THE FIRST NATION OF NACHO NYAK DUN, THE TR’ONDËK HWËCH’IN, YUKON CHAPTER-CANADIAN PARKS v. WILDERNESS SOCIETY, YUKON CONSERVATION SOCIETY, GILL CRACKNELL, KAREN BALTGAILIS, 2014 YKSC 69

SUPREME COURT OF YUKON Citation: The First Nation of Nacho Nyak Dun v. Yukon (Government of) , 2014 YKSC 69 Date: 20141202 S.C. No. 13-A0142 Registry: Whitehorse Between: THE FIRST NATION OF NACHO NYAK DUN, THE TR’ONDËK HWËCH’IN, YUKON CHAPTER-CANADIAN PARKS AND WILDERNESS SOCIETY, YUKON CONSERVATION SOCIETY, GILL CRACKNELL, KAREN BALTGAILIS Plaintiffs And GOVERNMENT OF YUKON Defendant And THE GWICH’IN TRIBAL COUNCIL Intervener Before Mr. Justice R.S. Veale Appearances: Thomas R. Berger, Q.C. Margaret D. Rosling C. Patricia S. Riley Counsel for the plaintiffs John L. Hunter, Q.C. Mark Radke Jeff Langlois Counsel for the defendant Counsel for the intervener

REASONS FOR JUDGMENT TABLE OF CONTENTS INTRODUCTION................................................................................................................ Para. 1 BACKGROUND............................................................................................................... Para. 13

A) The Umbrella Final Agreement............................................................. Para. 14

B) The Yukon First Nation Final Agreements......................................... Para. 17

C) The Land Use Planning Process......................................................... Para. 20

D) Regional Land Use Plans...................................................................... Para. 26

E) The Peel Watershed Regional Planning Commission..................... Para. 35

F) The

Chapter 11 Approval Process for Land Use Plans.................... Para. 51 The Recommended Plan (s. 11.6.1)..................................................... Para. 51 Consultation on the Recommended Plan (ss. 11.6.2, 11.6.4)......... Para. 64 Responses to the Recommended Plan (ss. 11.6.3, 11.6.5)............. Para. 70 Final Recommended Plan (ss. 11.6.3.1, 11.6.5.1)............................. Para. 76 Consultation on Final Recommended Plan (ss. 11.6.3.2, 11.6.5.2).............................................................................

Para. 80 FINDINGS OF FACT..................................................................................................... Para. 111 POSITIONS OF THE PARTIES................................................................................... Para. 112

INTERPRETATION OF LAND CLAIMS AGREEMENTS....................................... Para. 120 PRINCIPLES OF

INTERPRETATION FOR

CHAPTER 11 LAND USE PLANS....................................................................................................... Para. 138 FRAMEWORK FOR REVIEWING GOVERNMENT AND COMMISSION CONDUCT........................................................................................... Para. 167 ANALYSIS .................................................................................................................. Para. 182 REMEDIES .................................................................................................................. Para. 201 POSITIONS OF THE PARTIES ON REMEDIES..................................................... Para. 203

ANALYSIS ON REMEDIES......................................................................................... Para. 211 CONCLUSION...............................................................................................................

Para. 219 INTRODUCTION [ 1 ] The plaintiffs are two First Nations: the First Nation of Na-Cho Nyak Dun (“Na-Cho Nyak Dun”) and the Tr’ondëk Hwëch’in; two environmental organizations: Yukon Chapter-Canadian Parks & Wilderness Society (“CPAWS”) and Yukon Conservation Society (“YCS”); and two residents of Whitehorse, Yukon: Gill Cracknell and Karen Baltgailis, who are the Executive Directors of CPAWS and YCS, respectively.

The plaintiffs initially commenced this action against the Government of Yukon to obtain a declaration that the Final Recommended Plan of the Peel Watershed Planning Commission dated July 22, 2011 (the “Final Recommended Plan”) is the approved regional land use plan for the Peel Watershed, pursuant to ss. 11.6.0 and 11.7.0 of the Final Agreements of the plaintiff First Nations.

This position is supported by the intervener, the Gwich’in Tribal Council, which represents a Gwich’in First Nation based in the Northwest Territories but with Traditional Territory in the Peel Watershed. [ 2 ] The Government of Yukon pleads that the plaintiffs’ action should be dismissed with the result that the Government’s Peel Watershed Regional Land Use Plan of January 2014 (the “Government approved plan”) is the approved plan pursuant to s. 11.6.3.2 of the Final Agreements. [ 3 ] At the end of the hearing in July 2014 and at the subsequent remedies hearing on October 24, 2014, the plaintiffs abandoned the declaration they initially sought.

They now seek a declaration that the Government approved plan be quashed and that the final consultation pursuant to s. 11.6.3.2 be re-conducted with a specific court direction limiting the modifications of the Government of Yukon. [ 4 ] The Government of Yukon denies that the Government approved plan should be quashed.

But in the event it is, the Government of Yukon submits that the planning process be returned to the stage of proposed modifications with reasons pursuant to s. 11.6.3, requiring the Government of Yukon’s modifications to be resubmitted as proposed modifications to the Peel Watershed Planning Commission (the “Commission”). [ 5 ] The Peel Watershed consists of approximately 68,000 square kilometres, representing 14% of the Yukon.

It covers six major river systems: the Ogilvie, the Blackstone, the Hart, the Wind, the Bonnet Plume, and the Snake, all of which run into the Peel River, which drains into the MacKenzie River and ultimately the Beaufort Sea. (see attached Map A) [ 6 ] The First Nations of Na-Cho Nyak Dun, Tr’ondëk Hwëch’in, Vuntut Gwitchin and Tetlit Gwich’in all have Traditional Territory in the Peel Watershed.

The settlements of Keno, Mayo, Dawson City and Fort McPherson surround the watershed and are all outside its boundaries. [ 7 ] The renewable resources use consists of subsistence harvesting, trapping, big game outfitting and recreational tourism. [ 8 ] Although there are no mines within the Peel Watershed, there is considerable interest in mineral development. As of July 11, 2011, there were 8,428 active quartz claims. There are two mineral deposits of significant economic size: the Crest iron deposit and the Bonnet Plume coal deposit.

To a large extent the area is unexplored, but it is considered to have a large portion of the Yukon’s oil and gas potential. [ 9 ] The Commission was formed to develop a comprehensive land use plan for the Peel Watershed under a process contemplated by the Final Agreements of Yukon First Nations with Traditional Territory in the area.

The Commission observed that the Peel Watershed is unusual in Yukon, Canada and the world, as it is remote and relatively undeveloped in that it is largely devoid of roads and infrastructure. [ 10 ] As a result of Yukon First Nations land claims agreements, the Government of Yukon largely controls over 97.3% of the Peel Watershed and the First Nations 2.7%, subject to the Land Use Planning provisions in

Chapter 11 of the First Nation Final Agreements, which are at issue in this case. The precise wording to be considered is found in s. 11.6.0 of the Final Agreements (“Approval Process for Land Use Plans”), and the issue to be resolved is essentially whether the Government of Yukon is limited in its ability to modify the Final Recommended Plan as it was presented by the Commission at the end of the land use planning process. [ 11 ] To be clear, the role of the Court in this proceeding is not to determine whether more or less protection for the Peel Watershed is appropriate.

Rather, the Court’s job is to interpret whether the planning process envisioned in the Final Agreements has been followed and to determine the appropriate remedy if it has not. [ 12 ] I wish to make a comment regarding the procedure that counsel have chosen to bring this matter to a hearing. Historically, such matters would proceed on lengthy oral evidence and documents. More recently, that procedure has changed in that affidavit evidence is filed instead of oral evidence.

This case, and I commend counsel for it, proceeded on an agreed list of documents and correspondence which adequately provides the background and context to decide the issues raised. The documents were placed on a USB key and were

shown on a screen as they were referred to in court, which assisted both the Court and the public observing the proceeding. BACKGROUND [ 13 ] This background in sections A through D follows the plaintiffs’ brief as it gives a useful general overview. The details of the Commission proceedings are set out in sections E and F.

