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Grand Chief Ruth Massie

Courts eroding land claims’ certainty: study

Canadian courts are undermining the legal certainty that was to be created by aboriginal land claim settlements in the Yukon, says a study released by the Fraser Institute.

By Chuck Tobin on September 28, 2015

Canadian courts are undermining the legal certainty that was to be created by aboriginal land claim settlements in the Yukon, says a study released by the Fraser Institute.

The study says the courts have to recognize that by weighing in on every challenge involving aboriginal rights, they increase uncertainty, and uncertainty breeds a loss of confidence among the investment community.

Annual surveys of mining and exploration companies by the institute clearly show companies are much more reluctant about investing the Yukon now than they were three years ago because of a couple of court cases, says the study released Thursday.

The study is titled Mining and Aboriginal Rights in Yukon: How Certainty Affects Investor Confidence.

It refers specifically to a handful of Yukon court cases, including the case won by the Ross River Dena Council involving the duty to consult Ross River before allowing any mineral claims to be staked in the First Nation’s traditional territory.

It mentions the challenge of the Yukon government’s land use plan for the Peel River watershed, which was won initially by First Nations and environmental organizations and is now in the hands of Yukon Court of Appeal.

There’s a brief reference to the newest case, the pending challenge of Bill S-6, the federal legislation to amend the Yukon Environmental and Socio-economic Assessment Act which was passed in June.

All three cases happened in 2012 or after.

The study notes the general downturn in the mineral markets that has seen investment in the Yukon dry up since the recent peak in 2011.

But it also emphasizes the Fraser Institute’s annual survey of mining executives – which clearly indicates there’s been shrinking interest in the territory because of the uncertainty created by the legal challenges in the last three years.

The courts, the study suggested, should demonstrate a reluctance to interpret comprehensive land claim agreements that are negotiated by huge teams of negotiators at great costs.

The comprehensive agreements should be just that, comprehensive agreements that stand on their own, the study says. It says they should not be an open door to litigation.

The study cites the words of the Nunavut Court of Appeal from a case involving the 1993 Nunavut Land Claim Agreement. While the Court of Appeal did find the federal government breached the agreement, it also went on to say:

“Principles of interpretation cannot be taken so far that they compel the (government) to do more than what has been agreed to, nor to create new obligations that are not in the Land Claim Agreement,” the court wrote.

“A treaty is not an empty vessel to be filled up using interpretive principles with whatever covenants one of the parties or the court thinks....”

Because the negotiations of comprehensive agreements are so intense and costly, relying on the courts to ultimately interpret them will become a disincentive to negotiate them in the first place, the study suggests.

The interpretation of the “duty to consult” First Nations before governments undertake anything that might affect their aboriginal rights is a “significant source of ongoing uncertainty,” the study says.

A suggestion in the study is to have the courts provide a clearer definition of the duty to consult and by gradually implementing the law evolving around it.

“The Ross River Dena Council case from Yukon is an example of a dramatic shift in the doctrine that undermines, rather than bolsters, legal certainty in this area of law,” says the study.

(The Ross River Dena Council is one of three Yukon First Nations without a land claim agreement. As a result of the Ross River case, no mineral claims can be staked in the Ross River area until the parties have reached an agreement on how the territorial government can fulfill the duty to consult.)

The Fraser Institute’s study does point out the success of comprehensive land claim agreements does require the territorial and provincial governments to accept and fulfill their obligations set out in the agreements.

Grand Chief Ruth Massie of the Council of Yukon First Nations said this morning she has not yet had a chance to read the study, so she wasn’t in a position to comment on it specifically.

“It’s the government,” she said, speaking generally.

“If the governments would follow the spirit and intent of our agreements, we would not have to go to the courts. There are three parties to the agreements.

“I mean, we want development as much as anybody else, but we have rules and regulations called land claim agreements that we ourselves have to follow.”

The Fraser Institute is generally seen as a conservative think tank, though it declares itself to be a leading independent institute that does not accept government or corporate funding.

The study was authored by Malcolm Lavoie and Dwight Newman.

Lavoie is a visiting assistant law professor at the University of Alberta.

Newman is a law professor and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan.

Comments (9)

Up 53 Down 10

Kenny on Sep 29, 2015 at 7:32 pm

The right wing (Koch Brother funded) Frazier Institute think tank should think about asking Harper to quit breaking the law to create more certainty for the mining industry as well as all others.

Up 115 Down 11

steve on Sep 29, 2015 at 12:29 pm

Give me a break anything that comes out of the Fraser institute take with a huge grain of salt. These people are beyond useless.

Fact resource economies go the way of the resource market and when the market is down then resource exploration and development drop. Any government taking credit when markets are high is a joke and so are the people who support them.

As for not working with Aboriginal community, business can enter into their own agreements with each group as long as they negotiate fairly and come to an agreement. It's not rocket science. When you get those businesses who try to use the government to do their dirty work for them and try to do an end run around Aboriginal groups that's when it ends up in court. It's called greed and governments such as the one in power now and businesses that don't want to play fair have to accept responsibility for their actions. It's as simple as that.

