Supreme Court lauded for saying YES to Peel

This is the news release issued by the three Yukon First Nations and two environmental groups that asked the Supreme Court to hear its appeal:

On June 9th 2016, the Supreme Court of Canada gave notice that it will be hearing The First Nation of Nacho Nyak Dun et al v Government of Yukon, otherwise known as the Peel Watershed case. The case will be heard in Ottawa after leave to appeal to the Supreme Court of Canada was submitted by the First Nation of Na-Cho Nyak Dun, the Tr'ondëk Hwëch'in, the Vuntut Gwitchin First Nation, CPAWS Yukon and the Yukon Conservation Society in December 2015.

"We signed our Final Agreements with Canada and the Government of Yukon in 1993, and we came to the table again in good faith for the Peel Watershed consultations," said Chief Simon Mervyn of the First Nation of Na-Cho Nyak Dun. "We are pleased that Canada’s highest court recognizes the legally binding nature of these agreements and the national significance of this case.”

The Peel Watershed is home to the First Nation of Na-Cho Nyak Dun, the Tr'ondëk Hwëch'in, Vuntut Gwitchin First Nation, and the Tetlit Gwich'in Council.

“The Supreme Court’s decision confirms what we’ve maintained all along: there are significant legal questions raised by the Yukon Government’s conduct during the Peel planning process that deserve the Supreme Court’s - and Canada’s - attention,” Chief Roberta Joseph of the Tr'ondëk Hwëch'in said. “We are thankful for this opportunity and look forward to defending the integrity of our Final Agreements.”

Chief Bruce Charlie from the Vuntut Gwitchin First Nation expresses his elation on the decision.  He states: “This pristine wilderness, caribou habitat and eco systems is an essential element of our very existence, the integrity of our agreements will be clarified once and for all and will stand the test of time.” 

The Peel Watershed is one of the largest unspoiled natural areas in North America. At 68,000 km², it is larger than the entire province of Nova Scotia.

“The Peel River Watershed is a wild land in a world that is quickly losing its wilderness," added Yukon Conservation Society Executive Director Christina Macdonald, "We are looking to the Supreme Court of Canada to help us keep it that way.”

Six rivers flow through this landscape into the Peel River, which travels north to the Arctic Ocean via the Mackenzie River Delta. Grizzly bears, wolves, and caribou roam freely; migratory birds find sanctuary in the wetlands; and rare plant populations thrive.

Chris Rider, Executive Director of CPAWS Yukon, stated “The Supreme Court of Canada’s decision to hear this case shows that they recognize the value of the Peel Watershed. It is a treasure of international significance and it deserves protection. Beyond this, the final ruling will set a precedent for all future land use planning in the Yukon and the significance of that cannot be underestimated.”

Lawyer Thomas Berger says the proponents are in a good position.

Mr. Berger stated, “It is important to remember that the Court of Appeal’s judgment upheld Justice Veale’s decision to set aside the Government of Yukon’s Peel Watershed Regional Land Use Plan of January 2014. The Court of Appeal held that the Government of Yukon failed to honour the letter and spirit of its treaty during the initial consultation with First Nations and Yukoners.

“However, the Court of Appeal, instead of remitting the matter to the stage of final consultation (as Justice Veale had), remitted the planning process to the earlier stage at which the Government of Yukon, having received the Recommended Plan (back in 2010), was to consult with First Nations and affected communities and then approve, reject or propose modifications to the Recommended Plan.

“The Court of Appeal’s judgment thus allows the Government of Yukon to go back to 2010 and to start the process over at the point when it received the Commission’s Recommended Plan. The Court of Appeal also held that the Government of Yukon had final authority at the end of the day to reject any plan resulting from the process.

“We are now in a position to argue, before the Supreme Court of Canada, that on all of these points the judgment of the Court of Appeal should be set aside and Justice Veale’s judgment reinstated.“

“Mr. Berger concluded: “We will now be moving the appeal forward as quickly as we can under the rules of the Supreme Court.”

Peel case = 'decade of (gov't) failure'

Here’s the Peel court case statement from the Yukon Liberal Party following the news that the Supreme Court will hear the appeal of the Yukon Court of Appeal decision:

“Land use planning brings certainty for economic development while protecting our shared environment for future generations. When these decisions are left to the Supreme Court of Canada to decide, we lose our ability and responsibility to negotiate our share future through a local lens.

“The Yukon Party government has fought the will of the people at every turn. Today’s decision is a reminder of their inability to consult or negotiate with First Nation governments.

