The Ross River Dena Council has won the right to see secret federal cabinet documents from 1973 that Ottawa did not want to release.

Yukon Supreme Court Justice Leigh Gower ruled last Thursday the Ross River Kaska are entitled to full disclosure of three of the five documents they wanted full access to within 30 days.

Gower's decision is the latest in a series of decisons on preliminary matters that parties have argued in advance of the main trial, for which no date has been set.

The Ross River Dena Council, one of three of the 14 Yukon First Nations without a land claim settlement, is suing Ottawa for what it argues is breach of the federal government's responsibility to deal honestly and fairly with first nations.

It argues that Canada has an obligation to negotiate and settle in good faith with first nations that have not surrendered their rights and title before it assumes any type of ownership over their traditional lands.

"If I have to pick three of the five documents, I would have picked those three,” Stephen Walsh, the Whitehorse lawyer representing the Kaska, said in an interview this morning about being awarded full access to three of the five cabinet memorandums from 1973.

"This is of real significance because for Kaska, the terms upon which their claims were accepted is a very important issue.”

One of three documents is a June 1973, 18-page memorandum containing advice from then federal justice minister Otto Lang to his cabinet colleagues surrounding the development of a federal aboriginal claims policy.

In what Gower describes as an "exceptional document,” Lang's memorandum contains the minister's legal opinion of the famous decision by the Supreme Court of Canada on the Frank Calder, a Nisga from B.C. who was asserting his aboriginal rights and title remained unextinguished.

As a result of the Jan. 31, 1973 Calder decision, Canada immediately developed its aboriginal claims policy, which was announced in August 1973 by then Indian Affairs minister Jean Chretien.

In arguments put before the court in late September, Walsh argued for various complex matters of law, that the Ross River Dena Council were entitled to see cabinet documents relating to the development of the aboriginal claims policy.

Federal lawyer Maegan Hough countered the documents were protected by solicitor-client confidentiality, as the justice minister was providing legal advice to his client, the federal cabinet.

And while Ottawa acknowledged the existence of complex legal circumstances that can nullify that protection of confidentiality, none applied to any of the five documents.

Gower ruled two of the five remained protected by the solicitor-client privilege, but that Ottawa must provide full disclosure of the other three.

Federal officials were unavailable this morning to comment on whether Ottawa will appeal Gower's decision.

Under law, all cabinet documents are sealed for 30 years, and those that are subject to solicitor-client privilege are sealed forever.

Though Ottawa agreed last August to provide full disclosure of several sections of documents it previously whited-out, it refused to provide access to several of the sections.

In the case of Lang's18-page memorandum to his Liberal cabinet colleagues, Walsh is certain the federal minister's advice will include his assessment of the federal order of 1870 that forms a key piece of the Kaskas' argument.

The Kaska argue the 1870 order compels Ottawa to deal honourably with first nations that have unsurrendered rights and title.

In Gower's decision, the judge cites several sections of cabinet documents that were whited-out up until Canada agreed in August to provide the text.

According to the documents, a special federal committee on Indian claims agreed that: "the Government should immediately and publicly declare a policy (of recognizing the Indian title where its surrender by the Indians has not yet taken place) in the Territories, northern Quebec and British Columbia, and accept the principle of compensating for loss of traditional use and occupancy....” (The italics and bold represent the words whited-out by Ottawa up until August.)

Walsh said gaining full access to the three documents is significant not only for the Kaska, but for other first nations in Canada with unsurrendered rights and title.

The Kaska and Ottawa have been in court on several preliminary matters since the Ross River Dena Council filed its lawsuits in 2005 and 2006.

Back in 2007, Ottawa attempted to have the case thrown out as being without any substance and meant to be nothing more than a thorn in the federal government's side.

Gower declined, saying the case could be one of the most significant in Yukon's history.

Walsh said he's not sure if any other preliminary matters will need to be dealt with prior to trial, but that he's confident the trial could go ahead within the next year.