A) The Umbrella Final Agreement [ 14 ] On May 29, 1993, Canada, the Government of Yukon, and the Yukon First Nations as represented by the Chairperson of the Council for Yukon Indians signed the Umbrella Final Agreement (“UFA”). The UFA was duly ratified by all parties. The ratification of the UFA by the parties signified their mutual intention to negotiate Yukon First Nation Final Agreements and provided the framework for settlement of individual Yukon First Nation land claims and for self-government agreements.

It also provided a blueprint for future land use planning in the Yukon. [ 15 ] Whenever a Yukon First Nation signs a Final Agreement, the provisions of the UFA are incorporated into that Final Agreement. There are also additional provisions that are specific to each First Nation. [ 16 ]

Section 11.6.0 was incorporated without change into the Final Agreements of each of the First Nations of Na-Cho Nyak Dun, the Tr’ondëk Hwëch’in and the Vuntut Gwitchin.

B) The Yukon First Nation Final Agreements [ 17 ] The present case concerns three Final Agreements executed by Canada, the Government of Yukon, and the First Nations with Traditional Territory in the Peel Watershed, namely: the First Nation of Na-Cho Nyak Dun Final Agreement, the Tr’ondëk Hwëch’in Final Agreement and the Vuntut Gwitchin First Nation Final Agreement. The Yukon Transboundary Agreement executed by the Gwich’in Tribal Council is also implicated, as the Tetlit Gwich’in of the Northwest Territories have Traditional Territory in the Peel Watershed.

The Vuntut Gwitchin First Nation has not joined in this court action. [ 18 ] Pursuant to s. 6(1) of the Yukon First Nations Land Claims Settlement Act , S.C. 1994, c. 34, a Final Agreement or a transboundary agreement is a land claims agreement under s. 35 of the Constitution Act , 1982 . All rights assumed under land claims agreements are, by virtue of s. 35(3) of the Constitution Act, 1982 , “treaty rights” within the meaning of s. 35(1) . First Nations’ rights held under treaty have constitutional protection: see Binnie J. in Beckman v.

Little Salmon/Carmacks First Nation , 2010 SCC 53 , at para. 2 . [ 19 ] Additionally, no law enacted by the Government of Yukon is enforceable if it is inconsistent with a Final Agreement. Under s. 13(2) of the Yukon First Nations Land Claims Settlement Act , S.C. 1994, c. 35 :

(2) In the event of a conflict or inconsistency between a final agreement or transboundary agreement that is in effect and any federal or territorial law, including this Act, the agreement prevails to the extent of the conflict or inconsistency.

C) The Land Use Planning Process [ 20 ] The Final Agreements established new constitutional arrangements for Yukon, Canada and Yukon First Nations, including provisions for land use planning under

Chapter 11. The provisions incorporated from the UFA provide for land use planning commissions, that may be established jointly by the Government of Yukon and any affected Yukon First Nation, to develop land use plans for discrete regions of Yukon. [ 21 ]

Chapter 11 (“Land Use Planning”) of the Final Agreements sets out the objectives of land use planning, which include the following: 11.1.1.1 to encourage the development of a common Yukon land use planning process outside community boundaries; 11.1.1.2 to minimize actual or potential land use conflicts both within Settlement Land and Non-Settlement Land and between Settlement Land and Non-Settlement Land; … 11.1.1.6 to ensure that social, cultural, economic and environmental policies are applied to the management, protection and use of land, water and resources in an integrated and coordinated manner so as to ensure Sustainable Development.

[ 22 ] Under the heading Land Use Planning Process, s. 11.2.0 of the Final Agreements provides: 11.2.1 Any regional land use planning process in the Yukon shall: 11.2.1.1 Subject to 11.2.2, apply to both Settlement and Non-Settlement Land throughout the Yukon; 11.2.1.2 be linked to all other land and water planning and management processes established by Government and Yukon First Nations minimizing where practicable any overlap or redundancy between the land use planning process and those other processes; … [ 23 ]

Section 11.3.0 establishes a Yukon Land Use Planning Council, with Government and First Nation representation.

The Council: 11.3.3 … shall make recommendations to Government and each affected Yukon First Nation on the following: 11.3.3.1 land use planning, including policies, goals and priorities, in the Yukon; 11.3.3.2 the identification of planning regions and priorities for the preparation of regional land use plans; 11.3.3.3 the general terms of reference, including timeframes, for each Regional Land Use Planning Commission; 11.3.3.4 the boundary of each planning region; and 11.3.3.5 such other matters as Government and each affected Yukon First Nation may agree. [ 24 ] Regional Land Use Planning Commissions may be established to develop regional land use plans: 11.4.1 Government and any affected Yukon First Nation may agree to establish a Regional Land Use Planning Commission to develop a regional land use plan. … 11.4.4 Each Regional Land Use Planning Commission shall prepare and recommend to Government and the affected Yukon First Nation a regional land use plan within a timeframe established by Government and each affected Yukon First Nation. [ 25 ]

Section 11.4.5 provides that in developing a regional land use plan, a Regional Land Use Planning Commission: 11.4.5.1 [W]ithin its approved budget, may engage and contract technical or special experts for assistance and may establish a secretariat to assist it in carrying out its functions under this chapter; 11.4.5.2 may provide precise terms of reference and detailed instructions necessary for identifying regional land use planning issues, for conducting data collection, for performing analyses, for the production of maps and other materials, and for preparing the draft and final land use plan documents; 11.4.5.3 shall ensure adequate opportunity for public participation;

11.4.5.4 shall recommend measures to minimize actual and potential land use conflicts throughout the planning region; 11.4.5.5 shall use the knowledge and traditional experience of Yukon Indian People, and the knowledge and experience of other residents of the planning region; 11.4.5.6 shall take into account oral forms of communication and traditional land management practices of Yukon Indian People; 11.4.5.7 shall promote the well-being of Yukon Indian People, other residents of the planning region, the communities, and the Yukon as a whole, while having regard to the interests of other Canadians; 11.4.5.8 shall take into account that the management of land, water and resources, including Fish, Wildlife and their habitats, is to be integrated; 11.4.5.9 shall promote Sustainable Development; and 11.4.5.10 may monitor the implementation of the approved regional land use plan, in order to monitor compliance with the plan and to assess the need for amendment of the plan.

D) Regional Land Use Plans [ 26 ]

Chapter 11 of the Final Agreements also sets out the approval process for regional land use plans developed by planning commissions. [ 27 ] Specifically, s. 11.6.0 sets out the procedure for First Nation and Government approval of land use plans for Settlement and Non-Settlement Land. First Nations and the Government of Yukon must engage in intergovernmental consultation during the approval process, but the requirements differ in that the Government of Yukon is obliged to consult not only with affected Yukon First Nations but also any affected Yukon community about plans for Non-Settlement Land.

Yukon First Nations need only consult with the Government of Yukon when Settlement Land is at issue.

The dispute in the case at bar concerns the approval process for Non-Settlement Land contained within the Peel Watershed. [ 28 ] Sections 11.6.1 through 11.6.3.2 set out the following procedure for Government approval of a regional land use plan on Non- Settlement Land: 11.6.0 Approval Process for Land Use Plans 11.6.1 A Regional Land Use Planning Commission shall forward its recommended regional land use plan to Government and each affected Yukon First Nation. 11.6.2 Government, after Consultation with any affected Yukon First Nation and any affected Yukon community, shall approve, reject or propose modifications to that part of the recommended regional land use plan applying on Non-Settlement Land. 11.6.3 If Government rejects or proposes modifications to the recommended plan, it shall forward either the proposed modifications with written reasons, or written reasons for rejecting the recommended plan to the Regional Land Use Planning Commission, and thereupon: 11.6.3.1 The Regional Land Use Planning Commission shall reconsider the plan and make a final recommendation for a regional land use plan to Government, with written reasons; and 11.6.3.2 Government shall then approve, reject or modify that part of the plan recommended under 11.6.3.1 applying on Non- Settlement Land, after Consultation with any affected Yukon First Nation and any affected community.

