“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.
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