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.

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. 

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.

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.