


Winter in the Peel Watershed region. Image: Peter Mather

The Supreme Court hearing "will provide all Yukoners with certainty to enable us to move forward with the Peel land use planning process," Sunny Patch, the communications director at the Yukon premier's office, said in an emailed statement to Motherboard. "At the end of the day, we want to adopt a plan for the Peel Watershed that both Government of Yukon and First Nations can embrace."

Before the Supreme Court, the other side will insist that if the government can essentially ignore seven years' worth of work and make its own plan, then what's the use of consultations? And if the government is found to have breached the modern treaty, what are the consequences?

"We are seeking to vindicate the land-use planning process and to uphold the recommendations of the independent commission," Thomas Berger, the lawyer representing the First Nations and conservation groups, explained. If the Yukon can ignore recommendations in favour of its own goals, he continued, "nobody can have confidence in the process in the future."

"The ruling of the Supreme Court will affect land use planning for decades to come," Berger said.

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The Peel is one of the most biodiverse areas in North America. David Mossop, a biologist at Yukon College in Whitehorse who contributed to the planning commission, said the 80-20 split would protect a lot of the critical habitats that are necessary for wildlife.

"The original plan and my contribution to it was to focus on those areas that have to be left exclusively to the creatures that use the land," he said.

Perhaps the most important consideration for development is how water quality would be affected. The dozen First Nations members and environmental experts I spoke to told me that any pollution in the Peel would be likely to spread, given how interconnected the lakes and rivers are.

Read More:  'The Land Is an Equalizer': Indigenous Peoples Take Greater Role in Shaping Canada's National Parks

"There's a need to protect places like the Peel Watershed," said Kris Statnyk, a citizen of the Vuntut Gwitchin First Nation and intergovernmental coordinator for the Vuntut Gwitchin Government located in Old Crow, Yukon, on the banks of the Porcupine River. He has family members in Aklavik in the Northwest Territories, he said, who fish in the Peel channel that goes through their backyards.

"There are places within our territory where you can dip your cup in the river and drink straight from it," he told me. "It's difficult to hear others ... come in and try to dictate how these areas should be managed or developed, when they're not able to do that in their home rivers."

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Correction: An earlier version of this article incorrectly stated that Statnyk was raised in the Vuntut Gwitchin First Nation. Motherboard regrets the error.