Tuesday, August 5, 2014
This is an opinion piece written by Reg Whiten, who was the senior planner for the Peel Watershed Planning Commission (2008-09) and responsible for writing the draft and recommended plans.
It’s been a few weeks since lawyer Thomas Berger brought the Peel land use plan case to Yukon Supreme Court, concerning, in essence, whether the Yukon government acted in good faith when it advanced its own plan without drawing on the cumulative results of the planning process because it simply didn't like the final result.
The government lawyer claimed the original final Peel plan was a "non-planning plan" produced by a commission that failed to make the "hard choices." This assessment could not be farther from the truth. Creating ecologically-based regional land use plans, dear sir, actually requires much more complex examination of factors than you seem to presume with your apparent preoccupation with political and ideological positions or influence as the leading force in creating the final recommended plan.
The planning process in a place like the Peel required careful understanding of traditional knowledge and resource science as well as the application of established professional planning practice. It required a careful look at what uses are present and proposed in the foreseeable future, along with an understanding of industrial development practice (consumptive and non-consumptive), recognition of key strategic forces at play (technological, ecological, political, social) and the state of existing resource management systems. The planning process further presumes that technologies and practices will evolve over time. The use of tools such as “'variances and amendments” are needed to make changes based on real land use applications - as long as the management intent of that decision ensured such changes would remain "in conformance" with an approved final plan.
So what of the Peel's significance anyways? It is certainly a planning territory like no other in the Yukon or the world with its unique and fragile mountain watershed systems, complex habitats and wildlife migratory patterns, and delicate hydro-ecological features of ground/surface interactions, all flowing in one downstream direction to the Mackenzie River. This is a highly sensitive ecosystem to understand and care for. Contrast this with more southerly regions, like the lower Boreal Black and White spruce plains eco-region, with diffuse drainage patterns and deep lacustrine soils that create resilience to “absorb” industrial impacts like chemicals should a spill occur, such as from a failed storage “tailings pond” where seepage can impact both shallow aquifers and surface waters. Just witness the industry’s record concerning these waste management systems: (http://www.tailings.info/knowledge/accidents.htm)
Why is it when we shift our focus to the wilder frontiers and especially the Arctic regions that governments and industry (and perhaps some of their planners) seem to abandon this critical need to assess ecological carrying capacities and compatibilities? Such insights hold the possibility that not all uses can be managed because of enormous prevailing unknowns about the proposed specific use proposal, the development time horizon and/or the development's management operation.
Let's also recall that the commission asked for mine development scenarios and tried to present mining development in some areas during its draft plan process. Options included proposed winter-access, possible use of heated ore slurry lines to an Arctic port, potential use of an ore conveyor system load-out infrastructure and use of emerging heavy lift technologies, such as heli-portable used in northern BC, or hybrid air-lift systems now well under development in the US and other resource regions.
What was the result of that effort? There was too much potential for land use conflict and impact, and the attempt at accommodation was given short shrift. Some in the development lobby even scoffed and mocked certain mineral claim access proposals instead of taking them seriously at the time. The environmental lobby and First Nations certainly wanted a strong focus on resource protection through vast tracts of the region. YTG suggested that resource roads were the only option regardless of such issues as watershed functions, impacts on cultural traditional resource systems, or hey, even that pesky problem of climate change! There was no room to adjust those draft plan proposals because there was no serious effort to consider the draft plan scenarios or options.
So can it be presumed YTG elected to "sit on the fence" in this stage of the process, knowing it would avoid the hard political choices (it was an election year - 2011) in the short-term and knowing it would hold out to eventually play the “land-owner” card? One only needs to look at the correspondence provided to ascertain how committed or not it was to really making the land use plan work. It’s interesting to note the media often reminded the public about the 97% non-settlement lands in the Peel but made little effort to explain the complex interactive clauses that bound the government to co-stewardship of those same lands.
I also recall being at a YTG- hosted international economic development symposium in the fall of 2009 when then-premier Dennis Fentie somehow forgot to mention the Peel land use planning process was even underway or expressing caution about the actual prospects of development in that region. Instead, the literature on the Peel regional profile just emphasized it was "open" to all development prospects which, in my view, showed contempt for the commission's work to that delegation.
The Peel recommended and final recommended plans were very much well considered "land use plans." They were a product of careful diagnosis, massive information compilation, distillation and deliberation by a highly-qualified planning team, overseen by a highly-competent and experienced commission, aided by competent technical and senior liaison committees, and further guided by a highly-engaged and informed general public as well as interest groups. It really appears from the government’s argument to the Peel court challenge that the commission was characterized as if they were just a bunch of politically-biased hacks, with a few wild-eyed planning technicians under their control, creating pretty maps with lofty idealist rationales.
