Whitehorse Daily Star

Image title

Photo by Vince Fedoroff

TAUNT REPLY – Renowned lawyer Thomas Berger says the Yukon government missed the boat with its plan for the Peel.

Berger rebutts Peel arguments from Yukon government

In Yukon Supreme Court Thursday, renowned aboriginal rights lawyer Thomas Berger drove home his argument that the territorial government’s approval of a plan for the Peel River watershed violated the Umbrella Final Agreement and the spirit of modern-day treaties.

By Christopher Reynolds on July 11, 2014

In Yukon Supreme Court Thursday, renowned aboriginal rights lawyer Thomas Berger drove home his argument that the territorial government’s approval of a plan for the Peel River watershed violated the Umbrella Final Agreement and the spirit of modern-day treaties.

Berger, representing two First Nations and a pair of environmental groups suing the government over the region’s land-use plan, said the territory was limited to modifications it proposed earlier but went ahead with drastically different ones at the last minute that opened the pristine expanse to development.

On the final day of a four-day trial deciding the fate of the Peel, the pioneering jurist insisted that to veer so sharply from the plan recommended by an independent planning commission constituted a major breach.

“That recommended plan is, as I urged before, the template on which the whole planning process is built,” Berger said.

“The government of Yukon has left the Umbrella Final Agreement behind ... which is in a sense the constitution of the Yukon.

“It might as well have been a report they found on the internet,” he added.

Berger tried to take apart the government’s argument that the planning commission failed “‘to make the hard decisions’ — and of course that was because they didn’t make the decisions, the Government of Yukon did.”

The arm’s-length body, which spent seven years on research and consultation before submitting a final land-use plan — which was ultimately rejected — was “treated as a work horse,” Berger said.

“They threw the commission under the bus — and it was their commission,” he said of the government.

The litigation, which culminated in Berger’s rebuttal yesterday, revolves around the parties’ interpretation of the land-use planning process outlined in Chapter 11 of the Umbrella Final Agreement — a comprehensive framing document incorporated into each of the land claim agreements between “treatied” First Nations and the government.

Berger said the consultation process between parties must not be rendered “ineffective” or redundant. The back-and-forth in the lead-up to a regional plan is “a Haida-type procedure,” he said, referencing a landmark Supreme Court of Canada decision from 2004 that broadened the government’s “duty to consult.”

Berger also cited top court precedents like last year’s ruling in favour of the Manitoba Metis Federation over a land deal the federal government failed to follow through on — in 1870.

The decision spoke to the “honour of the Crown,” which the territorial government has a duty to uphold along with the “integrity” of the Umbrella Final Agreement, Berger said.

He echoed the Supreme Court of Canada, saying First Nations must not be left “with an empty shell of a treaty promise.”

He asked Justice Ron Veale to declare the commission’s final recommended plan the official land-use plan, binding on the government.

As an alternative, he proposed that the planning process recommence at its second-last stage, forcing the government to consult with First Nations on the final recommended plan — rather than its own — before approving it.

John Hunter, the head lawyer for the government, said he was surprised by the alternative proposal.

“It’s really late in the day to get an alternative remedy,” he said outside court.

He added that while the case cuts to key issues of dialogue and reconciliation between First Nations and government, it may not resonate legally beyond the North.

“It will presumably have some considerable significance for Yukon natives. I don’t know that it will necessarily around the country,” he said.

“I think we had a good hearing but it’s in the hands of the judge now.”

Berger, however, said the case will echo across the continent.

“This will be the largest protected area in North America if we are successful,” he said.

“You know, when you’re 81, as some of us are, you realize the importance of preserving wilderness and preserving land in its natural state, and we should have within our country areas that are pristine and remain pristine.

“It’s our obligation to safeguard them. 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,” he said.

Veale has reserved judgment on the case.

The senior judge of the Yukon Supreme Court thanked the parties for their submissions and the public for respectful, attentive attendance throughout the proceedings.

The First Nation of Na-Cho Nyak Dun and the Tr’ondek Hwech’in, the Yukon chapter of the Canadian Parks and Wilderness Society (CPAWS) and the Yukon Conservation Society are all parties to the suit and see the government’s plan as a threat to preservation of one of the continent’s largest swaths of intact wilderness.

The Gwich’in Tribal Council, representing First Nations communities in the Mackenzie Delta, was granted intervenor status in the case, allowing the body to participate in court proceedings.

Gill Cracknell, the executive director of CPAWS Yukon, expressed satisfaction with how the hearing played out.

“I was very pleased with it,” she said. “I think Mr. Berger did an absolutely excellent job of making some very profound points which were very important, and he did it with great gravitas.”

