Tuesday, August 5, 2014

Reflections of the Peel plan planner

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.



Thursday, July 17, 2014

Court reserves Peel watershed decision

Thomas Berger was in fine fighting form as he delivered the last few punches in the Peel land use plan trial.
After carefully constructing the complex land claims-based case against the Yukon government and then listening to its defense, the 81-year-old lawyer, best known for putting a lid on the Mackenzie pipeline in the 1970s, stepped up to take a final swing or two.
The people crammed into main courtroom – and the overflow room served via video link - hung on his every word.
Although it’ll be two or three months before he finds out whether it was enough for a knockout or not, the First Nations and environmental groups he represented sure seemed to think it was.
Berger, himself, was a bit more tempered.
“We think it’s a strong case but it’s up to the judge to decide,” he told the media after the four-day legal extravaganza wrapped July 10.
“We think the case is one where it’s important to uphold the integrity of the Umbrella Final Agreement [Yukon’s modern-day treaty],” he said.“It’s really the constitution of the Yukon.”
Land use planning for the Yukon portion of the transboundary Peel watershed flows from that agreement. First Nations gave up rights to 97 per cent of the region, believing they’d play a meaningful role in planning and managing its land and resources.
But the Yukon government has reneged on that deal, Berger argued.
When it didn’t like the way things were going, it simply walked away and went off on its own land planning “frolic,” he said. It dumped the Peel commission’s plan – which protected 80 per cent – and replaced it with one that protects less than 30 per cent.
“They may have felt that ‘we are the landlords, we can do whatever we want,’ but they can’t,” Berger said.
Nor should the government get away with blaming the Peel commission for the current mess, he said.
The commission did what it could, with the information it had, after seven years of research, analysis and consultation. It made tough choices, just not the choices the government wanted, he said.
He reminded the court that the government was involved with the appointment of four of the six commission members.
“They threw the commission under the bus, but it was their commission,” he said.
Although the lawsuit asks the court to declare the commission’s plan as the only valid Peel plan, government lawyer John Hunter said the court has no jurisdiction to do that.
If the court decides the government broke the law, then there is no Peel plan and the process must return to square one, Hunter argued.
Berger, on the other hand, said not only would that waste nearly a decade of work, it would reward the government for deliberately thwarting the process.
It would make more sense to make it go back to where the government walked away from the process, which was after receiving the final recommended plan, he said.
“The court’s job here is to restore the proceedings to a lawful footing,” Berger said.
The commission’s plan should “not be left with a blank page unsigned by the government of the Yukon,” he said.
The four affected First Nations, including the NWT Gwich’in, have already approved it.
Although not a party to this lawsuit, the Gwich’in Tribal Council was granted intervenor status. It used the opportunity to remind the court that the whole point of land claims was “to foster reconciliation.”
Gwich’in leaders joined Yukon First Nation chiefs on the front bench to watch the case unfold. In contrast the government sent a few bureaucrats for the four-day trial. Its only elected official, backbencher Vuntut Gwitchin MLA Darius Elias, made a brief appearance on the closing day.
If the First Nations and environmental groups win this case, the Peel will become the largest protected area in North America, said Berger.
“You know when you’re 81, as some of us are, you realize the importance of preserving wilderness or preserving land in its natural state,” Berger told reporters.
“We should have within our country areas that are pristine and remain pristine. It’s our obligation to safeguard them and it’s our obligation to pass them on to future generations. That’s what the commission was trying to do and yet to provide for a measure of industrial development.” 

Friday, July 11, 2014

Peel decision expected in the fall

All week Na-cho Nyak Dun elder Jimmy Johnny sat quietly on the long, wooden courtroom bench, watching and listening as three lawyers and a judge wrangled over the future of the Peel watershed.

The stuffy confines of Yukon Supreme Court – which required Johnny to remove his trademark cowboy hat – was not only hundreds of miles, but literally worlds away, from the region's clear rivers, ancient camps and well-worn trails he holds so dear.

Besides being cowboy-in-residence, Johnny’s become a go-to guy for details on the Wind, Snake and Bonnet Plume country. After more than 50 years of guiding hunters in the region – a career he started in 1958  – he knows many a nook, cranny and mineral lick.

But even he tuned out the mind-numbing minutia of land use planning, final agreements and the Yukon's treatment of the Peel now and then during the 3 1/2-day trial.
“Lot of times when I hear lawyers or the judge talk and they use big words I don’t understand then I start thinking in Northern Tutchone,” he tells a klatch of reporters clustered around him in front of the courthouse Thursday.