Sections 11.6.4 through 11.6.5.2 have the mirroring provisions applicable to the First Nations. [ 29 ] If all of the requirements of the approval process are observed, and the land use plan is approved, s. 11.7.0 relating to implementation, applies: 11.7.0 Implementation 11.7.1 Subject to 12.17.0 Government shall exercise any discretion it has in granting an interest in, or authorizing the use of, land, water or other resources in conformity with the part of a land use plan approved by Government under 11.6.2 or 11.6.3. [ 30 ] The equivalent limitation on the discretion of First Nations, once a plan is approved, is found at s. 11.7.2. [ 31 ] “Consultation” is defined within the Final Agreements in

Chapter 1: “Consult” or “Consultation” means to provide: (

a) to the party to be consulted, notice of a matter to be decided in sufficient form and detail to allow that party to prepare its views on the matter; (

b) a reasonable period of time in which the party to be consulted may prepare its views on the matter, and an opportunity to present such views to the party obliged to consult; and (

c) full and fair consideration by the party obliged to consult of any views presented. [ 32 ] I will use a capital “C” in these Reasons when referring to Consultation as required by and defined in the Final Agreements. [ 33 ] Because the planning process is incorporated into the Final Agreements, the regional land use planning commissions and their plans have a constitutional dimension. Once a recommended plan is developed, there is a requirement for initial Government Consultation with First Nations and the affected communities.

The Government of Yukon must give written reasons for rejection of a commission’s recommended plan or, if the Government of Yukon proposes modifications, written reasons for the proposed modifications. The commission must then reconsider and provide its own written reasons along with the final recommended plan in response.

There then follows the final Consultation with First Nations and affected communities before the plan is rejected or implemented, either intact or with modifications. [ 34 ] After the approval process has been properly carried out, the plan governs land use in the region and places limits on the Government of Yukon and First Nations with respect to granting interests in or authorizing uses of the land.

However, in s. 12.17.0, the Final Agreements set out the relationship of Land Use Planning to the Development Assessment Legislation now called the Yukon Environmental and Socio-Economic Assessment Act , S.C. 2003, c. 7 (“ YESAA ”). Projects that do not conform with a regional land use plan may nevertheless proceed as follows: Regional land use plans 44.

(1) If a regional land use plan is in effect in a planning region established under a final agreement, a designated office, the executive committee or a panel of the Board shall, when conducting an assessment of a project proposed in the planning region, request the planning commission established under the final agreement to advise it as to whether the project is in conformity with the regional land use plan, unless such a request has already been made in relation to the project. Non-conformity with plan

(2) A designated office, the executive committee or a panel of the Board shall, if advised by the planning commission for a planning region, before or during its assessment of a project, that the project is not in conformity with the regional land use plan, consider the regional land use plan and invite the planning commission to make representations to it with respect to the project. Recommendation for project

(3) Where a designated office, the executive committee or a panel of the Board recommends that a project referred to in subsection (2) be allowed to proceed, it shall, to the extent possible, recommend terms and conditions that will bring the project into conformity with the

regional land use plan.

E) The Peel Watershed Regional Planning Commission [ 35 ] In 2004, the Commission was established under

Chapter 11 of the relevant Final Agreements to develop a regional land use plan for the Yukon portion of the Peel Watershed. [ 36 ] General Terms of Reference were finalized for the Commission on March 19, 2004.

They were developed through a process of consultation, and consensus was reached with the Yukon Land Use Planning Council, Yukon Government, Vuntut Gwitchin First Nation, Tr’ondëk Hwëch’in Han Nation, Na-Cho Nyak Dun First Nation and the Gwich’in Tribal Council. [ 37 ] The General Terms of Reference stated, among other things: It is recognized that the planning process can only succeed with the full participation of all the Agencies [defined as the First Nation and non-First Nation governments] based on a process involving consultation and consensus, and that there must be clear support for the plan by those involved in its development and affected by it. [ 38 ] The mandate of the Commission was limited to land use planning for the Yukon.

However, the Yukon First Nations Land Claims Settlement Act , the First Nation Final Agreements, and the Yukon Transboundary Agreement all make provision to protect the interests of the Tetlit Gwich’in who live in the Northwest Territories but have Traditional Territory in the Yukon. [ 39 ] In accordance with s. 11.4.0 of the Yukon First Nation Final Agreements and the Yukon Transboundary Agreement, the Commission consisted of six members, including one Na-Cho Nyak Dun nominee, one Gwich’in Tribal Council nominee, a joint Government of Yukon and Vuntut Gwitchin nominee, a joint Government of Yukon and Tr’ondëk Hwëch’in nominee and two Government of Yukon nominees.

The nominees are not delegates of the nominating body. [ 40 ] Appendix A to the General Terms of Reference created a Technical Working Group which was mandated to provide coordinated technical information and support to the Commission. The Technical Working Group included members from Government of Yukon, the First Nations, the Commission and the Yukon Land Use Planning Council. [ 41 ] Appendix B to the General Terms of Reference established a Senior Liaison Committee, with a senior representative from each of the three First Nations, the Gwich’in Tribal Council and the Government of Yukon.

The Senior Liaison Committee was formed to participate in the regional land use planning process for the Peel Watershed by providing input and advice to the Commission regarding relevant governmental issues, policies, programs and initiatives. [ 42 ] In the Fall of 2005, the Commission issued its Statement of Intent: The goal of the Peel Watershed Regional Land Use Plan is to ensure wilderness characteristics, wildlife and their habitats, cultural resources, and waters are maintained over time while managing resource use.

These uses include, but are not limited to, traditional use, trapping, recreation, outfitting, wilderness tourism, subsistence harvesting, and the exploration and development of non-renewable resources. Achieving this goal requires managing development at a pace and scale that maintains ecological integrity. The long-term objective is to return all lands to their natural state. (quoted from p. 1-4 of the Recommended Plan, footnotes omitted) [ 43 ] The Statement of Intent was accepted by the parties without reservation. (Foreword p.

IX, Final Recommended Plan) [ 44 ] Between May and November 2005, the Peel Watershed Planning Commission held public consultations to gather “interests and issues” in the planning process. On December 22, 2005, the Commission published an Issues and Interests Report which had input from the parties, in this case including five different branches of the Government of Yukon, various departments of the affected First Nations, and also from businesses, non-governmental organizations and lobby groups. [ 45 ] The Government of Yukon responded to the Interests and Issues Report on May 23, 2006.

The Deputy Minister of Energy, Mines and Resources largely concurred with the “overall direction of the planning process” but noted its expectation for a “highly balanced plan that deals with the diversity of needs and issues in the region”. The Deputy Minister confirmed the Government of Yukon’s support for sustainable development as the cornerstone of the regional planning model which, in their view, included the identification of areas suitable for resource development with required access corridor and management direction.

He also specifically stated: “From our perspective it is inappropriate for the Commission to single out or favour one value or economic sector over another.” [ 46 ] A report entitled Strategic Overview of Possible Mineral Development Scenarios – Phase 1 Peel River Watershed Planning Region, prepared for Economic Development, Government of Yukon, dated September 2006 concluded: As the Peel River planning region is remote, exploration has been limited and the geology and minerals are not well understood. The area is known to contain significant mineral resources, particularly for iron, copper, lead, zinc and gold.

For example, the Crest iron deposit is one of the largest in North America and the Bonnet Plume coal deposits contain 85% of Yukon’s known coal reserves. The planning region also contains areas with potential for further discoveries in the future.

There are four different kinds of mining operations that could be proposed in the area in the future: iron ore; coal; iron-oxide copper gold; and a lead-zinc mining operation. It is important to note that no mining will take place without several important conditions being met. These include: finding a suitable deposit; sufficient metal prices; appropriate technology for mining processing; infrastructure necessary to support the mining operation.

In addition, environment and regulatory requirements would also have to be met. [ 47 ] On April 1, 2008, the Commission arranged for a report entitled “Water Resources Assessment for the Peel Watershed”. [ 48 ] In September 2008, the Commission published a Resource Assessment Report.

