Yukon Supreme Court Justice Ron Veale has granted the Ta'an Kwach'an Council the injunction it sought to suspend the tender for two Yukon government-owned waterfront lots in downtown Whitehorse.

"I think this is a big win," acting Ta'an Chief Gail Anderson told reporters outside the Andrew Philipsen Law Centre on Monday afternoon following Veale's decision.

The main petition over the matter still has to be heard. However, Anderson said Monday's decision opens the door for the next step in the first nation moving forward to eventually discuss options for the waterfront with the government.

The first nation filed the petition for the injunction the day tenders on the two properties were due. The bids were then sealed until Veale could hear arguments in the case.

When the bids were opened last week, it was learned the Vuntut Gwitchin Limited Partnership was the highest bidder on both properties, while the Ta'an had the lowest bid submitted. One of the properties sits next to Ta'an settlement land.

"We want to have a presence on the waterfront," Anderson said, noting the historical significance the Yukon River and the area has to first nations people in the region.

If the river could talk, she said, it would tell of the era before non-aboriginals made contact with area first nations and just how extensively the river was used.

"It's within our traditional territory," Anderson said.

The sites up for sale - a 0.89 hectare parcel near Ogilvie Street and a 0.18 hectare piece of between First and Second Avenues - weren't available during the land claim negotiations because it was owned by the city at the time.

The land came into the government's possession through an agreement between the city and territory over funding for the 2007 Canada Winter Games.

Letters submitted as documents in the case show Premier Dennis Fentie stating there would be discussions with the first nation prior to its disposition.

The first nation has argued that would mean sit-down discussions with the government.

But YTG lawyer Penelope Gawn told the court during this month's hearing it was dealing with the Ta'an as a developer and therefore owed the common courtesies afforded to developers as opposed to first nation governments.

The premier phoned, and later wrote a letter, to inform the first nation of the tendering process for the land.

Anderson noted Monday that as a level of government within the Yukon, the first nation had expected government-to-government discussions about the land.

In looking at the injunction, Veale determined the matter is serious enough to be tried, irreparable harm would be suffered by the first nation if the injunction wasn't granted and the balance of convenience was in favour of the Ta'an.

The judge noted the two questions the Ta'an brought forward in whether the government has a duty to consult and accommodate the first nation and whether the territory also has a duty of procedural fairness coming out of the letters exchanged between Fentie and the Ta'an.

With the issue being the injunction rather than the main case itself, Veale noted only a limited review is warranted to determine if there is a serious question.

The government argued the Ta'an released its aboriginal title to the land when it signed its land claim and self-government agreements. Though the property lies in the first nation's traditional territory, YTG argued, there would be no negative effects on its claims and therefore the duty to consult and accommodate wouldn't be engaged.

"Indeed, there is no reference in the correspondence to treaty rights in the final agreement," reads the decision, adding though the first nation argued it's the Economic Development Measures portion of the final agreement that's invoked in this case.

The second question, Veale continued, isn't related to the final agreement, but comes from Ta'an's submission that the territory has a duty of fairness coming from the honour of the Crown that's outside of any agreement.

"There is undoubtedly a common law duty of procedural fairness and Ta'an Kwach'an Council submits this duty is enhanced when the Yukon government deal with first nations," reads the judgment, which then goes on to point to case law.

"It is not necessary to examine these submissions extensively until the hearing of the petition," Veale then commented.

"In my preliminary view, the facts in this case raise a serious question to be tried with respect to the duty of procedural fairness and the honour of the Crown."

He then goes on to note the case is one where the main hearing could become pointless without the injunction being granted.

"In my view, this is not a case where irreparable harm is a question of monetary damage, but rather whether the failure to grant the relief would render the further hearing on the merits futile or pointless as the specific waterfront land would be sold," Veale said.

"I find that the irreparable harm branch is satisfied on the facts of this application, as a failure to grant the interlocutory injunction would destroy the essence of the petitioner's case: that is, there would be no opportunity to have a bona fide good faith discussion of the various options available for the waterfront land.

"If there is an obligation to discuss the disposal, it must take place before the waterfront lands are sold."

The territory argued the tendering process would be impacted if the injunction was granted, and raised questions on the damages that would be suffered by the Vuntut Gwitchin if there was a delay.

Veale noted the Ta'an has satisfied the issue of damages by an undertaking that states the first nation would pay any damages.

Veale also notes that while the territory stated other city lots could be available in place of the territory's lots, those properties have a different size and location.

"But more to the point, the case is really about whether the honour of the Crown is engaged to require a bona fide discussion about the specific waterfront land," Veale said.

He then concluded the public interest in finishing the tender has to be weighed against the public interest in upholding the duty that comes from the honour of the Crown.

"I conclude that the balance of convenience favours maintaining the status quo until there is a hearing on the merits," Veale said.

"I grant the application for an interlocutory injunction and suspend the tendering process pending the hearing of the petition," the judge said.

He also ordered Ta'an abide by any order made over the damages and the first nation file another affidavit specific to the damages that may be ordered.