Marten Berkman
It's been half a lifetime for Thomas Berger since he recommended – successfully – that a proposed pipeline along Yukon's Beaufort Sea coast be scrapped, and a trunkline from the mouth of the Mackenzie River delta through the Northwest Territories to Alberta be delayed indefinitely.
But the 81-year-old lawyer's latest interest in Canada's North is not to weigh mega-project pros and cons, but to test the limits of the government's authority over Crown land, entwined in a modern land claim in the Yukon known as the Umbrella Final Agreement (UFA).
"My legacy goes a long way back and I won't be around to know what people make of it," Mr. Berger said. "But this is a case I agreed as a lawyer to undertake. I think it's an important case."
Mr. Berger's clients – Nacho Nyak Dun and Trodek Hwech'in First Nations, Yukon Conservation Society and CPAWS – are suing the territorial government to try to protect a 68,000-square-kilometre Xanadu of unpopulated wilderness known as the Peel watershed.
Rich in flora and fauna – Trondek Hwech'in Chief Eddie Taylor describes the Peel as a university and a breadbasket for the First Nation – the Peel also possesses incredible mineral and hydrocarbon potential. At the centre of the dispute is a land-use plan that renders 80 per cent of the watershed off limits to development, while the Yukon government wants to bring that number down to 29 per cent.
Challenging the government's authority to do so, Mr. Berger calls the case "a matter of administrative law," but with broader implications for access to public land in the Yukon. The First Nations believe that, under the UFA, they retained a meaningful say over any future land use, including resource extraction; the government argues the First Nations sacrificed that right.
"The Supreme Court of Canada has described the Umbrella Final Agreement as a historic accomplishment. This is about its proper interpretation," Mr. Berger said. "First Nations and the other plaintiffs have their view, the Yukon government has its view."
Yukon Premier Darrell Pasloski defended his government's revised plan, saying the territory is better off providing more access to exploration. "The gift we have in this country and this territory is natural resources and utilizing those opens other doors," he said.
That endowment has been appreciated in the Yukon, where the Selkirk First Nation has collected millions in resource royalties through UFA provisions, and even the Nacho Nyak Dun have been in the silver-mining business since 2011. The Yukon territory has also benefited from more than $1-billion in mining-sector investment over the previous decade.
But in the case of the Peel watershed, environmentalists and their First Nations allies take a different inventory of the assets. "Here we have healthy populations of grizzlies, caribou, wolverines," said CPAWS' Yukon chapter chair Gill Cracknell. "That is why we've really focused on this area – because it's a chance to protect a really large system that is ecologically intact."
In the early 1970s, Mr. Berger was a B.C. Supreme Court judge tapped by prime minister Pierre Trudeau to examine impacts of developing the Far North's oil and gas. After Mr. Berger toured dozens of communities in the Northwest Territories and Yukon, he determined that such resource exploitation was inevitable, but better left until a later date.
More than 20 modern land claims have been settled since Mr. Berger's pipeline inquiry, but his place in the glacial march toward aboriginal self-determination runs much deeper than pipelines. Before being named to the bench in 1973, Mr. Berger provided counsel to the Nisga'a in Calder v. Attorney General of British Columbia, a losing cause for the Nisga'a, but a case cited today to define aboriginal title.
All modern land claims hinge on extinguishment of aboriginal title, in exchange for outright land ownership, including subsurface resource rights otherwise held in trust by the provincial jurisdiction – and, in pre-devolution Yukon, by the federal government.
Mr. Pasloski contends that, as a signatory of the UFA, along with the Nacho Nyak Dun and Trondek Hwech'in, the Yukon government has final say over land in its purview contained inside the Peel; that amounts to about 97 per cent of the planning region. (The First Nation with the biggest land holdings in the watershed is the Tetlit Gwich'in of the Northwest Territories, which has not yet made good on threats to sue the Yukon government too.)
Dave Loeks chaired the Peel Watershed Planning Commission and was a board member for its six years of deliberations and final recommendations – his view is that land ownership is only part of the equation in a process set in motion by the land claim.
"First Nations gave up putative claim for 100 per cent of Yukon for a quantum of land, a certain amount of self-government rights and a promise of co-management of the public lands within their traditional territories," he said. "And the Yukon government has never taken co-management seriously."
Mr. Loeks also regrets how the commission's intentions were cast as conservationist. "We didn't say lock [the Peel] up for all time … you can always develop later. But it's really hard to roll back the development once it's occurred," he said. "The commission really saw itself as writing a conservative document."
And what of the government's new plan? "I'm not speaking for the commission here," he said, "but I see it as a reckless backroom deal."
Former premier Dennis Fentie's Yukon Party government began the land-use process shortly after taking power in 2002. When Mr. Fentie stepped down as leader in 2011, only one plan, the North Yukon, was completed; the Peel plan remained unfinished and the commission's recommendations in limbo.
Mr. Fentie's successor, Mr. Pasloski, managed to steer the party to a third majority government later that year, and continues to weather a storm of criticism for avoiding the Peel issue through most of the campaign, then using his majority government as pretext for making revisions to the plan.
Mr. Fentie declined to comment on the current government's plan, or on Mr. Pasloski's handling of the affair, but offered a rationale for the importance of defending decision-making powers over Crown land.
"Because that is the government's responsibility to the broader public. First Nations governments' responsibility is to their individual beneficiaries," he said. "In exchange for land, other interests, money and self-government, the Crown was to get certainty on Crown land. … [The plainfiffs] are trying to challenge this and the court would be setting a serious precedent here if it rules against the government."