Peel protection legally sound: Berger

Lawyer Thomas Berger has concluded in a legal opinion that the Yukon government would not have to pay claim holders in the Peel if it were to accept the planning commission's final recommended plan.

Lawyer Thomas Berger has concluded in a legal opinion that the Yukon government would not have to pay claim holders in the Peel if it were to accept the planning commission’s final recommended plan.

The government has insisted that implementing that plan, which protects 80 per cent of the Peel watershed from road construction, would result in costly lawsuits from companies with mineral claims in the area.

According to a summary of Berger’s findings, this would not be the case.

“It is vital to keep in mind that instituting a program of land use planning is not the same thing as expropriation,” Berger wrote in a letter to the Yukon Conservation Society and the Canadian Parks and Wilderness Society Yukon.

In a 2006 decision, the Supreme Court of Canada found that in order for de facto expropriation to have occurred, the government must have acquired beneficial interest in the land in question, according to the letter.

The Yukon government will not acquire any interest in the protected lands of the Peel watershed through the implementation of the final recommended plan, and will therefore owe claim holders nothing, Berger wrote.

Berger will represent the two conservation groups, as well as the First Nation of Nacho Nyak Dun and the Tr’ondek Hwech’in, in court in July. Plaintiffs filed an outline of their arguments in Yukon Supreme Court on Friday.

Berger will argue that the only legal plan for the Peel is the one recommended by the planning commission.

The Yukon government has since announced its own plan for the Peel, which opens 71 per cent of the area to new staking and doesn’t rule out the development of roads anywhere in the watershed.

According to the statement of claim, that plan is illegal because it runs afoul of the land-use planning process outlined in final agreements with the First Nations.

Contact Jacqueline Ronson at

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