We'll See You in Court
By Genesee Keevil
Thomas Berger is headed north again, this time to argue for greater protection for the Peel River watershed.
The Peel River watershed, in the northeast corner of Yukon, is one of North America’s largest intact wilderness ecosystems. Here, grizzly bears outnumber people 100 to one. No roads lead into
the region, roughly the size of Scotland, and few Yukoners have ever seen it. But for all its remoteness, the Peel River watershed is a cornerstone of Yukon’s identity — a testament to pristine northern environments.
Today, it is also the subject of a lawsuit before the Yukon Supreme Court, which may lead to a landmark legal decision for both conservation and aboriginal rights.
The suit has been brought by Yukon First Nations over a recent territorial government decision to open large tracts of the Peel watershed to resource development, despite the outcome of a land-use planning process established under Yukon land claims. Leading the arguments? Thomas Berger, the retired British Columbia judge who oversaw the historic Mackenzie Valley Pipeline Inquiry in the 1970s and many more groundbreaking aboriginal rights cases.
“This is a lawsuit nobody wanted to bring,” Berger said during a press conference earlier this year to announce the suit. “But the Yukon government has forced these plaintiffs to go to court not
only in defence of First Nations and environmental values in Yukon, but also to uphold principles entrenched in the Constitution.”
The background to this story begins in 2004, with the formation of the Peel Watershed Planning Commission, established under the Yukon land claims process to develop a land-use plan for the Peel area. In 2011, the watershed commission released its final recommendations, calling for permanent protection of 55 per cent of the watershed. A further 25 per cent was to be protected on an interim basis, while the remaining 20 per cent would be open to a variety of uses, including resource development.
In January of this year, the Yukon government announced its intention to implement a land-use plan for areas not owned by First Nations under land claims that considerably reduces the level of
protection recommended by the commission. Under its proposal, only 29 per cent of the Peel watershed would receive permanent protection, while 44 per cent would be designated as “restricted use
wilderness,” which would permit resource development under specific conditions. The remaining areas would be open for industry, meaning as much as 71 per cent of the watershed not subject to land claims would potentially be available for industry.
For the communities behind the lawsuit, the government proposal flies in the face of the watershed commission’s work. “The Yukon government discarded years of work done by the Peel commission,” Berger said of the government’s plan. “It’s ignoring the views of First Nations, Yukoners and affected communities.”
For its part, the Yukon government argues its plan does more to recognize existing mineral interests in the region and, through cautious management of future development, will achieve conservation
goals while creating economic opportunities.
The big question, however, is whether the Yukon government — right or wrong — even has the authority to unilaterally undo the work of the watershed planning commission. When the case goes to trial in Yukon Supreme Court this month, Berger will argue that the territorial government decision does not stand up under Canadian law, given the watershed commission’s foundation in constitutionally protected land-claim agreements.
“This is the first real test whether governments are obliged to live up to those land-claim agreements entrenched in the constitution of Canada,” Berger said, “or whether it was all just a glorified photo op.” The Yukon Supreme Court is scheduled to start weighing that question on July 7.