Thank you Mr.Berger for recognizing the intricacies of this massive multi-year planning effort which allowed the recommended and final recommended plan to be as well informed as it was through a careful understanding of the multiple and inter-related chapters of the Umbrella Final Agreement, the commission’s terms of reference and the mutually-agreed statement of principles. As senior planner, I was even given the benefit of a document citing the original parties' legal understanding regarding the spirit and intent of the original, negotiated UFA, expressed in a clause-by-clause review. The planning process took all the foundation documents and the public and First Nations’ input it gathered (and cataloged, by the way, in an Access database) and filtered it through a thorough scenarios and draft plan process which then culminated in the recommended plan. The result provided for a more nuanced understanding of sustainable development - not the one with a cute three-legged pedestal but one that suggests the foundation is the region's ecological system which is then overlaid by heritage/culture and economic interests.
Careful consideration was focused on what uses could be considered compatible with known ecosystem features, limitations and sensitivities. For the same obvious reason, by comparison, most urban centres would not put an Indy-styled race track around an inner-city or even a suburban family neighbourhood. These are quite likely to be incompatible land uses, to say the least, with highly risky and extremely costly and even irreparable harm created.
In the (most likely) event of eventual human error, what is the possible result of resource-use conflict? This would range from degraded use to possible permanent impairment of the existing land-uses, including loss of ecological functions, displacement of populations, health risks, damage to infrastructure). In addition there would need to be compensation either by industry and/or the public in undertaking reclamation. Given what is known about leakages from acid mine tailing ponds and known cases of failing resource roads, due to permafrost melting, such uses are fraught with serious consequences. Going down the path of "exploit the resource and deal with the damage later" - also called 'environmental mitigation' - was not a direction the commission could advocate, especially given the status of existing resource knowledge and regulatory management capacities operating so far from this remote region.
The preventative land use framework emphasized that in some places certain activities just could not fit, based on what was known and the scope of an actual development scheme. The commission would not advocate a "leap-of-faith" approach, given the considerable risk of major, long-term environmental, social-cultural and economic impacts.
Since traditional First Nation harvesting also had to be sustained, there was an explicit emphasis on ecological-system maintenance (ie. some degree of protection) with minimal sensory disturbance and attention to hydro-ecological balances. And then there were all the other cultural, heritage and spiritual values to consider, including the goal of sustained ecosystem representation (fully protected wild lands). And yes, it was possible for some other uses (outdoor recreation and tourism for example) to be accommodated, subject to their own use conditions in this framework.
In shaping a feasible land use plan, the commission had to carefully evaluate just what factual info it actually had to work with, including the requested technical feedback from public bodies responsible for regulatory control. Lest we not forget that critical information was withheld during that process, due to the premier's intervention, when it should have formed a critical foundation for draft plan review.
There was a highly credible effort in the early years to characterize ecosystem functions by experienced resource professionals from YTG and commissioned consultants. There were also numerous findings to evaluate existing consumptive resource values (i.e. mining deposits). I did my best to try and understand the economic values in the region but, alas, that effort was thwarted by the Yukon Land Use Planning Council and YTG, which controlled all the funding. At least it can be said that some attempt at ascertaining those "values" was made. The parties were made to understand that unbiased planning does in fact require such an investment and such an investigation was part of a methodology in working toward a so-called “balanced” land use plan.
As we worked through the Peel plan process milestones during my brief tenure in 2008-2009 (which produced everything from the statement of principles to the recommended plan), it was the task of processing the mountain of info, reviewing the comments received, determining the questions left unanswered and working with a full range of land management objectives to finally create a rationalized plan product. As we did so, the planning team and commission was naturally led to raise caution and the need to apply the well-established “precautionary principle” used globally in resource science and planning.
Given the commission's clear mandate to emphasize wilderness values, there were still so many significant unknowns about how a conventional mine (e.g. zinc, copper or even uranium) could exist in a place like the Peel. The unknowns included a pre-requisite understanding of appropriate raw ore transport options and water availability, given the massive amounts a mine needs to operate. The global experience did, on the other hand, indicate a dearth of industry information on how to successfully manage certain industrial developments in ecologically-sensitive alpine, Arctic resource regions.
I trust the sitting judge in this case will do his best to render a decision that carefully regards the effort that was undertaken and considers the spirit, intent and honour of the Crown with regards to the UFA. That modern treaty was shaped not just into a legally-binding agreement but into a binding trust relationship for undertaking co-stewardship in the territory.
I know this planner, the planning team and the commission did its level best, on all fronts, to present a plan based on a “strategic” design template that could evolve over time. Yes plans can change, but it takes informed deliberation, not just persuasion to make effective decisions for change.
So I do, your honour, plead guilty to working from the premise of upholding the Peace treaty, otherwise known as the Yukon Umbrella Final Agreement. It is for the public good. I once pledged as a professional planner to serve in the most objective way possible and I'll stand by what has been written. What say ye, me Lord? Thank ye for hearing my defense, in my best defense of the people, the land and those that cannot speak for themselves.
Reg Whiten continues to practice in the field of land use planning and watershed stewardship through his consulting firm InterraPlan Inc., based in Moberly Lake, BC.
Posted by Mary Walden at 11:40 AM