Launching into several sentences in his own language – just long enough to make his point. “I just said, Why do we have lawyers talk in language we don’t understand, I don’t understand,” he said with a big grin.

Still and all he thought Thomas Berger did a good job. The B.C. land claims expert, now 81, represented Johnny’s First Nation, along with the Tr’ondek Hwech’in, Yukon Conservation Society and CPAWS-Yukon, in what they're calling a landmark lawsuit against the territorial government.

“Yes, I feel pretty good about it,” said Johnny, expressing the sentiment of many who'd piled into court to hear Berger pick off the arguments presented by the government the day before.
It blamed the Peel commission for all the plan’s woes, but Berger reminded the court the government was involved with four of the six commission member appointments.

“They threw the commission under the bus, but it was their commission,” he said.

The commission made many tough choices - they just weren't the ones the government wanted, he said. So when it received the commission’s final recommended plan, it walked away from the process, outlined in the Umbrella Final Agreement, and starting drafting a plan of its own.
From that point on it treated the commission’s plan – seven years in the making - like “a report they found on the internet" which had some "good ideas," said Berger.

Although the plaintiffs want the court to declare the commission's plan as the approved plan, the government told the court it can't do that.
If it decides the government strayed from the process laid out in the Umbrella Final Agreement, then there is no plan and it's back to square one, its lawyer John Hunter said.

Berger disagreed, saying that would simply reward the government which deliberately "thwarted the process" after it received the commission's final recommended plan.

That's where the things went off the track, he said, and that's where they should be put back on if the court decides it can't force the government to adopt the commission's plan.

Justice Ron Veale reserved his decision, saying only he’d hand it down “in due course.”  Most expect that to be sometime this fall.

Wednesday, July 9, 2014

Yukon pins Peel debacle on commission

The courts can’t force the Yukon government to adopt the final recommended Peel watershed land use plan, says its lawyer John Hunter.

“The court can’t approve what hasn’t been approved,” said Hunter as he capped off a full day of defending the government's actions with regard to the Peel planning process.

The end result? “No plan, back to the drawing board,” he told the court.

Hunter, a Vancouver lawyer who has made a career of representing governments and industry against First Nations, spent the day trying to persuade Yukon Supreme Court Justice Ron Veale the government has done nothing wrong with the Peel.
That’s not how the First Nations and environmental groups which launched the lawsuit see it. They say the government violated the constitutionally-protected land claim agreements when it rejected the commission’s plan and adopted one of its own making.

When Hunter took to the floor Wednesday, he blamed the Peel planning commission – made up of six public citizens appointed by the Yukon and First Nation governments – for creating the Peel mess in the first place.

“The commission never made a single hard decision and they never made any decisions that all the parties weren’t in agreement with,” he said, referring to the recommended and final recommended plans it produced.

It knew full well the government wanted less protection and more development, but it ignored that and turned out a plan that protected 80 per cent of the watershed from mining and roads anyway, he said.

That left the government little choice but to take over and come up with new options for the Peel’s non-settlement land – 97 per cent of the 68,000-sq.km. region, he said, adding that was something it had ever right to do.

The government’s new plan, approved in January, protects less than 30 per cent of the watershed but it’s not much different than the commission's, he argued.

“They are very similar,” he said.

The government’s plan simply built on the commission's final recommended plan, all the while trying to find a compromise between competing interests, he said.

“The government had to step in to make the hard decisions that weren’t made by the commission,” he said.

The government’s plan is “a real planning document” that is much more sophisticated than the commission’s plan, Hunter said. It’s also more subtle and nuanced than people realize.

The new designation, Restricted Use Wilderness Area, for nearly 45 per cent of the watershed, limits the kind and amount of development allowed at any one time, he said.

All roads are temporary and must be reclaimed, he said, although he couldn't tell the judge exactly how that might happen when he was pushed for details.
Hunter also said the government tried to consult with First Nations about their new plan but they refused to discuss anything but the commission’s plan.

Throughout the day, Veale challenged Hunter on a number of issues, big and small. How “meaningful” were government consultations? Why didn’t the government take its new proposals to the commission, which had all the background and knowledge? Did the new plan not amount to a rejection of the commission’s plan?

Taking it all in for the third day running were First Nation leaders and elders, along with dozens of Peel protection supporters. About 10 government lawyers and bureaucrats were on hand to hear Hunter's presentation.

On Thursday, Thomas Berger will respond to Hunter’s presentation on behalf of the First Nations and environmental groups. Showtime begins at 10 a.m.

