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Yukon Supreme Court case will set a key precedent for all First Nations

Photo: CPAWS, hunter from Fort McPherson on Peel River (public domain)

This Wednesday, while Ottawa will be focused on the annual ritual of the federal budget, the Supreme Court will hear a case that explains a lot about why Indigenous people cannot trust Canada’s settler governments.

The case concerns a classic white-man-speaks-with-forked-tongue situation, this one in the Yukon. It concerns the future of the vast Peel River watershed, which some environmentalists call the last intact watershed in Canada.

The Peel, and its many major tributaries, such as the Hart, the Blacktsone, the Bonnet Plume, the Wind, the Little Wind and the Ogilvie, constitutes a magnificent 68,000 square kilometre wilderness in the northeast Yukon and adjacent Northwest Territories (NWT). It is a fragile sub-arctic environment of forest, lichen-covered meadows and craggy mountains; and it is the traditional territory of a number of First Nations, most notably the Tetlit Gwich’in of Fort McPherson in the NWT. That community of about 1,000 lies on the east bank of the Peel, just above its confluence with the mighty Mackenzie, Canada’s longest river.  For many centuries, the people of Fort McPherson have drawn sustenance from the Peel watershed. It is their hunting, fishing and trapping territory.

Land- and water-based activities are still the economic lifeblood of northern Indigenous peoples such as the Tetlit Gwich’in. Without the whitefish, cony (local Canadian name for a large salmon-like fish more common in eastern Siberia), ling cod, moose, caribou, arctic hare, and vitamin rich rosehips and low-bush cranberries (that grow in amazing abundance in the North) the Tetlit people would be reduced to a diet of low quality and vastly overpriced store-bought food. The Gwich’in also continue to trap fur-bearing animals such as marten, mink, beaver and muskrat. Trapping and selling fur is a sustainable activity that brings in needed cash.

None of these activities look like much, seen through the economist or businessperson's lens.  Nobody gets rich engaging in activities that are mostly at a subsistence level. Oil, gas and minerals offer the real potential for profit. And that is why, three years ago, the settler-dominated Yukon government decided to welsh on an understanding, if not formal agreement, with the Gwich’in and other First Nations that would have protected 80 per cent of the Peel watershed.

Land claims settlement obliged Yukon government to consult First Nations

In accord with the 1993 Yukon First Nations land claims settlement, in 2004, the Yukon government set up a Peel Watershed Planning Commission, which had representatives from both First Nations and the government itself. The Commission held consultations over a seven-year period and came up with its recommendations in 2011, the main one of which was to keep wild 80 per cent of the territory.

Traditional harvesting and eco-tourism would be allowed, but there would be no new roads (which could interfere with caribou migration routes), no oil and gas drilling and no mineral exploration. As with so many other majority society commitments to First Nations, the Yukon government did not consider itself bound by the Commission’s recommendation. We’re the majority, the right-wing Yukon Party government said bluntly, and so we can do what we consider to be in the interest of the majority.  It unilaterally decided to reserve only 30 per cent of the watershed. It would open the rest to roads, airstrips, mines, seismic blasting and oil and gas drilling. That plan would almost certainly mean the death of almost all sustainable land and water-based activity in the Peel watershed region.

Indigenous peoples have seen this movie over and over again.

The 1982 constitutional agreement, which gave Canada a new amending formula and the Charter of Rights and Freedoms, included a commitment to pursue self-government for First Nations. White, male politicians talked that idea to death in a series of fruitless, set-piece conferences in the late 1980s.

Many Indigenous communities, notably in northern Ontario, have negotiated so-called impact benefit agreements with mining companies, only to see the companies ignore commitments on training, jobs and disposal of effluent.

In Alberta’s Athabasca region, Indigenous communities have suffered the most damage from the hugely polluting and invasive tar sands development, with the least financial benefit.

Even the self-styled friend of Indigenous Canadians, Justin Trudeau, happily betrayed his election promise to withhold approval for the Kinder Morgan pipeline until his government implemented a new and thorough assessment process. At the end of November, Trudeau’s government gave the pipeline-twinning project a green light, based on the previous Conservative government's assessment process. Trudeau had once described Stephen Harper's way of doing environmental assessments as deeply flawed and inadequate to gain social license for major projects.

A value that cannot be expressed in dollars

For First Nations, the spiritual, traditional and communitarian value of land and water has real meaning. When it looks at the same real estate, the majority white society mostly sees dollar signs. First Nations have learned from bitter experience that white governments will betray just about any commitment, however solemn, if there is enough money at stake. That is why the Yukon First Nations, together with environmental groups such as the Canadian Parks and Wilderness Society (CPAWS) took the Yukon government to court over its unilateral Peel Watershed decision, and the highest court of the land will hear the case on Wednesday.

Last November, the people of the Yukon elected a new, Liberal government, which promised to respect the Peel Watershed Commission’s recommendations. Nonetheless, the First Nations groups are proceeding with the court case. They have been too often betrayed in the past to fully trust any white majority government. More important, they want to establish the legal precedent that when governments enter into consultative processes with First Nations -- mandated by treaties or land claims agreements -- they do not have the right to simply ignore the outcomes of those processes. 

Photo: CPAWS, hunter from Fort McPherson on Peel River (public domain)

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