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.