Whitehorse Daily Star

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Photo by Chuck Tobin

STRENGTH IN NUMBERS – Chief Steve Smith of the Champagne and Aishihik First Nations, Chief Eric Fairclough of the Little Salmon/Carmacks First Nation and Chief Carl Sidney of the Teslin Tlingit Council, left to right, announce their legal challenge of Bill S-6 this morning. The chiefs said while they are leading the challenge officially, they are backed by a coalition of 10 self-governing First Nations.

First Nations make good on filing lawsuit

Self-governing Yukon First Nations have filed the lawsuit against the federal and Yukon governments over Bill S-6, just as they said they would.

By Chuck Tobin on October 14, 2015

Self-governing Yukon First Nations have filed the lawsuit against the federal and Yukon governments over Bill S-6, just as they said they would.

For well over a year, First Nations have been telling Premier Darrell Pasloski and the federal government they would go to court to defend the spirit and intent of their final land claim agreements if Bill S-6 was passed by the House of Commons.

For well over year, the First Nations have been suggesting the two governments cooked up four controversial amendments in the backroom and slid them into Bill S-6 under the cover of night, without any consultation with Yukon First Nations.

“These bilateral discussions between Canada and the Yukon took place without notice to or involvement of the First Nations,” says the 19-page lawsuit filed this morning in the Yukon Supreme Court.

The four amendments are an affront to the provisions of the Yukon final land claim agreements and are unconstitutional, the First Nations contend.

“They have a very strong case,” Vancouver lawyer Greg McDade told reporters this morning at a press conference hosted by the chief of the three First Nations leading the legal challenge. “It’s too bad they have to go to court.”

McDade has extensive experience at the Supreme Court of Canada level – and cases he was directly involved with are often cited in court as the leading case law in the country.

Bill S-6 amended the Yukon Environmental and Socio-economic Assessment Act, and similar legislation for Nunavut.

The First Nation is asking the court to strike down all 70-plus amendments to the act, not just the four.

It would require starting over, McDade said.

He explained Bill S-6 is the law now. If there was a move by Ottawa to use any of the controversial amendments in the Yukon, he added, it would be up to the affected First Nation to decide whether to take legal action, and perhaps seek an injunction preventing Ottawa from doing so.

The assessment legislation was born out of the Umbrella Final Agreement, the blueprint for settling aboriginal land claims in the Yukon. It called for a mandatory five-year review of the assessment act.

More than 70 amendments were agreed to by the First Nations, the Yukon government and Ottawa.

The First Nations contend they knew nothing about the four amendments until they were already locked in by the federal government.

They maintain the amendments will introduce political influence into what is supposed to be an independent environmental review process. Bill S-6 will weaken the review process overall in favour of industry, the First Nations contend.

Pasloski declined comment this morning.

He has insisted in the past the Yukon government was always been up front with First Nations. The four amendments, the premier has said, will streamline the review process to make the Yukon more competitive in attracting investment.

Chief Eric Fairclough of the Little Salmon-Carmacks First Nation, Chief Steve Smith of the Champagne and Aishihik First Nations and Chief Carl Sidney of the Teslin Tlingit Council hosted the press conference.

Fairclough said 10 of the 11 self-governing First Nations are standing behind the three and are assisting with the cost, which could reach well into the hundreds of thousands of dollars, maybe even $1 million.

“We must do what we have to do to protect our agreements,” said Fairclough.

He said the First Nations lobbied Ottawa to hold off on S-6, to explore options to the four amendments, but the federal government refused.

Court action, Fairclough said, was necessary.

The Teslin chief emphasized as a result of land claim and self-government negotiations, Yukon First Nations surrendered their aboriginal rights and title to a vast amount of their traditional territories. In exchange, they received legal certainty that they would be full partners in the management of the territory’s lands and resources, Sidney said.

Bill S-6, he suggested, falls well short of the partnership set out in the Constitution of Canada.

Chief Smith emphasized Yukon First Nations are in full support of responsible development.

They’ve invested tens of millions in the Yukon economy and local businesses, he said.

Smith said it was regrettable that the First Nations were having to announce the court action today, regrettable how the uncertainty created will hinder efforts for community and economic development.

“We are for sustainable development, but we must first reconcile this treaty matter,” he said. “We expect this case to bring certainty.”

The senior aboriginal rights lawyer said the federal government failed in its legal obligations on two fronts.

