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.