As with the Issues and Interests Report, this 90- page report had contributions from Government of Yukon branches and agencies, as well as First Nations, Government of Canada, expert and individual input. [ 49 ] In September 2008 the Commission designed and directed a 125-page Conservation Priorities Assessment Report. [ 50 ] It is clear from the introductory text to the Recommended Plan and the Final Recommended Plan that various other reports and documents were also received and prepared in contemplation of the Recommended Plan and that extensive information-gathering was undertaken prior to the drafting of the Plans.

F) The

Chapter 11 Approval Process for Land Use Plans The Recommended Plan (s. 11.6.1) [ 51 ] The Commission submitted its Recommended Peel Watershed Regional Land Use Plan (the “Recommended Plan”) on December 2, 2009 (revised in minor detail in January 2010). [ 52 ] The Recommended Plan was unanimous and represented the culmination of over four years of research and consultation with the parties, the public and affected communities.

Consultation formed an integral part of the process of developing the Recommended Plan. [ 53 ] A Draft Plan, which was substantially different than the December 2, 2009 Recommended Plan, was not before the Court but is referred to in the Introduction to the Recommended Plan and in the Foreword to the Final Recommended Plan. The Commission stated that it attempted to create “an integrated land-use management plan” that employed the Yukon land-use planning framework. However, during the review of the Draft Plan, virtually everyone challenged the conceptual framework.

In its Final Recommended Plan, the Commission stated: We offered the Draft Plan as a compromise, a balance between development and conservation. It would have involved additional expenses and new ways of operating for industry. 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. Society was clearly divided on the matter of landscape preservation and resource development. The Commission faced a dilemma, since “managed and restored development” pleased no one. The Parties disagreed on their objectives and Yukon society was polarized. The Commission decided that when society is divided, the responsible approach to take is the one that best preserves options.

Since development and access in wilderness is largely a one-way gate (barring a commitment to fully restoring land to its natural state), the Commission determined to take a cautious, conservative approach.

Its next plan recommended preserving much of the Peel landscape with the understanding that society could always choose to develop in the future if there was agreement on this (pp. ix-x). [ 54 ] In the Recommended Plan, the Commission speaks about shifting its focus after the poor reception of the Draft Plan (p. 1-6): … Instead, the Commission focused upon an “ecosystem-based and compatible land use” approach that considers allowable uses and enabling an ongoing process of reviewing for Plan conformity.

Further impetus for its approach is drawn from the Commission’s review of the UFA’s definition of sustainable development: Sustain ecosystem integrity first. Conserving land, its living things, and its processes is the fundamental priority: lose this and all else crumbles. Ecosystem integrity involves maintaining a state of harmony between people and the land. Sustain communities and cultures next. Preserving communities and cultures relies on achieving success with the first priority. Sustainable communities and sustainable ecosystems are intertwined.

Foster sustainable economic activities third. There are two kinds of sustainability here: activities that do not degrade the land or undermine communities and can be sustained indefinitely; and activities that deplete resources, but from which the land can recover. Not all economic activities fit in this region. [ 55 ] The Commission has repeatedly stated that “Sustainable Development” is a cornerstone of the generated Plans. Indeed, this concept is one that is rooted in the Final Agreements themselves, with references in

Chapter 11 and the following definition contained in

Chapter 1: “Sustainable Development” means beneficial socio-economic change that does not undermine the ecological and social systems upon which communities and societies are dependent. [ 56 ] The major planning tool that the Commission used is the Landscape Management Unit.

The Peel Watershed was divided up into a number of Landscape Management Units, each of which consists of a distinct area of land that typically has well-defined ecological boundaries (i.e. landforms, vegetation, and drainage) and also common characteristics, such as use in wildlife migration, land-use activity, and aquatic stewardship. [ 57 ] The Recommended Plan proposed that approximately 80.6% of the planning region be given a high degree of protection as designated Special Management Areas while the remainder of the planning region be designated as Integrated Management Areas. [ 58 ] Management of Special Management Areas is provided for by

Chapter 10 of the Final Agreements. Special Management Areas are defined in s. 10.2.0: “Special Management Area” means an area identified and established within a Traditional Territory pursuant to this

chapter and may include: (

a) national wildlife areas; (

b) National Parks, territorial parks, or national park reserves, and extensions thereof, and national historic sites; (

c) special Wildlife or Fish management areas; (

d) migratory bird sanctuaries or a wildlife sanctuary; (

e) Designated Heritage Sites; (

f) watershed protection areas; and (

g) such other areas as a Yukon First Nation and Government agree from time to time. [ 59 ] As to the 80.6% of the region to be included in Special Management Areas, it was divided in this way: - Heritage management 2.1% - Fish and wildlife management 19.6% - Watershed management 27.7% - General environmental protection 31.2% 80.6% [ 60 ] The Commission stated in the Recommended Plan at 3.3.1 on p. 3-7: Management direction for land use in all SMAs is intended to reduce long-term resource-use conflict by limiting the surface footprint to a minimum acceptable level.

Existing land-use tenures (i.e. mineral claims, oil and gas dispositions, and related activities) will be allowed to continue as non-conforming use, but will be subject to specific management conditions. Land-use management conditions

may be similar in all SMAs regardless of management emphasis, but may differ for any given [Landscape Management Unit] based upon area-specific rationales. In all SMAs, new surface access (all-season or winter road, rail, etc.) is prohibited even where a mineral claim, coal license, or oil and gas disposition already exists. No new industrial (surface or subsurface) uses or tenures (including infrastructure, facilities and waste disposal operations) will be permitted in an SMA.

A formal Plan amendment would be required to change any of these core Plan recommendations. [ 61 ] The Integrated Management Areas, constituting 19.4% of the planning region, would be open to mineral and oil and gas development, pursuant to specific parameters set out in the Recommended Plan. [ 62 ] The Commission set out the Landscape Management Units individually with a map and a description of what activities would be allowable, prohibited or not applicable for each unit.

It gave a Rationale for Designation followed by Key Management Objectives, Management Conditions and a list of ecological resources, heritage, cultural and scientific resources and economic development. This part of the Plan is detailed and readable. [ 63 ] The Commission commented on development of land in Integrated Management Areas at para. 3.3.2: This designation permits existing and future surface uses and subsurface resource extraction while limiting land-use conflicts and maintaining long-term ecosystem function.

IMAs still have very high ecological and heritage/cultural values within sensitive biophysical settings. However, the Commission believes these zones can accommodate industrial resource development in a working landscape. The overarching “no winter or all-season road access” condition will remain for all IMAs. However, the Plan provides an amendment process if industrial development can meet the environmental and socio-economic goals of the Plan (see 3.5).

Consultation on the Recommended Plan (ss. 11.6.2, 11.6.4) [ 64 ] After receiving the Recommended Plan in December 2009, the three First Nations, the Gwich’in Tribal Council and Government of Yukon signed a “Joint Letter of Understanding on Peel Watershed Regional Land Use Planning Process” dated January 25, 2010 (the “2010 LOU”). [ 65 ] The 2010 LOU contains a number of objectives and principles, and I have highlighted three as follows: 1. A joint commitment to establish a coordinated process for responding to the Recommended Plan; 2.

Acknowledgment of the parties’ Consultation obligations, and an agreement to conduct joint community consultations. 3. Agreement to endeavour to achieve consensus on a coordinated response to the Recommended Plan, and to be guided by the objectives of the Final Agreements in crafting that response. [ 66 ] In terms of the procedure, the 2010 LOU considered that the parties would each conduct an internal review, which would be followed up with a collaborative review with input from the Technical Working Group and the Senior Liaison Committee.

This review was intended to inform the subsequent Consultation. [ 67 ] The Consultation process contemplated initial community consultations in affected communities, followed by the “formal intergovernmental Consultation” process. The intention was that a joint response would then be developed by the parties to the Recommended Plan.

