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Lawyers spar in Yukon court over Peel River watershed protection

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WHITEHORSE - Lawyers are sparring in Yukon Supreme Court over competing visions for aboriginal rights, government obligations and land-use planning around the future of an expanse of wilderness that includes the Peel River watershed.

A pair of First Nations and two environmental groups have launched a civil lawsuit against the territorial government over its plan to open the pristine region to development.

The Na-Cho Nyak Dun and Tr'ondek Hwech'in First Nations, the Yukon chapter of the Canadian Parks and Wilderness Society and the Yukon Conservation Society want the government's "unilateral" plan struck down.

They want it replaced with one already recommended by an arm's-length commission that would preserve 80 per cent of the area.

The government argues its plan, adopted last January, culminated from a process inscribed in the so-called Umbrella Final Agreement for aboriginal land claim settlements in the Yukon.

John Hunter, the government's lawyer, said the agreement is clear in dictating that the government can ultimately "approve, reject or modify" a final recommended plan put forward by the commission.

He said the territory was entirely within bounds when it "developed some options of its own and then went out and consulted exactly on those options."

However, First Nations and environmental groups say the government failed to do any meaningful consultation as required under the charter.

The government has authority over the Peel's 68,000 square kilometres of river-laced mountains and plateaus because it is Crown land, Hunter told Justice Ron Veale on Monday, the opening day of the case that saw two courtrooms overflowing with spectators.

Settlement lands — owned and managed by individual Yukon First Nations according to modern-day treaties — constitute only three per cent of the Peel's rugged sprawl, believed to contain abundant mineral wealth, such as base metals including iron ore and uranium.

The other 97 per cent of the area belongs to the state.

Hunter said "settled" aboriginal communities and the government have "symmetrical" responsibilities: "The agreement really works the same for both sides.

"These are non-settlement lands so our position is that the decision is made on the land-use plan by the government going through the process that the parties agreed to, and the government feels ... that the government did go through that process properly," he said later outside court.

However, Thomas Berger, who represents the First Nations and environmentalists, said the government had no right to adopt a plan he said differed drastically from the one proposed by the Peel land-use planning commission following seven years of research and consultations.

"The government of Yukon has turned the process on its head," he said.

"If the government of Yukon can now reject the final recommended plan, the whole elaborate process provided for under the UFA (Umbrella Final Agreement) is confounded.

"It would not be meaningful dialogue. It would be meaningless dialogue."

Like Hunter, Berger referenced a 2011 letter from then-Energy, Mines and Resources minister Patrick Rouble to the commission that sketched the department's ideal land-use plan, one that "reflect(s) the varying conservation, tourism and resource values" of the territory.

Berger said two of the five proposed modifications listed in the letter were "too general and non-specific for the commission to come to grips with.

Jimmy Johnny, a Na-Cho Nyak Dun elder who has spoken out about development issues in the Peel, said: "I'm here for the protection of the Peel River watershed. It's something I've been waiting for a long time."

About 150 demonstrators took part in a silent vigil on the courthouse steps. They wore signs featuring pictures of wildlife and First Nations elders.

"This is pretty special," said 79-year-old Lorna Bell of the trial. "It's important to me because I have 19 grandchildren and great-grandchildren and I'm not certain there's going to be an environment for them."

An all-day fire circle will be held at the Kwanlin Dun Cultural Centre during the week-long case.

The Peel region came to public attention about 10 years ago, when environmental groups joined with First Nations to advocate for its protection.

In July 2011, the Peel River watershed planning commission put forward its final land-use plan, recommending protection of 80 per cent of the region.

The government's plan, however, calls for wilderness protection for 29 per cent of the watershed, and allows for surface access via roads, trails and bridges through much of the area. (Whitehorse Star)

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