The territorial government tried to do an “end run” and overstep the required land-use planning process, lawyer Thomas Berger argued Friday, the second day of the Peel watershed appeal.

The case wrapped up Friday in the Yukon Court of Appeal. The three judges have reserved their decision.

“That’s the big issue,” Berger told reporters afterwards.

Throughout his submissions in court, he described the years of work the Peel Watershed Planning Commission put into creating its final recommended land use plan for the Peel, a New Brunswick-sized swath of wilderness in northeast Yukon.

“After we’ve gone through the whole process, can the Yukon government pat the commission on the head and say, ‘That’s good work you did over the past five years,’ pat First Nations on the head, ‘Good to talk to you,’ pat Yukoners on the head, ‘Glad you made all those submissions at those meetings, but we’re going to do whatever we want to do now’?” Berger asked.

He and his clients, the Tr’ondek Hwech’in, Na-Cho Nyak Dun and Vuntut Gwitchin First Nations, Yukon Conservation Society and Canadian Parks and Wilderness Society (CPAWS) Yukon, believe the government isn’t allowed do that.

That was the same finding made by Yukon Supreme Court Justice Ron Veale last December.

He quashed the land use plan the government introduced in January 2014.

It allowed for protection of 29 per cent of the Peel – a stark contrast to the commission’s plan, which set aside 20 per cent for development and preserved the remaining 80 per cent.

Veale ordered the planning process back to the final consultation stage – not allowing the government to propose new modifications to the commission’s plan.

The territorial government appealed.

It is asking for Veale’s order to be thrown out.

The two-day hearing heard from both sides.

Government lawyer John Laskin argued that Veale’s ruling “forces artificial consensus” between the two parties, leaving the government stuck with a plan it has “fundamental concerns” with.

The government had been clear that it wanted a balance between development and conservation, Laskin said. This wasn’t what the commission presented.

Ultimately, he said, the government has the final say over non-settlement land, which comprises 97 per cent of the Peel.

Berger didn’t dispute this. However, the government is obligated to follow the planning process set out in the Umbrella Final Agreement (UFA). It didn’t, he argued.

When the commission released its first iteration of the plan in December 2009, the government responded with five proposed changes.

It could have either accepted, rejected or proposed modifications to the plan.

Three of the changes were backed up with reasons and explanation, Berger said, as is necessary under the UFA. Two were not.

These two had to do with a greater balance between development and conservation and more options for road access.

When the commission came out with its final recommended plan in July 2011, it pointed out these two proposed modifications were too general to be addressed.

Veale agreed in his decision these didn’t count as modifications because they were too vague.

In January 2014, the government released its markedly different plan.

Had the government proposed these changes earlier in the process and the commission opted not to include them, the government still would have been entitled, ultimately, to impose them in the final plan, said Berger.

Instead, they tried to introduce changes too late – changes the commission hadn’t seen before, the renowned aboriginal rights lawyer argued.

Jeff Langlois, lawyer for the Gwich’in Tribal Council, who is an intervener in the case, was permitted to address the court for 15 minutes.

First, he said many First Nations exchanged rights and title to land for future consultation and involvement in planning. This collaborative decision-making is “integral,” Langlois said.

This case, he said, is a lost opportunity for on-the-ground reconciliation efforts.

“If Yukon prevails, the goal of reconciliation will be undermined here and in the future,” he said. “That’s going to be very harmful to the planning process.”

Lawyers for both the government and the First Nations and environmental groups discussed what a proper remedy would be.

John Terry, one of four lawyers representing the government, said if the appeal judges uphold Veale’s decision to quash the plan, the planning process should return to the stage at which the government can propose modifications.

But Berger disagreed.

The process should go back to the final consultation stage, after the commission had presented its final recommended plan.

“All steps to that point had been lawfully completed,” he said. To go back earlier on, “would be rewarding the Yukon for failing to observe the honour of the Crown.”

At this stage, the government wouldn’t have a chance to present new modifications.

People packed two courtrooms during the two-day proceedings.

The main room was reserved for First Nations elders, involved parties, government employees and reporters. The hearing was streamed to a second courtroom for the public.

Three large maps of the region on display showed the commission’s recommended plan, its final recommended plan and lastly, the government’s modified plan.

Early on in his arguments Thursday, Berger traced his hand along the blue markings shown on one of the maps.

“These blues lines are the principal rivers,” he said. “They flow into the Peel (River.)”

He described the northern wilderness region as home to mountain ranges, forested plateaus and three caribou herds.

It’s the traditional territory of the Na-Cho Nyak Dun, Tetlit Gwich’in, Tr’ondek Hwech’in and Vuntut Gwitchin, Berger said.

The appeal ended earlier than expected Friday afternoon.

In the foyer, dozens of people milled about and both Gill Cracknell, executive director of CPAWS Yukon and Karen Baltgailis, former executive director of YCS, hugged Berger.

A Gwich'in elder from Old Crow also approached him and shook his hand.