Canada is now prepared to discuss the possibility of a land claim agreement with the Kaska outside the parameters of the Umbrella Final Agreement (UFA), says a federal lawyer.
Suzanne Duncan revealed Ottawa’s position Monday in Yukon Supreme Court. She did so as she opened her defence in the lawsuit against the federal government by the Ross River Dena Council.
Duncan emphasized it again this morning, telling Justice Leigh Gower even though it might be seen as controversial, she had been instructed to say it.
“Canada has now made an internal commitment they are going to communicate to Ross River regardless of the outcome of this case that they want to meet with the Kaska to discuss the possibility of a resolution to their claim not on the basis of the UFA,” she said.
For years, Canada has refused to even consider negotiating an aboriginal land claim in the Yukon outside the UFA’s parameters, which formed the foundation for negotiating the final agreements with 11 Yukon First Nations.
Going back to the 1990s, after Ross River had reversed its initial support of the UFA, correspondence from federal ministers put before the court indicated there was zero appetite in Ottawa for negotiating with the Kaska outside the terms of the UFA.
Such a move, federal ministers feared, would raise very serious concerns among the First Nations that did agree to negotiate their agreements based on the terms of the UFA, and may jeopardize those agreements.
Duncan spent Monday and this morning arguing how the federal government went to the wall in its attempts to reach a land claim agreement with the Ross River Dena Council.
She spent all day Monday going through correspondence after correspondence detailing years of discussions regarding the land claim negotiations in the Yukon in general and specifically with regard to Ross River.
Those discussions included requirements for ratification of the UFA, she explained to the court.
Through the late 1980s, 1990s and beyond, Ottawa has tried and tried to reach a settlement with the Kaska of Ross River and the Liard First Nation of Watson Lake, she said.
Duncan explained how the federal government even extended its March 31, 2002, deadline for concluding land claim negotiations in the Yukon for a couple of months in a sincere effort to conclude agreements with the Kaska.
The federal government is still prepared to meet with Kaska to see if they can reach an agreement, regardless of the outcome of this week’s trial, she said Monday, before reiterating the point again today.
The Ross River Dena Council is suing the federal government. It claims Ottawa is in breach of a 150-year-old obligation under the Constitution of the Canada to settle the interests of the First Nation before making its traditional territory available for settlement by others – including the former Faro mine.
It is claiming the federal government not only failed to fulfill the obligation, it also accuses the federal government of being less than honourable in its attempts to negotiate an agreement with the First Nation.
It accused Ottawa and the Yukon government last week of going behind the backs of the Kaska to insert a provision in the UFA that gave the Yukon government a veto over transboundary land claim agreements.
A key argument by Ross River was that the UFA was never properly ratified according to the process agreed to, and Ottawa knows it.
Ross River further contends Ottawa is continuing its breach of the constitutional obligation by refusing to return to the table so that the First Nation can negotiate an agreement to provide for its inherent right to self-government.
The trial began its fifth day today with Duncan continuing to put forward her defence. The trial is scheduled to conclude tomorrow.
Duncan spent yesterday detailing how negotiators, and elected principals of the then-Council for Yukon Indians, the federal government and the Yukon governments were in constant contact through the years of negotiations.
Accusations put forward last week by Ross River lawyer Stephen Walsh that Canada has been dishonourable, that the UFA was never legally approved, and more, were addressed one at a time by Duncan.
She went to great lengths to meticulously detail for the judge how the UFA’s ratification was agreed upon and ratified by all parties.
She explained how the UFA was initially approved at a general assembly of all 14 Yukon First Nations in 1991 and how it was a representative of the Ross River Dena Council who moved the motion at the assembly to approve the UFA.
She produced evidence of how the general assembly directed the leadership of the Council for Yukon Indians – the 14 chiefs – to vote on the final version of the UFA once specific amendments had been made.
The final vote occurred at a leadership meeting in early 1993 when 10 of the Yukon First Nations voted in favour of the UFA, Duncan told Gower while providing supporting documentation.
Ross River, the Liard First Nation and the Little Salmon-Carmacks First Nation voted against the UFA and the White River First Nation abstained, she explained.
Duncan pointed out the Little Salmon-Carmacks First Nation went on to negotiate a final land claim settlement under the terms of the UFA.
As the chair of the Council for Yukon Indians at the time, Judy Gingell reported the vote of the leadership meeting to then federal minister Tom Siddon. She explained the Kaska’s opposition to the UFA revolved around the veto power over transboundary claims given to the Yukon government.
By a previous agreement, approval of the UFA required support from nine of the 14 Yukon First Nations, she explained to the court, again producing supporting documentation.
Duncan explained to the court how mistakes were made in two sworn statements to the court by a senior federal official. In answering all the questions, Ross River had asked Canada in preparation of two of its lawsuits, federal researchers combed through 45,000 documents and produced 16,000 responses, she told Gower.
She said that two errors were made – but eventually corrected – which was understandable as officials were relying on information provided to them.
And the errors in question were not substantial, she suggested.
Duncan insisted even after the federal mandate for negotiating claims in the Yukon ended in 2002, Ottawa has routinely reached out to Ross River in attempts to address outstanding issues.
To suggest Ottawa turned its back on Ross River after 2002 would be a “gross mischaracterization,” she told Gower.