It was left open to the parties to submit individual responses on aspects of the plan for which there was no consensus of opinion. [ 68 ] The Senior Liaison Committee was given responsibility for joint communications. [ 69 ] It is clear from letters exchanged prior to the formal intergovernmental Consultation that there would be difficulty achieving a consensus position with respect to access to non-renewable resources.

Responses to the Recommended Plan (ss. 11.6.3, 11.6.5) [ 70 ] The joint response of all the parties, including the Government of Yukon, to the Recommended Plan is contained in a letter dated February 18, 2011 and authored by the Chair of the Senior Liaison Committee. The letter stated that the views presented were held in common and intended to provide guidance to the Commission as it considered input from the parties in developing the Final Recommended Plan.

It stated: All Parties participating in this regional land use planning process agree that the Peel watershed is a unique area that encompasses many areas of cultural and environmental significance; and that, given the values and the largely pristine state of the region; selected areas will be excluded from development and afforded high levels of protection.

In addition to this joint response, each Party will send supplementary comments that are specific to their interests and responsibilities. [ 71 ] The February 18, 2011 letter from the Senior Liaison Committee then addresses further matters: Implementation and Role of the Parties

a) The Recommended Plan proposes that the Commission remain active after the regional land use plan has been approved to review all requests for plan variances and amendments, and to determine project conformity with the plan under the Yukon Environmental And Socio-economic Assessment Act (YESAA) assessments It is the collective responsibility of the Parties to determine how and when the plan should be reviewed, varied or amended. The Parties have an opportunity to develop a collaborative approach to plan implementation as demonstrated in the North Yukon regional planning process.

Notwithstanding 12.17.1 of the First Nation Final Agreements, it is our view that the Parties will determine whether a proposed project is in conformity with the approved Peel Watershed land use plan. The Yukon Land Use Planning Council may provide assistance in determining conformity, if agreed by the Parties. We believe these views accord with

Chapter 11.2.0, and we encourage the Commission to develop a Final Recommended Plan that incorporates these views.

b) The Recommended Plan proposes that up to 19 subsequent plans may be required after the regional land use plan has been approved. While acknowledging that further planning will be required for specific areas, the Parties would prefer that the regional land use plan contain the key management guidance for the region. This will enable the Parties to effectively implement the regional plan, and simplify the management regime for land and resource managers and stakeholders who have responsibilities and interests within the region.

c) The Recommended Plan proposes frequent plan review, variance, and amendment. Recognizing that a regional land use plan requires periodic review, the Parties are seeking a land use plan that provides clear and consistent guidance over a longer term. We recognize that amendments or variances will be necessary over time, but feel that the plan should only change if there are substantial reasons for doing so. We encourage the Commission to reconsider its proposed approach of frequent plan variances and amendments. Complexity and Usability of the Plan (

a) The recommended management regime is complex, with the region subdivided into 24 Land Management Units (LMUs), with significant similarities amongst the LMUs with regards to management intent. To improve plan clarity and enable the Parties to effectively use the plan, we encourage a re-evaluation of the zones and associated management recommendations and ask the Commission to explore opportunities to consolidate some of the LMUs. Consolidating LMUs will assist in any subsequent planning exercises deemed necessary by the Parties. (

b) We believe the Recommended Plan is difficult to follow due to its level of detail and the organization of the content. In order to ensure the Parties and public can effectively use the plan; we encourage the Commission to work towards a simplified and more streamlined document that focuses on providing clear guidance for land and resource management.

We encourage the Commission to consider these joint Party comments in your development of a Final Recommended Plan. As a number of steps remain in your process of developing a Final Recommended Plan, and subsequent approval of a Final Land [u]se Plan, we wish to inform you that the Yukon government has issued a one-year extension to the interim staking withdrawal of the Peel planning region. Additionally, rights for oil and gas, and coal will not be issued in the region during this period. The Parties’ final positions on a regional land use plan for the Peel Watershed will be determined when our collective obligations under

Chapter 11 of the First Nation Final Agreements have been fulfilled and the Parties have concluded a thorough review of the Final Recommended Plan. [ 72 ] A joint First Nations response is also dated February 18, 2011. It encourages 100% protection of the region, with the exception of the Dempster Highway corridor. [ 73 ] By letter dated February 21, 2011, Patrick Rouble, Minister of Energy, Mines and Resources wrote a four-page response on behalf of Government of Yukon proposing modifications to the Recommended Plan, which he grouped into themes and summarized as follows: 1.

Re-examine conservation values, non-consumptive resource use and resource development to achieve a more balanced plan. 2. Develop options for access that reflect the varying conservation, tourism and resource values throughout the region. 3. Simplify the proposed land management regime by re-evaluating the number of zones, consolidating some of the land management units and removing the need for future additional sub-regional planning exercises. 4. Revise the plan to reflect that the Parties are responsible for implementing the plan on their land and will determine the need for plan review and amendment. 5.

Generally, develop a clear, high level and streamlined document that focuses on providing long term guidance for land and resource management. We understand that the Parties’ responses to the plan will require significant deliberation by the Commission in considering its work ahead. Modifying the plan will take time and resources, and we look forward to working with the Commission in developing a reasonable work plan, timeline, and associated budget for completion of a Final Plan.

Our Technical Working Group (TWG) member should be contacted if the Commission wishes further elaboration on any part of the response or technical references therein. [ 74 ] Minister Rouble attached a 16-page “Detailed Yukon Government Response to the Recommended Peel Watershed Plan” (the “Detailed Yukon Government Response”). Some of the points made within that document are editorial suggestions, while others build on the five points summarized in his letter. The five points have assumed significant importance in this case, and will be referred to as “Yukon proposed modifications 1 through 5”.

It is agreed that Yukon proposed modifications 3, 4 and 5 largely parallel the recommendations made in the joint response authored by the Senior Liaison Committee. [ 75 ] Minister Rouble elaborated on Yukon proposed modifications 1 and 2 as follows: Balance Conservation and Development Interests The Yukon government recognizes that the Peel watershed is a unique area that includes many areas of environmental and cultural significance as well as identified non-renewable resources.

We are seeking a Final Recommended Plan (“the Final Plan”) that recognizes, accommodates and balances society’s interest in these different features of the region. Yukon government supports the internationally recognized concept of the “precautionary principle” and the objectives outlined in

Chapter 11 of the First Nation Final Agreements. Based on Principle #15 of the Rio Declaration and the land use planning objectives, we

feel that the Commission should consider recommending some cost-effective measures for managing land uses and preventing degradation in some parts of the Peel region. The planning region has a mix of values and resources. We believe that there is an ability to accommodate mixed uses that meet society’s need, while erring on the side of caution on the basis of a determined level of risk. The plan proposed that a large portion of the region be designated as Special Management Areas.

While government believes there should be areas where development is excluded in the Peel, more work needs to be done by the Commission to identify and develop a rationale for these areas. We request that the Commission re-examine the location, nature and potential extent of current and future conflicts between the values of conservation, non-consumptive resource use and resource development.

During this review, Yukon’s existing legislation, regulation, laws of General Application, government policies and the Yukon Environmental and Socio-economic Assessment Act (YESAA) and Water Board processes should be considered as they regulate development and are important tools in conserving land and mitigating risk. The Yukon government recognizes that managing surface access (winter and all-season roads) can be challenging but not impossible. We believe a ban on surface access is not a workable scenario in a region with existing land interests and future development potential.

We would like to see a range of access options developed which consider the various conservation and resource values throughout the region and also take into account existing regulatory tools and best management practices which can be used to mitigate risk and limit other user’s access . (emphasis added) Final Recommended Plan (ss. 11.6.3.1, 11.6.5.1) [ 76 ] Pursuant to ss. 11.6.3.1 and 11.6.5.1, the Commission is required to reconsider the Recommended Plan based upon the parties’ proposed modifications and written reasons and formulate the Final Recommended Plan with written reasons for both Government (s. 11.6.3.1) and the affected First Nations (s. 11.6.5.1). [ 77 ] The Commission released the Final Recommended Plan on July 22, 2011: See attached Map B entitled Final Recommended Plan.

