Day 4 of the Peel Court Case

Blog Day 4

The final morning of the Peel watershed trial saw both court rooms overflowing with people eagerly awaiting Thomas Berger’s response to the arguments presented yesterday by Yukon government’s lawyer, John Hunter.

Mr. Berger took issue with the attacks on the Peel Commission that Mr. Hunter launched on behalf of Yukon government. Berger said the Commission was correct in saying they couldn’t go back to the drawing board as government’s vague proposal to create more balance and road access would have required. Mr. Berger demonstrated that some of government’s proposed modifications did have the detail, including reasons, required by the Umbrella Final Agreement (UFA), and these were adopted by the Commission.

He pointed out that there is no evidence to support Mr. Hunter’s allegation that the Commission had already made up its mind, and would have rejected specific modifications if government had proposed them. Berger asked the court to vindicate the integrity of the Commission, which is at the heart of the whole UFA process.

Then Mr. Berger went on to show the point in the consultation process when Yukon government departed from the UFA process. He said that, although some of government’s proposed modifications were too vague for the Commission to make use of, government did adhere to the process required by Chapter 11 of the UFA until after the Commission issued its Final Recommended Plan and the Commission was shut down.

It was only after the Commission no longer existed that government “went off the rails” by bringing forth its new concepts during consultations with affected First Nations and the public. Government should have consulted about the Final Recommended Plan and government’s earlier proposed changes to it. Government had no authority under the UFA process to introduce new options, and ultimately to adopt a wholly new plan at the tail end of the process. Mr. Berger provided details about the profound differences between the Commission’s Final Recommended Plan and the plan that Yukon government adopted in January 2014.

Mr. Berger pointed out that the government had a say in the appointment of four out of six members of the Peel Commission. Nonetheless, Mr. Berger said, government “threw the Peel Planning Commission under the bus” – even though it was its own Commission. Mr. Berger said that government has left the UFA behind by acting as though the Commission’s Recommended Plan and Final Recommended Plan have no more standing than a document they might have found on the internet. Government is acting as though the UFA was never signed. They have failed to observe the honor of the Crown – “they took the ball and went home with it.”

Mr. Berger asked Judge Veale, in his final decision, to find that:

– Yukon government’s vague proposals for the Commission to create a more balanced plan and provide more surface access were appropriately dealt with by the Commission;
– Yukon government cannot provide new modifications after the Commission has presented its Final Recommended Plan;
– Yukon government cannot reject the Final Recommended Plan because they elected to propose modifications in their response to the Recommended Plan in 2011.

Mr. Berger asked Judge Veale to declare that the Commission’s Final Recommended Plan is the approved plan for the Peel watershed. He also offered an alternate remedy that would have the same result. This remedy would send Yukon government back to the point where it departed from the UFA process – after the Final Recommended Plan was released by the Commission – and require government to consult upon only the Final Recommended Plan and the proposed modifications that government presented properly in 2011. Government’s new plan, or components of it, would not be allowed to be part of the consultations.

Under this remedy the court would declare that no further modifications can be proposed after the Final Recommended Plan is produced, and government cannot reject the Final Recommended Plan after opting to modify it earlier in the process. This would result in government having no other option than to approve the Final Recommended Plan.

Jeff Langlois, legal counsel for the Gwitch’in Tribal Council, requested that should the alternate order be granted, the GTC not be excluded.

Mr. Hunter asked for the record to note that his criticisms of the Commission were of their early policy decisions and not their integrity.

Mr. Berger concluded eloquently that Yukon government signed the UFA, agreed to Chapter 11, agreed to establish the Peel planning process, nominated Commission members, and participated fully until after receiving the Final Recommended Plan. But now government seeks to obstruct the legal process. First Nations and Yukoners should not be left with a blank page unsigned by Yukon government, which is what Yukon government has reduced the UFA to. The courts must defend the rights of Yukon people.

Judge Veale commented on the unusual nature of the proceedings in that it proceeded on documents alone (rather than witnesses and evidence) and that the case came to court in only 6 months (a credit to the professionalism of the legal councils). He thanked the court staff for dealing so well with the large numbers of people and new technological requirements (live video to another courtroom). He thanked the public for their interest throughout the week which provided unusual exposure as normally court proceedings work in isolation. Judge Veale concluded by saying he would reach his decision in due course.

Please celebrate Thomas Berger’s historic Peel Watershed court case and all of our work to ensure the Commission’s Plan is implemented tonight (Thursday, July 10th) at the Kwanlin Dün Cultural Centre, with “Voices of the Peel, Together today for our children tomorrow”. This is a family friendly event featuring stories from the Peel by elders and youth from Peel communities, as well as live music, dancing, images and a silent art auction.