Thomas Berger, a prominent Vancouver lawyer who is an authority on northern development and aboriginal policies, is headed to court on a major case that involves an iconic wilderness area and questions of native rights.
Set to open in Yukon Supreme Court next Monday, the case pits Mr. Berger’s clients, Yukon First Nations and environmental groups, against the Yukon government in a fight over the future of the Peel River watershed.
At stake is the issue of how much of the sweeping, dramatic wilderness in the northeast corner of the Yukon should be protected from development and what authority the government has over the lands.
Karen Baltgailis, Peel Watershed Co-ordinator for the Yukon Conservation Society, said the area became the focus of a heated land-use debate about a decade ago, when aboriginal groups and environmentalists began campaigning to have it protected.
Those out to save the Peel watershed, a rugged landscape covering 54,000 square kilometres, wanted the entire area put off limits to resource development, while the government sought much broader access.
After seven years of consultation and research, the Peel Watershed Planning Commission – a collaborative process established under Yukon land-claims agreements – recommended a plan that would have protected about 80 per cent of the area.
Ms. Baltgailis said the public was shocked when the Yukon government rejected that plan, however, and imposed its own proposal, keeping resource options open in a much wider area.
“People were very upset. I think everybody … felt betrayed that government would invent its own plan behind closed doors,” she said. “The plan they adopted in January, 2014, is the opposite of the final recommended plan. The Yukon government’s plan opens more than 70 per cent of the watershed to roads and industry, whereas the commission’s plan would protect 80 per cent.”
Ms. Baltgailis said the Yukon case will examine the legality of that process, and her hope is that it will lead to reinstatement of the commission’s recommendations.
Mr. Berger, who headed the Mackenzie Valley Pipeline Inquiry in 1977, which opted for native rights and environmental protection over industrial development, couldn’t be reached for immediate comment. But Ms. Baltgailis said he will basically be arguing that the Yukon government could not simply reject the commission’s plan out of hand.
An outline of argument filed by Mr. Berger seeks a declaration that the commission’s final recommended plan is binding on the Yukon government.
Ms. Baltgailis said the landmark aboriginal title case handed down by the Supreme Court of Canada last week, concerning the land title rights of the Tsilhqot’in Nation, may not be directly applicable to the Yukon case. But she said the B.C. case forms a dramatic legal backdrop to the one unfolding in the Yukon, because it underscored the importance of wilderness areas to the cultural values of First Nations.
“We’ll have to leave it up to the legal experts to determine the significance [of the B.C. case] for the Yukon and for the rest of the North, but it certainly is an exciting decision,” said Ms. Baltgailis. “It’s a landmark decision and we anticipate there will be even more interest in our Peel watershed case as a result of this groundbreaking Tsilhqot’in case.”
A Yukon government spokesman said officials were not available to comment.
However, an outline of argument, filed by the Yukon government, notes that comprehensive land-claims agreements have been signed with all 15 First Nations in the territory, and that those agreements clearly define native rights in respect to land tenure.
The government claims that under those agreements, First Nations retain jurisdiction over settlement lands, but the government has rights over other Crown lands, which include most of the Peel watershed.
The Yukon government also maintains the commission’s plan for the Peel watershed was simply a recommendation, which the government could accept, reject or modify.
The Yukon case is set to run from Monday to Friday next week.