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Thomas Berger Defends the Peel Watershed

Respected lawyer argued that the detailed land-use planning process legislated through Yukon land claims agreements was not followed by government.

By Karen Baltgailis (Yukon Conservation Society)

Renowned lawyer Thomas R. Berger has just finished arguing a landmark constitutional case in Yukon Supreme Court, with the goal of protecting an area more than six times the size of Yellowstone National Park at the apex of the Y2Y conservation corridor.

On behalf of his clients, the First Nation of Nacho Nyak Dun, Tr’ondëk Hwëch’in, Canadian Parks and Wilderness Society Yukon Chapter (CPAWS Yukon) and the Yukon Conservation Society (YCS), Mr. Berger argued that the courts should force the Government of Yukon to implement a land-use plan that would protect more than 54,000 square kilometers (20,849 square miles) of wilderness in northern Yukon’s Peel River Watershed from mining and industrial development.

The First Nations and conservation groups were forced to go to court because the Yukon government ignored the Final Recommended Plan produced by the Peel Watershed Planning Commission. Instead it adopted its own unilaterally developed plan in January 2014.

The Commission’s plan would protect 55 percent of the Peel watershed permanently, and 25 percent until future plan reviews. If adopted this would create the largest protected area in the Y2Y region. In contrast, the government’s plan opens more than 70 percent of the watershed roads and industry.

Peel Court Case

Mr. Berger argued that the detailed land use planning process legislated through Yukon land claims agreements was not followed by government.

After the Commission was dismantled the government “went off the rails” by introducing new land-use designations and proposals for the Peel watershed during consultations with affected First Nations and the public. The government had no authority under the treaty mandated process to introduce new proposals, and ultimately to adopt a whole new plan, at the tail end of the process.

Yukon Government’s legal counsel argued that government has the right to make decisions regarding non-settlement lands within the Peel Watershed, which account for 97 per cent of the watershed.

Mr. Berger said that government is acting as though the land-claims agreements were never signed, and that government has failed to observe the honor of the Crown by acting as though the Commission’s Plan has no more standing than a document they might have found on the internet.

Plaintiffs and Council. Photo: Jannik Schou

Both Courtroom 1, where the case was taking place, and a second court room with live video of the proceedings, were standing room only throughout the four days of the trial. More than 50 elders from Mayo, Dawson and Mackenzie Delta communities joined First Nation leadership to witness the historic proceedings. A silent vigil drew hundreds of people to the steps of the Law Courts. Hundreds also attended the Voices of the Peel celebration the evening of the final day in court.

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