Under the heading “Plan Revisions”, the Commission responded to the joint response, the First Nations’ responses and Yukon proposed modifications. This reads, in part (p. I, Foreword): The Final Recommended Plan contains minor revisions to all sections to improve clarity and organization, and factual or grammatical errors have been identified and resolved. Other revisions are substantial – most notably, the land use designation system has been revised and simplified, the number of landscape management units (LMUs) has been reduced and implementation concepts have been streamlined.

Cumulative effects management concepts for the Integrated Management Area have also been re-introduced. While many substantive changes have been incorporated into this version of the Plan, the general management direction of the Recommended Plan has not been altered significantly. How the Commission addressed the Parties conflicting concepts of balance and opportunities for new surface access and resource development, and the rationale for its decisions, are addressed in the message from the Commission, included in the foreword of the Final Recommended Plan.

The following table outlines substantive changes to the Recommended Plan. They are organized based on comments received from the Parties joint response (Senior Liaison Committee) to the Recommended Plan. [ 78 ] The Table referred to also includes changes made in response to Yukon proposed modifications 3 through 5.

The key changes to the Final Recommended Plan, apart from its streamlining and re-organization, were the creation of a new “Wilderness Area” designation with interim protected area status and a reduction in the number of Landscape Management Units, which would simplify future planning and amendment/variance processes. [ 79 ] In response to Yukon proposed modifications 1 and 2, the Commission wrote as follows (at p. xi of the Foreword): The Yukon Government stated that it was providing its General Response per the process set out in UFA

Section 11.6.3. It gave a broad critique of the Plan and requested a number of specific modifications. The Commission dealt with these specific requests in its Plan revision. The Yukon Government also addressed in a general way the amount of protected areas and provisions for managing access.

Without specifying, the Yukon Government response urges the Commission to re-think and re-write the rationale for each SMA; revisit its assessment of resource conflicts between the values of conservation, non-consumptive resource use, and resource development; and reconsider its ban on surface access in much of the planning area. The Yukon Government’s response stated in general terms what it wanted, but it did not discuss why it wanted these changes and where it felt they might be appropriate. It did not discuss locations of concerns, or what modifications it sought.

The Commission noted these general desires and interpreted the thrust of the Yukon Government response to be the amount of land protected. For the Commission to adequately address this general critique, it would have to go “back to the drawing board” and return to a much earlier stage in the planning process, a step for which there was no provision.

In preparation of this Final Recommended Plan, the Commission fully considered the Yukon Government response concerning the amount of land protected. After much deliberation, the Commission concluded that its rationale for protecting these areas was sound, in view of its determination to preserve society’s future options and the outstanding wilderness and cultural values documented in these landscapes.

The Commission also reconsidered its recommendations on surface access in view of industry’s rejections of full restoration of access roads and of the impacts access roads create in the Yukon under its current regulatory regime. Our decision was that since surface access is typically a permanent development, the responsible choice in the Peel region is to preserve options by denying new surface access across much of the area until society is clear on this highly controversial matter.

In our modified land use designation system, 80 percent of the region is termed “Conservation Area”, where new surface access is not allowed. Fifty five percent of these lands are SMAs. The Commission provided for flexibility in future land use options by recommending that 45 percent of the land zoned as “Conservation Area” is given interim protection, to be reviewed periodically, as part of the formal Plan review process. These areas are termed “Wilderness Areas”.

Consultation on Final Recommended Plan (ss. 11.6.3.2, 11.6.5.2) [ 80 ] Pursuant to s. 11.6.3.2, the Government of Yukon is again required to Consult with affected Yukon First Nations and any affected Yukon community before approving, rejecting or modifying the Final Recommended Plan as it pertains to Non-Settlement Land.

Similarly, under s. 11.6.5.2, the affected First Nations shall consult with Government before approving, rejecting or modifying the Plan with respect to Settlement Land. [ 81 ] In anticipation of this step in the process, the three First Nations, the Gwich’in Tribal Council and the Government of Yukon entered into a second Joint Letter of Understanding dated January 20, 2011 (the “2011 LOU”), prior to the release of the Final Recommended Plan. [ 82 ] The 2011 LOU contemplated the process for Consultation and decision on the Final Recommended Plan.

This 2011 LOU acknowledged the various Consultation obligations and guiding principles in similar language to what was used in the 2010 LOU. The parties again agreed that they would conduct joint Consultations and provide a coordinated response, guided by the objectives of the Final Agreements. [ 83 ] In a letter dated September 2, 2011, the Yukon Land Use Planning Council wrote to the Senior Liaison Committee about its review of the Final Recommended Plan.

The Council concluded, among other things that: • The alterations the Commission made to the Recommended Plan were largely done without a cohesive message from all the Parties or clear and specific direction regarding the nature of changes the Parties desired to ensure its approval and implementation. Without these, the Commission relied on their best judgment as an independent body in putting forward their Final Plan; • The lack of a cohesive response from the Parties at the Recommended Plan stage indicates that there are still divergent opinions between the First Nations and the Yukon Government.

First Nations have made their preferences and position clear; the Yukon Government has not . The net result is an impasse that put the Peel Commission in an untenable position. They believe their Final Recommended Plan honours both the letter and the spirit of the land claims agreements; (emphasis in italics in original, underlining mine) [ 84 ] There was a period of several months following the issuance of the Final Recommended Plan on July 22, 2011, when there was not a great deal of correspondence between the three First Nations, the Gwich’in Tribal Council and the Government of Yukon.

While counsel did not raise it, I take judicial notice of the fact that there was a territorial election on October 11, 2011, which did not change the overall leadership in the Government of Yukon but resulted in changes to the relevant ministries. [ 85 ] In a letter dated December 2, 2011, Brad Cathers, the new Minister of Energy, Mines and Resources, reconfirmed the Government of Yukon’s “commitment to working with the parties to develop a shared position on the plan and a final plan that all parties can support and approve”. [ 86 ] On February 14, 2012, Minister Cathers met with the three Chiefs and Gwich’in Tribal Council President to discuss the Government of Yukon’s response to the Final Recommended Plan.

That same day, the Government of Yukon issued a News Release as follows: The Government of Yukon has developed eight core principles that will be used to guide modifications and completion of the Peel Watershed Regional Land Use Plan , Premier Darrell Pasloski announced today. “The Yukon government continues to support an approach that balances access for industry and other users while establishing protection in key habitat areas in the Peel region,” Pasloski said. “The principles will provide guidance for the timely completion of the remaining steps in this important land use planning process.”

Working in collaboration with the Peel Plan parties, Yukon government will use the principles to guide strategic modifications to the draft Peel Plan . Details on the proposed modifications will be included in the next round of public consultation on the plan, scheduled for this spring. “ Yukon government’s guiding principles support special protection for key areas and active management of the landscape rather than prohibitions to use and access,” Environment Minister Currie Dixon said. The Government of Yukon principles are: 1. Special Protection for Key Areas 2. Manage Intensity of Use 3.

Respect the First Nation Final Agreements 4. Respect the Importance of all Sectors of the Economy 5. Respect Private Interests 6. Active Management 7. Future Looking 8. Practical and Affordable (emphasis added) [ 87 ] Chief Taylor, Chief Mervyn, Chief Kassi and President Nerysoo responded by a letter dated February 17, 2012, indicating their shared view that the Government of Yukon had overstepped in its response to the Final Recommended Plan.

The leaders set out their view, for the first time, that the ability of the Government of Yukon to modify the Final Recommended Plan was limited to the proposed modifications submitted earlier in the process and considered by the Commission. [ 88 ] On March 20, 2012, Minister Cathers (Energy, Mines and Resources) and Minister Dixon (Environment) responded to the letter of February 17, 2012. They stated that the Government of Yukon’s view was that it had followed the planning process and had worked in good faith to keep First Nations informed about its expectations.

They also wrote that “[a]s early as 2006, in response to the Issues and Interests Report prepared by the Commission, we indicated that our expectation was for a highly balanced plan that deals with the diversity of needs and issues in the region”. [ 89 ] On September 14, 2012, the Government of Yukon provided its Peel Watershed Regional Land Use Plan “update” to Senior Liaison Committee which included, among other things: 2c.