Up 107 Down 12

Certainty is a two-way street on Sep 29, 2015 at 8:39 am

Often overlooked is that land claim agreements were supposed to create certainty for First Nations too. When territorial or federal governments ignore the terms of those agreements, is it any wonder disputes wind up in court?

Up 20 Down 4

Groucho d'North on Sep 28, 2015 at 6:07 pm

Investors are seeking certainty that their investments will yield a positive outcome for themselves and their stock holders. Apart from the size and concentration of a mineral deposit, local politics also play a large role in making an investment decision. They want to know all the details before they commit, so if some of those details are missing, it gives them pause to re-evaluate and perhaps ask for more information about an aspect not apparent at first look.
It seems that the controversy in S6 and the four amendments is stealing the spotlight from a potentially larger issue related to certainty for the resource industry: Who holds the final hammer in approving a project?
There has been a little bit of media coverage related to this but not very much, some may say it is being hidden in the shadows so as not to blow up into a larger debate. But CBC ran a story a couple weeks ago, appropriately in the business section on-line, it did not get too much traction and perhaps it is time it is pulled out into the bright light of the larger audience for further discussion.
The headline was: Give indigenous people veto power over development on their lands, report urges
“…A coalition of resource companies, financial institutions, First Nations and conservation organizations has recommended that aboriginal bands have veto power over development on their traditional lands.
The Boreal Leadership Council – which includes resources companies such as Suncor Energy, Goldcorp and Tembec – released a report Monday that sets out recommendations for engagement with First Nations by business and government….;”

It would be nice if all the cards were on the table for us to see.

Up 107 Down 76

Uncertainly in the economy on Sep 28, 2015 at 4:48 pm

Does anyone remember when the mines closed and 1000's of people had to leave and housing prices dropped to level that was unbelievable? $75,000 for a duplex in Riverdale.
Look at what is taking place in Alberta 150,000 jobs gone and house sales down by 35% and prices dropping like a rock.
I do not think the blame should be placed on the First Nations in this situation.
Markets , lawyers and NDP and Liberal's created the uncertainty over the last three years is the major issue.
The liberal and NDP just pushed ahead with out considering the outcome. I hope they are happy with themselves turning away investment and jobs.
Vote for the job killer parties NDP and Liberals!
Residents do you want the new Mayor and Council to look at all the options for our public needs?

The group for good City political management

Up 132 Down 37

JB on Sep 28, 2015 at 4:45 pm

The Harper and Pasloski governments and their actions that have been the reason so many issues have landed in the courts. Next to lousy prices, they have been the largest contributors to the climate of uncertainty. With friends like Harper and Pasloski, the mining industry needs no enemies.

Up 3 Down 138

Whitehorse needs a new building but what are the options on Sep 28, 2015 at 4:35 pm

The present choice is to take the City into debt, draw down a major part of City reserves and use Canada's money for this project.
Other options include looking at the needs assessment, to determine how to proceed. When I look at the assessment, there does seem to be clear needs of the City, as compared to other projects, but I might be wrong.
Lets look at other options:
Look at a joint venture with the Yukon Government on the Department Highways site for equipment repair and shortage to share operations costs.
Much more cost effective for City and Yukon Government.
Each government has their own infrastructure and we are spending much more public money to build and manage the same infrastructure several times.
Time for governments to work together, to lower costs of services to our citizens.
Second, Private Public Partnership, which would reduce the capital borrowing for the City and risk of taking on such a big project. We share the risk on this project.
Go to Request for Proposal, from the private sector, to lease the building for 25 years. In this option, we supply a design and the developers supply a price.
This changes the opportunity costs a lot for the City and leaves the City in a better financial position.
Go to design build proposal structure, where the City supplies, the needs and the private sector comes back with a proposal to to fulfill these needs.
All these option will make the building project much more cost effective.
With design build you have people who have the maximum experience developing and constructing these types of buildings. Design build, work with staff, who are going to use this building, to have input into the design because they know best what they need.
I do not see any of this discussion in the need assessment on options.
Unless you have worked in this area you don't have this type of experience to understand the facts.
My approach is set a criteria and then implement your search for a new building, which needs to be done before going ahead.

Wilf Carter Mayoralty candidate

Up 100 Down 11

City of Whitehorse be aware on Sep 28, 2015 at 4:01 pm

If the economy goes south, like it has done before and the City goes into maximum debt where does that leave the City at?
Mayor Curtis is pushing the City into max debt and drawing down the City reserves as far as possible and not telling the people. Why? Because the Mayor likes to hide the facts from City voters, like he has always done.
Does the residents want that type of mayor?
Thumbs down if you don't!

Up 24 Down 109

You have the local and Fderal on Sep 28, 2015 at 3:54 pm

Liberals and NDP to blame because they pushed this approach for the First Nations, to go to court, along with a group of money hungry lawyers.
This just goes to prove that the liberals and NDP, at the Federal and Yukon level are recklessly killing our economy and will lead the Yukon into the poor house.
The Yukon has experienced the strongest growth in history and the Liberals? NDP are destroying.

Yukoners think before voting what is the best for you if these people get in????

Yukon voter that is concerned about our future.

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