“While it is very disappointing that we have to go to the highest court in the land to be heard, at least the Yukon will find certainty for our environment and our economy after a decade of failure.

"Yukon Liberals have been clear on this issue for many years. Yukon Liberals believe and respect democracy. We respect the land use planning process. We accept the will of an overwhelming majority of Yukoners and would implement the Recommended Peel Land Use Plan.”

Let's cut a deal on the Peel: Yukon gov't

The Yukon Party government released this statement on the Peel Supreme Court case (note the absence of the politicians responsible for this political, economical, social and legal morass):

 "While continuing to have this matter in the courts is not the Yukon government’s preferred approach, we are hopeful that the Supreme Court of Canada can provide clarity and certainty to questions about how Yukon’s regional land use planning process should work and can make it clear that public government has the final say over public land.

"We remain committed to enhancing our government-to-government relationships and building positive, productive partnerships with First Nations for the benefit of all Yukoners, based upon the implementation of the Self-Government and Final Agreements.

"On several occasions, both publicly and through direct communication, our government has sought to work with First Nations to settle this matter outside the court. We remain open to these discussions.

"The prohibition on mineral staking and oil and gas development in the Peel watershed remains in place until Jan. 1, 2018 which we hope will provide enough time for the case to be heard."

Peel's fate now lies with Yukon voters: NDP

The following is a statement by Yukon NDP leader Liz Hanson following the Supreme Court of Canada’s June 9 decision to hear the Peel watershed land use plan appeal case:

"Early this morning, the Supreme Court of Canada granted leave to appeal in the Peel Watershed case, as requested by several Yukon First Nation governments and environmental groups. The decision by the Supreme Court, a win for Yukon First Nation governments and the Yukon public, will prompt a review of the Yukon Court of Appeal’s decision.

"The court of appeal decision essentially offered the Yukon Party government a do-over despite the bad faith it showed through the planning process towards First Nation Governments and Yukon citizens. This is a second chance that they do not deserve. Premier Darrell Pasloski and his government have failed to honour the letter and spirit of the Final Agreements and they have set the land use planning process back by years.

"But there is good news: we are heading into an election this fall. This time, the Yukon Party will not be able to hide its position on the Peel from you like they did in 2011. The fate of the Peel – one of North America’s last pristine natural ecosystems – will be up to the Yukon people who will choose Yukon’s next government. Under a Yukon NDP government, that means a Peel decision that reflects the Final Recommended Plan, respects the balance struck by the land use planning process and upholds the spirit and intent of the Yukon’s Final Agreements with First Nations governments.

"The Truth and Reconciliation Commission says that reconciliation is about an ongoing process of establishing and maintaining respectful relationships with all levels of government. A Yukon NDP government would put this vision at the core of our work."

Top court says YES to Peel appeal

The Peel watershed fiasco will get its day in the Supreme Court of Canada.

The court agreed to wade into the legal quagmire surrounding the Yukon’s Peel watershed at the request of three First Nations and two environmental groups.

It only grants leave to a small percentage of the cases that come asking for a hearing so this is a major victory for those who want to see the Peel protected.

It means the court believes this is an issue of national importance, an issue of great public interest.

The coalition of groups is asking the court to strike down a decision by the Yukon Court of Appeal which gave the government another chance to impose its development plans on the region.

 

Peel appeal appeal reveal June 9

Canada's top court is poised to say whether or not it wants to deal with the Peel watershed land use plan debacle.

The Supreme Court of Canada is scheduled to release its leave to appeal decision on Thursday, June 9 at 9:45 a.m. Eastern Daylight Time.

Officially it's case #36779 - First Nation of Nacho Nyak Dun, et al v. Government of Yukon.

"Et al" includes Dawson City's Tron'dek Hwech'in, the Old-Crow based Vuntut Gwich'in, the Yukon Conservation Society and CPAWS-Yukon. The N.W.T.-based Gwich'in Tribal Council wants to be an intervener if the court decides to hear the appeal.

The case against the Yukon government dates back to early 2014.  It was launched just days after the government imposed a controversial land use plan for the region. That plan provided almost no protection and was in stark contrast to the 80 per cent protection put forward in the plan developed by the independent Peel planning commission.

The Yukon Supreme Court sided with the First Nations and environmental groups. It ruled the government had broken the Yukon's modern-day treaty by rejecting the commission's plan and replacing it with one it produced unilaterally.

The court quashed the government's Peel plan. It also ordered the Yukon to redo the consultation on the final recommended plan.

Although the government didn't deny the wrongdoing, it did take issue with the court-ordered remedy. If it had to go back in time, it argued before the Yukon Court of Appeal, it should go back to a much earlier point in the process where its pro-development ambitions would be considered.

