Yukon North Of Ordinary

News archive for January 28, 2014

Berger explains rationale for lawsuit filed Monday

The Yukon government had no authority to reject the final recommended plan, reads the statement of claim filed yesterday in Yukon Supreme Court by renowned aboriginal rights lawyer Thomas Berger.

By Ainslie Cruickshank on January 28, 2014 at 4:22 pm


Photo submitted

PEEL PLAN CHALLENGED – Two yukon First Nations and two local environmental organizations announced monday in Vancouver they were filing a legal challenge of the yukon government’s peel land use plan. From left to right are Gill Cracknell, the executive director of the Canadian parks and Wilderness society yukon, Tr’ondëk hwëch’in Chief Eddie Taylor, margaret Rosling, legal counsel, Thomas Berger, legal counsel, Na-cho Nyak Dun Chief Ed Champion, and Karen Baltgailis, the executive director of the yukon Conservation society. Photo by MICHAEL J.P. HALL

The Yukon government had no authority to reject the final recommended plan, reads the statement of claim filed yesterday in Yukon Supreme Court by renowned aboriginal rights lawyer Thomas Berger.

Berger is representing the First Nation of Na-cho Nyak Dun, the Tr’ondëk Hwëch’in, the Yukon Conservation Society, and the Canadian Parks and Wilderness Society Yukon chapter in a challenge of the Yukon government’s Peel Watershed land use plan.

According to the statement, YTG’s plan is in essence a rejection of the commission’s final recommended plan, regardless of the government’s insistence that it is simply a modification.

The government’s plan allows mineral staking in 71 per cent of the Peel, and protects 29 per cent from any new staking. The plan respects existing claims in protected areas and allows for roads to access those claims.

The final recommended plan called for permanent protection of 55 per cent of the Peel and 25 per cent for an interim period of time. It also respects existing claims in protected areas but didn’t allow for road access in those sections. Under the commission’s plan, 20 per cent of the region would have allowed new staking.

The four-affected First Nations, including the Gwich’in Tribal Council and the Vuntut Gwitchin, announced earlier this month that they would implement the final recommended plan in their settlement lands.

Berger argues that the Yukon government should have implemented that plan too.

Under the Umbrella Final Agreement (UFA) of 1993, the government’s only legitimate option would have been to implement all the modifications proposed by the previous Yukon Party government in 2011 following the release of the planning commission’s recommended plan, he says.

Some, but not all, of the modifications proposed by then-Energy, Mines and Resources minister Patrick Rouble were implemented. Those that weren’t implemented didn’t qualify as modifications under relevant sections of the UFA, Berger notes in the statement.

He goes on to argue that the Yukon government forfeited any right to implement the proposed modifications that were not included in the final recommended plan when it opted to consult on a separate, unilaterally developed plan between late 2012 and early 2013.

The plaintiffs, he concludes, are seeking a declaration from the courts that the final recommended plan is the “binding regional land use plan” under the Umbrella Final Agreement and the law of the Yukon.

Neither CPAWS Yukon nor the Yukon Conservation Society would provide specific information about the outside funding sources they are accessing to help pay for the suit. Both First Nations governments and environmental organizations are contributing, as well as national and international foundations.

Gill Cracknell, the executive director of CPAWS Yukon, said today that the plaintiffs were advised by their legal counsel not to share information about the source of funding. She also noted some funders may prefer to have that information kept private.

At a press conference officially announcing the suit held yesterday in Vancouver, Berger said it was the actions of the Yukon government that forced the plaintiffs to take legal action – a sentiment echoed by the plaintiffs themselves.

“Yukon government has betrayed the public trust by ignoring the wishes of the affected First Nations and Yukon public,” Karen Baltgailis, the executive director of the Yukon Conservation Society, said during the announcement. “Yukon government’s plan turned the commission’s plan literally on its head. The commission’s plan allowed roads and industry in 20 per cent of the watershed. The government’s plan allows roads and industry in more than 71 per cent of the watershed.

“Is it really too much to ask that some priceless places remain free of roads and industrial development? The Peel watershed is worth so much more for cultural values, wildlife, as a carbon sink, as a refuge from climate change, and for wilderness tourism than it is for mining,” she noted.

Perhaps no one is as familiar with the Peel’s value than the First Nations who’ve inhabited the region for millennia.

“As our elders say the Peel is our church, our university and our bread basket. It keeps our spirits, our minds, and our bodies. It is a God-given treasure that we want our grandchildren and your grandchildren to inherit, the same way we inherited it,” said Tr’ondëk Hwëch’in Chief Eddie Taylor.

Taylor highlighted the strong relationship between his First Nation and mining companies that has developed over the past century.

But that relationship doesn’t extend to the Peel.

“We do not want to see mining in the Peel watershed. To us that land and water is sacred and should be preserved for generations,” he said.

Na-cho Nyak Dun Chief Ed Champion noted Tuesday that the four affected First Nations initially wanted 100 per cent protection of the Peel Watershed and eventually compromised to accept 55 per cent permanent protection as recommended in the commission’s final plan.

The government’s decision to implement its own plan not only throws out seven years of the commission’s work to develop the final recommended plan, it also undermines Yukon First Nations’ final agreements and creates uncertainty for the resource sector, he said.

“According to the feds there are $650 billion of natural resources on, near, or under First Nations lands across Canada,” Champion noted, adding if resource companies want to develop those resources there needs to be trust, certainty, and equity between First Nations, public governments, and industry.

“Yukon First Nations fought hard and long for their self-government agreements and will not tolerate them being so blatantly disregarded by this new Yukon government,” he said.

The Yukon government would not comment on the case in time for today’s paper. A cabinet spokesperson said the minister of Energy, Mines and Resources needed to review the details of the case before commenting.

The Yukon government has 14 days from Tuesday to file its statement of defence with the Supreme Court of Yukon.

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Jan 28, 2014 at 9:11 pm

There is an error with respect to the deadline for the Statement of Defence. Pursuant to Supreme Court of Yukon Rules, the Defendant has 7 days from the date of service (not including the date of service itself) to file their Appearance in this matter. From there the Defendant has 14 days either from the date they file their Appearance or the date which the Appearance was due to file their Statement of Defence. Therefore, the deadline for filing has not yet been determined until such time as the date of service of the Statement of Claim upon the Defendant is known.

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