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Who's the Boss in the Peel Watershed?

The fate of a wilderness area the size of Ireland will be decided in a Yukon courtroom.
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Hart River, which flows into the Peel River. (protectpeel/Flickr)

Hart River, which flows into the Peel River. (protectpeel/Flickr)

Editor’s Note: This is the first in a two-part series on the Peel Watershed. The second column will follow the Yukon Court of Appeal's decision on the case.

Unless you're a past visitor to the Yukon, a serious canoeist, or an avid follower of Canadian land claims and treaty litigation, chances are you've never heard of the Peel Watershed. So let's get you up to speed: The Peel Watershed (or the Peel, as it's also known) is a vast wilderness area in the northeastern corner of the Yukon—it covers more than 26,000 square miles, roughly equivalent in size to the Republic of Ireland, or, more precisely, to Massachusetts, New Jersey, Connecticut, and Rhode Island combined. There are no permanent human settlements in the Peel, and it's interrupted by just one major road, the Dempster Highway, a two-lane gravel thread that runs north across the Arctic Circle and into the neighboring Northwest Territories. There are few wilderness areas of its scale left on the planet.

The Peel River is fed by several tributaries: the Ogilvie, Blackstone, Hart, Wind, Bonnet Plume, and Snake rivers. Together, those six rivers—which run roughly parallel to each other before converging on the Peel proper, like the spokes of an umbrella—and the main river itself, plus the land around them, make up the Peel Watershed.

The Yukon government has been working on a land use plan to govern potential development in the region for more than a decade. And that's where things get complicated.

Land use planning in the Yukon is governed by a document called the Umbrella Final Agreement, or UFA, which was jointly signed by the federal government, the territorial government, and most of the Yukon's self-governing First Nations in 1993. It's what is known in Canada as a "modern treaty," a complex legal document that's distinct from the old-time agreements, often brief and wildly lopsided, that were signed in the early colonial days. Covering everything from forestry and fishing rights to mining and roads, the UFA lays out a detailed process for land use planning in the territory (that's section 11.6, "Approval Process for Land Use Plans"). The question of how the Peel Watershed will be accessed and used has been working its way through that process since 2004. In the meantime, the land sits unused.

Critics suggested the 2014 plan was so changed that it stretched the definition of a "modification" to the point of absurdity.

With me so far? OK. In 2011, after multiple rounds of consultation with governments and residents, the Peel Watershed Planning Commission—the appointed planning body that was assembled in 2004, according to the UFA's specifications—issued its Final Recommended Plan for the region. At that point, it was up to the Yukon government to approve, reject, or modify the commission's proposal. In January 2014, the government issued a plan that was markedly different from the commission's, particularly in the ways it dealt with the vital, fraught question of development vs. conservation. (For instance, the 2011 plan had recommended a ban on the staking of mining claims in 80 percent of the Peel Watershed; the 2014 plan banned staking outright in 29 percent of the region.) The government's position was that it had a clear right to modify the Final Recommended Plan. Critics suggested the 2014 plan was so changed that it stretched the definition of a "modification" to the point of absurdity.

In response to the unveiling of the 2014 plan, a group of First Nations governments and local conservation groups immediately filed suit against the Yukon government, and last summer, the Yukon Supreme Court played host to the Peel Watershed land use trial. It lasted four days, and I was there throughout—if you really want to wonk out, you can read my longer feature about the courtroom blow-by-blow in Up Here magazine. The plaintiffs, led by Thomas Berger, argued that the government had violated the Umbrella Final Agreement and taken the land use planning process laid out therein "off the rails." On the other side, the government insisted it was within its rights to make changes as the final arbiter of the plan.

Spoiler alert: The government lost, and next week, on August 20 and 21, the Yukon Court of Appeal will review the decision.

The plaintiffs had asked the judge, if he found that the government had violated the terms of the UFA, to quash the 2014 plan and to approve the 2011 plan as final. The judge did the first part, but rather than installing the 2011 plan in law (which may well have been beyond his jurisdiction), he sent the government back to an earlier stage in the process—with restrictions on how much they can modify things this time around.

Unfortunately, I won't be home to cover the appeal. But several local journalists will be tweeting and filing from the scene: Check out Ashley Joannou of the Yukon News, Rhiannon Russell at the Whitehorse Star, or Cheryl Kawaja from CBC North. I'll be back in two weeks with an update on how it all went, and where things go from here.

Stay tuned: the fate of the Peel Watershed is still a long way from being settled.

Dispatches From a Changing Arctic is a biweekly series of reported stories from Alaska and the three Canadian northern territories.