Planning Issues • Key planning issues: - Ensure ecological integrity is maintained - Visual integrity of major river corridors and important viewscapes (activity corridors) - Manage and coordinate air traffic and camps associated with mineral exploration activity (manage use conflicts between mining, wilderness tourism/recreation users, and outfitters) - New surface access (new roads and trails, and their use)

2d.

Expanded Toolkit • Assess potential levels of risk • Proposed land use designation system (LUDS) - Examine current regulations and processes - Develop new approaches that provide additional management tools (RUWA) • Apply expanded toolkit to achieve goals … • Restricted Use Wilderness Area (RUWA) - To protect values in Wilderness River Corridors, withdraw new surface and subsurface rights - Mandatory reporting of all Class 1 mineral exploration activities - Low levels of allowable surface disturbance - Higher standards for reclamation and security - No public access; temporary private only - Coordinating air traffic - Others? 3.

New Concepts • Apply land use designations in various concepts - Apply land use designations to achieve goals based on identified values - Have generally maintained existing LMUs - If desired, many other options possible - For discussion only (emphasis already added) [ 90 ] The “update” ended with four maps, Proposed Concept A, B, C and D. [ 91 ] On October 15, 2012, the three Chiefs of the Yukon First Nations and the President of the Gwich’in Tribal Council wrote Ministers Cathers and Dixon objecting to the introduction of a new land use designation system and concepts as, in their view, it amounted to a “rejection of the constitutionally protected land use planning process” provided for in the Final Agreements. [ 92 ] The Government of Yukon responded on October 19, 2012, stating: We acknowledge that we may have a different understanding of what is required by the provisions of

Chapter 11. As parties to the Final Agreements, we will, from time to time, have genuine and principled differences about the meaning of certain clauses. We have considered the matter carefully in light of representations made by you and others and our understanding of our obligations under

Chapter 11. It is our view that the land use planning process in the Final Agreement does not fetter the parties’ prerogative to approve, reject or modify that part of the recommended plan that applies to the land under their authority. In other words, Government of Yukon and Yukon First Nations have the ultimate authority to determine the land use plan that will apply to Non-Settlement Land and

Settlement Land respectively. Specifically, it is our view that

Chapter 11 does not limit the next round of consultation to the modifications that the Yukon government proposed pursuant to 11.6.2 and does not prevent Yukon from consulting on the proposed designation system. [ 93 ] On October 23, 2012, the Government of Yukon issued a News Release on the commencement of its public consultation up to February 25, 2013, which included an invitation for Yukoners to “provide input on a suite of land use designation tools which could be applied in the Peel Watershed Region”. [ 94 ] On the same date, the three First Nations and the Gwich’in Tribal Council received a formal “Notice of Consultation”, pursuant to s. 11.6.3.2, with regard to the Final Recommended Plan and Government of Yukon’s response to that Plan.

The Consultation period was indicated to run from October 23, 2012, to March 15, 2013. [ 95 ] The public consultation, carried out by the Government of Yukon between October 23, 2012 and February 25, 2013, was supported by a 15-minute DVD, a 12-page “We want to hear from you” document and a 12-page media package.

The latter documents were entitled “Consultation on the Peel Watershed Regional Land Use Plan”. [ 96 ] In an undated document on the Peel Consultation website (Document #43, p. 4/7) Frequently Asked Questions, the following questions were posed and answered: What is the Government of Yukon’s opinion on the Final Recommended Plan? Overall, the Government of Yukon supports and accepts the goals and many of the recommendations presented in the Final Recommended Plan.

However, we believe the proposed new land use designations better reflect our expectations for a balanced plan that addresses the diversity of needs and issues in the Peel Watershed Region. … Do these new land use designations and concepts honour the work completed by the Peel Watershed Planning Commission? The Government of Yukon sees its proposed ideas as building on the work completed by the Peel Watershed Planning Commission. The Government of Yukon supports and accepts the goals and many of the recommendations presented in the Final Recommended Plan.

However, we believe the proposed new land use designations better reflect our expectations for a balanced plan that addresses the diversity of needs and issues in the Peel Watershed Region. [ 97 ] On November 30, 2012, the three Yukon Chiefs and the Gwich’in Tribal Council President wrote Ministers Cathers and Dixon requesting the feedback received by the Government of Yukon in its Peel Watershed Regional Land Use Plan Consultations.

This request was repeated on March 6 and March 27, 2013. [ 98 ] Premier Pasloski responded by letter dated April 5, 2013, noting that the community and public consultations concluded on February 25, 2013, and comments received along with a

summary document were available on the Peel Consultation website. Premier Pasloski agreed to an extension of the intergovernmental Consultation period beyond his proposed date of March 25, 2013.

He also reiterated the Government of Yukon’s position that its ability to approve, reject or modify the Recommended Plan was unfettered, and indicated that “[t]he Yukon Government is not prepared to accept, without change, that part of the final recommended plan that applies to Non-Settlement Land”. [ 99 ] A 27-page report entitled “Peel Watershed Regional Land Use Plan Public Consultation 2012-2013 What We Heard Report” (the “What We Heard Report”), prepared by J.P. Flament Consulting Services (undated), summarized what was heard with the following headings: Major Perspectives of Respondents

Perspective 1: The Peel Watershed is an irreplaceable global asset Perspective 2: The Final Peel Recommended Plan (FRP) is fair and balanced Perspective 3: The Yukon government is not following the rules Perspective 4: The Yukon government must balance development with protection [ 100 ] The author concluded: There can be little doubt that Yukoners, Canadian and people from across the world are passionate about the future of the Peel Watershed. Overall 10,175 submissions were received over the course of the four months of public consultations and of those 2,781 originated in Yukon.

And respondents were not limited to Canada or the United States, but represented virtually every corner of the globe, with submissions from individuals and organizations from North America, Europe, Asia and Australia. [ 101 ] The Yukon Land Use Planning Council read the “What We Heard Report” and on April 7, 2013, commented as follows: …The “What We Heard”

summary reinforces our concern that “courageous leadership” will be required to restore public confidence in, and credibility of, regional planning as a governance tool; trust in the process itself; and understanding of the role of the commissions in plan preparation. The consultation report clearly demonstrates a public perception that the Government of Yukon did not follow either the spirit or intent of the rules established in

Chapter 11 of the Umbrella Final Agreement and hijacked the process. Whether that is true or not is largely irrelevant at this point. A conclusion needs to be reached on the Peel one way or another, and the Parties as a whole have to determine what it will be. [ 102 ] The Yukon Land Use Planning Council expressed the belief the regional land use planning process was in trouble for the following stated concerns: Concern #1: The approval process did not follow key sections of the Letter of Understanding that the Parties agreed to in January of 2011.

Concern #2: The development and release of the Plan Principles was done independent of any consultation with First Nations or input from the Yukon Land Use Planning Council . Concern #3: The proposed modifications were not based on consultation outcomes but cobbled together with little “supporting evidence as to their validity”. Concern #4: It is desirable that the Land Designation System used across all Yukon Regional Plans should be relatively consistent in terms of definition and application.

