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.”