Tuesday, July 8, 2014

Land planning's future hinges on Peel case

After two days of building a case against the Yukon government’s handling of the Peel watershed land use plan, lawyer Thomas Berger summed it all up with some sage advice for Justice Ron Veale.

Not only is the future of the Peel watershed at stake in this landmark case but so is the future of land use planning in the Yukon, he said.

The Peel plan “went off the rails” after the government failed to provide “proposed modifications that really qualified as such” to the commission’s recommended plan, said Berger who is representing two First Nations and two conservation groups in the lawsuit.

“If it turns out that greater care should have been given…if it becomes apparent that the final consultations with the First Nations and affected communities must be based on dialogue of the Yukon government and the Peel Commission that will be of real usefulness to all parties in the future,” Berger said.

“They are all here to stay and they’re going to have to get along,” he said.

Since the trial began July 7, the distinguished aboriginal law expert has gone to great pains to explain the finer workings of the Yukon’s modern-day treaty, its relationship to land use planning and the elaborate Peel process itself.

Although it’s been nearly 10 years since the Peel planning commission was established, the gulf between the Yukon and First Nations governments seems to be greater than ever.

The commission’s plan protected 80 per cent of the region from industrial development. The government said it had to have more balance and wrote a new plan that protects less than 30 per cent.

“Balance is in the eye of the beholder,” said Berger.

The commission did the best it could with the information the government provided but already five years into the process, it couldn’t go back to square one, he said.

The government didn’t like the end result – the final recommended plan – so when it took it out for consultation in 2012-13, it included its own new plan in the mix, a plan it later approved.

But it can’t do that, Berger argued, and he’s asking the court to back him up.

He wants the judge to order the Yukon government to set aside its new plan and instead approve the one prepared by the planning commission.

The Gwich’in Tribal Council, which has intervened in the case, also had a chance to make a short presentation Tuesday.

Although based in the NWT, the Gwich’in are the largest First Nation land holders in the Peel and have a long history of traditional use. The Gwich’in signed their own land claim in 1992, but it includes the Yukon Transboundary Agreement to deal with their rights on this side of the border.

GTC lawyer Jeff Langlois said land claim agreements are meant to foster reconciliation. What the Yukon government has done with the Peel planning process has done anything but, he said.

Yukon government lawyer John Hunter will present his arguments to the court on Wednesday.

If the first two days are any indication, he'll be "playing" to a packed house of First Nation leaders, elders and supporters of Peel protection. Only a handful of government officials have sat in on the trial so far and no government politicians have made an appearance.

"If the Peel is so important, why isn't the premier here?" asked one astute observer.

The trial, originally slated to run for five days, is expected to wrap up by Thursday at the latest. 

Monday, July 7, 2014

Landmark Peel case puts Yukon on trial

If the Yukon government didn’t like the Peel watershed land use plan, it should have made that clear a long time ago.
But it didn’t and so it missed its chance.
That’s the gist of the legal argument behind the historic lawsuit launched by three First Nations and two environmental groups which got underway before two packed courtrooms in Whitehorse this week.
Their lawyer, Thomas Berger, spent most of the day painting a painstakingly detailed portrait of the Peel watershed’s land use planning process – where it came from, how it was supposed to work and what made it go so wrong.
Lawyers in Peel case await the judge.
The Peel commission, established in 2004, produced a recommended plan for all public and First Nation land in late 2009.
The government didn’t like it – it protected 80 per cent of the watershed from industrial development – but it didn’t reject it either. It could have, and should have, if it really wanted a completely different plan, said Berger.
“Yukon government made its choice,” said Berger. “They did not accept it. They did not reject it. They proposed modifications.”
And even those fell short.
Two of the five proposed changes put forward by then Energy, Mines and Resources Minister Patrick Rouble were too general for the commission to be able to act on them at that stage in the game, he said.
Unsure what the government wanted, the commission did some more work and produced the final recommended plan in July 2011.
When the government got around to taking that plan out for public comment more than a year later, it decided to also include four versions of a new plan it had drafted up in-house. That's the plan it approved earlier this year which prompted this lawsuit.
But the government had no authority to effectively reject the final recommended plan and replace it with a complete rewrite this far down the planning road, said Berger.
“If it had rejected it [the recommended plan] in the first place, it could reject it again,” said Berger. “But it can’t make a new choice at this point.”
That goes against the “elaborate” land use planning process agreed to by First Nations when they gave up rights to 97 per cent of the watershed in exchange for a say in land management, he said.
With the courtrooms packed almost exclusively with First Nation leaders and elders and other Peel protection supporters, the B.C. lawyer hired to represent the Yukon had a pretty lonely job on Day One.
John Hunter, who has a long history of representing industry and government against First Nations, has faced off against Berger before.
In his brief opening statement, he dismissed Berger’s concerns about treaty violations, saying the Yukon government can ultimately do what it wants on non-settlement land.
A silent vigil for the Peel at courthouse.
As far as the government is concerned, it followed the land planning process laid out in the modern-day treaty, the Umbrella Final Agreement.
Hunter will get a chance to expand on that once Berger completes his arguments. Both sides are relying completely on documents and neither are calling any witnesses.

