Once again, Thomas Berger is at the centre of a case that questions whether only one understanding of development will rule, or whether justice demands negotiation among alternatives. In the 1970s Mackenzie Valley Pipeline Inquiry that he chaired, Berger balanced the realities and priorities of the petroleum industry against those of people still living in direct relations with the land. The details in this case, involving the Peel River watershed in the Yukon, are different. But the principles at stake are the same, and bear on all Canadians -- even the world as a whole, facing environmental distress.
On the one hand, the Yukon government has issued its own 'regional land-use plan' for the 70,000 square mile expanse of the Peel River Watershed, proposing to leave a mere 29 per cent of the land protected from development, versus the 80 per cent originally recommended by the Peel Watershed Planning Commission established through a 1993 constitutional agreement with Yukon's First Nations, the Umbrella Final Agreement.
The government is side-stepping this agreement, claiming a 'majority rule' right to do so, to decide what's in the best interests of the Yukon -- in this instance, more rather than less mining and related development. On the other hand, the plaintiffs in this case, filed against the Yukon government in late January, argue that the territorial government is only one party governing development and determining what that should entail; the Yukon First Nations are equally involved. And this is key. The 1993 agreement created a process for development planning based essentially on partnership between First Nations and the government; a process that goes far beyond the common law duty to consult.
What's critical is the recognized claim of a people such as the Yukon First Nations to speak from their own realities, and for these to be recognized as legitimate. When I heard Eddie Taylor, chief of the Tr'ondek Hwech'in First Nation saying that "to us that land is sacred … as our elders say, the Peel is our church, our university and our breadbasket," I recognized his words as speaking outside the box of what development means to most people. I recognized them too as akin to a language that my pre-modern ancestors in the Highlands of Scotland spoke when they lived in direct relations with the land in self-governing commons called fermtouns or townships, setting limits, or stints, on the number of sheep and cows each family could send to the common pasture, to prevent over-grazing.
The culture of the commons spoke through concepts like duthchas, which means heritage generally and also 'a heritage of the soil,' according to one source, almost even a covenant with Creation, according to another. It was an inherited set of rights plus responsibilities toward both one's people and the land they co-inhabited. In the commons-based economy, development was not first about planning projects, but developing relations out of which appropriate plans might emerge.
Thus, when Chief Eddie Taylor clarified that he wasn't against all mining in the Klondike region, I could imagine where his thinking was going: toward mining paced and scaled within the carrying capacity of the environment; mining practices informed by right relations and the four constitutional principles that native philosopher Richard Atleo outlined in his book Principles of Tsawalk: An Indigenous Approach to Global Crisis, recognition, consent, respect -- including "sacred respect," holding all Creation in reverence -- and continuity.
In his 1945 classic The Great Transformation, Karl Polanyi chronicled the shift from the community- and commons-centred economy to the modern market-centred economy, from an economy regulated by the social relations of community and ecological relations with the land to one regulated by the logic of the market. The result of this transformation, he warned, "must disjoint man's relationships and threaten his natural habitat with annihilation."
The transformation is not entirely complete here in Canada, which is why this case is so important. It insists on holding the door open to another reality, another approach to 'development' and the constitutional authority of Yukon First Nations to articulate it.
The Yukon government has until March 4 to respond to the case with a statement of defence. Here's hoping they respond with a willingness to listen, to hear the wisdom of other perspectives on what development involves.
Heather Menzies' tenth book, Reclaiming the Commons for the Common Good, will be published in May.