The very foundation of aboriginal land claim settlements in the Yukon will be under attack in the Yukon Supreme Court over the next few days.

In play is the firm belief of the Ross River Dena Council that the Umbrella Final Agreement was never legally approved, was never legally voted on in accordance with the procedures laid out in the UFA.

The Ross River Dena Council is one of three Yukon First Nations without a final land claim agreement.

Eleven Yukon First Nations negotiated final agreements based on the principles and parameters set out in the UFA.

The trial that started this morning is scheduled to go for several days.

Justice Leigh Gower has described the question over the UFA’s ratification as central to Ross River’s lawsuit against the federal government that has been on the books for 12 years.

Ross River is claiming Ottawa has had a constitutional obligation dating back to 1870 to settle the interests of the Kaska First Nation before dealing away any of its traditional territory.

A trial on the question of the constitutional obligation has been held, but before Gower could rule, the federal government asked him to suspend his decision, and Gower agreed.

Ottawa argued if there was indeed a constitutional obligation to settle the interests of the Ross River, Canada has more than fulfilled that obligation in past efforts it put forward to negotiate a land claim settlement with the First Nation.

That the parties were unable to reach an agreement was not through a lack trying on the part of the federal government, Ottawa argues.

Put simply, according to the court documents, if there was no foul, if Ottawa did all it could do to reach an agreement, it has caused no harm to the Ross River Dena Council.

So even if Gower were to eventually rule there was a legal obligation to settle the interests of the First Nation going back to 1870, Ottawa has fulfilled that obligation with everything it’s done to reach an agreement with Ross River, the federal government argues.

Ross River, on the other hand, argues the federal government has been living a lie, and it knows it.

It’s for that very reason Ottawa refuses to release a memorandum about the UFA’s ratification sent from a federal lawyer to the federal cabinet dated April 13, 1993, Ross River has argued in pre-trial motions.

The memorandum was sent just over a month before the big celebration in Whitehorse marking the official signing of the UFA.

In a pre-trial motion, the Ross River Dena Council asked Justice Gower to order Ottawa to produce the memorandum.

Ottawa countered with the argument the document was protected by lawyer-client confidentiality.

Gower did not order the documents produced, though he has indicated he has read the memorandum.

He’s also challenged Ross River’s persistent assertion that the memorandum proves Ottawa knows the UFA was never legally ratified, saying the First Nation can’t possibly know what it says because it’s never seen it.

Gower did allow Ross River to call a senior federal official who was with the Department of Indian and Northern Affairs in the late 1990s, and still is today.

Shari Borgford took the stand this morning to testify about certain correspondence from the late 1980s and early 1990s between federal officials related to ratification of the UFA.

She also told the court she never had any personal knowledge or involvement in the correspondence.

Ross River argues the issue of ratification goes directly to the honour of the Crown that the Supreme Court of Canada has upheld in recent years.

The high court has ruled when territorial, provincial and federal governments are dealing with First Nations and matters affecting First Nations, their behaviour must be beyond reproach, must be honourable.

(It was the failure to fulfill the honour of the Crown that sunk the Yukon government in the Peel watershed land use case.)

Ross River is arguing if Ottawa has known there was a problem with ratification of the UFA, its conduct has been dishonourable, and it cannot say it’s done everything possible to settle with Ross River.

Therefore, Canada still has a constitutional obligation to settle the interests of the Ross River Dena Council that remain outstanding, they say.

The First Nation is also arguing Ottawa has failed to fulfill the honour of the Crown by refusing to get back to the land claim negotiating table after the federal cabinet mandate to negotiate claims in the Yukon ended in 2002.

Ross River has repeatedly told the federal government it’s ready to go back to the negotiating table, but Ottawa refuses – which runs contrary to the honour of the Crown the Supreme Court of Canada has come to expect, the First Nation argues.