Whitehorse lawyer Stephen Walsh says last week's Supreme Court of Canada decision involving the Metis of Manitoba is significant for the Ross River Dena Council.

"People who know about the 1870 order case recognize how significant this is,” Walsh said in an interview Tuesday.

"What is of great interest to me and my client is the fact that what we are talking about here is a promise made to aboriginal people entrenched in a constitutional document in 1870.

"And that is what our 1870 order case is all about,” he said in reference to Ross River's lawsuit against the federal government.

Ross River filed suit against Ottawa in 2005 and 2006, claiming the federal government was obligated under the Order of 1870 to settle the interests of the aboriginal people in the Yukon before making land available to others.

Ottawa failed to live up to its obligation, and was therefore and still is in breach of its responsibilities entrenched in the Constitution of Canada, Ross River maintains.

Justice Leigh Gower of the Yukon Supreme Court dismissed Ross River's claim in November 2011.

But the Yukon Court of Appeal set aside Gower's decision last November, citing a technical problem about how the case was managed.

The three judges from the Court of Appeal have yet to provide full written reasons for their decision, or directions on how to proceed with a new trial.

Walsh said the constitutional document tested in the Metis case – the Manitoba Act of 1870 – is of course different than the Rupert's Land and North-western Territory Order of 1870 being cited in the Ross River case.

But the documents are similar in that they both establish a federal commitment to address aboriginal interests as part of Canada's expansion to include the Red River Settlement and north-western Canada, he explained.

Last week's Supreme Court of Canada decision found the Manitoba Act committed Canada to settle the interests of the Red River Metis prior to the impending arrival of settlers from the east.

While Canada undertook to settle with the Metis, it ultimately failed to complete the task of ensuring their rights were protected, six of eight Supreme Court justices ruled, with the other two offering opposing opinions.

The majority also agreed the claims by the Metis have not been reduced by the passage of time.

The majority agreed it would be an affront to the Constitution of Canada if the court did not fulfill its duty to guard and uphold the Constitution.

"One the key factors was a promise to provide a lot of land to the children of the Metis to basically give them a head start ahead of the settlers they knew would be pouring in,” Walsh said of the commitment set out in the Manitoba Act.

"The bottom line is there was a promise made in a constitutional document in 1870 that was not honoured.

"We are saying the same thing,” he said of Ross River's position.

At the initial trial of the Ross River case, Gower accepted the analysis of an international expert on constitutional documents in arriving at his decision.

The expert said the Order of 1870 surrounding the transfer of the Yukon to Canada did include a commitment to settle the interests of the aboriginal people before making land available to others.

In the language of the day, however, the commitment amounted to a promise by the federal government to be a good neighbour and look after the interests of the aboriginal people, the expert explained.

He said the commitment, however, was not meant to be a legally enforceable obligation enshrined is the Constitution.

Gower agreed the promise was not meant to be enforceable in a court of law, and went on to dismiss the claim by the Ross River Dena Council.

Ross River filed an appeal, arguing the promise made 143 years ago was indeed legally binding s a constitutional commitment, and remains legally enforceable today.

The Court of Appeal ruled at the very outset of the hearings in November that it could not proceed with hearing arguments on the merits of the case.

It found the question Justice Gower was asked to answer at the trial was fundamentally flawed, and therefore a new trial would have to be held.

The three judges provided a brief statement regarding their decision for a new trial.

They also said they would follow up with more thorough written reasons, along with instructions on how to proceed with a new trial.

The reasons and instructions have not yet come down.

Walsh said last week's Manitoba Metis decision will certainly form part of Ross River's case at the new trial.

"Oh yes, oh yes,” he said. "It is a very important case for us because it establishes, I mean this is the highest court in the country, that promises made to aboriginal people, that promises made in constitutional documents in 1870, are bound in the honour of the Crown.

"We are not dealing with the same promise, but the underlying purpose is the same.”

Walsh pointed out it was Thomas Berger, a renowned aboriginal rights lawyer, who presented the Manitoba Metis case to the Supreme Court of Canada 15 months ago.

It was Berger who appeared with Walsh last November to present the Ross River case to the Court of Appeal.

The Ross River Dena Council is one of three Yukon First Nations lacking an aboriginal land claim.

In a separate case involving Ross River, the Court of Appeal ruled in December that before the Yukon government can register mineral claims inside Ross River's traditional territory, it must consult the First Nation.

The government has one year from Dec. 27 to make the necessary adjustments to comply.

The government has acknowledged the implications of December's decision are huge, and could affect the mineral exploration industry right across Canada.

The government has asked the Supreme Court of Canada to hear an appeal of the decision, but there are no guarantees. The highest court in the country hears about 10 per cent of the cases it's asked to.

See letter.