Photo by Whitehorse Star
Photo by Whitehorse Star
The federal government announced Friday in Yukon Supreme Court it is ready to start exploratory discussions about the Taku River Tlingit First Nation’s claim in the Yukon, after two days of submissions opposing the First Nation.
Taku River lawyer Steve Walsh flatly rejected the offer.
“Big deal,” said Walsh, adding the offer didn’t solve the question at stake before the court.
“Too little, too late.”
The First Nation filed a lawsuit in April 2014 asking that the government put in place interim protection pending land claim negotiations.
In 1984, the federal government accepted the First Nation’s claim.
The vast majority, 92 per cent, is in British Columbia, with the remaining eight per cent in the Yukon.
The First Nation is arguing the Yukon part of their claim, about 2,500 square kilometres, is slowly disappearing as it is open to mineral staking and other third party interests, such as the Yukon government’s desire to build a campground.
“It’s a small territory, (and) large chunks are already gone,” said Walsh.
He argued Canada had a duty to protect the traditional territory until an agreement is reached.
The B.C. government and the First Nation have been negotiating the B.C. part of the claim since 2008.
But the federal government won’t start negotiations about the Yukon claim until an agreement-in-principle is reached in B.C.
The Taku River Tlingits first indicated they were ready to start negotiations on the transboundary claim – the Yukon part – back in 1991.
Federal government lawyer Jonathan Gorton told the court there was no evidence any substantive negotiations happened in the following years.
Negotiators were close to reaching an agreement-in-principle for the B.C. part in 1999, he told the court, but the deal fell through.
Both parties came back to the table in 2008.
The decision by the Yukon government to build a campground on the shores of Atlin Lake off the Atlin Road is what ignited the current case, Walsh said.
In December 2013, the First Nation wrote to federal Aboriginal Affairs and Northern Development Minister Bernard Valcourt, outlining their concerns about the Yukon part of their traditional territory disappearing.
Both parties met in February 2014, but Taku River representatives came back disappointed from the meeting, Walsh noted.
The First Nation filed a lawsuit against the territorial government shortly after, claiming it hadn’t been properly consulted about the campground.
The lawsuit against the federal government was subsequently filed.
The Taku River Tlingits are seeking a declaration from the Yukon Supreme Court that the federal government has a duty to “protect and preserve” their land pending a settlement of the land claim.
At stake is whether the concept of the honour of the Crown compels Canada to enact such protection.
In a landmark case between the Haida Nation versus British Columbia, the country’s top court touched on what honour of the Crown means.
“In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably,” wrote Supreme Court of Canada Chief Justice Beverley McLachlin.
“Where treaties remain to be concluded, the honour of the Crown requires negotiations leading to a just settlement of Aboriginal claims,” she wrote in 2004.
“This, in turn, implies a duty to consult and, if appropriate, accommodate.”
Government lawyers argued the honour of the Crown didn’t include freezing the land pending settlement.
The Yukon Supreme Court also has to rule on whether the federal government can use part of the Yukon Act to meet the First Nation’s demands.
The act transferred a number of powers to the territory in 2003.
It also allows the federal government to take back administrative control of “public real property” and to prohibit any activity on it, if necessary for “the settlement of an aboriginal land claim or the implementation of an aboriginal land claim agreement.”
Walsh has argued Canada could use these provisions to freeze the Yukon part of the claim.
“It is not meant to be used before negotiations have started,” federal lawyer Suzanne Duncan told the court, adding that it should be interpreted narrowly, as a last resort measure.
These sections were added after First Nations raised concerns about land claim settlements when the act was drafted, she told the court.
It is only meant to be used if negotiations between the Yukon government and First Nations fail, she said.
Duncan also cautioned the court against what she called interfering in the negotiation process.
Negotiation is a “voluntary, political process,” she told the court.
Were the court to rule in favour of the Taku River Tlingits, it could be a slippery slope, she said, as First Nations could turn to the courts if negotiations didn’t go the way they wanted.
“Negotiators take their instructions from cabinet,” Gorton added.
But this case isn’t about interfering in land claim negotiations, Walsh pleaded.
“We’re trying to get negotiations going, not trying to get the courts to intervene in negotiations,” he said in his rebuttal.
Justice Ron Veale has reserved his decision.
The Department of Aboriginal Affairs and Northern Development did not respond to the Star’s inquiries by press time.
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