Whitehorse Daily Star

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ARGUMENTS CONTINUING – Ross River lawyer Stephen Walsh says the federal government has been less than honourable in its dealings with the Ross River Dena Council.

Hypothetically illegal UFA raised in courtroom

Justice Leigh Gower, of the Yukon Supreme Court, asked Thursday what would happen if he rules the Umbrella Final Agreement (UFA) is not legal.

By Chuck Tobin on April 7, 2017

Justice Leigh Gower, of the Yukon Supreme Court, asked Thursday what would happen if he rules the Umbrella Final Agreement (UFA) is not legal.

Ross River lawyer Stephen Walsh said there would be some with tears of joy running down their faces.

If the First Nations with final land claim agreements were asked to vote on those agreements today, the outcome could very well be different, Walsh suggested in his response to Gower’s question.

He said a finding that the UFA – the foundation for land claim settlements in the Yukon – was never legally ratified, could cause years of uncertainty and would be controversial.

Practically speaking, however, it’s not likely to have a substantial impact, Walsh said.

He pointed out that each of the First Nations with final agreements carefully conducted scrutinized votes among their citizens on whether to accept their individual agreements.

Each of those First Nations have already received their compensation payments that were included as part of the final agreements, the Ross River lawyer pointed out.

The Ross River Dena Council is suing the federal government, arguing Ottawa never fulfilled its 150-year-old constitutional obligation to address the aboriginal rights of title of the First Nation, before giving away their traditional territory. Ross River is one of three Yukon First Nations that does not have a land claim settlement.

Ottawa is arguing it did everything it could to reach an agreement through years of negotiating with Ross River.

It has fulfilled the Supreme Court of Canada’s requirement to be honourable in all its dealings with Ross River, the federal government maintains.

The trial began Wednesday and is scheduled to conclude next Wednesday, April 12.

The federal government is expected to begin presenting its side of the story on Monday.

A primary piece of Ross River’s case is its contention that the Umbrella Final Agreement was never properly ratified, and that Ottawa knows it.

Walsh told Justice Gower, the federal government’s dealing with Ross River in the past and present has been anything but honourable.

The Ross River lawyer tore into the federal government Thursday, suggesting its dealings with Ross River have not only been dishonourable but deceitful.

The fact that the UFA was not properly ratified is just one example, Walsh told the court.

He said to this day, the Ross River chief and council can’t even pass a bylaw for their community, nor can the Yukon government.

If Ross River wants a dog control bylaw, it would have to go to Ottawa and the House of Commons to get it, Walsh told Gower.

He said there is no question that Ross River and the Kaska Nation as a whole rejected the UFA, for a couple of very good reasons.

Ottawa put the proposed UFA on the table as a take-it, or leave-it proposal to Ross River, he said. And Walsh said Ross River exercised its right to leave it.

The UFA amounted to the federal government offering 14 cents per acre of Ross River’s traditional Kaska territory, he said, emphasizing that Ottawa described the offer as “generous.”

Walsh said Canada and the Yukon government went behind the backs of Ross River and the Kaska Nation when they inserted a provision in the UFA that gave the Yukon government veto power over any transboundary aboriginal claims.

There was no consultation with the Kaska about inserting the veto power, Walsh told Gower.

He said there was an earlier agreement between Canada, the Yukon and the Kaska specifically about recognizing and addressing transboundary interests in the Yukon by the Kaska Dena Council of Lower Post, B.C., Walsh told Gower.

The Yukon government wanted the power of veto because it was still mad over Ottawa’s unilateral decision in the late 1980s to provide aboriginal rights and title in the Peel River watershed to the Tetlit Gwich’in of Fort McPherson, he said.

Walsh told Gower that Ottawa denied funding for the Kaska Dena Council to address its transboundary interests in the Yukon from the beginning of 1992 to the end of 1994.

Funding to address transboundary interests was provided to the Taku River Tlingits of Atlin and to the Tahltan First Nation of Telegraph Creek, but not to the Kaska Dena Council, he pointed out.

Walsh said federal land claim negotiators told the federal funding agency there was nothing happening on the transboundary front involving the Lower Post First Nation.

Walsh said as a result of the UFA, a decades-old provision that exempted citizens of Yukon First Nations from paying income tax was removed. That had a significant impact on the citizens of the Ross River Dena Council, he told the judge.

Walsh said even though Ross River and the Kaska as a whole have said they will never negotiate a land claim settlement under the terms of the UFA, Ross River has made it abundantly clear to Ottawa it still wants to negotiate some sort of agreement.

He produced correspondence after correspondence from Ross River to Ottawa inviting the federal government back to the table.