The government plan, adopted last January, would open 71 per cent of the Peel’s metal-rich mountains, valleys and plateaus to new mineral staking, resource extraction and industrial roads.

Settlement lands — owned and managed by individual Yukon First Nations according to modern-day treaties — constitute less than three per cent of the region’s rugged sprawl, which contains a variety of mineral deposits.

The other 97 per cent — non-settlement land — belongs to the territory.

Many argue the mineral deposits are not economical, so setting the Peel aside as a wilderness area will not have any real negative impacts economically.

The Rocky Mountains reach into the southern end of the watershed, which unspools a series of wild rivers into the Peel River and ultimately the Beaufort Sea.

Both Courtroom 1, where the case was heard, and Courtroom 3, where court proceedings were video-streamed live, were standing room only all week.

More than 50 elders from Mayo, Dawson and Mackenzie Delta communities joined First Nation leadership to witness the historic proceedings.

On Thursday, elders and youth told stories, presented images and took part in singing and dancing at the Kwanlin Dun Cultural Centre.

An all-day fire circle was held there through the week.

Dawson City community members also held a noon prayer circle daily for the Peel at the Danoja Zho Cultural Centre.

Comments (8)

Up 9 Down 7

World is Changing and the Yukon Will change with it on Jul 17, 2014 at 10:52 am

The world is changing and the Yukon is changing. All the comments that make no sense do not help anything but create a bad environment for the facts of the situation.
Starting with the recommendations of changes to the Peel Plan is reasonable if you really take a look at it. You do not close off 80% of the land and never to be used. 29% is closed off for development. Any standard land plans will see 15% closed off. The any development groups that are funded by outside groups who have no interest are paying people to stop the Yukon from being developed or making negative influence on local groups. The miners are not happy because all the rivers are parks so no mining in these areas. History has shown that less than 1 or 2% of the Peel would be mined.
I would like to enjoy the Peel by having a road like the north or south canal so we all can enjoy it. Drive up to Mac Pass and see how beautiful it is. Yukon has lots of parks, what we need is an economy so our children can find a career here and stay and live here. Progress will come it is just a matter of when?

Up 12 Down 17

Yukoner on Jul 15, 2014 at 7:45 am

Pave the peel and be done with it. Hug a tree somewhere else.

Up 7 Down 14

Pro-Science Greenie on Jul 14, 2014 at 6:19 pm

The Peel planning process has been a mess of conflicts and lobbying right from the start so why not just start from scratch with a large Federal park as one of the options?

Up 11 Down 11

read not reed, ask not axe on Jul 14, 2014 at 4:17 pm

If you understood the statement which you just happened to rewrite and quote, "in a sense the constitution of the Yukon", you would know that it says nothing pertaining to a single ethnic group. The Yukon is diversified with people from many different parts of the world. His comment relating to the Umbrella Final Agreement is stating that it resembles what the Yukon is about. Don't add prejudice and drama on something so little. If thats the case you should go apply for TMZ or some other crappy gossip magazine

Up 15 Down 5

Reality bites on Jul 14, 2014 at 1:00 pm

This is for the comment from Derrick.
Racism springs from the lie that certain human beings are less than fully human. It's a self-centered falsehood that corrupts our minds into believing we are right to treat others as we would not want to be treated.

Alveda King

Up 14 Down 10

Chris M on Jul 14, 2014 at 8:51 am

If you'd read the Final Agreements, you'd know that they *are* in fact an important part of the present constitution of Yukon (and Canada). Those documents define rights not just for First Nations and their citizens, but for members of the public (including miners) as well. Ignorance of a fact does not negate said fact.

Up 13 Down 23

Derrick Brown on Jul 13, 2014 at 4:04 pm

The natives once again do what they do best, they make a lot of noise. They learned from kids, if you whine and make a lot of noise you usually get what you want. It works, so they will continue to use that tactic.

Up 25 Down 20

Just Say'in on Jul 12, 2014 at 10:21 pm

PLEASE! The Umbrella Final Agreement is NOT "in a sense the constitution of the Yukon". What a load of CRAP. How does he get away with saying that. He is just making things up. A constitution is "for all" not just one ethnic group.

Oh and Berger the word is "Consult" not "Capitulate". I can not believe these yoyos feel our elected officials should have no say. How is that democracy?

Add your comments or reply via Twitter @whitehorsestar

In order to encourage thoughtful and responsible discussion, website comments will not be visible until a moderator approves them. Please add comments judiciously and refrain from maligning any individual or institution. Read about our user comment and privacy policies.

Your name and email address are required before your comment is posted. Otherwise, your comment will not be posted.