Decision reserved on land lease case
It will likely be at least June before Yukon Supreme Court Justice Ron Veale decides whether an agricultural lease on 65 hectares of Crown land north of Carmacks will go ahead.
It will likely be at least June before Yukon Supreme Court Justice Ron Veale decides whether an agricultural lease on 65 hectares of Crown land north of Carmacks will go ahead.
Last week, Veale listened to three days of arguments in the case, in which the Little Salmon-Carmacks First Nation is asking the court to remove the approval for the application.
Veale then told the courtroom that with the number of issues raised, it will be some time before he could come to a decision on the matter.
While setting June as a target date to have a decision made, Veale stressed that timeline may have to be extended as he delves into the case.
Throughout the three days, Arthur Pape, the first nation's lawyer , argued it wasn't fully consulted by the territorial government on the application for the lease near its settlement land when it was brought forward in 2004.
YTG lawyer Penelope Gawn has argued the territory wasn't legally obligated to consult the first nation.
And even though it wasn't, it still did by sending it a notification of the application that was to come before the Land Application Review Committee (LARC), which deals with land disposition in the territory.
Lawyer Christina Sutherland also presented arguments in favour of the lease on behalf of Larry Paulson, who's seeking the land.
On Friday, Pape and Gawn wrapped up their cases by presenting responses to the arguments that came forward over the first two days of the case.
Pape continually pointed to case law, which noted a responsibility of the government to consult with first nations on the disposition of land.
'It's a question of law,' he said, pointing to a Supreme Court of Canada decision in another matter.
The first nation's land claim and self-government final agreements are not a finality agreement. Rather, sections point out, Pape said, that first nations and the territorial government will continue to have a relationship.
'I cannot state too strongly the significance of this issue,' he said. It would be a first nation's and/or elder's worst nightmare to learn that they were tricked into an agreement that essentially fenced them in, he added.
'Sometimes it's called a me fool you again; sometimes it's called a gotcha' agreement,' Pape said.
As he continued looking at the agreement and began discussing negotiations, Gawn objected to his statements, saying he was speculating on discussions around the final agreements.
The territory, he suggested, would need to find a finality clause in the agreement for it not to have a legal obligation to consult with the first nation.
As for the LARC process, Pape noted: 'I say it's of no consequence.'
While first nations have been involved with the LARC process since the late 1980s, Pape pointed out that it was not part of the settlement with first nations land claims.
'LARC is not a land claims process in any sense,' he said, adding that the new Yukon Environmental Socio-economic Assessment Act is an example of a procedure that has come out of land claims.
The issues around trapping in the area, environmental impacts and the effect the application would have on wildlife habitat were raised in a letter from the first nation to the LARC committee.
An environmental assessment done on the land, Pape suggested, should have involved the first nation.
'I think it was a paper exercise,' he said.
Pape also took issue with the arguments by the territory that the trapline in the area only got a commercial licence twice in the last 10 years and was in a category where it's allocated by the Yukon government.
'That evidence is not something that should not be discounted,' Gawn countered in her short reply where. She continued to stress that the final agreement for the Little Salmon-Carmacks First Nation outlined the required consultation.
'That needs to be respected,' she said.
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