Decision handed down in a decade old case involving Ross River Dena Council’s lawsuit filed against Canada’s conduct in relation to its traditional territory. (Joel Krahn/Yukon News)

Canada acted in ‘good faith’ while negotiating with Ross River Dena Council, Yukon judge finds

Justice Leigh Gower’s decisions on RRDC lawsuits over its traditional territory were released Oct. 24

Canada did not treat the Ross River Dena Council unfairly while attempting to negotiate a modern land claims agreement, a Yukon judge has ruled.

Nor is Canada obligated to obtain a treaty with a First Nation before setting foot on its traditional territory, although it must consider a First Nation’s claims for compensation for use of its land.

Those were among the details contained in two lengthy decisions by Yukon Supreme Court Justice Leigh Gower, made public Oct. 24, on lawsuits filed by RRDC more than a decade ago over Canada’s conduct in relation to its traditional territory.

The RRDC, whose traditional territory emcompasses approxiatemly 35,280 square kilometres — or seven per cent of the Yukon — is one of three Yukon First Nations that have not signed a self-government agreement. Negotiations between the First Nation and Canadian government stalled back in 2002 after the two parties failed to sign a deal by the deadline.

In one of the lawsuits, filed in 2006, the RRDC claimed that during the negotiations, the Canadian Crown acted “exceptionally high-handed, oppressive and otherwise unconscionable” and approached the negotiations in bad faith by insisting on negotiating within the terms of the Umbrella Final Agreement, which the RRDC says is not properly ratified.

However, Gower found that RRDC failed to prove those claims beyond a reasonable doubt, writing that in his view, the record shows Canada acted “reasonably and fairly” for “approximately 30 years.” Gower noted, among other things, that Canada’s Minister of Indian and Northern Affairs travelled to the Yukon several times to meet with First Nations leaders prior to the negotiating mandate expiring “in order to address concerns and facilitate an agreement” and that “the parties came very close to achieving an agreement in June 2002.”

“Further, despite the end of that mandate, Canada has not refused to continue to negotiate. Rather, it has insisted that it will only do so on the basis of the UFA, which I have found to be a reasonable position,” Gower wrote, adding that negotiating in “good faith” does not “create a duty to reach an agreement” or “require a party to negotiate endlessly.”

The second lawsuit, filed back in 2005, largely revolved around interpretations of the 1870 order, which authorized the transfer of what was then known as Rupert’s Land and North-Western Territory from the British Crown to Canada, and what, if any, obligations the portion concerning Indigenous land claims bestows on the current government.

Gower found that the section in question is still valid and is a “legally binding constitutional obligation” for the Canadian Crown to “consider and settle” First Nations claims for compensation for use of their traditional territories. As such, the Canadian Crown breached this commitment from “at least 1969 to 1973,” Gower wrote, which was the period between the construction of Faro, which made use of RRDC land, and the introduction of Canada’s new land claims policy during which no negotiations with RRDC took place.

Speaking of Yukon First Nations in general, Gower wrote that, in his view, “the relevant provision probably obliged Canada to enter into treaty negotiations with Yukon Indians at the time of the gold rush, or shortly thereafter. Whatever the reasons of the federal bureaucrats and politicians for not doing so, the result is that, until Canada implemented its comprehensive land claims policy in 1973, Yukon Aboriginal peoples were treated differently from all other Aboriginal peoples in the regions across the country from Ontario to Alberta and the Northwest Territories where treaties were obtained.”

However, Gower found that the Crown acted in “good faith” in negotiations from 1973 to 2002, which “ameliorated its liability for the breach.” He also declined the RRDC’s requests that he make a declaration that Canada must reach a settlement with the RRDC before making further use of the land or that Canada “is in breach of its constitutional duty to RRDC and other Kaska” in regards to the territory in question.

Reached by phone Tuesday afternoon, the lawyer representing the Ross River Dena Council said he hadn’t had time to fully read the decisions and declined to comment.

The 127-page and 135-page decisions are available online at the Yukon courts’ website.

Contact Jackie Hong at jackie.hong@yukon-news.com

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