Peel planning process went 'off the rails' says Thomas Berger

In Day two of the Peel watershed appeal, Thomas Berger, arguing on behalf of First Nations and environmental groups, told the bench that the Yukon government could have implemented its land use plan if it had followed all the steps in the process.

Lawyer for First Nations, environmental groups urges court to uphold lower court ruling

Agnes Mills, a Vuntut Gwitch'in Elder, thanks Thomas Berger, who is representing First Nations and environmental groups at the Peel Watershed appeal, during a break at the Yukon Court of Appeal on Friday. (Cheryl Kawaja/CBC)

In day two of the appeal of the Peel River watershed land use plan case, lawyer Thomas Berger told the bench the Yukon government ignored the rules that flow out of land claims.

Arguing on behalf of First Nation and environmental groups at the Yukon Court of Appeal, Berger said Yukon's last response to the planning commission was too vague. He said written reasons for modifications to the plan needed to be presented to communities. 

"The Yukon ... tried to substitute a plan of their own that nobody had seen or commented on, to substitute it for the Peel Commission's plan which had taken years to develop."

In good faith? 

The Yukon government launched the appeal in December 2014, hoping it would overturn a lower court decision that quashed its land use plan for the Peel region. 

When Berger was asked, by the bench, if the end result would have been the same if the territorial government had gone through the commission with its last modifications and followed the process, Berger took a moment to reflect. 

He said the government could have implemented its plan if it had followed all the steps in the process, but that it would have had to go back to consultation after it made its last modifications. Berger added the government would have had to do that in good faith. 

Berger wants the court to uphold Judge Ron Veale's decision that the Yukon government's modifications to the Peel land use plan did not respect the planning process set out in the territory's final agreements with First Nations. 

Berger wants the process returned to where it went "off the rails" during the final consultation. He said the process doesn't have to start from the beginning because part of that process has already been lawfully completed.

'Consistent with reconciliation'

During his presentation, Thursday, John Laskin, the lawyer representing the Yukon government, maintained government must have the final say over what happens on public land.

John Laskin represents the Yukon government, which launched the appeal. (Cheryl Kawaja/CBC)
He told the court, the Peel Planning Commission understood what the territorial government wanted — essentially less protected land and the potential for more development.

"The way in which Yukon dealt with the matter was fully consistent with reconciliation and it's not consistent with reconciliation to force consensus where consensus doesn't exist," said Laskin. 

Packed courtroom

Many people came out to watch Friday's proceedings, including Agnes Mills, a Vuntut Gwitch'in Elder. 

She thanked Berger for his work in the case and noted the widespread support the case has received. 

"We're thankful for all the other citizens that come into our country that are also fighting for this."

She believes the Yukon government isn't respecting the treaties.

"As elders and young people we have to continue that fight until our last breath." 

Proceedings have now wrapped up and the court has reserved its decision. 

First Nations and environmental groups made their case to a court of appeal today to uphold a lower court's decision to quash the Yukon government's land-use plan for the Peel Watershed region. (CBC)


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