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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.
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