Plaintiffs argue case for Peel protection

This week lawyers are arguing in front of Yukon's Supreme Court to decide the fate of the Peel River watershed.

This week lawyers are arguing in front of Yukon’s Supreme Court to decide the fate of the Peel River watershed.

The 68,000-square-kilometre swath of largely undisturbed wilderness is at the centre of a debate over the limits of aboriginal rights in the Yukon.

The outcome of the case is poised to ripple across the country.

When Yukon First Nations signed treaties with Canada and the Yukon 20 years ago, they gave up aboriginal title to the vast majority of their lands in exchange for smaller parcels of land, money and certain rights.

One of those rights is to participate in land management decisions on Crown lands.

The central question of this week’s trial is not how much of the Peel watershed should be protected from development, but the limits of the Yukon government’s power to ultimately decide that question.

On Monday elders and chiefs who came to witness the proceedings from remote Yukon and N.W.T. communities filled more than half the courtroom. The remaining benches were filled by journalists and bureaucrats, forcing more than 100 interested members of the public to watch by live feed from a nearby room.

Justice Ron Veale has been charged with determining if the Peel Watershed Planning Commission’s final recommended plan or the Yukon government’s plan should be considered the legally binding document.

The commission spent seven years consulting with the government, First Nations and communities to develop its plan, released in 2012, which calls for a ban on new roads and development in 80 per cent of the watershed.

But the Yukon government did not like that plan, and drafted its own. In that plan only 29 per cent of the area is protected from new mineral staking. New road construction is not ruled out anywhere in the watershed.

Over two days famed aboriginal rights lawyer Thomas Berger has argued that the commission’s plan must be considered approved and binding on the Yukon government, because it is the only plan that flows from the process outlined in the First Nations’ treaties.

Berger represents the First Nation of Nacho Nyak Dun, the Tr’ondek Hwech’in and conservation groups.

Those First Nations are signatories to the Umbrella Final Agreement, the document enshrined in treaties and the Constitution of Canada that describes the process for land use planning in the Yukon.

Under the process, the planning commission must produce after extensive consultation a recommended plan.

Then the government and First Nations must consider that plan and approve it, reject it or propose modifications to it.

In this case, the government elected to propose modifications to the plan. It asked generally for more areas open to development and more options for access, as well as for some specific modifications.

Then the commission reconsidered the plan and produced its final recommendation, as required by the process.

The First Nations and the government then have the option to approve, reject or modify the plan as it relates to lands under their jurisdiction.

But when the the Yukon government then set out to develop its own plan, separate from the process, it “went off the rails,” argued Berger.

The government was not within its rights to propose new modifications after the final plan was developed, he said.

It’s important because the final plan must flow from the dialogue between the parties and the commission, and the required public consultations after that, Berger argued.

The government’s plans were concocted after the commission’s work was done. The commission never participated in its drafting nor considered its implications.

The Umbrella Final Agreement clearly spells out an ongoing role for the commission in implementing the plan. It would be absurd for it to have such a role in a plan it has never considered, said Berger.

The commission’s final recommended plan must therefore be ruled the approved plan for the Peel watershed, binding on all parties including the Yukon government, Berger concluded Tuesday afternoon.

“If the court finds that greater care should have been given to proposed modifications offered by the government at the earlier stage, and that consultations must flow from dialogue between the parties and the commission, that will be of very real usefulness to all parties,” said Berger.

It would uphold the integrity of the UFA and provide a landmark for all future land use planning exercises, he said.

Jeff Langlois, counsel for the Gwich’in Tribal Council, made a brief submission as an intervenor in the case.

The council represents the Gwich’in people of the N.W.T.‘s Mackenzie Delta, including communities located within the Peel watershed downstream from the Yukon.

The council is not a signatory to the Umbrella Final Agreement, but has provisions in its final agreement for participation in land use planning for the Peel watershed.

Langlois argued that the court must rule in the interest of dialogue and reconciliation between the Yukon government and First Nations.

A narrow, contractual interpretation of the treaties would undermine relationships with First Nations and dissuade unsigned First Nations from entering into treaties, he said.

He asked why a First Nation would trade the uncertainty of common-law aboriginal rights for legally enshrined rights that are interpreted narrowly at every turn.

In order for the land use planning process to meaningfully function, there must be limits to the authority of the Yukon government over Crown lands, said Langlois.

It might have to submit to co-operative process and live with compromise, he said.

“Reconciliation requires very hard work,” said Langlois.

John Hunter, counsel for the Yukon government, will argue today that the government must retain the ultimate decision-making power over non-settlement lands, just at First Nations retain it over settlement lands.

“At the end of the day, somebody has to be responsible for making a decision,” he said in a news conference following Tuesday’s court session.

First Nations have a right to participate in decisions regarding land use planning on Crown lands but not a right to determine the outcome, he said.

“There’s quite a lot of involvement by First Nations in the planning process,” said Hunter.

“I think there’s a lot of reason why this process is a good one and First Nations ought to feel that they have significant involvement in it, even if at the end of the day, it doesn’t work out exactly the way they want it to.”

Hunter is scheduled to make his arguments to court Wednesday morning, after which Berger will have an opportunity for reply.

The trial is scheduled through Friday, although Hunter said the proceedings are likely to wrap up Wednesday afternoon or Thursday morning.

Contact Jacqueline Ronson at