The three Yukon First Nations without land claim agreements are at a distinct disadvantage to other First Nations across Canada, according to a report cited Wednesday in Yukon Supreme Court.
The matter arose as lawyers for the federal government and the Ross River Dena Council continued to make pre-trial arguments over the admissibility of documents on day three of what was supposed to be a five-day trial this week.
Ross River is one of the three Yukon First Nations without a land claim settlement.
In its lawsuit against Ottawa, the First Nation claims the federal government has had a “constitutional” obligation to settle the interests of the Ross River Kaska going back to 1870, when the Yukon became part of the Dominion of Canada.
It also argues Canada has failed to fulfill that obligation and is now liable for its negligence.
Ottawa, on the other hand, argues its obligation does not reach back to 1870.
And ever since 1973, when the federal government did agree to begin negotiating modern day treaties, Ottawa has done everything in its power to reach a settlement with Ross River, Ottawa maintains.
The official federal mandate to negotiate settlements with the 14 Yukon First Nations ended in 2002. Eleven have signed agreements.
Ross River lawyer Stephen Walsh wants to introduce emails between the First Nation and the federal government regarding discussions about options to reach some sort of settlement.
The former federal Conservative government commissioned an analysis in 2006 to look at what could be done about the three Yukon First Nations without land claim or self-government agreements, Walsh pointed out to the court yesterday.
In the report filed in 2008 by Gavin Finch, Walsh said, Finch notes how the three First Nations are at a “unique disadvantage” because they don’t have ownership to any land: no settlement land, no reserve land.
“What I want to get before the court is the lack of governance, the lack of ability to do what every other First Nation in the country can do – pass a bylaw,” Walsh said.
He said there have been discussions with Ottawa about a possible settlement for Ross River on three separate occasions, the latest coming after a 21-year-old Ross River man was killed by dogs and partially eaten in 2015.
The Finch report, Walsh told the court, suggested converting the land set aside for Ross River into reserve land, an option that both Ross River and the White River First Nation favour.
It would provide tax-exempt status to those First Nation lands as well as open up other opportunities for self-governance, he told the judge.
Walsh said the Finch report also noted the Yukon government objected strenuously to the suggestion of creating reserve lands because it would be a significant departure to negotiating settlements under the guidelines set out in the UFA (Umbrella Final Agreement).
(The UFA does not allow for tax-exempt status of aboriginal settlement lands, and in fact requires First Nations to relinquish tax-exempt provisions as part of settlement.)
Not long into Walsh’s argument, federal lawyer Suzanne Duncan rose to object. She pointed out to the judge that Walsh was beginning to read from the material the federal government believes is inadmissible as evidence.
Duncan said she did not want any of that material read into the court record until there is a ruling on whether it will be permitted as evidence.
The leading law in Canada, she argued, says the contents of negotiations to reach settlement agreements is privileged – private and confidential – and cannot be used to support other cases.
“I can’t see why Mr. Walsh wants these emails in order to bolster his allegations of bad-faith negotiations,” Duncan told Justice Leigh Gower.
Gower reserved his decision on the admissibility of the emails after final submissions were heard Wednesday afternoon. He adjourned the case to Friday morning, when he’s scheduled to give his ruling.
The Ross River Dena Council is attempting to show that Ottawa has not lived up to the constitutional requirement to do its best to settle with the First Nation.
It was Ottawa that pulled the plug on negotiations in 2002, not Ross River, the First Nation argues.
Ross River maintains if has offered time and time again to get back to the negotiating table but not under the terms set out in the UFA.
The First Nation, in fact, is attacking the UFA’s validity as part of the trial, arguing it was never legally ratified in accordance with conditions set out in the UFA.