There is no legal obligation for Canada to settle land claims with First Nations, according to a decision by Yukon Supreme Court Justice Leigh Gower.
In a two-week-long court case in November, the Ross River Dena Council tried to convince the judge that promises made in 1870 should still be held to account today.
The 1870 Order between England and Canada made the Yukon part of the new federation. In exchange for the land, Canada would have to resolve any issues with the Hudson’s Bay Company and the “Indians.”
Gower sided with a key witness brought in by Canada during the case, Cambridge University Professor Paul McHugh.
The “fatal” part of the Ross River Dena Council’s case, Gower wrote in his decision, was that they were applying the words of the order in today’s context.
Instead, as McHugh testified, the agreement should be read in the context of the time it was written. In other words, Gower had to decide what the government of Canada was thinking when they signed the contract in 1870.
“Accordingly, I agree with Canada that the relevant provision in the 1870 Order cannot create an obligation to negotiate treaties and that Canada retains the discretion to decide if, when, and how to negotiate, as a matter of Crown prerogative,” Gower’s decision read.
Because he does not see any enforceable legal obligation, Gower further decided that there are no financial obligations on Canada to the Ross River Dena Council.
The council is one of three Yukon First Nations that have not signed a land claim, self-government and final agreement with Canada.
Negotiations began in 1996.
In 1999, the council and the Liard First Nation requested to negotiate at the same table in the hope of achieving a single Kaska agreement, or two separate but similar agreements. Negotiations continued until June 2002, when the mandate for the Canadian government expired.
The First Nation rejected the government’s formal offer to settle the land claim. There have been no negotiations since.
Over the telephone, after the decision was published Tuesday, Chief Jack Caesar of the Ross River Dena Council said he wanted to reserve a comment until after the 91-page decision could be fully analyzed.
Contact Roxanne Stasyszyn at