The Ross River Dena Council has taken Canada to court.
The First Nation is accusing Ottawa of breaching one of its first obligations as a new government.
More than 140 years ago, Canada promised the Queen it would settle aboriginal claims and protect aboriginal people in exchange for what became Crown land.
Without a land claim or self-government agreement, and the compensation that comes with it, the Ross River Dena Council says Ottawa has yet to complete the task.
And during that intervening period, one of the Yukon’s biggest mines - and environmental disasters - occurred on the First Nation’s traditional territory.
The Faro mine, one of the territory’s largest employers for most of its 30 years of operations, provided little tangible benefit to the First Nation. The former lead/zinc/silver minesite is now a threat to the Pelly River basin. More than 440 million tonnes of acid-generating waste rock and tailings must be monitored and managed in perpetuity to prevent the spread of contamination to water and surrounding lands.
There have been attempts to sign a land claim agreement with the Ross River Dena Council.
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.
A formal offer to settle the land claim was made, but was rejected.
There have been no negotiations since.
The second case being made by the Ross Rover Dena Council is that Canada has not negotiated in good faith.
“This is what the French Canadians used to refer to as ‘the last cannon shot,’” said northern historian Ken Coates. “If you can’t get an agreement, go back to court and say, ‘We have a right to the area.’ And then deal with it in those ways.”
But the choice for the Ross River Dena Council to base their main case on the 1870 Order puzzles Coates.
Most aboriginal rights and title cases are fought under the Royal Proclamation of 1763, which is much clearer and has much more authority and case law behind it, he said. The 1870 Order deals more with the outline of land and authority with the Hudson’s Bay Company.
But it does still include six separate mentions of Canada’s obligation to settle “the claims of the Indian tribes to compensation for lands required for purposes of settlement,” and “the duty of the government to make adequate provision for the protection of the Indian tribes whose interests and well-being are involved in the transfer.”
And it was after this contract, which transferred “Rupert’s Land” (Manitoba, Saskatchewan, Quebec, Ontario, Alberta, southern Nunavut and parts of Minnesota, Montana, North and South Dakota), and the “North-Western Territory” (northern BC and Alberta, northwestern Saskatchewan, mainland Northwest Territories, northwestern mainland of Nunavut and the Yukon) from British North America to Canada, that the treaty process began.
The Yukon lands were one of the only areas left without a treaty.
The federal government didn’t have a lot of money at that time, said Coates. And treaties were made with First Nations in areas where new Canadians planned to settle.
The North didn’t seem conducive to agricultural settlement.
The thought was that northern First Nations would take care of themselves if they were just left alone, said Coates.
So, even though northern aboriginal groups kept pushing for treaties, nothing was ever written.
Halfway through the 60-year, post-Confederation treaty process, however, the Klondike Gold Rush hit.
It became clear settlement of some sort and definite disturbance to aboriginal groups would happen in the area.
There was even a treaty signed for the gold rush in Northern Alberta and British Columbia to allow a throughway for stampeders.
But still, no treaty was offered to Yukon First Nations.
For that, Coates offers one explanation.
“The government was wary about giving away rich land to aboriginal people,” said Coates. “When the Klondike Gold Rush was discovered, everyone expected there’d be others - that this would not be the only one. If you gave them a full treaty, negotiating the area, what if you then discovered that the next Bonanza Creek was on their land?
“Governments have always been very wary of making First Nations people wealthy.”
The Ross River Dena Council may have received a treaty settlement that included the site of the mine in Faro, which could have made them a very wealthy First Nation, Coates says.
And in retrospect, Ottawa would have been better off if they settled the whole territory with treaties way back then, because they weren’t exactly negotiations, Coates added.
First Nations saw treaties as peace-and-friendship agreements, while Canada regarded them as land surrenders, he said.
And if Yukon First Nations did sign treaties, they would not have been able to embark on their modern land claim and self-government agreements, which are globally commended for what’s possible for aboriginal rights, said Coates.
The Ross River Dena Council have rejected all offers.
The current court case has a few preliminary judgements from Yukon’s Justice Leigh Gower, including one in 2007 that kept the case in the territory, after Canada applied for it to be transferred to federal court.
Another, from June of this year, responded to the council’s complaints that Canada was not properly sharing information for the case.
The Ross River Dena Council is looking for compensation for the aboriginal rights and title already lost and disrupted in its traditional territory, as well as the promise that it won’t happen again.
The trial was in Yukon Supreme Court this week and is scheduled to continue next week.
Contact Roxanne Stasyszyn at