North·Q&A

Lawyer Thomas Berger on how Yukon's Peel watershed 'was saved'

'We were ecstatic because the Supreme Court of Canada's judgement vindicated the Umbrella Final Agreement,' says Berger, who represented First Nations and environmental groups before the top court.

Berger represented First Nations and environmental groups last year in dispute before Canada's top court

'The struggle has gone on for a long time, and we were ecstatic because the Supreme Court of Canada's judgment vindicated the Umbrella Final Agreement,' says Thomas Berger, who represented Yukon First Nations and environmental groups before the Supreme Court of Canada last year. (Cheryl Kawaja/CBC)

It was called a "victory for democracy, Yukon First Nations, and Yukoners."

And when the Supreme Court of Canada issued its decision last year of the Peel watershed planning process, it was also a victory for lawyer Thomas Berger.

He represented the First Nations and environmental groups who fought the territorial government's decision to ignore a recommended land use plan for the region in favour of its own. In a unanimous decision, Canada's top court ruled in December that the Yukon government must consider that plan, and consult before making changes to it.

"Not to put too fine a point on it, the Peel was saved," Berger says.

Now, the territorial government says it will collaborate with the affected First Nations over the next year to adopt a final land use plan for the Peel region.

Thomas Berger spoke to the CBC's Sandi Coleman about the Supreme Court decision, and what comes next.

This interview has been edited and condensed for clarity.

What did you think after the Supreme Court of Canada delivered its decision?

I was naturally very pleased. The struggle has gone on for a long time, and we were ecstatic because the Supreme Court of Canada's judgment vindicated the Umbrella Final Agreement reached in 1993, which organized the whole scheme in the Yukon, for land use planning in each region.

It was also marvellous because the environmental groups and the First Nations worked together for many years. They had a common interest in preserving the Peel, and all of them worked very hard to do it.

First Nations and environmental groups at the Supreme Court of Canada in Ottawa, last March. (Cheryl Kawaja/CBC)

I think all the people involved, and Yukoners — not just those who belong to the environmental organizations, or those who were members of First Nations — participated, it really seemed to be a community enterprise. That was my impression every time I came up here, and the enthusiasm was so much.

The Supreme Court of Canada emphasized the importance of the Umbrella Final Agreement reached in 1993 between the Yukon First Nations, Canada, and Yukon, and they said, 'this is what reconciliation means — you've reached an agreement, and now, government of Yukon, you have to observe it.' That lesson takes a while.

The Peel watershed is something that First Nations and government of Yukon are the joint stewards, but it's a treasure for Yukoners, for Canadians. It's something that we owe future generations to preserve — that we're not just here to ransack the earth, and say goodbye.

The Wind River, in the Peel watershed region. The mostly pristine wilderness area sprawls over 68,000 square kilometres in northern Yukon. (Ellen Woodley)

Do you think, looking down the road, that other parts of Canada will now owe something to the Yukon, in terms of land use planning?

I think the land use planning arrangement in the Umbrella Final Agreement is the best scheme in the country because it not only means, on the basis of equality, the obligation to develop land use planning for each region, but there is a specific provision to bring all Yukoners in — all the communities, whether people are First Nations or non-First Nations — everybody participates under this arrangement. 

It is, I think, virtually unique in Canada, and one the other jurisdictions would be very wise to follow.

What advice would you give to the Yukon government, and the First Nations and environmental groups, as they re-start conversations now? They hope to have it wrapped up in a year.

Well, that would be terrific. Look, it's their baby, and they have to plan this thing. And we know enough about it now — all the parties do — to plan it so it comes within the mandate of the Umbrella Final Agreement.

Demonstrators gather outside the Yukon legislative assembly building in 2014 to protest against development in the Peel River watershed. The Yukon government of the day wanted more of the region open to development than was recommended by an independent commission. (Cheryl Kawaja/CBC)

And in a way, the Umbrella Final Agreement — it's part of the Constitution of Yukon, and has to be treated as such. Indeed, these commitments that are made in the Umbrella Final Agreement are Constitutional commitments. That's often overlooked.

I think the case has saved the Peel, but the case has also vindicated these very well thought out arrangements for land use planning in every region of the Yukon that were reached in 1993.  Now the parties understand, the Yukon certainly understands, that you're bound by it.

Has it brought the Umbrella Final Agreement into focus for a lot of people?

Oh, I think so. It was a great accomplishment and it deserves to be kept in mind and dare I say it, taught in the schools.

With files from Sandi Coleman

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