Ottawa said in 2002 that it’s mandate from the federal cabinet to negotiate aboriginal claims in the Yukon had ended, and they haven’t been back since, he said.

Walsh pointed out the federal government commissioned an assessment in 2008 about the situation in the Yukon with regard to outstanding aboriginal claims.

The assessment by Gavin Finch highlighted the need for some resolution, and it was in that report that it was pointed out that the chief and council of Ross River couldn’t even pass a dog bylaw, he told the judge.

Today, 15 years after Ottawa left the negotiating table, eight years after the Finch report recommended something needed to be done, still nothing. Ottawa is still not prepared to negotiate an agreement with Ross River, Walsh said.

In 2003, Ottawa transferred authority and control over Yukon lands to the Yukon government, and those lands included the traditional territory of Ross River, he pointed out.

He suggested when it comes to demonstrating the honour of the Crown, which the Supreme Court of Canada demands from governments when dealing with First Nations, Ottawa doesn’t have a leg to stand on.

Their is nothing honourable about trying to ram the UFA – which was never properly ratified – down the throats of Ross River and the Kaska, Walsh said.

There is no honour in going behind the backs of the Kaska to give the Yukon government veto power in the UFA over aboriginal transboundary claims, he said.

Walsh said there is also no honour in offering 14 cents an acre, or the removal of the tax exemption for citizens of the Ross River Dena Council.

As well, he said, there is no honour in Ottawa’s refusal over the last 15 years to come back to the negotiating table, or in denying Ross River the ability to negotiate their inherent right to self-government.

Finally, he said, there is no honour in transferring authority and control over Ross River’s traditional territory to an “adversarial government”.

Walsh told Gower it will be impossible for the federal government to show that the UFA was properly ratified in accordance with the conditions established in the UFA, because that never happened.

It’s going to be equally difficult for Ottawa to show how it’s been honourable in all of its dealings with the Ross River Dena Council since 1973 when the federal government agreed to begin negotiating modern day treaties, he suggested.

Federal lawyer Suzanne Duncan is expected to begin presenting the federal government’s case Monday morning.

Ross River’s lawsuit is being tried in two pieces, on two key questions. The first is whether there is a constitutional obligation going back to 1870 to settle the interests of Ross River before opening up their traditional territory for settlement.

Gower has conducted the trial on this first question but suspended his sentence at the request of Ottawa to await the result of this week’s trial.

The second question, the subject of this trial, is whether Ottawa has acted honourably in its attempt to reach a settlement with Ross River in the post-1973 era of modern day treaties.

Gower noted in his ruling to suspend his decision regarding constitutional obligation that if Ottawa can demonstrate it has acted honourably in its attempts to settle with Ross River, that would help reduce the impact of any breach of the constitutional obligation, if indeed there is an obligation.

Comments (8)

Up 21 Down 2

Anie on Apr 11, 2017 at 3:40 pm

Let me get this straight. This community, where a man was killed by wild dogs, where the leaders want gy to fix their neglected housing stock, where they apparently cannot even manage animal control, has resources and interest in fighting this nonsensical lawsuit? Stop paying lawyers, start investing in the community

Up 20 Down 3

BnR on Apr 10, 2017 at 5:42 pm

Hypothetically, what if the gov doesn't pay for the RRDC's housing woes? Hypothetically speaking of course.

Up 12 Down 6

ralpH on Apr 10, 2017 at 11:32 am

Last ditch effort of the desperate. Only thing left after that is prayer. Both are a waste of time and money.

Up 45 Down 5

Woodcutter on Apr 8, 2017 at 5:01 pm

RR had no problem accepting funding to negotiate for years, and you guessed it, Steve Walsh aka , I'll mortgage my house it I am wrong, was there leading to talks to no place. The Kaska would rather have Canada look after them, as they are not able to self govern.

Up 16 Down 49

John Raeford on Apr 8, 2017 at 9:41 am

I think the Kaskas has a right to not negotiate under the terms of the UFA. If they haven't made one thing clear is that they reject the damn thing. I have always felt​ that the rest of the FNs that have signed on have sold out their rights for a percentage of what they should've of got. I applaud the kaskas for putting the government to task on this. Our government is all about diversity - well this is just another way of being diverse, not every group will agree on the same terms. This in my eyes has tarnished the honour of the crown and refusing to come back to the table after the mandate ended in 2003 further proves the point

Up 48 Down 3

June Jackson on Apr 7, 2017 at 4:58 pm

Cha-ching.. cha-ching..

Up 59 Down 4

JC on Apr 7, 2017 at 4:44 pm

Well, the big winner, regardless of the outcome will be -you guessed it, Mr. Walsh.

Up 54 Down 4

yukon56 on Apr 7, 2017 at 4:13 pm

Lawyers making money off our taxes

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