Yukon court dismisses case that threatened the Peel Plan

Close-up of a bright pink sign at the rally in Whitehorse that reads, "Together for the Peel Again" with a hand-drawn heart. Kwanlin Dün First Nation and the Ta’an Kwäch’än Council traditional territory, photo by Adil Darvesh.

Written by Joti Overduin, rally photos by Adil Darvesh | March 13, 2025

After rallying together in the cold in Whitehorse and across the Yukon and NWT last November, the ruling from the judge to dismiss the Yukon government’s case was very much welcome. It was a decision that reflected the reactions of many from the outset of this confusing and disappointing court action on YESAB’s recommendation that the Michelle Creek mining project not proceed.

The Yukon Supreme Court judge determined that bringing this court action forward was both not legally permissible, and out of step with the constitutionally protected process. The judge didn’t touch on the specifics of the YESAB recommendation or how YESAB went about creating it, as that is meant to be discussed between the Yukon government, Trondëk Hwëch’in, and the First Nation of Na-Cho Nyäk Dun.

At CPAWS Yukon we all shared feelings of deep gratitude to Trondëk Hwëch’in and the First Nation of Na-Cho Nyäk Dun for all the energy, time, and work dedicated to defending the integrity of the Peel Plan and the Final Agreements. There was also a strong focus on the importance of baseline data (information about an area before exploration or mining) to evaluate potential impacts and the effectiveness of mitigation efforts on the land, waters, and wildlife—critical not only for the Peel but for development proposals throughout the Yukon.

Tr'ondëk Hwëch'in (TH), First Nation of Na-Cho Nyäk Dun (FNNND), Gwich'in Tribal Council, Vuntut Gwitchin, Yukon government signed the completed Peel Plan in 2019.

A silver exploration project was proposed by Silver47 that would overlap with multiple Wilderness Areas and important habitat for caribou and sheep. YESAB recommended it not proceed, and the Yukon government took YESAB to court over this recommendation.

In 2019 the Peel Plan was signed and celebrated in Mayo and in 2021 the first exploration project in the Peel goes to YESAB. YESAB recommends “no” following standards in Peel Plan in 2022 and one month later Yukon government receives lobby letter from Silver47. Throughout 2022/2023 Yukon government consultations with FNNND and TH are "postponed” and on May 29, 2023 Yukon government announces court action against YESAB, while The judicial review was held in Whitehorse in Nov 2024.

A judicial review asks the court to decide if something a public body did was "reasonable" based on how its supposed to operate. Yukon government asked the court to throw out YESAB's recommendation because it claims YESAB did not have the right to make it.

Heard in the Courtroom... YESAB’s reading of the Peel Plan was “dead wrong” (Yukon government). The Peel Plan “does not have the force of law” and so YESAB was obliged to abide by the Quartz Mining Act (Silver47). Note the Quartz Mining Act was enacted way back in 1924, amended a few times, and in the process of being replaced! Ruling in favour of Yukon government’s “selective and impoverished reading” of the Peel Plan would reduce YESAB’s efficiency and ability to make unbiased recommendations for fear of ongoing review and litigation (Attorney General of Canada). Yukon government has behaved in a way which is “inconsistent” to their obligations under the UFA and the spirit of the Peel Plan (First Nation of Na-cho Nyäk Dun). The hearing represented an attack on the Peel Plan as the recommendation was fair and reasonable (Tr’ondëk Hwëch’in).

Heard in the Courtroom... YESAB needed to “stay in its lane” and overstepped its powers by recommending against the project (Yukon government). “Saying ‘no’ is the very last option in the process” (Yukon government). Note if the judge ruled in favour of this, that would mean that it’s on YESAB to prove if a project would be too harmful. While the Yukon went on a "line-by-line treasure hunt for error," the recommendation did not contain any major issues (Attorney General of Canada). It’s not YESAB’s responsibility to make a project conform to a plan, otherwise it eventually “becomes something other than the project being proposed” (YESAB). YESAB is supposed to provide “speedy” and “timely” recommendations and so it would have been far more unreasonable to refuse to make one (Attorney General of Canada). YESAB had “support” from First Nations and other bodies to interpret treaties and land use plans. These documents need to be read “in their entirety” to be properly applied (Tr’ondëk Hwëch’in).

Heard in the Courtroom... Baseline data not needed until only before mining development, not before exploration (Silver47). Note Yukon government agreed with this at first, but later dropped it because it contradicted their own project feedback submitted in 2022. Silver47 did not know and were not told that refusing to provide baseline data in the timeline requested could result in a rejection. No past judgments show that baseline data must be provided at this stage (Silver47). Note this is like going to get your driver’s license and not bringing your documents, but still expecting to get approved! Exploration is not low-impact, as it involves heavy machines, camps, and helicopters (First Nation of Na-cho Nyäk Dun). Collecting baseline data during exploration, not before, would make it “impossible to understand and ameliorate” impacts and wildlife, and would not be a true baseline in the first place (First Nation of Na-cho Nyäk Dun). Even in the absence of that data it’s possible to extrapolate what is likely to happen over the course of exploration and development to wildlife (Tr’ondëk Hwëch’in).

Heard in the Courtroom... Consultation was at the “lowest” level of priority, and not needed until only before mining development, not exploration in any case (Yukon government). If this is how the Peel Plan is to be interpreted and applied in the future, it represents “something much less than [we] bargained for” (Tr’ondëk Hwëch’in). The judicial review itself represents a “failure of reconciliation” (First Nation of Na-cho Nyäk Dun). Lawyers cited numerous legal cases which suggested the precedent that provincial and territorial governments do have a treaty obligation to consult before doing something like this (First Nation of Na-cho Nyäk Dun). Note ruling is expected relatively soon, around Feb 2025; stay tuned for more updates!

Peel Watershed court case update from December 2024. This isn’t a comprehensive summary of the court proceedings, but rather a glimpse into some key points that stood out to us.

Now that the court action has been dismissed, it is time for the Yukon government to go back to the process of consulting Trondëk Hwëch’in and the First Nation of Na-Cho Nyäk Dun on YESAB’s recommendation for the proposed exploration project. We remain curious and hopeful that the Yukon government will work together with both First Nations to ensure the Peel Plan is upheld, and that it follows YESAB’s thorough recommendation that this first application to develop in the Peel not go ahead. We must ensure that development in the Peel and throughout the Yukon is done in a way the reflects not just the needs of our generation, but many generations from now too.