Self-governing Yukon First Nations have filed the lawsuit against the federal and Yukon governments over Bill S-6, just as they said they would.
For well over a year, First Nations have been telling Premier Darrell Pasloski and the federal government they would go to court to defend the spirit and intent of their final land claim agreements if Bill S-6 was passed by the House of Commons.
For well over year, the First Nations have been suggesting the two governments cooked up four controversial amendments in the backroom and slid them into Bill S-6 under the cover of night, without any consultation with Yukon First Nations.
“These bilateral discussions between Canada and the Yukon took place without notice to or involvement of the First Nations,” says the 19-page lawsuit filed this morning in the Yukon Supreme Court.
The four amendments are an affront to the provisions of the Yukon final land claim agreements and are unconstitutional, the First Nations contend.
“They have a very strong case,” Vancouver lawyer Greg McDade told reporters this morning at a press conference hosted by the chief of the three First Nations leading the legal challenge. “It’s too bad they have to go to court.”
McDade has extensive experience at the Supreme Court of Canada level – and cases he was directly involved with are often cited in court as the leading case law in the country.
Bill S-6 amended the Yukon Environmental and Socio-economic Assessment Act, and similar legislation for Nunavut.
The First Nation is asking the court to strike down all 70-plus amendments to the act, not just the four.
It would require starting over, McDade said.
He explained Bill S-6 is the law now. If there was a move by Ottawa to use any of the controversial amendments in the Yukon, he added, it would be up to the affected First Nation to decide whether to take legal action, and perhaps seek an injunction preventing Ottawa from doing so.
The assessment legislation was born out of the Umbrella Final Agreement, the blueprint for settling aboriginal land claims in the Yukon. It called for a mandatory five-year review of the assessment act.
More than 70 amendments were agreed to by the First Nations, the Yukon government and Ottawa.
The First Nations contend they knew nothing about the four amendments until they were already locked in by the federal government.
They maintain the amendments will introduce political influence into what is supposed to be an independent environmental review process. Bill S-6 will weaken the review process overall in favour of industry, the First Nations contend.
Pasloski declined comment this morning.
He has insisted in the past the Yukon government was always been up front with First Nations. The four amendments, the premier has said, will streamline the review process to make the Yukon more competitive in attracting investment.
Chief Eric Fairclough of the Little Salmon-Carmacks First Nation, Chief Steve Smith of the Champagne and Aishihik First Nations and Chief Carl Sidney of the Teslin Tlingit Council hosted the press conference.
Fairclough said 10 of the 11 self-governing First Nations are standing behind the three and are assisting with the cost, which could reach well into the hundreds of thousands of dollars, maybe even $1 million.
“We must do what we have to do to protect our agreements,” said Fairclough.
He said the First Nations lobbied Ottawa to hold off on S-6, to explore options to the four amendments, but the federal government refused.
Court action, Fairclough said, was necessary.
The Teslin chief emphasized as a result of land claim and self-government negotiations, Yukon First Nations surrendered their aboriginal rights and title to a vast amount of their traditional territories. In exchange, they received legal certainty that they would be full partners in the management of the territory’s lands and resources, Sidney said.
Bill S-6, he suggested, falls well short of the partnership set out in the Constitution of Canada.
Chief Smith emphasized Yukon First Nations are in full support of responsible development.
They’ve invested tens of millions in the Yukon economy and local businesses, he said.
Smith said it was regrettable that the First Nations were having to announce the court action today, regrettable how the uncertainty created will hinder efforts for community and economic development.
“We are for sustainable development, but we must first reconcile this treaty matter,” he said. “We expect this case to bring certainty.”
The senior aboriginal rights lawyer said the federal government failed in its legal obligations on two fronts.
First of all, McDade told reporters, Ottawa decided all by itself in 2012 that the five-year review was over, without consulting First Nations of the Yukon government.
Secondly, passing the four amendments did not fulfill the constitutional duty to fully consult First Nations. It did carry the honour of the Crown the Supreme Court of Canada expects to see when governments deal with modern-day treaties, he explained.
McDade told reporters it’s difficult to predict a precise timeline about how long the case will take. He said under normal circumstances, it would be reasonable to have the matter heard in the Yukon Supreme Court next spring, with a decision sometime next summer, he said.
The Kluane First Nation is the only self-governing First Nation that is not participating in the legal action.