Prohibiting road or rail access to mineral claims inside the Peel watershed would not require compensation paid to mining companies, says lawyer Thomas Berger.

In a legal opinion prepared by Berger last year, the renowned Canadian lawyer says restricting surface access by designating protected areas inside the watershed would not amount to expropriation of mineral claims.

The opinion was prepared in April 2013 for the Yukon Conservation Society and the Canadian Parks and Wilderness Society.

It was released Thursday as the issue of compensation for mining companies came up again in the legislature this week.

Executive director Karen Baltgailis of the conservation society said they asked Berger to look into the matter when the issue of compensation was hot and heavy last year.

Premier Darrell Pasloski and his ministers have suggested in the past and recently that if they adopted the maximum wilderness protection called for in the land use plan recommended by the Peel planning commission, Yukoners would be bankrupt.

Isolating mineral claims by establishing protected areas and preventing surface access would require huge amounts of compensation to mining companies, they maintain.

Berger says that's not the case, citing case law from the Supreme Court of Canada.

Baltgailis said they did not release the legal opinion last year, opting to keep it in their back pocket.

"When they started talking about it again in the legislature this week, we felt we needed to let the public know they really are fear mongering,” she said.

The conservation society, CPAWS and two First Nations are heading to the Yukon Supreme Court in early July to challenge the Yukon government's rejection of the planning commission's recommended land use plan.

They argue the government negotiated in bad faith, and was well beyond its legal ability to reject the plan when it did – at the 11th hour.

Berger is their lawyer for the case. He was expected to file his legal arguments with the court this afternoon.

The government issued its own modified land use plan last January, calling for much less wilderness protection.

Its plan, the government insists, provides a more balanced approach, with provisions for wilderness protection and opportunities for future development.

In the land use plan recommended by the commission, approximately 80 per cent of the watershed would have been protected, with no road nor other surface access allowed.

Berger's legal opinion says the Supreme Court of Canada has ruled there must be two conditions present in order to find that a land zoning decision amounts to de facto expropriation.

First of all, the Yukon government must benefit from the zoning decision, says the legal opinion.

Berger says if the Yukon government did implement the original recommended plan, there would be no benefit gained by the government.

Secondly, Berger goes on to say, the zoning or rezoning of land must remove all reasonable uses of the land.

"Thus the economic value of the land to the owner of the mineral claim must be reduced to the point where it is of no real use for exploiting minerals,” writes Berger.

"It could be argued this would be the outcome under the FRP (final recommended plan), since there would be no access except by air.

"Let me repeat: The law in Canada, as enunciated by the Supreme Court, is that both conditions must exist for there to be a de facto expropriation and thus a right to compensation.

"In this case, there would be no acquisition by YG (the territorial government) of a beneficial interest in any mineral claim or in any other property.

"So YG would have no legal obligation to pay compensation,” Berger concludes.

In response to a question by Liberal Leader Sandy Silver in the legislature last week, Energy, Mines and Resources Minister Scott Kent said: "The Liberal Party and the New Democratic Party chose, during the election campaign and before, to endorse the final recommended plan of the Peel Watershed Planning Commission.

"But I'm very interested to hear where they would have gotten the money to purchase those claims from those existing claim holders and to buy that out, because that is something we were not willing to do – which was to put in jeopardy Yukon's future and perhaps bankrupt the territory as the Liberals and the New Democrats would have done.”

During question period earlier this week, NDP MLA Jim Tredger suggested with all the talk about having to pay compensation, it's as though the Yukon Party is hoping to pay "speculative” resource companies large amounts of money.

"Those are alarming statements....” Kent said in reply.

The government has no intention of expropriating mineral claims, he noted, because doing so would send shock waves through the investment community.

"Once again, Yukon government is saying in the legislature that if the Final Recommended Plan for the Peel watershed was implemented, the taxpayer would be on the hook to pay compensation to mining companies with existing claims in the watershed,” Baltgailis said.

"Mr. Berger's 33-page, carefully reasoned and researched legal opinion shows that this simply isn't true.”

Baltgailis said she's wondering where the Yukon government is getting its legal advice that it would have to pay compensation, given Berger's legal opinion.

Furthermore, she pointed out, the vast majority of the 8,996 claims inside the watershed were staked after the land use planning got underway in 2004.

Surely the companies recognized their interests in the region could be affected by the planning exercise and the creation of protected areas, she said.

Samson Hartland of the Yukon Chamber of Mines said this morning Berger's opinion is just that – an opinion.

"We have a different opinion,” he said.

Hartland said there's been some $50 million invested by exploration companies working inside in the Peel in the last decade.

There has also been a significant amount of uncertainty and impairment caused by the Peel planning exercise and the four-year moratorium on staking more claims that was lifted last January when the government released its modified plan, he said.

Hartland said he would not be surprised to see court action from mining companies arising from the Peel land use process, regardless of what happens in court and regardless of Berger's opinion.

Some companies have been significantly affected, he said.

"You don't think there should be some consideration of the amount of investment I have put into the land?” he asked. "I may be a layman here, but I think there is an argument to be made.”

The premier was away travelling this morning and unavailable for comment.

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