The Ross River Dena Council has lost its appeal of Yukon Supreme Court decision regarding Canada’s obligation to negotiate a modern-day treaty with the First Nation.

It appears, however, that Ross River’s argument that Canada has not fulfilled a constitutional obligation to reach a settlement with the First Nation is still very much alive.

The late Justice Leigh Gower found in his decision of October 2017 that Canada was in breach of a constitutional obligation to negotiate a settlement with Ross River, an obligation that originated in 1870 when the Yukon became part of Canada.

But the judge also found that Canada’s attempt to negotiate a settlement with Ross River from 1973 to 2002 mended any breach of that obligation.

Ross River appealed Gower’s finding that a breach of a 150-year-old constitutional obligation could somehow be repaired by Canada’s attempt to negotiate a settlement.

The Yukon Court of Appeal heard arguments last November.

It released its decision Tuesday, and it was made available Wednesday.

The superior court upheld the findings of the late justice Gower.

But it also ruled the matter is not over, that Ross River still has an outstanding claim to be addressed.

In his 48-page decision, Justice John Savage of the Court of Appeal writes:

“In summary, in my view, Canada cannot defeat a claim for a historic breach of a constitutionally enshrined Aboriginal right, other than a right to good faith negotiations, by simply arguing that it has already attempted to settle that claim unsuccessfully.

“If the claim is not settled, then it remains to be addressed. Violation of a constitutional right, with the exception noted, cannot be remedied through good faith efforts to negotiate its settlement after the fact. It can only be settled by consent or resolved in court.”

Court of Appeal justices Barbara Fisher and Shannon Smallwood agreed with Savage’s ruling.

Steve Walsh, the Whitehorse lawyer for Ross River, said this morning they’ve not made a decision on whether they’ll appeal to the Supreme Court of Canada.

“It’s too early to say,” he told the Star. “We are still reviewing it.”

Ross River has 60 days to file an appeal.

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

In his ruling of 2017, Gower agreed with Ross River that the 1870 Order that brought the Yukon into the dominion did contain an obligation under the Constitution of Canada to address the interests of the Ross River Dena Council.

Gower did not agree with Ross River that Canada was obligated to settle those interests prior to making Ross River’s traditional territory available to third party interests.

But he did rule the obligation became alive in 1969, the beginning of the Faro mine on Ross River’s traditional territory. He ruled that Canada was in breach of the obligation from 1969 to 1973, when it began land claim negotiations with Yukon First Nations.

Gower went on to rule the breach by Canada during the four years was “ameliorated” by its sincere attempts to reach a settlement with Ross River from 1973 to 2002.

While the Court of Appeal upheld Gower’s ruling, it appears to have limited the scope of his findings.

Gower found the 30 years of attempting to negotiate a settlement nullified any liability Canada had for breaching its constitutional obligation.

It appears the superior court has found the amelioration Gower ruled to be overarching only applies to the breach from 1969 to 1973.

It appears the Court of Appeal has found 30 years of attempting to negotiate an agreement does not let Canada off the hook for the breach of its constitutional obligation going all the way back to 1870.

The Ross River court case originated in 2005.