Lawyers debate future of Nova Scotia-sized Yukon wilderness

About 150 people gathered outside of the courthouse to silently protest the Yukon Government's land use plan for the Peel watershed, the subject of a major court battle that got underway in Whitehorse yesterday.

Crowds gathered, both in and out of the courtroom, on day 1 of Peel watershed land use trial

The Yukon chapter of the Canadian Parks and Wilderness Society holds a silent vigil outside the courthouse on the opening day of the trial over land use planning in the Peel watershed, a wilderness the size of Nova Scotia. Inside, the courtroom inside was packed with spectators from First Nations groups, environmental organizations, the mining industry and the general public. (Philippe Morin/CBC)

People gathered both inside and outside of the Yukon Supreme Court yesterday as opening arguments got underway in the Peel watershed land use trial in Whitehorse.

First Nations and environmental groups are demanding the Yukon government implement a land use plan for the Peel watershed — an area the size of Nova Scotia — that took an independent commission six years to write.   

The Peel watershed covers an area the size of Nova Scotia. (CBC)
With a video camera rolling and still cameras flashing, half a dozen black-robed lawyers took their places in the Yukon's largest courtroom, packed with spectators from First Nations groups, environmental organizations, the mining industry and the general public. 

Interest in the case is so high that for the first time, the court allowed limited use of cameras inside the courtroom. Yukon Supreme Court Justice Ron Veale also opened a second courtroom with a video feed to handle the overflow of spectators.

Outside the courthouse, about 150 people organized by the Yukon chapter of the Canadian Parks and Wilderness Society held a silent vigil over the noon hour. 

Thomas Berger, the lawyer representing the First Nations and environmental groups in the Peel watershed trial. (Brian Boyle/CBC)
In 2011, the Peel Watershed Planning Commission released its final land use plan for the 67,000 square kilometres of wilderness in northern Yukon. The plan, created over five years at a cost of $1.6 million, called for 80 per cent of the watershed to be withdrawn from any industrial development, including mineral staking.  

Following the 2011 territorial election, the Yukon Party government rejected the commission’s land use plan and developed its own plan, which it released in 2012 and approved in January 2014. It provides protection from development of less than 30 per cent of the land.

The Nacho Nyak Dun First Nation, the Tr'ondek Hwech'in First Nation, the Canadian Parks and Wilderness Society Yukon and the Yukon Conservation Society filed a lawsuit saying the new plan violates land claims signed with First Nations.

They want to force the Yukon government to accept the original plan, but the government is arguing it had the right to amend it to allow more mining access.

Opening arguments

Well known former judge, Thomas Berger, is arguing for First Nations and environmental groups.

John Hunter, the lawyer representing the Yukon government in the Peel watershed trial. (Brian Boyle/CBC)
In his opening argument, he said the original Peel plan was carefully crafted, involved years of consultation and should not have been changed against the wishes of the independent commission that put it together.

"A community-based plan, binding on all parties including the Yukon Government,” he said. “That is the process that produces the approved plan. It is not one that the government can take upon itself to determine.

"The obligation to First Nations cannot be strictly a legal one, which separates words from their purpose.”

Government lawyer John Hunter says the government has the right to do what it did, and the authority is clearly written in Yukon land claim treaties.

Land claims make up just three per cent of the the Peel River watershed. Ninety-seven per cent of the area is Crown land.

"With respect to settlement land, the First Nations have the final say on land use planning. With respect to non-settlement land, the government of Yukon has the final say,” Hunt said.

The arguments are expected to take the rest of the week.

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