by Yule Schmidt
The Yukon government can’t seem to escape costly lawsuits when it comes to issues involving First Nations. It has been served with three lawsuits in the past month alone. This, despite the conclusion of land-claims agreements with 11 of its 14 First Nations – almost half of the total agreements in Canada.
Land claims were supposed to provide legal certainty. The 1993 Umbrella Final Agreement between Canada, Yukon, and Yukon First Nations (the precursory framework to individual agreements) confirmed the parties’ “wish to achieve certainty with respect to the ownership and use of lands and other resources in Yukon” and “with respect to their relationships with each other.”
In other words, the goal was to define the parties’ respective rights and obligations and then ratify them in legally binding agreements. In addition, land claims were accompanied by a self-government agreement, which gave each settled First Nation autonomy over its own affairs and lands, and reset the relationship between the three signatories on equal, government-to-government footing.
Land claims were seen as the concluding fulfillment of government’s fiduciary responsibility to First Nations, severing the umbilical cord that had long bound them to territorial and federal administrations. But this finality has proved elusive.
Specifically, the agreements’ legal certainty has been subordinated to “the honour of the Crown” – a historical concept that was resurrected by the courts in the mid-1980s. Initially, it referred simply to the opposite of “sharp dealing” (i.e., unethical action) with First Nations.
But its definition has broadened over time. In Haida v. British Columbia (2004), the Supreme Court of Canada determined that the honour of the Crown includes the duty to consult and accommodate. Accordingly, treaties must be “understood generously” with regard to First Nations in order to “achieve the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.”
Haida had a significant impact on Yukon land claims. In 2010, the Supreme Court of Canada invoked it as the basis for Beckman v. Little Salmon. Despite the existence of a settled land claim, the Little Salmon/Carmacks First Nation sued the Yukon government for allowing an agricultural lease, arguing that the government still had an obligation to consult on Crown land within its traditional territory.
The government countered that the land claim annulled the consultation requirement. By settling, the First Nation had ceded territory to the Crown, and the Crown was entitled to use it. In essence, the land claim negotiating process had been a protracted consultation period that needn’t be repeated.
But the court concluded that land claims did not, in fact, preclude the duty to consult. The honour of the Crown applied independently of, and in addition to, legal agreements.
The consequence of this decision has been to remove the “final” from Yukon’s final agreements, swapping agreed-upon legal provisions for a rather malleable concept of the Crown’s honour.
In addition to the danger of judicial activism that this new approach unleashes, it undermines the very goal of land claims – to end government paternalism and achieve socio-economic equality for Yukon First Nations through a conclusive settlement of grievances.
The assumption that Yukon First Nations require special treatment is the exact attitude their leaders sought to counteract through land claims
The two dissenting judges in Beckman recognized this objective: “To give full effect to the provisions of a treaty such as the Final Agreement is to renounce a paternalistic approach to relations with aboriginal peoples.” In short, “fiduciary” is just a synonym for paternalistic. By mandating the government to “generously” consult beyond the legal requirements of a land claim, the court inherently refuted First Nations’ ability to function within ungenerous (i.e., normal) legal bounds.
The assumption that Yukon First Nations require special treatment is the exact attitude their leaders sought to counteract through land claims. According to Together Today for Our Children Tomorrow, the 1973 document compiled by Yukon First Nations leaders that effectively sparked land claims negotiations: “The purpose of this settlement is to enable the Indian people in the Yukon to live and work together on equal terms with the Whiteman.”
Since then, the courts have replaced the government’s paternalism with a form of their own. And its enshrinement in statutory law will make it particularly difficult to undo.
As long as the honour of the Crown trumps the legal provisions of land claims, the Yukon government and its settled First Nations will continue disputing the meaning of their final agreements in court. The territory’s experience should serve as a warning to other jurisdictions considering a similar path.
Yule Schmidt is based in Whitehorse, where she serves as a special advisor to the Yukon government. This article, originally published in the National Post, reflects her personal views and not those of her employer.