March/April 2014

What to do with the Peel Watershed?

Yukon Government faces court challenge over land use plan

By Ainslie Cruickshank

The Yukon government has released its long-awaited Peel Watershed land use plan, and no one is happy. Not the local First Nations and environmental groups that filed a lawsuit against the government. Not the residents who protested the announcement in seven Yukon and Northwest Territories communities. And not even the mining industry, including Vancouver-based Tarsis Resources, which wants the plan adjusted so its Goz Creek zinc project does not fall within protected area. Despite this, the government plans to move forward with its decision, opening up more land to development than was recommended by a planning committee. That is, unless the courts stop them.

The Peel Watershed region encompasses 67,430 square kilometres of relatively untouched wilderness in northeastern Yukon. Under the government’s plan, the area is split into 16 land management units that fall under three land use categories: protected areas, restricted use wilderness areas and integrated management areas. A temporary staking ban, in place since February 2010, was lifted for 71 per cent of the Peel region following the January announcement.

No new staking is allowed in the protected areas that cover 29 per cent of the region. But the plan does respect all existing claims, as long as they are kept in good standing. Those claims can be developed, although any work will be subject to higher environmental standards. Road access for advanced exploration and development work on existing claims is also possible in protected areas, to the chagrin of the environmental lobby.

The restricted use wilderness areas, a new land use designation in the territory, encompass 44 per cent of the region. New mineral staking, exploration and development are permitted, but limited. Oil and gas exploration and development, on the other hand, is prohibited. The government’s plan limits development in these zones by restricting industrial work to 0.2 per cent of each land management unit falling under this category. It will also manage activity by developing timing windows that could, for instance, create no fly zones over sheep habitat during the spring lambing season. The integrated management areas make up the remaining 27 per cent of the region. This is where the majority of development is intended to occur.

Samson Hartland, Yukon Chamber of Mines executive director, has expressed misgivings about the land use plan, arguing it initiates a very high level of protection in the territory. Including the new protected areas in the Peel Watershed, 17 per cent of Yukon would be withdrawn from new staking.

But if the lawsuit challenging the government’s plan is successful, much more land will be withdrawn. The First Nation of Na-cho Nyak Dun, the Tr’ondëk Hwëch’in, the Yukon Conservation Society, and the Yukon chapter of the Canadian Parks and Wilderness Society filed a statement of claim asking the Supreme Court of Yukon to overturn the government’s plan. They want the Peel planning commission’s final recommended plan implemented instead. The commission was formed in 2004 to develop a land use plan for the near-pristine watershed following the process outlined in the Umbrella Final Agreement, which forms the basis of Yukon First Nation self-government.

The commission’s plan recommended 80 per cent of the Peel be protected from new staking and allow for development in 20 per cent. While the final recommended plan would also respect existing claims, it would not allow for road development in protected areas to access those claims. Tr’ondëk Hwëch’in chief Eddie Taylor has highlighted the strong relationship between his First Nation and the mining industry, but explained that it does not extend to the Peel: “We do not want to see mining in the Peel watershed. To us that land and water is sacred and should be preserved for generations.”

The plaintiffs, represented by well-known aboriginal rights and environmental lawyer Thomas Berger, argue the government acted outside of the Umbrella Final Agreement’s defined land use planning process and violated the spirit of First Nations’ self-government agreements in the territory.

Yukon Premier Darrell Pasloski maintains the government has met its obligations under the agreement. “What we’ve heard so far is that the environmentalists are not happy with our land use plan. But we’ve also heard so far that at the other end of the spectrum the mining industry is not happy with our plan either,” he said. “I think what that speaks to is what we were trying to achieve and that is a balance; a balance that will protect the environment and also have the opportunity to protect all sectors of the economy.”

The government could be facing legal action from miners as well. Marc Blythe, president and CEO of Tarsis Resources, a junior resource company based in Vancouver, has requested the government adjust the Peel plan so its 90 claims at Goz Creek do not fall within protected area. He argues that regardless of whether the plan allows for the development of existing claims in protected areas, the government has essentially expropriated the company’s claims. “Trying to put some sort of access through a restricted area is going to be very, very difficult to permit,” he said.

If the government does not adjust the plan, Blythe said Tarsis will seek compensation. The Goz Creek claims include a high-grade zinc deposit with a historical resource of 650 million pounds. Blythe noted that more than $3 million has been spent exploring the claims since they were staked four decades ago. Out of respect for the planning process, the company stopped work on Goz Creek in 2008.

Despite the controversy, Brandon Macdonald, a Vancouver-based mining and exploration consultant, who has done extensive field work in Yukon, does not expect to see much new staking in the Peel region nor any “meaningful exploration and development” for the time being. He contends there would have been lawsuits even if the government had implemented the final recommended plan.

But any uncertainty, like that created by the First Nations’ challenge, will cause industry to pause before investing in the region, “especially now at a time when investment in mining exploration and development is already low,” said MacDonald. “The sentiment I've gauged is that industry is substantially more nervous about Yukon as a whole even though the Peel decision affects only a limited area. The First Nations disputes definitely do not help either, although I generally feel Yukon is ahead of the game in that respect compared to most parts of Canada.”

“The Peel Watershed was already a remote and challenging place to work and any restrictions on work there beyond the norm for the territory, or globally, were going to make it less appealing; the Yukon government plan is no exception,” added Macdonald.

 Peel Watershed map

Peel at a Glance

• 67,430 square kilometres (larger in area than Nova Scotia)

• More than 10,000 claims had been staked in the region before the government imposed a moratorium in February 2010.

• No claims have been staked there since the plan was announced and the staking ban was lifted (as of March 6).

• No mineral development has occurred in the Peel, although two of its 13 known deposits – the Crest iron deposit and the Bonnet Plume coal deposit – hold significant economic potential, according to the government. The region also contains gold, copper, uranium, and zinc potential and hosts four petroleum basins.

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