The approved North Yukon Regional Land Use Plan provided a guide to build upon. [ 103 ] On June 6, 2013, the Government of Yukon prepared a slide show or power point presentation (Document #57) entitled “Government of Yukon Proposed Approach to the Final Recommended Peel Watershed Regional Land Use Plan, Government to Government Consultation as per

Chapter 11.6.3.2 of the Affected First Nation Final Agreements”. At pages 23 and 24, the Government of Yukon summarized its proposed approach as follows:

i) Designate the four main rivers (Hart, Wind, Bonnet Plume, and Snake) as a new class of park pursuant to the Parks and Lands Certainty Act that will focus on maintaining wilderness river values. ii) Designate the North Richardson Mountains (LMU 12), the two adjacent areas to Tombstone (LMU 2 and 4) and the confluence of the four rivers and the downstream Peel main stem, including the Turner and Chappie Wetlands and the Snake headwaters (LMU 11, 14 and part of 9) as protected areas.

iii) Use anticipated tools to implement active management in areas designated Restricted Use Wilderness Area. This includes – permitting of Class 1 activity, new resource roads regulations, and off road regulations. iv) Expand the width of the Wind River Corridor to better reflect the natural viewscape and wilderness tourism use of area.

v) Work with First Nations to put in place appropriate protection on First Nation settlement land if requested. vi) Recognize existing mineral rights and access to those rights in all areas of the Peel. vii) Establish a Peel Watershed Implementation Committee with First Nation governments. [ 104 ] On October 1, 2013, the Government of Yukon wrote the three affected First Nations and the Gwich’in Tribal Council to provide a

summary of the Consultations to date from July 2011, Yukon proposed Plan modifications and the timeframe for conclusion of the Consultations on the final recommended Peel Watershed Regional Land Use Plan. [ 105 ] The Government’s letter continued: Yukon government’s proposed modifications have been incorporated into the plan and two copies are provided with the proposed modifications highlighted.

First Nation questions, comments and requests for further information, along with input from the community consultations and from the Senior Liaison Committee, have assisted Yukon government in refining its proposed approach to that part of the Plan applying on Non- settlement Land. Yukon government’s proposed modifications reflect our Guiding Principles for Regional Land Use Planning. They address issues and concerns that were raised during community consultation and address Yukon’s concerns with the recommended Plan which were not addressed by the Commission in their final recommended Plan.

These include: • Better management of access – new tools are being developed to control and manage access to protect environmental, cultural and wilderness values; • Protection of river corridors and their viewscapes – proposed protected areas based on the major river corridors and their viewscapes, addressing issues related to the environment, wilderness tourism and recreation; • Site specific interests – minor changes to some Land Management Unit boundaries to better accommodate site specific interests related to industry and conservation values; • Increased management tools for industrial activity – proposed changes to the Quartz Mining Act and the Territorial Lands (Yukon) Act will allow for better management of competing activities in wilderness areas to minimize land use impacts and provide better tools to identify and protect environmental and cultural values.

Before making a final decision on the Plan, Yukon wishes to conclude the consultation by hearing from affected First Nations concerning their views as to how YG’s proposed Plan modifications may affect treaty rights provided for under the First Nation Final Agreements.

This consultation will be for a 45-day period, ending November 15, during which we propose the following: • A briefing by technical officials on YG’s proposed Plan modifications; and • A meeting of the Principals to discuss YG’s proposed Plan modifications and receive feedback from affected First Nations. [ 106 ] In addition to changing the land use designation system, the Government of Yukon stated in the attached Final Recommended Land Use Plan - Proposed Modifications -

Section Notes:

The substantive changes are: • Replace Conservation Area designation (includes Special Management and Wilderness Area) with Protected Area; • Propose “Wild River Park” as a new class of protected area to be created on the Parks and Land Certainty Act ; • Add new land use designation entitled Restricted Use Wilderness Area (RUWA); • Provide greater clarity on allowable and prohibited uses by land use category; and • Provide greater clarity on proposed rules and management restriction in RUWA (table 3.4).

These largely reflect proposed changes to Class 1 mineral exploration activity as well as pending changes to the Lands Act to provide greater oversight of ORVs and resource roads. [ 107 ] There are also specific changes to

Section 4 – General Management Direction and

Section 5 – Land Use Designation and Landscape Management Units. There were no changes to

Section 6 – Plan Implementation and Revision. [ 108 ] In a letter dated October 21, 2013, the three affected First Nations and the Gwich’in Tribal Council again wrote Ministers Kent (Energy, Mines and Resources) and Dixon (Environment) voicing their objections to the planning process, and stating that the proposals “amount to a new Plan and, as such, violate the terms of [the] constitutionally-protected Final Agreements”. [ 109 ] On January 20, 2014, the Government of Yukon informed the three affected First Nations and the Gwich’in Tribal Council that the government had decided to approve a regional land use plan applying on Non-Settlement Land in the Peel Watershed planning region i.e. the Government approved plan. (see attached Map C) [ 110 ] A News Release dated January 21, 2014, made the Government approved plan public and stated: “This land use plan creates vast new Protected Areas that total 19,800 square kilometres,” Minister of Environment Currie Dixon said. “This will increase the amount of land protected in Yukon to almost 17 per cent of its land base, greater than any other province or territory in Canada.” “By creating protected areas along the corridors of the Peel, Hart, Wind, Bonnet Plume and Snake Rivers, this land use plan responds to the wilderness tourism values in the region,” Minister of Tourism and Culture Mike Nixon said. “The creation of new Wild River Parks means the stunning views and wilderness experience of the rivers will be protected for Yukoners and visitors alike.” Protected Areas make up 29 per cent of the region, while the remaining public land in the region is divided between 44 per cent of the Restricted Use Wilderness Areas, which allow for low levels of carefully managed land use activity, and 27 per cent of Integrated Management Areas, where most land use activities may occur.

In the latter two types of areas, mineral staking and proposed commercial activities will be subject to enhanced regulatory and permit processes. As of tomorrow, the Yukon government has replaced the temporary mineral claim staking withdrawal with a permanent staking withdrawal in the Protected Areas, as outlined in the land use plan. Staking is now permitted in 71 per cent of the Peel Watershed region. FINDINGS OF FACT [ 111 ] I find the following facts: 1.

The Government of Yukon, the First Nations of Na-Cho Nyak Dun, Vuntut Gwitchin, Tr’ondëk Hwëch’in and the Gwich’in Tribal Council entered into the Peel Watershed land use planning process with an understanding that it would be a collaborative process, guided by the objectives in the First Nation Final Agreements and compliant with the process set out in those Agreements.

2. It was clear from the reception of the Draft Plan in April 2009 that any plan generated by the Commission would be unable to satisfy all interests and resource users in the Peel Watershed region. The Recommended Plan was based on the Commission’s conclusion that the best plan for the present would “preserve society’s options” in the future. The Commission noted that once a decision to develop an area was made, “we cannot return to a pristine ecosystem and landscape”. 3.

In the 2010 LOU signed after the receipt of the Recommended Plan, the parties established a coordinated process to conduct Consultations and present a joint response to the Recommended Plan. This process was followed. The First Nations, Gwich’in Tribal Council and the Government of Yukon participated in the joint response authored by the Senior Liaison Committee and also submitted individual responses reflecting their differing views on aspects of the Plan. 4. In the individual responses, the First Nations indicated their view that the Peel Watershed should be 100% protected. 5.

The Government of Yukon proposed five modifications in its individual response. Yukon proposed modifications 3 through 5 largely mirrored the comments made by the Senior Liaison Committee in its February 18, 2011 letter. These were addressed to the satisfaction of the parties as reflected in Table at pages (ii) and (iii) of the Foreword to the Final Recommended Plan. 6. Yukon proposed modifications 1 and 2 are at issue in this case:

i) Re-examine conservation values, non-consumptive resource use and resource development to achieve a more balanced plan. ii) Develop options for access that reflect the varying conservation, tourism and resource values throughout the region. 7. Yukon proposed modifications 1 and 2 were framed as a general criticism of the Recommended Plan, without the identification of specific Landscape Management Units or planning measures.

While some elaboration was provided in Minister Rouble’s letter, the Commission found that it could not address Yukon proposed modifications 1 and 2 without returning to an earlier stage in the planning process. However, at least partly in response to Yukon proposed modifications 1 and 2, the Final Recommended Plan changed the designation of the overall 80% protected area from “SMA” to “Conservation Area”, of which 55% was Special Management Area, as that term is understood by the Final Agreements.

The other 45% was termed “Wilderness Area” and given interim protection subject to periodic review as part of the formal Plan review process. 8. The 2011 LOU was agreed to by all parties and set out the same coordinated process to conduct consultations and present a joint response to the Final Recommended Plan as the 2010 LOU did for the Recommended Plan. This process was not followed. 9. After the release of the Final Recommended Plan on July 22, 2011, the Government of Yukon announced on February 14, 201

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