The federal government has fulfilled its constitutional obligations to try to reach an Aboriginal land claim agreement with the Ross River Dena Council, says Justice Leigh Gower of the Yukon Supreme Court.

Gower found there is a constitutional obligation to try to settle the interests of the Ross River Kaska, an obligation which continues to this day.

There is no obligation to reach an agreement, he ruled.

He found the attempts by the federal government to negotiate an arrangement between 1973 and 2002 were honourable and did fulfill its constitutional obligation to be honourable in its attempts to reach an agreement.

The fact that the parties were unable to reach agreement is not solely the responsibility of Canada, Gower ruled.

The judge found the Umbrella Final Agreement – the template for negotiating Aboriginal land claims in the Yukon – was properly ratified by all parties.

And it is right for Canada to insist that Ross River negotiate its agreement under the terms of the UFA, just as other Yukon First Nations have, Gower found.

His two decisions were released Monday afternoon and made available to the public this morning, one being 127 pages in length and the other being 135 pages.

Lawyers for the First Nation and the federal government both said this morning in separate interviews they are still reviewing the judgments and were not in a position to comment nor indicate whether they were planning to appeal.

The parties have 30 days to file an appeal.

Ross River is one of three Yukon First Nations without a land claim agreement, the others being the Kaska of the Liard First Nation of Watson Lake and the White River First Nation of Beaver Creek. Eleven First Nations have finalized land claim agreements under the terms of the UFA.

The Ross River Dena Council (RRDC) filed its initial lawsuit in 2005, claiming the federal government was in breach of its constitutional obligation to settle the interests of Ross River before making any of the First Nation’s traditional territory available to others. That obligation, Ross River has argued, was cemented in the 1870 Order that brought the Yukon into the Dominion of Canada. It is accepted that the 1870 Order is part of the Constitution of Canada.

In the lawsuit of 2006, Ross River asserts the federal government was in breach of its constitutional obligation because it failed to negotiate a settlement with Ross River in good faith.

Among Ross River’s arguments was that the Umbrella Final Agreement was never properly voted upon or ratified as agreed to, and the federal government knows it, so therefore its conduct could not be considered honourable and in good faith. Ross River has steadfastly refused to negotiate under the terms of the UFA.

The 2005 and 2006 lawsuits were eventually brought together because of their similarities.

The relevant section of the 1870 Order says: “... upon the transference of the territories in question to the Canadian Government, the claims of the Indian tribes to compensation for lands required for purposes of settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines.”

In his decision regarding the 2005 lawsuit, Gower wrote:

“I declare that the commitment made by Canada in 1867 and accepted by Her Majesty in the 1870 Order, to settle the claims of the Indian tribes of the North-Western Territory, including the claims of RRDC and other Kaska, “in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines”, is still in force today;

• I declare that this commitment is a part of the Constitution of Canada and that it is binding on Canada:

• I declare that this commitment engages the honour of the Crown and that the honour of the Crown was not upheld by Canada in respect of this commitment over the period from at least 1969 to 1973 (the “breach”); and

• I further declare that Canada made a good faith attempt to consider and settle RRDC’s land claim from 1973 to 2002, and that its efforts in that regard have upheld the honour of the Crown and have ameliorated its liability for the breach.”

Gower went on to say he would not declare Canada has to provide compensation to Ross River for land already made available to other third parties before it makes more of the First Nation’s traditional territory available.

He also declined to declare that any future grants or leases of land made available by Canada are invalid unless preceded by a settlement with Ross River.

Gower notes how a key argument by Ross River was that Canada failed to negotiate in good faith.

“This case is not about RRDC getting the best possible deal on its comprehensive land claim,” Gower wrote in his decision on the 2006 lawsuit. “Rather, it is about whether Canada acted reasonably and fairly in the context of the negotiations. In my view, the record reflects that it did so over a period of approximately 30 years.”

While Ottawa won on the issue of good faith negotiations, it lost on the issue of whether the 1870 Order created a constitutional obligation to settle the interests of Ross River. It had argued while the words were there, they were never intended to create a constitutional obligation.

The words included in the 1870 Order, which originated in the House of Commons in 1867, were meant more as a promise to England by Canada that it would look after the interests of the First Nations, Ottawa argued.