A legal battle between a farmer and a trapper in Yukon Supreme Court this week could change the way First Nations’ final agreements are viewed.
Are they a step towards reconciling Canada’s shoddy history of treating its aboriginal citizens?
Or are the final agreements all-inclusive documents that lay out all the responsibilities the Crown owes First Nations under certain circumstances?
A dispute over the fate of a 65-hectare chunk of land in Little Salmon/Carmacks First Nation’s traditional territory lies at the heart of the case.
The First Nation is challenging a Yukon government decision to issue land to Larry Paulsen, who wants to grow hay, raise livestock and spot-harvest timber.
The area, located about 40 kilometres north of Carmacks, is near the First Nation’s settlement lands.
It also overlaps trapline No. 143, owned by Little Salmon/Carmacks elder Johnny Sam since 1957.
After being approved by the Land Application Review Committee, the Yukon government accepted Paulsen’s application for the land in 2004.
But the First Nation asserts it was not properly consulted before the government approved the application.
And the decision could have adverse effects on the elder’s trapline, the surrounding environment and wildlife values, and the First Nation as a whole, Justice Ron Veale heard this week.
The government had a duty to consult and, if appropriate, “accommodate” the First Nation in considering Paulsen’s application, aboriginal rights lawyer Arthur Pape argued in his submission on Wednesday.
That is the case, even though the duty is not specifically included in the First Nation’s final agreement, he said.
Pape, a high-profile Vancouver-based lawyer, came to Whitehorse to represent Little Salmon/Carmacks.
The treaty is not the end of the process; it’s a step in the government’s reconciliation with First Nations, Pape told the court.
“You can’t make the argument that this was not covered in the land claim because things come up that we don’t anticipate.”
The government had no duty to consult, Crown lawyer Penelope Gawn argued on Thursday.
The rights laid out in the final agreement replaced any duty the government had to consult or accommodate, she told the court.
If the government had a duty to consult the First Nation in circumstances like this, it would have been outlined in the final agreement, which Gawn described as a “comprehensive document.”
The Little Salmon/Carmack’s final agreement includes the word “consult” or “consultation” more than 60 times, argued Gawn.
In its land claim, the First Nation also had the option to choose the land in question as a special-management area and it did not, said Gawn.
It is “vitally important” that the treaty not be “undermined” by additions after the fact, she said.
However, the argument was not meant to imply that all of the final agreements were set in stone and must be rigidly followed forever, said Gawn after questioning from Veale.
The First Nation was alerted to Paulsen’s application through the Yukon’s Land Application Review Committee process.
It replied with a letter listing concerns about the application, but did not attend, or ask for a postponement of the meeting discussing the application, which took place in August 2004, argued Gawn.
Paulsen’s application was approved following that meeting.
But because the First Nation was considered a member of the land application review committee, it could not be granted intervener status to appeal the decision, Gawn told the court.
The land application review process was established by government to serve its own interests, said Pape.
The First Nation was “out of luck,” he said.
“That’s pretty astonishing, and that’s why we’re here,” he told the court.
Pape cited case law from recent Supreme Court decisions involving the government’s duty to consult and to accommodate the concerns of aboriginal peoples.
He heavily cited from the Mikisew Cree decision of 2005, which arose from a proposal to run a winter road through areas many local First Nations families used for hunting and trapping.
In that case, the Supreme Court ruled governments have the power to infringe on historic treaty rights, but also have the duty to consult First Nations if they’ll be adversely affected by those decisions.
Pape argued the circumstances in the Mikisew Cree decision were comparable to those of the Little Salmon/Carmacks case.
Gawn countered this case is “novel” because the Little Salmon/Carmacks dispute involves a “modern” land claim, which is a more sophisticated treaty than the Mikisew Cree was functioning under.
Lawyers for both sides agreed that modern land-claim agreements are negotiated on a much more level playing field than their historic counterparts.
Meanwhile, Paulsen’s lawyer, Christina Sutherland, argued her client was an “innocent third party” in the dispute.
He’s put more than $25,000 into the property, plus the time and money tied up in the legal proceeding, she told the court.
He wants the land and has been waiting and will be waiting for a long time, she said.
The hearing is scheduled to finish on Friday.
The land has not been transferred, nor will be transferred until the court makes a judgment on the case.