They told the judge they agree on the facts and the facts are all contained in documents such as agreements, correspondence and public consultation material.

The First Nations and environmental groups are asking the court to force the Yukon government to approve the commission’s final recommended plan.

Yukon Supreme Court Justice Ron Veale said he wondered if the plaintiffs had considered other alternatives, suggesting they may want to do so before the five-day trial comes to a close July 11.

A 30-minute vigil – silent save for the supportive honking of horns by passing motorists – attracted about 150 people at noon.

Wednesday, July 2, 2014

Courts set stage for historic Peel trial

When the curtain rises on the Peel watershed trial in Whitehorse July 7, it’s expected to be so popular two Yukon courtrooms have been set aside to seat up to 200 spectators.
More than 50 First Nation elders from the four Peel region First Nations will line the benches alongside their political leaders and the many others with an interest in this case.
And for the first time in Yukon court history, the first 2 1/2 hours of the trial will be video-taped by the claimants to document this historic occasion.
What began as a dispute over protecting the Yukon portion of the transboundary drainage has mushroomed into a major brawl about the meaning of modern-day treaties.
A drama years in the making, with plenty of public input along the way, it’s easy to see why so many may want to watch the next act unfold in courtroom #1 - live video-streamed to courtroom #3 - during the five-day trial.
Many more months may pass before Yukon Supreme Court Justice Ron Veale renders a decision. Add to that two to four years of appeals, possibly all the way to the Supreme Court of Canada, and this saga may not finally conclude until 2019 or 2020.
The lawsuit against the Yukon government was launched in January by the Na-cho Nyak Dun, Tr’ondek Hwech’in, Yukon Conservation Society and CPAWS-Yukon.
The NWT’s Gwich’in Tribal Council joined the case as intervenors on June 20.
GTC acting president Norman Snowshoe said the council decided to add its name to the legal roster, rather than launch its own suit, to make sure its voice was heard.
“We’ve done the analysis as to how to ensure our interests are best met in this process….and we believe that participating with the other First Nations in this case would get us the results that we need and ensure that our rights are protected through the legal system,” said Snowshoe in an interview from the council's Inuvik headquarters.
Snowshoe and his board plan to attend the trial “to show that we are here to protect the rights that the land claim negotiators established when they finalized the land claims agreement [in 1992].”
Former justice and B.C.-based lawyer Thomas Berger, of Mackenzie Valley Pipeline Inquiry fame, is leading the legal charge for the First Nations and environmentalists.

They say the Yukon broke the land claim agreements by rejecting the Peel commission’s land use plan at the 11th hour. Both the government and First Nations appointed people to the six-member commission.

The government, on the other hand, denies any wrongdoing. It claims it had the right to replace the commission’s plan – which protected 80 per cent of the watershed – with one that opens most of the region’s public land to industrial development.
While the black-robed lawyers argue the law within the courtroom walls, environmentalists have planned a series of Peel-related events outside and beyond.

To mark the trial’s opening day, a silent vigil will be held on the courthouse steps over the noon hour July 7.

At the nearby Kwanlin Dun Cultural Centre, beside the Yukon River, a ceremonial fire will be lit and tended daily to provide a place for Peel supporters to gather. Inside there’ll be an elders’ lounge, with shuttle service to and from the courthouse.

The centre also will host an evening of stories, images and music, dubbed Voices of the Peel, on July 10.

In Dawson a daily noon prayer circle will be held throughout the week. Edmonton motorcyclist Don Curry begins a ride from there to Inuvik July 7 – standing up on his bike the whole way to encourage people to stand up for the Peel.

Monday, June 16, 2014

Yukon gov't defends Peel plan rejection

The land use planning process doesn't seem to carry much weight with the Yukon government.

And it's going to use the Peel watershed plan lawsuit to try to prove that point.

The suit was filed by two First Nations - the Na-cho Nyak Dun and Tr'ondek Hwech'in - and the Yukon Conservation Society and CPAWS-Yukon in January after the government rejected the final recommended plan prepared by the Peel planning commission.

