The historic trial over the fate of the Peel watershed ended just before noon on Thursday.
While the outcome of the case will determine how much of the Peel’s 68,000 kilometres of largely-undisturbed wilderness will be open to industrial development, the central question of the trial was not about conservation.
Instead, it’s about First Nation rights, agreements and process.
At the centre of the dispute is whether or not the Yukon government said clearly enough what it wanted out of the land use planning process at the appropriate time, and whether or not it should have.
The Peel Watershed Planning Commission was established in 2004, with its members nominated by the Yukon government and participating First Nations.
The process for the commission’s work is laid out in the Umbrella Final Agreement and the subsequent treaties signed by 11 Yukon First Nations – agreements that are enshrined by law in Canada’s Constitution.
The commission took seven years of consultation to produce its final recommended plan for the Peel, which set aside 80 per cent of the watershed from new industrial development.
But it wasn’t until after the commission had finished its work that the Yukon government said in detail what it would like to see in a land use plan, according to the plaintiffs.
At that point the government drafted its own plans, which protect only 29 per cent of the watershed from new mineral staking.
The Yukon government must be bound to the plan produced through the process, argued Thomas Berger, the famed aboriginal rights lawyer, earlier this week.
John Hunter, counsel for the Yukon government, made his arguments to Yukon Supreme Court Justice Ron Veale on Wednesday.
He argued that the Yukon government was forced to make hard decisions at the end of the process because the commission failed to make them.
Hunter called the commission’s plan a “non-planning plan” because it sets aside the majority of a Peel from development until such a time as society is more in agreement about opening it up.
The commission “went back into its shell” early on and said, “Let’s just leave it for future generations to figure out,” said Hunter.
He argued that the commission knew what the government meant when it formally requested for a more balanced plan with more options for access, and they could have dealt with these requests if their minds had not been already made up.
When the government asked for these changes, it did not give any detailed proposal on how these goals might be accomplished, nor did it supply reasons, as required under the UFA.
But it wouldn’t have mattered, argued Hunter. The commission had made up its mind on the management direction for the Peel, and there’s no evidence that a specific proposal from the government would have swayed them, he said.
“You have no faith in the process,” interjected Veale.
Hunter also argued that it would have been inappropriate for the Yukon government to advance specific ideas while the commission had not yet completed its work.
People would protest that the government was “usurping the role of the commission,” he said.
The commission seemed to have no problem dealing with general requests for revisions, said Hunter.
It managed just fine to deal with other requests, including consolidating some of the planning zones and coming up with a clearer, more user-friendly document.
Hunter argued that the government’s plan is not all that different from that developed by the commission, and builds on the work done earlier.
The government should not be constrained to ideas brought up earlier in the process, but plans should change and evolve as new information becomes available, he said.
Veale asked if maybe the government could have come up with such ideas at an earlier stage.
“Didn’t seven years suggest that its time to put your mind to it in that seven-year period?”
Berger, representing the First Nation of Nacho Nyak Dun, the Tr’ondek Hwech’in and conservation groups, replied Thursday morning to Hunter’s arguments.
He quickly dismantled Hunter’s assertion that requests for consolidated planning areas and a streamlined document were as vague as requests for a “more balanced” plan with more considerations for access.
The government in fact had advanced very detailed proposals about what land management units might be consolidated and how the flow of the plan might be improved. It had not done so for questions of protection and access.
He also denounced Hunter’s “attack” on the integrity of the commission.
“There is no evidence to support any of these allegations against the commission.”
A specific proposal advanced by the government at an earlier stage may have resulted in a public outcry, but it would have been the right thing to do, he said.
“It might have been a hard decision to make, but that was the point at which to make it.”
Hunter dismissed the commission as “just a work horse,” as if the process outlined in the treaties is a simple information-gathering exercise that constrains in no way the government’s ultimate authority over the land, said Berger.
“They took the ball and went home with it, and said, ‘If we don’t do this our way, there will be no plan.’”
After receiving the final recommended plan, the government abandoned the process and “went on this frolic of their own.”
The plaintiffs have asked from the beginning that the commission’s plan be upheld by the court as the approved plan binding on all parties.
But Hunter suggested that if the court strikes down the government’s plan, there would be no plan, since only the government has the authority to approve a plan.
Berger suggested as an alternate remedy that the court instruct the government to go back out to consultation on the commission’s plan alone, and then to approve, reject or modify that plan based on the instructions of the court.
Those instructions should make plain that the government could not reject the plan, since it had only requested modifications at an earlier stage in the process, he argued.
Further, any modifications made to the plan must follow from the specific proposals advanced at the earlier stage of the process.
This would leave the government with no choice but to ultimately approve the final recommended plan, with no ability to modify either the level of protection or the level of access.
Hunter called this proposal “a trick, a game,” because it would tie the government’s hands.
Since the government would be unlikely to approve the final recommended plan, “Where are we? What is the point?” he asked.
He suggested instead that, if the court considers an alternate remedy, the commission be resurrected to fully consider the government’s plans.
After this step, according to the plaintiff’s logic, the government could ultimately insist on those plans after they have been given consideration by the commission, First Nation and the public.
But it would not be in keeping with the honour of the Crown to allow the government to return to this earlier step, already lawfully completed, responded Berger.
The government “should not benefit from their unlawful conduct,” he said.
Berger said that Hunter’s assertion that the government would not approve the commission’s plan even if bound to do so by the court “portrays in a nutshell the behaviour of the Government of Yukon.”
“You can count on the Government of Yukon to obey the law,” responded Hunter.
In closing the trial, Veale lauded both lawyers as “seasoned and civilized counsel” who presented “excellent submissions” and treated the process seriously.
It is now up to Veale to weigh the arguments and reach a decision.
It will likely be weeks or months before a judgement is delivered.
Contact Jacqueline Ronson at