The Yukon Court of Appeal agreed with the government, saying it should pick up where it left off in 2010 and submit new proposals to the (now defunct) planning commission.

The First Nations and environmental groups think that's wrong. They say it gives the government the chance to sneak its development proposals through the back door.

They're hoping the Supreme Court of Canada at least agrees to hear its arguments. If they get their way, it could be at least another year before it's all settled or well after the next territorial election which has to be held by this fall.

Yukon Court of Appeal decision  2015
Yukon Supreme Court decision    2014
Final Recommended Plan             2011
Recommended Plan                      2009

 

Yukon puts new legal guns on Peel appeal

A Toronto-based law firm that specializes in international business has been hired to review the Peel land use planning court case for the Yukon government.

A three-man legal team from Torys LLP, which includes retired Supreme Court of Canada Justice Frank Iacobucci, replaces B.C. lawyer John Hunter on the controversial Peel lawsuit file.

Hunter unsuccessfully defended the government against the 2014 lawsuit launched by two Yukon First Nations and two environmental groups.They claimed the government's handling of the Peel land use plan violated the Yukon's treaties. After listening to five days of arguments and pouring through dozens of documents, Yukon Supreme Court Justice Ron Veale agreed.

In his Dec. 2 landmark ruling, he quashed the government's new Peel plan and ordered it return to the point in the planning process where it went off the rails. Veale also restricted the government's ability to reject the final recommended plan outright after conducting a final round of public consultation.

The government's decision to appeal Veale's ruling came as no surprise, but it angered many Yukoners who say the long and protracted legal battle is damaging the economy.

Now the government says it's "considering all its options" by hiring new legal counsel "to make recommendations to the Yukon government on how to proceed."

That could mean the government's thinking about dropping the appeal, but given its track record on the Peel it could also simply be another stalling tactic to give it time to sort out the growing suite of other legal hot potatoes, like the pending changes to environmental reviews of resource projects.

The new legal team "will engage in a thorough analysis of the record and give us their fresh views, with the objectivity that comes with being new to the matter," said assistant deputy minister of justice Mark Pindera.

As for a timeframe, the government has until the end of the month to file its written arguments but it could ask the Yukon Court of Appeal for an extension, said Pindera.

The court hasn't set a date to hear the case. The Yukon's appeal court is made up of three B.C. judges who usually only come to the territory once or twice a year to hear all the cases.

When the government filed its notice of appeal in late December, it told the media it needed "clarity" around the land use planning provisions of the Yukon's final land claim agreements. 

At the same time it imposed a ban on new mineral claim staking and oil/gas/coal dispositions in the Peel until the end of 2015.

FYI:
Yukon Supreme Court Peel decision
Yukon Supreme Court Peel media summary

ICYMI: Peel protection battle rages on

If you thought you'd return to the world after a two-week hiatus to find peace had finally returned to the valleys of the Peel watershed, you'd be wrong. Dead wrong.

Rather than use the festive season to spread goodwill and reconciliation, the mean-spirited Yukon government instead used the holidays to further fuel dissension and economic uncertainty: it filed its appeal of the historic Dec. 2 Peel land use plan court decision.

In a news release, it claimed it needs "clarity" on the issue of land authority, completely disregarding the deal it signed just 20 or so years ago in which it agreed to a co-management system. Cloaking what seems like a mission to "take out" the Umbrella Final Agreement, et al in an ill-disguised defence of so-called democracy, the government is turning to the Yukon Court of Appeal in a last desperate attempt to open the Peel to industrial development.

Here's a little "package" of Peel news stories for your reading pleasure:
Appeal has betrayed thousands, society says (Whitehorse Star, Dec. 31)
Public government must have a say: Kent (Whitehorse Star, Dec. 31)
Peel watershed: Yukon government files appeal (CBC Dec. 31)
Yukon government to appeal Peel ruling   (Yukon News   Jan. 1)
Here we go again (Yukon News editorial  Jan. 1, 2015)
Peel watershed: Gwich'in Tribal Council unhappy with appeal (CBC Jan. 6)  

And if you haven't read Yukon Supreme Court Justice Ron Veale's  Dec. 2 ruling on the lawsuit by two Yukon First Nations and environmental groups, you really should:
Peel land use plan lawsuit judgment (92 pages, find a comfortable chair) or the Media summary (just 4 pages for those on the fly). 

No date has yet been set for the appeal court hearing.

  

Everything's political

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.

 

 

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.” 

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.

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.