The commission's plan protected 80 per cent of the watershed while the government's new plan opens most of the region to industrial development.

In its outline of the arguments it plans to use in the upcoming July 7-11 trial, the Yukon government says it had every right to ignore the work done by the Peel commission.  The six-member commission, made up of government and First Nation appointees, spent seven years and $1.5 million studying, analyzing and consulting on how to best manage the Yukon portion of the transboundary watershed.

As far as the government's concerned it had no legal obligation to do a land use plan despite the fact there's an entire chapter in the constitutionally-protected land claimsagreements that provides a template for how land use plans are to achieved.

"Chapter 11 provides a voluntary planning process that ensures that both government and First Nations can participate in the process and be consulted with respect to any final proposals, but which leaves the ultimate decision-making authority in the hands of government for non-settlement lands and First Nations for settlement lands," it says.

About 97 per cent of the Peel region is non-settlement land.

"The Yukon government has consistently stated that it required a balanced approach to planning on these lands. When the commission declined to provide a recommended plan that was balanced, it was open to the government, after proper consultation to modify the plan, to achieve that balance."

The case has ramifications not only for the Peel plan, but also for modern-day treaties in general and whether they are worth the paper they're written on.

Click here to read the government's full 48-page argument.

Click here to read the claim against the government.

Tuesday, May 13, 2014

Berger lays out Peel legal argument

More details on the case against the Yukon government's handling of the Peel watershed land use plan have been filed with the courts.

The 48-page legal argument by Thomas Berger, who is representing two Yukon First Nations and two environmental groups in the lawsuit, builds on the information contained in their statement of claim.

They want the court to force the Yukon government to approve the final recommended land use plan for the watershed. It was produced by the Peel commission, which had appointees from both government and First Nations. Rather than work with that plan, the government imposed its own new plan for the region a few months ago.

Click here to read Berger's full argument.

The government has until June 9 to respond to the arguments put forth. So far it has only filed a statement of defence.

The trial in Yukon Supreme Court is scheduled for July 7-11.

Friday, May 9, 2014

Big Peel payouts bogus boogie man: Berger

The Yukon government would have no legal obligation to compensate the Peel’s mineral claimholders if it accepted the final recommended land use plan, says lawyer Thomas Berger.

Implementing a land use plan with no surface access is not “defacto expropriation” of mining claims, the prominent B.C. lawyer says in a legal opinion prepared for the Yukon Conservation Society and CPAWS-Yukon.

Berger is representing the two groups and two Yukon First Nations in a suit against the Yukon government’s decision to open most of the Peel for industrial development.

Here is the executive summary of the 33-page Berger opinion:

We have considered whether, if the Final Recommended Plan (FRP) of the Peel Commission is implemented, the Government of Yukon (YG) would be obligated to compensate owners of mineral claims or other property interests within protected areas for economic loss resulting from restrictions on the use of their land.

This issue arises because of the provision in the FRP that surface access to existing mineral claims would not be permitted in protected areas (though access by air would be allowed).

It is vital to keep in mind that instituting a program of land use planning is not the same thing as expropriation. When a specific parcel of land is expropriated, the owner is entitled to be compensated under the Yukon Expropriation Act R.S.Y. 2002, c.81. But the implementation of a land use plan for the Peel Watershed would not constitute expropriation of anyone’s land or anyone’s mineral claim. Instead it is what the Supreme Court of Canada has described as “the broad assignment of land use.” Tener v. B.C. [1985] 1 S.C.R. 533. The Supreme Court in Tener compared land use planning to zoning. When your property is rezoned, you are not compensated. Everyone whose land is rezoned must live with what may well be a very serious limitation on the use of such land.

The Supreme Court has held in Canadian Pacific Railway v. Vancouver [2006] 1 S.C.R. 227 that, to amount to de facto expropriation, two conditions must be met:

1. The government must acquire a beneficial interest in the land in question. In the Yukon we are mainly concerned with the owners of mineral claims. In the case of the implementation of the Peel Commission’s FRP, YG acquires no beneficial interest in the mineral claims.

2. Removal of all reasonable uses of the land. Thus the economic value of the land to the owner of the mineral claim must be reduced to the point where it is of no real use for exploiting minerals. It could be argued this would be the outcome under the FRP, since there would be no access except by air.

Let me repeat: The law in Canada, as enunciated by the Supreme Court, is that both conditions must exist for there to be a de facto expropriation and thus a right to compensation. In this case there would be no acquisition by YG of a beneficial interest in any mineral claim or in any other property. So YG would have no legal obligation to pay compensation.