First of all, McDade told reporters, Ottawa decided all by itself in 2012 that the five-year review was over, without consulting First Nations of the Yukon government.

Secondly, passing the four amendments did not fulfill the constitutional duty to fully consult First Nations. It did carry the honour of the Crown the Supreme Court of Canada expects to see when governments deal with modern-day treaties, he explained.

McDade told reporters it’s difficult to predict a precise timeline about how long the case will take. He said under normal circumstances, it would be reasonable to have the matter heard in the Yukon Supreme Court next spring, with a decision sometime next summer, he said.

The Kluane First Nation is the only self-governing First Nation that is not participating in the legal action.

Comments (8)

Up 2 Down 0

Questionimg Whe? on Oct 18, 2015 at 1:29 pm

Does anyone know why Kluane First Nation is not part of the lawsuit?

Up 66 Down 27

Mulcair is gone on Oct 15, 2015 at 1:31 pm

Don't waste your vote on the NDP.

Up 48 Down 38

Ban the Trolls on Oct 15, 2015 at 12:45 pm

Hey "Here we go again, it never ends" yes FNs will continue to go to court as a last resort if that is what it takes to protect our Agreements. FNs in this country have ceded a lot of land including the land that you probably are situate on to have these modern day treaties. We are not going to let of bunch of neo cons take that away from us. Rest assured court action is not the last resort.
And you Josie wails (which ever one you are) FN use their own resources for court action regardless of where it comes from. Everything that generates cash in this country, FNs get their piece of the pie, it is our country after all. So don't make it sound like your government owns everything, they don't, get with the program!! It is 2015.

Up 6 Down 57

Josey Wales on Oct 15, 2015 at 9:01 am

Seems we having dueling "Josey" pair...that said THIS Josey says it real easy to engage in lawfare when the entire country pays your legal bills from cradle to grave.

Hey ol' Josey...try harder your posts read like a confused socialist afraid of dissent.
But given your a lefty Josey...feel free to post as ridiculously as you please as your faaaar closer to the comrades at the star and its "moderator" .
This Josey is certain you will not be subject to epic edits this Josey is.
till later "Josey"

Up 16 Down 31

Rod on Oct 15, 2015 at 4:51 am

HERE WE GO AGAIN! Never ending!

Up 44 Down 25

History matters! on Oct 14, 2015 at 8:48 pm

I believe the Self Governments will win this case. I love the Yukon and those who continue to carry on their ancestors duty to protect their land from being stripped right before their eyes. Haven't they heard? Ocean coral reefs are dying and so will this part of the country and every living specie living in this neck of the woods. Way to go Harper! Not!! TOM MULCLAIRE WILL FIX THIS ALL!

Up 49 Down 24

June Jackson on Oct 14, 2015 at 6:59 pm

I agree with the FN on this one. YESAA was brought into effect from CEAA..The Queen signed YESAA into law in Nov of 2003 I think it was, and was designed to put protections in place:
The Act’s purpose and mandate are to:

Provide a comprehensive, neutrally conducted assessment process applicable in Yukon.
Require that, before projects are undertaken, their environmental and socio-economic effects are considered.
Protect and maintain environmental quality and heritage resources.
Protect and promote the well-being of Yukon First Nations persons, their societies and Yukon residents generally, as well as the interests of other Canadians.
Ensure that projects are undertaken in accordance with principles that foster beneficial socio-economic change without undermining the ecological and social systems on which communities, their residents, and societies in general, depend.
Recognize and, to the extent practicable, enhance the traditional economy of Yukon First Nations and their special relationship with the wilderness environment.
Guarantee opportunities for the participation of Yukon First Nations persons and make use of their knowledge and experience in the assessment process.
Provide opportunities for public participation in the assessment process.
Ensure that the assessment process is conducted in a timely, efficient and effective manner that avoids duplication.
Provide certainty to the extent practicable with respect to assessment procedures, including information requirements, time limits and costs to participants.

Bill S-6 overrides or erodes most of the above. I looked at Bill S-6..I had to reduce it to a summary. In the end for me.. this was about taking the Peel.. and allowing fracking.. I hope the FN stops them.


Up 77 Down 35

Josey Wales on Oct 14, 2015 at 4:30 pm

Oh look, another court case brought on by Leef and Harper. Where's Danny Lang? It don't surprise ol' Josey if he's off in the corner, eating his warm cookies. The good news is Trudeau will fix this up real nice like.

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